ISIP AUSTRALIA PTY LTD (Migration)
[2018] AATA 2916
•26 June 2018
ISIP AUSTRALIA PTY LTD (Migration) [2018] AATA 2916 (26 June 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: ISIP AUSTRALIA PTY LTD
CASE NUMBER: 1606992
DIBP REFERENCE(S): BCC2015/2955528
MEMBER:Sheridan Lee
DATE:26 June 2018
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision under review to refuse the nomination.
Statement made on 26 June 2018 at 12:09pm
CATCHWORDS
Migration – Nomination – Not a genuine position – Direct Entry Nomination stream – Unsatisfactory compliance with workplace relations obligations – Decision under review affirmed
LEGISLATION
Migration Act 1958, s.359A
Migration Regulations 1994, Schedule 2, rr 5.19, 1.13A, 1.13B,
Superannuation Guarantee (Administration) Act 1992
Workplace Injury Rehabilitation and Compensation Act 2013
CASES
Nice Shoes Pty Ltd v MIMIA [2004] FCA 252
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 28 April 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 9 October 2015. 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 Direct Entry Nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy the requirements in sub regulations 5.19(4)(a)(ii), (e), (h)(i) and (h)(i)(B) of the Regulations because there was insufficient evidence to establish:
·a need for a paid employee to work in the position under the direct control of the nominator
·if the terms and conditions of employment would be no less favourable to an Australian citizen or permanent resident performing equivalent work
·that the tasks would correspond to an occupation specified by the Minister
·that the company had met the training benchmark.
Ms Jinhua Wang, Director of ISIP Australia Pty Ltd, appeared before the Tribunal on 1 June 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review by its registered migration agent. The representative 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 Direct Entry nomination stream set out in r.5.19(4), 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(4)(f)
Regulation 5.19(4)(f) 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 Tribunal notes that the definition of adverse information in r.1.13A is not exhaustive and as such considered the below information to fall within the scope of its consideration.
On 19 April 2018, the Tribunal wrote to invite the applicant to comment on or respond to information that would, subject to any comments or response, be the reason, or a part of the reason, for affirming the decision under review, pursuant to s.359A of the Act. The letter outlined that the Department file contains notes indicating it -
·received allegations that the registered migration agent is involved in a ‘complex network of companies onshore and offshore to facilitate organised visa fraud in the business visa case load’
·had concerns that ISIP Australia Pty Ltd may not be operating. The business address was visited in 2014 and no staff were present. In addition, the accommodation did not appear to have sufficient space for more than 3 full-time employees.
The Tribunal explained that the information was relevant to the review because it is a requirement for the grant of the nomination that the following criteria are met:
·r.5.19(4)(a)(ii) requires the application to identify a need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;
·r.5.19(4)(b)(i) requires that the nominator is actively and lawfully operating a business in Australia;
·r.5.19(4)(d) requires the employee to be employed on a full-time basis in the position for at least 2 years, and the terms and conditions of employment will not include an express exclusion of the possibility of extending the period of employment; and
·r.5.19(4)(h)(i)(A) requires that the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph.
The letter outlined that the information suggests that the nomination application for ISIP Australia may not be genuine, that the business is not lawfully operating and that the position does not exist. Further, the applicant was advised that if this information was accepted as correct by the Tribunal, the Tribunal may find that the nomination does not meet the requirements in r.5.19(4)(a)(ii), (4)(b)(i), (4)(d) or (4)(h)(i)(A).
The applicant received copies of the relevant notes from the departmental file through its migration agent.
On 4 May 2018, the applicant responded to the invitation to comment through their migration agent. The submissions highlighted that the notes did not identify the migration agent and contained no details of the allegations. Amongst other things, the response highlighted that the site visit was undertaken four years ago and the applicant has supplied the Tribunal with a number of documents to demonstrate that it is operating in Australia, including company tax returns and business activity statements. It was also put forward that it is unreasonable to expect that a small office would be manned at all times.
On 12 April 2018, the Department advised the Tribunal that ‘although there is information which suggests integrity concerns against ISIP Australia,’ neither the company nor persons associated with the company, have been subject to a formal investigation. No further particulars were provided by the Department.
The Tribunal has considered the submissions made by the applicant and the advice provided by the Department and has subsequently given no weight to the departmental notes. The lack of specificity, age and subsequent confirmation that no formal investigation was undertaken, make it reasonable for the Tribunal to disregard the information contained in the notes on the departmental file.
Accordingly the requirements of r.5.19(4)(f) are met.
Satisfactory compliance with workplace relations laws: r.5.19(4)(g)
Regulation 5.19(4)(g) requires that the applicant 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.
The term ‘workplace relations’ is not defined in the legislation, however the common understanding of the term would include an employer’s compliance with State/Territory and Commonwealth laws relating to:
·pay (minimum wages, deductions, superannuation, penalty rates and allowances)
·leave (annual leave, sick leave, long service leave and maternity leave)
·employee entitlements (maximum hours, overtime, flexible arrangements and breaks)
·workplace health and safety (safe workplaces, bullying and harassment)
·workplace discrimination
·termination (redundancy, unfair dismissal).
Departmental policy (PAM 3, 7.7) outlines that delegates can consider the nominator to have satisfied the requirements of regulation 5.19(3)(h) or 5.19(4)(g) (as relevant) unless they have received information that suggests the employer has not complied with workplace relations laws.
At the hearing, the Tribunal requested evidence that the applicant had complied with its obligation to take out WorkCover insurance with a WorkSafe Agent in accordance with the Workplace Injury Rehabilitation and Compensation Act 2013 and to pay superannuation to employees in accordance with the Superannuation Guarantee (Administration) Act 1992.
On 15 June 2018, the Tribunal received post-hearing submissions. In the letter from the applicant’s representative it states ‘Ms Wang conceded that she did not pay WorkCover insurance as she was not aware that this was required for office-based staff. This has been rectified and such insurance has been taken out with Allianz.’ Certificates of currency were provided for the periods 14 to 30 June 2018 and 1 July 2018 to 30 June 2019.
The submissions further outlined that ‘the company did make an error in a superannuation payment which has been rectified. Its employee superannuation and PAYG records are appended’.
The question for the Tribunal is whether this represents a satisfactory record of compliance with workplace relations laws.
The term ‘satisfactory record’ is not defined in the Regulations. Dictionary definitions of ‘satisfactory’ vary from ‘fulfilling all demands or requirements’ to ‘acceptable, though not outstanding or perfect’.[1] In Nice Shoes Aust Pty Ltd v MIMIA, the Federal Court considered these competing definitions in the context of ‘satisfactory record’ as it arose in training requirement for standard business sponsors in the since repealed r.1.20D(2)(c)(ii).[2] In that case, the Court observed that the difficulty with such a definition is that it provides no measure or standard against which to determine whether something is ‘satisfactory’. Looking to the broader context of r.1.20D, the Court held that a ‘satisfactory record’ of training is a record that demonstrates that the applicant provides training to a degree reasonably commensurate with the nature and extent of its business operations in Australia.[3] Critically, the Court observed that the relevant issue for the Tribunal’s consideration was whether it was satisfied that the applicant had such a satisfactory record.[4]
[1] The Macquarie Dictionary (6th ed., 2013) relevantly defines ‘satisfactory’ as meaning ‘affording satisfaction; fulfilling all demands or requirements’ while the Oxford Dictionary of English (3rd ed., 2010) provides a lower standard of ‘satisfactory’ as meaning ‘fulfilling expectations or needs; acceptable, though not outstanding or perfect’.
[2] [2004] FCA 252
[3] Nice Shoes Pty Ltd v MIMIA [2004] FCA 252 at [16]-[17].
[4] Nice Shoes Pty Ltd v MIMIA [2004] FCA 252 at [19]. See also Total Eye Care Australia v MIMA [2007] FMCA and Daiwa Food Co Pty Ltd v MIMIA [2005] FMCA 1651.
At the hearing, Ms Wang described the primary business activity of ISIP as an international student internship platform, which provides education and internship opportunities to students in order to help them gain employment after graduation. The business also undertakes other activities, such as selling student supplies.
Ms Wang gave oral evidence that the business has been operating for more than 5 years and currently employs two local staff. On the nomination application form lodged with the Department on 9 October 2015, the applicant declared that of the Australian operations of the business, the total number of Australian employees was 3 and the total number of foreign employees was 1. Company financials supplied for the 2013 – 2014 list $55,076 of expenses on salary and wages, indicating that the company has had employees since at least that time. While the Tribunal acknowledges that a mistake on a single superannuation payment is relatively minor, it considers that the business operating for a number of years whilst its employees have not been covered by a WorkCover insurance policy to be a serious compliance issue.
In submissions dated 4 May 2018, it was outlined that ‘Ms Wang completed a Master of graduated [sic] with a Master’s degree in Commerce in 2002 from the University of Melbourne with first class honours. She opened her own business in 2003 and has been a registered migration agent for 15 years and specializes in business skills visas and employer sponsored visas for her own businesses as well as those of Chinese nationals who wish to invest in Australia.’
In a submission titled ‘explanation of Work Cover Insurance’, Ms Wang stated that ‘ISIP Australia has not paid work cover since the establishment’. The statement goes on to explain:
We start as a very small company without any employee at the beginning, there is no need for work cover insurance at that time. Our accountant never alert us there is work cover insurance requirement so far. As we are Chinese culture based Australian company, we thought it is only necessary for those employees working in dangerous site, such as construction site, or retail store, factory to buy work cover.
Departmental policy does suggest that some leniency may be appropriate in the first instance of a breach of workplace laws if it can be reasonably expected that the applicant may not have been fully aware of their Australian legal obligations. Albeit subsequent breaches would not be considered with such leniency, in particular if the applicant had been made aware of the earlier breach by a relevant authority.[5] This guidance is provided in respect of the Subclass 888 Business Innovation and Investment visa, which has the very similarly worded cl.888.214 which requires the visa applicant to have a ‘satisfactory record’ of compliance with certain Australian laws.
[5] PAM3: Migration Regulations – Schedules > PAM – Sch2 Visa 888 > Business Innovation and Investment (Permanent) > EC-888 primary applicant common criteria > Compliance with Australian laws > Assessment
However, the Tribunal does not consider that such leniency applies in this case. As outlined, Ms Wang is a Director of ISIP Australia. As Director, she is responsible for the management of the affairs of the company, including ensuring compliance with legal obligations. As a registered migration agent for 15 years with a specialization in business skills and employer sponsored visas, it is reasonable to expect that she should understand the Australian workplace relations obligations of employers sponsoring visa applicants. In addition, having operated businesses in Australia since 2003, with employees since at least 2014, compliance with workplace health and safety laws has been a requirement of her professional career for a number of years.
ISIP Australia is placing international students into work placements with Australian employers. Given the nature of the business, a basic understanding of employee rights and responsibilities would be necessary to ensure that vulnerable international students are not placed into positions in which they are taken advantage of by prospective employers. In addition, an understanding of workplace rights and responsibilities would be necessary to ensure that the students act in an appropriate manner for the Australian workforce and hence improve their chances of employment on completion of their study – a key aim of the business activities.
ISIP Australia has as one of its two Directors an individual with extensive experience operating businesses in Australia and advising others on their obligations under Australian migration laws. The business is further involved in providing internship opportunities to international students. In this context, even with the rectification of the issue going forward, the Tribunal does not consider this to be 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.
Accordingly the requirements of r.5.19(4)(g) are not met.
For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(4). The applicant has not sought to satisfy the criteria in Temporary Residence Transition Nomination stream, and as such has not met the requirements in r.5.19(3). 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.
Sheridan Lee
MemberATTACHMENT - 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
(b)be accompanied by the fee mentioned in regulation 5.37.
…
Direct Entry nomination
(4)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 need for the nominator to employ a paid employee to work in the position under the nominator’s direct control; and
(b)the nominator:
(i) is actively and lawfully operating a business in Australia; and
(ii) directly operates the business; and
(c)for a nominator whose business activities include activities relating to the hiring of labour to other unrelated businesses — the position is within the business activities of the nominator and not for hire to other unrelated businesses; and
(d)both of the following apply:
(i) the employee will be employed on a full-time basis in the position for at least 2 years;
(ii) the terms and conditions of the employee’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) 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
(g)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; and
(h)either:
(i) both of the following apply:
(A)the tasks to be performed in the position will be performed in Australia and correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(AAA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(B)either:
(I)the nominator’s business has operated for at least 12 months, and the nominator meets the requirements for the training of Australian citizens and Australian permanent residents that are specified by the Minister in an instrument in writing for this sub-sub-subparagraph; or
(II)the nominator’s business has operated for less than 12 months, and the nominator has an auditable plan for meeting the requirements specified in the instrument mentioned in sub-sub-subparagraph (I); or
(ii) all of the following apply:
(A)the position is located in regional Australia;
(B)there is a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control;
(C)the position cannot be filled by an Australian citizen or an Australian permanent resident who is living in the same local area as that place;
(D)the tasks to be performed in the position correspond to the tasks of an occupation specified by the Minister in an instrument in writing for this sub-subparagraph;
(DA)the occupation is applicable to the person identified under subparagraph (a)(ii) in accordance with the specification of the occupation;
(E)the business operated by the nominator is located at that place;
(F)a body that is:
(I)specified by the Minister in an instrument in writing for this sub-subparagraph; and
(II)located in the same State or Territory as the location of the position;
has advised the Minister about the matters mentioned in paragraph (e) and sub-subparagraphs (B) and (C).
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