Phuong Vo Australia Pty Ltd (Migration)

[2018] AATA 4387

Phuong Vo Australia Pty Ltd (Migration) [2018] AATA 4387 (3 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Phuong Vo Australia Pty Ltd

CASE NUMBER:  1621824

DIBP REFERENCE(S):  BCC2016/1492928

MEMBER:Mr S Norman

DATE:3 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 03 October 2018 at 9:55am

CATCHWORDS
MIGRATION – Employer Nomination – approval of nomination – sponsor’s failure in undertakings – sponsorship ban – practice and procedure – no relevant information provided – no comment on adverse findings – decision under review affirmed


LEGISLATION
Migration Act 1958 (Cth), s 140M
Migration Regulations 1994 (Cth), rr 1.13A, 1.13B, 5.19


CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18

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 Immigration on 6 December 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).

2. The applicant lodged the Department delegate’s decision with the Tribunal.

3. The applicant applied for the approval on 19 April 2016. 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).

4. 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 delegate refused the application on the basis the applicant’s nomination did not satisfy .5.19(3)(g)(i) of the Regulations (relating to the existence of known adverse information).

5. The applicant was initially represented in relation to the review by its registered migration agent. However, the agent’s registration was subsequently cancelled.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

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

8. 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.  Regarding ‘adverse information’, this was defined as follows:

   Reg 1.13A Meaning of adverse information

   (1)  Adverse information is any adverse information relevant to a person’s suitability as:

   (a)  an approved sponsor; or
   (b)  a nominator (within the meaning of regulation 5.19); or
   (c)  a maker of a nomination in accordance with a labour agreement;

   and includes information that the person, or a person associated with the person:

   (d)  has been found guilty by a court of an offence under a Commonwealth, State or Territory law that relates to one or more of the matters referred to in subregulation (2); or
   (e)  has, to the satisfaction of a competent authority, acted in contravention of such a law; or
   (f)  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; or
   (g)  is under investigation, subject to disciplinary action or subject to legal proceedings in relation to an alleged contravention of such a law; or
   (h)  has become insolvent within the meaning of subsections 5(2) and (3) of the Bankruptcy Act 1966 and section 95A of the Corporations Act 2001.

   (2)  The matters are the following:

   (a)  discrimination;
   (b)  immigration;
   (c)  industrial relations;
   (d)  occupational health and safety;
   (e)  people smuggling and related offences;
   (f)  slavery, sexual servitude and deceptive recruiting;
   (g)  taxation;
   (h)  terrorism;
   (i)  trafficking in persons and debt bondage. 

   (3)  The conviction, contravention, administrative action, investigation, disciplinary action, legal proceedings or insolvency mentioned in paragraphs (1)(d) to (h) must have occurred within the previous 3 years.

   (4)  In this regulation:

   competent authority has the meaning given by subregulation 2.57(1). 

9. On 19 April 2016, Phuong Vo Australia Pty Ltd (the applicant or nominator) lodged a nomination approval application. On 13 September 2016, the applicant was sanctioned under s.140M(2) of the Act, for failing to comply with the sponsorship undertakings required of an approved business sponsor for temporary visas. The sanction imposed a 12 month ban on the applicant from making future applications for approval as a standard business sponsor. This sanction was in effect from 13 September 2016.

10. On 5 November 2016, the Department provided the applicant with an opportunity to comment about this adverse information, and whether it was reasonable to disregard the information. The response was due within 28 days. As at the date of the Department decision (being 6 December 2016), no response was provided. Accordingly, as there was adverse information known to the Department about the nominator, the nominator was found not to have met r.5.19(3)(g)(i) of the Regulations.

11. In reaching their decision, the delegate noted that Department policy required consideration of matters, including but not limited to:

    ·the nature of the adverse information

    ·how the adverse information arose, including the credibility of the source of the adverse information

    ·in the case of an alleged contravention of the law, with the allegations have been substantiated or not new whether the adverse information arose recently along time ago

    ·whether the applicant had taken any steps to ensure the circumstances which led to the adverse information did not recur

    ·information about relevant findings made by a competent authority in relation to the adverse information, and the significance attached by the competent authority to the adverse information.

12. However, as the applicant had not provided any information about (ie), steps taken to ensure the circumstances which led to the adverse information would not recur, the delegate was not satisfied it was reasonable to disregard the adverse information. Therefore, the delegate was not satisfied the nominator met r.5.19(3)(g)(ii) of the Regulations.

13. The delegate then noted the applicant had only provided claims against r.5.19(3); and that since insufficient claims evidence had been submitted against r.5.19(4), the applicant did not meet that alternate sub-regulation.

14. The Tribunal had (initially) invited the applicant to a hearing on 20 November 2018. That hearing was subsequently cancelled. That is because by s.359(2) letter of 18 September 2018, the Tribunal wrote to the applicant’s authorised recipient[1], and requested further information. The information requested included ‘information about the applicant’s compliance with training commitments and [more particularly] sponsorship obligations’. The applicant was also advised they must respond in writing by 2 October 2018. The applicant was also advised that if the Tribunal did not:

    …receive the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain the information. The applicant will also lose any entitlement it might otherwise have had under the Migration Act to appear before us to give evidence and present arguments.  [bold included in the Tribunal letter]

    [1] The Tribunal notes the authorised recipient/agent’s registration had been cancelled. Therefore, a ‘cc’ copy of the letter was also sent to the applicant.

15. With the Tribunal’s abovementioned letter was attached a printout of re.5.19(2) & (3) of the Regulations. As at the time and date of this decision, no response was received from the applicant.

16. Section 360 of the Act states inter alia the “Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments”. However, section 359C of the Act provides that if a person fails to respond to a s.359 or s.359A letter, the “Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information”. In the circumstances of this case, given no response was received to the Tribunal’s s.359(2) letter, and given no material evidence was otherwise lodged with the Tribunal, and given the applicant was made aware of the deficiencies in the application at the time of the delegate’s decision (6 December 2016), the Tribunal has decided to make a decision on the review without taking any further action to obtain the applicant’s views on the information.

17. Further, the Tribunal has given consideration to whether it should adjourn the review under subsection 363(1)(b) of the Act in order to allow the applicant additional time in which to provide further evidence to support the review application. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[2] and Manna v Minister for Immigration and Citizenship[3] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. I have also had regard to the decision in Minister for Immigration and Citizenship v Li[4] regarding the reasonableness of any request for an adjournment (something that was not requested in this case), and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[5] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[6] where analogous issues were discussed.

    [2] [2002] FCA 617

    [3] [2012] FMCA 28

    [4] [2013] HCA 18 (8 May 2013)

    [5] [2014] FCAFC 1 (4 February 2014)

    [6] [2014] FCA 915 (28 August 2014)

18. The Tribunal also considered whether, in the circumstances of this case, the information that the applicant meets the requirements in reg. 5.19(3) or (4) is likely to be forthcoming and whether the applicant has had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to the applicant. The Tribunal has also had regard to the fact that the application was refused by the Department on 6 December 2016. Therefore, the applicant has already been aware for approximately 22 months of the delegate’s reasons for refusing the application.

19. In these circumstances, and based on the evidence set out herein, the Tribunal considers that the applicant has had a fair opportunity to provide the relevant information and sufficient time to take steps to satisfy the regulatory criteria. The Tribunal notes that it is uncertain if and when the applicant will provide information in writing as to whether the applicant meets the requirements of reg. 5.19(3) or (4).  The Tribunal has decided not to delay its decision any further. Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that they meet the requirements of reg. 5.19(3) or (4).

20. The Tribunal now finds that on 13 September 2016, the applicant was sanctioned under s.140M(2) of the Act, for failing to comply with the sponsorship undertakings required of an approved business sponsor for temporary visas. The sanction imposed a 12 month ban on the applicant from making future applications for approval as a standard business sponsor. The applicant has not commented about this adverse information and/or whether it was reasonable to disregard the information. On the evidence before it, the Tribunal is not satisfied the applicant meets r.5.19(3)(g)(i) of the Regulations.

21. For the above reasons the Tribunal is not satisfied 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

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

    Mr S Norman
    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.