LAN TIAN (AUST) PTY LIMITED (Migration)

[2021] AATA 3490

LAN TIAN (AUST) PTY LIMITED (Migration) [2021] AATA 3490 (9 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  LAN TIAN (AUST) PTY LIMITED

CASE NUMBER:  1827316

HOME AFFAIRS REFERENCE(S):          BCC2017/1713522

MEMBER:Peter Emmerton

DATE:9 September 2021

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 09 September 2021 at 10:52am

CATCHWORDS
MIGRATION – application for approval of nomination of position – temporary residence transition stream – adverse information known to immigration – applicant’s serious failings to satisfy sponsorship obligations – systematic underpayment of workers by all companies in group – fine and 2 year ban as sponsor – reasonable to disregard information – cooperation with border force, make-up of underpayments and implementation of new systems – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140M(2), 359AA
Migration Regulations 1994 (Cth), rr 13A, 13B, 5.19(3)(d), (g)(i), (ii)

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 30 August 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).

2. The applicant applied for approval on 13 May 2017. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (reg 5.19(3)) and a Direct Entry nomination stream (reg 5.19(4)). If the application is made in accordance with reg 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: reg 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)(d).

5. The Tribunal has subsequently identified the dispositive issues as r.5.19(3)(g)(i) and r.5.19(3)(g)(ii) because adverse information was known to immigration. The Tribunal must consider if it is reasonable to disregard the adverse information considering the serious nature of the failings to satisfy the sponsorship obligations, the recent implementation of the 2 year bar from making applications for approval as a Standard Business Sponsor and Temporary Activities Sponsor and the subsequent imposition of a substantial monetary penalty by Border Force.

6. The applicant represented by Mr Yun Lan, Director, representing Lan Tian (Aust) Pty Ltd appeared before the Tribunal, via video, on 8 September 2021 in a combined hearing with MRT file ref. 1831014 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Jie Song, the visa applicant and Mr Dengyun Zhang the Founder of China Chilli Group.

7. The applicant was represented in relation to the review by its registered migration agent.

8. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. As previously stated, the delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(3)(d)

11. The Tribunal has subsequently identified the dispositive issues as r.5.19(3)(g)(i) and r.5.19(3)(g)(ii) of the Regulations because adverse information was known to immigration and the Tribunal must consider if it is reasonable to disregard the adverse information. This is due to the serious nature of the failings to satisfy the sponsorship obligations and the recent implementation of the 2-year bar from making applications for approval as a Standard Business Sponsor and Temporary Activities Sponsor. This was stated to the nominator at the hearing.

12. The nominator was asked if they wished to comment or respond to the new dispositive issue.

13. In summary they stated the following. They acknowledged that they received a NOITTA from Border Force detailing their breaches. They accepted the breaches as stated by Border Force had taken place, they had at all times been cooperative with Border Force and made available all relevant documentation. They went on to say that they had acted quickly to make good the underpayments agreed upon with Border Force and had employed an external accountant and implemented new systems designed to ensure such breaches do not happen in the future. All of this is accepted as accurate and viewed favourably by the Tribunal.

14. The Tribunal has taken into consideration all of the evidence presented to it at the hearing, the written submission post hearing, in conjunction with the written evidence presented to it and the Department prior to making this decision.

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

15. 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. 

16. The Department sent the nominator the following correspondence on 7 April 2021, which was then provided to the Tribunal, on 22 April 2021, by the nominator. The relevant section detailing the offences and subsequent decision to implement a 2-year bar from making applications for approval as a Standard Business Sponsor and Temporary Activities Sponsor is quoted below.

    ‘NOTICE OF DECISION UNDER SECTION 140M OF THE MIGRATION ACT 1958
    (THE MIGRATION ACT)

    (Issued in accordance with regulation 2.98 of the Migration Regulations 1994)

    Dear Lan Tian (Aust) Pty Ltd,

    I am writing regarding your status as a former approved work sponsor in the standard
    business sponsorship class.

    The purpose of this letter is to provide notice that as a delegate of the Minister for Home
    Affairs and Minister for Immigration, Citizenship, Migrant Services and Multicultural
    Affairs (the Minister), I have made the following decision.

    Decision

    Under subsection 140M(2), I have made the decision to bar you for two (2) years from
    making applications for approval as a standard business sponsor and temporary
    activities sponsor.
    The decision takes effect from 7 April 2021.

    Effect of decision

    The effect of a bar is to prevent you from sponsoring more persons for the period
    specified AND from making future applications for approval as a work sponsor.
    Below I have listed the grounds for my decision and your review options.

    Background

    …On 24 December 2020, the Australian Border Force (ABF) wrote to you in the form of a
    Notice of Intention to Take Action (NOITTA), which stated that a delegate of the Minister
    was considering taking action under section 140M of the Migration Act.

    The NOITTA provided an opportunity for you to comment on the delegate’s concerns.

    The identified circumstance(s) were:

    Regulation 2.89 Failure to satisfy sponsorship obligation.

    Regulation 2.90 Provision of false or misleading information.

    The identified breaches of the sponsorship obligations were:

    Regulation 2.79 Obligation to ensure equivalent terms and conditions of employment

    Regulation 2.83 Obligation to provide records and information to the Minister

    Regulation 2.84 Obligation to provide information to Immigration when certain events

    Occur

    The ABF received a response from the sponsor. I considered the information provided in
    the response when determining what action to take…….’

17. The Australian Border Force determined following the response to the NOITA, made by the nominator that Regulation 2.90 Provision of false or misleading information was no longer at issue however the other identified breaches remained. This resulted in the forementioned decision, (Under subsection 140M(2), I have made the decision to bar you for two (2) years from making applications for approval as a standard business sponsor and temporary activities sponsor. The decision takes effect from 7 April 2021.)

18. The Tribunal is left with no doubt and has formed the clear view that r.5.19(3)(g)(i) is not satisfied as substantial adverse information is known to immigration. This was demonstrated by the written evidence provided by the nominator prior to the hearing and the verbal evidence provided at the hearing and their written admission of wrong doing as outlined in the Border Force decision which was provide to the Tribunal on 8 September 2021, following the hearing.

19. The Tribunal has then turned its’ mind to whether Regulation 5.19(3)(g)(ii) is satisfied. In other words, is it reasonable to disregard the failure to meet the requirements of Regulation 5.19(3)(g)(i).

20. The Tribunal asked if the underpayment of wages and Superannuation had been rectified – they stated in the affirmative. The Tribunal acknowledges that the letter sent to Border Force by the lawyers acting for Lan Tian on 17 June 2021 show a total rectification of $65,024.10. This payment was verified by Payslips, Superannuation Payment Summaries and Bank Transaction Records provided to the Tribunal prior to the hearing.

21. The Tribunal asked if any financial penalty or fine had been imposed by the Department or Border Force. They answered in the affirmative and stated they were unsure of the amount.  The Tribunal stated that the amount was $12,960 which was confirmed by correspondence received by the Tribunal on 19 August 2021.

22. The Tribunal placed information before the nominator during the hearing under sub-section 359AA, (Disclosure of Adverse Information at a Hearing), regarding information received from the Australian Border Force.

    ‘On 19 August 2021 the Tribunal received an email from Australian Border Force which informed the Tribunal that a penalty had been imposed and paid. Within the email they stated the following ….. On 5 March 2021, LAN TIAN (AUST) PTY LIMITED were issued an infringement notice in the amount of $12,960. This was paid by the sponsor on 22 March 2021.’

23. The Tribunal explained why this information is relevant and the fact that if it considers this information in its decision it may add further evidence as to the severity of the infringements and subsequently impact on whether or not it is reasonable to disregard the Adverse Information known to Immigration as per r.5.19(3)(g)(ii).

24. The nominator was then asked to comment or respond to the information. They were informed that they did not have to respond now – you can ask for more time to comment or respond to the information.

25. The nominator requested further time to respond in writing. The Tribunal accepted the request and informed them that any response was to be provided by 5-00pm, 8 September 2021. This was accepted by the nominator without dissent and they responded within the stipulated time.

26. The Tribunal accepted verbal evidence from Mr Dengyun Zhang, the founder of the China Chilli Group. He explained why it was important to the restaurant business under review to have the visa applicant in their employ. He stated that the visa applicant was an extremely competent employee who contributed to their business greatly and they expected they will benefit from his expertise once Covid-19 restrictions are eased.  He explained insubstantial detail the feelings of guilt and remorse they would feel for the rest of their lives if he was denied a future in Australia because of mistakes they had made. This was reiterated by the nominator in his post hearing written statement.

27. The Tribunal notes the following paragraph quoted from the Border Force Decision document provided to the Tribunal by the nominator.

    ‘Lan Tian (Aust) Pty Ltd is part of the China Chilli Group. All companies in this group have been monitored and found to have underpaid their sponsored workers. The systematic abuse of the program by multiple sponsors in the group has been a significant factor in my decision and increased the severity of the outcome.’

28. The Tribunal acknowledges in the nominator’s favour, that once Border Force had issued the NOITTA, the nominator quickly repaid the monies owed and has also put in place additional policies and practices in order to avoid such breaches in the future. It is also acknowledged that the financial penalty imposed by Border Force was paid promptly.

29. The Tribunal in addition accepts that, as was expressed by Mr Dengyun Zhang, there may be feelings of guilt and remorse felt for the rest of their lives if the visa applicant was denied a future in Australia because of mistakes they had made. Whilst it concedes this is a potential unfortunate outcome, it does not in itself qualify as a reason to disregard the adverse information known by Immigration. Feelings of guilt and remorse do not in the eyes of the Tribunal meet the threshold required to be considered ‘reasonable to disregard any adverse information known to Immigration’, as stated in r.5.19(3)(g)(ii).

30. There is nothing the nominator, the visa applicant nor Mr Dengyun Zhang has provided to the Tribunal in writing prior to or post the hearing, nor verbally at the hearing, that has convinced it that it is reasonable to disregard the breaches of the fore mentioned Regulation. It considers the failure to meet r.5.19(3)(g)(i) as a serious breach of the requirements for approval of a nomination. The Tribunal considers the protection of our rules-based immigration policy and the maintenance of Australia’s border integrity a high priority.

31. Furthermore, the Tribunal notes the relatively recent nature of the breaches, the magnitude of the underpayments of wages and Superannuation and the severity of the penalty imposed by Border Force. It also notes that the 2-year bar, was imposed on 7 April 2021 and will not be completed until 7 April 2023.  The Tribunal in addition notes as stated in paragraph 27 of this decision the statement made by Border Force regarding the systematic abuse of the program by multiple sponsors in the group.

32. No substantial evidence has been presented to the Tribunal that has allowed it to be satisfied that it Is reasonable to disregard the adverse information. Therefore, it finds that Regulation 5.19(3)(g)(ii) is not satisfied.

33. Accordingly, the requirements in r.5.19(3)(g) are not met.

34. For the above reasons the Tribunal is not satisfied that the applicant meets the requirements of r.5.19(3). The applicant has not sought to satisfy the criteria in Direct Entry nomination stream, and as such has not met the requirements in r.5.19(4). Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

35. The Tribunal affirms the decision under review to refuse the nomination.

    Peter Emmerton
    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.