Dimeo Cleaning Services (Aust) Pty Ltd ATF The DCS Trust (Migration) - [2021] AATA 3727

Dimeo Cleaning Services (Aust) Pty Ltd ATF The DCS Trust (Migration) [2021] AATA 3727 (6 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Dimeo Cleaning Services (Aust) Pty Ltd ATF The DCS Trust
CASE NUMBER:  1827257
HOME AFFAIRS REFERENCE(S):          BCC2017/171177
MEMBER:Karen McNamara
DATE:6 July 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 06 July 2021 at 11:04am
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Direct Entry Nomination – Customer Service Manager – tasks of nominated position – alignment with ANZSCO – national based cleaning company – operational requirements – decision under review set aside
LEGISLATION
Migration Regulations 1994 (Cth), r 5.19
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 13 September 2018 to reject the application by Dimeo Cleaning Services (Aust) Pty Ltd ATF the DCS Trust (the applicant) for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 13 January 2017. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry nomination stream.
The delegate refused the application on the basis the nomination did not satisfy r.5.19(4)(h)(ii)(D) of the Regulations because the application did not demonstrate that the tasks to be performed in the position correspond to the tasks of an occupation that is specified in the relevant instrument for sub sub-paragraph 5.19(4)(h)(ii)(D).
The applicant applied to the Tribunal on 18 September 2018 for review of the delegate’s decision. The applicant submitted a copy of the primary decision record with the review application.
On 22 June 2021, the applicant represented by Mr James Gifford (referred to below as the applicant) appeared before the Tribunal via telephone, to give evidence and present arguments. The Tribunal also received oral evidence from Ms Diana Paola Acero Bohorquez (the nominee) in the related matter for the subclass 187 visa (AAT Case file 1830331) and Ms Sophie Macguire, Dimeo ACT Executive Manager. The related matters were heard concurrently in a combined hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing…

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: [2021] AATA 3727
Decision Date: 6 July 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application by Dimeo Cleaning Services (Aust) Pty Ltd ATF The DCS Trust (the applicant) for approval of an employer nomination for the position of Cleaning Services Manager, classified under ANZSCO as Customer Service Manager. The applicant, a national cleaning company with extensive operations and a large workforce, sought approval for this nomination under the Direct Entry stream. The core dispute revolved around whether the nominated position and the applicant's circumstances met the specific requirements stipulated by the Migration Regulations 1994 for such nominations.

The Tribunal was required to determine if the applicant satisfied the criteria for approval of the nomination under Regulation 5.19(4) of the Migration Regulations 1994. This involved assessing whether the application was made in the approved form, identified a genuine need for a paid employee under the nominator's direct control, and whether the nominator was actively and lawfully operating a business. Crucially, the Tribunal also had to consider whether there was any adverse information known to the Department of Immigration about the nominator, or if such information could be reasonably disregarded, and whether the nominator had a satisfactory record of compliance with relevant laws.

In its reasoning, the Tribunal found that the application met the formal requirements of Regulation 5.19(4)(a), including being in the approved form and identifying a need for the nominated position. It also determined that the applicant was actively and lawfully operating its business, satisfying Regulation 5.19(4)(b). While acknowledging that the applicant had previously received an infringement notice and a temporary bar as a sponsor due to underpaying a sponsored employee, the Tribunal considered the circumstances surrounding this event. The applicant had disclosed this information, explaining it arose from a clerical error following an employee's shift reduction, and had paid the imposed penalty. The Tribunal concluded that it was reasonable to disregard this past adverse information, thereby satisfying Regulation 5.19(4)(f).

Consequently, the Tribunal set aside the original decision under review and substituted a decision approving the employer nomination.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.Background The applicant is a national based cleaning company, established approximately forty years ago. The business was purchased by the current operator approximately twenty-two years ago and has since undergone considerable growth and expansion. The business specialises in all aspects of the cleaning industry including waste and sanitary management, building and facility management, maintenance and specialised and forensic cleaning services. Nationally the business employs over 3,000 staff, the majority of whom are from a migrant background. On 13 January 2017, the applicant lodged an application for an employer nomination approval for the position of Cleaning Services Manager (occupation Customer Service Manager - ANZSCO 149212) under the Regional Sponsored Migration Direct Entry stream. On 9 February 2018, the nominator notified the Department of changes in circumstances advising that the position was now located in Mitchell, ACT and the nominated base rate and guaranteed earnings is $60,000 per annum. The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein. The application is compliant: r.5.19(4)(a) Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control. Based on the material in the Department’s file, the Tribunal is satisfied that the application was made on the approved form. As the position is located in regional Australia, no fee is payable (r5.37(2)(a)). The application also included written certification relating to conduct that contravenes s.245AR(1) of the Migration Act 1958, declared and signed by the applicant. Accordingly, the requirements of r.5.19(4)(a)(i) are met. In considering whether the application for approval identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control, the Tribunal has had regard to the evidence before it, including written submissions and the oral evidence received at the hearing by Mr James Gifford and Ms Sophie Macguire. In support of the need for the position, the applicant has provided evidence in the form of various references for the nominee, representatives submission dated 22 April 2021 and oral evidence provided at the hearing on 22 June 2021.

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 this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.Background The applicant is a national based cleaning company, established approximately forty years ago. The business was purchased by the current operator approximately twenty-two years ago and has since undergone considerable growth and expansion. The business specialises in all aspects of the cleaning industry including waste and sanitary management, building and facility management, maintenance and specialised and forensic cleaning services. Nationally the business employs over 3,000 staff, the majority of whom are from a migrant background. On 13 January 2017, the applicant lodged an application for an employer nomination approval for the position of Cleaning Services Manager (occupation Customer Service Manager - ANZSCO 149212) under the Regional Sponsored Migration Direct Entry stream. On 9 February 2018, the nominator notified the Department of changes in circumstances advising that the position was now located in Mitchell, ACT and the nominated base rate and guaranteed earnings is $60,000 per annum. The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein. The application is compliant: r.5.19(4)(a) Regulation 5.19(4)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee, and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a need for the nominator to employ a paid employee to work in the position under their direct control. Based on the material in the Department’s file, the Tribunal is satisfied that the application was made on the approved form. As the position is located in regional Australia, no fee is payable (r5.37(2)(a)). The application also included written certification relating to conduct that contravenes s.245AR(1) of the Migration Act 1958, declared and signed by the applicant. Accordingly, the requirements of r.5.19(4)(a)(i) are met. In considering whether the application for approval identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control, the Tribunal has had regard to the evidence before it, including written submissions and the oral evidence received at the hearing by Mr James Gifford and Ms Sophie Macguire. In support of the need for the position, the applicant has provided evidence in the form of various references for the nominee, representatives submission dated 22 April 2021 and oral evidence provided at the hearing on 22 June 2021.

Decision

Reasons for decision

Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.DECISION The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.Karen McNamaraMemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 19945.19Approval of nominated positions (employer nomination)…(2)The application must:(a)be made in accordance with approved form 1395…; and(aa) 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 subsection 245AR(1) of the Act; and(b)be accompanied by the fee mentioned in regulation 5.37.…Direct Entry nomination(4)The Minister must, in writing, approve a nomination if:(a)the application for approval:(i) is made in accordance with subregulation (2); and(ii) identifies a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and(b)the nominator:(i) is actively and lawfully operating a business in Australia; and(ii) directly operates the business; and(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and(d)both of the following apply:(i) the employee will be employed on a full-time basis in the position for at least 2 years;(ii) the terms and conditions of the employee’s employment will not include an express exclusion of the possibility of extending the period of employment; and(e)the terms and conditions of employment applicable to the position 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 in the same workplace at the same location; and(f)either:(i) there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or(ii) it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and(g)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and(h)either:(i) both of the following apply:(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;(B)either:(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or(ii) all of the following apply:(A)the position is located in regional Australia;(B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;(D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;(DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;(E)the business operated by the nominator is located at that place;(F)a body that is:(I)specified by the Minister in an instrument in writing for this sub-subparagraph; and(II)located in the same State or Territory as the location of the position;has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).

Ratio Decidendi

Legal Principle Established

Accordingly, the requirements of r.5.19(4)(e) are met.No adverse information known to Immigration: r.5.19(4)(f) Regulation 5.19(4)(f) requires 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. The meaning of adverse information is defined in r.1.13A as follows(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 (3) 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) . There is evidence before the Tribunal regarding the applicant that may be considered adverse. The information relates to the applicant on the 14 August 2019 being issued an infringement notice for $12,600 and being barred as a sponsor for a period of three months. In submissions to the Tribunal dated 22 April 2021, the applicant disclosed the circumstances regarding the adverse information. Details pertaining to the adverse information have been discussed before this Member in previous matters (AAT case files 1732053 and 1820293). Evidence before the Tribunal shows that the Department’s actions were the result of a pay matter in which the Department, as a result of an audit, found that the business had underpaid a sponsored employee. The applicant told the Tribunal that the pay discrepancy had arisen through a clerical error following an employee’s request to reduce his shifts. The applicant has provided to the Tribunal a copy of the Infringement Notice dated 14 August 2019, which shows that ABF found that the applicant contravened regulation 2.79 for underpayments occurring on 12 March 2019 and 26 March 2019. A penalty of $12,600 was imposed which was subsequently paid by the applicant.