The Housing for the Aged Action Group Inc (Migration)

[2023] AATA 3078

The Housing for the Aged Action Group Inc (Migration) [2023] AATA 3078 (7 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  The Housing for the Aged Action Group Inc

REPRESENTATIVE:  Mr Antony Wallace (MARN: 0965140)

CASE NUMBER:  1932254

HOME AFFAIRS REFERENCE(S):          BCC2018/957266

MEMBER:Sheridan Aster

DATE:7 September 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 07 September 2023 at 12:59pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – direct entry stream – community worker – position cannot be filled locally and certification by regional certifying body – work spread between metropolitan and regional areas – immigration instrument at time of nomination repealed and no further instrument made – open recruitment process – nominee’s qualifications and experience and tasks of position – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), r 5.19(4)(h)(ii)(A), (C), (F)(i), (7)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 31 October 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval to nominate Giovanna Paola Posso Beltran to work in the occupation of Community Worker on 28 February 2018. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: reg 5.19(5).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.

4. The delegate refused the application on the basis the nomination did not satisfy reg 5.19(4)(h)(ii)(C) or reg 5.19(4)(h)(ii)(F) of the Regulations. The delegate was not satisfied that the position could not be filled by an Australian citizen or permanent resident living in the same local area or that the required certification had been provided by a Regional Certifying Body.

5. Mrs Fiona York, Executive Officer, Housing for the Aged Action Group, appeared before the Tribunal on 30 August 2023 to give evidence and present arguments on behalf of the applicant. The Tribunal also received oral evidence from the nominee, Ms Posso Beltran.

6. The applicant was represented in relation to the review.

7. 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

8. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in reg 5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

   The application is compliant: reg 5.19(4)(a)

9. Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s 245AR(1). The application must also identify a need for the nominator to employ an identified person as a paid employee to work in the position under their direct control.

10. Having reviewed the Departmental file, the Tribunal is satisfied that the application:

    ·was made on the approved form and was accompanied by the fee prescribed in reg 5.37;

    ·includes a written certification stating that the nominator has not engaged in conduct in relation to the nomination that contravenes s 245AR(1); and

    ·identifies a need for the nominator to employ an identified person as a paid employee to work in the position under the nominator’s direct control.

11. Accordingly, the requirement in reg 5.19(4)(a) is met.

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

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

13. Housing for the Aged Action Group (HAAG) is a Victorian based not for profit entity registered as a charity. HAAG provides social services for older renters in Victoria across all rental housing types. The charity receives funding from both the Commonwealth and State Governments.

14. The Australian Business Register reports that Housing for the Aged Incorporated is an incorporated entity, with ABN 80 348 538 001. Financial information about HAAG is reported to the Australian Charities and Not-for-profits Commission (ACNC) and is available to the public on the ACNC website. Departmental policy refers to not-for-profit organisations as one of the ‘common’ business structures for nominators under reg 5.19.[1]

    [1] Policy – Migration Regulations – Division 5.3, Part A – Common Criteria, 7.1.4 Business Structures

15. At the hearing, Mrs York gave evidence that HAAG is a member-based organisation. The committee of management is voted in by the members.

16. On the basis of the above information, the Tribunal is satisfied that the applicant is actively and lawfully operating a business in Australia and directly operates that business.

17. Accordingly, the requirement in reg 5.19(4)(b) is met.

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

18. 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.

19. The nominator is not involved in labour hire activities. Accordingly, the requirement in reg 5.19(4)(c) does not apply.

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

20. 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.

21. The contract dated 1 January 2023 stipulates that the position is full-time, subject to funding. At the hearing, Mrs York gave evidence that the organisation receives ongoing funding from the Victorian state government. The funding is guaranteed and renewed every four years. Funding from Commonwealth is current to 2025 but has been renewed on an ongoing basis since the 1990s. The position is partially funded through commonwealth (2 days) and state (3 days) funding.

22. The Tribunal acknowledges that ongoing funding is not guaranteed. However, it is satisfied that the applicant will employee the nominee in the nominated position for at least 2 years full time. The terms and conditions of that employment do not expressly exclude the possibility of an extension.

23. Accordingly, the requirement in reg 5.19(4)(d) is met.

    No less favourable terms and conditions of employment: reg 5.19(4)(e)

24. 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.

25. Housing for the Aged Action Group has an enterprise agreement, which was approved by the Fair Work Commission on 12 February 2020. The nominee’s contract of employment and the enterprise agreement are to be read in conjunction with the Social, Community, Home Care and Disability Services Industry Award. The contract stipulates that the nominee is classified as a level 5.3 employee under the award. The Tribunal is satisfied that the terms and conditions applicable to the nominated position meet the requirements of the enterprise agreement and the award. Those terms and conditions are 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.

26. Accordingly, the requirements of reg 5.19(4)(e) are met.

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

27. Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B.

28. There is no adverse information saved on the Departmental file and the Tribunal infers that this is because there is no adverse information known to Immigration about the nominator or person associated with the nominator.

29. Accordingly, the requirements of reg 5.19(4)(f) are met.

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

30. 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.

31. There is no information before the Tribunal to indicate that the applicant has a record of non-compliance with workplace relations laws.

32. Accordingly, the requirements of reg 5.19(4)(g) are met.

    Tasks of the position, genuine need for the position and training requirements reg 5.19(4)(h)

33. Regulation 5.19(4)(h) contains a number of alternative requirements. These are set out in detail in the attachment to the decision but can be briefly summarised as requiring either that:

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

    ·the position and nominator’s business is located in regional Australia, there is a genuine need for the nominee to be employed as a paid employee in the position under the nominator’s direct control, the position cannot be filled by a locally resident Australian citizen or permanent resident, the tasks of the position correspond to those of an occupation specified in the relevant legislative instrument, the occupation is applicable to the proposed employee in accordance with the specification of the occupation, and that a regional certifying body has advised the Minister about certain matters relating to the position.

34. While regs 5.19(4)(h)(i) and (ii) are on their face expressed in the alternative, as a matter of practical reality an applicant will only be eligible to satisfy one or the other, depending upon the fee paid. In this case, the applicant applied for a regional nomination and did not pay the fee associated with reg 5.19(4)(h)(i).

35. At the hearing, Mrs York gave evidence that most of the work undertaken by HAAG is in metropolitan Melbourne, however the organisation has been funded for a couple of regional areas, which are based on aged care planning regions set by the Commonwealth. The nominee is an outreach worker for a large area that covers from Geelong to Warrnambool.

36. She explained that outreach helps people to navigate the housing system, write applications, get medical referrals, enter into the Victorian housing register, move and acquire supplies such as white goods. Outreach work is conducted face to face with the client and the nominee has been provided with a car to travel between appointments.

37. There is an online component in terms of data entry to meet funding requirements. The nominee must update client data and comply with record keeping requirements. She often has to scan and upload documents for the clients. These tasks are sometimes undertaken between appointments on the road and sometimes at the nominee’s home or in the Melbourne CBD office.

38. Given the requirements relating to ‘regional Australia’[2] and the regional certifying body[3] fall to be considered at the time of decision and given the absence of any transitional or application provisions in the instruments themselves, it appears that the instrument in force at the time of decision on the nomination is the applicable instrument. Immigration Instrument IMMI 17/059 was repealed on 18 March 2018,[4] and no further instrument under reg 5.19(7) has been made,[5] meaning it’s unclear which instrument, if any, applies to outstanding nomination applications.

    [2] For applications made before 18 March 2018, reg 5.19(4)(h)(ii)(A) requires that a position is located in ‘regional Australia’ which is defined in reg 5.19(7) to part of Australia specified by the Minister in an instrument. For applications made on or after 18 March 2018, these same provisions are contained in regs 5.19(12)(a) and 5.19(16) respectively.

    [3] For applications made before 18 March 2018, reg 5.19(h)(F)(i) states that a ‘body’ is specified by the Minister in an instrument in writing. For applications made on or after 18 March 2018, this provision is contained in reg 5.19(12)(g)(i).

    [4] IMMI 18/037.

    [5] The specification of regional Australia made by IMMI 18/037 is expressly made under reg 5.19(12)(g)(i) and reg 5.19(16), reflecting significant amendments made to reg 5.19 by F2018L00262. Further, IMMI 18/037 is itself expressed to apply only to nominations made on or after 18 March 2018.

39. Nevertheless, the Tribunal is satisfied that the position is in regional Australia as specified by the repealed instrument and the nominator has business located in that area. The applicability of the immigration instrument is therefore a moot point. The applicant requested advice from the regional certification bodies in both Geelong and Warrnambool. Neither was willing to provide a positive assessment, primarily on the basis that the position was not solely located within their catchment area. The Tribunal notes that it was not a requirement for the assessment to be positive, merely for the regional certifying body to advise the Minister about the specified matters relating to the position.

40. In submissions dated 11 May 2023, the applicant advised that due to the scale of its operations, the business requires a full-time community worker (housing support outreach worker) to be responsible for case management support for clients who are at risk of or experiencing homelessness. Mrs York gave evidence at the hearing that it was extremely hard to attract qualified community workers in regional Australia. The nominee first came to the attention of the organisation through a placement project when she was completing her Masters in Social Work. She was then encouraged to apply for the position in an open recruitment process. Mrs York spoke highly of the nominee’s skills and expressed the difficulty the organisation would have to replace her.

41. The Tribunal accepts that there is a genuine need for a full-time employee to work as a Community Worker under the nominator’s direct control and the position cannot be filled by a locally resident Australian citizen or permanent resident.

42. Having considered the evidence of both Mrs York and Ms Posso Beltran, the contract of employment and position description, the Tribunal is satisfied that the tasks to be performed in the position correspond to the tasks of a Community Worker as defined in the Australian and New Zealand Standard Classification of Occupations. Community Worker is a specified occupation for the purpose of the provisions.

43. Accordingly, the requirements of reg 5.19(4)(h) are met.

44. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.

    DECISION

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

    Sheridan Aster
    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 an identified person, as  a paid employee, to work in the position under the nominator’s direct control; and

    (b)the nominator:

    (i)       is actively and lawfully operating a business in Australia; and

    (ii)      directly operates the business; and

    (c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and

    (d)both of the following apply:

    (i)       the employee will be employed on a full-time basis in the position for at least 2 years;

    (ii)      the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and

    (e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

    (i)       are provided; or

    (ii)      would be provided;

    to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

    (f)either:

    (i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

    (ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and

    (g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and

    (h)either:

    (i)       all of the following apply:

    (A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

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

    (AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

    (B)either:

    (I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or

    (II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or

    (ii)      all of the following apply:

    (A)the position is located in regional Australia;

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

    (C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;

    (D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;

    (DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;

    (E)the business operated by the nominator is located at that place;

    (F)a body that is:

    (I)specified by the Minister in an instrument in writing for this sub-subparagraph; and

    (II)located in the same State or Territory as the location of the position;

    has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).