DIMEO CLEANING SERVICES (AUST) PTY LTD ATF THE DCS TRUST (Migration)

DIMEO CLEANING SERVICES (AUST) PTY LTD ATF THE DCS TRUST (Migration) [2021] AATA 1887 (2 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  DIMEO CLEANING SERVICES (AUST) PTY LTD ATF THE DCS TRUST
CASE NUMBER:  1820293
HOME AFFAIRS REFERENCE(S):          BCC2017/4210070
MEMBER:Karen McNamara
DATE:2 June 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 2 June 2021 at 11:23am

CATCHWORDS
MIGRATION – application for approval of nomination of position – temporary residence transition stream – genuine need for position and nominator’s financial capacity to pay full-time salary for 2 years – adverse information – nominating company barred as sponsor for 3 months and issued infringement notice after nominee underpaid because of clerical error – immediate steps to rectify breach and ensure no further breaches occur – sponsorship history – compliance with workplace relations laws – reasonable to disregard information – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 140M(1), 359AA
Migration Regulations 1994 (Cth), rr 1.13A(1)(b), (f), (2)(b), 2.79, 5.19(3)(g), (h), (i)
Fair Work Act 2009 (Cth), s 536(2)

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 5 July 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 10 November 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 Temporary Residence Transition nomination stream.
The delegate refused the application on the basis the nomination did not satisfy r.5.19(3)(i) of the Regulations because the application did not provide sufficient evidence to demonstrate that there is a genuine need to employ the nominee as a paid employee to work in the position under the nominator’s direct control.
The applicant applied to the Tribunal on 12 July 2018 for review of the delegate’s decision. The applicant submitted a copy of the primary decision record with the review application.
On 11 May 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 Mr Orlando La Torre Labajos (the nominee) in the related matter for the subclass 186 visa (AAT Case file 1824123) and Dimeo OHSE & Compliance Officer Daniela Inove. 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 by telephone, having regard to the nature of this matter and the individual circumstances of the applicant and nominee. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant and nominee were given a fair opportunity to give evidence and present arguments.
On 21 May 2021, the Tribunal received submissions from the applicant addressing matters raised by the Tribunal during the hearing of 11 May 2021.
The applicant was represented in relation to the review by their registered migration agent. The representative attended the Tribunal 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 this case is whether the applicant meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in r.5.19(3), 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. The applicant sponsored Mr Orlando La Torre Labajos (the nominee), for his Subclass 457 Visa, which Department records confirm that he held at the time of the nomination application.
Department records show that the applicant initially was approved as a standard business sponsor on 9 July 2014 until 9 July 2017. The applicant’s most recent approval as a standard business sponsor was 22 October 2018.
Department records show that the nominee was granted a 457 Visa on 11 November 2013 Information before the Tribunal shows that the nominee commenced employment with the applicant on a part time basis in 2008 and commenced fulltime employment in November 2013 in the occupation of Program or Project Administrator (ANZSCO 511112).
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 Tribunal discussed with the applicant the requirements of r.19(3). The following is a summary of the oral and written evidence provided to the Tribunal during and following the hearing.
The application must be compliant: r.5.19(3)(a)
Regulation 5.19(3)(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 relevant person and occupation, and identify a need for the nominator to employ that person, as a paid employee, to work in the position under the nominator’s direct control.
Based on the material in the Department’s file, the Tribunal is satisfied that the application was made on the approved form and was accompanied by the prescribed fee. The Tribunal notes the inclusion of disclosure by the applicant to the effect that the applicant had not engaged in any conduct in relation to this nomination that constituted a contravention of s.245AR(1) of the Act. Accordingly, the requirements of r.5.19(3)(a)(i) are met.
The application for approval identifies Mr Orlando La Torre Labajos who according to Department records, was granted a subclass 457 Visa on 11 November 2013, on the basis of satisfying cl.457.223(4) of Schedule 2. Accordingly, the requirements of r.5.19(3)(a)(ii) are met.
The occupation identified in the application is Program or Project Administrator (ANZSCO 511112). The Tribunal is satisfied based on the oral evidence provided by the applicant and the nominee and Department records, that the occupation identified is the same occupation as that carried out by the nominee as the holder of a subclass 457 Visa. The Tribunal is also satisfied that this occupation carries the same four digit code as the occupation carried out by the nominee whilst he held the Subclass 457 Visa. Accordingly, the requirements of r.5.19(3)(a)(iii) are met.
In support for the need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control, the Tribunal accepts the evidence provided by the applicant in the form of a supporting statement dated 21 May 2021 and the oral evidence provided at the hearing.
The applicant is a large organisation with multiple million-dollar contracts to provide facility and management services of major buildings located in Australian capital cities CBD’s. The nominee is currently is responsible for the administration of building management services for a newly refurbished building in George Street Sydney. The increase in high premium and multimillion-dollar contracts has resulted in the need for the applicant to employ experienced Project Administrators to manage the transitional start-up and integration of facility management services in newly refurbished and built buildings in addition to administering blue chip accounts. The position is a long-standing position within the organisation structure and has been occupied by the nominee since 2013. Accordingly, the Tribunal is satisfied the requirement of r.5.19(3)(a)(iv) is met.
As the criteria in r.5.19(3)(a)(i), r.5.19(3)(a)(ii), r.5.19(3)(a)(iii) and r.5.19(3)(a)(iv) are satisfied, accordingly the requirements in r.5.19(3)(a) are met.
Status of the nominator: r.5.19(3)(b)
Regulation 5.19(3)(b) requires the nominator to be or have been the relevant standard business sponsor who is actively and lawfully operating a business in Australia. In addition, the nominator, as that standard business sponsor, must not have met certain criteria relating to the operation of a business overseas, in the most recent sponsorship approval.
The Department’s records confirm the applicant was granted the most recent business sponsorship in the period 22 October 2018 to 22 October 2023.
The applicant has provided to the Tribunal copies of BAS returns and financial records, recording the business has income from sales and has paid wages and withheld tax. The business’s financial statements confirm that the business derives income from the operation of a cleaning and facility management business. ASIC records before the Tribunal confirm that the business name is registered.
Based on ASIC information, financial documents, payroll records and the applicant’s oral evidence, the Tribunal is satisfied that the nominator is actively and lawfully operating a business in Australia and did not, meet regulation 1.20DA or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor.
Given the above, the requirements in r.5.19(3)(b) are met.
Previous employment of the nominee: r.5.19(3)(c)
Broadly speaking, to meet the requirement in r.5.19(3)(c), either:
· the nominee must have been employed full time in Australia in the position for which he or she holds a Subclass 457 visa for at least 2 of the 3 years preceding the nomination application; or
· the nominee holds a Subclass 457 visa on the basis that s/he was identified in a nomination of a specified occupation for that visa, the nominator nominated the occupation, and the nominee has been employed in that occupation for at least 2 years in the 3 years immediately before the application.
Evidence before the Tribunal shows that the nominee was granted a subclass 457 Visa on 11 November 2013 and has continued to be employed by the applicant on a full-time basis in the occupation of Program or Project Administrator (ANZSCO 511112) since. The applicant has provided copies of the nominee’s ATO PAYG summaries, NOA’s, bank statements and payroll records confirming that the nominee, during the term of his employment with the applicant, has been paid the nominated full-time salary of $53,900 per annum. The applicant has also provided a copy of the nominee’s letter of offer (contract of employment) dated 15 August 2013.
Based on this evidence, the Tribunal is satisfied the nominee has been employed in a full-time capacity by the applicant as a Project Administrator since November 2013 whilst holding a Subclass 457 visa. The Tribunal is satisfied that the nominee has been employed full-time in the position in Australia as the holder of a Subclass 457 Visa for at least two years in the three-year period immediately before this nomination application was made. The requirements in r.5.19(3)( c)(i) have therefore been met.
Given the above findings, the requirement in r.5.19(3)(c) is met.
Future employment of the visa holder: r.5.19(3)(d)
Regulation 5.19(3)(d) only applies to certain nominees (those described in r.5.19(3)(c)(i)). For this class of person, the Regulations require that the nominee will be employed on a full time basis for at least 2 years on terms that do not expressly preclude the possibility of an extension.
The Tribunal notes that the occupation, for which the nominee held the Subclass 457 Visa, is that of Program or Project Administrator (ANZSCO 511112). As the occupation is not one of those specified in the relevant instrument for the purposes of r.5.19(3) (c )(ii), the nominee is not a person described in r.5.19(3) (c )(ii) and the applicant is therefore not exempt from having to satisfy the requirement in r.5.19(3)(d). As the nominee is a person described in r.5.19(3)(c)(i), the applicant must satisfy the requirements of r.5.19(3)(d).
In considering whether the business has the financial capacity to pay the nominee, the nominated full time salary of $53,900 per annum for at least two years, the Tribunal has taken into consideration evidence before it including the applicant’s most recent financial statements, documents submitted to the ATO and information which show the applicant has met payroll and operating costs.
The Tribunal has also taken into consideration evidence before the Tribunal to support that the nominee has been continuously employed full time by the applicant since 2013. The nominee’s bank account statements and PAYG’s support the nominee has received regular salary payments in excess of the nominated salary amount and employer superannuation contributions have been paid.
The Tribunal notes that the applicant’s financial statements show that the business has reported substantial revenue with proportionally aligned profit. In 2019/20 financial year the business reported revenue in excess of $166 million, net equity in excess of $15 million and cash at bank exceeding $10 million. The Tribunal is satisfied that the financial evidence before it, supports that the applicant’s revenue can sustain the ongoing employment of the nominee.
At the hearing the Tribunal discussed with the applicant the impact of the COVID -19 pandemic on the business. The applicant told the Tribunal that revenue did not grow at the predicted rate due to reduced services attributable to reduced occupancy of CBD managed facilities as people worked from home. The business however, gained work in regional areas which compensated for the reduced revenue from City CBD sites. The Applicant told the Tribunal that the largest impact has been on staffing numbers as the company is reliant upon student workers and with the closure of international borders, they are struggling to fill casual cleaning positions.
The Tribunal additionally notes the Accountant’s notes to the 30 June 2020 consolidated financial statements which states: ‘ The coronavirus disease 2019 (COVID-19) outbreak occurred subsequent to the group's period end. In the current environment it is challenging to predict with certainty the expected impact of COVID-19 on the results of the group for the period ending 30 June 2021. However, the directors have concluded that there is no impact from COVID-19 on the group's financial statements for the period ended 30 June 2020.’
The Tribunal has afforded consideration to the financial evidence before it and is satisfied the applicant has the financial capacity to pay the nominee a full-time salary of $53,900 per annum and maintain the employment of the nominee on a full time basis for two years.
Accordingly, the requirement in r.5.19(3)(d)(i) is met.
The Tribunal has had regard to the letter of offer (contract of employment) signed and dated 15 August 2013. The contract sets out the terms and conditions of employment and indicate that the period of employment is ongoing. The contract stipulates the base salary is $53,900 per annum exclusive of superannuation with hours of work 38 per week. There is no term excluding an extension of the contractual engagement.
The Tribunal is satisfied based on the contract of employment signed and dated 15 August 2013 and other material before it, that the nominee will be employed on a full-time basis for at least two years on terms that do not exclude the possibility of extending the period of employment.
Accordingly, the requirement in r.5.19(3) (d) (ii) is met.
As the criteria in both r.5.19(3)(d)(i) and (ii) are satisfied, accordingly the requirements in r.5.19(3)(d) are met.
No less favourable terms and conditions of employment: r.5.19(3)(e)
Regulation 5.19(3)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The contract of employment dated 15 August 2013, sets out the nominee’s terms and conditions of employment and indicates that the nominee’s base salary is $53,900 per annum, exclusive of superannuation with hours of work 38 hours per week. The nominee’s leave entitlements include annual, long service and personal/carer’s leave.
The Tribunal has received payslips, ATO PAYG summaries, NOA’s and bank statements confirming that the nominee since commencing full time employment with the applicant in November 2013, has been paid in excess of the nominated salary amount of $53,900 per annum. Superannuation statements provided to the Tribunal support that the nominee is being paid superannuation. The Tribunal is therefore satisfied based on the evidence that the nominee will be paid in accordance with the terms of employment.
The Tribunal is satisfied on the totality of the evidence before it that the terms and condition applicable to the position will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
Accordingly, the requirement in r.5.19(3)(e) is met.
Training commitments and obligations: r.5.19(3)(f)
Regulation 5.19(3)(f) requires the applicant to have fulfilled any commitments made relating to meeting training requirements, and complied with applicable obligations relating to training requirements, during the period of the applicant’s most recent sponsorship approval. These requirements may be disregarded if it is reasonable to do so.
The Department’s records confirm the applicant was granted the most recent business sponsorship in the period 22 October 2018 to 22 October 2023.
From 18 March 2018, a number of criteria relating to approval as a standard business sponsorship are no longer applicable even in relation to applications for approval made prior to that date. These were:[1]
·if the applicant is lawfully operating a business in Australia, and has traded in Australia for 12 months or more - the applicant meets the benchmarks for the training of Australian citizens and Australian permanent residents specified in an instrument in writing (r.2.59(d));
·if the applicant is lawfully operating a business in Australia, and has traded in Australia for less than 12 months - the applicant has an auditable plan to meet the benchmarks specified in the written instrument (r.2.59(e));
·if the applicant has previously been a standard business sponsor, either the applicant fulfilled any commitments and complied with applicable obligations relating to training requirements, or it is reasonable to disregard that requirement (r.2.59(j)).
[1] r.2.59(d), (e), and (j) were repealed by F2018L00262, and specified to no longer apply to applications for approval as a standard business sponsor made, but not finally determined before 18 March 2018 (see clause 6704(2) of Schedule 13 of the Regulations).

For subclass 482 nomination applications lodged on or after 12 August 2018, sponsors (or individuals who have applied to become a standard business sponsor or a labour agreement sponsor) must pay the applicable nomination training contribution charge (referred to as a contribution to the SAF or the ‘SAF levy’). The nomination training contribution charge is payable in full at the time of lodging a nomination application. The payment of a SAF levy replaces the training benchmark requirements and obligations relating to training requirements for approval as a standard business sponsor.
The Tribunal finds that as the applicant’s most recent sponsorship approval as a standard business sponsor was on 22 October 2018 and because this approval was not subject to training requirements and obligations, the requirements for the applicant to have met them for the purposes of satisfying r.5.19(3)(f), are no longer applicable.
Accordingly, the requirement in r.5.19(3)(f) is met.
No adverse information known to Immigration: r.5.19(3)(g)
Regulation 5.19(3)(g) 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) .
ADVERSE INFORMATION – Invitation to comment
In accordance with s.359AA of the Act, the Tribunal put to the applicant information before the Tribunal that suggests there is adverse information known to the Department about the applicant. The Tribunal explained that under s.359AA of the Act, the Tribunal is required to invite the applicant to comment on or respond to certain information which the Tribunal considers would, subject to the applicant’s comment or response, be the reason, or part of the reason, for affirming that decision under review.
The Tribunal told the applicant particulars of the information that being Department records note the following;
·On 21 January 2021 and 17 February 2021, the Department received allegations that the applicant is employing over 40 students some are working up to 40 to 50 hours per week.
·On 15 June 2020 the Department recorded that there were allegations regarding ‘illegal work’.
·In relation to the nominee (Mr Labajos) allegations include that the nominee is in a contrived relationship and is living with his genuine partner and not the dependant applicant and that the nominee provided false documents to the Department with his visa application.
The Tribunal confirmed with the applicant that it must be satisfied under r.5.19 (3) (g) 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;
The Tribunal told the applicant that this information is relevant, because it suggests that there is adverse information known to Immigration about the nominator or a person associated with the nominator and that at the time of the hearing there was no information currently before the Tribunal to suggest it is reasonable to disregard this adverse information. If the Tribunal relies on this information, it may not be satisfied the applicant meets the requirements of r.5.19 (3) (g) and as such the Tribunal may then find that the applicant does not meet the requirements for approval of the application and the decision under review may be affirmed.
The Tribunal invited the applicant to comment on this information. The applicant told the Tribunal that he was not aware of the allegations and requested the opportunity to respond in writing.
In a written submission dated 21 May 2021, the applicant addressed the adverse information put to it at the hearing on 11 May 2021. The applicant responded as follows:
‘Dimeo is not in a position to respond to these unsubstantiated allegations without receiving particulars of the facts on which the allegations are based.
However, Dimeo can confirm that it does have robust processes and systems in place to ensure all of its employees are employed in accordance with their visas and that Dimeo complies with the National Employment Standards and any requirements under applicable modern awards. These processes include, but are not limited to:
a)Identification checks – Passport or photo ID
b)Right to work – sighting current visa and VEVO check
c)References
d)National Police check – as required by clients
e)Signing of employment contracts that accord with visa requirements and National Employment Standards
f)Providing all employees with Dimeo’s Employee Responsibility Induction Sheet (see page 29, Appendix 9)
g)A monthly payroll audit (see below)
h)In addition to the payroll audit, a quarterly email to all Dimeo staff, regardless of their visa status, to remind them of student visa conditions and the need to inform Dimeo immediately of any change to visa status, see page 30, Appendix 10.
No employee is rostered by Dimeo to work more than Dimeo understands they are allowed under their respective visa.
It is noted that there is not always a restriction to 20 hours of work per week for holders of student visas (for example, more work is permitted during study breaks or for students who have permission from the Department, which may be given for various reasons, such as the worker having a partner enrolled in post-graduate study). The mere fact that one or more students worked, say, 40 hours in a given week, therefore does not amount to a breach of any requirement.
Dimeo also trains all its managers in understanding and complying with visa requirements, see page 31, Appendix 11 Dimeo’s Student Visa Work Entitlements toolbox training.
In addition to the above, Dimeo's payroll and compliance team complete a monthly audit of hours worked by all staff against their visa conditions. Any staff working more than Dimeo understands they are permitted have to explain to the compliance manager why they are allowed to work these hours, by completing the letter they are sent, see page 32, Appendix 12. Typically, this is due to them being on a study break or their partner starting a Master's degree at university.
It is noted that the dates mentioned in the unsubstantiated allegations against Dimeo (21^st January 2021 and 17^th February 2021) would fall into the main summer University and tertiary education vacation period. So, without knowing the specifics around the allegations, Dimeo suspects this could be the reason that an uninformed person may have made such an allegation and one which Dimeo denies due to the processes Dimeo has in place, as described above.
Dimeo believes it has taken and continues to take all reasonable steps to avoid any breach of the current working restrictions of its staff and therefore is confident there is no substance to the allegations made. Dimeo is of course willing to further investigate any specific claims should proper particulars be made available.
Illegal work
Dimeo is unable to respond to this allegation without proper particulars. It is not clear whether or not the alleged basis of illegality relates to breach of visa conditions. To the extent it does, the above comments apply. To the extent some other illegality is claimed, Dimeo has no knowledge but is prepared to fully investigate and respond following receipt of full particulars.
ALLEGATION REGARDING MR. LABAJOS' RELATIONSHIP STATUS
Currently living apart from the partner with whom he is applying for the visa
Dimeo has no knowledge of Mr. Labajos' personal living arrangements.
Dimeo understands that at the time of Mr. Labajos' nomination by Dimeo his status and relationship were as declared in his visa application. Dimeo has not been made aware of any changes to this.
PROVISION OF A FRAUDULENT MARRIAGE CERTIFICATE
Apart from Dimeo sponsoring Mr. Labajos, Dimeo was not involved in the preparation of the subclass 186 visa application which included the alleged fraudulent marriage certificate. Dimeo at no point viewed the marriage certificate provided to the Department and is therefore not in a position to make further comment on this matter.’[2]
[2] Transcribed as prepared and submitted by the applicant
The Tribunal has considered whether these allegations fall within the definition of ‘adverse information’. There is no information currently before the Tribunal to show that the Department undertook investigative action. Therefore, the Tribunal does not consider these allegations to be adverse information as per the meaning given in rr.1.13A and 1.13B.
However, there is additional evidence before the Tribunal regarding the applicant that may be considered adverse. The information relates to the applicant being barred as a sponsor for a period of three months and being issued an infringement notice of $12,600.
In submissions to the Tribunal dated 25 March 2021, the applicant provided a copy of the Tribunal’s decision in matter AAT case reference 1732053 in which the Tribunal addressed adverse information known to Immigration regarding the applicant.
At the hearing and subsequent submission dated 21 May 2021, the applicant told the Tribunal 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 nominee). The applicant told the Tribunal that the pay discrepancy had arisen through a clerical error following the nominee’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.
The Tribunal has considered the applicant’s evidence and notes based on records from the Department’s files and information provided by the applicant to the Tribunal, that on the 14 August 2019 the applicant was issued an infringement notice by ABF for breach of regulation 2.79. On 16 September 2019, the applicant was barred from sponsoring more people for three months (from 16 September 2019 until 16 December 2019), as it was found the applicant failed to satisfy sponsorship obligations, specifically regulations 2.79 and 2.86.
The Tribunal finds that this sponsorship bar and the issuing of an Infringement Notice, falls within the definition of adverse information as the applicant being the nominator (1.13A(1)(b)), has been subject to an administrative action (1.13A(1)(f)) relating to Immigration (1.13A(2)(b)) that has occurred within the previous 3 years.
It follows that there is adverse information known to Immigration about the nominator or a person associated with the nominator. The applicant therefore does not satisfy the requirements of r.5.19(3)(g)(i).
As the Tribunal has found that adverse information is known to Immigration about the nominator it must consider whether it is reasonable to disregard this information.
Under Departmental policy, factors which may be taken into account in deciding whether it is reasonable to disregard the adverse information include but are not limited to:
·the nature of the adverse information
·how the adverse information arose, including the credibility of the source of the adverse information
·in the case of an alleged contravention of a law, whether the allegations have been substantiated or not
·whether the adverse information arose recently or a long time ago whether the applicant has taken any steps to ensure the circumstances which led to the adverse information did not recur
·information about relevant findings made by a competent authority in relation to the
·adverse information, and the significance attached by the competent authority to the adverse information.
Based on the evidence before it and the oral evidence provided at the hearing, the Tribunal acknowledges that the action taken by the Department was in relation to finding the applicant breached their sponsorship obligations concerning an underpayment of a nominated salary amount.
Evidence before the Tribunal supports that the applicant took steps to rectify the breach immediately upon it being brought to their attention.
The applicant has provided a detailed submission and supporting documentation to the Tribunal including a submission to Australian Border Force dated 3 September 2019 and written policy titled “DIMEO Employee Sponsorship Policy and Procedures”. The Tribunal has considered this documentation and evidence provided at the hearing by the applicant in regard to the adverse information and notes the following:
The applicant was subject to a three-month bar. On 16 September 2019, Australian Border Force issued a Notice of Decision to the applicant. The decision under section 140M(1) of the Migration Act 1958, is a bar for a period of three months from sponsoring more people under the terms of the approved standard business sponsorship and from sponsoring more people under the terms of the approved temporary activities sponsorship.
The applicant told the Tribunal that the underpayment was identified when the Department conducted an audit. The underpayment occurred after the nominee had requested to reduce his own hours. The employee’s supervisor permitted the reduced hours but did not inform the administrative staff and hence the applicant was not aware of the implications to the visa sponsorship. Immediately when the matter was raised by the Department the applicant took corrective action to rectify the breach including the payment of outstanding monies due to the nominee.
The Department during the audit, also identified that two sponsored employees (including the nominee who was found to be underpaid) were not working in their nominated positions. The applicant told the Tribunal that the employees were working in their respective nominated positions and that the issue had resulted due to the word “cleaning” appearing on their payslips which refers to the job sector and not the actual position. Immediate steps were taken by the applicant to rectify this matter with a review undertaken of the applicant’s payroll system and updates implemented to ensure the wording used on payslips reflects accurately the employee’s position.
The Tribunal notes the applicant’s evidence that they have sought to mitigate the contravention by taking action including, undertaking payroll and administrative reviews of their sponsored employees to ensure the applicant is compliant with sponsorship obligations, updating and modifying payroll systems and the development and implementation of a visa sponsorship management policy.
Based on the evidence before it, including the oral evidence provided at the hearing, the Tribunal accepts that the sponsor did not deliberately attempt to underpay the employees and that the applicant has demonstrated its commitment to the employment of sponsored employees, through the implementation of preventative measures to ensure no further breaches occur and that the applicant is compliant with its sponsorship obligations.
The Tribunal has considered the information before it in regard to the action taken by Australian Border Force in barring the applicant under 140M(1) for a period of three months (effective from 16 September 2019) and has given weighting to the nature of the adverse information, the circumstances contributing to the Department’s decision and the subsequent action taken by the applicant to rectify the matter.
Based on the information before it, the Tribunal finds that the underpayments were not intentional and that the applicant cooperated with the Department during the monitoring process, has paid the infringement notice and undertook immediate action to rectify the underpayments.
The Tribunal has further placed weighting on the applicant’s history of sponsorship and notes Department records, which show this is first sanction imposed by the Department against the applicant during the applicant’s history of sponsorship approval. Department records show that the applicant paid the Infringement Notice on 6 September 2019.
The Tribunal therefore finds on the information before it, that the applicant did not intend to underpay the sponsored employees and has demonstrated a commitment to ensure its employees are valued and remunerated in accordance with their sponsorship and legislative responsibilities as an employer. In consideration of the circumstances which contributed to the Department’s actions, full disclosure by the applicant prior to and at the hearing, of the adverse information and action taken by the applicant to rectify the pay anomaly, the Tribunal finds in this instance it is reasonable to disregard adverse information about the nominator. Accordingly, the Tribunal is satisfied it is reasonable to disregard the information and therefore the requirement in r.5.19(3)(g) is met.
Satisfactory compliance with workplace relations laws: r.5.19(3)(h)
Regulation 5.19(3)(h) requires the applicant to have 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.
At the hearing Mr Gifford advised the Tribunal that the applicant had been audited by the Fair Work Ombudsman in November 2019. During the audit the applicant submitted over 35,000 documents to the Fair Work Ombudsman. After reviewing the documentation, the Fair Work Ombudsman did not identify underpayments to employee’s or any other breach by the applicant of National Employment Standards. However, an issue was identified regarding how the penalty rates were recorded on employee’s pay slips. The applicant recorded the dollar hourly base rate plus the multiplier required to achieve the total rate on the pay slips.

The Fair Work Ombudsman advised this was incorrect and that the applicant should have represented the final dollar hourly rate after allowing for the multiplier effect. The applicant stated that this had no impact on the employee’s salary payments and required purely an administrative and formatting change to the pay slip. The applicant was issued an infringement notice for contravention of Subsection 536(2) of the Fair Work Act 2009: – pay slip not in prescribed form and/or not containing prescribed information. A penalty of $6,300 was imposed.
On 30 April 2020 the Fair Work Ombudsman advised the applicant via email that once the infringement was paid that no further action would be taken in relation to this matter. The applicant has advised that to date no subsequent communication has been received by the Fair Work Ombudsman.
The Tribunal has considered the action taken by the Fair Work Ombudsman and notes evidence before the Tribunal that the Fair Work Ombudsman was satisfied that the applicant had taken appropriate remedial action to remedy the contravention and that no further action would be taken by the Fair Work Ombudsman. The Tribunal therefore on balance is satisfied that the nominator has a satisfactory record of compliance with the relevant Commonwealth and State workplace relations laws.
Accordingly, the requirement in r.5.19(3)(h) is met.
Genuine need to employ nominee: r.5.19(3)(i)
Regulation 5.19(3)(i) requires that there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.
The delegate refused the application on the basis the nomination did not provide sufficient evidence to demonstrate that there is a genuine need to employ the nominee as a paid employee to work in the position under the nominator’s (the applicant) direct control.
The Tribunal has formed a different view and accepts the evidence presented by the applicant attesting to the genuine need to employ the nominee as a paid employee, to work in the position under the nominator’s direct control. The Tribunal notes that a more comprehensive suite of evidence was presented to it than was given to the delegate in the original application and that the Tribunal has had the opportunity to discuss with the applicant at the hearing, the genuine need to employ a paid employee to work in the position.
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. At the hearing the applicant told the Tribunal that the business holds multiple multimillion-dollar contracts with blue chip clients to manage and provide facility and management services of major buildings located throughout Australian capital cities CBD’s.
The nominee is currently is responsible for the administration of building management contractual services for a newly refurbished building in George Street Sydney. The increase in high premium and multimillion-dollar contracts has resulted in the need for the applicant to employ experienced Project Administrators to manage the transitional start-up and integration of facility management services in newly refurbished and built buildings in addition to administering blue chip accounts. The position is a long-standing position within the organisation structure and has been occupied by the nominee since 2013. Accordingly, the Tribunal is satisfied there is a genuine need for the nominator to employ the nominee as a paid employee to work in the position under the nominator’s direct control and accordingly the requirement in r.5.19(3)(i) is met.
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 McNamara
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval 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.
Temporary Residence Transition nomination
(3)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 person who holds a Subclass 457 … visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and
(iii)     identifies an occupation, in relation to the position, that:
(A)is listed in ANZSCO; and
(B)has the same 4-digit occupation unit group code as the occupation carried out by the holder of the Subclass 457 … visa; and
(iv)    identifies a need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control; and
(b)the nominator:
(i)       is, or was, the standard business sponsor who last identified the holder of the Subclass 457 … visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and
(ii)      is actively and lawfully operating a business in Australia; and
(iii)     did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and
(c)either:
(i)       both of the following apply:
(A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 …visa identified in subparagraph (a) (ii) has:
(I)held one or more Subclass 457 visas for a total period of at least 2 years; and
(II)been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);
(B)the employment in the position has been full-time, and undertaken in Australia; or
(ii)      all of the following apply:
(A)the person holds the Subclass 457 … visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);
(B)the nominator nominated the occupation;
(C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 … visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and
(d)for a person to whom subparagraph (c)(i) applies:
(i)       the person will be employed on a full-time basis in the position for at least 2 years; and
(ii)      the terms and conditions of the person’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)       the nominator:
(A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and
(B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or
(ii)      it is reasonable to disregard subparagraph (i); and
Note Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that date.
(g)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
(h)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
(i)there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.

[2021] AATA 1887

2 June 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Remedies

Natural Justice