WA Blue Sky Inc (Migration)

WA Blue Sky Inc (Migration) [2020] AATA 331 (12 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  WA Blue Sky Inc
CASE NUMBER:  1726001
DIBP REFERENCE(S):  BCC2016/2257384
MEMBER:Nicola Findson
DATE:12 February 2020
PLACE OF DECISION:  Perth
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 12 February 2020 at 2:50pm
CATCHWORDS
MIGRATION – Nomination – Direct Entry Nomination stream – genuine need for employee – financial capacity – several attempts to recruit – position cannot be filled by local – nomination approved upon review – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 245AR(1), 360
Migration Regulations 1994 (Cth), r 5.19
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 11 October 2017 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 4 July 2016. 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 applicant is a not-for-profit organisation operating to provide support to adults with disabilities. It is located in East Victoria Park, Western Australia, 6101. The applicant has nominated the position of Disabilities Services Officer (ANZSCO 411712) for approval.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(a)(ii) of the Regulations because the delegate found the applicant had not identified a need to employ a paid employee to work in the position under the nominator’s direct control.
On 24 October 2017, the applicant applied to the Tribunal for review of the delegate’s decision, and included a copy of the primary decision record for the purpose of the review.
The applicant was represented in relation to the review by its registered migration agent.
The Tribunal wrote to the applicant on 28 November 2019, inviting it to provide further information to demonstrate all the relevant requirements of r.5.19(4). The applicant responded and provided to the Tribunal additional and updated evidence in support of the application, including but not limited to:
·ASIC records confirming the applicant organisation and the ABN record
·Annual Financial Reports for the years ended 30 June 2018 and 2019
·A letter of support dated 13 December 2019 from the applicant’s accountant who has formed the opinion based on the information before her that the applicant organisation has the financial capacity to meet its obligations in relation to the nominee’s position for at least two years
·Evidence of advertising the nominated position
·Certification form dated 4 July 2016 from the relevant Regional Certifying Body
·WA Blue Sky Inc Enterprise Agreement 2012
·Certificate of Incorporation dated 30 November 2001
·Current organisational structure chart
·Position description for the nominated position
·Amended contract of employment dated 1 December 2019, between the applicant and the nominee, recording that the base salary will be the equivalent to the Social, Community, Home care, and Disability Services Industry Award 2010 (SCHADS) Level 3.3 and 9.5% superannuation
In a written submission accompanying the additional material, some background to the operation of the organisation is provided as well as reasons why there is a need for the nominated position. The submission addresses the difficulties the organisation experienced, and continues to experience, in finding a suitable person(s) from the local labour market, with relevant qualifications and experience, to perform the nominated role. It also sets out, in detail, the role and duties undertaken by the nominated employee, Ms Angelique Avice, over the last four years she has worked for the applicant as a Disabilities Services Officer.
The applicant’s website, which the Tribunal has accessed, indicates that the applicant organisation was established in 1992 by a group of families on behalf of their family members with disability, who wished to have more control in their lives and believed a better future was possible. Since that time, the organisation has significantly evolved and expanded its services across Perth. It provides support services to people with complex disabilities through supported independent living, shared living (in a range of houses and units across Perth), support co-ordination and planning within the community in order to optimise NDIS finding allocation, and recreational and community access.
The Tribunal has had regard to this additional evidence, and under s.360(2)(a) of the Act is satisfied it is able to decide the review in the applicant’s favour on the basis of the material before it.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
The application is compliant: r.5.19(4)(a)
Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control.
The Tribunal has had regard to the information of the Department’s file as to the nomination, and is satisfied that these requirements are met. The application for approval was made on the approved form and was accompanied by the prescribed fee. The relevant s.245AR(1) certification was also provided in the application form.
The identified occupation in the application is Disabilities Services Officer (ANZSCO 411712), with a base salary of $49,727 plus superannuation.
The applicant has provided evidence describing the need for the business to employ a paid employee to work in the position under the nominator’s direct control. The Tribunal accepts that the business needs to employ a paid employee to work in the position under the nominator’s direct control. The tasks that the business needs the position to undertake are discussed in more detail below.
Accordingly, the requirement in r.5.19(4)(a) is met.
Nominator is actively and lawfully operating a business in Australia: r.5.19(4)(b)
Regulation 5.19(4)(b) requires that applicant is actively, lawfully and directly operating a business in Australia.
Having considered the material before it, including the nominator’s financial statements, advertisements, and business registration records, the Tribunal is satisfied that the nominator is actively and lawfully operating a business in Australia and directly operates that business.
Accordingly, the requirement in r.5.19(4)(b) is met.
Position is not labour-hire: r.5.19(4)(c)
Regulation 5.19(4)(c) applies to nominators whose business activities include those relating to labour hire to an unrelated business. In these cases, the nominated position must be within the business activities of the nominator.
There is no evidence before the Tribunal to indicate that the applicant is involved in labour hire activities. The Tribunal is satisfied that the employment contract and organisational chart confirm that the nominee will work in the applicant’s direct employ.
Accordingly, the Tribunal finds that the position is not related to labour-hire and that the requirement in r.5.19(4)(c) is met.
Term of employment of the visa holder: r.5.19(4)(d)
Regulation 5.19(4)(d) requires the nominee to be employed in the nominated position for at least 2 years full time, and the terms and conditions of that employment do not expressly exclude the possibility of an extension.
The applicant has provided additional information and updated financial reports to the Tribunal that indicates the organisation does have the financial capacity to employ the nominee at the specified salary, and the Tribunal accepts this evidence.
It is now over two years since the delegate’s decision, and documents provided by the applicant show that the nominee has been employed as a Disabilities Services Officer since that time. Further, the Tribunal has had regard to the terms and conditions of employment as set out in the employment contract (re-signed by the parties on 1 December 2019). The contract indicates that the nominee will be employed as a Disabilities Services Officer on a full time basis for two years, renewable by agreement with a base salary the equivalent to the Social, Community, Home Care and Disability Services Industry Award Level 3.3 ($63,291.28) plus superannuation. There is nothing in the contract that expressly excludes the possibility of extending the employment period.
Given the above, the Tribunal is satisfied that the applicant has the financial capacity to provide the nominee with employment in the nominated position for at least two years full time and that the terms and conditions of that employment do not exclude the possibility of an extension.
Accordingly, the requirement in r.5.19(4)(d) is met.
No less favourable terms and condition of employment: r.5.19(4)(e)
Regulation 5.19(4)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The Tribunal has had regard to the terms and conditions of employment as set out in the employment contract. The contract provides for the nominee’s leave entitlements and indicates that the base salary will be $63,291.28 plus superannuation for a 38-hour week. The Tribunal is satisfied that the nominee’s terms and conditions of employment are in accordance with the Award that currently governs the applicant’s industry, the Social, Community, Home care, and Disability Services Industry Award 2010, and that the employment contract reflects current employment laws.
In addition, the applicant has provided evidence that the proposed salary is consistent with the nominee’s experience and the location of the occupation. This evidence indicates that there are other Australian citizens performing equivalent work in the same workplace and location, and receiving the same base salary.
In these circumstances, a direct comparison is possible and the Tribunal accepts that the salary offered meets the industry award and is consistent with what another Disability Services Officer in a similar location would be paid. The Tribunal is accordingly satisfied that the terms and conditions applicable to the position will be 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.
Accordingly the requirements of r.5.19(4)(e) are met.
No adverse information known to Immigration: r.5.19(4)(f)
Regulation 5.19(4)(f) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
There is no evidence before the Tribunal to suggest that there is adverse information known to the Department about the nominator or a person associated with the nominator.
Accordingly the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.
There is no evidence before the Tribunal to suggest that the applicant does not have a satisfactory record of compliance with workplace relation laws.
Accordingly the requirements of r.5.19(4)(g) are met.
Tasks of the position genuine need for the position and training requirements 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 and those relevant to this matter are as follows:
·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 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.
Location of the position and the business
The first consideration under r.5.19(4)(h)(ii) is whether the position is located in regional Australia. Regulation 5.19(16) provides that ‘regional Australia’ is defined by the legislative instrument.
The Tribunal has considered the current legislative instrument (IMMI18/037), however, Schedule 3 of IMMI 18/037 states that it applies only to applications lodged on or after 8 March 2018[1]. The Tribunal notes that IMMI 18/037 repealed the previous legislative instrument (IMMI 17/059)[2].
[1] Relevantly, IMMI 18/037, Schedule 3 – Application of this Instrument states: “(1) This instrument applies in relation to the following: (a) an application for approval of a nomination in relation to the Subclass 187 (Regional Sponsored Migration Scheme) visa made on or after 18 March 2018…”
[2] See Schedule 4 of IMMI 18/037
When IMMI17/059 commenced on 17 November 2017, it did not include any saving or transitional provisions and was silent on how applications that had been made and not finally determined on the date it came into effect were to be treated. The Tribunal notes that the Department made a public statement in its Skilled Visa E-News November 2017 newsletter indicating that IMMI 17/059 only applied to nomination applications made on or after 17 November 2017.
Given that neither the current instrument nor its immediate predecessor can be relied upon, in order for the Tribunal to reach a finding in respect of whether the position is located in regional Australia, the Tribunal has considered the legislative instrument that applied at the time the applicant lodged the nomination application. That legislative instrument is IMMI 16/045.
In this case, the position is located in East Victoria Park, Western Australia, 6101, and at the time of application, this location/postcode was considered regional Australia, as per Schedule B of IMMI 16/045. Accordingly, the Tribunal finds that the requirements of sub-paragraph 5.19(4)(h)(ii)(A) and (E) are met.
Genuine need for the paid position, which cannot be filled by an Australian citizen or an Australian permanent resident
Subparagraph 5.19(4)(ii)(h)(B) requires the Tribunal to be satisfied that there is a genuine need for the applicant, as the nominator, to employ a paid employee to work in the position under the nominator’s direct control.
In considering this issue, the Tribunal has taken into account the information provided to the Tribunal regarding the nature of the business and the explanation as to why there is a genuine need for a paid Disabilities Services Officer in the business. The Tribunal accepts the evidence regarding the applicant’s efforts to find a suitably qualified and experienced person to fill the nominated position, on a long-term basis. The evidence before the Tribunal indicates that the applicant has made several attempts to recruit a Disability Services Officer(s) both before and since the nomination application. The information indicates that candidates have been interviewed and deemed to be unsuitable or less experienced than Ms Avice. The Tribunal has also had regard to the information before it that the difficulty in recruiting Australian citizen or permanent resident workers is the general experience of the disability sector across Australia, as the National Disability Insurance Scheme (NDIS) provides funding for double the services than pre-NDIS, and the demand for workers to deliver the service escalates. The Tribunal also takes into account the opinion of the regional certifying body, which it notes to be the Government of Western Australia, advising the Minister among other matters that the nominated position cannot be filled by an Australian citizen or permanent resident living in the same local area as the nominated position.
The Tribunal is satisfied that the applicant has demonstrated a genuine need for a paid position under its direct control and that it cannot be filled by a local resident. Accordingly, r.5.19(4)(ii)(h)(B) and (C ) are met.
Tasks of the position
The tasks of the nominated position must correspond to those of an occupation specified in the relevant legislative instrument.
The Tribunal has had regard to evidence that has been provided detailing the tasks that will be performed and is satisfied that they correspond to the tasks of the occupation of Disabilities Services Officer specified in the relevant instrument. The applicable instrument specified for this purpose is IMMI 11/021. The application is for a Disabilities Services Officer, ANZSCO 411712.
A detailed summary of the tasks to be performed in the position are consistent with the tasks for the position in ANZSCO, which include:
·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
·assessing community need and resources for health, welfare, housing, employment, training and other facilities and services
·liaising with community groups, welfare agencies, government bodies and private businesses about community issues and promoting awareness of community resources and services
·supporting families and providing education and care for children and disabled persons in adult service units, group housing and government institutions
·supervising offenders on probation and parole
·assisting young people to solve social, emotional and financial problems
·preparing submissions for funding and resources, and reports to government bodies and other agencies
On the basis of the evidence before it, the Tribunal is satisfied that tasks associated with the position correspond sufficiently to those of the occupation of Disabilities Services Officer, such that it is satisfied that the tasks expected to be performed by the nominee in the applicant’s organisation correspond to the tasks of a Disabilities Services Officer at ANZSCO Skill Level 2.

The Tribunal notes in passing that the nominee holds a Certificate III in Community Service Work from an Australian education provider, being the requisite level of qualification according to ANZSCO. The Tribunal also observes that the nominee has completed, among other training, a Disability specific Leadership course. She also has experience working for the applicant as a Disabilities Service Officer for over four years.
Accordingly, the requirements of r.5.19(4)(h)(ii)(D) of the Regulations are met.
Regional Certification
The Tribunal has considered the Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body Advice, issued on 4 July 2016 by Skilled Migration WA, Western Australian Department of Training and Workforce Development.
The Tribunal notes its earlier comments in relation to the current instrument IMMI 18/037, which only applies in respect of nomination applications made on or after 18 March 2018, and that it has therefore applied the provisions in the instrument that applied at the time the applicant lodged the nomination application, which was IMMI 16/045.
On the basis of the advice set out in the Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body Advice provided, the Tribunal is satisfied that the regional certifying body has advised the Minister about the matters set out in r.5.19(4)(e ) and r.5.19(4)(h)(ii)(B) and (C) of the Regulations. The regional certifying body states that:
·There is a need for a paid employee in the nominated position within the business activities of the nominating employer;
·The nominated position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as the nominated position; and
·The terms and conditions of employment that are applicable to the nominated position will be no less favourable than the terms and conditions that are or would be provided to an Australian citizen or Australian permanent resident for performing the equivalent work in the same workplace at the same location.
Consistent with the decision of the Federal Circuit Court of Australia in Bharaj Construction Pty Ltd v MIBP [2016] FCCA 902, certification by a regional certifying body is not sufficient or determinative in relation to whether the nominator meets r.5.19(4)(e) , r.5.19(4)(h)(ii)(B) and r.5.19(4)(h)(ii)(C) of the Regulations. Accordingly, the Tribunal notes that, whilst having regard to the advice provided by the regional certifying body, it has reached its own conclusions about the matters the subject of the regional certifying body’s advice.
Having considered the Form 1404 provided, the Tribunal is satisfied that the requirements of r.5.19(4)(h)(ii)(F) are met by provision of the requisite Form 1404.
It follows that the Tribunal finds the applicant meets all the requirements of r.5.19(4)(h) of the Regulations.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Nicola Findson

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)       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;
(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 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).

[2020] AATA 331

12 February 2020

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