Vicseg New Futures (Migration)

[2018] AATA 5398

Vicseg New Futures (Migration) [2018] AATA 5398 (20 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Vicseg New Futures

CASE NUMBER:  1607906

DIBP REFERENCE(S):  BCC2015/1744263

MEMBER:Amanda Mendes Da Costa

DATE:20 December 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 20 December 2018 at 9:02am

CATCHWORDS

MIGRATION – nomination of an occupation (employer nomination) – Temporary Residents Transition Nomination stream – position of Community Worker – nominee employed for at least two years – performing the tasks of a community worker – standard business sponsor – financial capacity to maintain the nominee’s employment – no less favourable employment terms and conditions – decision under review remitted         

LEGISLATION

Migration Act 1958, ss 140GB, 245
Migration Regulations 1994, Schedule 2, cl 457.223, rr 1.13, 1.20, 2.59, 2.68, 5.19, 5.37

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 Immigration on 12 May 2016 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 applied for approval on 18 June 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).

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

4. The delegate refused the application on the basis that the applicant’s nomination did not satisfy r.5.19(3)(c)(ii) of the Regulations, because the delegate was not satisfied that the holder of the Subclass 457 visa nominated in the application (Sajana Shrestha) had been employed in the position in respect of which she held the visa for a total period of at least two years. The Tribunal notes that the delegate was not satisfied that Mrs Shrestha was employed in the nominated position of Community Worker.

5. Ms Maree Raftis, the General Manager, and Mr John Zika, the Executive Director, of the applicant appeared before the Tribunal on 13 December 2018 to give evidence and present arguments on behalf of the organisation.  The Tribunal also received oral evidence from the nominee, Mrs Shrestha.  The Tribunal finds each of these persons to be credible witnesses who gave truthful and compelling evidence.

6. The applicant was represented in relation to the review by its registered migration agent, who provided written submissions to the Tribunal, dated 6 December 2018.

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 Temporary Residence Transition nomination stream set out in r.5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

   The application must be compliant: r.5.19(3)(a)

9. Regulation 5.19(3)(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) of the Migration Act 1958 (the Act). The application must also identify a relevant person and occupation.

10. Based on the evidence in the Department’s file and specifically the application form, the Tribunal makes the following findings:

    ·     The application was made on the internet using the approved form and accompanied by the fee prescribed in r.5.37;

    · The application includes a written certification stating whether the applicant has engaged in conduct in relation to the nomination that contravenes s.245AR(1);

    ·     The applicant identified a person, namely Mrs Sajana Shrestha (the nominee), who holds a Subclass 457 visa which was granted on the basis of meeting the requirements of cl.457.223(4); and

    ·     The application identifies the occupation of Community Worker ANZSCO 411711, which is the same occupation occupied by Mrs Shrestha. 

    Given the above findings, the requirement in r.5.19(3)(a) is met.

    Status of the nominator: r.5.19(3)(b)

11. Regulation 5.19(3)(b) requires the nominator to be or have been the relevant standard business sponsor who is actively and lawfully operating a business in Australia. In addition, the nominator, as that standard business sponsor, must not have met certain criteria relating to the operation of a business overseas in the most recent sponsorship approval.

12. The applicant is a registered community organisation, which was established over 37 years ago to provide services and information to recently arrived migrant and refugee families.  The organisation originally focused on providing support services and childcare, and in 1996 commenced providing training and employment opportunities to migrant women, particularly in the area of childcare.  Since 2002, it has also operated as a registered training organisation and now provides training to more than 2,000 migrants and refugees each year.

13. The training activities of the applicant are funded by government grants while the community services arm of the organisation receives funding from government grants as well as private donors and philanthropic organisations.

14. In addition to its training and community services, since 2016 the applicant has provided a program funded by the Victorian government, which has assisted over 800 participants with social and educational difficulties to gain employment.  In 2019, the applicant will commence providing training programs for 14 Muslim imams in Melbourne to qualify as Youth Workers.

    The Tribunal has been provided with references for the applicant from the following:

    ·     Ged Kearney, Federal Member for Batman, dated 10 December 2018.

    ·     Associate Professor Michael O’Neil, Executive Director of the South Australian Centre for Economic Studies, dated 20 September 2018.

    ·     Bernie Geary, Former Victorian Child Safety Commissioner and Commissioner for Children and Young People, dated 9 October 2018.

    ·     Michael Jansen, General Manger, Apprenticeships Matter, undated.

15. Based on the evidence before it, including the above references, the Tribunal is satisfied that the applicant is a successful organisation with a long history of providing cultural, social and educational support to vulnerable young people and families from migrant and refugee backgrounds.  It is currently supported by government funding and private donations and is likely to continue to receive such funding for its future activities.  

16. The Tribunal notes that at the time of the nomination application, the applicant was a standard business sponsor:

    ·     Who last identified the nominee as the holder of a Subclass 457 visa in a nomination under s.140GB of the Act; and

    ·     Is actively and lawfully operating a business in Australia; and

    ·     Was not granted the recent business sponsorship based on meeting either r.1.20DA, r.2.59(h) or r.2.68(i).

17. Given the above, the requirement in r.5.19(3)(b) is met.

    Previous employment of the nominee: r.5.19(3)(c)

18. Broadly speaking, to meet the requirement in r.5.19(3)(c), either:

    ·     The nominee must have been employed full-time in Australia in the position for which he or she holds a Subclass 457 visa for at least two of the three years preceding the nomination application; or

    ·     The nominee holds a Subclass 457 visa on the basis that s/he was identified in a nomination of a specified occupation for that visa, the nominator nominated the occupation, and the nominee has been employed in that occupation for at least two years in the three years immediately before the application.

19. As previously noted, the delegate was not satisfied that the nominee had been employed full-time in the position for which she held a Subclass 457 visa, for at least two years in the three years immediately before the application.

20. The Tribunal notes that the tasks of a Community Worker in ANZSCO 411711 include the following:

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

    ·     Interviewing clients and assessing the nature and extent of difficulties;

    ·     Monitoring and reporting on the progress of clients;

    ·     Referring clients to agencies that can provide additional help;

    ·     Assisting young people to solve social, emotional and financial problems.

21. Mrs Shrestha is employed within the welfare team in the applicant’s training section.  She works with the applicant’s welfare officers and is supervised by the Welfare Manager.  The Tribunal notes that she holds a Diploma of Community Welfare, which she obtained in 2010.

22. The nominee’s role is to provide assistance to students undertaking education in the applicant’s training programs. This assistance may be given on the telephone or through office visits by the students.  The applicant is also required to monitor students’ compliance with attendance at classes and the submission of assignments.  If students are experiencing problems, the nominee provides counselling or practical advice and makes referrals to any other relevant agencies.  If the problems experienced by a student are more complicated or serious, the applicant refers the student to a welfare officer or the Welfare Manager.  The applicant is involved jointly with the welfare officer in providing advice and counselling to the student.  The Tribunal accepts that Mrs Shrestha is often the ‘first point of call’ for the students undertaking training with the applicant and triages their problems, making decisions about the most appropriate person or agency to provide assistance to the student.  This involves a degree of judgment and knowledge of welfare matters which is not required of the administrative staff employed by the applicant.

23. The Tribunal accepts that at times the nominee is required to answer the telephone at reception within her workplace but as the applicant is a community organisation, other staff members perform this task, when needed.  The Tribunal is satisfied that the nominee’s performance of this task at times is indicative of the workplace practices and ethos of a community organisation rather than the nominee performing administrative tasks and not the role of a community worker.

24. Although Mrs Shrestha does not have her ‘own files’ she is required, as part of her role, to make case notes in the files kept by the applicant for the students undertaking its training courses and has a desk and computer for her own use within the welfare team’s office.  The Tribunal is satisfied that these factors are indicative of the nominee performing the tasks of a community worker.

25. The Tribunal is satisfied that the above evidence indicates that the nominee is performing the role of a community worker for the applicant and accepts the evidence of Ms Raftis and Mrs Shrestha that the tasks performed by the latter have not changed since the nominee commenced her employment as a community worker in 2013.

26. The Tribunal notes that subsequent to the delegate’s decision, the Department approved the applicant as a standard business sponsor for a further period from 9 November 2017 to 9 November 2022.  The Tribunal further notes that on 3 May 2018 the Department granted an application by the applicant for approval of a nomination for Mrs Shrestha in the position of Community Worker ANZSCO 411711.

27. The Tribunal further notes that the applicant provided the Department with a letter from Mr Zika dated 16 June 2015 in which he advised that the applicant had commenced employment with the applicant in September 2012 on a casual basis as an administrative assistant and student support worker. He further advised that on 19 March 2013 she commenced in the position of Community Worker.  Mr Zika confirmed this information in his oral evidence at the hearing.

28. Based on the above information and the oral evidence of Ms Raftis and Mrs Shrestha, the Tribunal is satisfied that the nominee performs the majority of the tasks of a community worker as defined in the ANZSCO description for the position.  It is further satisfied that Mrs Shrestha has been employed on a full-time basis in the position of Community Worker ANZSCO 411711, which is the position for which she holds a Subclass 457 visa, for approximately two years and three months preceding the nomination.

29. Given the above findings, the requirement in r.5.19(3)(c) is met.

    Future employment of the visa holder: r.5.19(3)(d)

30. Regulation 5.19(3)(d) only applies to certain nominees (those described in r.5.19(3)(c)(i)). For this class of person, the Regulations require that the nominee will be employed on a full-time basis for at least two years on terms that do not expressly preclude the possibility of an extension.

31. The Tribunal accepts that the applicant has employed the nominee on a continuous basis in the position of Community Worker since 2013. The Tribunal is satisfied that the applicant is a well-established and registered training organisation providing training for over 2,000 students in 2018. Over 50% of these students are funded under the Victorian Training Guarantee.  The organisation also provides other services to migrants and refugees, through community programs funded in part by government and through private and philanthropic donations.  The organisation has in excess of 160 employees and has been operating for over 37 years.  The Tribunal is satisfied that it is a financially viable organisation with the financial capacity to maintain the nominee’s employment for at least two years in the same manner that it has employed the nominee since 2013.

32. The Tribunal is satisfied based on Ms Raftis’ oral evidence that it is the intention of the applicant to maintain the nominee’s employment for at least two years in the same manner that it has employed the nominee since 2013.

33. Given the above findings, the requirement in r.5.19(3)(d) is met.

    No less favourable terms and conditions of employment: r.5.19(3)(e)

34. Regulation 5.19(3)(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.

35. The Tribunal has consulted the Social, Community, Home Care and Disability Services Industry Award 2010, which lists the minimum yearly wage for an employee in social and community services as ranging from $40,664 to $72,696.

36. The Tribunal has also consulted the Payscale database for the position of Community Support Worker, which lists the yearly salary range for this position from $42,132 to $61,565.

37. The Tribunal notes that the applicant provided the Department with information from the SEEK employment site which lists a position of Community Mental Health Support Worker with a yearly salary of $51,585 to $56,025.

38. The Tribunal notes that in the nomination application, the nominee’s rate of pay per annum is $52,000 plus superannuation at the statutory rate of 9.5%.      

39. Having regard to the available information and referring to the Award and the Payscale and SEEK sites, the Tribunal is satisfied that the nominee’s salary falls within the wage range for 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.

40. Based on the evidence before it, the Tribunal is satisfied that the applicant’s employees include an Australian citizen or permanent resident with an equivalent qualification to the nominee and performing equivalent work in the same workplace and at the same location as the nominee.  The Tribunal is further satisfied that the terms and conditions provided by the applicant to this employee are determined by reference to the applicable industrial award and information contained on sites such as Payscale and SEEK.  Accordingly, the Tribunal finds that the nominee will be provided with no less favourable terms and conditions than those that are or would be provided to an employee who is an Australian citizen or permanent resident.

41. Accordingly, the requirement in r.5.19(3)(e) is met.

    Training commitments and obligations: r.5.19(3)(f)

42. Regulation 5.19(3)(f) requires the applicant to have fulfilled any commitments made relating to meeting training requirements, and complied with applicable obligations relating to training  requirements during the period of the applicant’s most recent sponsorship approval.  These requirements may be disregarded if it is reasonable to do so.

43. The Tribunal notes that since the delegate made the decision to refuse the nomination application, the applicant has been granted a further period of approval as a standard business sponsor.  The Department, on 9 November 2017, granted the approval up until 9 November 2022.

44. The Tribunal has considered the cases of 1511064 (Migration) [2016] AATA 3804 and Suri Trading Pty Ltd (Migration) [2018] AATA 2127 in considering whether the applicant has met its training obligations. The Tribunal accepts that although these authorities are not binding on the Tribunal in this matter, they are highly persuasive.

45. The Tribunal notes that, in each case, since the Department made the decision refusing the nomination application, the Department had given further approval to the applicant as a standard business sponsor.  As that was the most recent approval as a standard business sponsor, the Tribunal was required to consider whether the applicant had fulfilled any commitments made in relation to that application.  In each case, the Tribunal inferred that as the Department accepted that the applicant had met its commitments in the preceding sponsorship period in respect of their approval as a standard business sponsor, including training commitments, it could be satisfied that during the period of the applicant’s most recent sponsorship approval, the applicant fulfilled its commitment to training requirements.

46. The Tribunal has considered these cases and accepts that as the approval of the applicant as a standard business sponsor was granted on 9 November 2017, the Tribunal is required to consider whether the applicant has fulfilled any commitments made in relation to that application.  The Tribunal accepts that in approving the applicant as a standard business sponsor on 9 November 2017, the Department would have accepted that the applicant had previously met all commitments made in respect of its prior approval as a sponsor.

47. The Tribunal is satisfied that as part of the approval as a standard business sponsor the applicant had to demonstrate recent training expenditure in accordance with specified training benchmarks and to have made a commitment to maintain such expenditure over the term of the sponsorship approval. Based on the most recent sponsorship approval for the applicant and the oral evidence of Ms Raftis, the Tribunal is satisfied that the applicant has met its training commitments both prior to and subsequent to the approval decision. 

48. Accordingly, the requirement in r.5.19(3)(f) is met.

    No adverse information known to Immigration: r.5.19(3)(g)

49. Regulation 5.19(3)(g) 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.

1. There is no evidence before the Tribunal of any adverse information known to the Department, about the applicant or any person ‘associated’ with the applicant. 

2. Accordingly, the requirement in r.5.19(3)(g) is met.

   Satisfactory compliance with workplace relations laws: r.5.19(3)(h)

3. Regulation 5.19(3)(h) requires the applicant to have 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.

4. There is no evidence before the Tribunal that indicates the applicant does not have a satisfactory record of compliance with workplace relations laws in the locations in which it operates its businesses and employs staff.

5. Accordingly, the requirement in r.5.19(3)(h) is met.

6. 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

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

   Amanda Mendes Da Costa
   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.

   Temporary Residence Transition nomination

   (3)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 person who holds a Subclass 457 … visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and

   (iii)     identifies an occupation, in relation to the position, that:

   (A)is listed in ANZSCO; and

   (B)has the same 4-digit occupation unit group code as the occupation carried  out by the holder of the Subclass 457 … visa; and

   (b)the nominator:

   (i)     is, or was, the standard business sponsor who last identified the holder of the Subclass 457 … visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and

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

   (iii)     did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and

   (c)either:

   (i)     both of the following apply:

   (A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 …visa identified in subparagraph (a) (ii) has:

   (I)held one or more Subclass 457 visas for a total period of at least 2 years; and

   (II)been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);

   (B)the employment in the position has been full-time, and undertaken in Australia; or

   (ii)    all of the following apply:

   (A)the person holds the Subclass 457 … visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);

   (B)the nominator nominated the occupation;

   (C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 … visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and

   (d)for a person to whom subparagraph (c)(i) applies:

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

   (ii)    the terms and conditions of the person’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)     the nominator:

   (A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and

   (B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or

   (ii)    it is reasonable to disregard subparagraph (i); and

   Note Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that date.

   (g)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

   (h)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.