NJB HOLDINGS PTY LTD ATF SHAH FAMILY TRUST (Migration)

NJB HOLDINGS PTY LTD ATF SHAH FAMILY TRUST (Migration) [2019] AATA 3748 (10 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  NJB HOLDINGS PTY LTD ATF SHAH FAMILY TRUST
CASE NUMBER:  1701231
DIBP REFERENCE(S):  BCC2015/2823480
MEMBER:Alan McMurran
DATE:10 July 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 10 July 2019 at 1:21pm
CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition stream – internal auditor – adverse information disregarded – barred by Department for two years against further nominations – nominees allegedly not working in nominated occupation – breaches denied – bar expired – standard business sponsor – nominee to be employed full-time for two years – possibility of employment extension – training requirements met – currently employs nominee – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth),ss 140GB, 245AR
Migration Regulations 1994(Cth), rr 1.13, 1.20G, 2.59, 2.68, 2.86, 5.19, Schedule 2, cl 457.223 (4)
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 6 January 2017 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 28 September 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 Temporary Residence Transition nomination stream. The position nominated is for Nishadbhai Thakorbhai Kansara (the nominee) to work as an internal auditor (ANZSCO 221214) at the applicant’s Queensland Macleay Island stores. At the time of application (30 September 2015), the nominee was working at the applicant’s IGA Blackheath store.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19 (3) (g) of the Regulations. The applicant had been the subject of adverse information comprising a sanction by the Department following routine monitoring, and resulting in a 2-year bar against further nominations by the applicant, and in respect of which it was not reasonable in the delegate’s opinion to disregard that adverse information.
The applicant appeared before the Tribunal on 30 May 2019 to give evidence and present arguments. The Tribunal received oral evidence from a Director, Jignesh Shah, together with submissions from the representative appearing with and on behalf of the applicant. Its registered migration agent, Mr Karl Konrad, represented the applicant in relation to the review.
The hearing was conducted as a combined hearing with 3 other related applications[1] involving the same applicant, the same decision by the Department in all 3 cases, and 3 different nominees.[2] Following the hearing on 30 May 2019, the applicant sought an extension of time to 24 June 2019, to provide further submissions and information in respect of all applications. For ease of reference in these reasons unless otherwise stated, where relevant the Tribunal has collectively referred to the related nomination and visa applications (7 Tribunal case files) simply as “the related applications”.
[1] Nomination applications Tribunal case files1701225 (Sharma);1701226(Patel);1701233 (Pandya);
[2] Visa applicants / nominee Tribunal case files 1712964 (Patel);1712965 (Sharma);1712957 (Kansara);1712961(Pandya);
Following the hearing, the Tribunal received the applicant’s further information and submissions by the requested date, 24 June 2019. The Tribunal has referred to that material below. The Tribunal has also had regard to all the information and documents contained in the related applications and the Department’s files, as well as the post hearing submissions.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
Background
The applicant is an Australian registered company since 29 August 2002. It is a trustee company for the Shah Family Trust and a related entity with NJB Retail Pty Ltd, and GSK Retail Holdings Pty Ltd. and NJB Pty Ltd.
At the hearing, the director appearing (Jignesh Shah) gave a detailed history behind the entities and the applicant, since operating in Australia. The applicant is currently involved in the ownership and management of five grocery retail outlets, one at Blackheath in the Blue Mountains, and four in regional Queensland. The trust also owns and operates the Toukley Motel North of Sydney, and the director controls another company, Oppenheimer Australia Pty Ltd, which he owns (100%) and which is a scientific and research company servicing the retail food industry.
The nominee is a 35-year-old citizen of the Republic of India. The nominee holds a Master of Professional Accounting from Southern Cross University, recognised by the Institute of Chartered Accountants in Australia. That Institute has assessed the nominee on 23 October 2009 as suitable in terms of his qualifications for his nominated skilled occupation of internal auditor.[3] The nominee’s employment with the applicant commenced at Guildford IGA in 2012, as “internal auditor”, and the Department issued the nominee a 457 visa for that occupation in October 2012.
[3] DIBP file BCC 2015/2850260 at f 175
The Tribunal notes that the company history is common to all four-nomination applications. The information provided by the applicant is extensive, and covers some hundreds of pages produced in respect of the related applications. The critical details are referred to below, but following the hearing the essential points are:
a.The applicant has been operating in Australia since September 2002;
b.The applicant’s director, Mr Shah, and his wife control the applicant, and both are Australian citizens, having obtained citizenship more than 20 years ago;
c.The applicant is engaged in the retail food industry through 5 remaining outlets, 4 in Queensland (2 on Macleay Island) and 1 at Blackheath in NSW;
d.The applicant has sought to sponsor four overseas nominees three for positions as internal auditors (ANZSCO 221214), and one, Mr Sharma, as a retail manager (ANZSCO 142111), at its 5 separate locations;
e.The applicant employs all Australian staff at its locations, other than for the four nominees and one other visa holder;
f.The applicant has grown significantly since its initial operation of a 711 franchise at Hurlstone Park in Sydney in 2002, and now employs 75 staff most of whom are located in and operate from regional Queensland ;
g.Since 2002, the applicant has purchased and sold a Subway franchise in Sydney, and several IGA stores in NSW and Queensland including a “Supa” IGA store at Guildford in Sydney;
h.The applicant has “replaced” its IGA stores (except for its Blackheath store) with three franchised SPAR convenience stores in conjunction with the owner (Met Cash), and one store which it owns on Macleay Island, Queensland (Five Star Supermarket) operating under that banner, and licensed under an agreement between the applicant and SPAR Australia Ltd ;
i.The director, Jignesh Shah, works on the food products and supply side of the business with the research company, Oppenheimer Australia Pty Ltd, and the other director Neha Shah who manages the retail outlets for the applicant; Oppenheimer has been in operation since 1870 and services the global food service industry[4] and the director has significant experience and a history in both the global food service industry and retailing; a copy of his CV has been produced;
[4] See four nominees in the related applications were recruited by the applicant through an advertising process, and are located as follows:
i.Mr Sharma, as marketing manager at the two Macleay Island stores, near Redland Bay, South of Brisbane;
ii.Mr Kansara, who also works on Macleay Island as internal auditor for the two stores;
iii.Mr Pandya as internal auditor for the Springsure SPAR store and the Injune SPAR store (approx. 200kms between them) in Central Queensland, and North West of Brisbane;
iv.The nominee, Mr Patel, as internal auditor, who works in the Blackheath IGA store in the Blue Mountains West of Sydney;
k.All four of the nominees have been working for the applicant since 2012 and all hold tertiary accountancy qualifications;
l.The Department carried out routine monitoring of the applicant in 2014 which was unremarkable, and again from late 2015 to early 2016;
m.The Department conducted telephone interviews with 457 employees in about June 2016, following a site visit;
n.The Department decided that the applicant was in breach of its sponsorship obligations; the breach related to ensuring the nominees worked or participated in their nominated occupation, program or activity; the applicant subsequently denied the breaches and criticised the manner in which the telephone interviews with the visa holders were conducted;
o.Specifically, and following the telephone interviews, the Department considered:
i.The “internal auditors” were not performing that role;
ii.The nominees’ duties were “less complex” than the nominated role requires, and as compared to ANZSCO;
iii.There was insufficient evidence provided by the applicant to show or “substantiate the visa holder’s internal audit skills or duties”;
p.No individual criticisms of the nominees themselves were made or found, as opposed to the sponsor;
q.The Department imposed a two-year bar in August 2016 on the applicant from making future applications for approval as a standard business sponsor;
r.The applicant made a formal complaint concerning the bar, and approached the Minister to waive the bar, which was not responded to, and the applicant then brought a review application in the Tribunal;
s.The Tribunal review sought was withdrawn when the bar expired in August 2018, without the review having been completed;
t.The applicant has renewed its request (first made 28 September 2016) for a waiver and reply from the Minister to its complaint, and received a response from Australian Immigration Law Services on 31 May 2019 that the officer was “currently looking into this matter and will provide further advice as soon as possible”;
u.it is almost three years since the applicant requested Ministerial intervention, as it was entitled to do, but without any progress or finalisation in that regard; the applicant has continued with the reviews of the related applications, and seeks a finding that the adverse information decision should be set aside;
v.The Department’s bar expired on 31 August 2018, and the Tribunal should consider the request for Ministerial intervention as no longer relevant although still being pursued;
The Tribunal is concerned with these background facts as to the finding of adverse information and which the applicant submits should now be set aside when viewed in light of all the information and explanation now available.
The nominee is dependent upon a successful outcome of this nomination for approval of his visa application. The nominee has made no submissions independently of his application.
The Tribunal has carefully considered all the information provided by the applicant and in the related applications, and the reasons put forward by the Department in support of the NOITTA [5] and its Decision.[6]
[5] Notice of intention to take action
[6] DIBP file BCC 2016/269294 at f 6.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 approval of the nomination, the applicant must meet all the requirements.
The application must be compliant: r.5.19(3)(a)
Regulation 5.19(3)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a relevant person and occupation.
The Tribunal has reviewed the Department’s file and finds that the applicant made the application on the relevant Internet form, and accompanied by the prescribed fee.
The Tribunal finds that the application contains the requisite written certification stating that the nominator has not engaged in conduct in relation to the nomination that contravenes section 245AR (1).
The Tribunal finds that the application identifies the nominee who holds (or held) a subclass 457 visa granted based on satisfying clause 457.223 (4), and identifies an occupation (internal auditor) in relation to the position that is listed in ANZSCO, and has the same four digit code as the occupation carried out by the 457 visa holder.
Given the above findings, the requirement in r.5.19(3)(a) is met.
Status of the nominator: r.5.19(3)(b)
Regulation 5.19(3)(b) requires the nominator to be or have been the relevant standard business sponsor who is actively and lawfully operating a business in Australia. In addition, the nominator, as that standard business sponsor, must not have met certain criteria relating to the operation of a business overseas, in the most recent sponsorship approval.
Having reviewed the information on the Department files and from the applicant, the Tribunal is satisfied that the applicant:
·was the standard business sponsor approved for the period from 18 August 2011 until 18 August 2014, who last identified the holder of the Subclass 457 visa in a nomination made under s.140GB of the Act or under r.1.20G or 1.20GA; and
·is actively and lawfully operating a business in Australia; and
·was not granted the most recent business sponsorship on the basis of meeting either r.1.20DA, r.2.59(h) or r.2.68(i)..
Given the above findings, the requirement in r.5.19(3)(b) is met.
Previous employment of the nominee: r.5.19(3)(c)
Broadly speaking, to meet the requirement in r.5.19(3)(c), either:
· the nominee must have been employed full time in Australia in the position for which he or she holds a Subclass 457 visa for at least 2 of the 3 years preceding the nomination application; or
· the nominee holds a Subclass 457 visa on the basis that s/he was identified in a nomination of a specified occupation for that visa, the nominator nominated the occupation, and the nominee has been employed in that occupation for at least 2 years in the 3 years immediately before the application.
The Tribunal finds on the information available that the nominee was the holder of a subclass 457 visa approved for internal auditor, and identified in the application as employed for a minimum period of two years in the three years prior to the lodgement of this application on 15 August 2016. The Tribunal finds the applicant has employed the nominee on a 457 visa since October 2012.
Having regard to the detailed evidence provided by the Director at the hearing and the available information, the Tribunal is satisfied that the applicant employed the nominee in the role of internal auditor, initially at its Blackheath store, and currently at its Macleay Island stores. The role required the nominee to analyse data regarding consumer patterns and preferences, and to conduct research for the applicant as to potential demand, and the marketing characteristics applicable to its products, goods and services.[7]
[7] See also transcript from hearing evidence at T file ff 289-292, pp 5-6 of submissions
The Tribunal finds it is satisfied the nominee has continued to perform the role with greater responsibility and acquired-experience, while holding the 457 visa and during his employment prior to this application. The Tribunal finds that there is no available evidence, which contradicts this finding.
Given the above findings, the requirement in r.5.19 (3)(c) is met..
Future employment of the visa holder: r.5.19(3)(d)
Regulation 5.19(3)(d) only applies to certain nominees (those described in r.5.19(3)(c)(i)). For this class of person, the regulations require that the nominee will be employed on a full time basis for at least 2 years on terms that do not expressly preclude the possibility of an extension.
The Tribunal has had regard to the terms and conditions of the nominee’s contract with the applicant. The Tribunal is satisfied that the applicant will employ the nominee on a full-time basis for at least two years in the role of internal auditor, without precluding the possibility of extending the period of employment.
Given the above findings, the requirement in r.5.19(3)(d) is met.
No less favourable terms and conditions of employment: r.5.19(3)(e)
Regulation 5.19(3)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The Tribunal has had regard to the level of salary applicable to the position of internal auditor and offered by the applicant to the nominee. The Tribunal is satisfied on the available information[8] that the salary at the time of application (15 August 2016) in a sum of $60,000 is comparable for Australians working in the position performing equivalent work in the same workplace and at the same location.
[8] See Payscale at >
Accordingly, the requirement in r.5.19(3)(e) is met.
Training commitments and obligations: r.5.19(3)(f)
Regulation 5.19(3)(f) requires the applicant to have fulfilled any commitments made relating to meeting training requirements, and complied with applicable obligations relating to training requirements, during the period of the applicant’s most recent sponsorship approval. These requirements may be disregarded if it is reasonable to do so.
The applicant has provided evidence to the effect that it spends approximately 1.5% of its payroll on training for employees. The Tribunal is mindful of the evidence that the applicant employs approximately 75 Australians and Australian permanent residents, all in regional parts of the country. The Director gave evidence that the company is committed to provide long-term stable employment together with ongoing training considered necessary to enable staff to fulfil their individual roles[9] and as required by the regulation.
[9] Representative’s submission 24 June 2019 at p 11, T case file ff 242 - 243
The Tribunal finds on review of the Department file that it is satisfied that the applicant has met its commitments to meeting training requirements during the period of the most recent sponsorship approval (August 2011 to August 2014).
Accordingly, the requirement in r.5.19 (3)(f) is met
No adverse information known to Immigration: r.5.19(3)(g)
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.

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.
The requirements of this sub-regulation occupied substantial hearing time, dealing with the role of the internal auditor and a description of the work and duties performed by the nominee. The issue also engaged the bulk of the information referred to in the applicant’s submissions, and consideration whether it was appropriate to disregard the adverse information.[10]
[10] ibid
It was for this reason that the delegate refused the application. The “adverse information” constitutes the imposition of a two-year bar in sponsorship by the applicant, effective from 31 August 2016. The imposition of a bar is caught by the definition in sub regulation 1.13A (f), which refers to information that the applicant “has been the subject of administrative action (including being issued with a warning), by a competent authority, for a possible contravention of such a law”.
The reason for the imposition of the bar follows a Notice of Decision made 31 August 2016 by the Department.[11] The decision to implement the bar by way of sanction of the applicant arose following a routine site visit and monitoring by the Department in the period from late 2015 until mid-2016. The information relied upon by the Department arose primarily from telephone interviews between Department officers and employees of the applicant. The details are more fully set out in the Department’s notice of decision dated 31 August 2016 which in summary concludes that:
a.In breach of Regulation 2.86, the applicant failed to ensure the nominee works or participates in the nominated occupation, program or activity; the employees identified were 457 visa holders Ashokkumar Patel, Vishal Patel and Nishadbhai Kansara.
b.The skill levels performed by the employees interviewed did not equate to the skill levels specified in ANZSCO for the occupation of “internal auditor”;
c.The interviewees did not state they were working as internal auditors, but rather that they all worked primarily at the Guildford IGA, and occasionally at Blackheath. These were small to medium-sized businesses and according to the delegate did “not warrant the need for three internal auditors at the one location”. The decision found that the employees’ duties and responsibilities lacked “the complexity and high skill generally required in that occupation”.
[11] See DIBP file extracts at f33 - 45
The applicant did not accept these findings which it sought to oppose, and criticised the conduct of the telephone interviews of the employees. The applicant’s responses were the subject of a detailed complaint and explanation, provided to the Minister with a waiver request.[12] The Tribunal notes this request is still the subject of enquiry and determination.
[12] ibid
The Tribunal is mindful there has been no review or setting aside of the decision to impose the bar, and which has now expired. The Tribunal finds therefore that the decision to impose the bar constitutes “adverse information”, within the ambit of the definition in the sub regulation.
The Tribunal must therefore consider whether it is reasonable to disregard that information.
Is it reasonable to disregard the adverse information?
The Tribunal has considered the detailed submission provided on 24 June 2019 by the applicant’s representative.[13] The submissions make the following observations in support of a finding that the adverse information should be disregarded:
[13] T case file at f 235 et seq (folder 2 of 2);
a.The investigations by the Department were not sufficiently thorough, and that further enquiry would have revealed the employees conducting their duties as outlined in their respective nomination approvals.
b.The applicant was unable to persuade the Department to conduct further enquiries of the employees and to visit the site, which was prejudicial to the applicant and unfair.
c.The business history of the Director who appeared at the hearing, which shows substantial experience over many years in franchising operations, regulatory compliance in his dealings with taxation and other matters, completing his responsibilities without coming under notice, and demonstrated integrity in all dealings with the employees.
d.That the evidence provided at the hearing, which was transcribed in some detail with the submission[14], provided a very fulsome explanation of the tasks and roles performed by the nominee in particular and in fact all the nominees.
[14] Ibid ff 244-248
e.A reasonable conclusion from hearing that evidence must be that the three nominees in the related applications are in fact performing the tasks and roles of internal auditors, and in the case of Mr Sharma, the role of marketing manager.
f.The nominee (Mr. Kansara) is highly skilled and has been employed since 2012 as internal auditor. He is now the internal auditor for the applicant’s two Macleay Island stores. He prepares detailed reports, which are consistent with the other internal auditors, their role and duties, summarising performance, market initiatives and product strength. His role is complex and he has significant tertiary qualifications both as an accountant and in management to enable him to fulfil the role, in which he has been working for the last seven years. The finding of “adverse information” in relation to the applicant is not determinative of his performance as internal auditor. There is no finding by the Department that Mr Kansara is not performing his role of internal auditor. The finding was that the role was not sufficiently complex. The director stated at the hearing that Mr Kansara continues to fill the same role and functions as he did when issued the 457 visa for the role of internal auditor, but evidently with more experience and with greater importance as the business has grown.
g.The three internal auditors have complex roles. The McLeay Island stores employ more than 20 local people, all Australians. The role of the nominee and the other internal auditors involves working both on the shop floor in the store during stock takes and product evaluations, as well as the office work involving preparation of reports on a daily and weekly basis. The Director said he thought the Department might not have understood the complexity of the role, which he had not had an opportunity to explain adequately.
h.The Director has described the role of the internal auditors in some detail. He explained they are required to liaise on a daily basis with their retail manager, evaluate cost effectiveness in terms of sales and purchases, identify operational risks and generate weekly reports on cash flow and credit for the directors. Stock movement is also essential from the point of view of ordering and meeting local demand and monitoring changes in consumer behaviour and in particular, to enable these smaller grocery outlets to compete with the larger retail chains such as Coles and Woolworths. It requires a significant skill set in terms of financial and accounting experience as well as management skills. The internal auditors work principally on the premises, and assist with sales data and forecasts, prepared by them and reported on a daily basis.
i.It is reasonable to disregard the adverse information finding, taking into account procedural guidelines for Department officers, which are not exhaustive, but which include:
i.the nature and seriousness of the adverse information,
ii.the time when the adverse information occurred and how it arose,
iii.whether the allegations in fact a fully made out or substantiated and whether any follow-up or further action has been taken,
iv.any acknowledgement by the applicant and its responses, including evidence provided by the applicant to either contradict or rectify issues subject of the adverse information,
v.ongoing compliance and finally
vi.any compelling circumstances affecting the interest of Australia.
The applicant addressed each of these issues in its submissions and at the hearing with the director.
Findings on adverse information
The Tribunal is satisfied that the “adverse information” finding is potentially a serious matter for the Tribunal to consider. Each case however is considered on its particular merits.
The Tribunal finds in this instance that the applicant has gone to considerable lengths to explain its position, its modus operandi for each of its five grocery stores and the importance of the role played by the internal auditors in the related applications. The Tribunal conducted an exhaustive examination of the Director at hearing in order to gain a better understanding of the weight to attach to the applicant’s submissions, which press the Tribunal to disregard the findings against it. The transcript[15] details the Director’s responses and the Tribunal places considerable weight on the explanations provided.
[15] T case file 1701231 folder 2 at ff 289-292
Having carefully considered all that information and the written submissions, the Tribunal finds it is satisfied the nominee is an accomplished and trained internal auditor, whose skill set and job description fits the ANZSCO recommended guideline for the tasks associated with the occupation. Having heard from the director and having regard to his evidence[16] and the applicant’s detailed submission, the Tribunal is satisfied and finds that the nominee in fact performs the role and occupation for which he has been nominated and that this consideration must carry some significant weight in this review.
[16] ibid
The Tribunal further accepts that to now deprive that employee of his employment, as an internal auditor would be on balance unreasonable, given that the nominee is performing the role and is not responsible for the adverse finding against the applicant in 2016. Such a finding in this Tribunal’s view accords with the weight of evidence in favour of the applicant and is proportionate in accordance with the facts and circumstances surrounding the imposition of the bar, which was due to no fault or participation of the nominee. As pointed out in the written submissions, although the bar is a form of penalty, it is not intended to permanently prevent the applicant from succeeding with its nominations, and no such decision has been made.
The Tribunal finds that the applicant is a significant employer primarily in regional Queensland, and that it has satisfactorily explained the need to engage internal auditors at each of its store locations. The role of those internal auditors ought not be peremptorily dismissed on the basis the stores are themselves “small” grocery outlets. The two stores on McLeay Island employ more than 20 full-time staff as do the two stores at Injune and Springsure.
The Tribunal accepts that the loss of the nominee’s employment in this and the related applications would have a significant impact on the applicant’s business and potential repercussions for employment in the two regional locations. The Tribunal accepts the employees are required and are performing the nominated roles, and to replace them would place the applicant at some risk while recruitment and training is undertaken. The Tribunal finds that such a result is disproportionate to the complaints and finding by the Department and ultimately the sanction imposed, which has now ceased to operate.
The Tribunal finds the applicant has provided evidence to qualify the Department’s findings that employment of internal auditors (and now in separate locations) was unnecessary, and finds that the roles are in fact consistent with the more complex tasks outlined in the ANZSCO guide, and warranting a conclusion that it is reasonable to disregard the adverse information in this instance.
The Tribunal finds that the applicant has provided a reasonable explanation for the conduct complained of by the Department following the telephone interviews, and in respect of which the Director has taken responsibility for not providing sufficient information at the time, which he has now clarified. The employees have been working for the applicant for a considerable period, and have a demonstrated consistent employment history, which is also evidence of compliance by the applicant with its workplace responsibilities, both to those employees and in terms of its sponsorship agreement.
Compelling circumstances
The Tribunal finds that there are compelling circumstances affecting the interests of Australia, taking into account the size of the applicant’s workforce in regional Australia (more than 40 employees) and its business turnover (in excess of $20 million), and where employees of the quality and skill level necessary for the nominated occupations are difficult to find. Supporting evidence provided from local Australian residents including the local Council member and politician, demonstrates the contribution made by the applicant and the importance of the applicant’s business to those local communities.
These submissions are persuasive and the Tribunal finds it is satisfied there are compelling circumstances, which lead to a reasonable conclusion on the weight of all the evidence that the Tribunal should disregard the adverse information found against the applicant. The Tribunal accepts the applicant’s written submissions[17] and accords them significant weight in considering this issue, and noting the comprehensive and thorough explanation provided by the Director at the hearing.
[17] 24 June 2019
As a result, the Tribunal is persuaded to disregard the finding of adverse information in this particular instance, and finds accordingly that the requirement in r.5.19 (3)(g) is met.
Satisfactory compliance with workplace relations laws: r.5.19(3)(h)
Regulation 5.19(3)(h) requires the applicant to have 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 relating to workplace relations.
The Tribunal has paid careful regard to the available information. The Tribunal finds there is no evidence of any breach by the applicant of workplace laws or Commonwealth, State or Territory laws (other than in the context of this application and consideration of the adverse information), concerning the operation of the applicant’s business.
Accordingly, the requirement in r.5.19(3)(h) is met.
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position for the internal auditor in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Alan McMurran
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
(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.

[2019] AATA 3748

10 July 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Proportionality

Remedies