1513491 (Migration)

[2016] AATA 3747

1513491 (Migration) [2016] AATA 3747 (14 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Stems Solutions Pty Ltd

CASE NUMBER:  1513491

DIBP REFERENCE(S):  BCC2014/2487713 BCC2015/2922234

MEMBER:Kate Millar

DATE:14 April 2016

PLACE OF DECISION:  Adelaide

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

Statement made on 14 April 2016 at 8:56am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Stems Solutions Pty Ltd (Stems Solutions) applied for approval of a nomination of a nominee for a position of business analyst.  A requirement for the approval of a nomination is that there is no adverse information known to Immigration about the nominator, or a person associated with the nominator, or that it is reasonable to disregard any adverse information.  Their application was refused due to information held by Immigration that Stems Solutions had been barred for a period of six months from sponsoring ore overseas nationals for a visa under the terms of its existing approval as a standard business sponsor.   The delegate of the Minister for Immigration and Border Protection found it was not reasonable to disregard this information. 

2. In issue in this matter is whether Stems Solutions meets the requirements to approve the nomination.  In particular, what is raised in the decision of the delegate is whether there is adverse information known to Immigration about Stems Solutions and if so whether it is reasonable to disregard the adverse information. 

3. Mr Coakly, the director of Stems Solutions, appeared before the Tribunal on 12 April 2016 to give evidence and present arguments.  The applicant was represented by its registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. Stems Solutions applied for approval on 30 September 2014. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Migration Regulations 1994. There are two steams in which a nomination can be approved, and Stems Solutions sought approval in the direct entry 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).

6. The delegate found the requirements of 5.19(4)(f) were not met, and refused the application to approve the nomination under r.5.19 on 23 September 2015.

   No adverse information known to Immigration: r.5.19(4)(f)

7. Regulation 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’ has the meaning provided in r.2.57(3), and incudes at 2.57(3)(a)(ii) that the person has, to the satisfaction of a competent authority, acted in contravention of a Commonwealth, State or Territory law.  The term competent authority is defined to mean the Department or administrative body regulatory authority that administers or enforces a law that is alleged to have been contravened.

8. On 7 August 2015, a delegate of the Minster found Stems Solutions has breached its sponsorship obligations for failing to comply with its sponsorship obligations.  The failure identified was failing to ensure a sponsored person does not work in an occupation other than that for which the nomination was approved.  Stem Solutions had a nomination approved for a person to work as a graphic designer.  On compliance officers visiting the business, it was discovered the nominee was employed in an administrative role.  This is not the position that is the subject of this nomination application.

9. The delegate imposed a six month bar preventing Stems Solutions from sponsoring overseas nationals for visas under its approval as a standard business sponsor. Stems Solutions did not apply for a review of this decision.   Stems Solutions has, to the satisfaction of a competent authority, acted in contravention of a Commonwealth law.   This is adverse information known about Stems Solutions as defined in r.2.57(3)(a)(ii).

10. It follows that in issue is whether the information that Stems Solutions has acted in contravention of a Commonwealth law should be disregarded.

11. Mr Coakley said the situation that led to the sponsor bar came down to a mistake on his part, and that while he had initially employed the person as a graphic designer but this progressed to other things.  He said he had not intended to employ her in administration.  At the time he needed staff that did not come at a high price.  Mr Coakley said he did not have the wrong intent in employing the person as a graphic designer, and that he felt his mistake was not a major one.

12. In the notice of decision regarding the breach of sponsorship obligations and subsequent bar, it was found by the delegate that the intention appears to have been motivated by an attempt to do the right thing by the visa holder in trying to avoid terminating her employment in the face of changing business needs. Mr Coakley said that the sponsor bar resulted from his lack of knowledge about immigration, and that he had not consulted a migration agent for the four previous sponsored visa holders he had employed.

13. While Mr Coakley may not have employed the person with the intention to change the tasks of the position, it is the responsibility of those approved as standard business sponsors to be aware of the obligations that come with this approval and comply with those obligations. 

14. Mr Coakley said the nominee is a valued staff member and he had tried employing several other business analysts before he employed the nominee, and that her skills were the best match with the business.  Mr Coakley said at one point of the hearing that he wanted to hand the business to the nominee to run as he intends to move interstate at the end of the year, but added that he has a general manager in training.  On it being explored further whether the nominee’s tasks would change significantly in the future, and would not be the tasks of a business analyst, Mr Coakley said the nominee would be doing project management which is within the role of a business analyst.  He also said this was what she does now. 

15. The nominee has worked for Stems Solutions for approximately two years and was part time until approximately October or November 2015 when she became full time by engaging her through a labour hire firm.  On being asked if this arrangement, where the nominee provided services through the labour fie firm, could continue, Mr Coakley said the costs are higher and this arrangement does not give long term stability for the business.  He also said he wanted to employ the nominee directly for peace of mind for both the business and for the nominee.  It was added by his representative that the nominee is on a 457 visa through a labour agreement, which does not provide a pathway to permanent residency, and this may mean the nominee will seek another job.  Mr Coakley said that if they lose the nominee’s service they may again go though several business analysts before they find the right person, and this would be a cost to the business. 

16. Mr Coakley said that the sponsor bar was an adverse decision against the business and that the six month bar was the punishment, but that now he feels it is a permanent mark against the business and that it will not be able to sponsor people in the future. I note changes to the Regulations from 15 December 2015 insert a new definition of adverse information at r.1.13A that includes at r.1.13A(3) that the contravention must have occurred within the previous three years.  I also note that circumstances may change such that any previous adverse information should be disregarded, and the finding that there is adverse information does not prevent a future application for approval of the nomination of a position. 

17. At this point in time, the business has the benefit of the nominee continuing to work for it, albeit at a higher cost to the business due to the fees of the labour hire company, and without the peace of mind of having her as a permanent employee. 

18. Having considered all of the information before me, I am not satisfied it is reasonable to disregard the adverse information, and it follows that the requirements of r.5.19(4)(f) are not met.

19. As r.5.19(4)(f) is not met, Tribunal is not satisfied that the applicant meets the all of 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, and the decision under review is affirmed.

    DECISION

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

    Kate Millar
    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).