1507585 (Migration)

[2016] AATA 3394

1507585 (Migration) [2016] AATA 3394 (29 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Bladon WA Pty Ltd

CASE NUMBER:  1507585

DIBP REFERENCE(S):  BCC2014/1157918

MEMBER:Christopher Smolicz

DATE:29 February 2016

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 29 February 2016 at 9:02am

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 15 May 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).

2. The applicant applied for approval on 8 May 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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in Direct Entry Nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)f) of the Regulations because there was adverse information known to Immigration about the nominator and the delegate did not find it reasonable to disregard the adverse information. As a consequence, in a separate decision the related visa application of Ms Quinn (the nominee) was refused by the Department. [1]

   [1] See MRD file Ref 1508232

5. On 2 February 2016 the Tribunal conducted a combined hearing with Ms Quinn. The Tribunal received oral evidence from Mr Martin Wearmouth and Ms Ann Bradford on behalf of Bladon WA Pty Ltd. The Tribunal also received evidence from the visa applicant Ms Quinn. The applicant was represented in relation to the review by its registered migration agent.

6. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. Relevantly, r.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.

   Background

9. Bladon WA Pty Ltd (Bladon) is a small Perth based promotional products company. The company employs about 14 workers and has been in operation for about 20 years. Mr Wearmouth is the General Manager who has been working for the nominator for about 18 years. Mrs Bradford is the Managing Director.

10. Ms Quinn is a citizen of Ireland. She is 32 years old. Ms Quinn travelled to Australia in September 2010 as the holder of a Subclass 976 temporary visa. The visa was granted on 1 July 2010 and enables travellers to visit Australia for holidays, tourism, recreation and informal study. Ms Quinn’s visa expired on 6 December 2010 and she continued to remain unlawfully in Australia.

11. In December 2010 Ms Quinn commenced employment with the applicant in the position of Sales Support Assistant. Ms Quinn did not have a valid visa and was unlawfully in Australia at the time. Ms Quinn told the Tribunal that at the time she secured employment she falsely advised the nominator that she had work rights in Australia based on her partner’s visa.

12. Mrs Bradford told the Tribunal that at the time they employed Ms Quinn they did not seek verification of her visa status in Australia. Mr Wearmouth said the business had limited involvement with foreign workers and was not aware that it was required to check Ms Quinn’s visa status at the time of employment.

13. Mrs Bradford advised that the business was experiencing difficulty securing qualified and experienced staff. Mrs Bradford said that Ms Quinn was considered the most suitable applicant and commenced full time employment. Mrs Bradford told the Tribunal that Ms Quinn’s wages increased during her term of employment and she was paid wages above the relevant award.

14. On 17 February 2014 Ms Quinn informed the nominator that she had no work rights in Australia. Mr Wearmouth said that they suspended Ms Quinn’s position but asked her to keep them informed and they would assist her where they could.

15. The Tribunal asked Mr Wearmouth if he advised the Department that Ms Quinn had been working in the business unlawfully. Mr Wearmouth conceded that Bladon did not advise the Department that Ms Quinn was working for them without a visa for three and half years and left it up to Ms Quinn to deal with the Department.

16. On 26 February 2014, Bladon with the assitance of a migration agent agreed to sponsor Ms Quinn for the position of Personal Assistant and Ms Quinn lodged an application for a 457 visa. Ms Quinn was subsequently granted a bridging visa and recommenced working for the nominator in May 2014.

17. On 8 May 2014 Bladon applied to the Department seeking approval of an application for the position of Personal Assistant under the Regional Sponsored Migration Scheme which is subject of the current review application.

18. On 25 March 2015 the Department compliance officers visited the applicant and undertook a counselling session and issued the applicant with an Illegal Worker Warning Notice (IWWN) for employing Ms Quinn when she was an unlawful non-citizen between 6 December 2010 to 6 May 2014.

19. In response to the notice Mr Wearmouth told the Department when the business employed Ms Quinn in 2010 and that they were aware that she was a foreign national but there was no system to carry out checks to confirm that she had a visa with permission to work. Mr Wearmouth submitted that at no time between 2010 and 2014 did the business wilfully employ an illegal worker.

20. Mrs Bradford said that soon after Ms Quinn commenced her employment with the nominator she was concerned about the status of Ms Quinn’s relationship with Mr McKay. Mrs Bradford conceded that she did discuss with Ms Quinn her visa status and the need for her to obtain her own visa so that she could remain and work in Australia. Mrs Bradford said that she offered to assist Ms Quinn in the process.

    Findings

21. It is not in dispute that there is adverse information known to Immigration about the nominator. It is not in dispute that the adverse information falls within the meaning of sub-regulation 2.57(2). The adverse information related to the period from 6 December 2010 to 6 May 2014 during which time the nominee was an unlawful non-citizen in Austrlia and was employed by the applicant.

22. The issue for the Tribunal is whether it is reasonable to disregard the adverse information.

23. The applicant maintains that all material times Ms Quinn maintained that she had work rights associated with her Partner Lee MacKay’s visa during the relevant period.

24. The Tribunal notes however, that it was apparent to Mrs Bradford that there were visa difficulties during Ms Quinn’s period of unlawful employment due to the nature of her relationship with Mr MacKay. It was conceded in submissions that Mrs Bradford approached Ms Quinn about five or six times to inquire specifically about the visa status and suggested that she seek assitance from a migration agent to enable her to arrange a visa in her own right rather than as a dependant.

25. The Tribunal finds that it should have been obvious to the applicant that both Ms Quinn and her partner were foreign nationals travelling to Australia from overseas who would require permission from the Department of Immigration to work in Australia. The Tribunal finds that it is not reasonable for the applicant not to have made any enquiries with the Department in light of such information despite what she was told by Ms Quinn.

26. It was submitted on behalf of the applicant that it is not unreasonable for them to take Ms Quinn at her word when she advised them of her work rights. The Tribunal finds that the applicant as an Australian employer of a foreign national has an obligation to make reasonable enquiries to determine the legal status of its employees. The Tribunal finds that such enquires are no more onerous than ensuring that employees have a valid ABN or tax file number.

27. The Tribunal finds that the employment of unlawful non-citizen is difficult to detect by the Department and is prevalent in the Australian community. Employment of unlawful non-citizens strikes at the heart of the integrity of Australia’s business migration scheme which is designed to target areas of skilled shortage in Australia and ensure foreign workers are not exploited. The Tribunal acknowledged that Ms Quinn was paid award wages by the applicant but the Tribunal is also mindful that Ms Quinn was considered a valuable employee and the applicant was dependent on her at the time and would have been disadvantaged if they lost her services.

28. The Tribunal does not accept that it is reasonable for an employer to claim that they failed to make enquires because they have no previous experience employing foreign nationals. It is apparent to the Tribunal from Mrs Bradford’s evidence that Ms Quinn’s visa status was discussed on a number of occasions and concerns were raised soon after she commenced employment at Bladon. In the circumstances, the Tribunal does not find it reasonable for the applicant to have not made any independent enquires with the Department.

29. The Tribunal is also concerned that soon after being advised by Ms Quinn that she was unlawful and had no work rights in Australia the applicant did not immediately inform the Department.

30. The Tribunal also notes the agent’s submissions that the applicant’s conduct relates to a single instance of contravention and they have taken corrective action to ensure such breaches do not occur in the future.

31. Having considered the evidence as a whole, the Tribunal finds, however, that the period of the breach was significant and the applicant’s failure to make enquires with the Department unreasonable.  

32. In conclusion, the Tribunal finds that given the lengthy period of employment of Ms Quinn by the applicant it is not reasonable for the Tribunal to disregard the adverse information.

33. Accordingly the requirements of r.5.19(4)(f) are not met.

34. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4). The applicant has not sought to satisfy the criteria in Temporary Residence Transition Nomination stream, and as such has not met the requirements in r.5.19(3). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

35. The Tribunal affirms the decision under review to refuse the nomination.

    Christopher Smolicz
    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.

    …

    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).