Hairway Fountaingate Pty Ltd (Migration)

[2019] AATA 6283

Hairway Fountaingate Pty Ltd (Migration) [2019] AATA 6283 (14 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Hairway Fountaingate Pty Ltd

CASE NUMBER:  1726570

DIBP REFERENCE(S):  BCC2016/2891953

MEMBER:Sean Baker

DATE OF ORAL DECISION:  14 October 2019

DATE OF WRITTEN STATEMENT:         16 October 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 16 October 2019 at 5:21pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – Temporary Residence Transition stream – adverse information known to department – nominator barred from sponsoring further persons – period of sponsorship varied on review – reasonable to disregard adverse information – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 140M(1)(c)
Migration Regulations 1994 (Cth), rr 1.13A, 1.13B, 5.19(3)(g)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 20 October 2017 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 31 August 2016. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).

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

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(g) of the Regulations because there was adverse information known to Immigration about the nominator.

5. The Tribunal gave its decision on the review at the conclusion of the hearing held on 14 October 2019. The following are the reasons for that decision.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in r.5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

   The application must be compliant: r.5.19(3)(a)

9. Regulation 5.19(3)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a relevant person and occupation.

10. Having had regard to the material on the Department’s file, in particular the information and certifications included in the application form made by the applicant, I find that r.5.19(3)(a) is met. Given the above findings, the requirement in r.5.19(3)(a) is met.

    Status of the nominator: r.5.19(3)(b)

11. Regulation 5.19(3)(b) requires the nominator to be or have been the relevant standard business sponsor who is actively and lawfully operating a business in Australia. In addition, the nominator, as that standard business sponsor, must not have met certain criteria relating to the operation of a business overseas, in the most recent sponsorship approval.

12. Having had regard to the application form and the ASIC certificate of registration, I find that the nominator is the standard business sponsor who last identified the holder of the Subclass 457 visa in a nomination, is actively and lawfully operating a business in Australia and was not granted the most recent business sponsorship on the basis of meeting either r.1.20DA, r.2.59(h) or r.2.68(i).

13. Given the above, the requirement in r.5.19(3)(b) is met.

    Previous employment of the nominee: r.5.19(3)(c)

14. Broadly speaking, to meet the requirement in r.5.19(3)(c), either:

    ·     the nominee must have been employed full time in Australia in the position for which he or she holds a Subclass 457 visa for at least 2 of the 3 years preceding the nomination application; or

    ·     the nominee holds a Subclass 457 visa on the basis that s/he was identified in a nomination of a specified occupation for that visa, the nominator nominated the occupation, and the nominee has been employed in that occupation for at least 2 years in the 3 years immediately before the application.

15. Having had regard to the application form and the payroll advice submitted with the application, I find that Hairway Fountain Gate Pty Ltd is and was an actively operating business at all relevant time, that it has applied for approval for the position of hairdresser, for Mrs Baljinder Kaur, who has been employed by the business since May 2014 until the date of application, and who continues to be employed there, in the position of hairdresser.

16. Given the above findings, the requirement in r.5.19(3)(c) is met.

    Future employment of the visa holder: r.5.19(3)(d)

17. Regulation 5.19(3)(d) only applies to certain nominees (those described in r.5.19(3)(c)(i)). For this class of person, the regulations require that the nominee will be employed on a full time basis for at least 2 years on terms that do not expressly preclude the possibility of an extension.

18. In this case, the requirement applies. Having had regard to the visa application, the employment contract and to the evidence of the owner of the business at the hearing, I am satisfied that the nominee will be employed on a full-time basis for at least 2 years, and further that the terms and conditions of the person’s employment do not expressly exclude the possibility of extending the period of employment

19. Given the above findings, the requirement in r.5.19(3)(d) is met.

    No less favourable terms and conditions of employment: r.5.19(3)(e)

20. Regulation 5.19(3)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

21. Having had regard to the application and the employment contract of the nominee, I find that the terms and condition applicable to the position will be no less favourable than those that are provided to the Australian citizens/permanent residents performing equivalent work in the same workplace at the same location.

22. Accordingly, the requirement in r.5.19(3)(e) is met.

    Training commitments and obligations: r.5.19(3)(f)

23. Regulation 5.19(3)(f) requires the applicant to have fulfilled any commitments made relating to meeting training requirements, and complied with applicable obligations relating to training  requirements, during the period of the  applicant’s most recent sponsorship approval.  These requirements may be disregarded if it is reasonable to do so.

24. The application included training receipts indicating that there has been ongoing training provided to employees, including the nominee, in the period of the most recent sponsorship approval which I consider demonstrates the applicant has fulfilled commitments made relating to meeting the training requirements during that period, and has complied with the applicable sponsorship obligations relating to the applicant’s training requirements during that period.

25. Accordingly, the requirement in r.5.19(3)(f) is met.

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

26. Regulation 5.19(3)(g) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B. 

27. As noted by the delegate, there is adverse information known to Immigration about the nominator, being the sponsorship bar imposed on 27 June 2017 on the nominator.

28. This was an action under s.140M(1)(c) to bar the nominator from sponsoring further persons under the existing approval as a standard business sponsor AND preventing the sponsor from making any future applications for approval as a standard business sponsor and any other specified classes of sponsor for the period from the date of the delegate’s decision, 27 June 2017, until the end of the standard business sponsorship of the nominator, 26 April 2021.

29. I note that in Tribunal case 1714900, I varied that sponsorship bar to run from 27 June 2017 until the date that ownership of the business changed, 6 May 2018. My reasons for varying that sponsorship bar are set out in that decision. The bar is therefore no longer in effect.

30. I have therefore considered this varied period in considering the adverse information and whether to disregard that information under r.5.19(3)(g)(ii).

31. In considering whether it is reasonable to disregard the adverse information, I have taken into account policy, which sets out a range of factors, which may assist in considering what is reasonable. I have taken into account the information in submissions and attached documents provided in this matter and also, in more detail, in the matter of the sponsorship bar, Tribunal case 1714900.

32. I have taken into account the nature of the adverse information, and the acknowledgement by the applicant that the breach was serious. I have also taken into account that the business has put in place significant and durable changes to their processes which in my assessment will make any further non-compliance with sponsorship obligations unlikely. The source of the information became known through the site visit of the Department, and therefore the adverse information is highly credible. I note also that the applicant has conceded the breach and the adverse information. In this case the adverse information relates to a breach of sponsorship obligations, and these have been substantiated and admitted to by the applicant. the adverse information here relates to a historical contravention of the sponsorship obligations, and as above I consider that the business has put in place significant and durable changes to their processes. I have also taken into account the significant steps the business has taken to ensure the circumstances that led to the adverse information do not recur. As above, I consider that the changes made to practices at the business make any current or future non-compliance unlikely. The competent authority here was the Department, no other authority has been involved. The authority found the non-compliance with sponsorship obligations serious and imposed a sponsorship bar, but did not cancel the sponsorship. For the reasons above, I considered in the sponsorship case that that bar should be varied. 

33. Having considered these factors, and my actions on the related case of the sponsorship bar, I consider it reasonable and appropriate in the circumstances of this case to disregard the adverse information that the applicant was barred from sponsoring further persons under the existing approval as a standard business sponsor AND preventing the sponsor from making any future applications for approval as a standard business sponsor and any other specified classes of sponsor for the period from the date of the delegate’s decision, 27 June 2017, until 6 May 2018. I find that the requirement in r.5.19(3)(g)(ii) is met.

34. Accordingly, the requirement in r.5.19(3)(g) is met.

    Satisfactory compliance with workplace relations laws: r.5.19(3)(h)

35. Regulation 5.19(3)(h) requires the applicant to have a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.

36. There is no evidence before me to indicate that the applicant has not complied with Commonwealth or State laws in relation to workplace relations or any other matter. Under policy, with no received information that suggests the applicant has not complied with workplace relations laws, I find that the applicant has a satisfactory record of compliance with such laws.

37. Accordingly, the requirement in r.5.19(3)(h) is met.

    Conclusion

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

    DECISION

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

    Sean Baker
    Member

    
    

    ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    5.19Approval of nominated positions (employer nomination)

    …

    (2)The application must:

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

    (aa) 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; and

    (b)be accompanied by the fee mentioned in regulation 5.37.

    Temporary Residence Transition nomination

    (3)The Minister must, in writing, approve a nomination if:

    (a)the application for approval:

    (i)       is made in accordance with subregulation (2); and

    (ii)      identifies a person who holds a Subclass 457 … visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and

    (iii)     identifies an occupation, in relation to the position, that:

    (A)is listed in ANZSCO; and

    (B)has the same 4-digit occupation unit group code as the occupation carried  out by the holder of the Subclass 457 … visa; and

    (b)the nominator:

    (i)       is, or was, the standard business sponsor who last identified the holder of the Subclass 457 … visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and

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

    (iii)     did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and

    (c)either:

    (i)       both of the following apply:

    (A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 …visa identified in subparagraph (a) (ii) has:    

    (I)held one or more Subclass 457 visas for a total period of at least 2 years; and

    (II)been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);

    (B)the employment in the position has been full-time, and undertaken in Australia; or

    (ii)      all of the following apply:

    (A)the person holds the Subclass 457 … visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);

    (B)the nominator nominated the occupation;

    (C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 … visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and

    (d)for a person to whom subparagraph (c)(i) applies:

    (i)       the person will be employed on a full-time basis in the position for at least 2 years; and

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

    (e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

    (i)are provided; or

    (ii)would be provided;

    to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

    (f)either:

    (i)       the nominator:

    (A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and

    (B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or

    (ii)      it is reasonable to disregard subparagraph (i); and

    Note Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that date.

    (g)either:

    (i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

    (ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and

    (h)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.