Medi Bar Pty Ltd (Migration) [2024] AATA 233 (6 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Medi Bar Pty Ltd
REPRESENTATIVE: Ms Angela Chan (MARN: 9256542)
CASE NUMBER: 2102688
HOME AFFAIRS REFERENCE(S): BCC2020/1972311
MEMBER:Antonio Dronjic
DATE:6 February 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Statement made on 06 February 2024 at 4:15pm
CATCHWORDS
MIGRATION – approval of a nomination – Short-term stream – occupation of Café or Restaurant Manager – genuine position – adverse information – associated entity barred from further sponsorship for 12 months – digital payroll system installed – table service restaurant – tasks of the position correspond to nominated occupation – terms and conditions no less favourable – updated financial information – labour market testing – decision under review set aside
LEGISLATION
Corporations Act 2001
Migration Act 1958, ss 140, 245, 359
Migration (Skilling Australians Fund) Charges Act 2018
Migration (Skilling Australians Fund) Charges Regulations 2018
Migration Regulations 1994, Schedule 8, Condition 8107; rr 1.13, 2.57, 2.72, 2.73, 5.42CASES
Cargo First Pty Ltd v MIBP [2016] FCA 30
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 18 February 2021 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 27 July 2020. A nomination of an occupation for a Subclass 482 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of 3 alternative streams: the Short-term stream, the Medium-term stream or the Labour Agreement stream. Regulation 2.72 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in Attachment D to this decision. Additional criteria are specified in s 140GBA. In this case, the occupation is nominated for a Subclass 482 visa in the Short-term stream.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy reg 2.72(10)(a) as the delegate was not satisfied on the evidence presented that the position associated with the nominated occupation was genuine. The applicant applied to the Tribunal on 4 March 2021 for review of the delegate’s decision. The applicant submitted a copy of the primary decision record with the review application.
On 10 November 2021, the Tribunal received submissions from the applicant’s representative, Ms Angela Chan of Dispute Resolution Pty Ltd. On 8 September 2023, the Tribunal wrote to the applicant pursuant to s 359(2) of the Act. The letter invited the applicant to provide information in writing that demonstrates the applicant meets all the requirements of reg 2.72 of the Regulations.
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CaseChat Overview and Summary
The Tribunal was required to determine whether Medi Bar Pty Ltd met the criteria for approval of the nomination, specifically focusing on whether the nomination complied with the prescribed process under regulation 2.72 and whether there was any adverse information known to Immigration about the applicant or an associated person that could not be disregarded. The Tribunal also had to consider if the position was genuine and if the terms and conditions of employment were no less favourable than those for an Australian worker.
The Tribunal found that Medi Bar Pty Ltd had complied with the procedural requirements for making the nomination, including using the approved form, paying the required charges, and correctly identifying the nominated occupation and nominee. Crucially, the Tribunal addressed adverse information concerning an associated entity, Steak Co Pty Ltd, which had been barred from sponsorship for 12 months due to underpayment of staff. The Tribunal determined that while this constituted adverse information, it was reasonable to disregard it. This conclusion was based on the fact that the bar had expired, Steak Co Pty Ltd had repaid the underpaid wages, and Medi Bar Pty Ltd had implemented a digital payroll system to prevent future underpayments. Furthermore, no subsequent non-compliance by Medi Bar Pty Ltd had been demonstrated, and steps had been taken to negate the implications of the past conduct. The Tribunal was satisfied that the tasks of the nominated position corresponded to the ANZSCO requirements for Café or Restaurant Manager and that the terms and conditions of employment were not less favourable than those for an Australian worker.
Consequently, the Tribunal set aside the decision not to approve the nomination and substituted a decision approving the nomination.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
For these reasons, the Tribunal is satisfied that the requirements of reg 2.72(3) are met.No adverse information known to Immigration Regulation 2.72(4) requires that either: 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. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B. It was revealed at the hearing that the nominator’s associated entity, Steak Co Pty Ltd, which operates Steersons Steakhouse, was subject to Department monitoring and as a result was barred from sponsoring on 19 December 2019 for a period of 12 months. The Tribunal finds that Medi Bar Pty Ltd is an associated entity of Steak Co Pty Ltd pursuant to reg 1.13B. As noted during the hearing, pursuant to reg 1.13A, adverse information is any adverse information relevant to the person’s suitability as an approved sponsor and includes information that the person has been the subject of administrative action as per reg 1.13A(2)(c). As Steak Co Pty Ltd was barred from further sponsorship for a period of 12 months, the Tribunal finds that this entity was the subject of an administrative action. The Tribunal considered whether it is reasonable to disregard the adverse information. In doing so, the Tribunal considered:·the nature and seriousness of the adverse information; ·whether the adverse information arose recently or a long time ago;·how the adverse information arose, including the credibility of the source of the adverse information;·whether the conduct or circumstance of concern is likely to reoccur (including whether there have been steps taken to guard against this);·how relevant the adverse information is to the person’s suitability as an approved sponsor or nominator; and ·whether there are any compelling circumstances affecting the interests of Australia. The applicant’s representative submitted, among other things:The ABF issued the 12-month bar as they found that four workers were underpaid a total of $10,769. Steak Co Pty Ltd undertook to repay the workers within 10 days which was done. The underpayment of the workers was a result of the difficulty in streamlining pay periods and overtime but has now been rectified with the installation of a fully digital payroll system which means that underpayments will no longer be a problem for the company.more than fourteen months had expired since the imposition of the 12-month bar from sponsoring. On 13 May 2023, a fresh nomination and visa application was approved for another employee at Medi Bar Pty Ltd. It was also disclosed at the time of application that an associated entity, Steak Co Pty Ltd had been subject to a 12-month bar which expired on 19 December 2020There is no evidence that Medi Bar Pty Ltd has since been non-compliant. Medi Bar Pty Ltd has taken steps to negate the implications of relevant conduct or practices; and developed practices and procedures to ensure the relevant conduct is not repeated.