Hospitality Commercial Cleaning Services Pty Ltd (Migration)

[2021] AATA 1499

Hospitality Commercial Cleaning Services Pty Ltd (Migration) [2021] AATA 1499 (17 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Hospitality Commercial Cleaning Services Pty Ltd

CASE NUMBER:  1835462

HOME AFFAIRS REFERENCE(S):          BCC2016/1420510

MEMBER:Mr S Norman

DATE:17 March 2021

PLACE OF DECISION:  Sydney

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

Statement made on 17 March 2021 at 10:38am

CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition nomination stream –training benchmark commitments and obligations – applicant is approved as a standard business sponsor – lawfully operating business – no adverse information known to Immigration – decision under review set aside

LEGISLATION
Migration Act 1958, ss 245AR, 359
Migration Regulations 1994, rr 1.13, 5.19

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 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.

2. The applicant applied for approval on 11 April 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).

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.

5. The applicant/nominator (represented by Mr Jerry HAOXU) appeared before the Tribunal on 18 January 2021, to give evidence and present arguments. The Tribunal also received oral evidence from the associated visa applicant/nominee (Ms Parbati THAPA RANA)

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.

9. The applicant/nominator (now HOSPITALITY COMMERCIAL CLEANING SERVICES PTY LTD) lodged a nomination application under the Temporary Residence Transition stream on 11 April 2016; the nominated occupation was as a Contract Administrator (ANZSCO: 511111); the visa applicant/nominee was Ms Parbati THAPA RANA[1] (Nepalese citizen); and the base rate of pay per annum was $55,000.[2] The visa applicant was to be employed in Zetland NSW 2017.

   [1] Nomination application – p.6.

   [2] Nomination application – p.4.

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

10. 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.

11. Based on the information before the Tribunal, I accept the nomination application was lodged on the correct form and accompanied by the fee prescribed in r.5.37; that it included written certification stating the nominator had not engaged in conduct in relation to the nomination that contravened s. 245AR(1)[3]; 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.

    [3] PDF – p.268.

12. Given the above findings, the requirement in r.5.19(3)(a) is met.

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

13. 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.

14. With the nomination, the applicant lodged ASIC evidence (company registration 23 July 2014), Current Company Extract (ASIC), Certificate of Registration on Change of Name advising that on 28 January 2016, Metro Global Australia Pty Ltd changed its name to Hospitality Commercial Cleaning Services Pty Ltd, ABN Look up information. The applicant also subsequently lodged an ASIC Current & Historical Extract;[4] Change of Company Name Certificate;[5] evidence of company structure; [6] and a ‘creditor watch’ assessment indicating the applicant company held a ‘safer’ credit score than the average Australian proprietary company.[7]

    [4] 18 February 2021 agent submissions – from p.4. 

    [5] 18 February 2021 agent submissions – from p.23.

    [6] 18 February 2021 agent submissions – from p.40. 

    [7] 18 February 2021 agent submissions – p.5.

15. Further, and in their letter of 25 February 2021, the agent advised:

16. The Tribunal notes that an application for review of a reviewable decision under s.338(9) and r.4.02(4)(e) may only be made by ‘the employer to whose nomination of a position the decision relates to’: r.4.02(5)(d) – as applicable at the time the review application was made for this matter (3 December 2018). Relevant information provided in the agent’s letter of 25 February 2021, stated:

17. After considering the evidence and submissions, the Tribunal proposes to accept that Hospitality Commercial Cleaning Services Pty Ltd (formerly known as Metro Global Australia Pty Ltd) meets r.4.02(5)(d). Accordingly, the Tribunal accepts that the applicant (Hospitality Commercial Cleaning Services Pty Ltd), did and continues to have standing to appear before the Tribunal at hearing.

18. Further, and based on the evidence on the Department and Tribunal file, I accept the applicant is the relevant standard business sponsor who is actively and lawfully operating a business in Australia; and that the nominee 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).

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

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

20. 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.

21. The evidence before the Tribunal included that the nominated position for the last subclass 457 visa held by the visa applicant was as a Contract Administrator (is ANSZCO: 511111) with a salary of $55,000.00. Further, that the nominator as per ICSE records at the time was Metro Global Australia Pty Ltd (now Hospitality Commercial Cleaning Services Pty Ltd).

22. By statement dated 11 April 2016, it was explained the company was established in July 2014 and had taken over the entire operation and the business premises, clients and staff members, including the Subclass 457 Visa holders. It was further explained inter alia the business changes only involved changing the ABN and principals of the business; that the nominees 457 Visa was granted on 28 March 2014; and that the nominee had continued to be paid.[8]  

    [8] PDF – p.72.

23. Based on the evidence lodged with the Department and Tribunal, including that which was lodged post hearing, I accept 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 (being lodged on 11 April 2016).

24. 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)

25. Regulation 5.19(3)(d) only applies to certain nominees (those described in r.5.19(3)(c)(i) – and by which relates to the present applicant). 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.

26. As well as that information set out above, it was further explained the business changes only involved changing the ABN and principals of the business; that the nominees 457 Visa was granted on 28 March 2014; and that the nominee had continued to be paid.[9] Also lodged was a letter dated 15 July 2015 which indicated that on 30 March 2015 the former company (Metro Global Australia Pty Ltd) ‘was placed into liquidation’.[10]

    [9] PDF – p.72.

    [10] PDF – p.279.

27. With the nomination, the applicant lodged bank statements and:

    ·Balance Sheet as at December 2015[11]

    [11] PDF – p.39.

    ·Profit and Loss Statement from July 2015 to December 2015[12] – net income was $841,042.66[13]

    [12] PDF – p.41.

    [13] PDF – p.43.

    ·Activity statements:

    ·August to September 2014

    ·October to December 2014

    ·January to March 2015

    ·April to June 2015

    ·July to September 2015 (and others)

    ·Organisation Chart[14]

    ·Evidence of the visa applicant’s superannuation[15]

    ·evidence of the applicant’s pay advice[16]

    ·PAYG summaries[17]

    [14] 18 February 2021 agent submissions – p.41.

    [15] PDF – p.269.

    [16] PDF – from p.273.

    [17] PDF – from p.278.

28. In response to the Tribunal s.359(2) letter dated 10 August 2020, the applicant lodged:

    ·     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[18]

    [18] PDF2 – p.85.

    ·     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 for 2018 – total income was $18,360,149 / total profit was $336,482 / taxable net income was $0[19]

    ·     Company Tax Return for 2019 for Hospitality Commercial Cleaning Services[20] - total income was $15,952,484 / total profit was $852,393 / taxable net income was $98,989

    ·     Profit and Loss Statement for year ending 30 June 2019

    ·Retained profits at the end of the financial year for 2019 was $5548.31 / and for 2018 was $1,432,852.53[21]

    ·Profit from Ordinary Activities before income tax for 2019 was $852,392.59 / and for 2018 was $336,481.93[22]

    ·     Profit and Loss Statement for year ending 30 June 2018 - profit from ordinary activities before income tax was $336,481.93[23]

    ·     Notice of assessment for year ended 30 June 2019 for the Visa applicant – taxable income was $56,758[24] (others were lodged)

    ·     Contract of Employment dated 11 April 2016[25] & dated 16 March 2018[26]

    [19] PDF2 – p.1157.

    [20] PDF2 – from p.636.

    [21] PDF2- p.799.

    [22] PDF2 – p.802.

    [23] PDF2 – p.1195.

    [24] PDF2 – p.1190.

    [25] PDF – from p.282.

    [26] 18 February 2021 agent submissions – from p.338.

29. At hearing, the Tribunal requested post hearing submissions (by 18 February 2021) and inter alia the following was lodged:

    ·     Financial statements for ‘FY 2019’[27] – that included:

    [27] 18 February 2021 agent submissions – from p.48.

    ·     Retained profits for 2018 / $1,432,852.53 – and for 2019 / $5,5548.31[28]

    ·     Gross profit from trading for 2018 / $17,066.276.25 – and for 2019 / $11,432,723.70[29]

    ·     Profit from Ordinary Activities before income tax for 2018 / $336,481.93 – and for 2019 / $852,392.59[30]

    ·     Statement of Profit & Loss for year ending 30 June 2020 – operating profit after income tax for 2020 / $323,092[31] - net assets 2020 / $328,740[32]

    ·     BAS Statements (Jul 2020 – Dec 2020) [33]

    ·     Bank Statements

    ·     Worker insurance evidence[34]

    ·     Tax Agent Portal extracts[35]

    ·     PAYG summaries for the associated visa applicant[36] – from 2017

    ·     Payslips for the visa applicant (Nov 2020 – Jan 2021[37])

    [28] 18 February 2021 agent submissions – p.51. 

    [29] 18 February 2021 agent submissions – p.52.

    [30] 18 February 2021 agent submissions – p.54.

    [31] 18 February 2021 agent submissions – p.64.

    [32] 18 February 2021 agent submissions – p.66. 

    [33] 18 February 2021 agent submissions – from p.67. 

    [34] 18 February 2021 agent submissions – from p.154. 

    [35] 18 February 2021 agent submissions – from p.202.  

    [36] 18 February 2021 agent submissions – from p.348.

    [37] 18 February 2021 agent submissions – from p.352.

30. In the post hearing submission of 25 February 2021, it was noted (and the Tribunal accepts) that with one exception the visa applicant was paid her nominated full-time salary. The one exception was at 30 June 2020 where the applicant was paid $46,646 for the year (due to the impact of COVID-19), which was below the Temporary Skilled Migration Income Threshold. The Tribunal was also advised that since 1 November 2020, the hotel where the visa applicant was employed, had become a ‘quarantine hotel’. The Tribunal accepts this to be correct. After then considering the other evidence referred to herein (including information on the economy), the Tribunal will accept the applicant has the capacity to pay the visa applicant the nominated amount for at least two years.

31. At the hearing, and when asked about the primary focus of the business, the applicant explained it was focussed on cleaning hotels, office space, residential complexes and other larger premises. The evidence seen by the Tribunal included:

    NSW's unemployment rate is expected to hit its highest level in 23 years by Christmas [2020] and will not return to levels seen before the coronavirus crisis until mid-2024.[38]

    [38] 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.

32. 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.[39]

    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.[40]

    [39] 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.

    [40] 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.

33. However, the applicant business is a substantial international business with large operations in Australia (as evidenced by inter alia the financial information 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.

34. Accordingly, 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 the evidence of the applicant’s financial capacity, 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.

35. 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)

36. 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 (Zetland NSW 2017).

37. The tasks for the nominated position (Contract Administrator) were said to include:

    ·     Assisting in developing and reviewing the company’s sales, purchase and other contracts with suppliers and clients

    ·     Overseeing, monitoring and managing the company’s contracts of housekeeping projects

    ·     Advising the operations department of contractual rights and obligations

    ·     Identifying and preparing variations to the company’s contracts

    ·     Managing paperwork associated with all contracts

    ·     Liaising with clients to maintain sound relationship with all clients

    ·     Reporting to senior management on delays and extension of time in execution of contracts[41]

    [41] PDF – p.86; see also PDF2 – from p.1239.

38. The applicant lodged a Contract of Employment dated 11 April 2016[42]; and one dated 16 March 2018.[43] In the nomination application, the applicant said they then did not already have Australian employees in the workplace doing the same work as the nominated person.[44] The applicant also had said the business employed 200 Australian citizens/permanent residents; 1700 foreign employees; 20 Temporary Visa holders and 1100 overseas students and 300 working holidaymakers and 300 ‘other’.[45] 

    [42] PDF – from p.282.

    [43] PDF2 – from p.1147.

    [44] Nomination application – p.4.

    [45] Nomination application – p.5.

39. In the nomination application, the applicant said the business employed nine apprentices under a training agreement or contract of training; and that it had a gross payroll expenditure of $44,524,428; and gross expenditure on training of $639,391.[46]

    [46] Nomination application – p.5. 

1. By statement dated 11 April 2016, it was claimed the salary for the nominated position was determined through research on Pay scale and the recruitment website Seek[47] (evidence lodged).

   [47] PDF – p.74.

2. After then having considered the evidence, the Tribunal is satisfied the terms and conditions of the visa applicant’s employment 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.

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

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

4. 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.

5. The evidence before the Tribunal included that the applicant was approved as a standard business sponsor on 25 February 2015, and that agreement expired on 25 February 2016.

6. As well as other evidence referred to herein, by statement dated 18 February 2016 the applicant said they had a National training manager amongst others and external trainers; they had employed eight trainees of government approved traineeships; that it aims to train all employees to improve skills and service quality.[48] by accountant letter dated 17 December 2015, it was stated in part:

   [48] PDF –p.91.

7. The applicant also lodged evidence of a Training Contract for various apprentices with varying dates[49]; evidence of payment training[50]

   [49] PDF – from p.94.

   [50] PDF – from p.195.

8. In response to the Tribunal s.359(2) letter dated 10 August 2020, the applicant lodged:

   ·     evidence of and payments for, training[51]

   ·     the following training expense table:

   ·     substantial further evidence of training was also lodged

   [51] PDF2 – from p.15.

9. The Department policy provided the following information about training:

   Overview

   The applicable training benchmarks (training benchmark A and training benchmark B) for the purpose of regulation 5.19(4)(h)(i)(B) are specified in the regulation 5.19(4)(h)(i)(B) legislative instrument.

   A business that has been operating for a period of at least 12 months is required to demonstrate:

   ·             for training benchmark A, recent expenditure, by the business, to the equivalent of at least 2% of the payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business, and a commitment, by the business, to maintain expenditure in each fiscal year, to that level, for the term of approval as a sponsor

   or

   ·             for training benchmark B, recent expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business, and a commitment, by the business, to maintain expenditure in each fiscal year, to that level, for the term of approval as a sponsor.

10. That being said, the Tribunal will accept that in the period of the applicant’s most recent sponsorship approval (25 February 2015 to 25 February 2016), the applicant fulfilled the commitments made relating to meeting the training requirements during that period; including having met Benchmark A.  

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

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

12. 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.  

13. In their decision, the delegate noted that on 6 September 2018, the applicant was sanctioned by the Department and barred from making applications for approval as a standard business sponsor and temporary activities sponsor for 12 months - being for the period 6 September 2018 to 6 September 2019. The delegate was satisfied this constituted adverse information within the meaning of r.1.13A, and that (words to the effect) this information may adversely impact the consideration of the case. On 21 September 2018, the nominator was provided an opportunity to comment within a prescribed period. On 16 October 2018, the applicant provided (in part):

    ·HCC Procedural Fairness - a submission from the Migration Agent

    ·HCC Waiver Bar – a copy of submission from the Migration Agent sent to the Minister of Department of Home Affairs[52]

    ·Copy of Financial Statements 2016 - HCSC Pty Ltd

    [52] PDF – from p.307.

14. The delegate continued that the submission was focused more on the issue of reasonableness to disregard the adverse information, rather than disputing it. As part of the submission, a statement was also made that the applicant business was “highly unlikely that it will commit the same mistake again in the future”. 

15. The delegate then said they had given weight to the severity of the breach by the nominator; and they then noted that when assessing the breach, a Department officer had given weight to the material evidence provided, including that lodged in response to the Notice of Intention to Take Action (NOITTA). The delegate noted the breach had also resulted in the imposition of a pecuniary penalty for contravention of a civil penalty provision plus a 12-month sanction.

16. The delegate acknowledged the applicant had lodged an appeal to the AAT, “against the decision to bar it for further sponsorship”; however, there was then no information about the case. Further, there was no positive outcome from the Minister’s Office relating to the applicant letter to the Minister requesting waiver of the sanction (the Department decision was subsequently affirmed on 22 July 2020, by Tribunal decision #1828390).[53] Therefore, at the time of the delegate’s decision, the adverse information existed; and the delegate was satisfied this was adverse information 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) did not apply.

    [53] PDF2 – from p.107.

17. When then considering whether it was reasonable to disregard the adverse information known to Immigration about the nominator (see r.5.19(3)(g)(ii)), the delegate referred to Department policy for a list of non-exhaustive factors to take into account when deciding whether it was reasonable to disregard the adverse information. That stated (in part):

    ·     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

18. The delegate then said that after considering the evidence, they gave more weight to the adverse information. Further, the decision of the Department in imposing both the pecuniary penalty and the 12-month sanction had ‘overwhelming adverse effect and outweighed all considerations in favour of the nominator, including impact to the nominee and his family, the size and financial position of the company and its alleged previous good record and substantial compliance with its sponsorship obligations’. The delegate then found it was not reasonable to disregard the adverse information. Accordingly, the application did not satisfy r.5.19(3)(g)(ii); or r.5.19(3).

19. Next, the delegate found that the applicant had only provided claims against r.5.19(3). Since insufficient claims or evidence had bene submitted against r.5.19(4), the application also failed to meet r.5.19(4). On 16 November 2018, the delegate refused the nomination application lodged by the applicant (HOSPITALITY COMMERCIAL CLEANING SERVICES PTY LTD).

20. That being said, by migration agent letter dated 16 October 2018 it was stated (in part):

    HCC is a huge company with some one thousand staff at a time, which should be distinguished from those small and medium sized sponsoring companies in staff management.

    HCC has experienced frequent change in ownership and management in the last 5 years. The first business is called Metro Housekeeping Pty Ltd, whose business was taken over by Metro Global, which was later changed to HCC with the same ABN number. Every time the ownership and management was changed, there was a period of an absence of effective management, which is a compelling circumstance to it.[54]

    [54] PDF – p.304.

21. In response to the Tribunal s.359(2) letter dated 10 August 2020, the applicant lodged:

    ·     Notice of Decision dated 6 September 2018, referring to the penalties imposed on Hospitality Commercial Cleaning Services P/L[55]

    [55] PDF2 – from p.8.

22. The Tribunal was subsequently advised that after the suspension period had elapsed and the pecuniary penalty paid, the Department had approved a further nomination application lodged by the nominator (post hearing evidence of same was lodged with the Tribunal[56]). 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. Finally, in post hearing submissions dated 25 February 2021, and after referring to no further allegations of any breach, the Tribunal was advised:

    [56] 18 February 2021 agent submissions – from p.97, 108, 122.    

23. 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.

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

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

25. 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.

26. 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.

27. 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

28. 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.