Dhakal (Migration)

[2021] AATA 4686

Dhakal (Migration) [2021] AATA 4686 (2 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Prem Mani Dhakal
Mrs Aakriti Dhakal
Miss Arika Dhakal

CASE NUMBER:  1828373

HOME AFFAIRS REFERENCE(S):          BCC2017/4190380

MEMBER:Stavros Georgiadis

DATE:2 November 2021

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

·cl 187.223 of Schedule 2 to the Regulations.

Statement made on 2 November 2021 at 10:57pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 – Temporary Residence Transition stream – Chef– tribunal set aside nomination application –sponsorship bar – sponsorship bar period has now lapsed – reasonable to disregard adverse information – approved nomination – position is still available to the applicant –subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.13, 5.19, Schedule 2, cl 187.233

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 9 November 2017. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the 'Common criteria', as well as the criteria of one of two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Chef (ANZSCO 351311) with the sponsor employer, Halikos Pty Ltd as part of the Halikos Group of companies.

5. The delegate refused to grant the visas because the primary applicant did not meet cl 187.223 of Schedule 2 to the Regulations as there was no approved nomination in relation to the position to which the application relates.

6. The primary applicant appeared before the Tribunal on 23 June 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor employer’s Chief Financial Officer (CFO), Mr Steve Brunker, and assistant Accountant Payroll, Mr Alex Pullar regarding the related AAT casefile 1824918 reviewing the nomination refusal decision.  The related matters were heard together in a combined hearing.

7. The applicants were represented in relation to the review by their registered migration agent.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the primary applicant meets the requirements of cl 187.223 for the grant of the (Class RN) Subclass 187 visas in respect of all applicants as claimed members of the same family unit as the primary applicant.

   Nomination of a position

10. Clause 187.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration made as part of the current visa application.

11. In addition, this criterion also requires that:

    ·the nomination has been approved and has not been subsequently withdrawn

    ·there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of reg 1.13A and reg 1.13B); or it is reasonable to disregard any such information

    ·the position is located in regional Australia (as defined in reg 5.19)

    ·the position is still available to the applicant, and

    ·the visa application was made no more than six months after the nomination of the position was approved.

12. The Tribunal notes from the visa applications on the Department file that the required declaration has been made in relation to the position nominated by the employer sponsor. The Tribunal is satisfied, on the documentary and oral evidence before it, that the person who will employ the applicant as a holder of Subclass 457 visa is with the Halikos Group in the application for nomination approval, Halikos Pty Ltd. Thus, the first named applicant meets cl 187.223(1).

13. The oral evidence before the Tribunal from the sponsor employer and the applicant is that the position has not been subsequently withdrawn and is still available to the nominee, Mr Prem Mani Dhakal: (meeting cl 187.223(3) and cl 187.223(5) respectively). 

14. The Tribunal accepts the oral evidence that the position is located in the Northern Territory, Australia and therefore, satisfies the ‘regional Australia’ location requirement in cl.187.223(4) for this purpose as defined in r 5.19.

15. On 2 November 2021 the Tribunal decided to set aside the decision under review and substituted a decision approving the nomination under r.5.19 in the related AAT casefile number 1824918 for the reasons set out in the Decision Record for that case. As the nomination is now approved, the applicant meets cl 187.223(2).

16. In respect of cl 187.223(3A), the criteria require 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’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B. 

17. At the combined hearing, the applicant’s CFO answered ‘Yes’ in response to the question asked about any adverse information known to Immigration about the nominator or person associated with the nominator. The applicant has previously also responded to this issue in written submissions. 

18. The sponsor submits that Halikos Pty Ltd was subject to monitoring by Borderforce during 2015. The subsequent report from the Department contained some adverse findings in relation to duties performed differing from the approved position description relating to 2 employees. The employer contended that these findings were inaccurate, and disputes the assertions made. The decision from the investigation was the imposition of a sponsorship bar on Halikos Pty Ltd preventing the sponsoring of more nominees under employer sponsored visas for a 12-month period from 3 November 2015 to 2 November 2016. The employer appealed this decision. However, as the 12 months passed without the appeal being heard or finalised, the employer withdrew the appeal relating to the sponsorship bar.

19. The employer submits that the withdrawal of the appeal against the bar occurred because of the circumstances where the 12-month period had passed and their appeal had not yet been dealt with. The employer submits that the withdrawal of the appeal does not amount to any admission or acceptance of the original findings, but rather, that it was a pragmatic effort to ‘prevent going through a bureaucratic process’ of appeal and incurring associated legal costs.

20. The Tribunal has had regard to the response to the Notice of the Intention (NOITTA) which the employer responded to when given the opportunity, and also to the findings that led to the sanction bar as set out in the delegate’s decision of that matter, a copy of which was provided with the review application.  The Tribunal also received oral evidence at the hearing about other information regarding six incidents including actions initiated by the Australian Taxation Office (ATO) in respect of Fringe Benefits Tax (FBT) obligations that were repaid in the sum of approximately $7,000, and PAYG anomalies which resulted in the applicant being charged extra interest. There were also unfair dismissal (FWO) and discrimination actions (Discrimination Commission NT) which were subsequently settled with the affected parties and consent documents exchanged and finalised, without fines or other sanctions.  As these actions resulted in the matters being settled between the parties without findings, the Tribunal considers the matters all resolved without any adverse findings on the employer or the applicants and therefore, places little weight on these. The Tribunal draws no adverse inferences from these 6 settled and finalised incidents.

21. The Tribunal finds that adverse information within the meaning of reg 1.13A is known about the nominator or person associated with the nominator resulting in a 12-month sanction imposed on the applicant for breach of reg.2.86 obligations to ensure a sponsored person works in the nominated occupation (two occasions). The Tribunal finds from the above that the adverse information is known to Immigration because the action was initiated by the Department.  It falls to the Tribunal to now consider whether the adverse information should be disregarded.

22. The sponsor employer was given a further 28 days to respond to the issue of whether it is reasonable to disregard the adverse information. The Tribunal received further written submissions in July 2021 together with supportive material in relation to the r.5.19(3)(g) criteria and whether the Tribunal should disregard the adverse information.

23. The Tribunal has taken into consideration the following relevant factors: that the adverse information resulted from sponsorship monitoring initiated by the Department as a competent Authority; that there was no finalised review in respect of any challenge to the adverse findings in circumstances of the passage of time described above; that the events occurred some years ago now in 2015; that the employer has taken steps to ensure circumstances that led to the adverse information do not re-occur (discussed further below); that there has been no repeat of similar breaches since; and that there have been no other findings made by the Department about the sponsor employer in relation to adverse information.

24. The written submissions set out that Halikos Pty Ltd did implement managerial and procedural changes in response to the review. Specifically, a 457 Visa Sponsorship Obligations Compliance Policy was created and issued to managers in the business. A copy of the policy was provided to the Tribunal (A.3). The employer submits that this policy made clear to managers the company’s obligations including record keeping, notification and training requirements, and noted that breaches of the policy may result in disciplinary action including potential termination of employment. Other management responses included a full review of sponsored workers’ position descriptions and tasks undertaken. In limited cases, the outcome of the employer’s review meant that small changes were required to sponsored workers’ tasks to ensure full alignment with approved duties and to avoid any further repeat of breaches of reg.2.86 obligations. The employer’s submission is that all these changes were implemented to ensure ongoing compliance, which has been evident.

25. Having regard to the above, in addition to the factors discussed particularly in paragraph 23 above, the Tribunal finds, on balance, that it is appropriate to disregard the adverse information in this case.

26. Accordingly, cl 187.223 (3A) is met.

27. Finally, the Tribunal is satisfied from the filed application documents, that for the purposes of meeting cl 187.223(6), the application for the visa dated 9 November 2017, is made no more than 6 months after the Minister (or this Tribunal on review) approved the nomination, on 2 November 2021.

28. Therefore, overall, cl 187.223 is met.

29. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa in respect of all applicants including the second and third named visa applicants, Mrs Aakriti Dhakal  and Miss Arika Dhakal respectively, as claimed members of the same family unit as the primary visa applicant.

    DECISION

30. The Tribunal remits the application for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

    ·cl 187.223 of Schedule 2 to the Regulations.

    Stavros Georgiadis
    Member

    
    

    ATTACHMENT A

    187.223(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that seeks to meet the requirements of subregulation 5.19 (3); and

    (b)in relation to which the applicant is identified as the holder of a Subclass 457 … visa; and

    (c)in relation to which the declaration mentioned in paragraph 1114C (3) (d) of Schedule 1 was made in the application for the grant of the visa.

    (2)     The Minister has approved the nomination.

    (3)     The nomination has not subsequently been withdrawn.

    (3A)    Either:

    (a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

    (4)     The position to which the application relates is located in regional Australia.

    (5)     The position is still available to the applicant.

    (6)     The application for the visa is made no more than 6 months after the Minister approved the nomination.