1510127 (Migration)

[2015] AATA 3860

1510127 (Migration) [2015] AATA 3860 (17 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Massage Philosophy Pty. Ltd.

CASE NUMBER:  1510127

DIBP REFERENCE(S):  BCC2015/619711

MEMBER:Fraser Syme

DATE:17 December 2015

PLACE OF DECISION:  Brisbane

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

Statement made on 17 December 2015 at 1:25pm

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 7 July 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 25 February 2015. 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 Temporary Residence Transition nomination stream. The applicant nominated the position of massage therapist to work in its massage business.  

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(g) of the Regulations. The delegate found there was adverse information known about the applicant and that it was not reasonable to disregard that adverse information. The adverse information related to a decision of the department to impose a sanction on the applicant under s.140M for breach of its obligations as a standard business sponsor (“the s.140M sanction”). The applicant provided the delegate’s decision with the review application.

5. The applicant is a company. Its director, Mr Hong appeared before the Tribunal on 15 December 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Mr Wang. The Tribunal conducted the review of the decision to refuse the applicant’s nomination and the decision to refuse Mr Wang’s subclass 186 visa (AAT MRD file 1511839) as a joint hearing. 

6. The applicant was represented in relation to the review by its registered migration agent. She attended the Tribunal hearing in person and provided numerous submissions before the hearing (attaching evidence already provided to the department) and a post hearing submission. The Tribunal has had regard to those submissions and attachments, which are set out in more detail as relevant below.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether there is adverse information know to the department about the applicant and if yes, whether it is reasonable to disregard that information. Much of the hearing turned on this point, given it was the reason for the delegate’s decision.

   No adverse information known to Immigration: r.5.19(3)(g)

9. Regulation 5.19(3)(g) 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 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). In the present case, the adverse information is related to the applicant as the nominator. Not a person associated with the applicant.

10. Mr Hong told the Tribunal the department imposed the s.140M sanction in July 2014. The Tribunal expressed its view the s.140M sanction was a form of adverse information as defined by r.2.57(3). Mr Hong agreed with that. The migration agent agreed to the Tribunal’s request to provide the s.140M sanction decision to it after the hearing, which she did on 16 December 2015.

11. The Tribunal discussed it had a broad discretion to disregard the s.140M sanction although it was adverse information. It noted the regulations did not prescribe how that discretion was to be exercised. It noted there was also no guidance in the Explanatory Memoranda when r.5.19(3)(g) was introduced to parliament. However, the Explanatory Memoranda introducing a similarly worded provision in relation to nominations by an approved business sponsor did provide some guidance. The Explanatory Memoranda states it may be reasonable to disregard adverse information if the applicant develops practices and procedures to ensure the relevant conduct was not repeated.

12. The Tribunal further discussed with the applicant the department policy in PAM III.[1] It noted policy was not the law, but it was appropriate for the Tribunal to have regard to the department’s policy. The Tribunal discussed in particular, the policy the delegate relied on, namely, the applicant being subject to the s.140M sanction which had lapsed in the 12 months before making the nomination application under review as a reason why the requirement in r.5.19(3)(g) could not be met.

    [1] PAM3 - Migration Regulations - Divisions > Div 5.3 - General > Reg 5.19 - Approval of nominated positions (employer nomination) > No adverse information > Circumstances in which it may be reasonable to disregard the adverse information (1/07/2015 compilation).

13. Mr Hong advanced as reasons it was reasonable to disregard the adverse information:

    a.He did not agree with some of the reasons (which are set out in more detail below) the department imposed the s.140M sanction. He told the Tribunal the applicant did not review the decision to impose the s.140M sanction. The Tribunal indicated it would not go behind the reasons for the s.140M decision. That decision stood. The Tribunal does not consider the applicant disagreeing with some of the reasons the s.140M sanction is a reason to disregard the adverse information.

    b.Mr Wang has worked with the applicant for three years, he is a good employee and it would be unfair to Mr Wang if his visa was refused due to an error of the applicant, including Mr Wang would incur additional expense to reapply for a visa. The Tribunal expressed the view adverse outcomes for a visa holder was an inevitable consequence of the sponsor sanction system and the government would have been mindful of that when making the sponsor sanction system legislation. It therefore did not consider any adverse outcome to Mr Wang to be a reason to disregard the adverse information.

    c.In August 2014, the department approved a similar nomination of another of the applicant’s employees. For that reason, the applicant expected Mr Wang’s nomination would be approved too. The migration agent submitted consistency in decision making was desirable. The Tribunal commented given the applicant was still subject to the s.140M sanction at the time, it would appear that decision was possibly a very fortunate one for the applicant and the other employee. That though was not a persuasive reason to disregard the adverse information.

    d.The applicant really needs Mr Wang to work for it. Mr Wang told the Tribunal he has a subclass 457 visa valid until July 2016. Mr Hong agreed with that. The Tribunal noted Mr Wang may continue his employment with the applicant during the validity of his subclass 457 visa. In the present circumstances, the Tribunal does not consider the applicant needing Mr Wang to work for it to be a reason to disregard the adverse information.

14. Mr Wang raised no other reasons as to why it was reasonable to disregard the adverse information. The migration agent made oral submissions it was reasonable to disregard the adverse information because:

    a.The s.140M sanction imposed on the applicant was at the lesser range of seriousness. The Tribunal accepts this submission has some merit.

    b.The applicant really wants Mr Wang to work for it. Mr Wang could seek employment elsewhere if his visa is not approved.  The Tribunal repeated its earlier comments Mr Wang can continue to work for the applicant during the validity of his subclass 457 visa. At the time of making the nomination application, the applicant should have been aware of the s.140M sanction would be regarded as adverse information for three years. Yet, it elected to make the nomination application at the time it did, only a few weeks after the s.140M sanction ceased. It could have waited until closer to the date of the expiry of Mr Wang’s visa or to at least 12 months after the bar ceased to make its application to nominate Mr Wang. In any event, if he wished to, Mr Wang could resign at any time. The Tribunal does not consider this a reason to disregard the adverse information.

    c.The applicant has undergone training to understand better its obligations as a standard business sponsor. Mr Hong told the Tribunal he had done training with the migration agent. He confirmed the training took place after the department imposed the s.140M sanction. The Tribunal expressed the view understanding the obligations of a business sponsor was something the applicant should properly have done before becoming an approved sponsor, not after it was sanctioned. The Tribunal did not consider this a reason to disregard the adverse information.

15. The migration agent repeated these points in her post hearing submission, emphasising the potential cost to Mr Wang of having to apply for another visa and the potential loss to the applicant if Mr Wang ceased working for it. She adds a new submission - the department did not intend the s.140M bar to extend to permanent residency visas. That submission seems to be based on a misunderstanding of the effect of s.140M(1)(c) which empowers a bar to be imposed across different kinds of visas. While s.140M(1)(c) does have that effect, the imposition of the bar across one or more kinds of visa is still adverse information for the purpose of r.5.19(3)(g) and therefore it is mandatory for the Tribunal to have regard to the s.140M sanction. The question is whether it is reasonable for the Tribunal to disregard that adverse information.

16. Having regard to the department policy, the Tribunal noted the nature of the adverse information is the s.140M sanction, the source of the adverse information was the department itself, so there was no issue regarding the credibility of the information and that the sanction was imposed establishes that the information was substantiated. It noted the applicant made the nomination application in February 2015, only about 6 weeks after the s.140M sanction ceased. That was well inside the 3 years the information would be regarded as adverse and also well inside the policy requirement applications within 12 months of the lapse of a sanction usually to mean the applicant was unable to meet the requirements of r.5.19(3)(g).

17. Mindful of the Explanatory Memoranda, the Tribunal discussed too with Mr Hong the reasons for the s.140M sanction and any steps the applicant had taken to ensure the behaviour which led to the s.140M sanction being imposed would not reoccur. He recalled there to be three reasons and explained the steps the applicant had taken as follows:

    a.The applicant failed to inform the department of a change to its registered address (breach of r.2.84) He conceded that was correct. The Tribunal agreed this was a relatively not serious breach of its sponsorship obligations. Mr Hong explained after the sanction was imposed, the applicant hired an internal accountant, the duties of whom include notifying the department of any notifiable changes to the applicant’s circumstances.

    b.The applicant paid different employees different annual salaries at different locations doing substantially the same job: (breach of r.2.79). He did not accept the applicant had done this. He stated Mr Wang and another employee were both employed as full-time masseurs, but at two different locations. There was a $2,000 difference in their annual salaries. He thought that was justifiable by the other employee having higher qualifications. The Tribunal noted it considered this a more serious breach of the applicant’s sponsorship obligations.  Mr Hong explained all of their full-time masseurs now receive the same base annual salary regardless of their location or qualification.

    c.Mr Wang was doing duties other than his nominated occupation of masseur: (breach r.2.86). Mr Hong also did not accept the applicant had done this. He said most of Mr Hong’s duties were that of a masseur. The Tribunal noted it considered this a more serious breach of its sponsorship obligations too. When asked, Mr Hong said the applicant had not taken any formal steps or introduced any policy to ensure sponsored employees only participated in their nominated occupation, he had spoken to some of them, but was willing to implement such a policy.

18. The migration agent in her post hearing submission repeats the remedial steps the applicant has taken as described by Mr Hong and adds these are reasons the Tribunal should disregard the adverse information. The submission attaches too a new policy the applicant implemented on 15 December 2015 to remind its employees of their tasks and duties. The Tribunal agrees the applicant taking the above steps are factors in favour of disregarding the information, but notes, these steps have been implemented for only a relatively short period of time.

19. After reviewing the s.140M sanction decision dated 18 July 2014 the migration agent provided after the hearing, the Tribunal concurs these were the breaches of the sponsorship obligations on which the department imposed the s.140M sanction.

20. On the evidence before it, the Tribunal finds there is adverse information known to the department about the applicant, namely the s.140M sanction imposed on the applicant for breach of its obligations as a business sponsor made on 18 July 2014. The department imposed a bar of 6 months from sponsoring more people for subclass 457 visa. That bar ceased on 17 January 2015. The Tribunal is satisfied the s.140M sanction is an administrative action by a competent authority about a contravention of a Commonwealth law (r.2.57(3)(a)(iii)). It relates to immigration matters (r.2.57(3)(b)(ii)) and it occurred within the previous 3 years (r.2.57(3)(c)).

21. Having regard to the above information, the Tribunal has decided in the present circumstances, the correct and preferable decision is that it is not reasonable to disregard the adverse information. In reaching that conclusion, the Tribunal has had regard to the department policy nomination applications made within 12 months of the cessation of a s.140M sanction usually are unable to meet the requirements of r.5.19(3)(g). The Tribunal is mindful the level of sanction the department imposed on the applicant under s.140M was relatively less serious, namely a 6 month bar of further sponsorships. The Tribunal is mindful the applicant has taken some steps to remedy the behaviours which led to the bar being imposed. It has hired new staff and conducted some training, but notes the applicant continues too to dispute it breached some of the sponsorship obligations for which it was sanctioned. The Tribunal has considered the reasons put before it as to why it is reasonable to disregard the adverse information but considers they do not outweigh that the applicant made the nomination only a matter of weeks after the s.140M sanction ceased.

22. Accordingly, the Tribunal finds the requirement in r.5.19(3)(g) is not met.

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

    DECISION

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

    Fraser Syme
    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.

    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.