CLEANING FOR A REASON PTY LTD (Migration) [2017] AATA 549 (18 April 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Cleaning for a Reason Pty Ltd
CASE NUMBER: 1616519
DIBP REFERENCE(S): BCC2016/2225258
MEMBER:Katie Malyon
DATE:18 April 2017
PLACE OF DECISION: Sydney
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Statement made on 18 April 2017 at 2:16 pm
CATCHWORDS
Migration – Nomination – Genuine position – Salon Manager – Multiple nomination applications –Size of Salon and nature of operations – Tasks consistent with ANZSCO description – Genuine need for position
This is an application for review of a decision made by a delegate of the Minister for Immigration on 16 September 2016 to refuse to approve the nomination application made by approved sponsor Cleaning for a Reason Pty Ltd (the Company) under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
The Company applied for approval of the nomination on 30 June 2016. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) inclusive prescribe the criteria that must be satisfied for the Minister to approve a nomination. These criteria are extracted in the Attachment to this decision. For nomination applications made from 23 November 2013, additional criteria in relation to labour market testing are specified in s.140GBA of the Act.
The delegate decided not to approve the nomination on the basis that the Company did not satisfy r.2.72(10)(f) of the Regulations because the delegate was not satisfied that the position associated with the nominated occupation of Hair or Beauty Salon Manager is genuine. The Company nominated the position of Salon Manager for nominee Ms Deepika Kansal at its salon known as Beyond Hair Salon (the Salon) located in Bomaderry. A copy of the delegate’s decision was provided to the Tribunal.
Mr Sujindran Sivalingam (known as Suji Siv), the Managing Director of the Company, appeared before the Tribunal on 3 March 2017 to give evidence and present arguments. The Tribunal also received evidence from nominee, Ms Deepika Kansal. The Company was represented in relation to the review by its newly appointed registered migration agent, who also attended the hearing. The Company’s representative provided extensive documentation to the Tribunal (at the Tribunal’s request) both before and after the hearing.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the Company meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicable requirements…
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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CLEANING FOR A REASON PTY LTD (Migration) [2017] AATA 549
Case
[2017] AATA 549
Decision Date
CaseChat Overview and Summary
The Administrative Appeals Tribunal considered a migration matter involving Cleaning For A Reason Pty Ltd as the nominator and Ms Deepika Kansal as the proposed visa applicant. The dispute concerned the approval of a nomination for a Subclass 457 visa, specifically for the occupation of Hair or Beauty Salon Manager (ANZSCO 142114). The Tribunal was tasked with determining whether the Company met the criteria for approval of the nomination under the Migration Regulations 1994.
The legal issues before the Tribunal included whether the nomination complied with the prescribed process, whether the nominator was a standard business sponsor or party to a work agreement, and whether the nominee was correctly identified. Crucially, the Tribunal had to assess whether there was any adverse information known to Immigration about the nominator or a person associated with it, and if so, whether it was reasonable to disregard such information, as required by regulation 2.72(9). This involved examining the Company's compliance with its taxation obligations, specifically the lodgement of Business Activity Statements (BAS).
The Tribunal found that the Company had met the procedural requirements for the nomination, including using the approved form, identifying the occupation and location, and being an approved standard business sponsor. While the Tribunal identified adverse information concerning the Company's persistent delays in lodging its BAS, which indicated a pattern of tardiness relevant to its suitability as a sponsor, it ultimately determined that it was reasonable to disregard this information. This decision was based on the Company's awareness of the risks associated with late lodgement, following discussions with the Tribunal, and assurances that the situation was under control, despite a recent minor delay. The Tribunal concluded that the Company met all applicable criteria for the nomination to be approved.
Consequently, the Tribunal set aside the decision not to approve the nomination and substituted a decision approving the nomination.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the Company meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicable requirements in r.2.72 of the Regulations and, for nomination applications made from 23 November 2013, s.140GBA of the Act are met: s.140GB(2) of the Act. The nomination must comply with the prescribed process Regulation 2.72(3) requires that the applicant has made the nomination in accordance with the process set out in r.2.73. The Tribunal has had regard to the material on the Department’s file and is satisfied that the Company has nominated an occupation under s.140GB(1)(b) of the Act and has identified in the nomination an applicant for a Subclass 457 visa as the person who will work in the occupation. The nomination was made using the approved form and accompanied by the correct fee. The Company’s nomination identifies the location, Bomaderry, where nominee Ms Kansal will carry out the occupation and it includes the name and/or 6 digit ANZSCO of the occupation, that is, Hair or Beauty Salon Manager ANZSCO 142114. Given the above, the Tribunal finds that the requirements of r.2.72(3) of the Regulations are met.Nominator is a standard business sponsor or party to a work agreement Regulation 2.72(4) requires that the person making a nomination is either a standard business sponsor or a party to a work agreement (other than a Minister). The Company was approved as a standard business sponsor on 24 April 2015 for a period of 5 years to 24 April 2020. Accordingly, the Tribunal is satisfied that the Company is a standard business sponsor and, for this reason, the requirements of r.2.72(4) of the Regulations are met.Identification of the nominee Regulation 2.72(5) requires that the applicant identifies in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation. The Company has identified in the nomination Ms Deepika Kansal, who is an applicant for the visa, to work in the nominated occupation. For these reasons the requirements of r.2.72(5) of the Regulations are met. Requirements for existing Subclass 457 visa holders The criteria for approval of a nomination contain several requirements if a Subclass 457 visa holder is identified as the person to work in the nominated position. Since nominee Ms Kansal is not currently the holder of a Subclass 457 visa, the requirements of r.2.72(6), (7A) and (10)(g) of the Regulations are not applicable. Information about the nominated occupation In relation to the requirement in r.2.72(8A) of the Regulations, the Tribunal is satisfied that the Company has provided the required information, including the name of the occupation and the corresponding 6-digit ANZSCO code. The Company indicated the occupation is Hair or Beauty Salon Manager 142114 and the location at which the occupation is to be carried out, namely, Bomaderry NSW 2541.
Decision
Reasons for decision
For the reasons given above, the Company meets all the applicable criteria for the nomination to be approved.DECISION The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.Katie MalyonMemberATTACHMENTExtracts from the Migration Regulations 1994……1.13A Meaning of adverse information (1)Adverse information is any adverse information relevant to a person’s suitability as:(a)an approved sponsor; or(b)a nominator (within the meaning of regulation 5.19); or(c)a maker of a nomination in accordance with a labour agreement; and includes information that the person, or a person associated with the person:(d)has been found guilty by a court of an offence under a Commonwealth, State or Territory law that relates to one or more of the matters referred to in subregulation (2); or,(e)has, to the satisfaction of a competent authority, acted in contravention of such a law; or, (f)has been the subject of administrative action (including being issued with a warning), by a competent authority, for a possible contravention of such a law; or, (g)is under investigation, subject to disciplinary action or subject to legal proceedings in relation to an alleged contravention of such a law; or, (h)has become insolvent within the meaning of subsections 5(2) and of the Bankruptcy Act 1966 and section 95A of the Corporations Act 2001. (2)The matters are the following:(a)discrimination; (b)immigration; (c)industrial relations; (d)occupational health and safety; (e)people smuggling and related offences:(f)slavery, sexual servitude and deceptive recruiting:(g)taxation:(h)terrorism:(i)trafficking in persons and debt bondage(3)The conviction, contravention, administrative action, investigation, disciplinary action, legal proceedings or insolvency mentioned in paragraphs (1)(d) to (h) must have occurred within the previous 3 years. (4)In this regulation: competent authority has the meaning given by subregulation 2.57(1). …….2.72 Criteria for approval of nomination — Subclass 457 (Temporary Work (Skilled)) visa (1)This regulation applies to a person who is:(a)a standard business sponsor; or(b)a party to a work agreement (other than a Minister);who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].(2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.(4)The Minister is satisfied that the person is:(a)a standard business sponsor; or(b)a party to a work agreement (other than a Minister).(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.(6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.(7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.(7A)In addition to subregulation (6):(a)if:(i) the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and(ii) the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and(b)if:(i) the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and(ii) the person has listed on the nomination a person described in paragraph (6) (a); and(iii) the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;(d)the location or locations at which the nominated occupation is to be carried out.(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;(b)if:(i) there is no 6-digit ANZSCO code for the nominated occupation; and (ii) the person is a standard business sponsor;the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);(c)if:(i) there is no 6-digit ANZSCO code for the nominated occupation; and(ii) the person is a party to a work agreement;the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;(d)the location or locations at which the nominated occupation is to be carried out.(9)The Minister is satisfied that either:(a)there is no adverse information known to Immigration about the person or a person associated with the person; or(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.Note The meanings of adverse information and associated with are explained in subregulations 2.57 (2) and (3).(10)If the person is a standard business sponsor — the Minister is satisfied that:(a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and(aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph; and(b)if required by the instrument mentioned in paragraph (a) or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and(c)the terms and conditions of employment of the person identified in the nomination 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 at the same location; and(cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:(i) are provided; or(ii) would be provided;to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and(d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:(i) the tasks of the position include a significant majority of the tasks of:(A)the nominated occupation listed in the ASCO; or(B)the nominated occupation specified in an instrument in writing for paragraph (a); and(ii) if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:(A)the nominated occupation is a position in the business of the standard business sponsor; or(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and(iii) if the person lawfully operates a business in Australia:(A)the nominated occupation is a position with a business, or an associated entity, of the person; or(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and(iv) the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:(A)for the occupation in the ASCO; or(B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and(e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:(i) the tasks of the position include a significant majority of the tasks of:(A)the nominated occupation listed in the ANZSCO; or(B)the nominated occupation specified in an instrument in writing for paragraph (aa); and(ii) if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:(A)the nominated occupation is a position in the business of the standard business sponsor; or(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and(iii) if the person lawfully operates a business in Australia:(A)the nominated occupation is a position with a business, or an associated entity, of the person; or(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and(iv) the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:(A)for the occupation in the ANZSCO; or(B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).(f)the position associated with the nominated occupation is genuine; and(g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:(i) the requirements in subclause 457.223(6) of Schedule 2 continue to be met;(ii) if:(A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and(B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership; (iii) the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;(iv) unless subparagraph (ii) applies—the holder:(A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and(B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and(h)either:(i) the person will:(A)engage the visa holder, the applicant for a visa or the proposed applicant for a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and(B)give a copy of that contract to the Minister; or(ii) the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).(10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:(a)the terms and conditions of employment; and(b)the base rate of pay, under the terms and conditions of employment;that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.(10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.(10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:(a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and(b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and(c)the Minister considers it reasonable to do so.(11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:(a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and(b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:(i) the tasks of the position include a significant majority of the tasks of:(A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or(B)if the nomination is not made using an ASCO code -the nominated occupation specified in the work agreement; and(ii) the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and(c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:(i) the tasks of the position include a significant majority of the tasks of:(A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or(B)if the nomination is not made using an ANZSCO code -the nominated occupation specified in the work agreement; and(ii) the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.(12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement - the Minister is satisfied that the requirements of the work agreement have been met.oOOo
Ratio Decidendi
Legal Principle Established
For these reasons the requirements of r.2.72(8B) of the Regulations are met. No adverse information known to Immigration Regulation 2.72(9) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or, it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in r.1.13A and r.1.13B of the Regulations. Extracted in the Attachment to this decision are the provisions of r.1.13A of the Regulations. The adverse information must have occurred within the previous 3 years: r.1.13A(3) of the Regulations. As noted above, the Company’s representative provided the Tribunal with extensive documentation both before and after the hearing. Documentation included Business Activity Statements (BAS) for FY2013/14, FY2014/15, FY2015/16 and that the period 1 July 2016 to 31 December 2016. Arising from the Tribunal’s examination of the BAS it became evident that the Company has been consistently tardy in ensuring lodgement of its BAS on time. This is despite using the services of a registered tax agent. By way of example, the BAS for the period 1 January 2016 to 31 March 2016 due to be lodged on or before 30 May 2016 was, based on documentation provided to the Tribunal, lodged by the Company’s tax agent using the Tax Agent Portal operated by the Australian Taxation Office (ATO) on 17 October 2016: that is, it was lodged nearly 6 months late. On the same day, the Company’s tax agent also lodged the BAS for the period 1 April 2016 to 30 June 2016 which was due to be lodged on or before 25 August 2016: that it is, it was lodged nearly 4 months late. None of the BAS provided to the Tribunal indicates that the statements were lodged on time. During the hearing, the Tribunal discussed with Mr Sivalingam its serious concerns that the Company’s persistent delay in lodgement of BAS – and, therefore, payment of any monies owing to the ATO - demonstrated a pattern of behaviour that, in the opinion of the Tribunal, constitutes adverse information about the Company. The Tribunal explained that in its opinion such conduct is relevant to the Company’s suitability as an approved sponsor as contemplated by r.1.13A of the Regulations. Mr Sivalingam told the Tribunal that the Company has received a fine from the ATO for $550 for late lodgement of its BAS. He added that his Accountant is now back, aware of all of this and that things are now under control. In this regard, the Tribunal notes that the most recent BAS (that is, the BAS for the period 1 October 2016 to 31 December 2016) which was due to be lodged on or before 28 February 2017 was lodged on 6 March 2017: that is, it was one week late. On the basis of evidence provided, the Tribunal finds that the Company’s persistent pattern of delayed lodgement of BAS is adverse information that is relevant to the Company’s suitability as an approved sponsor. However, having raised its concerns and the significance of this matter with Mr Sivalingam - including the possibility of cancellation of the Company’s sponsorship approval - the Tribunal is satisfied that the Company is now fully aware of the risk of late lodgement of any future BAS on its status as an approved sponsor. In the circumstances of this case, the Tribunal is satisfied that it is reasonable to disregard this adverse information.