Murdock Early Learning Schools Pty Ltd (Migration) - [2022] AATA 1677

Murdock Early Learning Schools Pty Ltd (Migration) [2022] AATA 1677 (11 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Murdock Early Learning Schools Pty Ltd
CASE NUMBER:  1834763
HOME AFFAIRS REFERENCE(S):          BCC2017/964938
MEMBER:Nicola Findson
DATE:11 January 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 11 January 2022 at 11:07am
CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – advice by regional certifying body provided to tribunal – terms and conditions of employment and genuine need for position – nominee’s ongoing employment in position – decision made without hearing necessary – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 360(2)(a)
Migration Regulations 1994 (Cth), r 5.19(4)(h)(ii)(F)
CASE
Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902
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 8 November 2018 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 applied for approval on 11 March 2017. 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 Direct Entry nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h) of the Regulations because the Minister had not been advised by a regional certifying body (RCB) about certain matters pertaining to the nominated position, as required by r.5.19(4)(h)(ii)(F).
The applicant was represented in relation to the review by its registered migration agent.
In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of material provided to it during the review process, pursuant to s.360(2)(a) of the Act.
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 Direct Entry nomination stream set out in reg 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 Tribunal wrote to the applicant on 22 July 2021,…

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.

Continue reading Murdock Early Learning Schools Pty Ltd (Migration)

Details

AGLC: Murdock Early Learning Schools Pty Ltd (Migration) [2022] AATA 1677
Case: [2022] AATA 1677
Decision Date: 11 January 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision concerning an application for approval of a nomination for a position under the Direct Entry stream, brought by Murdock Early Learning Schools Pty Ltd. The core dispute revolved around whether the applicant had satisfied all the requirements stipulated in regulation 5.19(4) of the Migration Regulations 1994 for the approval of the nominated position.

The Tribunal was tasked with determining whether the applicant had demonstrated a genuine need for the nominated position, whether the terms and conditions of employment were appropriate, and whether the position could not be filled by a local Australian citizen or permanent resident. Specifically, the Tribunal had to assess compliance with various sub-regulations of 5.19(4), including those pertaining to the application form, fees, identification of a need for a paid employee, the nominator's business operations, the duration and terms of employment, workplace relations compliance, and the location and nature of the position within regional Australia.

In its reasoning, the Tribunal considered the extensive evidence provided by the applicant, which included financial records, payroll information, employment contracts, and advice from a regional certifying body. The Tribunal found that the applicant had met the requirements of regulation 5.19(4)(a) by submitting a compliant application and identifying a need for a paid employee. It also found no adverse information known to Immigration regarding the nominator (regulation 5.19(4)(f)) and no evidence suggesting a lack of satisfactory compliance with workplace relations laws (regulation 5.19(4)(g)). Crucially, the Tribunal was satisfied that the requirements of regulation 5.19(4)(h)(ii) were met, establishing a genuine need for the position in regional Australia that could not be filled locally, with the tasks corresponding to a specified occupation and advice received from a regional certifying body.

Consequently, the Tribunal set aside the original decision under review and substituted it with 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

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 Direct Entry nomination stream set out in reg 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 Tribunal wrote to the applicant on 22 July 2021, inviting it to provide further information to demonstrate all the relevant requirements of r.5.19(4). The applicant responded by the (extended) due date and provided to the Tribunal additional and updated evidence in support of the application, including but not limited to:·ASIC records confirming the applicant corporation’s registration;·Company Tax Returns for the years ended 30 June 2019 and 2020;·Financial Statements for the years ended 30 June 2019 and 2020;·Business Activity Statements (BAS) for the period July 2019 to June 2021;·Current organisational structure chart;·Position description for the nominated occupation;·Payroll records of the nominee (including payslips, Notices of Assessment, and Income Statements) for the period 2020 and 2021;·Current contract of employment signed on 13 November 2020;·Local job advertisements;·Regional Certifying Body Advice. In a written submission accompanying the additional information provided to the Tribunal, the applicant’s representative, among other matters, provides some background to the operation of the applicant organisation. The submission explains that the applicant provides early learning education and care at two locations in Perth – Thornlie and Langford. A campus in Morley was also operated by the applicant, at the time of application and up until the end of 2020 when it was sold. It is submitted that the applicant has demonstrated a need to have a full-time Child Care Worker to assist in its business. The submission addresses the difficulties the applicant experienced, and continues to experience (given the ongoing challenges caused by border closures and the Covid-19 pandemic), in finding a suitable person(s) from the local labour market, with relevant qualifications and experience, to perform the nominated role. The submission indicates that the nominee, Ms Ana Dal Bianco, has been continuously employed by the applicant in the nominated position for about 5 years. The information before the Tribunal sets out, in detail, the duties undertaken by the nominated employee, in the nominated position.The application is compliant: reg 5.19(4)(a) 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.

Decision

Reasons for decision

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 The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.Nicola FindsonMemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 19945.19Approval 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).

Ratio Decidendi

Legal Principle Established

Accordingly, the requirements of r.5.19(4)(e) are met.No adverse information known to Immigration: reg 5.19(4)(f) 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 regs 1.13A and 1.13B. There is no evidence before the Tribunal to suggest that there is adverse information known to the Department about the nominator or a person associated with the nominator. Accordingly, the requirements of r.5.19(4)(f) are met.Satisfactory compliance with workplace relations laws: reg 5.19(4)(g) 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. There is no evidence before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with workplace relation laws. Accordingly, the requirements of r.5.19(4)(g) are met.Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h) Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision and those relevant to this matter are as follows:·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.Location of the position and the business The first consideration under r.5.19(4)(h)(ii) is whether the position is located in regional Australia. Regulation 5.19(16) provides that ‘regional Australia’ is defined by the legislative instrument. The Tribunal has considered the current legislative instrument (IMMI18/037), however, Schedule 3 of IMMI 18/037 states that it applies only to applications lodged on or after 18 March 2018[1]. The Tribunal notes that IMMI 18/037 repealed the previous legislative instrument (IMMI 17/059)[2].[1] Relevantly, IMMI 18/037, Schedule 3 – Application of this Instrument states: “(1) This instrument applies in relation to the following: (a) an application for approval of a nomination in relation to the Subclass 187 (Regional Sponsored Migration Scheme) visa made on or after 18 March 2018…”[2] See Schedule 4 of IMMI 18/037 When IMMI 17/059 commenced on 17 November 2017, it did not include any saving or transitional provisions and was silent on how applications that had been made and not finally determined on the date it came into effect were to be treated. The Tribunal notes that the Department made a public statement in its Skilled Visa E-News November 2017 newsletter indicating that IMMI 17/059 only applied to nomination applications made on or after 17 November 2017.