Security International Services (Migration)

Security International Services (Migration) [2018] AATA 1093 (19 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Security International Services
CASE NUMBER:  1514866
DIBP REFERENCE(S):  BCC2014/3347184
MEMBER:Katie Malyon
DATE:19 March 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 19 March 2018 at 3:55 pm

CATCHWORDS
Migration – 5-year standard business sponsorship bar – Company is not entitled to appear before the Tribunal – Made decision on review – Adverse information about the Company – Unable to meet r5.19 requirements
LEGISLATION
Migration Act 1958, ss 140M, 245AR, 359, 359A, 359C, 360, 363A, 375A
Migration Regulations 1994, rr 1.13A, 1.13B, 5.19
CASES
Hasran v MIAC [2010] FCAFC 40
STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 30 October 2015 to reject the application for approval of the nomination of a position under r.5.19 of the Migration Regulations 1994 (the Regulations) made by Security International Services Pty Ltd (the Company).
The Company applied for approval on 6 December 2014. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains 2 alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream; and, a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) of the Regulations and meets all of the requirements of either stream, then the application must be approved. If any of the requirements are not met, then the application must be refused: r.5.19(5) of the Regulations.
In this case, the Company has applied for approval of a nomination for the position of Program or Project Administrator ANZSCO 511112 and is seeking to satisfy criteria in the Temporary Residence Transition nomination stream.
The delegate refused the application on the basis the Company did not satisfy r.5.19(3)(g) of the Regulations because the Company was sanctioned by the Department on 23 September 2015 with the imposition of a 5 year ban from making any future applications for approval as a standard business sponsor. In the circumstances, the delegate found there was ‘adverse information’ known to Immigration about the Company and it was not reasonable to disregard that adverse information. A copy of the delegate’s decision was provided to the Tribunal.
On 5 July 2017, the Tribunal invited the Company to attend the hearing on 21 July 2017 to give evidence and present arguments relating to the issues arising in this case.
In a separate letter issued on 5 July 2017, the Tribunal wrote to the Company pursuant to s.359A of the Act inviting comments in writing on information that, if accepted, would be the reason or part of the reason for affirming the decision under review (First s.359A Letter). The Tribunal’s First s.359A Letter stated the Tribunal had established that, on 17 November 2015 following action by the Fair Work Ombudsman (FWO) in the Federal Circuit Court of Australia, the Company had been penalised for underpaying a worker and also for sham contracting. The Tribunal’s letter was sent to the Company’s representative and advised that, if comments were not provided in writing by 19 July 2017, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the Company would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The Company’s representative responded on 6 July 2017 requesting a postponement due to his prior commitments on the proposed hearing date of 21 July 2017. He also noted that the contention as outlined in the First s.359A Letter does not accord with his personal knowledge and requested that the Tribunal provide identified source documentation underpinning the Tribunal’s facts in relation to the FWO’s litigation. The representative also enquired as to whether the Department had issued a Certificate under s.375A of the Act.
On 7 July 2017, the Tribunal rescheduled the matter for hearing on 26 July 2017. On 12 July 2017, the Tribunal received a further request for postponement from the representative. The Tribunal agreed to the request for postponement and, on 17 July 2017, invited the Company to attend a hearing on 10 August 2017. In his letter of 12 July 2017, the Representative requested further details in relation to the information applied in the First s.359A Letter. In its reply issued on 14 July 2017, the Tribunal referred the representative to the FWO‘s website for:
(a)a Press Release of 15 May 2015 Security companies to face Court after employee allegedly underpaid over $11,000; and,
(b)2015 – 2016 Litigation Outcomes.
Further, the Tribunal also confirmed that a s.375A Certificate had issued in relation to certain documentation in the Department’s file regarding the review before the Tribunal of the delegate’s decision to sanction the Company. It noted no s.375A Certificate had issued in relation to the review of the delegate’s decision to refuse the nomination of the position of Program or Project Administrator the subject of this review.
On 9 August 2017, the Tribunal received a request from the representative that the Tribunal proceed to make a decision on the papers. Subsequently, on 21 December 2017 the representative advised that he no longer acts for the Company.
The Tribunal wrote to the Company on 1 March 2018 pursuant to s.359A of the Act inviting it to comment on or respond to certain information which would, subject to any comments or response made, be the reason or a part of the reason for affirming the decision under review (Second s.359A Letter). The Tribunal’s Second s.359A Letter advised particulars of information that, on 28 February 2018, it affirmed the decision of the Department made under the s.140M(1) of the Act to sanction the Company by imposing a 5 year bar until 23 September 2020 from making future applications for approval as a sponsor. The Tribunal’s letter advised that, if comments were not provided in writing by 15 March 2018, the Tribunal may make a decision on the review without taking further steps to obtain the comments, and the Company would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
As at the date of this decision, the Company has not provided comments within the prescribed period and no extension has been requested. In these circumstances, s.359C of the Act applies and, pursuant to s.360(3) of the Act, the Company 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 the applicant to appear: Hasran v MIAC [2010] FCAFC 40.
The Tribunal is satisfied that the Second s.359A Letter containing its invitation to comment on or respond to particular information was correctly issued and, accordingly, it has decided to proceed to a decision without taking further steps to obtain the Company’s comments.
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 this case is whether the Company meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in r.5.19(3) of the Regulations. For the nomination to be approved, all of the requirements must be met. If any of the requirements are not met, then the application must be refused: r.5.19(5) of the Regulations.
No adverse information known to Immigration: r.5.19(3)(g)
Regulation 5.19(3)(g) requires that: there is no ‘adverse information’ known to Immigration about the nominator or person ‘associated with’ the nominator; or, it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in r.1.13A and r.1.13B of the Regulations. Relevant provisions of the Regulations referred to in this decision are extracted in the Attachment to the decision.
The delegate’s decision states that the decision to refuse the Company’s nomination application for the position of Program or Project Administrator was based on ‘adverse information’ that had become known to the Department about the Company. The Company sought review of the delegate’s decision of 15 September 2015 to bar the Company for 5 years from making future applications for approval as a standard business sponsor. As noted above, the Tribunal affirmed that decision on 28 February 2018. It was this information that was the subject of the Tribunal’s Second s.359A Letter.
On the basis of the information outlined above, the Tribunal is not satisfied that, within the previous 3 years, there is no ‘adverse information’ known to Immigration about the Company. It follows that the Company does not meet the requirements of r.5.19(3)(g)(i) of the Regulations.
Consistent with the provisions of r.5.19(3)(g)(ii) of the Regulations, the Tribunal has considered whether it is reasonable to disregard this ‘adverse information’. The Tribunal is of the opinion that the Company has been afforded opportunities to appear before it to give evidence and present arguments relating to the issues under review: this applies not only in relation to its decision to affirm the delegate’s decision to bar the Company under s.140M of the Act from making further applications for approval as sponsor but also in relation to the current application for review and whether it is reasonable to disregard any adverse information known about the Company. Furthermore, the Company did not respond to the Tribunal’s Second s.359A Letter.
In the circumstances, the Tribunal is not satisfied that it is reasonable to disregard the ‘adverse information’ about the Company and, accordingly, the criteria in r.5.19(3)(g) of the Regulations is not met.
For the above reasons the Tribunal is not satisfied that the Company meets the requirements of r.5.19(3) of the Regulations. The Company has not sought to satisfy the criteria in Direct Entry nomination stream and, as such, has not met the requirements in r.5.19(4) of the Regulations.
Accordingly, the nomination of the position of Project or Program Administrator cannot be approved. Therefore, the Tribunal must affirm the decision under review.
DECISION
The Tribunal affirms the decision under review to refuse the nomination.
Katie Malyon

Member
ATTACHMENT - Extracts from the Migration Regulations 1994

1.13A Meaning of adverse information
…
(1)Adverse information is any adverse information relevant to a person’s suitability as:
(a)an approved sponsor; or
(b)a nominator (within the meaning of regulation 5.19); or
(c)a maker of a nomination in accordance with a labour agreement;
and includes information that the person, or a person associated with the person:
(d)has been found guilty by a court of an offence under a Commonwealth, State or Territory law that relates to one or more of the matters referred to in subregulation (2); or,
(e)has, to the satisfaction of a competent authority, acted in contravention of such a law; or,
(f)has been the subject of administrative action (including being issued with a warning), by a competent authority, for a possible contravention of such a law; or,
(g)is under investigation, subject to disciplinary action or subject to legal proceedings in relation to an alleged contravention of such a law; or,
(h)has become insolvent within the meaning of subsections 5(2) and of the Bankruptcy Act 1966 and section 95A of the Corporations Act 2001.
(2)The matters are the following:
(a)discrimination;
(b)immigration;
(c)industrial relations;
(d)occupational health and safety;
(e)people smuggling and related offences:
(f)slavery, sexual servitude and deceptive recruiting:
(g)taxation:
(h)terrorism:
(i)trafficking in persons and debt bondage
(3)The conviction, contravention, administrative action, investigation, disciplinary action, legal proceedings or insolvency mentioned in paragraphs (1)(d) to (h) must have occurred within the previous 3 years.
(4)In this regulation: competent authority has the meaning given by subregulation 2.57(1).
……
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(b)be accompanied by the fee mentioned in regulation 5.37.

Temporary Residence Transition nomination
(3)The Minister must, in writing, approve a nomination if:
(a)the application for approval:
(i)     is made in accordance with subregulation (2); and
(ii)    identifies a person who holds a Subclass 457 … visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and
(iii)     identifies an occupation, in relation to the position, that:
(A)is listed in ANZSCO; and
(B)has the same 4-digit occupation unit group code as the occupation carried out by the holder of the Subclass 457 … visa; and
(b)the nominator:
(i)     is, or was, the standard business sponsor who last identified the holder of the Subclass 457 … visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and
(ii)    is actively and lawfully operating a business in Australia; and
(iii)     did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and
(c)either:
(i)     both of the following apply:
(A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 …visa identified in subparagraph (a) (ii) has:
(I)held one or more Subclass 457 visas for a total period of at least 2 years; and
(II)been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);
(B)the employment in the position has been full-time, and undertaken in Australia; or
(ii)    all of the following apply:
(A)the person holds the Subclass 457 … visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);
(B)the nominator nominated the occupation;
(C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 … visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and
(d)for a person to whom subparagraph (c)(i) applies:
(i)     the person will be employed on a full-time basis in the position for at least 2 years; and
(ii)    the terms and conditions of the person’s employment will not include an express exclusion of the possibility of extending the period of employment; and
(e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:
(i)are provided; or
(ii)would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and
(f)either:
(i)     the nominator:
(A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and
(B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or
(ii)    it is reasonable to disregard subparagraph (i); and
Note Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that date.
(g)either:
(i)     there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii)    it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and
(h)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.

oOOo

[2018] AATA 1093

19 March 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice