1504153 (Migration)

[2016] AATA 3038

1504153 (Migration) [2016] AATA 3038 (15 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Dardin Agri Holdings Australia Pty Ltd

VISA APPLICANTS:  Mrs Chen Li
Mr Ling Jiang
Miss Xiaoyan Jiang

CASE NUMBER:  1504153

DIBP REFERENCE(S):  CLF2012/154456

MEMBER:Carolyn Wilson

DATE:15 January 2016

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for an Employer Nomination (Residence) (Class AN) visa for reconsideration, with the direction that the primary visa applicant meets the following criteria for a Subclass 119 (Regional Sponsored Migration Scheme) visa:

·cl.119.221 of Schedule 2 to the Regulations.

Statement made on 15 January 2016 at 10:22am

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 19 January 2015 to refuse to grant the visa applicant an Employer Nomination (Migrant) (Class AN) Subclass 119 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 29 June 2012. The delegate refused to grant the visa on the basis that the approved appointment no longer met the criteria for approval.

3. Mr Shi Li, a director of the review applicant business, appeared before the Tribunal on 7 December 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The review applicant was represented in relation to the review by its registered migration agent.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the approved nomination for the appointment continues to satisfy the criteria for approval.

7. A time of decision criterion is cl.119.221, which requires as follows:

   119.221

   The appointment mentioned in subclause 119.211(1):
   (a)      has been approved; and
   (b)      has not been withdrawn; and
   (c)      continues to satisfy the criteria for approval; and
   (d)      is still available to the applicant.

8. The appointment was for the position of Research and Development Manager at Dardin Agri Holdings Australia Pty Ltd (‘Dardin’).  The nomination was approved by a delegate of the Department on 8 October 2013.

9. On 21 October 2014 Aztech Investments Pty Ltd (‘Aztech’) was barred from making any future applications for approval as a sponsor in relation to Temporary Work (Skilled) (Subclass 457) visas for a period of 12 months.  It is not in dispute that Aztech is an associated entity of the nominating employer Dardin, and that Mr Shi Li is a director of both businesses.  Dardin was set up by Aztech as the research and development arm of its agricultural produce business.  However, the two entities, whilst related, are separate entities with different ABNs.  The applicant also provided recent financial statements and Business Activity statements which demonstrate the businesses operate independently.

10. Mr Li gave oral and written evidence that the nominated position was approved, has not been withdrawn, and is still available to the nominee.  The Tribunal is satisfied, based on this evidence, that the nominated position meets cl.119.221(a), (b), (d).  At issue is whether it continues to satisfy the criteria for approval so as to meet cl.119.221(c).

11. The criteria for approval for a nomination are set out in r.5.19.  Of particular relevance to this case are the requirements r.5.19(4)(f), (g) and (h):

    (f) the Minister is satisfied that nothing adverse is known to Immigration about the business background of:

    (i)      the employer; or
    (ii)      any officer of any of the entities that constitute the employer; or
    (iii)      any individual who is a member of a partnership that is 1 of the entities that constitute the employer; and

    (g)      the Minister is satisfied that the employer has a satisfactory record of compliance with the immigration laws of Australia; and
    (h)      the Minister is satisfied that the employer has a satisfactory record of compliance with workplace relations laws of:

    (i)      the Commonwealth; and
    (ii)      each State or Territory in which the employer operates the business and has employees of that business.

12. Mr Li disclosed the notice of sanction against Dardin dated 21 October 2014.  That company was sanctioned by the Department for failure to satisfy the sponsorship obligation to keep records (r.2.82).  Aztech was investigated for apparently underpaying a sponsored temporary employee. The investigation uncovered that the employer was paying the outstanding amount of salary by way of other benefits (accommodation, vehicle, fuel, phone).  However, the Department sanctioned the employer for not keeping appropriate records for the non-monetary benefits provided to the sponsored person.  The delegate sanctioning Aztech noted:

    ‘The sponsor’s failure to keep records appears inadvertent…The sponsor has co-operated with Immigration and attempted to provide relevant information when requested’.

13. Thus the Tribunal accepts Aztech has been sanctioned by the Department, and there is information adverse to Aztech that is known to the Department.

14. The nominating employer in this application however is Dardin, not Aztech. There is no evidence before the Tribunal that there is anything adverse known to Immigration about the business background of Dardin.  There is also nothing to suggest any lack of compliance by Dardin with immigration laws or workplace relation laws. 

15. The Tribunal has considered whether Mr Li, as the director (officer) of both Dardin and Aztech, could be said to have an adverse business background because of the sanction against Aztech. 

16. What amounts to adverse information or an adverse business background is not defined in the Regulations.  The Tribunal has been guided by the Department’s Procedural Advice Manual (PAM 3) which states ‘adverse information’ is ‘credible information that points to activities in breach of legislative or regulatory requirements.’  Examples given in the PAM 3 include a business operating when it has been declared insolvent, or clear evidence an employer is engaging in activities contrary to Australian law, or a business affiliated with extremist groups or linked to persons involved in criminal activities.   In relation to the business background of an officer of the employer, the examples given are an officer being declared bankrupt, or being the subject of criminal charges or investigations relating to their business activities.

17. The Tribunal has considered the inadvertent actions of Aztech (with Mr LI as an officer) and his co-operation with the Department when Aztech was being investigated by compliance officers.  Having regard to the type of activity PAM 3 suggests amount to ‘adverse business background’ the Tribunal is not satisfied an inadvertent failure to keep particular records by an associated entity can be said to amount to Mr Li himself having a known adverse business background.  The Tribunal finds there is nothing adverse known to the Department about Mr Li’s business background, as an officer of the nominating employer in this application. 

18. The Tribunal finds the applicant continues to satisfy r.5.19(4)(f).  There is nothing to suggest the appointment does not continue to satisfy the remaining criteria for approval.  The Tribunal is satisfied cl.119.221(c) is met.

19. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

20. The Tribunal remits the application for an Employer Nomination (Residence) (Class AN) visa for reconsideration, with the direction that the primary visa applicant meets the following criteria for a Subclass 119 (Regional Sponsored Migration Scheme) visa:

    ·cl.119.221 of Schedule 2 to the Regulations.

    Carolyn Wilson
    Member