Doan (Migration)

[2019] AATA 4275

Doan (Migration) [2019] AATA 4275 (23 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Manh Long Doan

CASE NUMBER:  1830249

HOME AFFAIRS REFERENCE(S):           BCC2017/1910053

MEMBER:Mary Sheargold

DATE:23 August 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for an Employer Nomination (Permanent) (Class EN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

·cl.186.223(3A)(b) of Schedule 2 to the Regulations.

Statement made on 23 August 2019 at 1:05pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Café or Restaurant Manager – nominator was barred from sponsoring more individuals – immediate steps had been taken to correct the breaches – expiry of the sponsorship bar – disregard the adverse information – decision under review remitted

LEGISLATION
Migration Act 1958, s 65, 140
Migration Regulations 1994, rr 1.13, 2.79, 2.82, 2.86, Schedule 2, cl 186.223

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 on 11 October 2018 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 30 May 2017. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.

4. In the present case, the applicant is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Café or Restaurant Manager (ANZSCO 141111).

5. The delegate refused to grant the visa because the applicant did not meet cl.186.223(3A)(b) of Schedule 2 to the Regulations because there was adverse information known to Immigration about the person who made the nomination and that it was not reasonable to disregard that information.

6. The applicant appeared before the Tribunal on 23 August 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Qiaolan (Ashlee) Duan, a shareholder of the nominating employer, Golden We Australia Pty Ltd.

7. The applicant was represented in relation to the review by his 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 it is reasonable to disregard the adverse information known to Immigration about the person who made the nomination.

   Nomination of a position

10. Clause 186.223 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 that was required to be 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 r.1.13A and r.1.13B); or it is reasonable to disregard any such information

    ·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. On 23 July 2018, Golden We Australia Pty Ltd, the nominating employer, was sanctioned under s.140M(1) of the Act for failing to abide by its sponsorship obligations, and was barred from sponsoring more individuals for 12 months, until 23 July 2019. Golden We Australia Pty Ltd was also issued with a fine for $6,300.

13. The sanction and fine were issued in relation to three separate breaches of Golden We Australia’s Pty Ltd’s sponsorship obligations as follows:

    ·regulation 2.79: obligation to ensure equivalent terms and conditions of employment.  Golden We Australia Pty Ltd was found to have underpaid the applicant;

    ·regulation 2.82: obligation to keep records.  Golden We Australia Pty Ltd was found not to have kept records that were capable of being verified by an independent person; and

    ·regulation 2.86: obligation to ensure primary sponsored person works or participates in nominated occupation, program or activity.  Golden We Australia Pty Ltd was found to have breached this obligation by requiring the applicant to perform some duties at the front office desk in addition to his duties as Restaurant Manager.

14. The Tribunal notes that Golden We Australia Pty Ltd does not dispute that it breached the obligations as described, but notes shareholder Qiaolan (Ashlee) Duan’s comments at hearing and in her statutory declaration dated 17 May 2019 that the breaches occurred as the result of inadvertent mistakes. The Tribunal notes Ms Duan’s genuine contrition for the situation Golden We Australia Pty Ltd found itself in, and for its impact on the applicant’s visa nomination. The Tribunal finds that the sanction imposed on Golden We Australia Pty Ltd under s.140M of the Act constitutes ‘adverse information’ within the meaning of r.1.13A of the Regulations.

15. In submissions made to the Tribunal dated 31 August 2018, the applicant’s representative argues that Departmental policy describes circumstances in which it may be reasonable to disregard adverse information.  The representative notes that, relevant to this application, policy notes circumstances including:

    ·where the sponsor has been barred for a shorter period by the ABF (i.e. less than 2 years) and there is no evidence that they have been non-compliant since the expiry of the bar; and

    ·where the sponsor has taken steps to negate the implications of relevant conduct or practices, and has developed practices and procedures to ensure the relevant conduct is not repeated.

    The representative notes that the sanction imposed by ABF was a 12 month ban, less than 2 years, and that before the sanction was imposed, the sponsor had rectified the breaches identified by ABF and had taken a number of measures to address the issues that had given rise to the breaches in the first place.

16. At the hearing, the applicant gave evidence that since the time of the ABF investigation into the nominating employer’s business, he works exclusively as the Restaurant Manager.  The applicant was frank and candid in his evidence and admitted that, prior to the investigation, he would work at the front reception desk when another staff member had called in sick or there was otherwise a need for additional support, and that it was the culture of the hospitality industry for people to step up and help across a small business to get the job done. 

17. The applicant told the Tribunal that he had given the ABF investigators an honest description of his daily tasks, and admitted that when they had arrived at the nominating employer’s business, he had been making coffee.  He explained to the Tribunal that he was the only person working that day who was able to operate the coffee machine.  The applicant told the Tribunal that while he did tell the ABF investigators that he engaged in duties at the front reception desk, that this was not a daily occurrence.  The Tribunal accepts the applicant’s evidence.

18. Ms Duan told the Tribunal that Golden We Australia Pty Ltd admitted to the breaches of its sponsorship obligations, and that the business had taken immediate steps to rectify the issues identified.  Ms Duan told the Tribunal that Golden We Australia Pty Ltd immediately paid the $6,300 fine imposed and did not appeal against the sponsorship bar because (a) it agreed that it had breached the obligations as described, and (b) it did not wish to drag out the process of resolving the issue because they employ a number of temporary visa holders and they did not wish for the sponsorship bar to impact on those staff members and their capacity to continue working for Golden We Australia Pty Ltd.

19. The Tribunal notes that Ms Duan gave a full and frank account of her recollection of the ABF investigation and the issues that had arisen, and finds her evidence to be credible.  Ms Duan told the Tribunal that Golden We Australia Pty Ltd went through a period of rapid growth from 2015 to 2018, and that it lacked the resources and time required to successfully manage certain aspects of the business, especially its risks and obligations.

20. Ms Duan told the Tribunal that Golden We Australia Pty Ltd had employed a full time human resources manager in November 2017, and that this employee had conducted a thorough historical investigation of wage payments, and had identified errors and ensured all staff were backpaid as required.  Ms Duan told the Tribunal that the HR manager now ensured the staff were paid at the appropriate rate according to the relevant award, and showed the Tribunal evidence of emails sent by the HR manager to the staff explaining their entitlements and relevant pay rises when the award was changed.

21. Ms Duan told the Tribunal that the directors and shareholders of Golden We Australia Pty Ltd had taken significant and immediate steps to correct the breaches identified by ABF investigators, even prior to the imposition of the sponsorship bar.  The Tribunal notes the body of evidence provided by the applicant’s representative in this respect, including payslips and bank statements showing rectification of the applicant’s shortfall in wages, a current payslip showing the applicant is paid at the correct rate, updated rosters for the Waverley International Hotel staff, a letter to the applicant dated 29 June 2018 explaining a wage increase effective from 1 July 2018, executed contracts of employment for various staff at the Waverley International Hotel, bank statements for the applicant showing the deposit of correct wages to his nominated bank account, and a memo to staff dated 16 June 2018 stating that night shift would cease effective from Monday 16 July 2018.

22. After the hearing, the applicant’s representative provided the Tribunal with 4 emails sent by Ms Phaelyn Ng, the HR Manager for the nominating employer, demonstrating the in-house procedures ensuring that no errors are made in the payment of employees’ entitlements, evidence of the nominating employer’s continual review of updated workplace entitlements and obligations under the relevant award, and evidence of the nominating employer’s in-house procedure in relation to management of income tax obligations through Single Touch Payroll.

23. Ms Duan told the Tribunal that to the best of her knowledge, all issues identified by ABF had been addressed by Golden We Australia Pty Ltd and that it was compliant with its sponsorship obligations.  The Tribunal notes that the sanction imposed by the Department expired on 23 July 2019, and finds there is no evidence before the Tribunal to indicate that Golden We Australia Pty Ltd has been non-compliant since the expiry of the sponsorship bar.

24. Based on the evidence before it, the Tribunal finds it is reasonable to disregard the adverse information known to Immigration about the nominating employer.  While the Tribunal notes it is not bound by Departmental policy, it finds that it is reasonable to disregard adverse information in circumstances where the sanction imposed is less than 2 years in length, and in circumstances where the sponsor has taken steps to negate the implications of relevant conduct or practices, and has developed practices and procedures to ensure the relevant conduct is not repeated.  The Tribunal finds that the nominating employer has developed such practices and procedures.

25. Therefore, cl.186.223(3A)(b) is met.

26. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

27. The Tribunal remits the application for an Employer Nomination (Permanent) (Class EN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·cl.186.223(3A)(b) of Schedule 2 to the Regulations.

    Mary Sheargold
    Member

    
    

    ATTACHMENT A

    186.223(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 1114B(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 is still available to the applicant.

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