Radeshar Pty Ltd v Minister for Immigration
[2011] FMCA 560
•22 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RADESHAR PTY LTD v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 560 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal to grant the visa applicants Employer Nomination (Migrant) (Class AN) visa – no reviewable error – application dismissed. |
| Migration Act 1958 (Cth), ss.140J, 140K 140L, 140O, s.338(9), s.359A Migration Regulations 1994 (Cth), Regs. 4.02(4)(e), 5.19 |
| Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 |
| Applicant: | RADESHAR PTY LTD |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2184 of 2010 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 24 February 2011 |
| Delivered at: | Sydney |
| Delivered on: | 22 July 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M. Newman of Newman and Associates Solicitors |
| Counsel for the Respondents: | Mr T. Riley |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Application filed on 8 October 2010 is dismissed.
The Applicant is to pay the First Respondent’s costs of and incidental to this Application, as agreed or assessed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2184 of 2010
| RADESHAR PTY LTD |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In accordance with the Court orders made on 2 November 2010, the solicitors for the First Respondent were required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing. This order was complied with and the volume of material provided is identified as the Court Book (“CB”). On the date of the hearing, the Court Book was marked Exhibit ‘A’.
At the commencement of the hearing, Mr Newman informed the Court that he had been briefed to appear in the matter number SYG 2184 of 2010 and that he had only received and reviewed the Court Book in respect of that matter. Those proceedings were brought by Radeshar Pty Ltd as trustee for Pillay Family Trust seeking review of the Migration Review Tribunal (“Tribunal”) decision number 0901408 of Tribunal Member T. Delofski dated 26 February 2009 and 14 September 2009.
Mr Newman indicated that when he arrived at Court he found that there were also proceedings in SYG 2183 of 2010 brought by Radeshar Pty Ltd as trustee for Pillay Family Trust, with visa applicants Ms Jubiley Devarajan, Delma J Devaraj and Ms Lamcy J Devaraj. Mr Newman indicated that he did not have specific instructions in relation to this matter but acknowledged that unless the sponsor can succeed, then the proposed employees must fail. Mr Riley, appearing for the Minister, indicated that he did not object to Mr Newman making submissions in respect to the second application.
Mr Newman confirmed that the Amended Application and the outline of submissions were made in relation to the sponsor (SYG 2184 of 2010).
Background
Radeshar Pty Ltd was established in Sydney in June 2004 by Raman Pillay and Shyla Pillay. Radeshar is an umbrella for hospitality businesses which trade as:
· Windsor Terrace Motel;
· Windsor Motel;
· Killara Inn Conference and Function Centre;
· Windsor Holiday House;
· Arvis’s Tandoori Restaurant & Bar;
· Mogul Indian Restaurant;
· Ascot Motor Inn; and
· Deepa Cuisine Indian Coffee House.
The organisation is associated with Golden Chain Motor Inns limited which are providers of quality accommodation and services and is Australia’s largest motel chain. As part of the development phase, the Directors of Radeshar identified a niche market of Bollywood theme parties for the mainstream Australian market and also developed Indian restaurants to have various Indian state themes in order to differentiate them and be positioned as authentic Indian restaurants.
Radeshar also wanted to promote an excellent training record and hosted trainees from TAFE where Indian students would come to various restaurants and motels for industry training. In order to obtain some specialised skills, Radeshar acted as a business sponsor for overseas nationals holding sub-class 457 visas. There were a number of these visa types sponsored by Radeshar. On 29 February 2008, the Department of Immigration and Citizenship commenced a site visit of Radeshar Pty Ltd and issued a 41287, Business Sponsor Audit of Undertaking to the sponsor in respect of four sponsored employees holding sub-class 457 visas, issued to Radeshar Pty Ltd on 13 July 2007. Radeshar could not provide a response within the 14 days as required by the Department and subsequently a Breach Notice was issued on 23 June 2008.
On 30 July 2008, Radeshar submitted all of the payslips and other details to the Department regarding the four employees on the sub-class 457 visas. On 1 October 2008, an unannounced entry was made by officers of the Department’s Monitoring Unit together with officers of the Workplace Ombudsman’s Office and the NSW Police Force, at the Killara Inn Hotel and Conference Centre located at 480 Pacific Highway Killara being one of the hotels of Radeshar that employed 457 visa holder employees. On 3 October 2008, a second request for further information was sent to Radeshar requesting evidence of payment of salary and taxes. On 2 December 2008, a Breach Notice was issued for breaching minimum salary levels as per Reg.1.20CB(1). On 7 January 2009, Mr Wayne Price, Radeshar’s accountant, responded to the Breach Notice issued by the Department. The Decision Record was attached (CB 72 – 86).
On 4 February 2009, Ms Sandra Silva, Manager of NSW Business Monitoring Unit of the Department of Immigration and Citizenship, issued an 18 month Sanction Notice for breach of Reg.1.20CB(1)(i) (CB 70 – 71).
On 6 February 2009, Ms Margaret Banas, Case Officer Permanent Skilled Entry, Parramatta Business Centre, Department of Immigration and Citizenship, refused the application made under Employer Nominated Scheme (ENS) by Radeshar Pty Ltd for Jubiley Devarajan due to the bar imposed on Radesahr Pty Ltd (CB 87 – 89). The Decision Record was attached (CB 90 – 95). In a letter dated 6 February 2009, the Department advised Mr Pillay of his review rights in the following form:
This nomination can be taken at this office. However, you are entitled to apply to the Migration Review Tribunal (MRT) for a review of this decision. An application for review of this decision must be made to the MRT within 21 calendar days after you are taken to have received this letter.
Mr Pillay was also advised that he may make an appeal directly to the Minister to waive the bar. The Applicant chose to do both by filing an Application with the Tribunal, which is set out below, and by filing two applications with the Minister seeking the bar to be removed.
On 26 February 2009, an Application for Review to the Migration Review Tribunal was filed by Radeshar Pty Ltd as trustee for the Pillay Family Trust. On 27 February 2009 the Tribunal acknowledged receipt of the Application. On 6 August 2009 the Tribunal issued an “Invitation to Comment on or Respond to Information in Respect to the Application”. Radeshar was invited to give comments or respond to the following information:
Background
· Radeshar Pty Ltd is the “Applicant”. The Applicant applied for approval for a nominated position under R.5.19 of the Regulations on 13 July 2007. The delegate decided to refuse to grant the Application on 6 February 2009. The delegate rejected the Application as the employee was subject to of an action that is described in s.140L of the Act (R.5.19(1C)(a)(iii) and (b)). The Applicant then applied to the Tribunal on 26 February 2009 for review of the delegate’s decision.
· Regulation 5.19(1C)(b) provides that the Minister must reject an application if any of the requirements of paragraph (a) is not met. In issue in this case is Regulation 5.19(1C)(a)(iii) which provides ‘the employer is not the subject of any action that is described in s.140L of the Act.
Issue
· On 4 February 2009, the Department made a decision under s.140J and s.140K to take the action set out in para.140L(c)(e) and (g). These actions bar the Applicant from sponsoring or nominating persons or activities for 18 months.
On 31 August 2009, Jay & Associates wrote to the Tribunal asking for an extension of time to lodge further details. On 1 September 2009 the Tribunal refused to grant the extension of time and provided a response by 3 September 2009 and scheduled a hearing on 16 September 2009. The initial Tribunal hearing conducted by Member Chris Parker was held on 16 September 2009 with Mr Raman Pillay, the primary review Applicant and Mr Jayakumar Vedaranyan as Mr Pillay’s representative. During the hearing it was agreed to adjourn the review until 7 October 2009 so that additional information could be provided. On 1 October 2009, there was an acknowledgement by the Department of an application to waive the bar. It is noted in the letter from the Department on 26 October 2009 that at that date no additional information had been provided and accordingly the member indicated that the Tribunal could now proceed to a decision in the matter. At some point thereafter the Tribunal was reconstituted pursuant to s.355 of the Act.
On 29 October 2009, Jay & Associates forwarded a letter to the Tribunal stating that an application had been lodged with the Minister for Immigration and Citizenship under s.140O seeking a waiver of the bar imposed and that a decision would be made within 28 days. On 11 August 2010 the Tribunal again wrote to Radeshar Pty Ltd pursuant to s.359A of the Migration Act 1958 (Cth) (“the Act”) (second 359A letter) (CB 144 – 145). On 14 December 2010 the second (differently constituted) Tribunal wrote to Mr Pillay advising him of the refusal to grant Radeshar Pty Ltd approval of a nominated position under Reg.5.19 of the Migration Regulations 1994. The letter stated:
The Tribunal has decided to affirm the decision under review. This means that the decision of the delegate of the Minister for Immigration and Citizenship remains in force and your Application to have that decision changed has been unsuccessful.
A copy of the Tribunal’s statement of decision and reasons and a fact sheet are enclosed.
It is this decision, MRT Case Number 0901408 of Tribunal Member T. Delofski dated 14 September 2010 which is the subject of the Application for Review before this Court.
Amended Application
At the commencement of the hearing, Mr Newman sought to file an Amended Application in the following form:
1. The Tribunal erred in law and in its jurisdiction when it failed to review the application before it and merely declared that adverse information barred it from reviewing the decision – see paragraph 17 of the decision at CB 242.
2. The Tribunal erred in law and in its jurisdiction when despite the bar of 18 months having elapsed, it was entitled to find that adverse information (arising out of which the bar had been imposed) was still material and that because of it the Tribunal’s hands were tied – see paragraph 18 of the decision at 242.
Mr Newman’s submissions
Mr Newman indicated that the Court Book consists of 240 pages while the Tribunal decision was just 20 paragraphs of which half is taken up with a statement of the law. The actual decision is contained in just one paragraph is found at para.18 and he submits that this contains jurisdictional error. Paragraph 18 states:
The Tribunal has taken into account the information provided about the Applicant’s good character and business conduct. Nevertheless, the Tribunal considers that the Department’s decision to take the action set out in s.140L to bar the Applicant for 18 months from sponsoring more people, from making future applications for standard business sponsorships and from nominating the person or activity in relation to a temporary visa, notwithstanding that those bars have not expired, constitutes adverse information about the Applicant’s business background.
Mr Newman contends that the above paragraph contains a circular argument and a circular finding. The bar exists because of adverse information and the adverse information exists because there is a bar. Mr Newman contends that the decision consists of two aspects:
a)The bar, which is the prohibition on the sponsor to nominate further proposed employees for positions in its business; and
b)The adverse information.
Mr Newman contends that to examine whether relevant information has been ignored, the analysis adopted in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 which requires an examination of the information which was available to the Tribunal. In the matter before the Court the sponsor, Radeshar Pty Ltd, was found to have been in breach of the minimum salary regulations which are contained in the Minimum Salary Levels and Occupations of a Temporary Business Long-Stay Notice 2008, reference by MM 108/0666. This is the set of regulations upon which the delegate’s decision was based. The delegate does not refer to those regulations and does not set them out separately in the analysis. The sponsor, in its application, gave undertakings that it would meet the minimum salary levels for the proposed nominees being Bhaskar Pani, Raveendra Nathan Parapath and Jafar Tayyal however, through a monitoring program it was found that these undertakings were not complied with. There was a raid on the company’s premises and books were obtained and there was a discrepancy detected with the submitted information as part of the monitoring program.
In advancement of this argument, Mr Newman referred the Court to the Court Book at p.75-77. Under the heading ‘False Information’ the following appears:
Based on the above information, I am satisfied that Radeshar Pty Ltd as Trustee for Pillay Family Trust (sponsor) has given a false and/or incorrect information in connection with permission request 575517170 as set out below.
Mr Newman argues that the words “false and/or incorrect information” are inappropriate and is obviously designed to deceive. However, Mr Newman suggested that for the want of a better description, it may be described as perhaps an honest mistake. Then at p.77, under the heading “Representations” the following appears:
Concerning the provision of false information and the representative’s response, I have considered this under the heading ‘Significance of the False Information provided’ below.
Mr Newman submits that in the Department’s examination of the facts, it had a letter from the company’s independent chartered accountant called Wayne Price, part of which is reproduced in the Department’s decision record at CB 76 and relevantly states:
There has been a total misunderstanding regarding a report generated by the company’s bookkeeper and provided to your office on 31 July 2007. That report headed “Payroll Activities 1/07/2007 – 30/06/2008” was prepared by the company’s bookkeeper following a request for information from your office. I have no idea what the report is actually meant to be but can confirm that it was obtained by downloading some information from my client’s MYOB file to an excel worksheet and making changes to the figures. Whilst not knowing what the report was really attempting to show, I can assure you that it does not represent any amounts actually paid to employees. The actual “Payroll Activity [Summary]” report for the year ending 30 June 2008 is as attached in respect of the relevant 457 visa holders and shows the actual amounts paid to them, PAYG Tax Deducted and Superannuation contributions (shown as ‘expenses’ on the summary report).
Mr Newman contends that by way of explanation as to the facts which were presented to the delegate for consideration in respect to whether a bar should be imposed and the length of that bar, are matters that the Tribunal could have looked at. However, it is not known whether this material influenced the decision. Consequently, there is mitigating information which must be assumed to have been placed before the Tribunal. The delegate seems to agree with the submissions made on behalf of Radeshar that these particular employees were paid less than the minimum salary level but this did not total $18,000.00 which was first thought, but on further analysis it was reduced to $6,000.00 so on average a $2,000.00 shortfall for each person. These facts were in existence because they were picked up in the delegate’s decision (CB 76). Mr Newman argues that in all reasonableness the relevant information should have been considered by the Tribunal. In Minister for Immigration and Multicultural Affairs v Yusuf (supra) all that is required is that the Tribunal set out its findings and the facts on which those findings are based. Turning to the Tribunal decision at para.18 (CB 242) there is no reference to this issue.
Mr Newman submits that the delegate did not analyse whether the information supplied by the bookkeeper on behalf of Radeshar contained an honest mistake or false information despite the fact that an independent accounting service highlighted this problem.
Mr Newman draws the Court’s attention to the Tribunal’s letter dated 11 August 2010, addressed to Mr Raman Pillay extending an “Invitation to Comment on Information – Radeshar Pty Ltd as trustee for Pillay Family Trust”. The letter states:
In conducting its review, the Tribunal is required by the Migration Act to invite Radeshar Pty Ltd as trustee for Pillay Family Trust to comment on certain information which the Tribunal considers would, subject to any comments it makes, be the reason, or a part of the reason, for affirming the decision under review.
Please note, however, the Tribunal has not made up its mind about the information.
The particulars of the information are:
· The Department’s records indicate that the Department has decided not to waive its decision, under s.140J and s.140K of the Act to bar Radeshar Pty Ltd as trustee for Pillay Family Trust for 18 months of sponsoring more people, from making future applications for standard business sponsorships and from nominating a person or activity in relation to a temporary visa.
This information may indicate that Radeshar Pty Ltd as trustee for Pillay Family Trust may not meet r.5.19(2)(b) or r.5.19(4)(f) of the regulations which requires that nothing adverse is known about Radeshar Pty Ltd as trustee for the Pillay Family Trust. (CB 144)
On 7 September 2010, Radeshar Pty Ltd responded with attachments amounting to 96 pages. Mr Newman acknowledges that a substantial part of the contents of this reply is completely irrelevant to the issue before the Tribunal. The Tribunal in its decision at para.16 (CB 241) states:
16. Both at the hearing and in written submissions (with supporting documentation and references) some of which were responding to the written invitation from the Tribunal to provide comments and/or information, the applicant has affirmed that he is a significant employer of Australians and in other ways the applicant’s business operations have benefited the Australian community and the economy; the applicant and references have also attested to the applicant’s good character and conduct of the business.
Mr Newman submits that the information from the delegate’s decision was before the Tribunal which should have been reviewed and the reasons set out the basis of the decision. It must make findings on the relevant material and ignore the irrelevant. Significantly, the relevant information is the report of the independent accountant.
Mr Riley’s submissions
Mr Riley submits that Mr Newman may be under a misapprehension about what the Tribunal was doing as it was reviewing the delegate’s decision to review approval of a nominated position, whereas it was not reviewing separate and previous decision to impose a bar on Radeshar Pty Ltd. Mr Riley acknowledged that the Tribunal could have reviewed the decision in respect to the bar if an application for review of that decision had been made. No such application was filed.
On 6 February 2009, the Department wrote to Mr Raman Pillay quoting the following references:
Client name: Radeshar Pty Ltd as trustee for Pillay Family Trust
Client ID: 71451082978
Request ID: 570517376
File number: CLF2007/100176
The body of that letter clearly states:
Re: Notification of decision on nomination under the employer nomination scheme
This letter refers to an application for approval for a nominated position of seamstress as an ‘approved appointment’ under the Employer Nomination Scheme which was lodged on 13 July 2007.
I wish to advise you that the nomination has been rejected as it did not meet the relevant criteria for approval as set out in Australian Migration Law.
The nomination was rejected because it did not satisfy the requirements of regulation 5.19(1C) of the Migration Regulations 1994.
(CB 87)
On 28 February 2009, an application for review to the Migration Review Tribunal was filed by Radeshar Pty Ltd as trustee for the Pillay Family Trust. In Section G – Decision to be Reviewed the following appears:
Visa Class: ENS
Date of Visa Application on review: 13.07.07
DIAC File Number: CLF2007/100176
Date of DIAC Letter notifying the decision: 6.02.2009
Separately and independently the Department issued a sanction notice in February 2009 placing a bar on the sponsor for 18 months from:
·Sponsoring more people under the terms of any current standard business sponsorship(s);
·Making further applications for approval for a sponsor for s.457 visa (that is, approval as a standard business sponsor); and
·Nominating a person or activity in relation to a temporary visa where the sponsor would otherwise be entitled to make the nomination under the Migration Regulations 1994.
In the attached decision record, Radeshar Pty Ltd was notified that it was entitled to apply to the Migration Review Tribunal for review of the decision to sanction. The same letter also contains the advice that a request to waive the bar may be lodged under s.140O to the Minister under the provisions of s.140J and s.140K of the Act. That advice contains the details of how that application should be made in writing to the Minister. This was the avenue pursued by Radeshar in respect to the imposition of a bar and was contained in letters to the Minister dated 26 February 2009 and 14 September 2009.
Mr Riley indicated to the Court that the reason the Tribunal delayed making its decision was because of the unresolved s.140O application to the Minister and this is set out in the Tribunal decision at para.14 where the Tribunal states:
14. Mr Raman Pillay (Director) representing the Applicant, Radeshar Pty Ltd as trustee for Pillay Family Trust. The previous member noted that the Department had decided to take action set out in s.140L. He also noted that the Applicant had applied to the Minister for a waiver of the action. The previous member said he would adjourn, making a decision for a specified period after which he could proceed to make a decision. He said that if the Minister decided not to waive the action set out in s.140L, the Tribunal must affirm the decision on the basis that the applicant did not meet r.5.19(1C). (CB 241)
The request to waive the bar was refused on 22 July. The Tribunal then wrote a second s.359A letter to Radeshar Pty Ltd on 11 August 2010, giving the information that the Department records indicated the Department decided not to waive its decision under s.140J and s.140K to bar Radeshar from sponsoring more people. That letter states:
This information may indicate that Radeshar Pty Ltd as trustee for the Pillay Family Trust may not meet r.5.19(2)(b) or r.5.19(4)(f) of the Regulations which require that nothing adverse is known about Radeshar Pty Ltd as trustee for the Pillay Family Trust. (CB 144).
Mr Riley submits that the situation for the Tribunal, which is made clear in the second s.359A letter was that the bar had been imposed and Radeshar’s request for the Minister to waive it had been refused on 22 July 2010. While the bar had elapsed on 4 August 2010, which was before the Tribunal decision, the fact that the bar had been imposed was a matter of historical record. The only question which was open for the Tribunal to regard was that the bar constituted something adverse known to the Department about the business background of the employer within Reg.5.19(2)(b). The fact that the bar had been imposed for underpayment of wages is something adverse known about the business background of the employer. Clearly, the Tribunal was not reviewing the correctness of the decision to impose the bar or the information on which it was based. It was simply noting that the bar had been imposed and it had not been waived. The relevance of that imposition was made clear in the second s.359A letter issued by the Tribunal.
Mr Riley argues that it is not true that the Tribunal did not review the delegate’s decision to review approval of the nomination as it plainly did. The decisions to impose the bar or not to waive the bar were not decisions that the Tribunal was reviewing. Those were simply matters of record that were relevant to the legal test in Reg.5.19(2)(b). Mr Riley submits that it was open to the Tribunal to find, given the bar had been imposed and not waived, that there was something adverse known about the business background of Radeshar Pty Ltd and once that conclusion is reached, then the delegate’s decision had to be affirmed because Reg.5.19(2)(b) was not met.
Consideration
The learned authors of LexisNexis online service indicate that the most common of the employer “sponsored” categories, the Employer Nomination Scheme (ENS) is designed for Australian employers that wish to nominate one or more overseas workers for permanent residence. Substantially revamped in April 2005, a number of measures have been introduced to simplify the process and to reduce the expense incurred by employers undergoing the process. The changes also gave the Department of Immigration additional powers so that the employer’s business background record with the Department and its compliance with migration and workplace relations law could be scrutinised. These additional requirements now mean that the permanent program is very closely aligned with temporary business sponsorship.
There are two parts to the process: first, the approval of the position, referred to as the nomination application; and second, the approval of the person as being suitable to fill the position, that is, the visa applicant. All nomination applications are lodged with, and decided by, delegates located in one of the Department’s business centres in Australia. Following amendments made to the Migration Regulations in April 2005 (Migration Amendment Regulation 2005 (No.1) SLI 54. commenced 2 April 2005), all visa applications are also lodged and processed in Australia, regardless of the location of the visa applicant. These applications can either be lodged concurrently or consecutively, however the visa application will not be considered until after the nomination is decided. A decision to refuse a nomination under Reg.5.19 is reviewable by the Migration Review Tribunal: s.338(9) Migration Act; Reg.4.02(4)(e).
The first part of the process requires the Australian employer to make an application for the position (as opposed to the person), to be approved by the Department as being appropriate to be filled by an overseas person. If such an application is successful, then the position is referred to as an "approved appointment". The requirements for approval are contained in Reg.5.19(2) of the Migration Regulations 1994. The Minister or his or her delegate can only approve an appointment if:
(i) the employer is not the subject of a sponsorship sanction imposed under s 140L;
(ii) nothing adverse is known about the business background of the employer;
(iii) there is no adverse information about the business background of the employer; and
(iv) the employer has a satisfactory record of compliance with respect to immigration and workplace relations law.
39.Section 140L gives the Minister the power to impose a range of sanctions (such as cancelling a current sponsorship or imposing a bar on applying for further sponsorships) on current and former business sponsors if it is found that it has breached any undertaking made with respect to its sponsored employees. If the employer is subject to such an action at the time when a nomination application then under Reg.5.19 the nomination must be refused.
The introduction of a new regulation in April 2005 permits the Department to scrutinise the business background of the employer Reg.5.19(2)(b). The employer will be asked to comment on any adverse information prior to any decision being made: s.359A.
Where an employer has previously been approved as a temporary business sponsor, its compliance with immigration law will be assessed by reference to its monitoring history. Accordingly, full compliance with the sponsorship undertakings is necessary in order to satisfy the requirement that the employer has complied satisfactorily. In the Decision Record, the Tribunal member clearly and succinctly sets out the material in paras.10-16 where it states:
10. On 4 February 2009 the Department made a decision under section 140J and 140K to take the action set out in paragraphs 140L(c), (e) and (g). These actions barred the applicant for 18 months from sponsoring more people, from making future applications for standard business sponsorships and from nominating a person or activity in relation to a temporary visa.
11. In the letter notifying the applicant of the action set out in section 140L, the Department also provided the following advice (under the heading ‘Adverse Information’):
You may also be aware that businesses in Australia are eligible to apply as sponsors of people who are applying for some permanent visa categories. For example, the Regional Sponsored Migration Scheme and the Employer Nomination Scheme. As is the case for the Subclass 457 visa program, there are requirements under these programs that require the Minister to be satisfied nothing adverse is known to Immigration about an employer and that they have a satisfactory compliance history with Immigration laws. The effect of this sanction may impact on the sponsor as a future user of the visa programs mentioned above.
12. In a letter dated 6 August 2009, the Tribunal invited the applicant to provide comments on the Department’s decision to take the action set out in section 140L.
13. A hearing was held on 16 September 2009 before the previous Presiding Member. The current Presiding Member has listened to the Tribunal’s audio record of the hearing and a concise summary of the proceedings follows.
14. Mr Raman Pillay (Director) represented the applicant, Radeshar Pty Ltd as trustee for Pillay Family Trust. The previous Member noted that the Department had decided to take action set out in section 140L. He also noted that the applicant had applied to the Minister for a waiver of the action. The previous Member said that he would adjourn making a decision for a specific period after which he would proceed to make a decision. He said that if the minister decided not to waive the action set out in section 140L, the Tribunal must affirm the decision on the basis that the applicant does not meet r.5.19(1C).
15. In a letter dated 11 August 2010, the Tribunal invited the applicant to provide comments on information that the Department’s records indicate that the Department has decided no to waive its decision to that the actions set out in section 140L to bar the applicant for 18 months from sponsoring more people, from making future applications for standard business sponsorships and from nominating a person or activity in relation to a temporary visa. The Tribunal advised that this information may indicate that the applicant may not meet r.5.19(2)(b) of the Regulations which requires that nothing adverse is known about the applicant’s business background.
16. Both at the hearing and in written submissions (with supporting documentation and references) some of which were responding to the written invitations from the Tribunal to provide comments and/or information, the applicant has affirmed that the is a significant employer of Australians and that in other ways the applicant’s business operations have benefited the Australian community and economy; the applicant and referees have also attested to the applicant’s good character and conduct of the business.
Radeshar Pty Ltd applied for approval of an appointment made under the Employer Nomination Scheme. Pursuant to Reg.5.19(1C)(ii) an Application made using Form 785 must meet the requirements of Reg.5.19(2) which refers to the Employer Nomination Scheme. The Tribunal found that the Nomination did not meet Reg.5.19(2)(b) which was based on the fact that the Department had on 4 February 2009 barred Radeshar Pty Ltd from being a sponsor for 18 months pursuant to s.140L of the Act and a request to waive this bar pursuant to s.140O of the Act was refused on 22 July 2010. Accordingly, the Tribunal was not satisfied that “nothing adverse is known to the Department about the business background” of Radeshar Pty Ltd within Reg.5.19(2)(b) so the application had to be refused: reg.5.19(1C)(b).
Significantly, the fact that the bar had lapsed does not mean that as an historical fact, the bar was not imposed. The fact that the bar was imposed meant that it was open for the Tribunal to find that there was something adverse known about the business background of Radeshar Pty Ltd.
I note the argument advanced by Mr Newman but I do not accept the attack on para.17 and para.18 of the Tribunal decision can be advanced in isolation without clear reference to the evidence before the Tribunal which is set out in paras.10-16 and reproduced at [41] above. As the Directors of Radeshar were clearly advised by the delegate that they had two avenues of review in respect of the imposition of the bar. The avenue selected was a direct application to the Minister, by way of two letters, but these were unsuccessful.
The second s.359A letter issued on 11 August 2010 by the second Tribunal Member (essential content reproduced at [23] above, clearly indicate that the Member was focused on the issues directly relevant to the nature of the review.
The Tribunal clearly considered these issues in its review and applied the appropriate regulations. No jurisdictional error is evident and the Application should be dismissed with costs.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Date: 22 July 2011
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