Greenwood Manor Pty Ltd (Migration)

[2021] AATA 5566

Greenwood Manor Pty Ltd (Migration) [2021] AATA 5566 (22 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Greenwood Manor Pty Ltd

CASE NUMBER:  1838031

HOME AFFAIRS REFERENCE(S):          BCC2018/2704393

MEMBER:Alison Mercer

DATE:22 December 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 22 December 2021 at 12:57pm

CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition nomination stream – Chef – aged care facility – adverse information – breach of sponsorship obligation – 3-month sponsorship bar – whether reasonable to disregard the information – mitigating factors – consistently cooperated with Department monitoring – unintentional breach – short duration – low end of the scale breach – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 140M, 360
Migration Regulations 1994 (Cth), rr 1.13A, 5.19

CASES
Ozzy Fortune Group Pty Ltd (Migration) [2019] AATA 735

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 12 December 2018 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).

2. The applicant, Greenwood Manor Pty Ltd, applied for approval of its nominated position of Chef on 19 July 2018. 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 stream, a Direct Entry 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).

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

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(b) of the Regulations, which required that there was no adverse information known to Immigration about the applicant or any associate, or if there were, that it was reasonable to disregard that information. The delegate noted that Departmental records indicated that the applicant was the subject of an action under s140M of the Act for failure to satisfy sponsorship obligations, resulting in a sanction being imposed on 25 August 2017 to 25 November 2017 by a delegate for the purposes of section 140M. The decision barred the sponsoring employer for 3 months from making future applications for approval as a standard business sponsor. The delegate found that the applicant had not disclosed this in relation to the present nomination, and that this constituted ‘adverse information’ under r.1.13A of the Regulations. The delegate identified a number of potentially inconsistent statements made by the applicant about the nominee in relation to whom it was alleged to have breached its sponsorship obligations (Ms Gulazar Sahin); notably, that the applicant had had her work outside her sponsored role of Chef by working on the floor of the aged care facility’s dining area to improve her English skills in 2016, despite the fact that she had been in Australia since 2007, had obtained a Diploma of Hospitality here and had obtained an overall score of 6.5 in an English test. The delegate considered that this amounted to adverse information. The delegate considered whether it was reasonable to disregard this information but concluded that it was not, as she gave greater weight to the factors leading to the Department imposing a 3 month ban in August 2017, than to the applicant’s director Brett McMahon’s assertion that the failure to disclose this ban in connection with the present nomination application was inadvertent.

5. The Tribunal received a review application on 28 December 2018, which was lodged on behalf of the applicant by its director, Mr Brett McMahon. The review application was accompanied by a copy of the delegate’s decision and an authority by which Mr McMahon appointed a registered migration agent and lawyer, Ms Sarah Loch-Wilkinson, as the applicant’s representative and authorised recipient for correspondence in relation to this matter.

6. On 30 June 2020, the applicant’s agent provided submissions indicating that the applicant had been the subject of audits related to Aged Care residential care in 2019 and had been found to be compliant.

7. On 3 July 2020, the applicant’s agent provided PAYG summary statements for 2018/19 and 2019/2020 for the nominee in this case (Guluzar Sahin, a Chef) and another nominee, Qingyang Zhao, a registered nurse (there are separate review applications for these nominees, and for the applicant’s nomination application refusal relating to Ms Zhao). Also provided were statutory declarations from the subclass 187 nominees Ms Sahin (16 July 2020) and Ms Zhao (14 July 2020) regarding their visa and employment history in Australia, as well as evidence of their visas and copies of the biodata pages of their passports. On 20 July 2020, the applicant requested priority processing for the review application by this was refused by a Tribunal officer on 21 July 2020, who did not consider that the applicant’s case fell within the priority processing guidelines.

8. On 5 August 2021, the Tribunal wrote to Mr McMahon, via the agent, to invite him, pursuant to s.359(2) of the Act, to provide current and updated information demonstrating that the applicant met all of the applicable criteria in r.5.19(4), not merely the criterion that the delegate found was not met. The Tribunal requested that the applicant provide the information by 19 August 2021.

9. On 19 August 2021, the applicant provided the following information to the Tribunal:

   ·Australian Aged Care Quality Agency (AACQA) accreditation assessments of the applicant, variously dated: February 2017, November 2017, July 2018 and February 2019;

   ·Departmental approval of the applicant as an SBS dated 11 April 2014;

   ·Department sanction decision of 25 August 2017;

   ·evidence of back payment to the applicant’s Chef, Ms Sahin (the nominee in this case), November 2018;

   ·statement from the agent that another nominee Ms Qingyang Zhao took approximately 9 months of unpaid leave due to her pregnancy and the death of her mother (dated 19 August 2021);

   ·evidence of Ms Zhao’s registration as a Nurse (expiry date 31 May 2022);

   ·position description of AM Weekend Supervisor (Ms Zhao’s position of Aged Care Nurse);

   ·contract of employment between Ms Zhao and the applicant, dated 20 December 2019;

   ·ASIC company details for the applicant and for Cheltenham Manor Pty Ltd;

   ·BAS for the applicant for July 2019 to June 2021;

   ·Financial statement for the applicant for 2019/2020;

   ·Deed of settlement of Greenwood Manor Family Trust, 29 August 1994;

   ·Details of total number of employees and gross payroll for the applicant, 2021;

   ·Current organisational chart;

   ·PAYG payment summaries and notices of assessment for Ms Sahin for 2016/17, 2017/18, 2019/2020 and 2020/2021;

   ·PAYG payment summaries and notices of assessment for Ms Zhao for 2016/17, 2017/18, and 2019/2020;

   ·Payslip for Ms Sahin dated 12 November 2018 and her bank records for period 1 October 2018 to 31 March 2019;

   ·Extracts from the Migration Regulations (rr.5.19 and 1.13A) and associated Departmental policy (Procedures Advice Manual, or PAM3);

   ·evidence of skills shortages in the aged care sector in Australia, July 2020 and June 2021; and

   ·various publications on Food Safety and Food Safety for Aged Care Facilities, including copies of the Food Standards Code, Nutrition Standards for menu items in Victorian hospitals and aged care facilities.

10. On 20 August 2021, the Tribunal received further documents, being:

    ·legal submissions; and

    ·tax records, including notice of assessment for the nominee for 2020/2021, PAYG summary statements for the nominee for 2016/17 to 2020/2021.

11. On 25 August 2021, the Tribunal received a copy of the Department’s approval of the applicant as an SBS dated 25 August 2021, valid until 25 August 2026.

12. In her submission, the applicant’s agent made the following points:

    1. We act for Greenwood Manor Pty Ltd as trustee for the Greenwood Manor Family Trust (“Greenwood Manor”) in their application for review of a decision of the Department of Home Affairs (“the Department”) refusing a Subclass 186 Employer Nomination under r. 5.19(3) of the Migration Regulations 1994 (“the Regulations”) relating to the above nominee.

    2. The application was refused by a delegate of the Minister on the basis that Greenwood Manor did not satisfy r. 5.19(4)(b)(i) of the Regulations requiring that there be no adverse information known to the Department about the nominator or a person associated with the nominator. ‘Adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B. The delegate declined to disregard the adverse information known using the discretionary power available to her under r.5.19(4)(b)(ii).

    3. On 25 August 2017, a little under a year prior to the lodgement of this application under review, the review applicant had been the subject of a decision by the Australian Border Force (“ABF”) to impose a 3-month bar on its Standard Business Sponsorship under Section 140M(2) of the Migration Act 1958 (refer to Annexure A). The Department delegate therefore refused the nomination under review on the basis that there was adverse information known about the nominator. The delegate declined to disregard the adverse information under 5.19(4)(b)(ii) considering the information provided by the nominator and some (but not all) aspects of Department policy were taken into account. No specific reasons were enunciated by the delegate as to why she declined to disregard the adverse information.

    4. With all due respect to the delegate, we submit this was not the correct and preferable decision. There were significant mitigating factors in this case outlined further below and the decision of the delegate was disproportionately harsh with no reference to several Department policy considerations which we would submit weighed in favour of the review applicant. We submit that it is reasonable to exercise the discretionary power under r 5.19(4)(b)(ii) in the present case.

    5.       The evidence provided to the Member will demonstrate that the review applicant is a family-owned and managed aged care facility with an otherwise impeccable and proven record of compliance with Commonwealth and State laws, and local council regulations (refer to Annexure B including multiple audit outcomes of the Australian Aged Care Quality Agency).  The sponsorship compliance breach identified by the ABF in August 2017, whilst regrettable, was not deliberate or calculated and was quickly rectified by the review applicant.  The review applicant has always cooperated and communicated appropriately with the ABF and the Department.  The review applicant was issued with a 3-month bar which was proportionate to the single and once-off breach of a sponsorship obligation identified by the ABF.  Subsequently refusing two permanent residency nominations for long term employees a year later we submit was not reasonable or proportionate.

    6.       Whilst the review applicant respects there is a need to protect the integrity of the employer sponsored visa programs and protect foreign workers from exploitation, we submit this must be balanced by a fair and reasonable approach to employers genuinely trying to do the right thing.  Greenwood Manor has, at no time, demonstrated a deliberate, calculated, or prolonged attempt to exploit a foreign worker which is a significant consideration under the Department policy relating to employer sanctions (see Department policy Div. 2.11-2.2 sponsorship compliance framework: circumstances to bar or cancel).  Refusing the two permanent visa nominations currently under review benefits no party, least of all the Australian community who will lose out on two committed and skilled aged care workers. We note that the occupation code of Chef is on the current Priority Skilled Migration Occupation List. The occupation of (Registered) Nurse Manager specialising in aged care is effectively a subset of the occupation of Registered Nurse (Aged Care) occupation code on the list. This is the core skill set of the Ms Zhao, she is a skilled Registered Nurse in aged care with managerial responsibilities.

    Timeline

    7.       The ABF provides in its 25 August 2017 decision, the following timeline of events.

    •Greenwood Manor Pty Ltd was approved as a Standard Business Sponsor between 11 April 2014 and 11 April 2017.

    •According to the ABF decision dated 25 August 2017, on 28 March 2017 the Department commenced monitoring of Greenwood Manor.

    •On 5 April 2017, ABF officers conducted a site visit at Greenwood Manor in Dingley, Victoria 3172.  Director Brett McMahon was interviewed, and an audit of requested records was conducted, and documents were received on 10 April 2017.

    •On 20 April 2017, the Department issued a Commencement of Monitoring letter (COML) to which Greenwood Manor duly responded on 28 April 2017 and 1 May 2017.

    •On 19 July 2017, the Department issued a Notice of Intention to Take Action (NOITTA) letter to Greenwood Manor for alleged failures to meet r 2.82 and r 2.83 of the sponsorship obligations set out in the Regulations.

    •         Greenwood Manor responded on 31 July 2017.

    •On 11 August 2017, a second NOITTA was issued alleging compliance failures under Regulation 2.86. Greenwood Manor responded to the second NOITTA in a letter dated 15 August 2017.

    •On 25 August 2017, the ABF issued a notice of decision to Greenwood Manor imposing a 3-month bar on 457 visa sponsorships.  In summary, the ABF found as follows:

    ·Regulation 2.82 – Obligation to keep records – satisfied.

    oRegulation 2.83 – Obligation to provide records and information to the Minister – satisfied.

    oRegulation 2.86 – Obligation to ensure the primary sponsored person works in the nominated occupation – not satisfied.

    Relevant legislation and policy

    12.      For the Member’s ease of reference, Annexure C provides applicable legislation and policy as at the date of application, 7 July 2018.

    13.      The submissions that follow will be directed toward the applicable Department policy considerations under 4.4.2 as to circumstances in which it may be reasonable to disregard adverse information.

    Submissions – reasonable to disregard adverse information

    14. The administrative action taken by the ABF to impose a 3-month sponsorship bar under s140M(2) of the Migration Act 1958 may constitute adverse information within the meaning of Regulation 1.13A(2)(c). Greenwood Manor submits that it would be reasonable for the decision-maker to disregard that information using the discretionary power under Regulation 5.19(4)(b)(ii).

    15.      Department policy considerations setting out when it may be reasonable to disregard adverse information in the context of deciding skilled visa nomination and sponsorship applications are divided into three categories and we will address each in turn:

    4.4.2.1 Factors that should be considered

    4.4.2.2 Circumstances in which it may be reasonable to disregard adverse information

    4.4.2.3 Circumstances in which it is unlikely to be reasonable to disregard adverse information

    16. We respect that the decision-maker is not limited to these considerations in his or her assessment of whether it is reasonable to disregard the adverse information.

    Policy 4.4.2.1. Factors that should be considered

    The nature and seriousness of the adverse information

    17.      The adverse information arose from an ABF monitoring outcome dated 25 August 2017.  The ABF decision found that the review applicant had failed to meet one of three sponsorship obligations identified in the two NOITTAs.  This identified breach related to Regulation 2.86 – the obligation to ensure the primary sponsored person works in the nominated occupation.  The nature of the identified breach was that an audit of the payroll records for sponsored employee Ms Guluzar Sahin, employed under the ANZSCO occupation code of Chef 351311, indicated that 87% of her time was spent working as a Chef and 13% of her time was recorded under a lower skilled position of “Domestic”.

    18.      In summary, the nominator’s evidence to the Department was that this short period of time performing lower-level duties by serving and clearing in the main dining room was part of the nominee’s training to upskill her into the Head Chef position, which she was appointed to in August 2017. We are instructed that the nature of catering to aged care residents requires a deeper understanding not only of the Commonwealth, State and local council compliance guidelines for aged care catering and food safety, but also of the individual needs of the residents themselves. As an example, some residents may require liquified food, and it takes skill and experience to be able to prepare that in a way that’s both aesthetically pleasing and tastes good.  A dementia patient may become agitated or aggressive over a meal, even if it’s what they requested, and demand a new one.  The Chef needs to be aware of these patients and how manage the situation when this occurs. The nominee’s chef manager at the time felt this could only be achieved by having the nominee spend some time in the resident’s dining room serving and clearing meals for the facility’s residents rather than being hidden away in the kitchen and gaining an understanding of their needs. There was the added benefit of further advancing her English language skills in the process.  Please refer to Annexure D Statement of Guluzar Sahin at paragraphs 4-6 and examples of Aged Care Food Safety compliance requirements demonstrating the complexity of this type of cooking.

    19. The ABF Officer concluded as follows in his decision:

    “I have considered the specific circumstances of the case. I accept that there may be some benefits in staff such as Ms SAHIN having exposure to other duties. I also accept how this exposure could benefit other parties in the workplace, including the Australian residents. The sponsor uses the terms ‘domestic’ and ‘kitchenhand’ interchangeably and has explained how undertaking these duties enhanced the skills required for the nominated occupation”. 

    Regulation 2.86 does allow for some secondary duties to occur, where they relate to the nominated occupation. However this is not to be undertaken at a reduced hourly rate than the rate that was approved at nomination. For this reason, the sponsor has not met the obligation set out in Regulation 2.86”.

    20.      Department policy relating to the assessment of Regulation 2.86 at the time of the ABF’s decision stated “Some work outside of the nominated occupation may be considered acceptable under policy, if the duties are related to those of the nominated occupation. However, the significant majority of work must be in the nominated occupation for regulation 2.86 to be satisfied”.

    21. The ABF Officer appeared to accept Greenwood Manor’s explanation as to why 13%of Ms Sahin’s time had been spent outside the nominated occupation, which was directly relevant to Regulation 2.86. However, the ABF officer’s decision to bar the sponsor solely based on a drop in annual earnings was potentially flawed, as it was a tenuous connection to Regulation 2.86. We submit there was in fact no sponsorship compliance obligation which expressly required sponsors to maintain the annual earnings approved on the 457-nomination approval, so the sponsor might be forgiven for not being aware of one. This significant gap in the compliance legislation was recognised and rectified by the government through subsequent legislative changes to the sponsorship obligation provisions, (see r 2.79(3)(b) of the Regulations, which today specifically states that for nominations approved after 18 March 2018 sponsors must remunerate above the annual earnings approved on the nomination. This did not previously form part of the sponsorship obligations).

    22.      Nonetheless, the review applicant has always acknowledged and accepted that the drop in the sponsored employee’s wage during the 13% of her time spent undertaking peripheral duties was not within the spirit of the 457-visa program and Regulation 2.86.  The review applicant acknowledges that their management team would have received information about the sponsorship compliance obligations on receipt of their SBS approval.

    •         Whether the adverse information arose recently or a long time ago

    •         How the adverse information arose including the credibility of the source of the information

    •         Whether the allegations have been substantiated

    23.      The adverse information arose from ABF monitoring commenced in March 2017 and finalised in August 2017. The ABF outcome related to payroll anomalies identified prior to 2017 and for a very short period.  By August 2016 the sponsored employee had ceased working the occasional shifts on the dining floor and was only working as a Chef.

    •         whether the applicant has acknowledged the issues with their previous behaviour

    24.      The review applicant acknowledged the issues with the previous non-compliance during the 2017 monitoring process and continues to do so.

    •         whether the applicant has demonstrated subsequent compliance

    25.      Annexure E contains labelled folders with independently verifiable tax documents demonstrating payment of annual earnings for the sponsored employee every financial year since the 25 August 2017 ABF decision.

    •         whether the conduct of concern is likely to recur

    26.      There was no indication whatsoever that the underpayment of wages below the 457-nominated amount which subsequently occurred was a calculated attempt to exploit the sponsored worker.  Greenwood Manor wages are determined by an Enterprise Bargaining Agreement (see pp 136-242 of the Department file), and the type of shift the employee was rostered on to determined the hourly rate. As the nominee was rostered for a short period of shifts on the catering floor, the facility’s external (outsourced) payroll officer processed her wages accordingly against the EBA.

    27.      The review applicant back paid the wages that were the subject of the ABF outcome (please find evidence of this at Annexure F including the relevant payslips and the bank account statement of Ms Sahin evidencing funds received).  Further breaches are unlikely to recur because we are instructed that:

    I.        Upon occurrence of the breach the responsibility and oversight of employment conditions of sponsored workers was escalated to the Company Director Brett McMahon.  Any changes to employment conditions for either worker must be reviewed and approved by the Director.

    II.        The management team of the facility were debriefed and educated on the business sponsorship compliance obligations following the ABF monitoring process.

    III.       The payroll records and employment conditions of any sponsored worker are reviewed on an annual basis by an immigration solicitor.

    IV.      The business has only ever sponsored the two employees that are the subject of this review. The business prefers employing Australian workers wherever possible and has no intention of sponsoring foreign workers in the future. Should this occur, an immigration solicitor would be engaged to manage the sponsorship and be retained for ongoing compliance advice.

    Information about relevant findings made by a competent authority

    28.      We submit the 3-month sponsorship bar is an indication that the ABF considered the breach to be at the lower end of the scale in terms of seriousness. Substantial sections of the ABF outcome are in favour of the nominator’s compliance, including the finding that 2 of the 3 sponsorship breaches alleged in the NOITTAs were not made out, and that Greenwood Manor was found to be compliant and always cooperated with the ABF.

    •         whether there are any compelling circumstances affecting the interests of Australia

    29.      We refer the decision-maker to recent evidence from the Department of Employment and Parliament of Australia at Annexure G demonstrating critical labour shortages in Australia across the aged care industry, as well as specifically in the occupations nominated.  This shortage is exacerbated by the current pandemic with more than 500,000 temporary migrants having left Australia since March 2020 (ref. Final Report of the Enquiry into Australia’s Skilled Migration, Parliament of the Commonwealth of Australia, August 2021, p17).

    Ms Sahin has worked for the review applicant since July 2008 and Ms Zhao since January 2012.  Since August 2017, Ms Sahin has held the position of Head Chef, demonstrating a follow through of the nominator’s stated intention to train her into this position.  We are instructed she had commenced taking on more senior duties in the kitchen a year earlier in August 2016 as the review applicant became aware that the Head Chef at Greenwood Manor would be stepping down to care for her husband with early onset dementia.  Their statements taken during the Victorian covid-19 outbreak in 2020 have been provided to the Tribunal and are compelling. We submit that the Australian community would expect that the government seek to retain these two committed aged care workers and allow them to stay in Australia.

    4.4.2.2 Circumstances in which it may be reasonable to disregard adverse information

    Circumstances in which it may generally be reasonable to disregard adverse information include but are not limited to:

    •         the applicant only received a ‘warning’ in relation to their conduct and there is no evidence that they have since been non-compliant;

    •         the applicant has been barred for a shorter period by the ABF (i.e. less than two years) and there is no evidence that they have since been non-compliant;

    •         the applicant received a more serious penalty for previous action but has:

    o        taken steps to negate the implications of relevant conduct or practices; and

    •         developed practices and procedures to ensure the relevant conduct is not repeated;

    •         the applicant has an overall record of ‘good behaviour’ but is being investigated for less serious issues, following receipt of an unsubstantiated allegation; or

    •         the persons to whom the adverse information relates have no influence over the conduct of the applicant’s partnership or association (for example, silent partner).

    31. We submit these considerations have already been addressed in our submissions above, and that they weigh in favour of the review applicant.  The ABF bar was imposed for 3 months, which is well short of the two-year period mentioned above.  Steps have been taken to negate the implications of the conduct and the review applicant has submitted evidence of good compliance.

    4.4.2.3 Circumstances in which it is unlikely to be reasonable to disregard adverse information

    Circumstances in which it is unlikely to be reasonable to disregard adverse information include, but are not limited to:

    the applicant has been charged for serious and/or repeated breaches of the Australian law in the last five years;

    32.      We submit there is no such evidence before the decision-maker.

    •         the applicant has been barred for a period of three years or more, or had their sponsorship cancelled by the ABF, in the last five years (unless the cancellation related to a change in business circumstances [e.g. restructure] rather than breaches of sponsorship obligations or the provision of false or misleading information);

    33.      This does not apply to the review applicant.

    •         the applicant is being investigated for potentially serious breaches of immigration law (e.g. payment for visa sponsorship);

    34.      This does not apply to the review applicant.

    •         the applicant failed to pay, or failed to pay in full, an infringement notice that they were issued by the Department;

    35.      This does not apply to the review applicant.

    •         the applicant has not acknowledged or declared their previous adverse conduct;

    36.      The Department and ABF records demonstrate multiple acknowledgements of the conduct in question, and an apology from the review applicant.

    •         the applicant has provided no evidence that they have corrected or made restitution for their previous adverse conduct and/or that they have taken steps to ensure that further issues do not arise;

    37.      As per Annexure F evidence of restitution shortly after the ABF outcome has been provided.

    •         the applicant is not currently a sponsor and has declared itself insolvent or is now under external administration

    38.      The review applicant continues active and lawful operation. Recent financial statements, business activity statements, an ASIC report, and trust deed have been submitted to the Tribunal with our 19 August 2021 response to documentation requested.

    39. We trust this submission and associated evidence has assisted the Member and we submit that the review applicant’s circumstances warrant an exercise of the discretionary power under r r.5.19(4)(b)(ii) to disregard the adverse information known the decision-maker.

    …

1. On 30 November 2021, the Tribunal sent an email to the applicant requesting further information; specifically, the Tribunal noted that the Presiding Member had reviewed the most recently provided material in the matter and requested confirmation that the nominee would be employed for at least 2 years. In addition, the Tribunal requested that the applicant provide Financial Statements for the business for 2020/2021 and PAYG summary statements for both nominees for 2020/2021, if possible, noting that provision of these documents might enable the Tribunal to determine the matter favourably on the papers.

2. On 3 and 6 December 2021, the Tribunal received the following from the applicant’s agent:

   ·financial statements for Greenwood Manor Family Trust for 2020/2021;

   ·letter dated 1 December 2021 from Mr McMahon attesting that the nominee in this matter remains employed by the applicant, and will be for at least another 2 years, as it is a permanent position and nothing in her contract excluded it being renewed; and

   ·letter dated 6 December 2021 from the applicant’s accountant.

3. In his letter, the applicant’s accountant makes the following points:

   …

   We have reviewed the financial position of the business as at 30 June 2021 and report the revenue was $4,961,171 inclusive of Commonwealth subsidies, with labour costs of $4,003,832. 

   The business recorded a loss of $122,721 for the 2020/21 Financial Year due to a number of COVID-19 related issues as follows:

   At the start of the pandemic in early 2020, the directors of Greenwood Manor Pty. Ltd. segregated the Manor into four separate zones.  The management of Greenwood Manor Pty Ltd. then set aside the next five resident apartments that became vacant to be used as staff rooms, PPE storage rooms and offices / bathrooms for each of the separate zones.  This was completed by July 2020 and as such these apartments were not income producing during the 2020/21 financial year, additionally each of these zones required the appropriate level of trained staff. This meant that Greenwood Manor Pty. Ltd. was overstaffed by ordinary standards (for a lesser number of residents) resulting in considerably higher labour costs (approximately $700,000).

   In addition, sadly, there were three staff members who refused to comply with any infection control procedures.  Greenwood Manor Pty. Ltd. determined that these staff had to have their employment terminated, which did result in legal action and the associated legal costs. While these measures ensured that COVID-19 did not enter into the Manor (unlike many aged care facilities all around Greenwood Manor – resulting in hundreds of deaths), it materially impacted the financial position of the Trust during 2020/21.  Once the vaccination program was completed in June 2021, the zones were gradually returned to a more normal operating pattern and the Trust has returned to a profit position in the 2021/22 financial year. 

   Based on this information, we confirm that the business has the financial capacity to support the salaries of the following sponsored employees for at least two years following approval of their permanent residency:

   Guluzar Sahin – Head Chef – base annual salary $71,834 plus superannuation

   Qingyang Zhao –Registered Nurse Manager – base salary annual $88,841 plus superannuation.

   …

4. In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to section 360(2)(a) of the Act.

5. For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant meets the general requirements for approval of the nomination set out in reg 5.19(4) and the stream specific requirements set out in reg 5.19(5) for the TRT stream, which are extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

   Application requirements – reg 5.19(4)(a)

7. 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).

8. 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) (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.

9. 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.

10. As the nomination application in this case was made on 19 July 2018, and identified a subclass 186 visa, the Tribunal is satisfied that the requirements in the above 2 paragraphs do not apply. It is further satisfied that the application met the requirements in r.5.19(2), in that it was made using the correct form, identified the position, occupation and nominee, identified the subclass and stream, and was accompanied by the prescribed fee and included the written certification that by the nominator stating that it had not engaged in conduct that constituted a contravention of s 245AR(1) of the Act in relation to the nomination.

11. 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)

12. 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.

13. ‘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)).

14. 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.

15. Regulation 1.13B(2) provides that it does not matter if one of the persons mentioned has ceased to exist.

16. As noted above, the delegate found that the applicant did not meet this criterion because the applicant was the subject of action taken by the Department pursuant to s.140M of the Act due to breaches of its sponsorship obligations, as a result of which it was barred for 3 months from applying to be approved as a Standard Business Sponsorship (SBS) (from 25 August 2017 to 25 November 2017). The delegate found that this constituted adverse information, and further found that there was no reason to disregard it, particularly as the delegate found that the applicant had not voluntarily disclosed this information to the Department in connection with the present nomination application.

17. A chronology of the events involved is contained in the agent’s submissions at subparagraph 7 of paragraph 12 of this decision.

18. In summary, the decision of 25 August 2017 to impose a 3 month bar on the applicant applying for approval as an SBS was based on the following findings by the Department delegate:

    ·the applicant had failed to satisfy its sponsorship obligations and thus breached r.2.89, by failing to keep records (breach of r.2.82), failing to provide records and information to the Minister (breach of r.2.83), and failing to ensure a sponsored person worked or participated in the nominated occupation, program or activity;

    ·these findings arose from a site visit in April 2017, during which Department officers identified that a sponsored employee, Ms Guluzar Sahin, had worked outside her nominated occupation of Chef, as she had for periods worked as a Domestic/Kitchenhand on the floor of the dining room of the aged care facility, at a lower hourly rate than she received when working as a Chef;

    ·the applicant’s submissions that most staff were rotated through other areas and disciplines of the home to enable understanding the challenges faced by other sections were accepted as being beneficial for staff and residents and the applicant’s business as a whole, and Ms Sahin in particular. The delegate also acknowledged that r.2.86 allowed for some secondary duties to occur, where they related to the nominated occupation. However, the delegate noted that these were not be undertaken at an hourly rate that was less than the one approved in the nomination;

    ·accordingly, the delegate found that r.2.86 had not been complied with, and thus there was a sponsorship breach under r.2.89;

    ·the delegate had regard to the mandatory requirements in r.2.89(3), which included: (a) the applicant’s past and present conduct in relation to the Department, (b) the number of occasions on which the applicant had failed to comply with its sponsorship obligations, (c) the nature and severity of the circumstances relating to the failure to satisfy the sponsorship obligation, including the period of time over which the failure occurred, (d) the period of time over which the applicant had been an approved SBS, (e) whether, and the extent to which, the failure to satisfy the sponsorship obligation had had a direct obligation or indirect effect on another person, (f) whether, and the extent to which, the failure to satisfy the sponsorship obligation(s) was intentional, reckless, or inadvertent, (g) whether, and the extent to which, the applicant had cooperated with the Department, including whether it informed the Department of the failure, (h) the steps (if any) the applicant had taken to rectify the failure to satisfy the sponsorship obligation, including whether they were taken at the Department’s request, (i) the processes (if any) the applicant has implemented to ensure future compliance with its obligations, (j) the number of other sponsorship obligations the applicant had failed to satisfy and/or the number of other occasions where it had failed to satisfy other sponsorship obligations, and (k) any other relevant factors.

19. The delegate found the following:

    (a) the applicant had been an SBS since 11 April 2014 and had nominated 2 subclass 457 visa holders. It had not been previously been monitored, and had cooperated with the Department in relation to the present breach in responding to the Department’s requests for documents and information;

    (b) an analysis of pay records and banking records for Ms Sahin indicated that in the fortnight of 7 and 20 August 2016, she was paid at the Domestic hourly rate for 1 annual leave day, rather than the Chef’s rate;

    (c) it was accepted that Ms Sahin might have obtained some experience beneficial to her nominated role, as a result of performing other, lesser paid duties. It was also accepted tht this exposure also potentially benefited other parties, including the Australian residents of the aged care home. It was also accepted that the sponsor used the terms ‘domestic’ and ‘kitchenhand’ interchangeably and explained how the duties gave greater insight into dietary requirements and enhanced the skills required for the nominated occupation. While r.2.86 did allow for some secondary duties, especially where they supported the nominated occupation, it was not acceptable for the sponsor to pay Ms Sahin at a lower hourly rate than the approved Chef hourly rate. In doing so, the applicant had unduly impacted Ms Sahin’s income and interests, and had profited from its actions. This undermined the effective delivery of the subclass 457 visa program’s objectives;

    (d) the applicant’s SBS approval period was the 3 years from 11 April 2014 to 11 April 2017;

    (e) the applicant’s failure had a negative effect on Ms Sahin’s salary and welfare for the period she worked at a lower hourly rate, albeit that she did gain experience as a result of this placement;

    (f) although the applicant considered any failure by it to be inadvertent, but the delegate found that the failure was intentional on its part;

    (g) the applicant was cooperative during monitoring and responded to all requests for information. However, the failure was not brought to the Department’s attention by the applicant as the applicant maintained that it was unaware that it had breached a sponsorship obligation;

    (h) the applicant had not outlined any steps it had taken to rectify the failure that had occurred, although it had apologised in advance if a regulation had been breached. The applicant had nominated both its subclass 457 holders for permanent residence in the ENS program at a higher nominated salary in in the same occupation;

    (i) the applicant had not outlined any processes it had implemented to ensure future compliance with the sponsorship obligations. Its SBS approval expired in April 2017 and as noted above, it had nominated its 2 subclass 457 holders for permanent residence;

    (j) the applicant had not breached any other sponsorship obligations;

    (k) the applicant was a first time user of the program and had apologised for any perceived breaches of the sponsorship regulation. It was accepted that the applicant’s actions may have had some positive impact with Ms Sahin gaining greater insight into the residents’ needs than if all work had been restricted to the kitchen area. The applicant, in turn, gained higher levels of performance from Ms Sahin in her nominated occupation which also had benefitted all parties.

20. Under s.140M(2), the delegate decided to bar the applicant for 3 months from applying to be approved again as an SBS.

21. In assessing the above matters, the delegate who made the decision on this nomination application took the view that the above incident constituted ‘adverse information’ for the purposes of this criterion. She concluded that it was not reasonable to disregard that information, having regard to the factors contained in the Department’s policy guidelines, which included the nature of the adverse information, how that information became known to the Department, whether an alleged contravention of a law had been substantiated, whether the contravention was current or one that occurred a long time ago, whether the applicant had taken steps to ensure that the circumstances involved in the adverse information did not reoccur, and information about relevant findings made by a competent authority and the significance attached to the adverse information by that authority.

22. As noted above, the Tribunal received detailed submissions from the applicant regarding these matters. It did not dispute the sponsorship breach identified by the Department, or that it constituted ‘adverse information’ for the purposes of r.1.13A(2)(c), but argued that it was reasonable to disregard the information on the basis that:

    ·the delegate’s decision not to disregard the adverse information was not the correct and preferable decision;

    ·there were significant mitigating factors in the case and the delegate’s decision was disproportionately harsh and did not specifically discuss several Departmental policy considerations that the applicant considered weighed in its favour;

    ·the applicant was a family owned and managed aged care facility with an otherwise impeccable and proven record of compliance with Commonwealth and State laws and local council regulations, including multiple audits by the Australian Aged Care Quality Agency (AACQA);

    ·the identified sponsorship breach was, while regrettable, not deliberate nor sustained, and was rectified quickly by the applicant. The applicant had always cooperated and communicated with the Department;

    ·the 3 month bar on SBS approval imposed by the Department for the breach was reasonable and proportionate for a one-off breach, but the refusal of 2 permanent residence nominations a year or so later on the same basis was not reasonable or proportionate;

    ·while the applicant respected the need to protect the integrity of the employer sponsored visa programs and to protect foreign workers from exploitation, this should be balanced with a fair and reasonable approach to employers genuinely trying to do the right thing;

    ·refusing the 2 nominations benefited no party, least of all the Australian community who would miss out on the work of 2 committed and skilled aged care workers, particularly where the occupation of Chef was on the current Priority Skilled Migration Occupation List, and there were also skills shortages for Registered Nurses (Aged Care);

    ·the policy factors to be considered in determining whether it was reasonable to disregard the adverse information were (a) the nature and seriousness of the adverse information, (b) whether the adverse information was recent or older, (c) the circumstances in which the breach(s) arose, (d) whether the allegation(s) had been substantiated, (e) whether the applicant had acknowledged the breach(es), (f) whether it had demonstrated subsequent compliance), (g) whether the conduct of concern was likely to reoccur, (h) any findings made by a relevant authority, and (i) whether there were any compelling circumstances affecting the interests of Australia;

    ·in relation to (a), the agreed facts (as found by the delegate in the sponsorship bar case) were that Ms Sahin was performing 87% of the tasks of a Chef (her nominated occupation) and 13% in the lower skilled (and paid) occupation of Domestic, for a relatively short period, for the stated purpose of ‘upskilling’ her both in terms of the residents’ food needs and her understanding of them, and her English skills. The benefits were acknowledged by the delegate, as was the fact that r.2.86 allows for some work outside the nominated occupation if they are related to the nominated occupation;

    ·moreover, prior to 18 March 2018, there was no specific sponsorship obligation expressly requiring that sponsors maintain the annual earnings approved in the original nomination application, so it was understandable that the applicant was not aware of having breached a sponsorship obligation by paying Ms Sahin under the EBA albeit at a lower rate for the period she worked as a Domestic;

    ·nevertheless, the applicant had always acknowledged and accepted the findings of the Department and it was acknowledged that the management team would have received information on their sponsorship obligations when the applicant was approved as an SBS;

    ·in relation to (b), (c) and (d), the adverse info arose from monitoring that took place between March and August 2017 and the payroll anomalies identified took place prior to 2017 and only for a short period, as by August 2016, Ms Sahin had ceased working occasional shifts on the dining floor and was working only as a Chef;

    ·in relation to (e), the applicant had acknowledged the non-compliance identified by the Department’s monitoring;

    ·in relation to (f), the applicant had provided evidence that Ms Sahin had been paid appropriately every financial year since the bar decision in August 2017;

    ·in relation to (g), there was no suggestion that the underpayment of wages below the amount approved in the subclass 457 nomination was deliberate. All payments were made according to the applicant’s EBA depending on the type of shift worked, and Ms Sahin had been reimbursed for the difference between the rate she received as a Domestic and the rate she should have received as a Chef. Moreover, there was little likelihood of any further breaches because any changes to employment conditions for either nominated visa holder now had to be approved by one of the directors (Mr McMahon), the management team had been debriefed and educated following the monitoring outcome, the payroll records and employment conditions of sponsored workers were now reviewed on an annual basis by a migration lawyer, and the applicant had only ever sponsored Ms Sahin and Ms Zhao, as it preferred to employ Australian workers where possible;

    ·in relation to (h), it was submitted that the 3 month sponsorship bar indicated that the breach was considered to be at the low end of the scale, reflecting the fact that the delegate who imposed the bar found that 2 out the 3 alleged breaches were not made out, and that the applicant was found to have been cooperative with the Department;

    ·in relation to (i), the applicant noted that there was current evidence of critical labour shortages in the aged care industry generally in Australia, including for Chefs and Registered Nurses and that this had been exacerbated by the COVID19 pandemic which saw approximately 500,000 temporary visa holders leaving Australia since March 2020. It was further noted that Ms Sahin had worked for the applicant since 2008 and had been head Chef since August 2017, while Ms Zhao had worked for the applicant since 2017. They were both valued and experienced members of staff, and it was submitted that the Australian community would expect the government to allow the applicant to retain these committed aged care staff.

1. The Departmental policy indicates that the circumstances in which it might be reasonable to disregard adverse information included: (a) where an applicant only received a warning in relation to conduct and there was no evidence that they had since been non-compliant, (b) an applicant had been barred for a short period (that is, less than 2 years) and there was no evidence that they had since been non-compliant), (c) an applicant had received a more serious penalty but had taken steps to address those issues that led to the penalty to ensure that such circumstances did not reoccur; (d) an applicant had an overall record of ‘good behaviour,’ but had been investigated for less serious issues following receipt of an unsubstantiated allegation, or (e) the person(s) to whom the adverse information related had no influence of the applicant’s partnership or association (for example, a silent partner).

2. In relation to these matters, the applicant’s agent relied on its previous submissions, noting that they weighed in favour of the applicant, given that the bar imposed was 3 months only, and the applicant had taken steps to address the oversight that led to the breach and had complied with all obligations since the monitoring took place in 2017. Moreover, the agent argued that the applicant’s circumstances did not involve any of the factors identified in the Departmental policy as constituting circumstances in which it was unlikely to be reasonable to disregard adverse information, such as:

   (a) where an applicant had been charged for serious and/or repeated breaches of the Australian law in the last 5 years;

   (b) where an applicant had been barred for a period of 3 years or more, or had their sponsorship cancelled in the last 5 years where that cancellation related to breaches of its sponsorship obligations and/or provision of false or misleading information;

   (c) where an applicant was being investigated for potentially serious breaches of immigration law;

   (d) where an applicant failed to pay (partly or wholly) an infringement notice issued by the Department;

   (e) where an applicant had not acknowledged or declared their previous adverse conduct;

   (f) where an applicant had provided no evidence that it had corrected or made restitution for its previous adverse conduct and/or that it had taken steps to ensure that further issues did not arise; and/or

   (g) where an applicant was not currently a sponsor and had declared itself insolvent or was now under external administration.

3. The Tribunal notes that the delegate found that it was not reasonable to disregard the adverse information in this case as the applicant did not inform the Department of it in connection with the current nomination applications. In response, the applicant has submitted that this was inadvertent, not deliberate. The Tribunal has considered the overall evidence, and is satisfied that it indicates that the applicant has consistently cooperated with Department monitoring and provided information when requested to do so. It provided considerable evidence to the Department in relation to the monitoring, and in relation to these nomination applications. It has provided substantial evidence to the Tribunal on review of the nomination refusals, including detailed submissions setting out the circumstances in which the conduct found to amount to adverse information occurred and the steps taken to remedy this and to ensure that such events did not occur again and that its sponsorship obligations were not breached again. The Tribunal also notes that the applicant provided evidence of other regulatory matters it has been involved in (set out below). Under the circumstances, the Tribunal is satisfied that the applicant’s failure to disclose the adverse information in its nomination applications for Ms Sahin and Ms Zhao was inadvertent and not a deliberate attempt to conceal the information. The Tribunal is bolstered in this conclusion by the fact that the applicant would know that this information would be on the Department’s records and was already known to the Department in any case.

4. The Tribunal has considered the above evidence, and the Departmental guidelines on the appropriate exercise of the waiver, and is satisfied that it is appropriate to disregard the adverse information constituted by the 3 month bar on SBS approval in the circumstances of this case. In doing so, it gives weight to the following factors:

   ·the breach of the sponsorship obligation was unintentional, of short duration and arose out of a genuine program by the applicant to upskill its staff and benefit its residents. Moreover, it was rectified once identified by the Department, and the applicant has implemented checks and balances to ensure that nothing similar occurs again;

   ·the breach took place some 4 years ago, and the bar imposed by the Department at that time was at the low end of the scale of the penalties that might have been imposed, reflecting the Department’s assessment that it was not at the serious end of the spectrum of breaches;

   ·the applicant no longer has any sponsored temporary visa holders (apart from the nominees who have been nominated for permanent residence) and all employees are paid subject to the applicant’s EBA;

   ·there have been no other identified breaches of sponsorship obligations since 2017. The applicant has been audited numerous times by the AACQA and has passed these. Although it has been the subject of cases in the FairWork Commission and WorkSafe (see below), it has not been the subject of any adverse findings in these cases; and

   ·the aged care sector has a general shortage of skilled employees and the nominated employees, as Registered Nurse (Aged Care)/Manager and Chef respectively, are longstanding and valued employees of the applicant’s aged care facility.

5. To the extent that the nominee in this case, Ms Sahin, could be considered an ‘associate’ of the applicant due to being its employee, the Tribunal does not consider that the fact that she worked outside the duties of her nominated role for the brief period identified by the Department in 2016 to be ‘adverse information’ relating to her, as she was acting under the direction of her employer, the applicant. Even if it were considered to be adverse information, the Tribunal considers it to be reasonable to disregard it as she did not initiate this but rather acted on the directions of her employer.

6. In addition to the above, the Tribunal notes that the applicant’s agent provided evidence of 2 other incidents involving the applicant that potentially constitute ‘adverse information’ for the purposes of this criterion:

   ·FairWork Commission case between Teslime Kuru and Cheltenham Manor Pty Ltd as trustee for the Cheltenham Manor Family Trust (trading as Cheltenham Manor), dated 24 February 2021

   oin summary, Ms Kuru alleged that she had been unfairly dismissed from her employment as a part time personal care assistant/enrolled nurse by Cheltenham Manor (one of the directors of whom is Mr Brett McMahon, who is also one of the directors of the applicant company). She had worked for Cheltenham Manor from August 2017 to her dismissal on 2 September 2020. The employer terminated Ms Kuru’s employment due to an alleged breach of its COVID19 protocols, which (amongst other things) prevented staff from different zones in the aged care home from mixing, including on smoking breaks. The employer asserted that Ms Kuru engaged in conduct amounting to serious misconduct justifying dismissal by having a smoking break with other colleagues from different zones, without wearing PPE or practising distancing. Ms Kuru argued her dismissal was unfair as staff had received insufficient information and training in relation to these issues, there was no deliberate attempt by her to breach protocols and the dismissal was disproportionate to her act. On 24 February 2021, the FairWork Commission determined that:

   othe employer had a sound and defensible reason for terminating Ms Kuru’s employment, and its protocols were lawful and reasonable considering the significant risks posed to its residents by COVID19;

   othe employer had notified Ms Kuru of the reasons for her dismissal and provided her with an opportunity to respond;

   othe dismissal was, under all of the relevant circumstances, proportionate to Ms Kuru’s conduct and it was not harsh, just or unreasonable; and

   othe termination was therefore not unfair and Ms Kuru’s application was dismissed; and

   ·a WorkSafe investigation of the applicant in 2020. On 20 September 2020, a WorkSafe Inspector issued an improvement notice to the applicant under s.111 of the Occupational Health and Safety Act 2004. The notice related to the alleged failure of the applicant to provide adequate facilities for the welfare of employees by not providing a separate dining area. This was on the basis that the employees were required to take breaks where they ate and drank from their vehicles. The measure was introduced to reduce the risk of COVID-19 transmission in the workplace. The applicant sought internal review of that decision.

   oon 19 October 2020, the Internal Review Unit of WorkSafe set aside the earlier decision and substituted its decision to cancel the notice issued on 20 September 2020. In reaching this decision, the review officer noted:

   §the applicant asserted that these arrangements were temporary, and were justified given the risk COVID19 transmission posed to staff and residents of the aged care home. Moreover, they were under constant review, and the shared dining room for staff would be reinstated once it was determined to be safe to do so;

   §the applicant’s infection control procedures had been researched and approved by various relevant bodies, including the Accreditation Agency, the Commonwealth Department of Health and The Victorian Aged Care Response Centre;

   §senior Occupational Hygienists with WorkSafe provided an opinion that the notice issued by the inspector did not establish a risk to health and safety to staff resulting from the employer’s requirement for staff to take breaks where they ate and drank in their cars. They also considered the employer’s direction on this to be a sound approach given the significant risks posed by COVID19 to the applicant’s staff and residents;

   §the applicant disputed that it had contravened ss 21(1) and (2)(d) of the OH & S Act.

   oUltimately, the review officer agreed with the WorkSafe Hygienists that the original notice did not identify how the requirement for the applicant’s employees to take their meal breaks in their vehicles was unsafe or would result in illness or injury from unhygienic facilities. Moreover, she found that although the WorkSafe Compliance Code required employers to provide adequate dining facilities for staff, the applicant’s actions did not breach this obligation, given the risks associated with COVID19 transmission in the aged care setting. The review officer was not satisfied that the inspector had identified a contravention of the ACT as described in the notice and the notice was therefore cancelled on the basis that the risk to health and safety articulated in it had not been reasonably established in the circumstances of the case.

7. The Tribunal is satisfied that Cheltenham Manor Pty Ltd, the subject of the FairWork Commission case above, is ‘associated with’ the applicant in this matter, as Mr Brett McMahon is a director of both companies.

8. The Tribunal has considered whether either of the above potentially falls within s.1.13A on the grounds that the applicant 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.

9. However, the Tribunal considers that the wording ‘is under investigation’ refers to a current investigation, in contrast to the above matters, which have now both been finalised in the applicant’s favour. The fact that both matters were resolved in the applicant’s favour also, in the Tribunal’s view, means that they have not been subject to disciplinary action or legal proceedings in relation to a contravention of a law. Therefore, the Tribunal does not consider the above matters to constitute ‘adverse information’ of the kind contemplated by r.1.13A.

10. Even if the Tribunal is wrong in this conclusion, and these matters do constitute ‘adverse information’ for the purposes of r.1.13A, the Tribunal is satisfied that it is reasonable to disregard this information in this case, as both matters were resolved in favour of the applicant, and no warnings were issued or compliance action was taken against the applicant.

11. Given the above findings, the Tribunal is satisfied that reg 5.19(4)(b) is met.

    Mandatory licencing, registration and memberships – reg 5.19(4)(c)

12. Regulation 5.19(4)(c) provides that if it is mandatory in the State or Territory in which the position is located for a person to hold a licence or a registration of a particular kind, or be a member (or a member of a particular kind) of a particular professional body, to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application.

13. In this instance, the relevant State or Territory is Victoria, the relevant occupation is Chef (ANZSCO code 351311) and the date of application is 19 July 2018.

14. There is no evidence before the Tribunal to indicate that registration is required in Victoria to work as a Chef.

15. Given the above findings, the Tribunal is satisfied that reg 5.19(4)(c) is met.

    Satisfactory compliance with employment laws - reg 5.19(4)(d)

16. Regulation 5.19(4)(d) requires that the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment.

17. As noted in the discussion of r.5.19(4)(b) above, the applicant has had 2 recent cases with the FairWork Commission and WorkSafe, but in each case, there were no adverse findings made against the applicant.

18. There is no other evidence before the Tribunal to indicate that it has breached the laws of the Commonwealth or Victoria in relation to employment. In reaching this conclusion, the Tribunal notes that the breach identified by the Department involved Ms Sahin being paid less than the amount approved in the subclass 457 nomination for her for a short period, but is satisfied that she was still paid within the terms of the applicant’s EBA for the duties and shifts she worked during this period. The Tribunal therefore does not consider that the applicant breached employment law in this regard.

19. Given the above findings, the Tribunal is satisfied that reg 5.19(4)(d) is met.

    Visa held by identified person at time of application - reg 5.19(5)(a)

20. Regulation 5.19(5)(a) requires that the identified person holds a visa of a particular kind at the time the application for approval of the nominated position was made. There are several alternatives including:

    ·a subclass 457 visa granted on the basis of satisfying the Standard Business Sponsorship stream (cl 457.223(4)); or

    ·a subclass 482 visa in the Medium-term stream; or

    ·for persons specified in a legislative instrument, a subclass 482 visa in the Short-term stream; or

    ·if the last substantive visa held was one of the above three visa types, a bridging visa granted on the basis they are an applicant for one of those visa types (for a subclass 482 in the Short-term stream, only those persons specified in the legislative instrument), or for a subclass 186 or 187 visa.

21. The identified nominee for this nomination application is Ms Guluzar Sahin. From a review of the Department’s records, the Tribunal is satisfied that on the date that this nomination application was made on 19 July 2018, the nominee Ms Sahin held a subclass 457 visa granted on the basis of satisfying the criteria in the SBS stream.

22. Given the above findings, the Tribunal is satisfied that reg 5.19(5)(a) is met.

    Occupation requirements – regs 5.19(5)(b), (c), (d)

23. A number of requirements relating to the occupation identified in relation to the nominated position are set out in regs 5.19(5)(b), (c) and (d). The occupation identified in this application is Chef.

24. Firstly, the occupation must be listed in ANZSCO (the Australian and New Zealand Standard Classification of Occupations) and have the same 4 digit ANZSCO occupation unit group code as the occupation in relation to which the identified person’s most recently held subclass 457 or 482 visa was granted: reg 5.19(5)(b).

25. Having checked the Department’s records, the Tribunal is satisfied that this requirement is met.

26. Secondly, the occupation must be an occupation specified in a legislative instrument made under reg 5.19(8) and in force at the time the application is made, and apply to the identified person in accordance with that instrument, unless identified as exempt by an instrument made under that subregulation: reg 5.19(5)(c). The relevant instrument specifying the occupation in this instance is IMMI 18/049.

27. The Tribunal is satisfied that the nominated occupation of Chef (ANZSCO code 351311) is listed in IMMI 18/049, and is subject to 2 occupational caveats listed in notes 7 and 8 of that instrument:

    ·7. Must not be involved in mass production in a factory setting; and

    ·8. Must not be in a limited service restaurant.

28. As noted above, the nominated position of Chef is based in an aged care residential facility operated by the applicant, and is responsible for providing meals for the elderly residents. The Tribunal is therefore satisfied that the position does not fall within either of the situations excluded by notes 7 and 8 of IMMI 18/049.

29. Finally, the Tribunal must be satisfied either that there is no information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation as specified in ANZSCO, or that it is reasonable to disregard any such information: reg 5.19(5)(d).

30. The Tribunal notes that there was evidence indicating that, for a period in 2016, the nominee Ms Sahin might not be genuinely performing the tasks of the occupation of a Chef, as set out in ANZSCO. This was because it was noted by the Department, and acknowledged by the applicant, that for a short period, Ms Sahin was performing duties outside the scope of her role as Chef by working on the floor of the dining room at the aged care facility. As noted above, the applicant has provided extensive submissions indicating that this was for training purposes only, was in addition to Ms Sahin’s primary role as Chef (and indeed, was to enhance her skills in this role), was for a finite period, and had not occurred since the Department identified that it was a breach of the applicant’s sponsorship obligations. The Tribunal accepts, from the evidence provided, that this has not occurred with Ms Sahin since 2016, and the applicant has further indicated that it reviewed its practices in relation to all of its staff to ensure that they were working within their designated roles as a result of this incident.

31. As noted above, the Tribunal is satisfied that the nominee’s position is based within an aged care facility operated by the applicant, and the duties listed in the position description provided to the Department are consistent with those set out in ANZSCO, as follows:

    UNIT GROUP 3513 CHEFS

    CHEFS plan and organise the preparation and cooking of food in dining and catering establishments.

    Cooks, Fast Food Cooks and Kitchenhands are excluded from this unit group. Cooks are included in Unit Group 3514 Cooks. Fast Food Cooks and Kitchenhands are included in Minor Group 851 Food Preparation Assistants.

    Indicative Skill Level:
    Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.

    In Australia:

    AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

    
    In New Zealand:

    NZ Register Diploma (ANZSCO Skill Level 2)

    
    At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

    Tasks Include:

    oplanning menus, estimating food and labour costs, and ordering food supplies

    omonitoring quality of dishes at all stages of preparation and presentation

    odiscussing food preparation issues with Managers, Dietitians and kitchen and waiting staff

    odemonstrating techniques and advising on cooking procedures

    opreparing and cooking food

    oexplaining and enforcing hygiene regulations

    omay select and train staff

    omay freeze and preserve foods

    
    Occupation:

    351311 Chef

    
    351311 CHEF

    
    Plans and organises the preparation and cooking of food in a dining or catering establishment.

    Skill Level: 2

    Specialisations:

    Chef de Partie
    Commis Chef
    Demi Chef
    Second Chef
    Sous Chef

    …

1. From the material provided, the Tribunal is satisfied that the applicant’s duties with the applicant correspond closely to the duties set out in ANZSCO above.

2. Given the above findings, the Tribunal is satisfied that regs 5.19(5)(b), (c) and (d) are met.

   Visas and previous employment of identified person – regs 5.19(5)(e), (f), (g)

3. Regulations 5.19(5)(e), (f) and (g) set out requirements in respect of the identified person’s visa history and employment during certain periods immediately prior to the nomination application being made. The qualifying periods set out in these provisions can be modified for specified persons by legislative instrument: reg 5.19(6).

4. Firstly, reg 5.19(5)(e) requires that the identified person must have held one or more of the following visas for a total period of at least 3 years in the period of 4 years immediately before the nomination application was made:

   ·a subclass 457 visa in the Standard Business Sponsorship stream, or

   ·a subclass 482 visa in the Medium-term stream, or

   ·for a person specified in a legislative instrument made under reg 5.19(5)(a)(iii), a subclass 482 visa in the Short-term stream.

5. Secondly, unless the subclass 457 or 482 visa held was granted in relation to an occupation specified in an instrument made under reg 2.72(13), reg 5.19(5)(f) requires that the identified person was employed in the position to which the subclass 457 or 482 visa(s) were granted on a full-time basis, with the employment being undertaken in Australia, for a total period of at least 3 years during the period of 4 years immediately before the nomination application was made. The 3 years of employment cannot include any periods of unpaid leave.

6. If the subclass 457 or 482 visa was granted in relation to an occupation specified in an instrument under reg 2.72(13), then reg 5.19(5)(g) must be satisfied instead of reg 5.19(5)(f). It requires that the identified person was employed in that occupation for a total period of at least 3 years (not including any periods of unpaid leave) during the periods of 4 years immediately before the nomination application was made.

7. In this case, the nomination application was made on 19 July 2018. The relevant instrument made under reg 5.19(6) is IMMI 18/052. Having regard to the terms of that instrument, the Tribunal finds that it is applicable and has applied the modified time periods as set out in the instrument. That is, as the nominee falls within the transitional cohort as per IMMI 18/052 (as she held a subclass 457 on 18 April 2017), in accordance with r. 5.19(6), the period of employment that must be met is at least 2 years of employment in the previous 3 years before the nomination application was made for the purposes of reg 5.19(5)(e) and (f). The Tribunal notes that r.5.19(5)(g) does not apply as the nominated occupation is not specified in IMMI 18/035.

8. Given the above, the relevant 3 year period is 2 August 2015 to 2 August 2018. The Department’s records indicate that the nominee was granted a subclass 457 visa in the SBS stream on 21 July 2014, valid until 21 July 2018. She applied for a subclass 186 visa in the TRT stream on 20 July 2018 and was granted a bridging visa in connection with this application on that date, which she currently holds. The Tribunal is further satisfied that the nominee was employed as a Chef at the applicant’s premises, Greenwood Manor, from 2 February 2015 to date on a full time basis.

9. The Tribunal is therefore satisfied that at the time that the nomination application was lodged on 19 July 2018, the nominee had been employed on a full time basis in Australia in the nominated occupation as the holder of a subclass 457 visa in the SBS stream for approximately 34 months in the 3 years (36 months) immediately preceding 19 July 2018.

10. Given the above findings, the Tribunal is satisfied that regs 5.19(5)(e) and (f) are met.

    Status of the nominator – reg 5.19(5)(h)

11. Regulation 5.19(5)(h) requires that the nominator was the standard business sponsor who last identified the identified person in a nomination approved under s 140GB of the Act and is actively and lawfully operating a business in Australia.

12. The Department’s records indicate that the applicant was the SBS who last identified the nominee in a nomination approved under s.140GB of the Act (for the purposes of the grant of a subclass 457 visa) to the nominee.

13. The Tribunal is satisfied that the applicant is actively and lawfully operating a business in Australia, based on its current ASIC and ABN registrations, its current accreditation with the Australian Aged Care Quality Agency (AACQA), its Business Activity Statements to June 2021, its recent financial statements for 2019/2020 and 2020/2021 and the letter from its accountant dated 6 December 2021.

14. Given the above findings, the Tribunal is satisfied that reg 5.19(5)(h) is met.

    Training requirements – reg 5.19(5)(i)

15. An application for approval of the nomination of a position made on or after 18 March 2018 but before 12 August 2018 must satisfy training requirements set out in reg 5.19(5)(i), unless it is reasonable to disregard them. The requirements are that the nominator:

    ·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

    ·complied with the applicable obligations under Division 2.9 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor.

16. However, the nominator is not required to comply with training obligations in reg 2.87(2) or (3) in relation to a period of 12 months ending on or after 12 August 2018: cl 7602(5) of Schedule 13 to the Regulations.

17. The above training requirements require consideration of the applicant’s ‘most recent approval’ as an SBS. The Tribunal has checked the Department’s records and is satisfied that the applicant was most recently approved as an SBS on 25 August 2021, valid until 25 August 2026. In this case, the Tribunal is satisfied that there are no applicable training obligations or commitments for satisfying the sponsorship approval criteria under r.2.59 because, from 18 March 2018, the requirements for training under rr.2.59(d) and (e) were repealed. Accordingly, the Tribunal finds that the applicant satisfies r.5.19(5)(i) without any evidence of meeting the training requirements because there are no such requirements in place at this time (see Ozzy Fortune Group Pty Ltd (Migration) [2019] AATA 735 at [32]).

18. Given the above findings, the Tribunal is satisfied that reg 5.19(5)(i) is met.

    Genuine need for employment – regs 5.19(5)(j) and (k)

19. Regulation 5.19(5)(j) requires the nomination application to identify a need for the identified person to be employed in the position, under the direct control of the nominator, and reg 5.19(5)(k) requires this need to be genuine. These requirements do not apply in relation to occupations specified in an instrument made under reg 2.72(13).

20. The Tribunal has reviewed the exemption instrument made under r.2.72(13) in force at the time that the nomination was lodged (IMMI 18/035) and the current exemption instrument (IMMI 19/212) and is satisfied that neither of them include the nominated occupation of Chef (ANZSCO code 351311) and thus the applicant is not exempt from having to meet rr.5.19(5)(j) and (k).

21. The Tribunal is satisfied that the applicant identified in its nomination application a need for Ms Sahin to be employed in the nominated position of Chef under the applicant’s direct control at the Greenvale Manor aged care facility. Accordingly, it is satisfied that r.5.19(5)(j) is met.

22. The applicant has provided ample evidence that the position is an existing, ongoing position within the applicant’s business that is crucial to its operations. The Tribunal gives weight to the extensive information provided by the applicant regarding the nutritional and hygiene standards that must be met in an aged care facility in the preparation of meals for residents. The Tribunal has reviewed the duties set out in the job description provided in 2021 and is satisfied that they substantially correspond with the task set out in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) online dictionary (most recent edition) for a Chef. The nominee is a qualified Chef and has been employed by the applicant continuously since 2008 (as a kitchen hand), then as a Chef since 2015 and Head Chef since 2017.

23. Accordingly, the Tribunal is satisfied that the applicant has a genuine need for the nominated position and it finds r.5.19(5)(k) is met.

    Future employment – regs 5.19(5)(l), (m), (n)

24. Regulations 5.19(5)(l), (m) and (n) contain requirements relating to the future employment of the identified person.

25. Firstly, reg 5.19(5)(l) requires that the identified person will be employed on a full-time basis in the position for at least 2 years. This requirement does not apply in relation to occupations specified in an instrument made under reg 2.72(13): reg 5.19(7). As noted above, the Tribunal is satisfied that the nominated occupation is not specified as exempt.

26. Secondly, reg 5.19(5)(m) requires that the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment.

27. The Tribunal has reviewed the contract of employment provided to the Department for the nominee dated 23 May 2018, which states that it will remain in force for 4 years and provides for full time employment. Following the Tribunal’s query to the applicant, its director Mr McMahon clarified in December 2021 that the nominated position is a permanent one, that the applicant planned to employ the nominee in this matter on an ongoing basis, beyond the next 2 years, and that her present employment contract did not preclude this. He also noted that the nominee was presently on paid leave as she had returned to Turkey to marry, but was expected to return to resume her employment at the conclusion of her leave.

28. Finally, reg 5.19(5)(n) requires that the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year. The ‘annual market salary rate’ (AMSR) is the earnings an Australian citizen or permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.

29. The applicant has provided evidence that all of its employees (including the nominee) are paid pursuant to the Enterprise Bargaining Agreement (EBA) for Greenwood Manor and Cheltenham Manor. The Tribunal is therefore satisfied that the EBA provides the AMSR for the nominee and her occupation. The applicant’s agent has submitted that the EBA sets out rates for the various categories of employees it has and the type of shifts they work. The most recent PAYG summary statements for the nominee indicate that her annual taxable income has been as follows:

    ·2018/2019: $61,288

    ·2019/2020: $58,515

30. The applicant’s financial statement for 2019/2020 indicates that the applicant’s total income for that financial year was $5,016,285 and its total expenses were $4,181,534, resulting in a net profit of $834,751. However, as noted by the applicant’s accountant, its 2020/2021 financial statement shows an overall loss of $122,721, despite its total revenue of approximately $4,961,171 (compared to $5,016,285 the previous financial year). The applicant’s expenses for 2020/2021 were $5,083,892, approximately $1 million more than the previous financial year, and included $4,003,832 in labour costs. In his letter of 6 December 2021, the applicant’s accountant addresses this and advises that the steps taken by the applicant to (successfully) minimise any COVID19 outbreak at its aged care facility meant that several residents’ rooms were taken out of commission to be used for other purposes (resulting in a drop of income) while additional staff were required to manage the different ‘zones’ implemented by the applicant to prevent the transmission of COVID19 within the home. Although the COVID19 pandemic is not yet over, the Tribunal gives weight to the accountant’s statement that the applicant has been able to ‘walk back’ from these arrangements since the roll out of the vaccination program, and has returned to profitability, based on its financial performance in the 2021/2022 year to date.

31. Given that the applicant’s business is a long established and profitable business, and has paid the nominee the agreed rate since her employment (as per her successive contracts of employment and the applicant’s EBA), the Tribunal is satisfied that there is no evidence before the Tribunal that the applicant has been unable to pay the AMSR for the nominee (or the salaries and superannuation entitlements of its other employees). Based on its financial performance to date, the Tribunal is satisfied that the applicant has the financial capacity to employ the nominees for at least 2 years and pay her the ASMR provided for in the EBA.

32. Given the above findings, the Tribunal is satisfied that regs 5.19(5)(l), (m) and (n) are met.

    Annual earnings – reg 5.19(5)(o)

33. Regulation 5.19(5)(o) provides that the requirements set out in reg 2.72(15) must be met, applying regs 2.72(15) and 2.72(16) as if reg 2.72(15)(a) did not apply and references to ‘the nominee’ and ‘the person’ were references to the identified person and the nominator respectively. Regulation 2.72(15) contains several requirements which must be met if the identified person’s annual earnings in relation to the occupation will not be at least the amount specified in the instrument IMMI 18/033 (currently $250,000). Regulation 2.57A provides for the meaning of ‘earnings’. Where reg 2.72(15) applies, it requires that:

    ·the annual market salary rate (the rate) for the occupation has been determined by the applicant by reference to instrument IMMI 18/033: reg 2.72(15)(c). The ‘annual market salary rate’ (AMSR) means the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.

    ·the rate, excluding any non-monetary benefits (as defined in reg 2.57A(3)), for the occupation is not less than the temporary skilled migration income threshold specified in the instrument IMMI 18/033 (TSMIT) (currently $53,900), unless the rate for the occupation is not less than the TSMIT, and it is reasonable in the circumstances to disregard this criterion: regs 2.72(15)(d) and 2.72(16)(a);

    ·the identified person’s annual earnings in relation to the occupation will not be less than the rate for the occupation, unless it is reasonable in the circumstances to disregard this criterion, and the criterion in reg 2.72(10)(b) in relation to the need for a full-time position is disregarded under reg 2.72(10A): regs 2.72(15)(e) and 2.72(16)(aa). However, in this case, the power under reg 2.72(10A) does not arise;

    ·the identified person’s annual earnings, excluding any non-monetary benefits (as defined in reg 2.57A(3)), in relation to the occupation will not be less than the TSMIT, unless it is reasonable in the circumstances to disregard this criterion: regs 2.72(15)(f) and 2.72(16)(b); and

    ·either there is no information known to Immigration that indicates the rate for the occupation is inconsistent with Australian labour market conditions relevant to the occupation, or it is reasonable to disregard any such information: reg 2.72(15)(g).

34. As the annual earnings in relation to the occupation will not be at least the specified amount, the requirements of reg 2.72(15) must be met.

100.   The methodology for determining the AMSR set out in IMMI 18/033 is as follows:

…

7. Method for determining the annual market salary rate where an Australian worker is performing equivalent work

(1) For the purposes of subregulation 2.72(17) of the Regulations, where a there is a fair work instrument, state industrial instrument or transitional instrument applicable to an Australian worker who is:

(a) employed in the same workplace as the nominee; and

(b) at the same location as the nominee; and

(c) performing equivalent work to the nominee;

the annual market salary rate for an equivalent nominated occupation or an occupation in relation to which a position is nominated under regulation 5.19 of the Regulations, is the annual earnings of an Australian worker contained in those instruments.

(2) Where there is no fair work instrument, state industrial instrument or transitional instrument that is applicable to an Australian worker who is:

(a) employed in the same workplace as the nominee; and

(b) at the same location as the nominee; and

(c) performing equivalent work to the nominee;

the annual market salary rate for an equivalent nominated occupation or an occupation in relation which a position is nominated under regulation 5.19 of the Regulations, must be determined by reference to relevant employment documents.

8. Method of determining the annual market salary rate where there is not an Australian worker performing equivalent work

For the purposes of subregulation 2.72(17) of the Regulations, and where section 7 of this instrument does not apply and:

(a) where there is a fair work instrument, state industrial instrument or transitional instrument applicable to a nominated occupation, the annual market salary rate for a nominated occupation, or an occupation in relation to which a position is nominated under regulation 5.19 of the Regulations, is the annual earnings of an equivalent Australian worker specified in those instruments.

(b) Where there is no fair work instrument, state industrial instrument or transitional instrument applicable to a nominated occupation, the annual market salary rate for a nominated occupation or an occupation in relation to which a position is nominated under regulation 5.19 of the Regulations, is the annual earnings that would apply to an equivalent Australian worker, which must be determined by reference to relevant information.

…

Relevant information may include, but is not limited to:

(a) information published on the Australian Government’s Job Outlook website;

(b) job advertisements from a national recruitment website or national print media that are in English and specify the salary arrangements for the advertised position;

(c) written advice from registered employer associations and/or unions;

(d) remuneration surveys generated across the relevant industry by a reputable organisation or body.

101.   The nomination application indicates that there is no equivalent Australian employee to the nominee within the applicant’s business. It also lists the nominee’s total annual earnings as $71,234 consisting of wages only. However, updated information was provided by Mr McMahon in December 2021 indicating that the nominee is currently paid $71,833 plus superannuation per year.

102.   Payment is stated to be made under the Greenwood Manor and Cheltenham Manor EBA (2018), which has been approved by the Fair Work Commission.

103.   The Tribunal notes that there is an Award for Chefs, being the Restaurant Award. Information in this Award, found on the website of Fair Work Australia, indicates that a Chef is a level 6 worker under this Award. The highest paygrade for this classification provides for a minimum hourly rate of $25.83, which annualises to $51,040. However, this does not include penalty rates which apply where a Chef works weekends, public holidays or otherwise outside normal business hours. The Tribunal is satisfied that once such penalties were added – given few Chefs work 9am to 5pm – this would take their earnings under the Award to over $53,900.

104.   The Tribunal is satisfied, given that the EBA is an approved agreement by the Fair Work Commission, and the nominee’s rate under it exceeds the minimum rate to which she would be entitled under the relevant Award, that the applicant has determined the AMSR in accordance with the relevant information in IMMI 18/033. For these reasons, the Tribunal is satisfied that the requirements of reg 2.72(15)(c) are met.

105.   The Tribunal is further satisfied that both the AMSR and the nominee’s annual earnings are greater than the TSMIT, and thus the requirements of reg 2.72(15)(d) and (f) are met.

106.   The Tribunal is satisfied that the nominee’s annual earnings will not be less than the AMSR for the nominated occupation, and therefore finds that the requirements of reg 2.72(15)(e) are met.

107.   Finally, there is no information before the Tribunal that indicates that the AMSR is inconsistent with Australian labour market conditions relevant to the nominated occupation. The Tribunal finds that, for these reasons, the requirements of reg 2.72(15)(g) are met.

108. Given the above findings, the Tribunal is satisfied that reg 5.19(5)(o) is met.

No information to indicate less favourable employment conditions – reg 5.19(5)(p)

109.   Regulation 5.19(5)(p) requires that there is either no information known to Immigration that indicates the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable to those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location, or that it is reasonable to disregard any such information.

110.   As noted above, the applicant has provided evidence that all of its employees’ conditions are covered by the EBA, and thus the Tribunal is satisfied that there is no information known to Immigration that indicates the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable to those that apply, or would apply, to an Australian citizen or permanent resident performing equivalent work at the same location.

111. Given the above findings, the Tribunal is satisfied that reg 5.19(5)(p) is met.

Information required by the Minister – reg 5.19(5)(q)

112.   Regulation 5.19(5)(q) requires that the nominator has provided the information required by the Minister for the purposes of regs 5.19(k) to (n). Regulations 5.19(k) to (n) concern a genuine need for the identified person to be identified in the position under the nominator’s direct control; employment on a full-time basis for at least 2 years; the identified person’s terms and conditions not expressly excluding the possibility of extending the period of employment beyond this; and the nominator’s business having the capacity to employ the identified person for at least 2 years and pay them at least the annual market salary rate.

113. The Tribunal is not requiring the nominator to provide specific information for these purposes. The information already provided has allowed an assessment of rr.5.19(k) to (n).

114. The Tribunal thus finds that r.5.19(5)(q) is met.

115. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of reg 5.19 for approval of the nomination of the position in Australia.

decision

116.   The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Alison Mercer
Member

Attachment – extracts from the migration regulations 1994

5.19Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa

Application

(1)A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.

(2)The application must:

(a)be made in accordance with approved form 1395 (Internet); and

(b)identify the position; and

(c)identify a person (the identified person) in relation to the position; and

(d)identify an occupation in relation to the position; and

(e)identify the subclass and stream to which the nomination relates, which must be one of the following:

(i)a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;

(ii)a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;

(iii)a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;

(iv)Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;

(v)a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and

(f)be accompanied by the fee mentioned in regulation 5.37; and

(g)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 subsection 245AR(1) of the Act.

Approval of nomination

(3)The Minister must, in writing:

(a)approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or

(b)otherwise—refuse to approve the nomination.

Requirements for approval—general

(4)The requirements to be met for the nomination to be approved are as follows:

(a)the application is made in accordance with subregulation (2);

(b)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;

(c)if it is mandatory, in the State or Territory in which the position is located, for a person to:

(i)hold a licence of a particular kind; or

(ii)hold registration of a particular kind; or

(iii)be a member (or a member of a particular kind) of a particular professional body;

to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;

(d)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment;

(e)if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;

(f)if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;

(g)if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.

Temporary Residence Transition stream—additional requirements for approval

(5)If the nomination relates to a visa in a Temporary Residence Transition stream, the following requirements must also be met:

(a)at the time the application is made, the identified person holds:

(i)a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018; or

(ii)a Subclass 482 (Temporary Skill Shortage) visa in the Medium‑term stream; or

(iii)for a person specified in a legislative instrument made by the Minister for the purposes of this subparagraph—a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream; or

(iv)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (i) or (ii); or

(v)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—for a person specified in a legislative instrument made under subparagraph (iii), a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (iii); or

(vi)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a Subclass 186 (Employer Nomination Scheme) visa or a Subclass 187 (Regional Sponsored Migration Scheme) visa;

(b)the occupation:

(i)is listed in ANZSCO; and

(ii)has the same 4‑digit ANZSCO occupation unit group code as the occupation in relation to which the identified person’s most recently held Subclass 457 (Temporary Work (Skilled)) visa or Subclass 482 (Temporary Skill Shortage) visa was granted;

(c)unless a legislative instrument made under subregulation (8) exempts the identified person from the operation of this paragraph—the occupation must:

(i)be an occupation specified in an instrument made under subregulation (8) and in force at the time the application is made; and

(ii)apply to the identified person in accordance with an instrument made under that subregulation;

(d)either:

(i)there is no information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation as specified in ANZSCO; or

(ii)it is reasonable to disregard any such information;

(e)during the period of 4 years immediately before the application is made, the identified person held one or more of the following for a total period of at least 3 years:

(i)a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018;

(ii)a Subclass 482 (Temporary Skill Shortage) visa in the Medium‑term stream;

(iii)for a person specified in a legislative instrument made under subparagraph (a)(iii)—a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream;

(f)unless paragraph (g) applies—during the period of 4 years immediately before the application is made, the identified person was employed in the position in relation to which the visa, or visas, mentioned in paragraph (e) were granted:

(i)for a total period of at least 3 years (not including any periods of unpaid leave); and

(ii)on a full‑time basis, with the employment being undertaken in Australia;

(g)if the visa, or visas, mentioned in paragraph (e) were granted in relation to an occupation specified in an instrument made under subregulation 2.72(13)—during the period of 4 years immediately before the application is made, the identified person was employed in the occupation for a total period of at least 3 years (not including any periods of unpaid leave);

(h)the nominator:

(i)was the standard business sponsor who last identified the identified person in a nomination approved under section 140GB of the Act; and

(ii)is actively and lawfully operating a business in Australia;

(i)unless it is reasonable to disregard subparagraphs (i) and (ii)—the nominator:

(i)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

(ii)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;

(j)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;

(k)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;

(l)the identified person will be employed on a full‑time basis in the position for at least 2 years;

(m)the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;

(n)the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;

(o)the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:

(i)paragraph 2.72(15)(a) did not apply; and

(ii)references to the nominee were references to the identified person; and

(iii)references to the person were references to the nominator;

(p)either:

(i)there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or

(ii)it is reasonable to disregard any such information;

(q)the nominator has provided the information required by the Minister for the purposes of paragraph (k) to (n).

Minister may vary certain Temporary Residence Transition stream requirements

(6)The Minister may, by legislative instrument, determine different periods of time for the purposes of paragraphs (5)(e), (f) and (g) for persons specified in the instrument.

(7)Paragraphs (5)(j), (k) and (l) do not apply in relation to occupations specified in an instrument made under subregulation 2.72(13).

(8)The Minister may, by legislative instrument, specify:

(a)occupations for the purposes of paragraph (5)(c); and

(b)persons who are exempt from the operation of that paragraph; and

(c)for each occupation, any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:

(i)the nominator;

(ii)the identified person;

(iii)the occupation;

(iv)the position in which the identified person is to work;

(v)the circumstances in which the occupation is undertaken;

(vi)the circumstances in which the person is to be employed in the position.