The Cootharinga Society of North Queensland (Migration)

The Cootharinga Society of North Queensland (Migration) [2017] AATA 72 (12 January 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  The Cootharinga Society of North Queensland
CASE NUMBER:  1506828
DIBP REFERENCE(S):  BCC2014/3374958
MEMBER:Jennifer Ciantar
DATE:12 January 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 12 January 2017 at 4:54pm
CATCHWORDS
Migration – Nomination – Direct Entry Nomination stream – Tasks match nominated occupation – Nominated occupation – Disabilities Services Officer – Current occupation – Program or Project Administrator – Lower skill than skill level 2
LEGISLATION
Migration Regulations 1994, r 5.19, cl 187.212
CASES
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 30 April 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 applied for approval on 9 December 2014. 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 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 formed the view that the duties of the position were more closely aligned with those of an aged or disabled carer ANZSCO 423111, which is not an occupation at skill level 1, 2 or 3 within ANZSCO.
The applicant appeared before the Tribunal on 6 October 2016 (hearing adjourned as video link lost) and 9 November 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee.
The applicant was represented in relation to the review by its registered migration agent.
Evidence before the Tribunal
The applicant provided the Tribunal with a submission, which states that the nominee’s nominated occupation is Disabilities Services Officer ANZSCO 411712 and his current occupation is Program or Project Administrator ANZSCO 511112. With the visa application, a table was provided comparing the position description with the ANZSCO occupation of disabilities services officer. The submission details why the applicant disagrees with the delegate’s finding that the tasks of the position were not at the level of a disabilities services officer.
It was also submitted that since the nomination was refused, the nominee has been promoted and he is now in the role of project officer – software integration. Unfortunately, this means that the nominee cannot satisfy cl.187.212 but his role is vital. His role most closely relates to the ANZSCO occupation of program or project administrator ANZSCO 511112, which is a skill level 2 occupation, requiring a relevant Diploma and the nominee holds a Bachelor of Business from James Cook University. The submission compares the tasks of the ANZSCO occupation to the tasks of project officer – software integration. It gives a background to the NDIS and states that the nominee’s project is to provide solutions to current business operations through effective analysis, training and implementation of its business applications to assist everyday business. The nominee has been involved in developing the systems and processes, and training staff, to allow the Society to meet NDIS requirements.
The submission also provides the background of the Society. The original nomination had been certified by the Regional Certifying Body. The position is located in regional Australia. The applicant had previously asserted that the position of disability services officer could not be filled locally. The position of project officer was advertised internally as a temporary part-time position but has since evolved into a full time ongoing position. It has never been advertised externally because the nominee has the skills and occupies the position. Job Outlook indicates that the number of job openings for Program or Project administrators is high and employment in the occupation has risen strongly. However, the nominee has worked for the Society in various roles since 2012 and has a wealth of experience; he is clearly the best person for the job.
An updated organisation chart has been provided, as has a new letter of engagement relevant to the nominee’s current position. He will be employed under the Cootharinga Society of North Queensland Enterprise Agreement and his remuneration package will be $45,566 per annum. The terms and conditions of employment are set out.
Hearing
The applicant stated that although the nominee is now working in the Project Officer position they want the Tribunal to review the refusal of the disability services officer position. They intend to lodge a new nomination in respect of the project officer position but the position of disability services officer is still open to the nominee. When asked about the need for the position of disability services officer, the applicant stated that four or five years ago, partly because of the mining boom, there had been a shortage of disability support workers. Although the mining boom has finished, because of the introduction of the NDIS, there is still a need for disability support workers and the Society anticipates that they will require between 200 and 300 support workers as there are likely to be 4000 new customers. Currently, they employ approximately 280 support workers and they recently recruited approximately 190. They did so by advertising and using seek.com. The positions are not only based in Townsville.
Under the NDIS, customers can now choose the services they require. When asked about the tasks of the disability support worker, the applicant stated that the Society provides services to customers who continue to live with their families or in their own accommodation and also to customers in group accommodation, which may be owned by the Society or government and where 3 to 5 residents live per dwelling. The customers who live on their own often require between 8 to 10 hours assistance per day. Customers in group homes may require assistance 24 hours per day and in those circumstances, the staff sleep at the house. Disability support workers also provide respite care services.
At the time the application was made, there were between 400 and 500 customers and approximately another 100 customers in Group homes. Customers have individual learning plans and support workers assist them to achieve their goals and make decisions for themselves. The objective is to support customers so that they can operate in the community. Support workers undergo an intensive induction course and are then encouraged to undertake a Certificate III course and then a Certificate IV course.
The Society tries to match customers to an appropriate disability support worker by, for example, matching similar interests. When asked about the disability worker’s role in the development of the individual learning plan, the applicant stated that the plan is developed in collaboration between the organisation and the customers. Previously, the house manager developed the plan but the nominee also was involved in the development. When a customer first contacted the organisation they would speak to the regional manager, who assessed whether the customer required group housing or whether they could continue to stay at home, and an assessment would be made about how many hours of support a customer could afford. This involved liaison with the accounting section. The Service Manager and disability support worker would then work with the customer and their family to develop an individual learning plan. After the plan has been put in place, the support worker assists the customer to implement the plan and also gives management feedback about the plan and whether modifications are required.
The Tribunal put to the applicant that the introduction of the NDIS has changed the role of the disability support worker. The applicant stated that the NDIS was only introduced into Queensland in 2016 and has only been operating since October 2016. Under the NDIS customers make enquiries to see what is available for their dollars. Under the NDIS customers make an appointment with the NDIS Agency who tell them how much money is available for them. When asked if it is now the NDIS Agency that develops the customer’s plan, the applicant stated that quite often customers ask the Society support worker to attend the meeting with the NDIS Agency to provide them with assistance, although new customers would attend the agency meeting on their own. Existing customers are also likely to ask the society to accompany them to the reviews that are conducted every 6 to 12 months by the Agency.
The Tribunal discussed the tasks as per the ANZSCO guide for the nominated position. The applicant stated that support workers also liaise with the public trustee in some cases. The Tribunal asked what percentage of time the disability support worker spends providing practical caring tasks. The applicant stated that in some houses, customers require no personal care assistance but in high need houses, customers would require assistance with showering and cooking. In matching disability support workers and customers, the personal circumstances of the disability support officer are also taken into account as some would not be available to sleep in the group home. Disability support officers often work across a range of group homes and services and may be on call. Full-time disability support officers may work between two different locations.
The Tribunal put to the applicant that providing customers and their families with care seems to be a major task for the workers but this is only one of the 10 tasks specified in ANZSCO. The applicant stated that most customers are actually out during the day and can look after themselves, and the disability support worker is there to assist them in their community activities and integration. The position operates at a higher level than that of carer and this is why disability support workers are encouraged to obtain qualifications. Disability support workers are responsible for assessing community resources, for example, assisting people to go to work or TAFE, and the disability support worker is involved in a substantial amount of liaison with community agencies.
The disability support officers report to the service manager. Above this position are 4 regional managers and then a general manager. The service manager might be responsible for two houses, each of which has 5 to 6 customers. The service manager manages the staff and the budget, liaises with families and also with agencies. They ensure there is a high level of support for customers.
The applicant confirmed that the Society has its own workplace agreements, copies of which are being provided. Disability support officers commence at level 2.1 and have to have a Certificate III to move from level 2 to 3, and also to have performed well. To move to level 4, the disability support worker has to have finished a certificate IV and also have performed extra duties such as acting as a service manager. The workplace agreements are usually in effect for about three years and the applicant stated that he is currently negotiating the agreement. The Society’s annual budget approximately $18-$20 million.
The nominee stated that when he was employed as a disability support officer he reviewed the goals for each customer and provided reports to the manager about whether goals were appropriate or required change. He administered medication to customers. He was responsible for paperwork if, for example, a wheelchair was damaged and required repairs or other equipment such as iPads needed to be updated or repaired. The customer’s goals also included behaviour management and how they relate to the community. The nominee had the objective of assisting customers to live as normally as possible and he also liaised with other providers and was involved in organising community events plus activities such as assisting customers to attend TAFE. He spent part of the time working with young adults and the rest of the time with two customers who lived in a group home. The work he did with the young adults required higher-level skills in that he had to ascertain their interests and then assist them to improve their independent living skills including money management, developing a resume and possibly preparing for employment. With the customers in supported accommodation, he might spend about 60% of his time on domestic chores although he was also responsible for assisting them to meet their goals, which included attending therapy and TAFE, managing their behaviour and taking their medication.
When asked about other duties, the nominee stated that he was responsible for ensuring risk minimisation and the reduction of hazards. The manager, in association with customers and their parents, usually developed the individual learning plan. The nominee would then ensure that the plan was appropriate and he might be involved in amending the plan. However, he was involved in developing the plan for new customers. The nominee stated that he stopped being a disability support officer in July 2015.
Post hearing evidence
After the hearing, the applicant provided the Tribunal with a further submission, which sought to provide some clarification. At the time of application, the Society employed 221 disability support workers and apart from the nominee, the rest of the positions were filled by local Australians in the regions where the Society operates. Currently the Society employs 269 disability support workers who play a vital role in delivering professional support services to clients and their families by working with them in various settings from group homes to individual homes with their families, or independently.
The submission sets out the duties of the support workers which include:
·     involvement in the day-to-day routine which may include duties such as cooking, meal preparation, household cleaning, washing, ironing, transportation, banking, budgeting, paying bills, shopping, assistance with medication and assisting individuals with personal hygiene needs;
·     develop skills that customers require to achieve goals covering all aspects of personal development and daily living as defined by relevant individual lifestyle style plan;
·     develop recreation, leisure and educational opportunities and community networks;
·     use safe working practices consistent with the Society’s health and safety policy and procedures;
·     undertake the manual handling of people in accordance with the Society’s practices;
·     provide support to families and guardians;
·     attend staff training and team meetings;
·     participate in the updating of information on the Society’s software;
·     follow the organisation’s quality assurance system and practices and its policies and procedures;
·     provide support to individuals as required by the Queensland human services quality standards;
·     other relevant duties as required by relevant managers.
The disability support workers also help clients to lead full and productive lives by assisting them to live a quality life by achieving short and long-term goals, advocating for the rights of the person with a disability, assisting them to achieve a valued status in the community, assist a customer with their medication, apply correct manual handling procedures and risk assessment practices, keeping concise and professional file notes, using the database to ensure consistency for customer support, being proficient in the use of equipment such as modified vehicles, hoists and other specialised equipment, and working with the Public Guardian and public trustee.
The submission states that many customers have high needs regarding health and behaviour management and so support workers need to be highly skilled with appropriate training to provide ongoing support and development. With the introduction of the NDIS, customers now have the option of choosing their own support and service provider, and combined with an ageing population, the role of support worker is even more in demand. In the last 12 months the Society has employed 191 people and in the last two months it has employed over 30 support workers and is about to recruit again.
A further letter from the nominee also elaborates the duties of a disability support worker. The nominee states that the majority of his time was split between supported accommodation services and young adult services. In regard to the supported accommodation service for people living in a group home, his duties included providing personal care and hygiene support; assistance with household duties such as cooking and cleaning, shopping and transportation; administration duties such as liaising with community teams, budgeting and money management, bill payment, goal progression, review and management of goals; therapy/behavioural programs and communication with families and stakeholders, key worker reporter and management, which involves tracking and managing and reviewing the plans and goals of customers; maintenance of medication records; administration of medication, incident management and reporting. Services provided were a combination of in-home support and community access.
In regard to the young adult services which were provided to young adults of school age or those who had recently left school, the aim was to give them skills so they could achieve their goals. Duties included transportation to and from activities such as the gym or job centre or TAFE; skill development, for example, woodwork, money management, banking or computing, job preparation activities, social skills development, activity planning for the day or week; planning and facilitating activities with other community and service providers; administration of medication; documentation of goals and skills achievement, review and ongoing development of goals and skills as a key worker; incident management and reporting, administration duties such as liaising with the community, budgeting and money management, goal progression and tracking, reviewing and reporting on therapy programs and communicating with families and stakeholders.
On 8 December 2016 the Tribunal wrote to the applicant invited them to provide information to show that the position could not be filled by an Australian citizen or permanent resident, given that the Society advised in its post hearing submission that it currently employs 269 disability support workers.
On 22 December 2016, the applicant provided a response, including a number of invoices relating to advertisements for support workers, a copy of advertisements and a submission. The applicant stated that at the time the application was lodged, the Society had provided evidence to the Regional Certifying Body showing that the Society regularly advertised for support workers in the media and on the organisation’s website. At that time there were 140 similar positions advertised on SEEK. The Regional Certifying body accepted that the society had adequately tested the local labour market. The Society continues to advertise externally on numerous occasions and recruitment details for 2016 were provided. Another recruitment campaign will occur soon and there continues to be a high demand for skilled workers in the disability sector. The Society contributes to the local community and has employed many workers who were dismissed following the closure of Queensland Nickel.

For the following reasons, the Tribunal has decided to affirm the decision under review to refuse 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.
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: IMMI 15/091 which applied at the time of application, has not been revoked and is still current, and certain specified training benchmarks (specified in IMMI 13/030) will be met; 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.
The material on the Department and Tribunal files indicates that the applicant and position are located in Townsville, which is regional Australia. Therefore, the nomination must meet the requirements of r.5.19(4)(h)(ii) to be approved, as set out in the second dot point above.
Sub-subparagraph 5.19(4)(h)(ii)(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:
Subparagraph 5.19(4)(ii)(h)(C) requires the Tribunal to be satisfied that the nominated position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area. In relation to this requirement, the Tribunal has taken into account the rural geographic location of Townsville.
The Tribunal has taken into account that one of the specified relevant certifying bodies, Townsville Enterprise Limited, certified on 18 December 2014 that the nomination met the requirements set out in paragraph 5.19(4)(e) and sub-subparagraphs 5.19(4)(h)(ii)(B) and (C). This certification included a declaration to the effect that the position cannot be filled locally. The Tribunal observes that sub-subparagraph 5.19(4)(h)(ii)(F) requires the regional certifying body to have advised the Minister about the matters mentioned in paragraph 5.19(4)(e) and sub-subparagraphs 5.19(4)(h)(ii)(B) and (C). However, it does not require that the regional certifying body must have certified that the applicant meets each of these requirements. In other words, whilst the relevant decision maker must have regard to the advice provided by the regional certifying body, they may reach a different conclusion about the matters mentioned in paragraph 5.19(4)(e) and sub-subparagraphs 5.19(4)(h)(ii)(B) and (C).
This approach was confirmed by the Federal Circuit Court in in Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902 (Judge Barnes, 28 April 2016). The Court found that a certification by a regional certifying body is not sufficient or determinative in relation to the question of whether paragraphs 5.19(4)(a) to (c) are met. It forms one of eight cumulative requirements in r.5.19(4) that the Minister or Tribunal is obliged to consider for him or herself.
The applicant has provided evidence that the Society currently employs 269 disability support workers and at the time of application, it employed 221 disability support workers. The Tribunal accepts that the Society regularly advertises these positions and the information provided to the Tribunal shows that in 2016, between February and September, 63 positions were filled and another 64 applications were received following a further recruitment round in November 2016. In the last 12 months the Society has employed 191 people and in the last two months it has employed over 30 support workers and is about to recruit again.
The Society has submitted that this is evidence that it has tested the local labour market. The Tribunal accepts that the Society regularly tests the local labour market. However, the Regulations require that the nominated position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area.
The information provided to the Tribunal indicates that the Society has been able to recruit some hundreds of disability support workers in the last few years. The Tribunal accepts that some positions are advertised nationally and a proportion of those appointed would not live in the local area. However, the Tribunal is of the view that a number of those appointed would live locally and indeed the Society has advised that it was able to employ many of the workers who lost their jobs when Queensland Nickel closed. The Society has not provided the Tribunal with any evidence that it has been unable to fill the nominated position with an Australian citizen or an Australian permanent resident who is living in the same local area. The Society also gave evidence that since the nominee changed jobs, his former position has been filled.
The Tribunal has considered the advice from the Regional Body but this is now some 2 years old and the Tribunal gives more weight to the information, which the Society has provided to the Tribunal. Taking into account the large number of similar positions, which the Society fills annually, the Tribunal is not satisfied that the nominated position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area.
Consequently, the Tribunal finds that the requirements of sub-subparagraph 5.19(4)(h)ii)(C) are not met.
Sub-subparagraph 5.19(4)(h)(ii)(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:
The Tribunal has considered whether the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in the relevant instrument. The Minister has specified the occupation in the relevant instrument by identifying the ANZSCO code of that occupation, Disabilities Services Officer ANZSCO 411712 . The ANZSCO descriptor for the position is as follows:
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:
o   assessing clients' needs and planning, developing and implementing educational, training and support programs
o   interviewing clients and assessing the nature and extent of difficulties
o   monitoring and reporting on the progress of clients
o   referring clients to agencies that can provide additional help
o   assessing community need and resources for health, welfare, housing, employment, training and other facilities and services
o   liaising with community groups, welfare agencies, government bodies and private businesses about community issues and promoting awareness of community resources and services
o   supporting families and providing education and care for children and disabled persons in adult service units, group housing and government institutions
o   supervising offenders on probation and parole
o   assisting young people to solve social, emotional and financial problems
o   preparing submissions for funding and resources, and reports to government bodies and other agencies

Occupations:
411711 Community Worker
411712 Disabilities Services Officer
411713 Family Support Worker
411714 Parole or Probation Officer
411715 Residential Care Officer
411716 Youth Worker
411712 DISABILITIES SERVICES OFFICER

Works in a range of service units, which provide education and community access to people with intellectual, physical, social and emotional disabilities.
Skill Level: 2
For the following reasons, the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4)(h)(ii)(D).
The Tribunal accepts that the position requires the disability services officer to work in a range of service units providing access and education to disabled people. However, having considered the extensive evidence provided regarding the tasks of the position, the Tribunal is of the view that a major task is the provision of care to customers. A post hearing submission, which sets out the duties of the nominated position includes the following tasks: involvement in the day-to-day routine, which may include cooking, meal preparation, household cleaning, washing, ironing, transportation, banking, budgeting, paying bills, shopping, assistance with medication and assisting individuals with personal hygiene needs; and undertake the manual handling of people in accordance with the Society’s practices. While the Tribunal might have accepted that the position of disability services officer could involve some personal care tasks, the evidence indicates that in the context of the nominated position, this task can be time consuming and demanding. The Tribunal acknowledges that the need to provide personal care assistance can vary depending upon the needs of the customers. However, the nominee stated that he spent half his time in group homes and with these clients, he might spend about 60% of his time on domestic chores. The Tribunal is of the view that the provision of this type of care is not a task of a Disability Services Officer according to the ANZSCO descriptor, and is a lower skilled task than that of a Skill level 2 occupation.
The Tribunal accepts that the disability services officer does perform some aspects of some of the tasks set out in the ANZSCO descriptor such as monitoring and reporting on customer’s progress, referring customers to other agencies and liaising with those agencies, providing education for disabled persons in group housing and assisting young people to solve social, emotional and financial problems. However, having considered all the evidence and taking into account the duties of the position as set out in paragraph 23 above, the Tribunal is not satisfied that the nominated position operates at the requisite skill level.
The Tribunal has taken into account the organisation structure and evidence, which indicates that senior to the disability services officer is a Service Manager, who might be responsible for 2 group homes, each of which houses 5 or 6 customers. It is this position and now the NDIS Agency, which is responsible for developing individual client plans and liaising with agencies. Although the disability support officer might be involved in meetings about the development and amendment of an individual learning plan, it is the manager or NDIS agency, in association with customers and their parents, who usually develops the individual learning plan. The Tribunal is not satisfied that the disability services officer performs tasks at the requisite skill level such as assessing clients' needs, planning, developing and implementing educational, training and support programs, interviewing clients and assessing the nature and extent of difficulties, and preparing submissions for funding and resources, and reports to government bodies and other agencies.
The Tribunal is also of the view that the tasks of the disability services officer to develop recreation, leisure and educational opportunities and community networks, are lower skilled tasks when compared to the task of liaising with community groups, welfare agencies, government bodies and private businesses about community issues and promoting awareness of community resources and services, as set out in ANZSCO. The tasks of the nominated position have a focus on the individual customer whereas the tasks in ANZSCO include liaising with government and business, about community issues and promoting awareness, which denotes a broader focus.
The Tribunal is not satisfied that the tasks of the position correspond to those of the ANZSCO skill level 2 occupation relied upon. Consequently, the Tribunal finds that the requirements of sub-subparagraph 5.19(4)(h)ii)(D) are not met.
For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4). The applicant has not sought to satisfy the criteria in Temporary Residence Transition Nomination stream, and as such has not met the requirements in r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.
DECISION
The Tribunal affirms the decision under review to refuse the nomination.
Jennifer Ciantar
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 72

12 January 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Jurisdiction