S & S HOSPITALITY GROUP PTY LTD (Migration)

S & S HOSPITALITY GROUP PTY LTD (Migration) [2021] AATA 1019 (5 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: S & S HOSPITALITY GROUP PTY LTD
CASE NUMBER: 1813565

HOME AFFAIRS REFERENCE(S): BCC2017/3225328
MEMBER:Cathrine Burnett-Wake
DATE:5 February 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 5 February 2021 at 1:34pm

CATCHWORDS
MIGRATION – nomination of a position – occupation of Café or Restaurant Manager – genuine position – adverse information about the applicant – standard business sponsorship cancelled – 12-month bar – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 140, 359, 363
Migration Regulations 1994, rr .13, 1.40, 2.72, 2.73, 2.89
CASES
Hasran v MIAC [2010] FCAFC 40
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 April 2018 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 5 September 2017. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.
The proposed occupation for nomination was that of Café or Restaurant Manager (ANSZCO 141111).
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy 2.72(1)(f) because they were not satisfied that the position associated with the nominated occupation was genuine.
On Tribunal 17 November 2020, the Tribunal wrote to the applicant pursuant to s.359 of the Act, inviting the review applicant to provide updated and current information about its business and the nominated position. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 1 December 2020 the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The applicant did not provide the information within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.
As the applicant was no longer entitled to a hearing, several matters the Tribunal had hoped to deal with at hearing, required further action prior to moving to a decision to ensure its statutory duties and procedural fairness obligations were discharged.
On 18 January 2021, the Tribunal wrote to the applicant to address two issues. The first was to inform the applicant of and provide a copy of the Non-Disclosure Certificate the Department had issued on 14 May 2019 pursuant to s376. The Tribunal determined this certificate was valid and decided to exercise its discretion and provided a copy in full of the information behind the certificate, which was an anonymous allegation report about the applicant and one of its employees. The second issue was an invitation to comment on or respond to information pursuant to s.359A.
The particulars of the information pursuant to s.359A the Tribunal sought the applicant to comment on or respond to were as follows:
- On 7 March 2019, the Border Watch Allegation Referral Team received an anonymous report about [Employee A] and ‘S And S HOSPITALITY GROUP PTY LTD’.
- The report alleges that [Employee A] was employed by ‘S And S HOSPITALITY GROUP PTY LTD trading as [Business name]’, however [Employee A] never worked there as the business does not exist.
- The report alleges that the business has generated false and fabricated payslips and group certificates
- The report alleges that the business and position does not exist and that there is no lease for [Business name].
- The report alleges that [Mr B] was kicked out from the business for non-payment of rent.
- Departmental records indicate that on 23 August 2019, Australian Border Force notified [Mr B] of the decision to cancel the standard business sponsorship of S & S Hospitality Group Pty Ltd, and bar S & S Hospitality Group Pty Ltd for 12 months from making applications for approval as a standard business sponsor and temporary activities sponsor. (A copy of this decision was attached).
The Tribunal in its correspondence detailed that this information is relevant to the review because if the Tribunal were to rely on the information, it may find that it constitutes adverse information and that r.2.72 provides that there should be no adverse information unless it is reasonable to disregard this information. It was requested that comments or a response should be received by 1 February 2021.
The applicant did not provide comments or a response. The Tribunal has decided to proceed to decision without taking further steps to obtain the information. This decision was reached as the Tribunal had given the applicant two opportunities to engage with it, and it failed to respond on both occasions.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved sponsor and meets the requirements in r.2.72: s.140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable, but this liability only arises for nominations made from 12 August 2018. In addition, for nominations made from 23 November 2013, s.140GBA must be met.
No adverse information known to Immigration
Regulation 2.72(9) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B.
‘Adverse information’ for these purposes means any adverse information relevant to a sponsor’s suitability as an approved sponsor or a nominator and includes information about the sponsor or a person associated with the sponsor. The objective of reg 2.72(9) is to allow the Minister to consider information about the applicant’s suitability as a nominator in deciding whether to approve an application.
Regulation 1.13A expressly includes within its scope information that:
- a person or
- a person associated with that person
has, in the last 3 years:
- become insolvent (as defined in s5(2) and (3) of the Bankruptcy Act 1996 and s95A of the Corporations Act 2001) or
- contravened (or allegedly contravened) a Commonwealth or State/Territory law relating to one or more of the matters listed in regulation 1.13A(2), namely:
·discrimination
·immigration
·industrial relations
·occupational health and safety
·people smuggling and related offences
·slavery, sexual servitude and deceptive recruiting
·taxation
·terrorism
·trafficking in persons and debt bondage.
Contravention (or alleged contravention) of a law relating to immigration includes laws relating to sponsorship obligations.
Circumstances in which it may be reasonable to disregard the adverse information
There are no definitive rules as to when it will be reasonable to disregard adverse information about a nominator. Policy does provide some guidance and relevantly provides that decision makers:
·…must exercise judgment and assess the circumstances of each case on its merit. Factors that may be taken into account in deciding whether it is reasonable to disregard the adverse information include, but are not limited to:
·the nature of the adverse information
·how the adverse information became known, including the credibility of the source of the adverse information
·in the case of an alleged contravention of a law, whether the allegations have been substantiated or not
·whether the adverse information relates to a current contravention or one that occurred a long time ago
·whether the applicant has taken any steps to ensure the circumstances that led to the adverse information did not recur and
·information about relevant findings made by a competent authority in relation to the adverse information, and the significance the competent authority attached to the adverse information.
Policy also provides several circumstances in which it may generally be reasonable to disregard adverse information including, but not limited to:
·if members of a partnership or unincorporated association who constitute the applicant for approval have no influence over the conduct of the partnership or association (if they are associated with the nominator) or
·if the partnership or association has been able to demonstrate that the relevant members have no influence over the conduct of the partnership or association’s business (for example, silent partner) or
·if the applicant for approval has taken steps to negate the implications of relevant conduct or practices or
·if the applicant for approval has developed practices and procedures to ensure the relevant conduct was not repeated.
Policy further provides it may also be reasonable to disregard the adverse information if there are compelling circumstances affecting the interests of Australia. A scenario that might fit into this category is a multinational company that:
·has nominated a large number of highly paid professionals over a long period with an otherwise good compliance record
·is under investigation by the Fair Work Ombudsman for recent technical breaches of workplace relations legislation
·has been contracted to deliver a major project for the Australian Government
·is working to a very tight deadline and any delays will have a serious negative impact on the project.
On 23 August 2019, the applicant received a decision under s.140M(1) to cancel the standard business sponsorship of the applicant and; to bar the applicant for 12 months from making applications for approval as a standard business sponsor and or as a temporary activities sponsor. This decision was on the basis that the applicant was in breach of r.2.89 ‘Failure to satisfy sponsorship obligations’. The breaches identified were the failure to notify the Department that its sponsored persons had ceased employment and its change in address, within the required timeframe. The Department in its decision considered this to be a significant breach, and it only became aware of these failures during the monitoring audit.
The decision the applicant was subject to pursuant s1.40M(1) falls within the scope of ‘adverse information’ as detailed at paragraph [16]. The Tribunal acknowledges that the bar was for a 12-month period and no longer applies, however, it is still relevant to considerations for the purposes of determining 2.72(9) as the Department decision occurred within the last 3 years.
The Tribunal has considered whether it would be reasonable to disregard this adverse information, being the sponsorship cancellation and the 12-month bar due to breach of sponsorship obligations.
Although the adverse information and its relevancy to the determination of this decision was put to the applicant and they had an opportunity to comment on it or respond to it, the Tribunal did not receive a response.
The Tribunal notes that in the standard sponsorship cancellation and bar decision that the applicant claims that they have taken steps to ensure sponsorship breaches do not occur again in the future and have included they engaged the services of a new migration agent, to ensure compliance with it sponsorship obligations in the future. Although the Tribunal acknowledges this claim, the applicant has not provided the Tribunal with any updated information to confirm this or what other steps they may have taken to ensure future breaches are avoided.
As it stands, the sponsorship cancellation and bar occurred within the last 3 years. The Tribunal considers a sponsorship cancellation and bar because of a breach of sponsorship obligations to be serious in nature. Other than the claim the applicant had engaged the services of a migration agent, the applicant has not provided details about any steps it has taken to negate the implications of relevant conduct or practices relating to sponsorship obligations, nor has it demonstrated it has developed practices and procedures to ensure the relevant conduct will not be repeated. There is also no evidence or claims made of any compelling circumstances affecting the interests of Australia that could also be reason to disregard the adverse information.
Given the circumstances the Tribunal is not persuaded that it would be reasonable to disregard the adverse information.
The Tribunal finds that the decision made by the Department on 23 August 2019 to cancel the applicant’s standard business sponsorship, and to also implement a 12-month bar due to breach of sponsorship obligations is adverse information pursuant to r.1.13A. The Tribunal further finds that it is not reasonable to disregard this adverse information.
For these reasons the requirements of r.2.72(9) are not met.
For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to approve the nomination.
Cathrine Burnett-Wake
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination — Subclass 457…
(1)This regulation applies to a person who is:
(a)is any of the following:
(i) a standard business sponsor;
(ii) a person who has applied to be a standard business sponsor;
(iii) a party to a work agreement (other than a Minister);
(iv) a party to negotiations to a work agreement (other than a Minister); and
(b)a party to a work agreement (other than a Minister);
who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].
(2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).
(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that the person is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister).
(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
(6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:
(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and
(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.
(7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.
(7A)In addition to subregulation (6):
(a)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and
(b)if:
(i)       the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii)      the person has listed on the nomination a person described in paragraph (6) (a); and
(iii)     the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.
(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;
(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);
(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;
(b)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a standard business sponsor;
the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);
(c)if:
(i)       there is no 6-digit ANZSCO code for the nominated occupation; and
(ii)      the person is a party to a work agreement;
the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8B)The Minister is satisfied that the person has, in writing, certified as part of the nomination whether or not the person has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act.;
(9)The Minister is satisfied that either:
(a)there is no adverse information known to Immigration about the person or a person associated with the person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.
(10)If the person is a standard business sponsor — the Minister is satisfied that:
(a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and
(aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph and the occupation is applicable to the person identified in the nomination in accordance with the specification of the occupation; and
(b)if required by the instrument mentioned in paragraph (a) or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and
(c)the terms and conditions of employment of the person identified in the nomination will be no less favourable than the terms and conditions (including, if applicable, the terms and conditions provided by an enterprise agreement under the Fair Work Act 2009) that are provided or would be provided to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location; and
(cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:
(i)       are provided; or
(ii)      would be provided;
to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and
(d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ASCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (a); and
(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ASCO; or
(B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and
(e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ANZSCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (aa); and
(ii)      if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iii)     if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iv)     the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ANZSCO; or
(B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).
(f)the position associated with the nominated occupation is genuine; and
(g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:
(i)       the requirements in subclause 457.223(6) of Schedule 2 continue to be met;
(ii)      if:
(A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and
(B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;
the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;
(iii)     the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;
(iv)     unless subparagraph (ii) applies—the holder:
(A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and
(B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and
(h)either:
(i)       the person will:
(A)engage the visa holder, the applicant for a visa or the proposed applicant for a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and
(B)give a copy of that contract to the Minister; or
(ii)      the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).
(10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:
(a)the terms and conditions of employment; and
(b)the base rate of pay, under the terms and conditions of employment;
that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.
(10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.
(10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:
(a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and
(b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and
(c)the Minister considers it reasonable to do so.
(11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:
(a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and
(b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or
(B)if the nomination is not made using an ASCO code - the nominated occupation specified in the work agreement; and
(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and
(c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i)       the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or
(B)if the nomination is not made using an ANZSCO code - the nominated occupation specified in the work agreement; and
(ii)      the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.
(12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.

[2021] AATA 1019

5 February 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction