Hitec Welding Pty Ltd ATF J and M Lewandowski Family Trust (Migration)

Hitec Welding Pty Ltd ATF J and M Lewandowski Family Trust (Migration) [2019] AATA 6919 (1 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Hitec Welding Pty Ltd ATF J and M Lewandowski Family Trust
CASE NUMBER:  1618245
DIBP REFERENCE(S):  BCC2016/440089
MEMBER:Bridget Cullen
DATE:1 May 2019
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision under review to refuse the nomination.
Statement made on 01 May 2019 at 7:05pm

CATCHWORDS
MIGRATION – application for approval of nomination of position – temporary residence transition stream – adverse information – failure to comply with sponsorship obligations – five-year bar from applying for approval as sponsor, varied to three years by tribunal – no requirement that nominating employer be an approved standard business sponsor – nominee’s work history and value to employer – circumstances leading to bar – not reasonable to disregard adverse information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 140M, 359A
Migration Regulations 1994 (Cth), rr 1.13A, 1.13B, 2.90, 5.19

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 Immigration on 13 October 2016 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).
The Applicant applied for approval on 29 January 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).
In this case, the Applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.
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, and the delegate did not consider it reasonable to disregard the information.
The Tribunal originally set down a hearing for 20 February 2018. The Applicant appeared before the Tribunal on 2 March 2018 to give evidence and present arguments. The Tribunal received oral evidence from Mr Joe Lewandowski, the Applicant's director; Mr Peter Stupak, a project manager/electrical engineer employed by the Applicant; Mr Raymond Ting, the Applicant's accountant; and Mr Banez, the nominee and visa Applicant.
The Applicant was represented in relation to the review by Mr Guy Gilbert, SC, of counsel, who was instructed by the Applicant's registered migration agent and solicitor, Mr Ricky Bustos of M+K Lawyers. The representatives attended the Tribunal hearing.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
No adverse information known to Immigration: r.5.19(3)(g)
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.
The delegate’s decision, provided to the Tribunal by the Applicant in conjunction with the review, provides that the adverse information known to the Department was that the Applicant was sanctioned under s.140M(2) of the Act for failure to comply with sponsorship undertakings required of approved business sponsors. The sanction imposed a five-year ban on the Applicant from making future applications for approval as a sponsor for temporary visas where sponsorship is a criterion, effective as of 2 September 2016.
The Department provided the review Applicant an opportunity to comment on the information. The delegate did not consider it reasonable to disregard the adverse information, and refused the nomination.
Tribunal’s invitation to comment
On 27 March 2019, the Tribunal varied the Tribunal varied the period of the sponsorship bar under s.140M(2) from five (5) years to three (3) years from the date of the Department’s decision (making an end to the sponsorship bar of 2 September, 2019).
On 29 March 2019 the Tribunal wrote the following to the Applicant pursuant to s.359A of the Act, inviting the Applicant to comment on information that it considered would be part of the reason for affirming the decision under review in writing:
“On 2 September 2016, you were sanctioned under 140M(2) of the Migration act for failure to comply with the sponsorship undertakings required of an approved business sponsor for temporary visas. A five (5) year ban was imposed on you “from making future applications for approval as a sponsor for all temporary visas for which sponsorship is a criterion”. This sanction was put in effect on 2 September 2016, until 2 September 2021.
On 27 March 2019, the Tribunal varied this decision, imposing instead a three (3) year ban. This sanction was dated from 2 September 2016, until 2 September 2019.
This information is relevant to the review because Regulation 5.19(3)(g) requires that there is no adverse information known about the nominator and/or a person associated with the nominator, or, if known, it is reasonable to disregard that adverse information.”
The Applicant, through its representative, requested an extension of time to respond to the Tribunal’s invitation to comment, on 12 April 2019. The Tribunal granted the extension with the requested duration, resulting in a new due date of 29 April 2019. The Applicant provided a response on 29 April 2019.
The information is adverse
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.
The applicant, in its submissions filed 29 April 2019, concedes that the sponsorship bar falls within the definition of adverse information. The Tribunal finds that the sponsorship bar is adverse information within the meaning given in rr.1.13A and 1.13B definition, as the applicant, being the nominator (1.13A(1)(b)), has been subject to an administrative action relating to immigration ((1.13A(2)(c)).
As the Tribunal has found that adverse information is known to Immigration about the nominator it must consider whether it is reasonable to disregard that information. In this case, the Tribunal must consider whether it is reasonable to disregard the sponsorship bar applicable to the Applicant.
Under Departmental policy, factors which may be taken into account in deciding whether it is reasonable to disregard the adverse information include but are not limited to:
·the nature of the adverse information;
·how the adverse information arose, including the credibility of the source of the adverse information;
·in the case of an alleged contravention of a law, whether the allegations have been substantiated or not;
·whether the adverse information arose recently or a long time ago;
·whether the applicant has taken any steps to ensure the circumstances which led to the adverse information did not recur; and
·information about relevant findings made by a competent authority in relation to the adverse information, and the significance attached by the competent authority to the adverse information.
In its written submissions, the Applicant correctly notes that a sponsorship bar does not prevent the making of nomination applications under r.5.19. This is because there is no requirement that a nominating employer under r.5.19 be an approved Standard Business Sponsor.
The Applicant asks that the Tribunal consider its full and frank admissions, the age of the matters that led to the sponsorship bar (2015 and 2016), the steps it has taken to ensure future compliance, and the impact that the sponsorship bar has had on its business.
Further, the Applicant asks the Tribunal to consider the niche nature of its welding operations. It says that most of its competition has moved business offshore, as the cost of operating in Australia is too high. It has endeavoured to create competitive advantage by producing a superior product to that produced offshore.
The Applicant says it has struggled to hire apprentices, but struggles to compete with the premiums being offered to do similar work in the mines, because of the ‘fly in fly out’ premiums being offered to workers there.
The Applicant submits that the Tribunal should disregard the adverse information, as the nominee, Mr Banez, has made a substantial and significant contribution to the Applicant’s operations as a senior metal fabricator. Mr Banez was first nominated by the Applicant, on a subclass 457 visa, at the beginning of 2011. Since that time, the Applicant says that Mr Banez has been a “hard-working, loyal and a senior employee who has played a crucial part in the successes of the business”. Because of Mr Banez’s in-depth knowledge of the type of work carried out by the Applicant, and his proficiency in reading technical engineering documents, Mr Banez is a key employee.
Additionally, Mr Banez works significant overtime due to the Applicant’s labour shortages, such that he earns in excess of the minimum requirements contained in his employment contract, and in the approved nominations under the subclass 457 visa program. This is supported by Mr Banez’s 2012-2018 PAYG Summaries, which have been provided to the Tribunal.
The Tribunal appreciates that the Applicant may experience pressure in securing employees as a consequence of the impact of the sponsorship bar, and further that Mr Banez is a key employee. The information before the Tribunal, which includes supporting references in relation to Mr Banez, is entirely favourable to Mr Banez. The Tribunal accepts, as noted by the Applicant in its submissions, that the adverse information stems only from its actions, and not from Mr Banez.
The Applicant points to a statement contained in the Australian Parliament’s Explanatory Memorandum relating to the definition of Adverse Information in r.1.13A and r.1.13B:
“This is an important integrity measure, intended to prevent exploitation of overseas workers and ensure that Australian employment standards and opportunities for Australian workers are not compromised.”
The Applicant submits that an approval of this nomination would not interfere with Parliament’s intention, as the evidence here points to a longstanding relationship with Mr Banez, with no indicia of exploitation. The Tribunal accepts that the employment relationship with Mr Banez has been positive, and notes that there is no information before the Tribunal indicating that Mr Banez has been exploited.
However, the Tribunal does not consider that it is reasonable to disregard the adverse information in all of the circumstances. Mr Banez is not the only employee of the Applicant, and the Tribunal notes that, in part, the sponsorship bar was imposed as a consequence of the Applicant having underpaid three other staff members.
The Tribunal considers that the applicant’s conduct in double contracting, in contravention of r.2.90(2) must be given significant weight, as well, in considering whether it is reasonable to overlook the adverse information. This is not a matter where the Applicant merely failed to keep the records required of an approved sponsor. The finding in relation to the double contracting is significant and the provision by the Applicant of false or misleading information to the Applicant cannot be explained away through mere inadvertence.
The Tribunal is of the view that a three-year sponsorship bar is a very significant administrative action taken against the applicant. It is the case that, at the date of this decision, the Applicant remains subject to the sponsorship bar, with approximately 4-months of the applicable period remaining. That the sponsorship bar is still operative is a factor that the Tribunal considers significant weight should attach to in considering whether it is reasonable to disregard the adverse information. This is not a situation where the Applicant was, in the distant past, subject to a bar, where the Tribunal could consider that through the effluxion of time, the Applicant’s past was no longer relevant.
The Tribunal considers that the circumstances that led to the sponsorship bar are serious, and that there is no reasonable basis on which the Tribunal could disregard the adverse information. The Applicant’s conduct compromised the integrity of the programs that permit Australian sponsors to employ foreign nationals, generally. The Tribunal is not persuaded that it would be reasonable to disregard the adverse information on the basis that a nomination made under r.5.19 does not need to be made by an approved Standard Business Sponsor.
For the above stated reasons, and based on the information before it the Tribunal does not consider it reasonable to disregard the adverse information in this instance.
Accordingly, the requirement in r.5.19(3)(g) is not met.
For the above reasons the Tribunal is not satisfied that the Applicant meets the requirements of r.5.19(3). The Applicant has not sought to satisfy the criteria in Direct Entry nomination stream, and as such has not met the requirements in r.5.19(4). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.
DECISION
The Tribunal affirms the decision under review to refuse the nomination.
Bridget Cullen
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.

[2019] AATA 6919

1 May 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction