Hairway Fountaingate Pty Ltd (Migration)

The Administrative Appeals Tribunal considered an application by Hairway Fountaingate Pty Ltd for approval of a nomination for a position under the Temporary Residence Transition stream. The core of the dispute revolved around whether adverse information known to the Department of Immigration, specifically a sponsorship bar imposed on the nominator, should prevent the approval of the nomination.

The Tribunal was required to determine if the applicant met all the requirements for approval of the nomination under regulation 5.19(3) of the Migration Regulations 1994. This included assessing whether the application was compliant, the status of the nominator as an actively and lawfully operating business sponsor, the previous employment of the nominee, and crucially, whether there was adverse information known to Immigration about the nominator, and if so, whether it was reasonable to disregard such information.

The Tribunal found that the applicant met the requirements of regulations 5.19(3)(a), (b), and (c). Regarding regulation 5.19(3)(g), the Tribunal acknowledged the existence of adverse information concerning a sponsorship bar imposed on the nominator. However, the Tribunal noted that this bar had been varied in a previous proceeding to expire on 6 May 2018, meaning it was no longer in effect at the time of this decision. In considering whether it was reasonable to disregard the historical adverse information, the Tribunal took into account policy factors, the nature of the breach (a contravention of sponsorship obligations), the applicant's concession of the breach, and importantly, the significant and durable changes implemented by the business to prevent future non-compliance. The Tribunal concluded that these changes made further non-compliance unlikely.

Based on these findings, the Tribunal was satisfied that Hairway Fountaingate Pty Ltd met the requirements of regulation 5.19. Consequently, the Tribunal set aside the decision under review and substituted a decision approving the nomination.