Energetic Cleaning Services Pty Ltd (Migration)

[2017] AATA 106

Energetic Cleaning Services Pty Ltd (Migration) [2017] AATA 106 (17 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Energetic Cleaning Services Pty Ltd

CASE NUMBER:  1604794

DIBP REFERENCE(S):  BCC2015/1395667

MEMBER:Glen Cranwell

DATE:17 January 2017

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 17 January 2017 at 1:14pm

CATCHWORDS

Migration – Nomination – Temporary Residence Transition nomination stream – Adverse information – Barred from sponsoring and approval as standard business sponsor

LEGISLATION

Migration Act 1958, s 140M

Migration Regulations 1994, r 1.13A, r 5.19, r 5.19(3)(g), r 5.19(4)

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 Immigration on 17 March 2016 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 14 May 2015. 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 (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. 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).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in Temporary Residence Transition nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(g) of the Regulations.

5. Mr Scott Griffin appeared on behalf of the applicant before the Tribunal on 17 January 2017 to give evidence and present arguments.

6. The applicant was represented in relation to the review by its registered migration agent.

7. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

   No adverse information known to Immigration: r.5.19(3)(g)

9. 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.

10. Regulation r.1.13A relevantly defines ‘adverse information’ 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:

    …

    (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;

    …

    (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.

11. The applicant provided the Tribunal with a copy of the delegate’s decision.  This indicates that, on 21 January 2016, the applicant was barred until 11 March 2016 from sponsoring more people for Subclass 457 visas, and barred for 12 months from 11 March 2016 from making future applications for approval as a standard business sponsor.  It is not in dispute that this falls within the definition of adverse information set out above.

12. The applicant made the following written submissions as to why it was reasonable to disregard this information:

    Nature of the Adverse Information

    The adverse information cited in the Bar Decision was firstly directed at failures of the Nominator to ensure accurate data-entry into the Nominator's electronic accounting system, MYOB, However, this failure was accepted as being inadvertent and unintentional. Also, this failure was confined to three (3) instances of incorrect data-entry during the first year of Sponsorship of the Nominator.

    The Nominator was also cited for transferring costs to its employees for certain fees and charges relating to DIBP Application charges and Migration Agent fees. However, this alleged failure occurred at a time when the Regulations did not prohibit transfer of costs. Further, the Nominator advises that they didn't take any action to transfer or recover said costs, as prohibited by the current Regulation 2:87.

    Given the nature of the adverse information, we submit that it is reasonable to disregard it because the information amounted to minor errors in accounting, record-keeping and interpretation of sponsorship procedures. The adverse information was not reflective of the overall conduct, activities, intentions or potential for non-compliance of the Nominator.

    Rectification of Failures and Future Compliance with Sponsorship Obligations

    The Nominator made immediate rectifications to the discrepancies detected during the related monitoring activity and supplied all information and evidence requested. The Nominator also made immediate changes to its internal controls and checking procedures to ensure future adherence to its Sponsorship obligations.

    The Nominator has demonstrated that the failures to satisfy the relevant Sponsorship obligations were inadvertent and not motivated by profit or gain. The Nominator is sincerely apologetic for the identified failures and is determined to prove that they will be compliant and adhere to all Sponsorship obligations in the future,

    Given the past actions of the Nominator and the relatively low likelihood of re-occurrence of such failures, we submit that the adverse Information should be disregarded because it unduly imposes a harsh penalty on the Nominator, given that all purported Sponsorship obligation failures were unintentional.

    Given the above and the extracted submission below, we respectfully submit that the matter before the Tribunal be considered sufficient to satisfy the requirements for approval of an Employer Nomination Scheme (Subclass 186) Nomination.

13. At the hearing, the Tribunal discussed with Mr Griffin the department policy in PAM. It noted policy was not the law, but it was often appropriate for the Tribunal to have regard to the Department’s policy. The Tribunal discussed, in particular, the policy the delegate relied on, namely:

    The following are examples of circumstances that would not normally be able to satisfy relevant regulations:

    ·the nominator has been subjected to an action … under s.140M of the Act, that lapsed in the 12 month period immediately before the lodging of the nomination …

14. Mr Griffin stated that the bar has resulted in extreme hardship for an honest mistake.

15. Having regard to the above information, the Tribunal has decided in the present circumstances, the correct and preferable decision is that it is not reasonable to disregard the adverse information. In reaching that conclusion, the Tribunal has had regard to the Department’s policy that nomination applications made within 12 months of the cessation of a s.140M sanction usually are unable to meet the requirements of r.5.19(3)(g). The Tribunal is mindful of the applicant’s submissions as to how the bar arose, the rectifications made by the applicant and the consequences to the applicant. However, the bar does not lapse until 11 March 2017. The Tribunal has considered the reasons put before it as to why it is reasonable to disregard the adverse information but considers they do not outweigh that the applicant made the nomination at a time when the s.140M sanction is still in force.

16. Accordingly, the requirement in r.5.19(3)(g) is not met.

17. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(3). The applicant has not sought to satisfy the criteria in Direct Entry nomination stream, and as such has not met the requirements in r.5.19(4). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

18. The Tribunal affirms the decision under review to refuse the nomination.

    Glen Cranwell
    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

    (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

    (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.