GOLDEN PRODUCE NOMINEES PTY LTD ATF THE PHAM NGUYEN FAMILY TRUST (Migration)

This matter concerned an application by GOLDEN PRODUCE NOMINEES PTY LTD ATF THE PHAM NGUYEN FAMILY TRUST (the nominator) for approval of a nomination under the Temporary Residence Transition stream. The applicant sought to have the decision under review set aside and a decision approving the nomination substituted. The Tribunal was required to determine whether the nominator met all the requirements for approval of the nomination as set out in regulation 5.19 of the Migration Regulations 1994.

The primary legal issue was whether the nominator had satisfied the requirements of regulation 5.19(3)(g), which mandates that there be no adverse information known to Immigration about the nominator or a person associated with the nominator, or that any such information be reasonable to disregard. The Tribunal considered the definition of "adverse information" and noted that it includes being the subject of administrative action by a competent authority for a possible contravention of the law, provided such action occurred within the last three years.

The Tribunal found that the nominator had been sanctioned under section 140M(1)(c) of the Act by the Australian Border Force for breaches of sponsorship obligations, specifically failing to keep records, provide records to the Minister, and ensure the sponsored person worked only in the nominated occupation. A six-month bar from sponsoring additional employees under the 457 visa program was imposed, along with an infringement notice. The Tribunal concluded that this administrative action constituted adverse information relevant to the nominator's suitability and had occurred within the preceding three years, thus failing to satisfy regulation 5.19(3)(g)(i).

Despite this finding, the Tribunal ultimately set aside the decision under review and substituted a decision approving the nomination.