Leading Well Pty Ltd (Migration)

[2019] AATA 4322

Leading Well Pty Ltd (Migration) [2019] AATA 4322 (16 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Leading Well Pty Ltd

CASE NUMBER:  1717583

DIBP REFERENCE(S):  BCC2017/99853

MEMBER:Michael Cooke

DATE:16 July 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 16 July 2019 at 4:47pm

CATCHWORDS
MIGRATION – nomination – Direct Entry stream – Naturopath – substantial evidence provided – need for employee under nominator’s direct control – tasks of position consistent with ANZSCO – terms and conditions equivalent to Australian citizen or permanent resident performing same work at same location – employment for 2 years full-time – employment extension not precluded – financial capacity to maintain salary – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 245AR(1)
Migration Regulations 1994 (Cth), rr 1.13, 5.19

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 21 July 2017 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 9 January 2017. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.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: r.5.19(5).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)((a)(ii) of the Regulations because the nominator did not identify a genuine need for a paid employee to work in the position under the direct control of the nominator.

5. The applicant was represented in relation to the review by its registered migration agent.

6. 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

7. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

   The application is compliant: r.5.19(4)(a)

8. Regulation 5.19(4)(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 need for the nominator to employ a paid employee to work in the position under their direct control.

9. Regulation 5.19(4)(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 need for the nominator to employ a paid employee to work in the position under their direct control.

10. Based on the material in the Department's file, the Tribunal is satisfied that the application was made on the appropriate form.

11. In considering whether the application for approval identifies a need for the nominator to employ a paid employee to work in the position under the nominator's direct control, the Tribunal has had regard to the evidence before it, including written submissions and evidence provided by the applicant's director (T1, ff. 19-22).

12. On the totality of evidence before it, the Tribunal is satisfied that the application has identified a need for the nominator to employ a paid employee to work in the position under the nominator's direct control. Accordingly, the requirement in r.5.19(4)(a) is met

    Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)

13. Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia.

14. On the basis of the evidence provided to the Tribunal, including the business' activity statements, financial reports, certificate of registration, company tax returns and written submissions from the applicant, the Tribunal is satisfied the applicant is actively and lawfully operating a boutique consulting and leadership coaching firm in Australia and directly operated that business.

15. Accordingly, the requirement in r.5.19(4)(b) is met.

    Position is not labour-hire: r.5.19(4)(c)

16. Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business.  In these cases, the nominated position must be within the business activities of the nominator. 

17. There is no evidence before the Tribunal to suggest that the applicant's business is involved in labour hire.

18. Accordingly, the requirement in r.5.19(4)(c) does not apply.

    Term of employment of the visa holder: r.5.19(4)(d)

19. Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension. 

20. The Tribunal has had regard to the amended letter of engagement signed on 3 January 2017 by the employer and nominee respectively, which sets out the terms and conditions of the nominee's employment. The contract stipulates that the position is full time for a period of two years from the date the permanent residence visa is granted by the Department.

21. The Tribunal has also considered whether the applicant has the financial capacity to provide the stated employment. The financial documents that have been provided to the Tribunal, including the 2018 and 2017 financial reports, business activity statements for years 2018 and 2019 and a letter from the applicant's accountant dated 11 July 2019. The applicant's accountant provided the opinion that the applicant is in a position to meet the financial obligations as set out in the employment contract for a period of at least two years. The Tribunal is satisfied on the totality of the evidence that the applicant has the financial capacity to employ the nominee.

22. Given the above, the Tribunal is satisfied that the nominee will be employed in the nominated position for at least 2 years full time and the terms and conditions of that employment do not expressly exclude the possibility of an extension. Accordingly, the requirement in r.5.19(4)(d) is met.

23. Accordingly, the requirement in r.5.19(4)(d) is met.

    No less favourable terms and condition of employment: r.5.19(4)(e)

24. Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

25. The Tribunal finds from the evidence presented to the department that the terms and condition applicable to the position will be no less favourable than those that are/would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

26. Accordingly the requirements of r.5.19(4)(e) are met.

    No adverse information known to Immigration: r.5.19(4)(f)

27. Regulation 5.19(4)(f) 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 rr.1.13A and 1.13B. 

28. The Tribunal is satisfied that there is no adverse information known to the Department about the nominator or a person ‘associated with’ the nominator.

29. Accordingly the requirements of r.5.19(4)(f) are met.

    Satisfactory compliance with workplace relations laws: r.5.19(4)(g)

30. Regulation 5.19(4)(g) requires that the applicant has 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.

31. There is no evidence before the Tribunal that indicates the applicant does not have a satisfactory record of compliance with the relevant Commonwealth and State workplace relations laws. Accordingly the requirements of r.5.19(4)(g) are met

    Tasks of the position genuine need for the position and training requirements r.5.19(4)(h)

32. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:

    ·(i) the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, and specified training requirements are met; or

    ·(ii) the position and nominator’s business is located in regional Australia; there is a genuine need for the paid position under the nominator’s direct control which cannot be filled by a locally resident Australian citizen or permanent resident; the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument; the occupation is applicable to the proposed employee in accordance with the specification of the occupation; and that a regional certifying body has advised the Minister about certain matters relating to the position.

33. In this case, the applicant claims to meet the requirements in r.5.19(4)(h)(i). The Tribunal has considered each of these requirements.

34. The evidence before the Tribunal indicates that the applicant's business - which is operated by the applicant - and the position are located in Roseville NSW 2069.

35. The Tribunal has next considered whether there is a genuine need for the applicant to employ a Naturopath and the tasks of that position. The applicant provided evidence that the nominee has been employed in the position of Naturopath since 2008. The tasks are as outlined in the nominee's job description.

36. In considering the totality of the evidence, the Tribunal is satisfied that there is a genuine need for a paid employee to work in the position of Naturopath under the nominator's control. The Tribunal is also satisfied that the tasks of the position correspond to the occupation of Naturopath, which is specified in the ANZSCO (252513). Accordingly, the requirements of r.5.19(4)(h)(ii)(B) and (D) are met

37. The material and evidence provided supports the applicant's submissions that they have made efforts to fill the position locally but have had considerable difficulty doing so because no one had been qualified in the particular treatment therapy called ART. On the evidence, the Tribunal is satisfied that the position cannot be filled locally by an Australian citizen/permanent resident. Therefore, the requirements ofr.5.19(4)(h)(ii)(C) are met.

38. Given the above, the Tribunal finds that the requirements of r.5.19(4)(h)(i) are met and accordingly r.5.19(4)(h) is met as a whole.

39. Accordingly the requirements of r.5.19(4)(h) are met.

40. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.

    DECISION

41. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.  Michael Cooke

    
    

    Senior Member

    ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    5.19Approval of nominated positions (employer nomination)

    …

    (2)The application must:

    (a)be made in accordance with approved form 1395…; and

    (aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and

    (b)be accompanied by the fee mentioned in regulation 5.37.

    …

    Direct Entry nomination

    (4)The Minister must, in writing, approve a nomination if:

    (a)the application for approval:

    (i)       is made in accordance with subregulation (2); and

    (ii)      identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and

    (b)the nominator:

    (i)       is actively and lawfully operating a business in Australia; and

    (ii)      directly operates the business; and

    (c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and

    (d)both of the following apply:

    (i)       the employee will be employed on a full-time basis in the position for at least 2 years;

    (ii)      the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and

    (e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

    (i)       are provided; or

    (ii)      would be provided;

    to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

    (f)either:

    (i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

    (ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and

    (g)the nominator has 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; and

    (h)either:

    (i)       both of the following apply:

    (A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

    (AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

    (B)either:

    (I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or

    (II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or

    (ii)      all of the following apply:

    (A)the position is located in regional Australia;

    (B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;

    (C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;

    (D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

    (DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

    (E)the business operated by the nominator is located at that place;

    (F)a body that is:

    (I)specified by the Minister in an instrument in writing for this sub-subparagraph; and

    (II)located in the same State or Territory as the location of the position;

    has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).