BLUESHELL HOLDINGS PTY LTD ATF THE HILLARYS UNIT TRUST (Migration)

This matter concerned an application by BLUESHELL HOLDINGS PTY LTD ATF THE HILLARYS UNIT TRUST for approval of a nomination under the Temporary Residence Transition stream. The primary decision-maker had refused to approve the nomination due to adverse information concerning the applicant. The applicant sought review of this decision before the Tribunal.

The legal issues before the Tribunal were whether the applicant met the requirements for approval of the nomination under regulation 5.19(3) of the Migration Regulations 1994. Specifically, the Tribunal had to consider whether the applicant had provided a compliant application, identified a relevant person and occupation, met training benchmark requirements, and whether there was any adverse information known to the Department about the nominator or persons associated with it that could not be disregarded.

The Tribunal found that the applicant had provided a compliant application, identified the nominee, Mr Pardeep, and the occupation of Cook (ANZSCO 351411), which matched his previous Subclass 457 visa occupation. The Tribunal was satisfied that the applicant met its obligations under Training Benchmark B. Crucially, regarding adverse information, the Tribunal noted that a sponsorship bar had previously been imposed on the applicant under s.140M(1)(c) and (d) of the Act due to alleged underpayment of wages, payment of cash wages, and breaches of food hygiene laws. However, the Tribunal determined that this sanction no longer constituted adverse information under regulation 1.13A because the contraventions had occurred outside the relevant three-year period specified in regulation 1.13A(3). Furthermore, the Tribunal was satisfied, based on evidence provided by the applicant, that the alleged underpayment of wages had been remedied, the Fair Work Ombudsman had not investigated these allegations, and the payment of cash wages was not a breach of workplace laws. The Tribunal also noted that fines for food safety breaches had been paid and behaviour had changed.

Consequently, the Tribunal was satisfied that the applicant met all the requirements of regulation 5.19. The Tribunal set aside the decision under review and substituted a decision approving the nomination.