1503642 (Migration)
[2015] AATA 3636
•12 November 2015
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 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).
In terms of Commonwealth laws, the Tribunal considers as relevant evidence decisions of the Fair Work Commission (formerly Fair Work Australia),[2] or investigations and legal proceedings commenced by the Fair Work Ombudsman.[3] In the State and Territory context, there a number of bodies that investigate, arbitrate or prosecute employers for breaches of workplace relations laws.[4]
[2] The Fair Work Commission (FWC) makes decisions on workplace disputes and unfair dismissal. It is the successor body to Fair Work Australia and the Australian Industrial Relations Commission. It also performs functions previously performed by the Workplace Authority and the Australian Fair Pay Commission. Decisions and orders of the FWC can be found here: (last accessed 15/04/15).
[3] The Fair Work Ombudsman (FWO) investigates complaints relating to matters such as underpayment of wages (including superannuation), conditions (e.g. annual leave), workplace rights and discrimination in the workplace. In addition to resolving complaints, the FWO is also able to initiate legal proceedings against employers. Some examples of FWO litigation can be found here: (last accessed 15/04/15).
[4] Note, there are a range of equivalent agencies and bodies across the States and Territories that deal with workplace relations issues, but the scope of matters these bodies deal with depends on each state’s particular industrial relations system – which are not uniform.
What constitutes a ‘satisfactory record’ of compliance with workplace relations laws?
The term ‘satisfactory record’ is not defined in the Regulations. On its face it appears to be a subjective test that does not contemplate or require a perfect record of compliance. Dictionary definitions of ‘satisfactory’ vary from ‘fulfilling all demands or requirements’ to ‘acceptable, though not outstanding or perfect’.[5] In Nice Shoes Aust Pty Ltd v MIMIA, the Federal Court considered these competing definitions in the context of ‘satisfactory record’ as it arose in training requirements for standard business sponsors in the since repealed r.1.20D(2)(c)(ii).[6] In that case, the Court observed that the difficulty with such a definition is that it provides no measure or standard against which to determine whether something is ‘satisfactory’. Looking to the broader context of r.1.20D, the Court held that a ‘satisfactory record’ of training is a record that demonstrates that the applicant provides training to a degree reasonably commensurate with the nature and extent of its business operations in Australia.[7] Critically, the Court observed that a relevant issue for the Tribunal’s consideration was whether it was satisfied that the applicant had such a satisfactory record.[8]
[5] The Macquarie Dictionary (6th ed., 2013) relevantly defines ‘satisfactory’ as meaning ‘affording satisfaction; fulfilling all demands or requirements’ while the Oxford Dictionary of English (3rd ed., 2010) provides a lower standard of ‘satisfactory’ as meaning ‘fulfilling expectations or needs; acceptable, though not outstanding or perfect’.
[6] [2004] FCA 252 (Branson J, 18 March 2004).
[7] Nice Shoes Pty Ltd v MIMIA [2004] FCA 252 (Branson J, 18 March 2004) at [16]-[17].
[8] Nice Shoes Pty Ltd v MIMIA [2004] FCA 252 (Branson J, 18 March 2004) at [19]. See also Total Eye Care Australia v MIMA [2007] FMCA 281 (McInnis FM, 8 March 2007) and Daiwa Food Co Pty Ltd v MIMIA [2005] FMCA 1651 (McInnis FM, 16 November 2005).
This suggests that in this context, the criterion would not necessarily require the employer to demonstrate a ‘blemish-free’ record of compliance with workplace relations laws. Instead, the level of compliance by the employer may instead be of such a level to satisfy the decision maker that the employer will be able to fulfil its workplace obligations to the employee such that the nomination should be approved.
There is also some support in departmental policy (PAM3) for such an approach. While the guidelines are brief on the interpretation of what constitutes a ‘satisfactory record of compliance’, related guidance can be found in the context of the Subclass 888 Business Innovation and Investment visa and the very similarly worded cl.888.214 which requires the visa applicant to have a ‘satisfactory record’ of compliance with certain Australian laws.[9] In assessing that criterion, PAM3 suggests a fair and reasonable approach in assessment of this criterion should be applied in all cases. It states that the requirement is not intended to be applied in every instance of a breach of Australian law and that ‘minor breaches’ of the law, or a single more serious breach, may be disregarded, especially if the applicant can demonstrate that the breach has been rectified and there has been no recurrence of the breach for a reasonable period.[10]
[9] cl.888.214 requires the applicant to possess 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 the applicant’s business”.
[10] PAM3 - Migration Regulations – Schedules > PAM – Sch2 Visa 888 > Business Innovation and Investment (Permanent) > at [18.2] (01/07/2015 compilation).
The applicant’s oral evidence is consistent with Ms Han’s written submissions and statement of 9 November 2015 regarding circumstances that resulted in underpayment of wages to employees engaged in the applicant’s business. The applicant’s evidence is that from approximately May 2014 Fair Work Australia identified “we were using the wrong award to pay our employees.” The written submissions sets out: “In relation to the incident which culminated the Sponsorship bar, there was a visit from Fairwork in approximately May 2014 where we were told we were using the wrong award to pay our employees. Because we are a Pty Ltd company we have to use the Restaurant Industry Award not the one we previously used which was the Restaurant, Tearoom and Catering Workers Award which only applies in WA. As a result of this, employees were being underpaid however, these had been rectified and the employees have been repaid with the corrected rates and compensated monies.”
At the hearing, the applicant’s submission was that the Fair Work Ombudsman’s investigation uncovered only minor breaches. However, upon further questioning, the applicant’s oral evidence is that approximately 40 employees were affected by the underpayment of wages and that in aggregate, approximately $19,000 was underpaid which had to be repaid. The applicant’s oral evidence is consistent broadly with the Fair Work Ombudsman’s report of 28 April 2015 provided to the Tribunal following the hearing. The report confirms the oral evidence of workplace relations law breaches, specifically that “Han Investment’s Pty Ltd has contravened provisions of Commonwealth workplace laws in relation to the employment of all employees listed in Annexure A.” (p2). The reports of 28 April 2015 record that contraventions under section 45 of the Fair Work Act had occurred in relation to failures to pay minimum hourly rates and pay overtime in accordance with clauses 20 and 26 respectively, of the Restaurant Industry Award 2010.
The Tribunal accepts that the above breaches referred to by the applicant in her oral evidence amount to non-compliance with the laws of the Commonwealth in which the applicant operates a business and employs employees in the business, relating to workplace relations. The Tribunal notes that this is also against the background of other workplace breaches found by the Fair Work Ombudsman in relation to the same business address in the State of WA. On balance, the Tribunal finds in these circumstances, that the breaches are not ‘minor breaches’ that may be disregarded for the purposes of r.5.19(3)(h) as they have occurred relatively recently; involve substantial sums; relate to several of the applicant’s employees; and involve more than one breach under different sections of Commonwealth workplace relations laws for (a) failure to pay minimum wages, and (b) failure to pay overtime.
Having considered the available evidence before it discussed, and accepting the applicant’s oral evidence, the Tribunal finds that the nominator does not 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.
Accordingly, the requirement in r.5.19(3)(h) is not met.
Given the above finding of the applicant’s contravention of Commonwealth workplace relations laws, the Tribunal is also not persuaded that the applicant is lawfully operating a business in Australia, and therefore does not meet the separate criterion under r.5.19(3)(b)(ii).
Accordingly, the requirements in r.5.19(3)(b) are not met.
No adverse information known to Immigration: r.5.19(3)(g)
Regulation 5.19(3)(g) requires that there is no adverse information known to Immigration about the nominator or a person ‘associated with’ the nominator; or it is reasonable to disregard any adverse information known to Immigration about the nominator or a person ‘associated with’ the nominator. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in r.2.57 (2) and (3): r.5.19(7).
As aforementioned, 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 it 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. Given the above findings relating to r.5.19(3)(h) and r.5.19(3)(b) not being met, the Tribunal has not proceeded to further consider the issue for the purposes of r.5.19(3)(g) as it is not necessary to do so.
For the above reasons, the Tribunal is satisfied that the applicant does not meet the requirements of r.5.19(3).
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
The applicant made submissions relating to consideration of the criteria under the Direct Entry nomination (r.5.19(4)) stream.
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.
On the basis of the above findings relating to the applicant not having a satisfactory record of compliance with the laws of the Commonwealth relating to workplace relations, the Tribunal considers the applicant also does not satisfy requisite criteria under the Direct Entry nomination stream, specifically r.5.19(4)(g). Therefore, the Tribunal is satisfied that the applicant does not meet the requirements of r.5.19(4).
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 Georgiadis
MemberATTACHMENT - 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.
…
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).
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