Nulsen Haven Association (Inc) (Migration)

Nulsen Haven Association (Inc) (Migration) [2020] AATA 2897 (3 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Nulsen Haven Association (Inc)
CASE NUMBER:  1719306
DIBP REFERENCE(S):  BCC2016/1664173
MEMBER:Nicola Findson
DATE:3 July 2020
PLACE OF DECISION:  Perth
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 03 July 2020 at 7:47pm
CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry nomination stream – skill level of nominated position – tasks to be performed compared to ANZSCO description – certification by regional certifying body not sufficient or determinative – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 360(2)(a)
Migration Regulations 1994 (Cth), r 5.19(4)(h)(ii)(D)
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 Immigration on 7 August 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).
The applicant applied for approval on 6 May 2016. 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).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream.
The applicant is a large charitable organisation operating to provide services to people with complex disabilities. It is located in Cannington, Western Australia, 6107. The applicant has nominated the position of Residential Care Officer (ANZSCO 411715) for approval.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4) of the Regulations. The delegate was of the view that the duties of the position did not correspond to the skill level 2 occupation of Residential Care officer nominated. Instead, the delegate considered that the nominated occupation was closer to a skill level 4 occupation of Aged or Disabled Carer. The delegate therefore found that the tasks to be performed in the position did not correspond to the tasks of an occupation specified by the Minister in an instrument in writing and therefore did not meet r.5.19(4)(h)(ii)(D), and therefore r.5.19(4)(h) as a whole.
The applicant was represented in relation to the review by its registered migration agent.
On 1 November 2019, the Tribunal wrote to the applicant, inviting it to provide further information to demonstrate all the relevant requirements of r.5.19(2) and (4). The applicant responded and provided to the Tribunal additional and updated evidence in support of the application, including but not limited to:
·ASIC and ABN records for the applicant’s registration as an association in Western Australia
·Nulsen Annual Reports of 2017 and 2018
·Financial Reports for the applicant for the years ended 30 June 2017, 2018 and 2019
·NDIS Provider List for Western Australia, which includes the applicant
·Current organisational structure chart
·United Voice Enterprise Agreement 2015
·Contract of Employment dated 3 September 2015 between the applicant and the nominee
·Amended contract of Employment dated 1 February 2018 between the applicant and the nominee
·Payroll records in relation to the nominee (including payslips and PAYG information) for the period 2017 to 2020
·Evidence of advertising for the nominated position
·Certification approval from the relevant Regional Certifying Body
Comprehensive written submissions also accompanied the additional material. These submissions provide detailed information about the applicant’s operations as well as a focussed response to the concerns set out by the delegate in the decision record. The submission addresses the difficulties the organisation experienced, and continues to experience, in finding a suitable person(s) from the local labour market, with relevant qualifications and experience, to perform the nominated role. It also sets out, in detail, the duties of the position performed by the nominee at the applicant organisation.
The applicant’s website, which the Tribunal has accessed, indicates that the applicant organisation was established in 1954 by parents of children with severe disabilities. Since that time, the organisation has significantly evolved to become one of Western Australia’s leading community services providers. It’s services and supports encompass disability, housing, allied health, justice and reintegration.
The Tribunal has had regard to this additional evidence, and under s.360(2)(a) of the Act is satisfied it is able to decide the review in the applicant’s favour on the basis of the material before it.
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 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)
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.
The Tribunal has had regard to the information of the Department’s file as to the nomination, and is satisfied that these requirements are met. The application for approval was made on the approved form and was accompanied by the prescribed fee. The relevant s.245AR(1) certification was also provided to the Department.
The Tribunal is further satisfied that the nomination application identified a need for the applicant to employ a paid employee (Ms Kulwinder Kaur) to work in the nominated position of Residential Care Officer (ANZSCO 411715), under its 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)
Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia.
Having considered the material before it, including the nominator’s financial statements and business registration records, the Tribunal is satisfied that the nominator is actively and lawfully operating a business in Australia and directly operates that business.
Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: r.5.19(4)(c)
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.
There is no evidence before the Tribunal to indicate that the applicant is involved in labour hire activities. The Tribunal is satisfied that the employment contract and organisational chart confirm that the nominee will work in the applicant’s direct employ.
Accordingly, the Tribunal finds that the position is not related to labour-hire and that the requirement in r.5.19(4)(c) is met.
Term of employment of the visa holder: r.5.19(4)(d)
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.
It is now over two years since the delegate’s decision, and documents provided by the applicant show that the nominee has been employed as a Residential Care Officer since that time. Further, the Tribunal has had regard to the terms and conditions of employment as set out in the contract of employment dated 3 September 2015 (re-signed by the parties on 1 February 2018). The contract indicates that it is for full-time, ongoing permanent employment. There is no clause that excludes the possibility of an extension.
Accordingly, the requirement in r.5.19(4)(d) is met
No less favourable terms and condition of employment: r.5.19(4)(e)
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.
Based on the written submissions and information provided, the Tribunal is satisfied that there are other support workers within the organisation besides the nominee, who are performing equivalent work in the same workplace as Residential Care Officers. It has been submitted that all of the applicant’s staff members are paid under its United Voice Enterprise Agreement of 2015, regardless of their visa status. From the most recent letter of employment made to the nominee, dated 1 February 2018, the Tribunal is satisfied that she has the same salary package offered to other support workers of the applicant.
The Tribunal is satisfied that the terms and conditions set out in the contract of employment for the nominee are consistent with those set out in the Fair Work Ombudsman’s National Employment Standards (NES). The Tribunal is accordingly satisfied that the terms and conditions 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.
Accordingly the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.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 rr.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: r.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 r.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 8 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 IMMI17/059 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.
Given that neither the current instrument nor its immediate predecessor can be relied upon, in order for the Tribunal to reach a finding in respect of whether the position is located in regional Australia, the Tribunal has considered the legislative instrument that applied at the time the applicant lodged the nomination application. That legislative instrument is IMMI 13/049.
In this case, the position is located in Cannington, Western Australia, 6107, and at the time of application, this location/postcode was considered regional Australia, as per Schedule B of IMMI 13/049. Accordingly, the Tribunal finds that the requirements of sub-paragraph 5.19(4)(h)(ii)(A) and (E) are met.
Genuine need for the paid position, which cannot be filled by an Australian citizen or an Australian permanent resident
Subparagraph 5.19(4)(ii)(h)(B) requires the Tribunal to be satisfied that there is a genuine need for the applicant, as the nominator, to employ a paid employee to work in the position under the nominator’s direct control.
In considering this issue, the Tribunal has taken into account the information provided to the Tribunal regarding the nature of the business and the explanation as to why there is a genuine need for a paid Residential Care Officer in the organisation. The Tribunal accepts the evidence regarding the applicant’s efforts to find a suitably qualified and experienced person to fill the nominated position, on a long-term basis. The evidence before the Tribunal is that the applicant struggles to find staff and frequently advertises to continuously recruit Support Workers. The information before the Tribunal is that the difficulty in recruiting and retaining staff is the general experience of the organisation. The Tribunal has had regard to information indicating that the position is challenging; there is high attrition in the position; and the applicant regularly employs both Australian citizens and permanent residents as well as temporary residents.
The Tribunal also takes into account the opinion of the regional certifying body, which it notes to be the Government of Western Australia, advising the Minister among other matters that the nominated position cannot be filled by an Australian citizen or permanent resident living in the same local area as the nominated position.
The Tribunal is satisfied that the applicant has demonstrated a genuine need for a paid position under its direct control and that it cannot be filled by a local resident. Accordingly, r.5.19(4)(ii)(h)(B) and (C) are met.
Tasks of the position
The tasks of the nominated position must correspond to those of an occupation specified in the relevant legislative instrument: r.5.19(4)(h)(i)(A).
The delegate was not satisfied that the duties of the nominated position corresponded closely enough to the ANZSCO occupation of Residential Care Officer (ANZSCO 411715), finding that they were closer to those of an Aged or Disabled Carer (ANZSCO 423111). The significance of this distinction is that the occupation of Residential Care Officer is a skill level 2 occupation and is specified in the relevant legislative instrument, IMMI 15/083. However, the occupation of Aged or Disabled Carer is a skill level 4 occupation and is not specified in the relevant instrument.
The respective ANZSCO occupational descriptions for a Residential Care Officer (which falls within the Unit Group of Welfare Support Workers) and an Aged or Disabled Carer (which has its own Unit Group) are as follows:
UNIT GROUP 4117 WELFARE SUPPORT WORKERS
WELFARE SUPPORT WORKERS provide support, information and advice to clients on emotional, financial, recreational, health, housing and other social welfare matters, and evaluate and coordinate the services of welfare and community service agencies.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

In New Zealand:
NZ Register Diploma (ANZSCO Skill Level 2)

At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Tasks Include:
Occupations:
411711 Community Worker
411712 Disabilities Services Officer
411713 Family Support Worker
411714 Parole or Probation Officer
411715 Residential Care Officer
411716 Youth Worker
…
411715 RESIDENTIAL CARE OFFICER

Provides care and supervision for children or disabled persons in group housing or institutional care.
Skill Level: 2
…
UNIT GROUP 4231 AGED AND DISABLED CARERS
AGED AND DISABLED CARERS provide general household assistance, emotional support, care and companionship for aged and disabled persons in their own homes.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Certificate II or III (ANZSCO Skill Level 4)

In New Zealand:
NZ Register Level 2 or 3 qualification (ANZSCO Skill Level 4)

At least one year of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Tasks Include:
Occupation:
423111 Aged or Disabled Carer

423111 AGED OR DISABLED CARER

Alternative Titles:
Aged or Disabled Care Worker
Personal Carer
Personal Care Worker

Provides general household assistance, emotional support, care and companionship for aged or disabled people in their own homes.
Skill Level: 4

At the time of application, the applicant provided to the Department a position description in relation to the role to be performed by the nominee within its organisation (Support Worker Accommodation Services). That position description indicates that the nominee is required to undertake a number of tasks which are grouped in to the following six Key Performance Outcomes (KPO):
- KPO 1: Providing support and assistance to disabled residents in meeting their personal and developmental needs (50% of work time);
- KPO 2: Providing direct support and assistance in meeting the living and domestic needs of each disabled resident in their group residential home (20% of work time);
- KPO 3: Performing the requirements of plans, programs and Nulsen policies and procedures (20% of work time);
- KPO 4: Communicates the needs of service users and the broader Association within the disability community (ongoing);
- KPO 5: Accounting to Nulsen through the Residential Services Manager (10% of work time); and
- KPO 6: Other positional requirements (ongoing)
The applicant’s submission to the Tribunal contains a comparison table between the ANZSCO duties associated with a Residential Care Officer and particular KPO’s from the applicant’s job description document, as set out below. It is submitted that the tasks to be performed by the nominated position correspond to the tasks of the Residential Care Officer in the ANZSCO dictionary.

Welfare Support Workers (ANZSCO)

Residential Care Officer

Support Worker Accommodation Services

Assessing clients’ needs and planning, developing and implementing educational, training and support programs

YES

KPO 1:

1.1      Ensure on a daily basis that, as far as is           practicable, the needs of the residents are           recognised and that priority consideration is           given to responding to their needs by complying           with Nulsen’s policies, practices and guidelines.

1.3      Implement and document Person Centred           Plans and other procedures as directed by           Health Services team and other related           agencies.

1.4      Facilitate the involvement of stakeholders,      including family, friends, advocates, other      people with disabilities and the wider      community to participate in the lives of the      residents where appropriate, to the extent      that they wish to be included.

1.11      Use safe working procedures, including      SAFE LIFTING practices, when moving      residents with restricted mobility, as      demonstrated in training on a daily basis.

KPO 3:

3.3      Organise and conduct outings, holidays and      leisure activities for allocated residents in      consultation with supervisor to ensure residents      have pleasurable experiences.

3.4      Ensure compliance with all Nulsen policies,      procedures, and guidelines by allocating time to      read and maintain knowledge of Nulsen’s work      policies and practices.

3.5      Assist with administrative duties related to      the running of the home as delegated.

Interviewing clients and assessing the nature and extent of their difficulties

YES

KPO 1:

1.2      Engage in the planning, assessment,      implementation and review of residents’      lifestyles in conjunction with the Nulsen      Connect Program as required.

Monitoring and reporting on the progress of clients

YES

KPO 1:

1.9      Document and record daily information      pertaining to residents’ medications, health      issues and mealtime management issues.

1.12      Immediately report any maltreatment of      residents and all incidents and accidents to the      Residential Services Manager as they occur.

KPO 3:

3.1      Ensure Lifestyle Planning recommendations for           allocated residents are given effect. Specifically:

          a.       Complete all relevant documentation   and filing as directed.

          b.       Implement procedures for   maintaining residents’ skills in   support of the Program’s success.

3.2      Conduct and record special training programs by           following program outline as directed.

Referring clients to agencies that can provide additional help

YES

KPO 4:

Communicates the needs of service users and the broader Association within the disability community

4.1      Communicate in a manner that generates           understanding and positive client and work           relationships

4.2      Write effective reports as required that can be           understood clearly so action can be undertaken           by recipient if necessary.

4.3      Manage intermediate levels of conflict in           accordance with the grievance procedure and,           where possible, generate voluntary compliance           and understanding to remedy these situations.

4.4      Ensure the Residential Services Manager is           made aware of sensitive issues as required,           including all matters relating to the residents in a           responsive manner.

4.5      Act as a positive role model at all times to the           wider community on behalf of the residents           and Nulsen, by promoting Nulsen and complying           with policies, procedures and directives.

Assessing community need and resources for health, welfare, housing, employment, training and other facilities and services

NO – applicable to Community Worker (411711) only

Liaising with community groups, welfare agencies, government bodies and private businesses about community issues and promoting awareness of community resources and services

NO – applicable to Community Worker (411711) only

Supporting families and providing education and care for children and disabled adults in adult service units, group housing and government institutions

YES

KPO 1

1.5      Provide resident opportunities for growth,           development and pursuit of their aspirations           through home involvement and community           opportunities as part of daily duties

1.6      Ensure that individual residents achieve and           maintain meaningful and valued personal           involvement in activities and relationships with           the community on a daily basis

1.7      Ensure residents’ emotional, social and physical           wellbeing is enhanced through activities in home           and community involvement on an ongoing           basis. Regular attendance at continuous training           and support sessions necessary to meet this           criterion.

1.8      Administer dispensed medication from chemist           supplied dispensary packs in accordance with           medication procedures and guidelines as           required.

1.13     Interact with residents in accordance with the           ethos and policies of Nulsen and, as far as is           practicable, in a manner consistent with the           principles of Social Role Valorisation at all           times.

1.10     Contact Medical Services providers, such as           Ambulance Services in the event of an           emergency.

KPO 2:

2.1      Regular daily domestic and personal care duties           include laundry, bed making, washing of           clothing, dusting, food preparation and house           cleaning duties as part of everyday           requirements, for each of the service users in           the group home.

2.2      Provide all necessary support/assistance           required by residents such as eating, dressing,           mobility and personal hygiene to the highest           standards as provided in training and policies.

Supervising offenders on probation and parole

NO – applicable to the occupation of Parole or Probation Officer (411714) only

Assisting young people to solve social, emotional and financial problems

NO – applicable to the occupation of Youth Worker (411716) only

Preparing submissions for funding and resources and reports to government bodies and other agencies

YES

Taken by Residential Services Manager of Nulsen.

The Tribunal notes that the applicant, in its submission, takes issue with the basis on which the delegate refused its application and submits that the United Voice Enterprise Agreement should not be considered the most significant evidence upon which to base an opinion or make an assessment as to whether the nominated position should be approved. It is submitted that the applicant, as well as a majority of Western Australia social service and care organisations, signed the Agreement and therefore its provisions are “generalist” and reflect minimum standards and requirements of an occupation in the industry. Instead, it is submitted, and the Tribunal accepts, that the job description document is superior evidence in terms of understanding the nature and tasks associated with the particular occupation and position with the applicant organisation.
The information before the Tribunal is that the applicant accommodates people with particularly complex disabilities in group homes and progresses tailored personal programs for each person to ensure they maintain their dignity and aspirations. The information indicates that together with a team of Enrolled Nurses and Social Trainers, Support Workers Accommodation Services provide care and supervision for residents in group housing. The nominated role provides direct services to residents with the purpose of promoting, enhancing and sustaining the lives of people with disabilities through care, accommodation and development.
The Tribunal has given careful consideration to the written submissions, including the comparison table, provided to it and on the basis of this information is persuaded that the tasks of the nominated position are brought outside those of the lower skill occupation of Disabled or Aged Carer and are more closely aligned with the higher level and skill ANZSCO description of a Welfare Support Worker and more specifically a Residential Care Officer.
The Tribunal has also had regard to the Organisational Chart provided to it by the applicant and the location of the nominated position within the hierarchy of its organisation. The Organisational Chart indicates that the nominated position reports to a Residential Services Manager. In addition, it specifically states that the Residential Services Manager is responsible for managing the Support Workers, providing support, information and advice to them in managing clients with emotional, health, housing and other social welfare matters. From this, the Tribunal concludes that the Residential Services Manager is not directly involved in the assessment and management of individual residents of the organisation, but primarily responsible for managing the Support Workers Accommodation Services. As such, it is a superior position within the structure of the applicant organisation, requiring higher level qualifications and experience.
Accordingly, in the circumstances of this case, the Tribunal is satisfied that tasks associated with the nominated position sufficiently correspond to those of the occupation of Residential Care Officer (ANZSCO 411715), being an occupation that is specified in IMMI 15/083. The Tribunal further finds that the tasks of the nominated position appear to be more complex and require significantly more skill than the tasks described for a Disabled or Aged Carer, given the complex nature of the disabilities of the care recipients, the need to work in a team and the goal focussed approach to caring for the applicant’s clients.
The Tribunal notes in passing that the nominee holds a Diploma from an Australian education provider, being the requisite level of qualification according to ANZSCO. She also has experience working for the applicant as a Support Worker for over five years.
Accordingly, the requirements of r.5.19(4)(h)(ii)(D) of the Regulations are met.
Regional Certification
The Tribunal has considered the Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body Advice, issued on 31 May 2016 by Skilled Migration WA, Western Australian Department of Training and Workforce Development.
The Tribunal notes its earlier comments in relation to the current instrument IMMI 18/037, which only applies in respect of nomination applications made on or after 18 March 2018, and that it has therefore applied the provisions in the instrument that applied at the time the applicant lodged the nomination application, which was IMMI 13/049.
On the basis of the advice set out in the Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body Advice provided, the Tribunal is satisfied that the regional certifying body has advised the Minister about the matters set out in r.5.19(4)(e ) and r.5.19(4)(h)(ii)(B) and (C) of the Regulations. The regional certifying body states that:
- There is a need for a paid employee in the nominated position within the business activities of the nominating employer;
- The nominated position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as the nominated position; and
- The terms and conditions of employment that are applicable to the nominated position will be no less favourable than the terms and conditions that are or would be provided to an Australian citizen or Australian permanent resident for performing the equivalent work in the same workplace at the same location.
Consistent with the decision of the Federal Circuit Court of Australia in Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902, certification by a regional certifying body is not sufficient or determinative in relation to whether the nominator meets r.5.19(4)(e) , r.5.19(4)(h)(ii)(B) and r.5.19(4)(h)(ii)(C) of the Regulations. Accordingly, the Tribunal notes that, whilst having regard to the advice provided by the regional certifying body, it has reached its own conclusions about the matters the subject of the regional certifying body’s advice.
Having considered the Form 1404 provided, the Tribunal is satisfied that the requirements of r.5.19(4)(h)(ii)(F) are met by provision of the requisite Form 1404.
It follows that the Tribunal finds the applicant meets all the requirements of r.5.19(4)(h) of the Regulations.
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 Findson
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).

[2020] AATA 2897

3 July 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction

Welfare Support Workers (ANZSCO)	Residential Care Officer	Support Worker Accommodation Services
Assessing clients’ needs and planning, developing and implementing educational, training and support programs	YES	KPO 1: 1.1 Ensure on a daily basis that, as far as is practicable, the needs of the residents are recognised and that priority consideration is given to responding to their needs by complying with Nulsen’s policies, practices and guidelines. 1.3 Implement and document Person Centred Plans and other procedures as directed by Health Services team and other related agencies. 1.4 Facilitate the involvement of stakeholders, including family, friends, advocates, other people with disabilities and the wider community to participate in the lives of the residents where appropriate, to the extent that they wish to be included. 1.11 Use safe working procedures, including SAFE LIFTING practices, when moving residents with restricted mobility, as demonstrated in training on a daily basis. KPO 3: 3.3 Organise and conduct outings, holidays and leisure activities for allocated residents in consultation with supervisor to ensure residents have pleasurable experiences. 3.4 Ensure compliance with all Nulsen policies, procedures, and guidelines by allocating time to read and maintain knowledge of Nulsen’s work policies and practices. 3.5 Assist with administrative duties related to the running of the home as delegated.
Interviewing clients and assessing the nature and extent of their difficulties	YES	KPO 1: 1.2 Engage in the planning, assessment, implementation and review of residents’ lifestyles in conjunction with the Nulsen Connect Program as required.
Monitoring and reporting on the progress of clients	YES	KPO 1: 1.9 Document and record daily information pertaining to residents’ medications, health issues and mealtime management issues. 1.12 Immediately report any maltreatment of residents and all incidents and accidents to the Residential Services Manager as they occur. KPO 3: 3.1 Ensure Lifestyle Planning recommendations for allocated residents are given effect. Specifically: a. Complete all relevant documentation and filing as directed. b. Implement procedures for maintaining residents’ skills in support of the Program’s success. 3.2 Conduct and record special training programs by following program outline as directed.
Referring clients to agencies that can provide additional help	YES	KPO 4: Communicates the needs of service users and the broader Association within the disability community 4.1 Communicate in a manner that generates understanding and positive client and work relationships 4.2 Write effective reports as required that can be understood clearly so action can be undertaken by recipient if necessary. 4.3 Manage intermediate levels of conflict in accordance with the grievance procedure and, where possible, generate voluntary compliance and understanding to remedy these situations. 4.4 Ensure the Residential Services Manager is made aware of sensitive issues as required, including all matters relating to the residents in a responsive manner. 4.5 Act as a positive role model at all times to the wider community on behalf of the residents and Nulsen, by promoting Nulsen and complying with policies, procedures and directives.
Assessing community need and resources for health, welfare, housing, employment, training and other facilities and services	NO – applicable to Community Worker (411711) only
Liaising with community groups, welfare agencies, government bodies and private businesses about community issues and promoting awareness of community resources and services	NO – applicable to Community Worker (411711) only
Supporting families and providing education and care for children and disabled adults in adult service units, group housing and government institutions	YES	KPO 1 1.5 Provide resident opportunities for growth, development and pursuit of their aspirations through home involvement and community opportunities as part of daily duties 1.6 Ensure that individual residents achieve and maintain meaningful and valued personal involvement in activities and relationships with the community on a daily basis 1.7 Ensure residents’ emotional, social and physical wellbeing is enhanced through activities in home and community involvement on an ongoing basis. Regular attendance at continuous training and support sessions necessary to meet this criterion. 1.8 Administer dispensed medication from chemist supplied dispensary packs in accordance with medication procedures and guidelines as required. 1.13 Interact with residents in accordance with the ethos and policies of Nulsen and, as far as is practicable, in a manner consistent with the principles of Social Role Valorisation at all times. 1.10 Contact Medical Services providers, such as Ambulance Services in the event of an emergency. KPO 2: 2.1 Regular daily domestic and personal care duties include laundry, bed making, washing of clothing, dusting, food preparation and house cleaning duties as part of everyday requirements, for each of the service users in the group home. 2.2 Provide all necessary support/assistance required by residents such as eating, dressing, mobility and personal hygiene to the highest standards as provided in training and policies.
Supervising offenders on probation and parole	NO – applicable to the occupation of Parole or Probation Officer (411714) only
Assisting young people to solve social, emotional and financial problems	NO – applicable to the occupation of Youth Worker (411716) only
Preparing submissions for funding and resources and reports to government bodies and other agencies	YES	Taken by Residential Services Manager of Nulsen.