1503642 (Migration) - [2015] AATA 3636

1503642 (Migration) [2015] AATA 3636 (12 November 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Han Investments Pty Ltd
CASE NUMBER:  1503642
DIBP REFERENCE(S):  BCC2014/3332389
MEMBER:Steve Georgiadis
DATE:12 November 2015
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 12 November 2015 at 4:09pm (Adelaide time)

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 2 March 2015 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 5 December 2014. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream as set out on the front page of its application.
The delegate refused the application on the basis that the applicant’s nomination did not satisfy r.5.19(3) of the Regulations regarding adverse information [within the meaning given in r.2.57 (2) and (3): r.5.19(7)] or alternatively in the Direct Entry nomination (r.5.19(4)) stream. The delegate considered it was not reasonable to disregard the adverse information that the applicant is sanctioned under section 140M of the Act, for failure to satisfy sponsorship obligations relating to terms and conditions of employment.
There is no dispute that there is adverse information within the meaning given in r.2.57 (2) and (3): r.5.19(7), known to Immigration about the nominator or a person associated with the nominator. This is because the applicant acknowledged at the hearing that the applicant has been sanctioned by the Department for a period of 2 years from 8 April 2014 to 8 April 2016 under section 140M of the Act for failure to satisfy sponsorship obligations relating to its terms and conditions of employment. The issue considered by the delegate was whether it is reasonable to disregard this adverse information, and concluded that it was not reasonable to do so.
Ms Tram Hoang Han, Director and Secretary of Han Investments Pty Ltd (ACN 074 318 371) appeared before the Tribunal on 9 November 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Bimal Bhusal who is the visa applicant in the related matter number 1505283 for the nominated position of Cook.
The applicant was represented in relation to the review by its registered migration agent.
For the following reasons, the Tribunal has decided to affirm…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] AATA 3636
Decision Date: 12 November 2015

CaseChat Overview and Summary

The case before the Tribunal involved an applicant who sought review of a decision to refuse their nomination for a subclass 186 visa under the Employer Nomination (Permanent) (Class EN) stream. The Tribunal was required to determine whether the applicant met the criteria set out in the Migration Regulations 1994, specifically regulation 5.19(3). Key among these criteria is that the nominator must have a satisfactory record of compliance with workplace relations laws. The Tribunal concluded that the applicant's compliance with workplace relations laws was not satisfactory.

The primary legal issue the Tribunal addressed was whether the applicant fulfilled the requirement of having a satisfactory record of compliance with workplace relations laws. This includes adherence to a broad range of laws concerning minimum employment standards, pay, leave, employee entitlements, workplace health and safety, discrimination, and termination. The Tribunal found that the applicant had failed to demonstrate compliance with these laws, which led to the refusal of the nomination. Additionally, the Tribunal noted that the employer's Standard Business Sponsorship (SBS) had expired before the nomination was made, but this did not affect the validity of the nomination application for a subclass 186 visa.

The Tribunal's reasoning was based on the evidence provided, which did not establish the applicant's satisfactory compliance with workplace relations laws. The Tribunal affirmed the decision under review to refuse the nomination because the applicant did not meet the necessary criteria, particularly regarding workplace relations compliance. The Tribunal concluded that the nomination could not be approved due to these deficiencies. The Tribunal's decision was to uphold the original decision to refuse the nomination.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.CONSIDERATION OF CLAIMS AND EVIDENCE The Tribunal received numerous written submissions and documents prior to the hearing sent at different times and also prior to the decision being finalised on 12 November 2015. This included the cover e-mail of 12 November 2015 relating to a current bank statement (operating Account of the Business). The primary 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. In respect of the question of the validity of the application, the Tribunal notes that the applicant’s Standard Business Sponsorship (SBS) expired on 29 November 2014 as the SBS commenced on 29 November 2011 for three years. The nomination application was made on 5 December 2014 at which time the SBS had already expired a few days earlier. As the decision under review is a nomination refusal under r.5.19, there is no requirement for the employer to currently be a Standard Business Sponsor at the time the nomination was lodged. The employer is required to have a Standard Business Sponsorship if it is nominating an individual under r.2.72 (i.e. for a Subclass 457 visa). Here the application by the visa applicant is for an Employer Nomination (Permanent) (Class EN) Subclass 186 visa. Therefore, in this instance, the fact that the employer’s Standard Business Sponsorship had lapsed at the time the nomination application under r. 5.19 was made, does not affect the validity of the nomination application. The Tribunal is satisfied that the applicant has made a valid application for review and has proceeded on that basis.Satisfactory compliance with workplace relations laws: r.5.19(3)(h); actively and lawfully operating a business in Australia: cl.5.19(3)(b)(ii) 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. The term ‘workplace relations laws’ is not defined in the legislation, but appears to contemplate a wide range of laws relating to an employer’s duties and obligations in the workplace. They would include an employer’s compliance with State/Territory and Commonwealth laws relating to: · National Employment Standards[1] · pay (minimum wages, deductions, superannuation, penalty rates and allowances). · leave (annual leave, sick leave, long service leave and maternity leave). · employee entitlements (maximum hours, overtime, flexible arrangements and breaks).· Workplace Health & Safety (safe workplaces, bullying and harassment).· workplace discrimination. · termination (redundancy, unfair dismissal). [1] The National Employment Standards (NES) are 10 minimum employment entitlements that have to be provided to all employees. The national minimum wage and the NES make up the minimum entitlements for employees in Australia. An award, employment contract, enterprise agreement or other registered agreement can't provide for conditions that are less than the national minimum wage or the NES, nor can they be excluded. See (last accessed 15/04/15).

Decision

Reasons for decision

Accordingly, as the nomination of the position cannot be approved, the Tribunal must affirm the decision under review.DECISION The Tribunal affirms the decision under review to refuse the nomination.Steve GeorgiadisMemberATTACHMENT - Extracts from the Migration Regulations 19945.19Approval 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); andNote 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.…Direct Entry nomination(4)The Minister must, in writing, approve a nomination if:(a)the application for approval:(i)is made in accordance with subregulation (2); and(ii)identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and(b)the nominator:(i)is actively and lawfully operating a business in Australia; and(ii)directly operates the business; and(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and(d)both of the following apply:(i)the employee will be employed on a full-time basis in the position for at least 2 years;(ii)the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:(i)are provided; or(ii)would be provided;to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and(f)either:(i)there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or(ii)it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and(h)either:(i)both of the following apply:(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;(B)either:(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or(ii)all of the following apply:(A)the position is located in regional Australia;(B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;(D)the tasks to be performed in the position correspond to the tasks of an occupation at a skill level of ANZSCO skill level 1, 2 or 3;(E)the business operated by the nominator is located at that place;(F)a body that is:(I)specified by the Minister in an instrument in writing for this sub-subparagraph; and(II)located in the same State or Territory as the location of the position;has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).

Ratio Decidendi

Legal Principle Established

The Tribunal affirms the decision under review to refuse the nomination.Steve GeorgiadisMemberATTACHMENT - Extracts from the Migration Regulations 19945.19Approval 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); andNote 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.…Direct Entry nomination(4)The Minister must, in writing, approve a nomination if:(a)the application for approval:(i)is made in accordance with subregulation (2); and(ii)identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and(b)the nominator:(i)is actively and lawfully operating a business in Australia; and(ii)directly operates the business; and(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and(d)both of the following apply:(i)the employee will be employed on a full-time basis in the position for at least 2 years;(ii)the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:(i)are provided; or(ii)would be provided;to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and(f)either:(i)there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or(ii)it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and(h)either:(i)both of the following apply:(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;(B)either:(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or(ii)all of the following apply:(A)the position is located in regional Australia;(B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;(D)the tasks to be performed in the position correspond to the tasks of an occupation at a skill level of ANZSCO skill level 1, 2 or 3;(E)the business operated by the nominator is located at that place;(F)a body that is:(I)specified by the Minister in an instrument in writing for this sub-subparagraph; and(II)located in the same State or Territory as the location of the position;has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).