K & L Endo Medical Pty Ltd (Migration) - [2022] AATA 2989

K & L Endo Medical Pty Ltd (Migration) [2022] AATA 2989 (11 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  K & L Endo Medical Pty Ltd
REPRESENTATIVE:  Mr Hwa Jong Yoon (MARN: 0741968)
CASE NUMBER:  1908289
HOME AFFAIRS REFERENCE(S):          BCC2018/703582
MEMBER:Terrence Baxter
DATE:11 July 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 11 July 2022 at 9:32am
CATCHWORDS
MIGRATION–nomination – Temporary Residence Transition nomination stream – Health Manager – applicant had not fulfilled the commitments made in relation to meeting the training requirements –genuine need to employ a paid employee to work in the position under the nominator’s direct control – no adverse information –no less favourable terms and condition of employment –applicant lawfully operating a business in Australia– decision under review set aside
LEGISLATION
Migration Act 1958, ss 65, 140GB, 245AR
Migration Regulations 1994, rr 1.13, 5.19
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179
Vishnumolakala v Minister for Immigration [2006] FMCA 1209
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 March 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant, K & L Endo Medical Pty Ltd, applied for approval on 11 February 2018. The applicant nominated Ms Siew Ching Fong (the nominee) in the position of Health Manager. The applicant operates a specialist medical practice in Sunnybank, Queensland. The company began operating in 2010 on a relatively small basis with the two company directors providing specialist services. The company has grown to the extent that a third doctor is now managed by the practice and seven other doctors provide medical services through the clinic operated by the applicant. The nominee has been employed by the applicant on a full-time basis since 2015.
The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met, then the application must be refused: reg 5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.
The delegate refused the application on the basis that the applicant’s nomination did not satisfy reg 5.19(3)(f)(i)(A) of the Regulations because the delegate found that the applicant had not fulfilled the commitments made in relation to meeting the training requirements during the period of the applicant’s most recent approval as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] AATA 2989
Decision Date: 11 July 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) reviewed a decision concerning a nomination under the Temporary Residence Transition stream. The applicant, K & L Endo Medical Pty Ltd, sought approval for a nomination for a Health Manager position. The core of the dispute revolved around whether the applicant had fulfilled the commitments related to meeting training requirements and demonstrating a genuine need to employ a paid employee under their direct control.

The Tribunal was required to determine if the applicant met the specific requirements for nomination approval as set out in regulation 5.19(3) of the Migration Regulations 1994. This included assessing whether the application was in the approved form, accompanied by the prescribed fee, identified a relevant person and occupation, and demonstrated a genuine need for the nominator to employ the person as a paid employee under their direct control. The Tribunal also considered whether there was any adverse information known to the Department and whether the applicant had a satisfactory record of compliance with workplace relations laws.

The Tribunal's reasoning focused on a detailed examination of the evidence presented by the applicant, including company financial reports, employment contracts, payslips, tax returns, and statements from medical practitioners regarding the nominee's role. It found that the application met the formal requirements, including the correct visa subclass for the nominee and an occupation listed in the Australian and New Zealand Standard Classification of Occupations. Crucially, the Tribunal was satisfied, based on the evidence of the nominee's long-term employment, her integral role in the practice's IT requirements, and the heavy workloads of the medical practitioners, that there was a genuine need to employ the nominee under the nominator's direct control. Furthermore, no adverse information was presented, and the applicant demonstrated a satisfactory compliance record with workplace relations laws.

Consequently, the Tribunal set aside the original decision and substituted a decision approving the nomination.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The nominee gave evidence of her employment in the position and the tasks performed by her.Evidence presented after the hearings After the first hearing, the applicant produced to the Tribunal the following documents: a.Activity statements for the period from July 2019 to December 2021. b.An undated submission from the representative. c.A copy of the decision record in Triple One Group Australia Pty Ltd (Migration) [2022] AATA 895 (31 March 2022).d.A receipt issued by TAFE NSW dated 19 June 2015. e.An extract from the Department’s policy contained in its Procedures Advice Manual (PAM3) regarding reg 5.19(3)(f). f.A copy of IMMI 17/074. After the second hearing, the applicant produced to the Tribunal the following documents:a.A further undated submission from the representative.b.A further extract from PAM3 in relation to relevant aspects of the nomination.c.A submission from Drs Chang and Ku dated 30 June 2022.The application must be compliant: reg 5.19(3)(a) Regulation 5.19(3)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee and, where applicable, must include the required written certification relating to conduct that contravenes s 245AR(1). The application must also identify a relevant person and occupation and identify a need for the nominator to employ that person, as a paid employee, to work in the position under the nominator’s direct control. Having regard to the information provided by the Department, the Tribunal is satisfied that the application for approval was made on the approved form, was accompanied by the prescribed fee and included a written certification stating whether the applicant had engaged in conduct in relation to the nomination that contravenes s 245AR(1). The requirements of reg 5.19(2) and consequently of reg 5.19(3)(a)(i) are met. Regulation 5.19(3)(a)(ii) requires that the application for approval identifies a person who holds a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in cl 457.223(4) of Schedule 2 to the Regulations. The person identified in the application is the nominee, Siew Ching Fong. Department records reveal that the nominee was granted a Subclass 457 visa on 20 August 2015, which was valid until 20 August 2019. Accordingly, the nominee held the required subclass of visa on the date of the application, 11 February 2018. The Tribunal is satisfied that the requirements of reg 5.19(3)(a)(ii) are met. Regulation 5.19(3)(a)(iii) requires that the application identifies an occupation, in relation to the position, that is listed in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) and has the same 4-digit occupation unit code as the occupation carried out by the holder of the Subclass 457 (Temporary Work (Skilled)) visa. The application identifies the position as Health Manager and the occupation (ANZSCO) as Health Information Manager. The Tribunal finds that ANZSCO lists the occupation, Health Information Manager with Unit Group code 2242. The nominee’s 2015 employment contract describes her position as Health Information Manager. At the hearing, Drs Ku and Chang gave evidence of the tasks performed by the nominee in the position. Having regard to the evidence as to the duties being performed by the nominee, the Tribunal is satisfied that the nominee has carried on the occupation of Health Information Manager listed in ANZSCO. Accordingly, the Tribunal is satisfied that the requirements of reg 5.19(3)(a)(iii) are met.

Decision

Reasons for decision

For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in reg 5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.Evidence presented prior to the hearing The applicant produced to the Department of Immigration and Border Protection (now the Department of Home Affairs) (the Department) the following documents: a.An ASIC company details extract of the applicant.b.A financial report for the 2018 financial year. c.An activity statement lodgement confirmation for the period from July to September 2018, and activity statements for the period from October 2017 to June 2018. d.Bank statements of the nominee from the 2015 to 2018 calendar years.e.Company tax returns for the 2017 and 2018 financial years. f.A receipt issued by TAFE NSW dated 19 June 2018. g.An undated submission regarding genuine need for the nominee. h.A payslip of the nominee for the period from 29 December 2018 to 10 January 2019. i.PAYG payment summaries of the nominee for the 2016 to 2018 financial years. j.A position description. k.Transaction summaries of the nominee’s superannuation account for the 2016 to 2018 financial years.l.An employment contract of the nominee dated 18 July 2015. m.An organisational chart. The applicant produced to the Tribunal the following documents: a.A copy of the delegate’s decision. b.Financial reports for the 2015 to 2021 financial years.c.Receipts issued by TAFE NSW on 21 June 2016, 27 June 2017, 19 June 2018, 20 November 2019 and 24 June 2020.d.A receipt issued by TAFE Queensland dated 23 June 2021. e.An undated submission from the applicant’s accountant regarding training contributions. f.Notification of the applicant’s approval as a standard business sponsor for the period from 8 July 2015 to 8 July 2020. g.Summaries of training contribution payments made prepared by the applicant for the 2018 to 2020 financial years. h.An ASIC company summary extract of the applicant.i.An ASIC current and historical company extract of the applicant.j.A current and historical ABN Lookup form of the applicant. k.An ASIC business name details extract for the business name K & L Endo. l.Company tax returns for the 2020 and 2021 financial years.m.An organisational chart.n.A job description.o.A photo of the nominee at work accompanied by a description of her duties in the position.p.Evidence of the tasks performed by the nominee in the position.q.An employment contract of the nominee dated 14 March 2022.r.Market salary research.s.An employment contract of the nominee dated 28 July 2015. t.Income statements of the nominee for the 2020 to 2021 financial years, and 2022 financial year to date. u.PAYG payment summaries of the nominee for the 2016 to 2019 financial years.v.Notices of taxation assessment of the nominee for the 2016 to 2021 financial years.w.A copy of the notification of the applicant’s approval as a standard business sponsor provided to the Department.x.A submission prepared by the applicant regarding Training Benchmark A payment history. Evidence presented at the hearings regarding the applicant’s operations

Ratio Decidendi

Legal Principle Established

Accordingly, the requirement in reg 5.19(3)(f) is met.No adverse information known to Immigration: reg 5.19(3)(g) Regulation 5.19(3)(g) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B. There is no evidence before the Tribunal that there is any adverse information of the type described in the relevant definitions known to the Department about the applicant or any associated person. Accordingly, the requirement in reg 5.19(3)(g) is met.Satisfactory compliance with workplace relations laws: reg 5.19(3)(h) Regulation 5.19(3)(h) requires the applicant to have a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations. There is no evidence before the Tribunal to suggest that the applicant has an unsatisfactory record of compliance with workplace relations laws of the Commonwealth or any State or Territory in which the applicant operates a business. The Tribunal is satisfied that the applicant does have a satisfactory record of compliance. Accordingly, the requirement in reg 5.19(3)(h) is met.Genuine need to employ nominee: reg 5.19(3)(i) Regulation 5.19(3)(i) requires that there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control. Dr Chang stated at the hearing that the nominee was a key employee of the applicant and integral to the successful operation of the applicant’s practice. He stated that the nominee had been employed by the applicant for more than seven years and that she was almost irreplaceable. He referred to the IT requirements of the applicant for which the nominee was personally responsible. He gave evidence of the heavy workloads upon himself and Dr Ku. He also gave evidence of the various tasks performed by the nominee in the position. The nominee, not having been present when the evidence of Drs Chang and Ku was given, gave evidence of her employment in the position and the tasks performed by her in that position. The Tribunal notes that the nominee has been employed full-time as Health Manager by the applicant since 2015 and that she is well qualified for the position. The Tribunal accepts that Dr Ku and Dr Chang are both busy professionals and that they rely heavily on the nominee in the management of the practice. The Tribunal is satisfied that there is a genuine need for the applicant to employ the nominee to work in the position under the nominator’s direct control. Accordingly, the requirement in reg 5.19(3)(i) is met. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.DECISION