Gemacon Pty Ltd (Migration) - [2023] AATA 549

Gemacon Pty Ltd (Migration) [2023] AATA 549 (21 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Gemacon Pty Ltd
REPRESENTATIVE:  Mrs Sonja Reusche (MARN: 1463010)
CASE NUMBER:  1917718
HOME AFFAIRS REFERENCE(S):          BCC2018/4672727
MEMBER:Terrence Baxter
DATE:21 February 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 21 February 2023 at 10:48am
TCHWORDS
MIGRATION–nomination – Temporary Residence Transition nomination stream – Vehicle Painter – it is reasonable to disregard the adverse information – genuine need to employ a paid employee –no less favourable terms and condition of employment – decision under review set aside
LEGISLATION
Migration Act 1958, ss 65, 140GB, 245AR
Migration Regulations 1994, rr 1.13, 5.19
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179
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 14 June 2019 to reject the applicant’s application for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant, Gemacon Pty Ltd, applied for approval on 24 October 2018. The applicant nominated Mr Matthew Kennett (the nominee) in the position of Vehicle Painter. The applicant operates a motor vehicle repair business under the business name Bissell’s Paint & Panel from premises situated at 33 Rene Street Noosaville, Queensland. The applicant has employed the nominee on a full-time basis for over six years.
The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition nomination stream, a Direct Entry nomination stream and a Labour Agreement stream. If the application meets the requirements for approval, then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met, then the application must be refused: reg 5.19(3)(b).
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 that the applicant’s nomination did not satisfy reg 5.19(4)(b) of the Regulations because the delegate found that there is adverse information known to Immigration about the applicant and that it was not reasonable to disregard the information.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 3 July 2019.
Mr Iain Kippen, the sole Director of the applicant, appeared before the Tribunal by video conference on 22 November 2022 to give evidence and present arguments. The hearing was a joint hearing with the application for review of a decision to refuse the visa application of the nominee. The Tribunal also received oral evidence from Gemma Surplice, the applicant’s Office Manager and from the nominee by video…

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.

Continue reading Gemacon Pty Ltd (Migration)

Details

AGLC: Gemacon Pty Ltd (Migration) [2023] AATA 549
Case: [2023] AATA 549
Decision Date: 21 February 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application by Gemacon Pty Ltd concerning a migration matter. The dispute arose from the applicant's nomination for a skilled worker visa, where the Tribunal was required to assess whether the application met specific regulatory requirements. The decision was made by Terrence Baxter.

The primary legal issues before the Tribunal were whether the application complied with the requirements of regulation 5.19(2) and regulation 5.19(4)(a) of the Migration Regulations 1994 (Cth), and whether there was any adverse information known to Immigration about the nominator, or if such information could be reasonably disregarded, as per regulation 5.19(4)(b). Regulation 5.19(2) outlines the mandatory components of a valid application, including the approved form, identification of the position, person, and occupation, and payment of relevant fees and charges. Regulation 5.19(4)(b) defines "adverse information" and "associated with" in the context of a nominator's suitability.

The Tribunal found that the applicant's submission, along with other evidence presented, satisfied the requirements of regulation 5.19(2) and therefore regulation 5.19(4)(a). Regarding regulation 5.19(4)(b), the Tribunal acknowledged that the applicant had previously been barred from being an approved sponsor for six months due to breaches of sponsorship obligations, including failure to satisfy sponsorship obligations, ensure equivalent terms and conditions of employment, and provide records to the Minister. However, the Tribunal was satisfied that this past adverse information was reasonable to disregard in the current circumstances. The Tribunal ultimately found that the application met the requirements of regulation 5.19(4)(b).

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant was registered in 2011 and has operated successfully since that time. The company’s turnover has increased by over 50% from the 2016 to the 2021 financial years. The applicant has employed the nominee in his position of Vehicle Painter since October 2016.Evidence presented after the hearing After the hearing, the applicant produced to the Tribunal the following documents: a.A submission from the applicant dated 2 December 2022.b.Evidence regarding refund of underpaid wages to two employees in March 2018.c.Further market salary evidence.d.A submission from the representative dated 13 February 2023.e.A submission from the applicant dated 13 February 2023.f.A current Pay Guide under the Vehicle Repair, Services and Retail Award issued by the Fair Work Ombudsman.Application requirements – reg 5.19(4)(a) Regulation 5.19(4)(a) requires that an application for approval be made in accordance with a number of requirements set out in reg 5.19(2). Regulation 5.19(2) requires that an application must:·be made in accordance with approved form 1395 (Internet);·identify the position;·identify a person in relation to the position;·identify an occupation in relation to the position,·identify the subclass and stream to which the nomination relates;·be accompanied by the fee mentioned in reg 5.37; and·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 s 245AR(1) of the Migration Act 1958 (Cth) (the Act). Applications made on or after 12 August 2018 must also be accompanied by any nomination training contribution charge the nominator is liable for, and identify the annual turnover for the nomination: regs 5.19(2)(fa), (fb). The liability is imposed by s 140ZM of the Act and the charge is imposed by the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), with the amount specified in the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth) (the Charges Regulations). ‘Annual turnover’ is defined in the Charges Regulations for liable persons operating a business in Australia as the total ordinary income (within the meaning of the Income Tax Assessment Act 1997 (Cth)) derived in the most recent income year (within the meaning of the Income Tax Assessment Act 1997 (Cth)) ending before the day on which the nomination application is made. In any other case, it is defined as the total income the person liable derived in the ordinary course of business in the most recent financial year ending before the day on which the nomination application is made. Further, if the subclass identified in the application is Subclass 187, the application must be made before 16 November 2019, unless the exception in reg 5.19(2A) applies. The exception applies to an identified person who is a ‘transitional 457’ or ‘transitional 482’ worker at the time of application. This means, respectively, a person who on or after 18 April 2017 held a Subclass 457 visa, and a person who on 20 March 2019 held a Subclass 482 visa in the Medium-term stream or was an applicant for a Subclass 482 visa in the Medium-term stream that was subsequently granted: reg 1.03.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Given the above findings, the Tribunal is satisfied that the application complied with the requirements in reg 5.19(2) and that reg 5.19(4)(a) is met.No adverse information known to Immigration – reg 5.19(4)(b) Regulation 5.19(4)(b) requires that either there is no adverse information known to Immigration about the nominator or a person associated with the nominator, or it is reasonable to disregard any such information. ‘Adverse information’ is defined by reg 1.13A as any adverse information relevant to the person’s suitability as an approved sponsor or a nominator. Regulation 1.13A sets out a non-exhaustive list of examples of the kinds of information which meet this definition, including information that the person:·has contravened a law of the Commonwealth, a State or a Territory; or·is under investigation, subject to disciplinary action or subject to legal proceedings in relation to a contravention of such a law; or·has been the subject of administrative action (including being issued with a warning) for a possible contravention of such a law by a Department or regulatory body that administers or enforces the law; or·has become insolvent (within the meaning of s 95A of the Corporations Act 2001 (Cth)); or·has given, or caused to be given, to the Minister, an officer, the Tribunal or an assessing authority a ‘bogus document’ (as defined in s 5(1) of the Act), or ‘information that is false or misleading in a material particular’ (as defined in reg 1.13A(4)). The term ‘associated with’ is also given a non-exhaustive definition for the purposes of this requirement, in reg 1.13B. It provides that two persons are associated with each other in a wide range of relationships and situations, including if:·they are or were spouses or de facto partners or members of the same immediate, blended or extended family, or have or had a family-like relationship, or belong or belonged to the same social group, unincorporated association or other body of persons, or have or had common friends or acquaintances; or·one is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of the other or any corporation or other body in which the other is or was involved (including as an officer, employee or member); or·a third person is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of both of them; or·they are or were related bodies corporate (within the meaning of the Corporations Act 2001 (Cth)) or;·one is or was able to exercise influence or control over the other; or·a third person is or was able to exercise influence or control over the both of them.Regulation 1.13B(2) provides that it does not matter if one of the persons mentioned has ceased to exist. The information before the Tribunal, which is known to Immigration, and which the Tribunal could consider to be adverse, is contained in a Notice of Decision of the Australian Border Force (the ABF) dated 11 April 2018, the Department’s letter to the applicant dated 15 April 2019 (the invitation to comment letter), a submission to the Department by a former representative of the applicant dated 13 May 2019, the delegate’s decision dated 14 June 2019 and the applicant’s submission dated 23 August 2022. These documents indicate that:a.On 11 April 2018, the applicant was barred from being an approved sponsor under s 140M of the Act for six months.b.The applicant was barred from being an approved sponsor due to breaches of the following sponsorship obligations:· reg 2.89 – failure to satisfy sponsorship obligation· reg 2.79 – obligation to ensure equivalent terms and conditions of employment· reg 2.83 – obligation to provide records and information to the Minister.