Medinova Pty Ltd (Migration)

[2020] AATA 2933

Medinova Pty Ltd (Migration) [2020] AATA 2933 (6 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Medinova Pty Ltd

CASE NUMBER:  1902884

DIBP REFERENCE(S):  BCC2018/781307

MEMBER:Karen McNamara

DATE:6 March 2020

PLACE OF DECISION:  Sydney

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

Statement made on 06 March 2020 at 1:32pm

CATCHWORDS

MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination stream – Health Practice Manager – identification of need for position – operational requirements of the medical practice – value added by the position – experience and qualifications of the visa holder – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), r 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 ( the delegate) on 21 January 2019 to reject the application by Medinova Pty Ltd 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 16 February 2018. 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 application did not identify a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.

5. The applicant lodged an application for review with the Tribunal on 8 February 2019.

6. The Tribunal received a copy of the delegate’s decision record with the application for review.

7. Mr Mohammad Mahinul Abedin appeared on behalf of the applicant before the Tribunal on 11 February 2020,to give evidence and present arguments.  The Tribunal also received oral evidence from the nominee Mr Mohammad Saiful Islam in the related matter for the Subclass 187 visa (AAT Case file 1906491). The related matters were heard concurrently in a combined hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

8. At the conclusion of the hearing, the Tribunal invited the applicant to provide further documentation including copies of the applicant and the nominee’s respective bank account statements, Workers Compensation policy details, evidence of payment of superannuation and nominee’s Notice of Assessments (NOA’s) 2017 to 2019. 

9. The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.

10. 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

11. 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.

    BACKGROUND

12. ASIC records provided by the applicant to the Tribunal show that the company was registered on 23 August 2012 and currently has three Directors. Mr Mohammad Mahinul Abedin told the Tribunal that he was recently appointed to the company as the Managing Director and is responsible for the development of the business including attracting investment, community engagement and overseeing the company’s expansion in Regional NSW. The applicant operates an existing medical practice at Cowra and is in the process of opening a second practice at Blayney NSW.   

13. On 16 February 2018, the applicant lodged an application for an employer nomination approval for the position of Health Practice Manager (ANZSCO 512211) under the Regional Sponsored Migration Direct Entry stream. The nominated salary is $66,400 per annum.

14. The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein.

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

15. 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 an identified person as a paid employee to work in the position under their direct control.

16. Based on the material in the Department’s file, the Tribunal is satisfied that the application was made on the approved form. As the position is located in regional Australia, no fee is payable (r5.37(2)(a)). The application also included written certification relating to conduct that contravenes s.245AR(1) of the Act, declared and signed by the applicant. Accordingly the requirements of r.5.19(4)(a)(i) are met.

17. 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 the oral evidence received at the hearing by Mr Mohammad Mahinul Abedin and Mr Mohammad Saiful Islam.

18. In support of the need for the position, the applicant has provided evidence in the form of a supporting statement as to the value the position adds to the operations of the practice, supported by reference material issued by the Royal Australia College of General Practitioners (RACGP) as to the requirement and role of the Practice Manager in a medical practice.

19. On the totality of evidence before it, the Tribunal is satisfied that the application is made in accordance with subregulation (2) and has identified a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control.

20. As the criteria in both r.5.19(4)(a)(i) and (ii) are satisfied, accordingly the requirements in r.5.19(4)(a) are met.

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

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

22. The Tribunal accepts on the evidence before it that the applicant operates a medical practice located at Cowra in regional NSW. Based on the material provided to the Tribunal, including; financial statements, Business Activity Statements, ASIC Company details, payroll advice, a copy of the current lease agreement of the Cowra premises, a letter of support from the Mayor of Cowra Shire Council and evidence from the applicant  about the operations of the business, the Tribunal is satisfied the applicant is actively and lawfully operating a medical practice in Australia and directly operates that business.

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

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

24. 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.

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

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

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

27. 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. 

28. The Tribunal examined the financial information submitted by the applicant. The business’s 2018 Company Tax return and financial statements record income for the 2017/18 financial year of $445,888 with net equity of $10,516 and salary expense $81,278 in addition to Doctor’s remuneration of $232,088. The business’s 2018/19 financial statements record revenue of $429,611, net equity of $56,479, salary expense $79,040 and Doctor’s remuneration $186,837. The applicant has also provided a letter from its accountant attesting to the applicant’s financial statements, the applicant’s capacity to pay the nominee’s full time salary for the next two years and advising that the applicant has secured an investment of $300,000 for its expansion plan in regional NSW.

29. In considering whether the business has the financial capacity to pay a full time salary of $66,400 per annum to the nominee for two years, the Tribunal has taken into consideration evidence before it including the business’s financial statements and documents submitted to the ATO. The Tribunal has afforded weight to information before it including the applicant’s financial statements, BAS returns (dating back to July 2017) and payroll records, which show the applicant has met payroll and operating costs since the 2018 financial year.

30. The Tribunal has also taken into consideration the nominee has been employed by the applicant on a part time basis since July 2017. The applicant’s payroll records and nominee’s bank statements, support the nominee has received regular remuneration from the applicant. 

31. Based on the evidence before it, the Tribunal is satisfied the applicant has the financial capacity to pay the nominee a full time salary and maintain the employment of the nominee on a full time basis for two years.

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

33. The Tribunal has had regard to the contract of employment for the nominee signed and dated 9 February 2018. The contract sets out the terms and conditions of employment and indicate that the period of employment is two years upon the granting of a visa. At the hearing, the nominee advised the Tribunal that the business would employ the nominee indefinitely for as long as the nominee wished to stay in their employ. The contract stipulates the base salary is $66,400 with hours of work 38 hours per week. There is no term excluding an extension of the contract.

34. The Tribunal is satisfied based on the employment contract dated 9 February 2018 and other material before it, that the nominee will be employed on a full-time basis for at least two years on terms that do not exclude the possibility of extending the period of employment. Accordingly, the requirement in r.5.19(4) (d) (ii) is met.

35. As the criteria in both r.5.19(4)(d)(i) and (ii) are satisfied, accordingly the requirements in r.5.19(4)(d) are met.

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

36. 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.

37. The Contract of Employment (signed and dated 9 February 2018) sets out the terms and conditions of employment and indicates that the nominee’s salary will be $66,400 per annum with hours of work 38 hours per week. The nominee’s leave entitlements include annual, personal and parental leave.

38. The Tribunal has received payslips, NOA’s and bank statements confirming that the nominee since July 2017 has been paid by the applicant, a part time salary pro rata of the nominated salary amount of $66,400 per annum. Superannuation statements provided to the Tribunal support that the nominee is being paid superannuation. The Tribunal is therefore satisfied based on the evidence that the nominee will be paid in accordance with the terms of employment.

39. The Tribunal is satisfied on the evidence before it that the terms and condition applicable to the position will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location. 

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

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

41. 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. 

42. There is no evidence before the Tribunal to indicate that there is adverse information known to the Department about the applicant or an associated person.

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

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

44. 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.

45. 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.

46. 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)

47. 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:

    ·the tasks to be performed in the position will be performed in Australia and correspond to those of an occupation specified by the Minister in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with any specifications made in that instrument, there is a genuine need for the nominee to be employed as a paid employee in the position, and certain specified training requirements are met; or

    ·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position 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.

48. In this case, the applicant claims to meet the requirements in r.5.19(4)(h)(ii). The Tribunal has considered each of these requirements as follows;

49. The evidence before the Tribunal indicates that the applicant’s business, which is operated by the applicant and the position are located in Cowra, New South Wales, postcode 2794 which is a postcode specified in the relevant instrument as being in regional Australia, accordingly r.5.19(4)(h)(ii)(A) and (E) are met.

50. The Tribunal next considered whether there is a genuine need for the applicant to employ a Health Practice Manager (ANZSCO 51221) and for the tasks of that position. The evidence before the Tribunal indicates the applicant operates a medical practice in Cowra NSW. The applicant gave evidence at the hearing that the business requires the position to carry out the day-to-day operations of the practice. 

51. The nominee, Mr Mohammad Saiful Islam has been working with the applicant on a part time basis since July 2017 on a job share basis with an Australian Citizen who has indicated she does not want the position and wishes to retire.

52. The Tribunal has considered evidence supporting the nominee’s suitability in so far as his experience and qualifications for the position.

53. Department records show that Mr Islam holds a Bachelor of Commerce Degree from the National University of Bangladesh, an Advanced Diploma of Management, Diploma of Accounting and Certificate IV in Financial Services. Mr Islam has worked in the nominated position since July 2017, having previously worked in a similar role with Five Dock Medical Pty Ltd for approximately two years.  Mr Islam is an Associate Member of Australian Association of Practice Management.

54. Having considered the evidence attesting to Mr Islam’s experience and qualifications the Tribunal is satisfied that he is suitably qualified for the position.

55. The Tribunal is satisfied that there is a genuine need for a paid employee to work in the position of Health Practice Manager (ANZSCO 51221) under the nominator’s control. The Tribunal is also satisfied that the tasks of the position to be performed correspond to the tasks of an occupation specified by the Minister in a relevant instrument in writing for this sub-subparagraph. Furthermore, the Tribunal is satisfied the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation. Accordingly the requirements of r.5.19(4)(h)(ii) (B) and (D) and (DA) are met.

56. The Tribunal is satisfied that the material and evidence provided, supports the applicant’s claims that they have made efforts to fill the position locally by an Australian citizen or an Australian permanent resident. The applicant provided evidence that they have been unsuccessful in sourcing an experienced and qualified Australian citizen or an Australian permanent resident to the position. The applicant advised the Tribunal that they have advertised the position and provided the Tribunal evidence of the advertisements published online in Jora, Job is Job and LinkedIn. The applicant told the Tribunal that they engaged the services of Labour Support Group to undertake labour market testing for the position, however only three applications were received all of which did not possess relevant and required work experience.  A copy of the Labour Market Testing report dated 7 April 2018 was provided to the Tribunal.

57. The Tribunal also gives weight to the RCB’s advice that the position cannot be filled locally. On the evidence, the Tribunal is satisfied that the position cannot be filled by an Australian citizen/permanent resident living in the same local area. Accordingly, the requirements of r.5.19(4)(h)(ii)(C) are met.

58. The Tribunal has cited the completed Form 1404 dated 25 August 2018 from the relevant RCB, RDA Central West, indicating that they are satisfied regarding the matters specified in paragraph (e) and sub subparagraphs (B) and (C). On this basis, the Tribunal is satisfied that r.5.19(4)(h)(ii)(F) is met.

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

60. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19(4) for approval of the nomination of the position in Australia.

    DECISION

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

    Karen McNamara
    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)       all 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;

    (AA)there is a genuine need for the nominator to employ the person identified under subparagraph (a)(ii), as a paid employee, to work in the position under the nominator’s direct control;

    (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 the person identified under subparagraph (a)(ii), as 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).