The Trustee for Australasian Dental Group (Perth) No. 2 Unit Trust (Migration)

[2020] AATA 4899

The Trustee for Australasian Dental Group (Perth) No. 2 Unit Trust (Migration) [2020] AATA 4899 (10 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  The Trustee for Australasian Dental Group (Perth) No.2 Unit Trust

CASE NUMBER:  1802794

HOME AFFAIRS REFERENCE(S):          BCC2017/3380882

MEMBER:K. Chapman

DATE:10 September 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 10 September 2020 at 10:31am

CATCHWORDS

MIGRATION – nomination of a position – Temporary Residence Transition Nomination stream – position of Dental Technician – genuine need for the position – actively and lawfully operating a business in Australia – terms and conditions of employment – training commitments and obligations – multiple dental practices – decision under review set aside        

LEGISLATION

Migration Act 1958, ss 245, 359
Migration Regulations 1994, rr 5.19, 5.37

CASES

Bharaj Construction Pty Ltd v MIBP (No. 3) [2019] FCCA 31

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 18 January 2018 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’).

2. The applicant, The Trustee for Australasian Dental Group (Perth) No.2 Unit Trust (also ‘the nominator’) applied for approval on 16 September 2017. The applicant nominated Mrs Shyla Javier (‘the nominee’) in the occupation of Dental Technician (ANZSCO Code 411213). The application for nomination was made in connection with the Regional Sponsored Migration Scheme. The nominated position is located in the Peel region of Western Australia.

3. 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 stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). 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.

4. The delegate refused the application on the basis that the applicant’s nomination did not satisfy r.5.19(4)(h)(ii)(B). In the view of the delegate, there was not a genuine need for the applicant/nominator to employ the nominee as a paid employee, to work in the position under the nominator’s direct control. On 3 February 2018, the applicant applied to the Tribunal for review of the nomination decision. The applicant submitted a copy of the delegate’s decision with their application for review.

5. On 3 July 2020, the Tribunal Registry wrote to the applicant pursuant to subsection 359(2) of the Act inviting them to provide current information addressing the relevant criteria under r.5.19(2) and (4) of the Regulations. In response, the Tribunal received material including, but not limited to, written submissions, financial records, ASIC information, an employment contract, market salary information, an organisational chart, commercial invoices, recruitment advertising, position description and Form 1404 Regional Certifying Body advice. The Tribunal notes that it had far greater relevant documentary evidence before it than was available to the delegate. All material received has been duly considered by the Tribunal.

6. The applicant, through its Human Resources Coordinator Ms Belinda Skevington, appeared by telephone before the Tribunal on 9 September 2020 to give evidence and present arguments. Ms Skevington, on behalf of the applicant, confirmed that she was comfortable participating in the hearing by telephone. The applicant was represented in relation to the review by its registered migration agent. The Tribunal notes that it found Ms Skevington to be an articulate witness, who provided her evidence in a direct and comprehensive fashion. The Tribunal has no hesitation in accepting that Ms Skevington provided truthful evidence and it places high weight upon it.  

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 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)

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 regard to the evidence submitted to the Department, the Tribunal is satisfied that the nomination application was made using the approved form. Pursuant to r.5.37(4) of the Regulations, there is no fee payable in respect of a nomination where the position is located in regional Australia. The Tribunal is further satisfied that the application for nomination was accompanied by the appropriate written certification indicating the applicant had not engaged in any conduct that constituted a contravention of s.245AR(1) of the Act. Additionally, the Tribunal is satisfied that the application for nomination identified a need for the applicant/nominator to employ the nominee as a paid employee to work in the position under their direct control.

11. Therefore, the requirements in r.5.19(4)(a) are met.

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

12. Regulation 5.19(4)(b) requires that the applicant is actively, lawfully and directly operating a business in Australia. Having regard to the submitted ASIC information, financial documentation (including BAS and taxation return information) and the oral evidence provided at the review hearing, the Tribunal is satisfied that the applicant is actively, lawfully and directly operating a business in Australia. That business is concerned with the provision of dental services throughout Western Australia.

13. Accordingly, the requirement in r.5.19(4)(b) is satisfied.

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

14. 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.

15. The evidence before the Tribunal clearly demonstrates that the applicant is not involved in labour hire activities.

16. Therefore, the requirement in r.5.19(4)(c) does not apply in the circumstances of this review.

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

17. 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.

18. Ms Skevington, on behalf of the applicant, informed the Tribunal that the nominee will be employed in the nominated position for at least two years full time. The Tribunal accepts this evidence. Further, the terms and conditions of the nominee, as reflected in the submitted copy of her latest employment contract authorised on 15 July 2020, do not expressly exclude the possibility of an extension. Additionally, having regard to the submitted financial information, the Tribunal is satisfied that the applicant has the financial capacity to employ the nominee on a full time basis for at least two years. 

19. Therefore, the requirement in r.5.19(4)(d) is met.

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

20. 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.

21. Ms Skevington, on behalf of the applicant, confirmed that there is no Australian citizen or permanent resident performing equivalent work in the same workplace at the same location as the nominee. Rather, the nominee and another employee holding a Subclass 482 visa perform equivalent work as dental technicians and they receive the same terms and conditions of employment. The employment contract of the nominee authorised on 15 July 2020 provides her with an annual salary of $54,000, in addition to superannuation.

22. The submitted payscale information indicates that the salary range for a dental technician is between $43,000 to $77,000 per annum. Having regard to the location of the nominated position, in the Peel region, the Tribunal is satisfied that the remuneration of the nominee is appropriate. Additionally, Ms Skevington confirmed that if an Australian citizen or permanent resident performed equivalent work to the nominee in the workplace, they would receive the same terms and conditions. The Tribunal accepts this evidence.

23. Following careful consideration of the evidence, the Tribunal finds 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.

24. Therefore, the requirements of r.5.19(4)(e) are satisfied.

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

25. 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.

26. There is no evidence of adverse information contained in the Department file, or before the Tribunal, about the applicant or a person associated with the applicant.

27. Accordingly, the requirements of r.5.19(4)(f) are met.

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

28. 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.

29. There is no evidence before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with relevant workplace relations laws in Australia.

30. Accordingly, the requirements of r.5.19(4)(g) of the Regulations are met.

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

31. Regulation 5.19(4)(h) contains a number of alternative requirements. The present review concerns an application for nomination in connection with the Regional Sponsored Migration Scheme, in the Direct Entry nomination stream. Accordingly, r.5.19(4)(h)(i) is not relevant to the review.

32. Regulation 5.19(4)(h)(ii), as is relevant to this review, requires that:

    ·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.

33. The Tribunal is satisfied that both the nominated position, and the applicant’s business, are located in the Peel region of Western Australia at postcode 6210. Pursuant to instrument IMMI 16/045, as it pertains to the present review, both the nominated position, and the business operated by the applicant, are located in regional Australia. Therefore, the applicant satisfies the requirements contained in r.5.19(4)(h)(ii)(A) and r.5.19(4)(h)(ii)(E).

34. During the review hearing, the Tribunal canvassed with Ms Skevington, on behalf of the applicant, whether there is a genuine need for the applicant/nominator to employ the nominee as a paid employee, to work in the position under the nominator’s direct control. Ms Skevington advised that the applicant operates multiple dental practices in Western Australia. There are six such dental practices in the Southern region of Western Australia, including the location of the nominated position at Mandurah (in the Peel region). The dental practices operated by the applicant, in addition to external dental practices, utilise the services of the applicant’s dental technicians within a laboratory at the Mandurah location. The dental technicians work in the laboratory under the direction of a prosthetist to create prosthetic dental items such as dentures. Ms Skevington explained that when the applicant’s business is viewed holistically, there is plenty of work for the dental technicians working in the laboratory located in the Mandurah dental practice. She added that the applicant’s business is expanding, particularly in the Southern region of Western Australia.

35. Ms Skevington outlined that the applicant employs a practice manager, five dentists, one prosthetist, three dental technicians and two administrative staff at its Mandurah location. She explained that the applicant employs two dental technicians at Mandurah in addition to the nominee, one is an Australian permanent resident and one is a Subclass 482 visa holder. Ms Skevington outlined that the employee holding permanent residence status performs higher level duties when compared with the other two dental technicians. She informed the Tribunal that the Subclass 482 visa holder and the nominee perform equivalent work. Ms Skevington advised that the applicant is seeking to recruit at least one more dental technician. She informed the Tribunal that the applicant advertised for the dental technician positions, however, only visa holders could be recruited into the regional area. Having regard to this evidence, in combination with the submitted documentary material, the Tribunal is satisfied that the nominated position cannot be filled by a locally resident Australian citizen or permanent resident. Therefore, the applicant meets the requirements of r.5.19(4)(h)(ii)(C).

36. Ms Skevington advised that the applicant genuinely requires the employment of the nominee as a dental technician given the great demand for prosthetic dental devices to be created to service not only the applicant’s other dental practices, but also external dental practices in the region. She indicated that the applicant is seeking to purchase further dental practices as part of its expansion plans. Ms Skevington outlined that the applicant’s turnover in the 2019 Financial Year was in excess of $2.5 million and that the business is quite profitable. The Tribunal notes that the submitted financial documentation, including taxation returns, BAS and financial reports, confirms that the applicant is performing well financially.

37. Ms Skevington also outlined the duties of the nominee as a dental technician in a fashion consistent with the ANZSCO Code 411213 descriptors. Furthermore, the submitted documentary material, including the position description, is consistent with the nominated position being that of a dental technician. The Tribunal notes that the relevant instrument with respect to r.5.19(4)(h)(ii)(D) is IMMI 17/058. This instrument contains the occupation of dental technician (ANZSCO Code 411213), which is a skill level 2 occupation.

38. Following careful consideration of the evidence, the Tribunal is satisfied that the nominated position is that of a dental technician. Further, the Tribunal is satisfied that there is a genuine need for the applicant/nominator to employ the nominee as a paid employee, to work in the position under the nominator’s direct control. This is because it is apparent that the applicant requires multiple dental technicians to work in its Mandurah laboratory to service its wider customer network. Therefore, the applicant meets the requirements of r.5.19(4)(h)(ii)(B) and r.5.19(4)(h)(ii)(D).

39. The Tribunal notes that the nominee holds a Diploma of Dental Technology, was previously a registered Dentist in The Philippines and has worked for the applicant as a dental technician continuously since February 2016. The Tribunal accepts Ms Skevington’s assessment that the nominee is performing the occupation of dental technician to a satisfactory standard. The Tribunal also notes that the nominee is identified in the application for nomination to perform the occupation of dental technician (ANZSCO 411213). Accordingly, the Tribunal is satisfied that the occupation of dental technician is applicable to the nominee who is identified in the nomination. Therefore, the applicant meets the requirements of r.5.19(4)(h)(ii)(DA).

40. The applicant submitted Form 1404 dated 20 September 2017, from Skilled Migration Western Australia, which is a Regional Certifying Body (RCB) pursuant to instrument IMMI 16/045. The Tribunal is satisfied that a RCB located in Western Australia has advised the Minister about the matters set out in r.5.19(4)(e), r.5.19(4)(h)(ii)(B) and r.5.19(4)(h)(ii)(C). Accordingly, the applicant satisfies the requirement in r.5.19(4)(h)(ii)(F). For the sake of completeness, the Tribunal notes that the Court authority of Bharaj Construction Pty Ltd v MIBP (No. 3) [2019] FCCA 31 indicates RCB certification is not sufficient or determinative of the requirements outlined in r.5.19(4)(e), r.5.19(4)(h)(ii)(B) and r.5.19(4)(h)(ii)(C). Rather, the Tribunal must perform its own assessment of these requirements. The Tribunal records that it has done so, as reflected in its relevant reasons above.

41. Therefore, the requirements of r.5.19(4)(h) are satisfied by the applicant.

42. 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

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

    K. Chapman
    Member

    
    

    ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    5.19Approval of nominated positions (employer nomination)

    …

    (2)The application must:

    (a)be made in accordance with approved form 1395…; and

    (aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and

    (b)be accompanied by the fee mentioned in regulation 5.37.

    …

    Direct Entry nomination

    (4)The Minister must, in writing, approve a nomination if:

    (a)the application for approval:

    (i)       is made in accordance with subregulation (2); and

    (ii)      identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and

    (b)the nominator:

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

    (ii)      directly operates the business; and

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

    (d)both of the following apply:

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

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

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

    (i)       are provided; or

    (ii)      would be provided;

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

    (f)either:

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

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

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

    (h)either:

    (i)       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).