Hunt Community Child Care Centre (Migration)

Hunt Community Child Care Centre (Migration) [2022] AATA 3453 (1 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Hunt Community Child Care Centre
CASE NUMBER:  1900192
HOME AFFAIRS REFERENCE(S):          BCC2018/4667552
MEMBER:Mary Sheargold
DATE:1 September 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to approve the applicant as a standard business sponsor.

Statement made on 01 September 2022 at 3:11pm
CATCHWORDS
MIGRATION – application for approval as standard business sponsor – adverse information known to department – in online application form, applicant ticked no to declaration that employees correctly paid – letter from bookkeeper stating correct payment but no documentary evidence provided – no appearance at hearing – proposed nominee granted visa under another sponsor – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 140E(1), 362B
Migration Regulations 1994 (Cth), rr 1.13A(1)(a), (2)(a), (e), 2.59(g), 2.60S, 2.61

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 21 December 2018 not to approve the applicant as a standard business sponsor.
The applicant applied for approval as a standard business sponsor under s 140E of the Migration Act 1958 (Cth) (the Act) and reg 2.61 of the Regulations on 24 October 2018. The delegate decided not to approve the application on the basis that the applicant did not satisfy reg 2.59(g) of the Migration Regulations 1994 (Cth) (the Regulations) because there was adverse information known to Immigration about the applicant.
On 2 August 2022, the Tribunal wrote to the applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the applicant to give evidence and present arguments at a hearing on 1 September 2022. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. The Tribunal also sent SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.
No response to the hearing invitation was received and the review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance s 379A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing.
Ms Nicole Patricia McVeigh liaised with the Tribunal frequently at the time this application was lodged in January 2019, and frequent emails from a “Miss Kenny”, sent from a Hotmail email account that may in fact belong to Ms McVeigh, were also sent. A number of documents were submitted to the Tribunal by hand. However, there has been no correspondence on this file from 6 February 2019 to 2 August 2022 when the hearing invitation was sent.
The Tribunal is cognisant that the authorised recipient email address for the applicant, [email protected], does not belie ownership by the applicant, but rather may belong to Ms McVeigh personally. Departmental records confirm that Ms McVeigh, the proposed nominee for a visa relating to this sponsorship approval, has since been granted a Subclass 482 visa sponsored by another organisation.
In these circumstances, and pursuant to s 362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
For the following reasons, the Tribunal has decided to affirm the decision under review not to approve the applicant as a standard business sponsor.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval as a standard business sponsor in accordance with the criteria in reg 2.59 and the additional criteria in reg 2.60S, which must be satisfied regardless of when the application for approval was made. For the application to be approved, all the requirements must be met: s 140E(1).
Adverse information
Regulation 2.59(g) requires that there is no adverse information known to Immigration about the applicant or a person associated with the applicant or it is reasonable to disregard such information. The terms ‘adverse information’ and ‘associated with’ are defined in regs 1.13A and 1.13B.
The delegate found that in the application form submitted online, the person completing the form declared “No” to the following statement: “The applicant declares that they:…have all Australian employees paid in accordance with an Enterprise Agreement or an internal salary table that reflects the current market salary rates for all occupations in their business”, and that this constituted adverse information within the meaning set out in r.1.13A.
Regulation 1.13A(1)(a) states that adverse information about a person includes any adverse information relevant to the person’s suitability as an approved sponsor. Regulation 1.13A(2) gives a non-exhaustive list of types of information that may be considered adverse information, including at r.1.13A(2)(a) where it states that adverse information includes information that that the person (in this case, the applicant) has contravened a law of the Commonwealth, a State or a Territory, and r.1.13A(2)(e) where it states that adverse information includes information that the person has given, or caused to be given, to the Minister, an officer, the Tribunal or an assessing authority a bogus document, or information that is false or misleading in a material particular. The Tribunal is satisfied that an admission by the applicant that it does not pay all of its Australian employees in accordance with an enterprise agreement or other structured measure of determining wages can constitute adverse information for the purposes of r.1.13A.
The delegate wrote to the applicant inviting comments on this declaration and requesting an explanation. However, no explanation was provided. Because of this, the delegate relied on the information available, being a declaration that all Australian employees were not paid in accordance with an enterprise agreement or an internal salary table that reflects the current market salary rate for all occupations in their business.
At review, the Tribunal has the benefit of several pleading, but unsigned letters from Ms McVeigh and “Miss Kenny” (no first name given), that the “No” box had been selected in error when completing the form, as well as a letter on the applicant’s letterhead, from Mr Paul Khazaal, who has signed off his letter as Paul Khazaal, Bookkeeper, with his mobile phone number printed. There is no signature on the letter. The letter simply states:
Dear Department of Immigration.
Staff at Hunt Community Childcare are paid within the Childrens Services Award 2010.
I have attached the table that we refer to for wages rates.
I apologise for any inconvenience caused, as this question was misunderstood.
If there any [sic] further queries, please do not hesitate to contact me.
Kind regards,
Paul Khazaal
An electronic copy of the pay guide for the Children’s Services Award 2010 MA000120 was also lodged on the applicant’s Tribunal file at the same time.
However, the applicant has provided no evidence to demonstrate the actual rates of pay for any of its staff. There are no rosters, payslips, PAYG statements, or copies of income tax returns for any employee that could assist the Tribunal in making findings of fact refuting the existence of the alleged adverse information.
Therefore, based on the limited evidence before it to counter the applicant’s allegedly mistaken election to declare “No” to the statement regarding the rates of pay for its Australian employees, the Tribunal is unable to make a finding that there is no adverse information known to Immigration about the applicant or a person associated with the applicant.
Further, there is no argument or evidence to support a finding that it would be reasonable to disregard that information. Factors that may be taken into consideration when determining whether it may be reasonable to disregard adverse information include the nature of that information, how the adverse information arose (including the credibility of the source), 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 leading 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.
While it is arguable that the letter from Mr Khazaal accurately reflects the facts that surrounded the making of this application, there is nothing further to demonstrate the applicant’s good faith dealings with its employees. The source of the adverse information relied on by the delegate was the person who completed the application form, presumably an employee or executive committee member of the applicant. There is no evidence either way regarding any proven contravention of law, or whether the applicant has taken steps to ensure it does not under pay staff in the future. The applicant failed to engage with the Department when a request for an explanation regarding the declaration was made. The applicant has remained silent for over 3.5 years and has failed to appear at the hearing scheduled for this application. As at the date of this decision, the Tribunal has no basis on which to find it would be reasonable to disregard the adverse information.
Given the above findings, the requirement in reg 2.59(g) is not met.
For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria prescribed in the Regulations to be approved as a standard business sponsor. Accordingly, the Tribunal must affirm the decision under review.]
decision
The Tribunal affirms the decision not to approve the applicant as a standard business sponsor.
Mary Sheargold
Member

ATTACHMENT - Extracts from the Migration Regulations 1994
2.59      Criteria for approval as a standard business sponsor
For subsection 140E (1) of the Act, the criterion that must be satisfied for the Minister to approve an application by a person (the applicant) for approval as a standard business sponsor is that the Minister is satisfied that:
(a)the applicant has applied for approval as a standard business sponsor in accordance with the process set out in regulation 2.61; and
(c)the applicant is lawfully operating a business (whether in or outside Australia); and
(f)if the applicant is lawfully operating a business in Australia:
(i)       the applicant has attested, in writing, that the applicant has a strong record of, or a demonstrated commitment to, employing local labour; and
(ii)      the applicant has declared, in writing, that the applicant will not engage in discriminatory recruitment practices; and
(g)either:
(i)       there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or
(ii)      it is reasonable to disregard any adverse information known to Immigration about the applicant or a person associated with the applicant; and.
(h)if the applicant is lawfully operating a business outside Australia and does not lawfully operate a business in Australia – the applicant is seeking to be approved as a standard business sponsor in relation to a holder of a [Subclass 457 visa] or a Subclass 482 (Temporary Skill Shortage) visa, or an applicant or a proposed applicant (the visa applicant) for a Subclass 482 (Temporary Skill Shortage) visa, and the applicant intends for the visa holder or visa applicant to:
(i)       establish, or assist in establishing, on behalf of the applicant, a business operation in Australia with overseas connections; or
(ii)      fulfil, or assist in fulfilling, a contractual obligation of the applicant.
2.60S Additional criteria for all classes of work sponsor — transfer, recovery and payment of costs
(1)For subsection 140E(1) of the Act, the criteria in this regulation are in addition to the criteria in regulations 2.59 and 2.60.
(2)The criteria that must be satisfied for the Minister to approve an application by a person (the applicant) for approval as a work sponsor mentioned in any of regulations 2.59 and 2.60 include a criterion that the Minister is satisfied that:
(a)the applicant has not taken any action, and has not sought to take any action, that would result in the transfer to another person of some or all of the costs, including migration agent costs, associated with the applicant becoming an approved work sponsor; and
(b)the applicant has not taken any action, and has not sought to take any action, that would result in another person paying to a person some or all of the costs, including migration agent costs, associated with the applicant becoming an approved work sponsor; and
(ba)the applicant has not taken any action, and has not sought to take any action, that would result in the transfer to another person of some or all of the costs, including migration agent costs, associated with a nomination under subsection 140GB(1) of the Act (including a fee mentioned in subregulation 2.73(5) or (7) or 2.73A(3) or nomination training contribution charge); and
(bb)the applicant has not taken any action, and has not sought to take any action, that would result in another person paying to a person some or all of the costs, including migration agent costs, associated with a nomination under subsection 140GB(1) of the Act (including a fee mentioned in subregulation 2.73(5) or (7) or 2.73A(3) or nomination training contribution charge); and
(c)the applicant has not taken any action, and has not sought to take any action, that would result in the transfer to another person of some or all of the costs, including migration agent costs, that relate specifically to the recruitment of a non-citizen for the purposes of a nomination under subsection 140GB(1) of the Act; and
(d)the applicant has not taken any action, and has not sought to take any action, that would result in another person paying to a person some or all of the costs, including migration agent costs, that relate specifically to the recruitment of a non-citizen for the purposes of a nomination under subsection 140GB(1) of the Act; and
(e)…
(f)....
(3)The criteria that must be satisfied for the Minister to approve an application by a person (the applicant) for approval as a work sponsor mentioned in any of regulations 2.59 and 2.60 include a criterion that the Minister is satisfied that:
(a)the applicant has not recovered from another person some or all of the costs, including migration agent costs:
(i)       associated with the person becoming an approved work sponsor; or
(ia)    associated with a nomination under subsection 140GB(1) of the Act (including a fee mentioned in subregulation 2.73(5) or (7) or 2.73A(3) or nomination training contribution charge); or
(ii)      that relate specifically to the recruitment of a non-citizen for the purposes of a nomination under subsection 140GB(1) of the Act; and
(b)the applicant has not sought to recover from another person some or all of the costs, including migration agent costs:
(i)       associated with the person becoming an approved work sponsor; or
(ia)    associated with a nomination under subsection 140GB(1) of the Act (including a fee mentioned in subregulation 2.73(5) or (7) or 2.73A(3) or nomination training contribution charge); or
(ii)      that relate specifically to the recruitment of a non-citizen for the purposes of a nomination under subsection 140GB(1) of the Act; and
(c)…
(d)…
(4)However, the Minister may disregard a criterion referred to in subregulation (2) or (3) if the Minister considers it reasonable to do so.

[2022] AATA 3453

1 September 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Standing