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

This matter concerned an application by Dimeo Cleaning Services (Aust) Pty Ltd ATF The DCS Trust for approval of a nominated position under the Temporary Residence Transition nomination stream. The applicant sought approval for the nomination of Mr Santiago Alejandro Andrade Mayorca as a Facilities Manager. The core of the dispute revolved around whether the applicant met all the requirements stipulated in regulation 5.19(3) of the Migration Regulations 1994, particularly in light of adverse information that had come to the attention of the Department of Home Affairs.

The legal issues before the Tribunal were whether the applicant had satisfied all the mandatory requirements for the approval of the nomination under regulation 5.19(3). Specifically, the Tribunal was required to determine if the applicant had met the criteria relating to the application form and fee, the nominee's visa status, the occupation nominated, the nominator's business operations, the nominee's employment history, the proposed terms and conditions of employment, training commitments, and crucially, whether there was any adverse information known to Immigration about the nominator or a person associated with the nominator, and if so, whether it was reasonable to disregard such information.

The Tribunal found that the application itself met the formal requirements of regulation 5.19(3)(a). However, the primary focus of the Tribunal's reasoning concerned regulation 5.19(3)(g), which addresses adverse information. The Tribunal acknowledged that the applicant had received an infringement notice from the Australian Border Force for underpayment of wages and had been subject to a three-month sponsorship bar. The applicant provided evidence that the underpayment was due to a clerical error following a reduction in the employee's shifts and that the penalty had been paid. The Tribunal considered this information and concluded that it was reasonable to disregard the adverse information, noting the applicant's disclosure, the unintentional nature of the breach, and the corrective action taken. Consequently, the Tribunal determined that the applicant met the requirements of regulation 5.19(3).

The Tribunal set aside the decision under review and substituted a decision approving the nomination.