Mejico Sydney Pty Ltd (Migration) [2024] AATA 933 (19 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mejico Sydney Pty Ltd
REPRESENTATIVE: Mrs Catherine Mcmillan (MARN: 1174027)
CASE NUMBER: 2110624
HOME AFFAIRS REFERENCE(S): BCC2020/1146019
MEMBER:Amanda Mendes Da Costa
DATE:19 April 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 19 April 2024 at 9.14am
CATCHWORDS
MIGRATION – approval of a nomination – Sort-term stream – position of Café or Restaurant Manager – warning for previous underpayment – tasks of the position correspond to nominated occupation – genuine position – annual earnings – terms and conditions of employment no less favourable – job advertisements – decision under review set aside
LEGISLATION
Fair Work Act 2009
Migration (Skilling Australians Fund) Charges Act 2018, s 7
Migration (Skilling Australians Fund) Charges Regulations 2018
Migration Act 1958, ss 140, 245
Migration Regulations 1994, rr 1.03, 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 28 July 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 13 March 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 three 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 the attachment 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 2.72(1)(a) because the position associated with the nominated occupation is genuine.
Via an internet-enabled audio-visual platform, Ms Amanda Fuller (Group Executive Chef) appeared for the applicant before the Tribunal on 26 March 2024 to give evidence and present arguments.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
The Tribunal determined it was reasonable to hold the hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not conducted by video. The Tribunal was satisfied that Ms Fuller, the representative and the Tribunal…
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CaseChat Overview and Summary
The Tribunal was required to determine if the applicant had complied with the prescribed nomination process, if there was any adverse information known to Immigration that could not be disregarded, and if the applicant was a standard business sponsor. Further issues included whether any debts had been paid and if the nominated position and the nominee's qualifications and experience corresponded with the requirements of the nominated occupation as defined in ANZSCO. The Tribunal also considered whether the position was genuine and whether the terms and conditions of employment offered to the nominee were no less favourable than those provided to Australian workers.
In its reasoning, the Tribunal found that the applicant had satisfied the procedural requirements for making the nomination, including using the approved form and providing all necessary information. Regarding adverse information, while acknowledging a formal warning from the Australian Border Force for a past underpayment of $610.62, the Tribunal concluded that it was reasonable to disregard this information. This conclusion was based on the fact that the non-compliance occurred five years prior, involved only one employee, had not been repeated, and the employee had been reimbursed. The Tribunal also confirmed the applicant's status as a standard business sponsor and noted no outstanding debts. It was satisfied that the nominated position's tasks aligned with ANZSCO requirements, the nominee possessed commensurate qualifications, and the employment conditions 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 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. The Tribunal notes that the Department’s file contains a letter (dated 21 November 2019) to the applicant from Australian Border Force (ABF) advising that although circumstances exist to bar or cancel the applicant’s standard business sponsorship, ABF has decided to give the applicant a formal warning. In its letter ABF explains that the circusmtnces warranting such a warning are that the applicant has failed to satisfy its sponsorship obligations in underpaying one employee who received less than the correct restaurant annualised salary. The underpayment totalled $610.62 over a period of more than 12 months. The Tribunal discussed this information with Ms Fuller during the hearing. She admitted that the applicant had received a warning’ in relation to the underpayment of a previously sponsored employee. However, Ms Fuller explained that the applicant had addressed the underpayment (which was not intentional) by reimbursing the employee. The Tribunal accepts that the information regarding the formal warning given to the applicant by ABF constitutes adverse information for the purpose of reg 1.13A. However, there is no evidence before the Tribunal of any other instances of adverse information known by the Department against the applicant. The Tribunal has taken into account that the applicant’s instance of non-compliance with its sponsorship obligations occurred five years ago, that there was only one employee involved, that the applicant has not committed further sponsorship offences and that the employee in question was reimbursed the monies owed. Accordingly, the Tribunal finds that although there is adverse information known to Immigration about the applicant, it is reasonable to disregard such information. For these reasons the requirements of reg 2.72(4) are met.Nominator is a standard business sponsor Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor. The applicant is a standard business sponsor having been approved on 5 December 2022 for a period of five years, ending 5 December 2027. For these reasons the requirements of reg 2.72(5) are met.Payment of debt mentioned in s 140ZO Regulation 2.72(5A) requires that the person has paid in full any debt mentioned in s 140ZO of the Act. The Departmental file contains no record of any debt, and the Tribunal infers that there is no outstanding debt under s 140ZO. For these reasons the requirements of reg 2.72(5A) are met.Requirements for existing Subclass 457 or Subclass 482 visa holders The criteria for approval of a nomination contain several requirements if a Subclass 457 or Subclass 482 visa holder is identified as the person to work in the nominated position. In these cases:·the applicant must list on the nomination each person granted a Subclass 457 or Subclass 482 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: reg 2.72(6)(a) and reg 2.72(7);·if the Minister requested evidence that the nominee satisfies the language test requirements, the applicant has provided evidence that the nominee satisfies the language test requirements specified for cl 482.223 (if the nomination is in the Short-term stream) or cl 482.232 (if the nomination is in the Medium-term stream): reg 2.72(14).