Hospitality Commercial Cleaning Services Pty Ltd (Migration)

Hospitality Commercial Cleaning Services Pty Ltd (Migration) [2021] AATA 1685 (23 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Hospitality Commercial Cleaning Services Pty Ltd
CASE NUMBER:  1835470
HOME AFFAIRS REFERENCE(S):          BCC2016/403713
MEMBER:Mr S Norman
DATE:23 April 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 23 April 2021 at 10:16am
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Temporary Residence Transition nomination stream – Program or Project Administrator – adverse information – nominator suspended from sponsoring more individuals – pecuniary penalty paid – suspension period ended – reasonable to disregard adverse information – decision under review set aside

LEGISLATION
Migration Regulations 1994 (Cth), rr 1.13A, 1.13B, 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 Home Affairs on 16 November 2018 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 Department delegate’s decision was lodged with the Tribunal.
The applicant applied for approval on 27 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 stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). 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.
The applicant was represented in relation to the review by its registered migration agent.
The Tribunal notes this is one of eight nomination applications lodged by the applicant and constituted to the present Tribunal. There was a substantial amount of common evidence the Tribunal had requested which was relevant to each case, and some evidence that was pertinent to an individual case. That being said, and after having attended one hearing (on an alternate case), after having considered all the evidence, the Tribunal decided to make its decision on the papers.
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 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.
On 27 January 2016, the applicant/nominator (HOSPITALITY COMMERCIAL CLEANING SERVICES PTY LTD), lodged a nomination application under the Temporary Residence Transition stream; the nominated occupation was for a Program or Project Administrator (ANZSCO: 511112); the visa applicant/nominee was Mr Thapa SHAILENDRA (Nepal); and the base salary per annum was $55,000.
Substantial evidence and submissions were lodged by and on behalf of the applicant. Though not all has been expressly referred to herein, the Tribunal has taken into account all evidence and submissions prior to finalising this decision.
The application must be compliant: r.5.19(3)(a)
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.
Based on the evidence before the Tribunal, I accept the nomination application was made on the approved form and accompanied by the fee prescribed in r.5.37; that it included a written certification stating whether the nominator has engaged in conduct in relation to the nomination that contravened s. 245AR(1); that it identified a person who holds a Subclass 457 visa granted on the basis of satisfying cl.457.223(4); and that it identified an occupation in relation to the position that is listed in ANZSCO and has the same 4 digit code as the occupation carried out by the Subclass 457 visa holder.
Given the above findings, the requirement in r.5.19(3)(a) is met.
Status of the nominator: r.5.19(3)(b)
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.
The Tribunal has seen a Department letter dated 25 February 2015 indicating that Metro Global (Australia) P/L (now HOSPITALITY COMMERCIAL CLEANING SERVICES PTY LTD) was approved as a standard business sponsor for temporary business visas for the period 25 February 2015 to 25 February 2016.[1] Also lodged was evidence on the Department and Tribunal electronic files, of ASIC information; Organisation charts; and substantial evidence of business activity.
[1] PDF – p.787 (‘PDF’ refers to the merged file in the Tribunal CASEMATE database).
As noted above, the applicant applied for approval on 27 January 2016. Based on the evidence before it (including that which is set out herein), the Tribunal accepts the applicant is 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).
Given the above, the requirement in r.5.19(3)(b) is met.
Previous employment of the nominee: r.5.19(3)(c)
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.
Again, as noted above the applicant applied for approval on 27 January 2016. The evidence before the Tribunal includes that the nominee was granted a Subclass 457 visa on 16 November 2012, that she was then employed as a full time Program or Project Administrator (ANZSCO: 511112), and that she was nominated by her present nominator.
By letter of 14 April 2021, from Meriton Suites and signed by the Group General Manager, it was therein claimed the associated visa applicant had been engaged by them as a Project Manager since 2016. However, the nomination application was lodged 20 January 2016.
Be that as it may, based on the evidence, the Tribunal accepts the nominee was employed full time in Australia in the position for which they held the Subclass 457 visa for at least 2 of the 3 years preceding the nomination application.
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)
Regulation 5.19(3)(d) only applies to certain nominees (those described in r.5.19(3)(c)(i) – and which applies to the associated nominee). 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.
With the nomination application was lodged:
·     Bank statements
·     Activity statements
·     Tax information
·     Balance Sheet as at December 2015
·     Profit and Loss Statement from July to December 2015 – net profit was $841,042.66[2]
·     Contract of Employment dated 15 January 2016 / and 16 June 2019
·     PAYG evidence for the visa applicant
[2] PDF – p.49.
In response to the Tribunal s.359(2) letter dated 18 August 2020, the applicant lodged:
·     Profit and Loss Statement for year ending 30 June 2019 – profit from ordinary activities before income tax for 2019 was $852,392.59 / 2018 was $336,481.93
·     retained profits at the end of the financial year for 2019 was $5548.31
·     Activity statements for HOSPITALITY COMMERCIAL CLEANING SERVICES PTY LTD:
·April to June 2018 – total sales $4,691,345 / total salary wages and other payments $2,535,730
·July to September 2018 – total sales $4,763,166 / total salary wages and other payments not stated
·October to December 2018 – total sales $3,947,355 / total salary wages and other payments not stated
·January to March 2019 – total sales $4,376,590
·April to June 2019 – total sales $4,377,771
·July to September 2019 – total sales $3,796,372
·October to December 2019 – total sales $3,207,910
·January to March 2020 – total sales $2,878,930
·     Company Tax Return 2019 – taxable net income $98,989
In response to a request in another case (same nominator), and with agreement, the Tribunal has considered the following evidence that was lodged:
·     Statement of Profit & Loss for year ending 30 June 2020 – operating profit after income tax for 2020 / $323,092 - net assets 2020 / $328,740
·     BAS Statements (Jul 2020 – Dec 2020)
·     Bank Statements
·     Worker insurance evidence
·     Tax Agent Portal extracts
·     Payslips
The Tribunal was also advised the primary focus of the applicant business was on cleaning hotels, though cleaning of office space, residential complexes and other larger premises was also undertaken. The independent evidence seen by the Tribunal included:
NSW's unemployment rate is expected to hit its highest level in 23 years by Christmas and will not return to levels seen before the coronavirus crisis until mid-2024.[3]
[3] Unemployment in NSW to hit a 23-year peak by next month, 16 November 2020, The Sydney Morning herald, NSW budget: Unemployment to hit 23-year peak by next month (smh.com.au) , accessed 13 January 2021; and also see OECD predicts rising Australian unemployment in 2021, NEWDAILY, 2 December 2020, OECD predicts rising unemployment in 2021 (thenewdaily.com.au) , accessed 13 January 2021.
Further, a consequence of COVID-19 is that employees may now be more likely not to have to work at a (city) office space (being a substantial part of the applicant business):
AGL Energy, Brambles, Lendlease, Stockland, Commonwealth Bank, Macquarie Group, Westpac, Origin Energy, Woolworths Group, PwC, KPMG and Deloitte were among the 25 employers surveyed.
Nearly all employers surveyed said staff could start at flexible times and 19 of the 25 said they could choose what days to work in the office.
One in five companies and firms expected staff to return to the office two or three days a week next year, while a similar amount expected a full-time return to the office.[4]
and:
Sydneysiders are keen to keep working from home, transport data suggests, as a small number of new COVID-19 infections continue to be linked to clusters around the city
While trips on Sydney's public transport network had shown signs of recovery — patronage in December was at the highest levels since March's lockdowns — an ABC analysis of tap-on data shows it has since fallen off a cliff.
About 80,000 to 100,000 trips were taken during the peak morning and afternoon periods in Sydney on Monday, when many people returned to work after a summer break.
That's less than half of the 200,000 to 250,000 trips on the corresponding day last year.[5]
[4] Work as a concept, not a place we go: bosses mull return to office, 14 December 2020, Financial review, Work as a concept, not a place we go: bosses mull return to office (afr.com) , accessed 13 January 2021.
[5] Data shows public transport usage has fallen off a cliff as COVID-19 cases grow in Sydney, 13 January 2021, ABC News, Data shows public transport usage has fallen off a cliff as COVID-19 cases grow in Sydney - ABC News , accessed 13 January 2021.
However, the applicant business is a substantial international business with large operations in Australia (as evidenced by inter alia the Activity Statements lodged). Therefore, and even if the business was adversely impacted by COVID-19, and may continue to be adversely impacted for some time, the Tribunal believes that in this case it is appropriate to extend to the applicant the benefit of the doubt.
Accordingly, and based on all the evidence before it, the Tribunal accepts that r.5.19(3)(d) applies in this case (as per r.5.19(3)(c)(i)); and that based on the contract of employment and given the Tribunal is satisfied of the applicant’s financial capacity, 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.
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)
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.
As noted above, the applicant lodged a Contract of Employment dated 15 January 2016 and 16 June 2019. The nominee was then to be paid the base salary per annum of $55,000. The evidence before the Tribunal included that the average base salary for a Project Administrator in Australia was $62,165 (range between AUS$49 – AUS $79K).[6]
[6] Payscale, Average Project Administrator, Engineering Salary in Australia, Project Administrator, Engineering Salary in Australia | PayScale , accessed 20 January 2021.
In the nomination application, the applicant said the business employed 200 ‘Australian employees’ and 1700 ‘foreign employees’. The gross payroll expenditure was $44,524,428 and the gross expenditure on training Australia citizens or permanent residents in the then past 12 months was $639,391.[7]
[7] PDF – 13.
After then considering all the evidence, the Tribunal accepts the terms and condition applicable to the position will be no less favourable than those that are/would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
Accordingly, the requirement in r.5.19(3)(e) is met.
Training commitments and obligations: r.5.19(3)(f)
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.
With the nomination application, the applicant lodged an Accountant letter dated 17 December 2015:[8]
[8] PDF – p.44.
By applicant letter of 12 April 2021, signed by the General Manager, it was claimed:
The applicant also lodged evidence of multiple apprenticeship training plus other related evidence (and corroborating source documents were also lodged).
In response to the Tribunal s.359(2) letter dated 18 August 2020, the applicant lodged:
Based on the evidence, the Tribunal accepts that the training expense amounted to over 1% of the gross salary. Therefore, the applicant has fulfilled their commitments relating to meeting the training requirements in the relevant period.
Accordingly, the requirement in r.5.19(3)(f) is 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.
As noted in the delegate’s decision, on 6 September 2018, HOSPITALITY COMMERCIAL CLEANING SERVICES PTY LTD was sanctioned by the Department and barred from making applications for approval as a standard business sponsor and temporary activities sponsor for 12 months (from 6/09/2018 to 06/09/2019), along with a pecuniary penalty. The sanction is adverse information within the meaning of r.1.13A and had a negative effect on this nomination application. On 19 September 2018, the Department requested the applicant comment in writing within 28 days. On 16/10/2018, the applicant lodged documents and submissions in response to the 19th September 2018 correspondence (via their migration agent). No further evidence was said to have been lodged.
The delegate then said the adverse information was relevant to the applicant's suitability as an approved sponsor within the meaning of regulation 1.13A. Therefore, the provision of r.5.19(3)(g)(i) does not apply.
Next, the delegate considered circumstances in which it may be reasonable to disregard the adverse information pertaining to the nominator, in accord to r. 5.19(3)(g)(ii). Under Department 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
·     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.
After considering the accepted evidence and policy, the delegate then said they did not consider it reasonable to disregard the adverse information. Accordingly, the application did not met r. 5.19(3)(g)(i) or (ii); or r.5.19(3). Next, the delegate said the applicant only provided claims against r.5.19(3); and that since insufficient claims or evidence had been lodged against r.5.19(4), the nomination application did not meet r.5.19(4).
The delegate then refused the nomination application lodged by HOSPITALITY COMMERCIAL CLEANING SERVICES PTY LTD – which had been lodged on 27 January 2016.
In response to the s.359(2) letter dated 18 August 2020, the applicant lodged evidence of the Department decision dated 6 September 2018, to prevent the applicant from sponsoring more individuals for the period specified; and the Tribunal decision affirming the Department decision to prevent the applicant from sponsoring more individuals for a period specified (# 1828398 – 22 July 2020).
The Tribunal was subsequently advised, that after the suspension period, the Department had approved a further nomination application lodged by the nominator (evidence of same was lodged with the Tribunal – attached to the agent submissions of 13 April 2021). On the applicant’s behalf, it was also claimed (words to the effect) the applicant had been punished for the offence and that same had taken place some time ago (the suspension period ended on 6 September 2019 – some 16 months prior to the Tribunal hearing). The Tribunal accepts the breach had occurred some time ago and the penalty had now been served, and the associated fine had been paid. Finally, the applicant lodged evidence of steps that had been taken in order to ensure the breach did not re-occur (evidence of same was lodged with the Tribunal – attached to the agent submissions of 13 April 2021).

After then considering the evidence, the Tribunal is satisfied there exists adverse information known about the nominator; but that it is now reasonable to disregard that information.
Accordingly, the requirement in r.5.19(3)(g) is met.
Satisfactory compliance with workplace relations laws: r.5.19(3)(h)
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.
Apart from that which is discussed above, the Tribunal has no evidence of any non-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.
Accordingly, the requirement in r.5.19(3)(h) is met.
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
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Mr S Norman
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.

[2021] AATA 1685

23 April 2021

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