Blue Wren Holdings Pty Ltd (Migration) - [2022] AATA 4501

Blue Wren Holdings Pty Ltd (Migration) [2022] AATA 4501 (18 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Blue Wren Holdings Pty Ltd
REPRESENTATIVE:  Mr Beau Timothy John Hartnett
CASE NUMBER:  1912074
HOME AFFAIRS REFERENCE(S):          BCC2018/1750579
MEMBER:Terrence Baxter
DATE:18 October 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 18 October 2022 at 9:12am
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition stream – Carpenter – adverse information – sponsorship bar – breaches of sponsorship obligations – whether reasonable to disregard – Procedures Advice Manual (PAM3) – nature of the adverse information – underpayment of a worker – cancellation of sponsorship – lapse of time since the breaches – subsequent compliance – steps taken to ensure the adverse conduct does not recur – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBA, 140M
Migration Regulations 1994 (Cth), rr 1.13A, 1.13B, 5.19
CASES
Nice Shoes Aust Pty Ltd v MIMIA (2004) FCA 252
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179
statement of decision and reasons
application for review

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 April 2019 to reject the applicant’s application for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant, Blue Wren Holdings Pty Ltd, applied for approval on 20 April 2018. The applicant nominated Mr Matthew James Charles Jones (the nominee) in the position of Carpenter. The applicant’s business is located in Yatala, Queensland. It manufactures and installs shower screens, wardrobe doors mirrors and splash backs. The applicant holds a Trade Contractor License issued by the Queensland Building and Construction Commission and has employed the nominee since 2014.
The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval, then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met, then the application must be refused: reg 5.19(3)(b).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition stream.
The delegate refused the application on the basis that the applicant’s nomination did not satisfy reg 5.19(4)(b) of the Regulations because the delegate found that there is adverse information known to Immigration about the applicant and that it was not reasonable to disregard the information.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 15 May 2019.
The general manager of the applicant, Mr Stefan Styles…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] AATA 4501
Decision Date: 18 October 2022

CaseChat Overview and Summary

Blue Wren Holdings Pty Ltd (the applicant) sought judicial review of a decision made by the Administrative Appeals Tribunal concerning the approval of a nominated position under the Temporary Residence Transition stream. The applicant, a business, had nominated an individual for a carpenter position. The core of the dispute revolved around adverse information known to the Department of Home Affairs regarding the applicant's past conduct as a sponsor, which had led to a sponsorship bar and cancellation of its approval as a standard business sponsor.

The Tribunal was required to determine whether the applicant's nomination application met the requirements of regulation 5.19(2) and (4)(a) of the Migration Regulations 1994, and crucially, whether it was reasonable to disregard the adverse information known to the Department concerning the applicant's previous breaches of sponsorship obligations. These breaches included failures to satisfy sponsorship obligations, ensure equivalent terms and conditions of employment, provide required records and information, and ensure the sponsored person worked in the nominated occupation.

The Tribunal found that the application itself complied with the procedural requirements of regulation 5.19(2). However, it then considered regulation 5.19(4)(b), which mandates that either no adverse information is known to the Department about the nominator, or it is reasonable to disregard such information. The Tribunal acknowledged the adverse information, including the applicant's two-year sponsorship bar imposed in December 2018 due to multiple breaches of sponsorship obligations. Despite the lapse of time since these breaches and the applicant's subsequent compliance efforts, including providing evidence of a Fair Work Commission decision and a collective agreement, the Tribunal concluded that it was not reasonable to disregard the adverse information. The decision under review was set aside.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The nominee stated that he had been employed by the applicant on a full-time basis since 2014 and gave evidence of tasks performed by him in the position.Evidence presented after the hearing After the hearing, the applicant produced to the Tribunal the following documents: a.Submissions from the representative dated 9 August 2022. b.An email from the ABF regarding the applicant’s payment of its infringement notice. c.A copy of the FairWork Commission decision in Blue Wren Holdings Pt Ltd t/as Civic Shower Screens & Wardrobes and CFMEU Union Collective Agreement 2020 – 2022.d.A copy of the Blue Wren Holdings Pty Ltd T/as Civic Shower Screens & Wardrobes and CFMEU Union Collective Agreement 2020 – 2022. Application requirements – reg 5.19(4)(a) Regulation 5.19(4)(a) requires that an application for approval be made in accordance with a number of requirements set out in reg 5.19(2). Regulation 5.19(2) requires that an application must:·be made in accordance with approved form 1395 (Internet);·identify the position;·identify a person in relation to the position;·identify an occupation in relation to the position,·identify the subclass and stream to which the nomination relates;·be accompanied by the fee mentioned in reg 5.37; and·include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of s 245AR(1) of the Migration Act 1958 (Cth) (the Act). Applications made on or after 12 August 2018 must also be accompanied by any nomination training contribution charge the nominator is liable for, and identify the annual turnover for the nomination: regs 5.19(2)(fa), (fb). The liability is imposed by s 140ZM of the Act and the charge is imposed by the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), with the amount specified in the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth) (Charges Regulations). ‘Annual turnover’ is defined in the Charges Regulations for liable persons operating a business in Australia as the total ordinary income (within the meaning of the Income Tax Assessment Act 1997 (Cth)) derived in the most recent income year (within the meaning of the Income Tax Assessment Act 1997 (Cth)) ending before the day on which the nomination application is made. In any other case, it is defined as the total income the person liable derived in the ordinary course of business in the most recent financial year ending before the day on which the nomination application is made. Further, if the subclass identified in the application is Subclass 187, the application must be made before 16 November 2019, unless the exception in reg 5.19(2A) applies. The exception applies to an identified person who is a ‘transitional 457’ or ‘transitional 482’ worker at the time of application. This means, respectively, a person who on or after 18 April 2017 held a Subclass 457 visa, and a person who on 20 March 2019 held a Subclass 482 visa in the Medium-term stream or was an applicant for a Subclass 482 visa in the Medium-term stream that was subsequently granted: reg 1.03.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Given the above findings, the Tribunal is satisfied that the application complied with the requirements in reg 5.19(2) and that reg 5.19(4)(a) is met.No adverse information known to Immigration – reg 5.19(4)(b) Regulation 5.19(4)(b) requires that either there is no adverse information known to Immigration about the nominator or a person associated with the nominator, or it is reasonable to disregard any such information. ‘Adverse information’ is defined by reg 1.13A as any adverse information relevant to the person’s suitability as an approved sponsor or a nominator. Regulation 1.13A sets out a non-exhaustive list of examples of the kinds of information which meet this definition, including information that the person:·has contravened a law of the Commonwealth, a State or a Territory, or·is under investigation, subject to disciplinary action or subject to legal proceedings in relation to a contravention of such a law, or·has been the subject of administrative action (including being issued with a warning) for a possible contravention of such a law by a Department or regulatory body that administers or enforces the law, or·has become insolvent (within the meaning of s 95A of the Corporations Act 2001 (Cth)), or·has given, or caused to be given, to the Minister, an officer, the Tribunal or an assessing authority a ‘bogus document’ (as defined in s 5(1) of the Act), or ‘information that is false or misleading in a material particular’ (as defined in reg 1.13A(4)). The term ‘associated with’ is also given a non-exhaustive definition for the purposes of this requirement, in reg 1.13B. It provides that two persons are associated with each other in a wide range of relationships and situations, including if:·they are or were spouses or de facto partners or members of the same immediate, blended or extended family, or have or had a family-like relationship, or belong or belonged to the same social group, unincorporated association or other body of persons, or have or had common friends or acquaintances, or·one is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of the other or any corporation or other body in which the other is or was involved (including as an officer, employee or member), or·a third person is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of both of them, or·they are or were related bodies corporate (within the meaning of the Corporations Act 2001 (Cth)) or,·one is or was able to exercise influence or control over the other, or·a third person is or was able to exercise influence or control over the both of them.Regulation 1.13B(2) provides that it does not matter if one of the persons mentioned has ceased to exist. The information before the Tribunal, which is known to Immigration, and which the Tribunal could consider to be adverse, is contained in the Department’s letter to the applicant dated 5 March 2019 (the invitation to comment letter), the delegate’s decision dated 26 April 2019 and the representative’s submission dated 26 July 2022. These documents indicate that:a.On 21 December 2018, the applicant was barred from being an approved sponsor under s 140M of the Act for two years and the approval of the applicant as a standard business sponsor was cancelled.b.The applicant was barred from being an approved sponsor due to breaches of the following sponsorship obligations:· reg 2.89 – failure to satisfy sponsorship obligation· reg 2.79 – obligation to ensure equivalent terms and conditions of employment· reg 2.83 – obligation to provide records and information to the Minister· reg 2.84 – obligation to provide information to Immigration when certain events occur· reg 2.86 – obligation to ensure that the primary sponsored person works or participates in the nominated occupation, program or activity.