2 FRESH PTY LTD ATF CAFE 21 TRUST (Migration)

The Administrative Appeals Tribunal (AAT) considered a review of a decision concerning a nomination for the Temporary Residence Transition stream. The parties involved were 2 Fresh Pty Ltd ATF Cafe 21 Trust (the nominator) and the Department of Immigration and Border Protection (represented by the delegate whose decision was under review). The dispute centred on whether the nominator met the requirements for approving a nomination under regulation 5.19(3) of the Migration Regulations 1994, specifically in light of previous sanctions imposed on the nominator for failing to comply with sponsorship undertakings.

The primary legal issue before the Tribunal was to determine if the nominator satisfied all the criteria stipulated in regulation 5.19(3) for the approval of the nomination, particularly subregulation (3)(g) which requires that there be no adverse information known to Immigration about the nominator, or that any such adverse information be reasonable to disregard. This was in the context of the nominator having previously been sanctioned for breaches of sponsorship obligations, including failure to provide equivalent terms and conditions of employment and providing misleading information.

The Tribunal reasoned that while the nominator had indeed been sanctioned and barred from sponsoring for a period, this sanction had expired. The nominator's representative explained the disagreement with the Department's findings regarding guaranteed annual earnings, attributing it to differing interpretations of how to calculate salary in a seasonal business environment. The Tribunal considered this explanation, along with evidence of training plans and satisfactory compliance with workplace relations laws, and found it reasonable to disregard the previous adverse information. The Tribunal concluded that the nominator met the requirements of regulation 5.19, including the satisfactory compliance with workplace relations laws and the reasonable disregard of past adverse information.

Consequently, the Tribunal set aside the delegate's decision not to approve the nomination and substituted a decision approving the nomination.