Sea One North Pty Ltd (Migration)

Sea One North Pty Ltd (Migration) [2024] AATA 464 (8 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Sea One North Pty Ltd
CASE NUMBER:  2110326
HOME AFFAIRS REFERENCE(S):          BCC2019/4898813
MEMBER:Alison Mercer
DATE:8 January 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision under review to refuse the nomination.
Statement made on 8 January 2024 at 2:29pm

CATCHWORDS
MIGRATION – nomination – Temporary Residence Transition stream – Massage Therapist – applicant failed to provide the requested information within the prescribed period – applicant had been the subject of a 12 month bar on being approved as a sponsor – applicant had breached r.2.92 of the Regulations by contravening the law – no reason to disregard this adverse information – lack of current information about the applicant’s financial situation – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 140M, 245AR, 359, 360, 363
Migration Regulations 1994, rr 1.13, 2.92, 5.19
CASES
Hasran v MIAC [2010] FCAFC 40
Minister for Immigration and Citizenship v Li [2013] HCA 18

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 22 July 2021 to reject the applicant’s application for approval of the nomination of a position under reg 5.19 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant, Sea One North Pty Ltd (trading as Endota Spa), applied for approval of its nominated occupation of Massage Therapist on 30 September 2019. The requirements for the approval of the nomination of a position in Australia are found in reg 5.19 of the Regulations, which contains general requirements for approval and additional requirements for approval set out in three alternative streams: a Temporary Residence Transition stream, a Direct Entry stream and a Labour Agreement stream. If the application meets the requirements for approval then the application must be approved: reg 5.19(3)(a). If any of the requirements are not met then the application must be refused: reg 5.19(3)(b).
In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy reg 5.19(4)(b) of the Regulations, which required that there was no adverse information (as defined) known to Immigration about the applicant or an associate of the applicant, or if there was, that it was reasonable to disregard it. The delegate found that the applicant had been the subject of a 12 month bar on being approved as a sponsor imposed pursuant to s.140M(1) of the Act on 9 October 2019. The delegate noted that this was imposed due to a finding that the applicant had breached r.2.92 of the Regulations by contravening the law (specifically, by underpaying its employees for a period). The delegate further found that there was no reason to disregard this information and thereftore refused to approve the nomination application.
The Tribunal received a review application on 11 August 2021. It was lodged on behalf of the applicant by its director, Mr Christopher Barbour, and was accompanied by a copy of the delegate’s decision.
On 16 October 2023, the Tribunal wrote to Mr Barbour to invite him, pursuant to s.359(2) of the Act, to provide updated and current information demonstrating that the applicant met all of the relevant r.5.19 criteria (not merely just the criterion that the delegate found was not met). The Tribunal requested that Mr Barbour provide this information by 30 October 2023, and advised him that if he failed to do so (or failed to request an extension of time to do so) by that date, then the applicant would lose its entitlement to a hearing, and the Tribunal might proceed to make its decision on the available evidence, without taking any further steps to obtain the requested information.
On 17 October 2023, Mr Barbour emailed the Tribunal to query to which nominee the nomination information request related. On the same date, a Tribunal officer left a telephone message informing him that the nomination related to the nominee Ms Catriona Elizabeth Foy.
The Tribunal did not receive the requested information (or a request for an extension of time to do so) by 30 October 2023. It has received no further communication to date from Mr Barbour, or any other person authorised to represent the applicant.
The Tribunal is satisfied that its s.359(2) letter of 16 October 2023 was sent to the nominated email address of the applicant’s authorised recipient for correspondence. There is no indication from the Tribunal’s records that the email was undelivered or undeliverable.
On behalf of the applicant, neither Mr Barbour, nor any other authorised person has responded to the Tribunal’s s.359(2) letter. In the circumstances, s.359C applies and pursuant to s.360(3), a person representing the applicant is not entitled to appear before the Tribunal: see Hasran v MIAC [2010] FCAFC 40.
Accordingly, the Tribunal has proceeded to make its decision on the available evidence. In doing so, the Tribunal notes that Mr Barbour provided a copy of the delegate’s decision to the Tribunal with the review application, indicating that he has been aware of the reason for the refusal of the nomination since July 2021, and that he did query which nominee the s.359(2) information related to, but failed to provide it (or request an extension of time to do so) by the due date. In the circumstances, the Tribunal does not consider it unreasonable to proceed to a decision without any further deferral, having regard to the principles set out in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF LAW, CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the general requirements for approval of the nomination set out in reg 5.19(4) and the stream specific requirements set out in reg 5.19(5), which are 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 – reg 5.19(4)(b)
Regulation 5.19(4)(b) requires that either there is no adverse information known to Immigration about the nominator or a person associated with the nominator, or it is reasonable to disregard any such information.
‘Adverse information’ is defined by reg 1.13A as any adverse information relevant to the person’s suitability as an approved sponsor or a nominator. Regulation 1.13A sets out a non-exhaustive list of examples of the kinds of information which meet this definition, including information that the person:
·has contravened a law of the Commonwealth, a State or a Territory, or
·is under investigation, subject to disciplinary action or subject to legal proceedings in relation to a contravention of such a law, or
·has been the subject of administrative action (including being issued with a warning) for a possible contravention of such a law by a Department or regulatory body that administers or enforces the law, or
·has become insolvent (within the meaning of s 95A of the Corporations Act 2001 (Cth)), or
·has given, or caused to be given, to the Minister, an officer, the Tribunal or an assessing authority a ‘bogus document’ (as defined in s 5(1) of the Act), or ‘information that is false or misleading in a material particular’ (as defined in reg 1.13A(4)).
The term ‘associated with’ is also given a non-exhaustive definition for the purposes of this requirement, in reg 1.13B. It provides that two persons are associated with each other in a wide range of relationships and situations, including if:
·they are or were spouses or de facto partners or members of the same immediate, blended or extended family, or have or had a family-like relationship, or belong or belonged to the same social group, unincorporated association or other body of persons, or have or had common friends or acquaintances, or
·one is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of the other or any corporation or other body in which the other is or was involved (including as an officer, employee or member), or
·a third person is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee or member of both of them, or
·they are or were related bodies corporate (within the meaning of the Corporations Act 2001 (Cth)) or,
·one is or was able to exercise influence or control over the other, or
·a third person is or was able to exercise influence or control over the both of them.
Regulation 1.13B(2) provides that it does not matter if one of the persons mentioned has ceased to exist.
The Tribunal is satisfied – from the delegate’s decision and the information on the Department’s file – that the applicant has been the subject of administrative action for a possible contravention of such a law by a Department or regulatory body that administers or enforces the law, as on 9 October 2019, it was the subject of a 12 month bar on being approved as a sponsor. This administrative action was imposed by the Department pursuant to s.140M(1) on the basis that a Department investigation indicated that the applicant had breached r.2.92 of the Regulations by contravening the law; specifically, by underpaying its employees for a period.
The Tribunal is satisfied that this action against the applicant constitutes ‘adverse information’ in relation to the applicant, as defined in rr.1.13A and 1.13B.
As noted above, the delegate found that there was no reason to disregard this adverse information. The delegate noted that Mr Barbour provided the following response on 9 March 2021 to the Department’s notification of its intention to impose a bar:
…
In summary, I believe it is relevant to note:
1. There was never any attempt to enrich or financially reward Sea One North as a result of
this practice;
2. The payment of the agreed salary amounts was only delayed for a certain time period,
with that time period being explained to and agreed with each 457 visa employee before
proceeding with their sponsorship. As such, there was never any attempt to mislead or
deceive the 457 visa employees;
3. We demonstrated to the satisfaction of the Fair Work Ombudsman that the 457 visa
employees all received the withheld salary amounts when they reached the agreed time
milestones;
4. It was a lack of understanding and education on my part with respect to the Workplace
Laws, which I regret, which lead to this mistake and it was a genuine mistake, not an attempt
to improve the financial position of Sea One North;
5. I am now fully aware that this practice was not lawful and not in alignment with the relevant workplace legislation;
6. I no longer employ this practice, and have not done so since February 2018;
7. I have retrospectively compensated all 457 visa affected employees;
8. I have personally apologised to all 457 visa affected employees; and
9. We are now compliant with the Fair Work Act and I am happy to provide the independent
audit report as soon as that report is available at the end of August.
10. Any loss of our sponsorship status or refusal of PR applications would cause real hardship and detriment to our remaining visa employees.”
The delegate nevertheless found that the applicant would not have corrected its breach of the law absent the Department investigation, and should have been aware of its obligations.
The Tribunal notes that the Department’s policy guidelines (as set out in its Procedures Advice Manual, PAM3) address the kinds of factors that might be taken into account in considering whether it was reasonable to disregard any adverse information:
…
Factors which 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 arose, 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 arose recently or a long time ago;
·whether the applicant has taken any steps to ensure the circumstances which 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 attached by the competent authority to the adverse information.
…
While the Tribunal is not bound by Departmental policy, it considers that it is generally a relevant consideration where it does not impermissibly restrict or alter the underlying legislation it purports to explain.
From the Department’s records, which include Mr Barbour’s response and other information he provided to the Department, the Tribunal is satisfied that:
·the adverse information arose from a Department investigation, which also involved the Fair Work Ombudsman, and this established that the applicant had underpaid its subclass 457 visa holder employees, a fact not disputed by Mr Barbour;
the adverse information was therefore credible and substantiated;
·the underpayments were rectified under the auspices of the Fair Work Ombudsman;
·according to Mr Barbour, the underpayments arose only due to his lack of knowledge of the relevant workplace and immigration laws and were not deliberate;
·the bar imposed by the Department on 9 October 2019 ceased on 9 October 2020, over 3 years ago; and
·there is no evidence before the Tribunal of any further breaches identified by the Department in relation to the applicant.
On balance, the Tribunal is satisfied that the breaches identified occurred some time ago now, occurred inadvertently and were rectified to the satisfaction of the Fair Work Ombudsman, and that the bar imposed on the applicant expired some 3 years ago. Under the circumstances, the Tribunal considers it reasonable to disregard the adverse information relating to the applicant in this case.
Given the above findings, the Tribunal is satisfied that reg 5.19(4)(b) is met.
Genuine need for employment – regs 5.19(5)(j) and (k)
Regulation 5.19(5)(j) requires the nomination application to identify a need for the identified person to be employed in the position, under the direct control of the nominator, and reg 5.19(5)(k) requires this need to be genuine. These requirements do not apply in relation to occupations specified in an instrument made under reg 2.72(13) (see legislative instrument IMMI IMMI 19/212): reg 5.19(7). The Tribunal is satisfied that the occupation of Massage Therapist is not listed in IMMI 19/212 and thus the applicant is not exempt from having to meet rr.5.19(5)(j) and (k).
The Tribunal is satisfied that the applicant identified in its nomination application a need for its nominee, Catriona Elizabeth Foy, to be employed in the nominated position of Massage Therapist, under the applicant’s direct control. The Tribunal is therefore satisfied that r.5.19(5)(j) is met.
However, given the lack of current information provided by the applicant (despite being invited to do so by the Tribunal) regarding the applicant’s current situation (such as its financial situation, whether it is still operating, its current organisational structure, number of staff, and scope of operations), the Tribunal is not satisfied that the applicant has demonstrated that it has a genuine, current need for a Massage Therapist within its business.
The Tribunal therefore finds that r.5.19(5)(k) is not met.
Accordingly, the Tribunal also finds that r.5.19(4)(e) is not met.
Future employment – regs 5.19(5)(l), (m), (n)
Regulations 5.19(5)(l), (m) and (n) contain requirements relating to the future employment of the identified person.
Firstly, reg 5.19(5)(l) requires that the identified person will be employed on a full-time basis in the position for at least 2 years. This requirement does not apply in relation to occupations specified in an instrument made under reg 2.72(13) (see legislative instrument IMMI 19/212): reg 5.19(7).
Secondly, reg 5.19(5)(m) requires that the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment.
Finally, reg 5.19(5)(n) requires that the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year. The ‘annual market salary rate’ is the earnings an Australian citizen or permanent resident earns or would earn for performing equivalent work on a full-time basis for a year in the same workplace at the same location: reg 1.03.
For the reasons set out in paragraph 28 above, including the lack of current information about the applicant’s financial situation, the Tribunal is not satisfied that the applicant’s business has the capacity to employ its nominee for at least 2 years, and pay her at least the annual market salary rate for a Massage Therapist for each year.
Accordingly, the Tribunal finds that r.5.19(5)(n) is not met, and therefore also finds that r.5.19(4)(e) is not met.
For these reasons the Tribunal is not satisfied that the applicant meets the requirements of reg 5.19. Accordingly, reg 5.19(3)(b) requires that the nomination must be refused. The decision under review must be affirmed.
DECISION
The Tribunal affirms the decision under review to refuse the nomination.
Alison Mercer
Member

ATTACHMENT – EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions—Subclass 186 (Employer Nomination Scheme) visa and Subclass 187 (Regional Sponsored Migration Scheme) visa
Application
(1)A person (the nominator) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.
(2)The application must:
(a)be made in accordance with approved form 1395 (Internet); and
(b)identify the position; and
(c)identify a person (the identified person) in relation to the position; and
(d)identify an occupation in relation to the position; and
(e)identify the subclass and stream to which the nomination relates, which must be one of the following:
(i)a Subclass 186 (Employer Nomination Scheme) visa in the Temporary Residence Transition stream;
(ii)a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Temporary Residence Transition stream;
(iii)a Subclass 186 (Employer Nomination Scheme) visa in the Direct Entry stream;
(iv)Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream;
(v)a Subclass 186 (Employer Nomination Scheme) visa in the Labour Agreement stream; and
(f)be accompanied by the fee mentioned in regulation 5.37; and
(fa)be accompanied by any nomination training contribution charge the nominator is liable to pay in relation to the nomination; and
(fb)identify the annual turnover (within the meaning of the Migration (Skilling Australians Fund) Charges Regulations 2018) for the nomination; and
(g)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.
Approval of nomination
(3)The Minister must, in writing:
(a)approve the nomination if the Minister is satisfied that the requirements set out in subregulation (4) are met; or
(b)otherwise—refuse to approve the nomination.
Requirements for approval—general
(4)The requirements to be met for the nomination to be approved are as follows:
(a)the application is made in accordance with subregulation (2);
(b)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;
(c)if it is mandatory, in the State or Territory in which the position is located, for a person to:
(i)hold a licence of a particular kind; or
(ii)hold registration of a particular kind; or
(iii)be a member (or a member of a particular kind) of a particular professional body;
to perform tasks of the kind to be performed in the occupation, the identified person is, or is eligible to become, the holder of the licence, the holder of the registration, or a member of the body, at the time of application;
(d)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the nominator operates a business and employs employees in the business, relating to employment;
(da)any debt due by the nominator as mentioned in section 140ZO of the Act (recovery of nomination training contribution charge and late payment penalty) has been paid in full;
(e)if the nomination relates to a visa in a Temporary Residence Transition stream—the requirements set out in subregulation (5) are met;
(f)if the nomination relates to a visa in a Direct Entry stream—the requirements set out in subregulation (9) are met;
(g)if the nomination relates to a visa in a Labour Agreement stream—the requirements set out in subregulation (14) are met.
Temporary Residence Transition stream—additional requirements for approval
(5)If the nomination relates to a visa in a Temporary Residence Transition stream, the following requirements must also be met:
(a)at the time the application is made, the identified person holds:
(i)a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018; or
(ii)a Subclass 482 (Temporary Skill Shortage) visa in the Medium‑term stream; or
(iii)for a person specified in a legislative instrument made by the Minister for the purposes of this subparagraph—a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream; or
(iv)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (i) or (ii); or
(v)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—for a person specified in a legislative instrument made under subparagraph (iii), a bridging visa granted on the basis that the person is an applicant for a visa mentioned in subparagraph (iii); or
(vi)if the last substantive visa held by the identified person was a visa mentioned in subparagraph (i), (ii) or (iii)—a bridging visa granted on the basis that the person is an applicant for a Subclass 186 (Employer Nomination Scheme) visa or a Subclass 187 (Regional Sponsored Migration Scheme) visa;
(b)the occupation:
(i)is listed in ANZSCO; and
(ii)has the same 4‑digit ANZSCO occupation unit group code as the occupation in relation to which the identified person’s most recently held Subclass 457 (Temporary Work (Skilled)) visa or Subclass 482 (Temporary Skill Shortage) visa was granted;
(c)unless a legislative instrument made under subregulation (8) exempts the identified person from the operation of this paragraph—the occupation must:
(i)be an occupation specified in an instrument made under subregulation (8) and in force at the time the application is made; and
(ii)apply to the identified person in accordance with an instrument made under that subregulation;
(d)either:
(i)there is no information known to Immigration that indicates that the identified person is not genuinely performing the tasks of the occupation as specified in ANZSCO; or
(ii)it is reasonable to disregard any such information;
(e)during the period of 4 years immediately before the application is made, the identified person held one or more of the following for a total period of at least 3 years:
(i)a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2 as in force before 18 March 2018;
(ii)a Subclass 482 (Temporary Skill Shortage) visa in the Medium‑term stream;
(iii)for a person specified in a legislative instrument made under subparagraph (a)(iii)—a Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream;
(f)unless paragraph (g) applies—during the period of 4 years immediately before the application is made, the identified person was employed in the position in relation to which the visa, or visas, mentioned in paragraph (e) were granted:
(i)for a total period of at least 3 years (not including any periods of unpaid leave); and
(ii)on a full‑time basis, with the employment being undertaken in Australia;
(g)if the visa, or visas, mentioned in paragraph (e) were granted in relation to an occupation specified in an instrument made under subregulation 2.72(13)—during the period of 4 years immediately before the application is made, the identified person was employed in the occupation for a total period of at least 3 years (not including any periods of unpaid leave);
(h)the nominator:
(i)was the standard business sponsor who last identified the identified person in a nomination approved under section 140GB of the Act; and
(ii)is actively and lawfully operating a business in Australia;
(j)the application identifies a need for the identified person to be employed in the position, under the direct control of the nominator;
(k)there is a genuine need for the identified person to be employed in the position, under the direct control of the nominator;
(l)the identified person will be employed on a full‑time basis in the position for at least 2 years;
(m)the terms and conditions of the identified person’s employment will not include an express exclusion of the possibility of extending the period of employment;
(n)the nominator’s business has the capacity to employ the identified person for at least 2 years and to pay the person at least the annual market salary rate for the occupation each year;
(o)the requirements set out in subregulation 2.72(15) are met, applying subregulations 2.72(15) and (16) as if:
(i)paragraph 2.72(15)(a) did not apply; and
(ii)references to the nominee were references to the identified person; and
(iii)references to the person were references to the nominator;
(p)either:
(i)there is no information known to Immigration that indicates that the employment conditions (other than in relation to earnings) that will apply to the identified person are less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or
(ii)it is reasonable to disregard any such information;
(q)the nominator has provided the information required by the Minister for the purposes of paragraph (k) to (n).
Minister may vary certain Temporary Residence Transition stream requirements
(6)The Minister may, by legislative instrument, determine different periods of time for the purposes of paragraphs (5)(e), (f) and (g) for persons specified in the instrument.
(7)Paragraphs (5)(j), (k) and (l) do not apply in relation to occupations specified in an instrument made under subregulation 2.72(13).
(8)The Minister may, by legislative instrument, specify:
(a)occupations for the purposes of paragraph (5)(c); and
(b)persons who are exempt from the operation of that paragraph; and
(c)for each occupation, any matters for the purposes of determining whether the occupation applies to an identified person, including matters relating to any of the following:
(i)the nominator;
(ii)the identified person;
(iii)the occupation;
(iv)the position in which the identified person is to work;
(v)the circumstances in which the occupation is undertaken;
(vi)the circumstances in which the person is to be employed in the position.

[2024] AATA 464

8 January 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction