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

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Greenwood Manor Pty Ltd (Migration) [2021] AATA 5566
Case: [2021] AATA 5566
Decision Date: 22 December 2021

CaseChat Overview and Summary

This matter concerned an application by Greenwood Manor Pty Ltd for approval of a nominated position under the Temporary Residence Transition stream. The primary dispute revolved around whether the Department of Home Affairs had unreasonably disregarded adverse information concerning the applicant's prior breach of sponsorship obligations, which had resulted in a three-month bar on applying for approval as a Standard Business Sponsor.

The Tribunal was required to determine whether the applicant met the general requirements for approval of a nomination under regulation 5.19(4) of the Migration Regulations 1994, specifically focusing on regulation 5.19(4)(a) concerning application requirements and regulation 5.19(4)(b) regarding adverse information. The latter required the Tribunal to consider whether there was no adverse information known to the Department about the nominator, or if it was reasonable to disregard any such information.

The Tribunal found that the application itself met the formal requirements of regulation 5.19(2). However, the delegate had refused the nomination based on adverse information, namely a breach of sponsorship obligations leading to a three-month bar. The Tribunal reasoned that while the breach constituted adverse information, it was reasonable to disregard it in this instance. The Tribunal considered mitigating factors, including the applicant's consistent cooperation with Department monitoring, the unintentional nature of the breach, its short duration, and its classification as a low-end contravention.

Consequently, the Tribunal decided to set aside the delegate's decision and substitute it with a decision approving the nomination.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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) Regulation 5.19(4)(a) requires that an application for approval be made in accordance with a number of requirements set out in reg 5.19(2). Regulation 5.19(2) requires that an application must:·be made in accordance with approved form 1395 (Internet);·identify the position;·identify a person in relation to the position;·identify an occupation in relation to the position,·identify the subclass and stream to which the nomination relates;·be accompanied by the fee mentioned in reg 5.37; and·include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of s 245AR(1) of the Migration Act 1958 (Cth) (the Act). Applications made on or after 12 August 2018 must also be accompanied by any nomination training contribution charge the nominator is liable for, and identify the annual turnover for the nomination: regs 5.19(2)(fa), (fb). The liability is imposed by s 140ZM of the Act and the charge is imposed by the Migration (Skilling Australians Fund) Charges Act 2018 (Cth), with the amount specified in the Migration (Skilling Australians Fund) Charges Regulations 2018 (Cth) (Charges Regulations). ‘Annual turnover’ is defined in the Charges Regulations for liable persons operating a business in Australia as the total ordinary income (within the meaning of the Income Tax Assessment Act 1997 (Cth)) derived in the most recent income year (within the meaning of the Income Tax Assessment Act 1997 (Cth)) ending before the day on which the nomination application is made. In any other case, it is defined as the total income the person liable derived in the ordinary course of business in the most recent financial year ending before the day on which the nomination application is made. Further, if the subclass identified in the application is subclass 187, the application must be made before 16 November 2019, unless the exception in reg 5.19(2A) applies. The exception applies to an identified person who is a ‘transitional 457’ or ‘transitional 482’ worker at the time of application. This means, respectively, a person who on or after 18 April 2017 held a subclass 457 visa, and a person who on 20 March 2019 held a subclass 482 visa in the Medium-term stream or was an applicant for a subclass 482 visa in the Medium-term stream that was subsequently granted: reg 1.03. 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Given the above findings, the Tribunal is satisfied that the application complied with the requirements in reg 5.19(2) and that reg 5.19(4)(a) is met.No adverse information known to Immigration – reg 5.19(4)(b) Regulation 5.19(4)(b) requires that either there is no adverse information known to Immigration about the nominator or a person associated with the nominator, or it is reasonable to disregard any such information. ‘Adverse information’ is defined by reg 1.13A as any adverse information relevant to the person’s suitability as an approved sponsor or a nominator. Regulation 1.13A sets out a non-exhaustive list of examples of the kinds of information which meet this definition, including information that the person:·has contravened a law of the Commonwealth, a State or a Territory, or·is under investigation, subject to disciplinary action or subject to legal proceedings in relation to a contravention of such a law, or·has been the subject of administrative action (including being issued with a warning) for a possible contravention of such a law by a Department or regulatory body that administers or enforces the law, or·has become insolvent (within the meaning of s 95A of the Corporations Act 2001 (Cth)), or·has given, or caused to be given, to the Minister, an officer, the Tribunal or an assessing authority a ‘bogus document’ (as defined in s 5(1) of the Act), or ‘information that is false or misleading in a material particular’ (as defined in reg 1.13A(4)). The term ‘associated with’ is also given a non-exhaustive definition for the purposes of this requirement, in reg 1.13B. It provides that two persons are associated with each other in a wide range of relationships and situations, including if:·they are or were spouses or de facto partners or members of the same immediate, blended or extended family, or have or had a family-like relationship, or belong or belonged to the same social group, unincorporated association or other body of persons, or have or had common friends or acquaintances, or·one is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of the other or any corporation or other body in which the other is or was involved (including as an officer, employee or member), or·a third person is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of both of them, or·they are or were related bodies corporate (within the meaning of the Corporations Act 2001 (Cth)) or,·one is or was able to exercise influence or control over the other, or·a third person is or was able to exercise influence or control over the both of them. Regulation 1.13B(2) provides that it does not matter if one of the persons mentioned has ceased to exist. 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.