Ramahyuck District Aboriginal Corporation (Migration)

Ramahyuck District Aboriginal Corporation (Migration) [2017] AATA 1848 (13 October 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ramahyuck District Aboriginal Corporation
CASE NUMBER:  1512941
DIBP REFERENCE(S):  BCC2015/411151
MEMBER:Alison Mercer
DATE:13 October 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Statement made on 13 October 2017 at 4:37pm

CATCHWORDS
Migration – Approval of nominated positions (employer nomination) – Direct Entry Nomination stream – Tasks to be performed in the position – ANZSCO skill level – Childcare Worker – Majority of the tasks of the nominated position correspond with those of the ANZSCO occupation
LEGISLATION
Migration Act 1958, ss 245AR(1), 359(2), 360(2)(a)
Migration Regulations 1994, r 1.13A, r 1.13B, r 5.19

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 31 August 2015 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, Ramahyuck District Aboriginal Corporation (trading as Gippsland Family Practice), applied for approval on 6 February 2015. 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 Direct Entry Nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(D) of the Regulations because the delegate was not satisfied that the nominated occupation of Childcare Worker was at the required level set out in the occupational description for that occupation in the Australian and New Zealand Classification of Occupations (ANZSCO)( code 421111). The delegate noted that the organisational chart provided by the applicant showed several positions for Room Leaders and a Quality Coordinator (in addition to the nominated position), and that the position description provided gave the title as Qualified Childcare Worker/Quality Officer. The delegate further noted that only Childcare Workers specialising as Childcare Group Leaders were considered skill level 2 in ANZSCO, and only ANZSCO occupations with skill levels 1 to 3 were acceptable for the purposes of r.5.19(4)(h). A skill level 2 occupation would normally require a Diploma in Australia and would normally manage a team of childcare workers, have first aid qualifications and generally would report to the Director/Manager/Childcare Coordinator of the Centre. The delegate found that the position description duties did not match those set out in ANZSCO for a Childcare Group Leader, and the nominated position was therefore not at a higher enough skill level to meet r.5.19(4)(h)(ii)(D). Thus, the applicant did not meet r.5.19(4)(h) as a whole.
The Tribunal received a review application on 21 September 2015. It was lodged on behalf of the applicant by Dr Ali Khan, who stated that he was the CEO of the organisation. The review application was accompanied by an authority appointing a registered migration agent, Ms Carina Ford, as the applicant’s representative and authorised recipient for correspondence, and by a copy of the delegate’s decision.
On 14 June 2017, the Tribunal wrote to Dr Khan via the agent, pursuant to s.359(2) of the Act, inviting him to provide information demonstrating that the applicant met all of the requirements of r.5.19(4), including but not limited to the criterion that the delegate found was not met. The Tribunal requested that any information be provided be in addition to any information already provided to the Department or Tribunal. The Tribunal emphasised that the requirements of r.5.19(4) were cumulative, which meant that they all had to be satisfied in order for a nomination to be approved. A copy of r.5.19(4) was provided for reference, and the information was requested by 28 June 2017.
On 23 June 2017, the applicant’s agent requested an extension of time to respond to the Tribunal’s letter. This was granted until 10 July 2017.
On 10 July 2017, the Tribunal received a submission from the applicant’s agent, together with accompanying documents. In summary, the points made by the agent were as follows:
·the applicant organisation was established in 1992 and was specifically recognised for its innovative approach to community needs. It had a continued commitment to the Koori community, and ran a variety of successful programs in primary health care, social and emotional wellbeing and community enterprise and engagement. Its aim was to establish responsible, professional and dedicated services through a viable business enterprise;
·the relevant ANZSCO unit group was Child Carers (421111). The delegate found that the position tasks did not match the ANZSCO duties of a Childcare Group Leader, which included record keeping, ensuring the security of the child care premises, developing and maintaining the positive relationship with parents and children within the centre, providing advice and information to the program coordinator that is relevant to the care, development and safety of the children within the centre etc;
·this conclusion was disputed, and it was submitted that the above duties were not inconsistent with the eligibility requirements specified in the Department’s Procedures Advice Manual (PAM3) and excerpted in the decision record. The above duties were in fact wholly consistent with the supervisory and reporting requirements of a Child Care Group Leader;
·annexed to the submission was a letter from Joanne O’Farrell, Manager/Acting Assisting Business Manager for the applicant, who observed that the nominee’s duties had changed over the course of her employment to reflect ‘current practices, particularly in regards to the National Quality Standards and the Victorian Early Years Framework.’ The nominee’s new contract and position description were also annexed;
·it was submitted that the nominee’s specified duties were wholly consistent with the relevant ANZSCO description, as well as the ‘key responsibilities’ outlined in PAM3. A table was provided to outline the similarities between the position and these requirements;
·it was also submitted that the nominated occupation aligned with the nominee’s qualifications, which were at Diploma level (not Certificate III);
·the terms and conditions of the nominee’s employment were determined in accordance with the relevant award, the Children’s Services Award 2010, an excerpt of which was provided to demonstrate that the nominee’s salary was consistent with a level 4.3 Children’s Service Employee of more than 2 years’ service;
·the nominee was the Room Leader/Supervisor for the 3 – 5 year olds at the Centre, which had a minimum of 11 and maximum of 15 children to the room. It was a legal requirement that a Diploma holder be employed to meet ratios;
·the nominated position was advertised through BigSplash, the advertising firm used by the applicant, and the advertisement appeared in the local newspaper and their website and generated 2 applicants for the position. Both were interviewed and the nominee was offered the job on the basis of her better knowledge of the local indigenous community and the relevant Early Years Framework and National Quality Standards;
·although the applicant had recruited casual Diploma staff as required to provide ‘back fill’ for permanent staff absences, it had not advertised for a permanent employee since that time. The nominee commenced with the applicant in the nominated position in October 2014, and given the position was filled, there was no business reason for advertising further. It was submitted that no adverse inference should be drawn from the applicant’s failure to advertise the nominated position since filling it with the nominee in late 2014.
The supporting documents included the following:
·letter dated 6 July 2017 from Joanne O’Farrell, Office Manager/Acting Business Manager of the applicant;
·ABN details for the applicant showing that it is registered with the Australian Charities and Not-for-profits Commission (ACNC) and trades under the business names Gippsland Paediatrics Centre and Gippsland Family Practice;
·ACNC Charity Register entry for the applicant;
·financial report for the applicant for the 2015/16 financial year;
·employment contract between the applicant and nominee, dated 24 May 2017, including position description at Schedule B, position requirements and position function;
·extract from the Children’s Services Award 2010 for a level 4.3 Children’s Services employee with 2 or more years of service giving weekly minimum rate of $950.60;
·letter from HR Manager of the applicant dated 6 May 2014 describing the advertising and recruitment process resulting in the nominee’s employment, supporting documents including interview notes for candidates, and copies of the advertisement; and
·copy of advertisement for a similar position in Melbourne with another Child Care Centre, evidencing requirement for same qualification(s) and pay rates as nominated position.
In her letter of 6 July 2017, Ms O’Farrell confirms the nominee’s employment as a qualified Diploma Childcare worker in October 2014 after recruitment efforts in September-October 2014. She states that the nominee was initially employed as a fulltime qualified Childcare Worker/Quality Officer, but the position changed when the applicant employed a full time Quality Coordinator. The nominee’s position changed to a Qualified Childcare Worker (Childcare Supervisor) as per her contract dated 1 July 2015 to 30 June 2016. Her employment was full time but she was limited to 20 hours per week by the terms of her visa. Ms O’Farrell states that the nominee advised of her pregnancy in March 2016 and thus asked for a reduction in days, which was granted, with her work hours going from 20 to 14 hours per week. The nominee then went on maternity leave between 31 March 2016 to 28 October 2016, during which time the applicant utilised casual Diploma staff to cover her position. Since late October 2016, the nominee had returned to work for 20 hours per week. Her hours were increased in late January 2017 after the Department agreed to vary her visa conditions to permit this, and the nominee currently worked between 20 and 38 hours per week. Ms O’Farrell states that the applicant runs a 25 place Child Care Centre and that the nominee was the Room Leader/Supervisor for the 3 to 5 year olds, a group which had a minimum of 11 and maximum of 15 children. It was a legal requirement for her to hold a Diploma in order to meet ratios. The applicant had just offered the nominee a new contract from 1 July 2017 to 30 June 2019 on a fulltime, 38 hour week, and this included an updated, amended position description, which occurred as part of the applicant’s Continued Quality Improvement practices. Ms O’Farrell states that the previous position description was outdated and did not reflect current practices, particularly in regard to the National Quality Standards and the Victorian Early Years Framework. She further confirms that the nominee is paid according to the Children’s Services Award 2010 as a Children’s Services Fulltime Employee – Level 4.3, which is for Diploma qualified employees who are in charge of a group of children aged from zero to 12 years, and who are responsible for a set range of duties set out in the Award.
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 the material before it, pursuant to section 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 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 is satisfied, from the material on the Department’s file, that the application was made on the approved form, no prescribed fee is payable as the nomination relates to a position located in regional Australia, and (as this application was made prior to 14 December 2015) no written certification relating to s.245AR(1) is required.
The Tribunal further notes that the nomination application form identifies a nominee, Ms Ghazala Malik, for the nominated occupation of Child Care Worker, a paid position. The Tribunal is satisfied from the position description and information in the application form that the nominated position is under the direct control of the applicant.
Given the above, the Tribunal finds that 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.
The Tribunal is satisfied from the detailed documents provided to it, including the applicant's recent financial statements and its current ASIC and ABN registration, that it is actively, lawfully and directly operating a business in Australia. It is also registered with the Australian Charities and Not-for-Profits Commission (ACNC) as a charity.
Accordingly, the Tribunal finds that 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.
The material before the Tribunal indicates that the applicant operates a hotel and conference venue in a regional area of Victoria and there is no suggestion that its business activities include those relating to labour hire to an unrelated business.
Accordingly, the Tribunal finds that the requirement in r.5.19(4)(c) does not apply.
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.
The Tribunal is satisfied from the contract of employment between the nominee and the applicant dated 24 May 2017 provided to the Tribunal that it meets the above requirements.
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.
It is not entirely clear from the documentary evidence provided that whether there is an Australian employee (or employees) performing equivalent work in the same workplace at the same location. The most recent letter from Ms Farrell, dated 6 July 2017, indicates that the nominee is the room Leader/Supervisor for the 3 to 5 year olds, which indicates that there are other Leaders/Supervisors for other age groups within the childcare centre. This is borne out by the position description annexed at Schedule B of the most recent employment contract of 24 May 2017, which states that the applicant operates a 25 place childcare centre that has 3 operational rooms for children: birth to 18 months, 18 months to 3 years and 3 years to 5 years.
On that basis, the Tribunal accepts that there are other Australian citizens or permanent residents undertaking equivalent work in the same workplace at the same location as the nominee is the Leader for one of the operational rooms and presumably Australian employees are leaders for the other 2 rooms.
In considering the terms and conditions of employment that are provided to an equivalent Australian employee (or employees), the Tribunal accepts the evidence of Ms O’Farrell that Child Care Workers such as the nominee, who are Room Leaders/Supervisors for a particular age group of children, are paid in accordance with the Children’s Service Award 2010 as Children’s Services Full Time Employees at level 4.3, which is for employees who have a Diploma in Children’s Services and who are in charge of a group of children between birth and 12 years old.
Based on the above, the Tribunal is satisfied that 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.
Accordingly, the Tribunal finds that 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.
The Tribunal has reviewed the Department’s records, including its electronic records as contained in its Integrated Client Services Environment (ICSE), and is satisfied that they do not disclose any adverse information known to Immigration about the nominator or person associated with the nominator.
Accordingly, the Tribunal is satisfied that 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 of any breaches of the workplace relations laws of the Commonwealth or by Victoria by the applicant.
Accordingly, the Tribunal finds that the requirements of r.5.19(4)(g) are met.
Tasks of the position genuine need for the position and training benchmarks 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 but can be briefly summarised as requiring either:
·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 written instrument, and certain specified training benchmarks will be met (r.5.19(4)(h)(i)); or
·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 at the ANZSCO skill level 1, 2 or 3; and that a regional certifying body has advised the Minister about certain matters relating to the position (r.5.19(4)(h)(ii)).

The Tribunal is satisfied that the position and the nominator’s business is located in regional Australia, as the postcode of Morwell in Victoria (3840) is specified as regional Australia in the relevant written instrument, IMMI 16/045. The applicant must therefore meet the requirements of the second dot point above. As the position and the applicant are located in regional Australia, the Tribunal is satisfied that rr.5.19(4)(h)(ii)(A) and (E) are met.
The Tribunal is further satisfied that the applicant has a genuine need for the paid position, and that it is under the nominator’s direct control. The Tribunal accepts that Ms Malik, the nominee, was recruited in 2014 and has been employed by the applicant as a Child Care Worker since then (with some authorised absences) and that her responsibilities have increased since she commenced employment.
Overall, having regard to the available evidence, the Tribunal is satisfied that the applicant business has a genuine need for the nominated role, and is therefore satisfied that r.5.19(4)(h)(ii)(B) is met.
The Tribunal finds that the Department of Business and Innovation Gippsland Regional Office Traralgon (an approved Regional Certifying Body specified in IMMI 16/045) certified on 23 January 2015 that there was a need for a paid employee in the nominated position within the business activities of the nominating employer, that it could not be filled by an Australian living in the same local area, and that its terms and conditions of employment were no less favourable than those that are or would be provided to an Australian employee. It is therefore satisfied that r.5.19(4)(h)(ii)(F) is met.
Based on the certification above, and the documentary evidence provided by the applicant in relation to its recruitment exercise in 2014 that led to the hiring of the nominee, the Tribunal accepts that the position cannot be filled by a locally resident Australian citizen or permanent resident. It is therefore satisfied that r.5.19(4)(h)(ii)(C) is met.
The remaining criterion is r.5.19(4)(h)(ii)(D), which requires that the majority of the tasks of the nominated position correspond with the tasks of an occupation at ANZSCO skill level 1 to 3.
The nominated occupation in the nomination application lodged with the Department is Child Care Worker (ANZSCO code 421111). The updated information provided to the Tribunal indicates that the nominated occupation is Diploma Early Childhood Educator (as per Position Description annexed to employment contract dated 24 May 2017); specifically, Room Leader/Supervisor for the 3 to 5 year old age group at the childcare centre operated by the applicant in Morwell (as per Ms O’Farrell’s letter of 6 July 2017).
The ANZSCO occupational description for a Child Care Worker lists it as a Skill Level 4 occupation, but indicates that in Australia, a Child Care Group Leader (which is a subset of Unit Group 4211 Child Carers) is a Skill Level 2 occupation [Tribunal emphasis added]:
UNIT GROUP 4211 CHILD CARERS
CHILD CARERS provide care and supervision for children in residential homes and non-residential childcare centres.
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.
Registration or licensing may be required.
Tasks Include:
oassisting in the preparation of materials and equipment for children's education and recreational activities
omanaging children's behaviour and guiding children's social development
opreparing and conducting activities for children
oentertaining children by reading and playing games
osupervising children in recreational activities
osupervising the daily routine of children
osupervising the hygiene of children

Occupations:
421111 Child Care Worker
421112 Family Day Care Worker
421113 Nanny
421114 Out of School Hours Care Worker

421111 CHILD CARE WORKER

Alternative Title:
Child Care Aide

Provides care and supervision for children in programs, such as long day care and occasional care, in childcare centres, hospitals and educational centres. Registration or licensing may be required.
Skill Level: 4
Specialisations:
Child Care Group Leader (Aus) (Skill Level 2)
Children's Nursery Assistant
Creche Attendant
…
In the Tribunal’s view, the above indicates that, unless the Tribunal is satisfied that majority of the tasks of the nominated position correspond with the tasks of the ANZSCO occupation of Child Care Group Leader, it would have to find r.5.19(4)(h)(ii)(D) is not met.
As noted above, the delegate was not satisfied, on the information before her, that the job description provided in February 2015 contained a majority of tasks that corresponded with those of a Child Care Group Leader in the Department’s Procedures Advice Manual (PAM3). PAM3 provides as follows:
…
11.11 Child Care Group Leader
11.11.1 Eligibility
The occupation of Child Care Group Leader (ANZSCO 421111) is a specialisation under the ANZSCO occupation of Child Care Worker. ANZSCO identifies the skill level of this specialised occupation as being skill level 2 (requiring a diploma as a minimum qualification). This specialised occupation is approvable under the Direct Entry stream of RSMS as it is at ANZSCO skill level 2.
For a nomination for a Child Care Worker (specialising as a Child Care Group Leader) to be approvable, the applicant must hold at least an Australian diploma in Children’s Services (or equivalent qualification). This qualification requirement is imposed by the industry. The policy position is that an applicant who does not hold the appropriate Australian diploma (or equivalent overseas qualification) is unlikely to be working as a Child Care Group Leader.
A Child Care Group Leader normally manages a team of Child Care Workers and should also have first aid training. Many employers also require anaphylaxis (severe allergic reaction) training.
Usually there will be a small number of Child Care Group Leaders employed in each facility as they would be responsible for a ‘room’, usually based on age groups. A Child Care Group Leader would report to the Director/Manager (Child Care Coordinator) of the Centre.
Nine key responsibilities of a Child Care Group Leader would be:
·plan programs based on children in care, including children with special needs
·plan and deliver programs based on physical, social, emotional and cognitive needs of children by implementing daily routines and duties that underpin planning, implementation and evaluation of quality play and learning experiences, including for children with special needs where relevant
·act as a role model and care giver involving children in a broad range of developmental programs
·observe and record children’s behaviour and communicate their progress to management of the Centre and parents
·interact effectively with young children, displaying age appropriate expectations of their behaviour
·have overall responsibility for the children in the group, but delegate responsibility and tasks to assistants when appropriate or necessary
·facilitate every available learning opportunity for each child throughout the day
·supervise and support untrained staff, volunteers and students in the Centre
·ensure active, adequate and efficient supervision of children at all time
…
The Tribunal has had the benefit of receiving additional, updated information regarding the nominated occupation, and the nominee’s qualifications, which it considers credible. In particular, the Tribunal is satisfied that:
·the nominee has a Certificate III in Children’s Services and a Diploma of Children’s Services from Holmesglen Institute of TAFE (as per her subclass 187 visa application form);
·the position description annexed to the employment contract of 24 May 2017 gives the position title as Diploma – Early Childhood Educator and states that a Diploma in Children’s Services (or equivalent) is required, as is a Current First Aid and CPR Certificate (or willingness to obtain one), a Working with Children check (or willingness to obtain one), and a Criminal Record check. Amongst other requirements is sound knowledge of the National Quality Standards and Victorian Early Years Framework;
·the key responsibilities of the position are listed in the annexed position description as:
oplan and implement a Quality Educational Program (NQS Quality Area 1: Educational program and practice): lead the team/room educators to plan, implement, assess and review a high quality and diverse educational program based on appropriate curriculum frameworks and with reference to the NQS, considering the needs, interests and abilities of all children attending the service; actively support every child to participate in the program and ensure that the program promotes children’s agency, choices and influences; deliver and guide team/room educators to deliver effective and valuable documentation of children’s learning in accordance with the centre philosophy and the Learning Outcomes; model and support team/room educators to utilise a variety of teaching strategies including intentional teaching and reflective practice in daily work; complete transition statements;
opromote the health and safety of all staff and children (NQS Quality Area 2: Children’s health and safety; Quality Area 3:Physical Environment: ensure staff and children utilise effective health and hygiene practices, including meeting all regulations relating to food safety and preparation, medical management plans, and management plans, policies and procedures; ensure that all children have access to nutritious food and fresh drinking water; promote health, wellbeing and physical exercise in the service; ensure a safe and stimulating physical environment where all staff and children are protected from hazards and harm;
obuild positive relationships with all stakeholders (NQS Quality Area 4: Staffing arrangements; Quality Area 5: Relationships with Children; Quality Area 6: Collaborative Partnerships with Families and Communities): work cooperatively, ethically and respectfully with other educators, and support each other’s professional development; develop and maintain respectful, supportive, collaborative and responsive relationships with children and their families; establish and maintain links with the service sponsor or governing body (as appropriate), local networks, resource agencies and other relevant organisations; supervise workplace students and volunteers as directed; ensure an effective induction and orientation process for new families, children and educators, including workplace students and volunteers; ensure all practices are in accordance with the NQS and reflect the philosophy, policies and procedures of the service; attend professional development opportunities and network meetings as appropriate or as directed by the Coordinator; lead and promote an understanding of the NQS, NQF and the curriculum framework documents within team/room; contribute to the continuous improvement of the service through reflective practice and as directed by the Coordinator; complete any collection of data, medical or other records required in a timely manner, and in accordance with the service’s policies and procedures and the NQS; assist the Coordinator in matters relating to the leadership, educational leadership, management support, service administration, as directed; be ready, willing and qualified to act in the position of certified supervisor in the temporary absence of the Coordinator and 2IC; and
·the letter dated 6 July 2017 from Ms O’Farrell confirms that the nominated position is responsible (the Leader) for the 1 of the 3 rooms operated by the childcare centre, being the age 3 to 5 group, which has approximately 11 children.
Based on the above, the Tribunal is satisfied that the majority of the tasks of the nominated position correspond with those of the ANZSCO occupation of Child Care Worker (and those listed in PAM3) – Child Care Group Worker which is skill level 2.
The Tribunal is therefore satisfied that r.5.19(h)(ii)(D) is met.
Conclusion
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.
Alison Mercer
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
(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;
(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 at a skill level of ANZSCO skill level 1, 2 or 3;
(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).

[2017] AATA 1848

13 October 2017

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Standing