Singh (Migration)

[2023] AATA 4060

Singh (Migration) [2023] AATA 4060 (17 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mehakdeep Singh

REPRESENTATIVE:  Ms Deanne Temple Scott (MARN: 0006911)

CASE NUMBER:  2109967

HOME AFFAIRS REFERENCE(S):         BCC2019/1170177

MEMBER:Alison Mercer

DATE:17 November 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for an Employer Nomination (Permanent) (Class EN) visa for reconsideration, with the direction that the applicant meets the following criteria for a subclass 186 (Employer Nomination Scheme) visa:

·cl 186.223(3A) of Schedule 2 to the Regulations.

Statement made on 17 November 2023 at 4:59pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – position of Cook – reasonable to disregard adverse information about the nominator – sanction imposed on nominator was lifted – back payments to underpaid staff – decision under review remitted          

LEGISLATION

Corporations Act 2001, s 95A
Migration Act 1958, ss 5(1), 65, 140, 360
Migration Regulations 1994, Schedule 2, cl 186.223; r 1.13

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 August 2021 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 8 March 2019. At the time of application, Class EN contained one subclass: subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.

4. In the present case, the applicant is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Cook.

5. The delegate refused to grant the visa because the applicant did not meet cl 186.223(3A) of Schedule 2 to the Regulations, which required that (a) there was no adverse information known to Immigration about the nominator or a person (including a company) associated with the nominator, or (b) if there is such information, it was reasonable to disregard it. The delegate found that the applicant’s nominator, Bollywood Lounge Pty Ltd, had been the subject of a sanction imposed by the Department pursuant to s.140M of the Act, running from 22 February 2021 to 22 February 2022, for breaches of its sponsorship obligations. The delegate further found that it was not reasonable to disregard the adverse information.

6. The Tribunal received a review application from the applicant on 5 August 2021. It was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Ms Deanne Scott, as his representative and authorised recipient for correspondence.

7. In July 2023 and January 2023, the applicant and his agent provided additional material consisting of the following:

   ·Applicant’s PAYG statements for 2016/17 and 2021/22;

   ·Nominating employer’s financial statements for 2016/17;

   ·Applicant’s curriculum vitae;

   ·Applicant’s English test results;

   ·Applicant’s skills assessment for his nominated occupation of Cook;

   ·Employment contract for the applicant dated 2 August 2022;

   ·Superannuation statement and tax assessment notice for the applicant for 2021/2022;

   ·Pay Guide for the Restaurant Industry Award;

   ·Payslips for the applicant; and

   ·Submissions from the applicant’s agent dated 30 December 2022.

8. The agent made the following points in her submissions:

   …

   Dear Tribunal Member,

   The following are the salient details of the above-mentioned file:

MATTER	DATE	DISCUSSION
457 visa	29 Nov 2016 25 Jan 2017 25 Jan 2021	Application date Grant date, VGN 0059531957170 ·     Occupation: Cook – 351411 ·     Base salary: 54,000.000 per annum Visa expiry date
186 TRT Nomination	27 May 2019	Applied: 05 Mar 2019 Approved Nominator: Bollywood Lounge Pty Ltd (ABN 81 600 518 787) TRN EGOLI10HSW ALERT! Error was made by the processing officer at the Department of Home Affairs: The acknowledgement of application and nomination approval notices were issued incorrectly in the name of Midfield Meat International Pty Ltd CORRECTION: My client has advised that the internal DOHA records were updated, but no new and corrected nomination approval outcome letter was issued
186 TRT visa	8 Mar 2019	Application date
Bridging A Visa (186 visa)	3 Aug 2021	Refusal, reason: cl.186.223 not satisfied Occupation: Cook – 351411 Client name: Mehakdeep SINGH (DOB 18 Jul 1996) App ID 295624316, TRN: EGOLI17EFS File No. BCC2019/1170177, App receipt: 9012547543
Merits Review	5 Aug 2021	AAT Application date Processing time: Almost 17 months

THE SPONSOR – ADVERSE INFORMATION:

On the 27-May-2019, Subclass 186 Nomination approval was granted naming nominee, Mehakdeep Singh, in the role of Cook – 351411 on a salary of $54,000 per annum.

On the 22-Feb-2021, the nominating employer, Bollywood Lounge Pty Ltd was sanctioned by the Department of Home Affairs for 12 months: 22-Feb-2021 to 22-Feb-2022.

Note: Koala Oz Migration Pty Ltd was not engaged to act on behalf of the employer or the visa applicant, Mr. Mehakdeep Singh, when an invitation was made by the Department of Home Affairs to respond or make comment on the adverse information finding between 24-Feb-2021 (Natural Justice) and 03-Aug-2021 (Refusal Decision).

THE SPONSOR – SANCTION EXPIRED:

The sanction imposed by the Department of Home Affairs (DOHA) was lifted on 22-Feb-2022.

I understand that Bollywood Lounge Pty Ltd rectified all miscalculations and any underpayments of staff wages by 22-Mar-2021, and provided evidence of same; however, despite the corrections confirmed by the accountant and all monies paid, the DOHA imposed sanction remained active for the full 12 months.

THE VISA APPLICANT – MEHAKDEEP SINGH, COOK:

Mr. Mehakdeep Singh first arrived in Australia on 29-Feb-2014 as the holder of a Subclass 573 – Student visa. His visa was granted on 11-Feb-2014 (VGN: 8049510677671) and expired on 30-Sep- 2017. His comprehensive curriculum vitae outlining his education and work history forms an attachment to this file.

Mehakdeep completed all his formal and full-time tertiary education in Australia, and he graduated as a Cook. He worked for Bollywood Lounge Pty Ltd at its café-grill-restaurant in Caversham, an outer suburb of Perth. When the company opened an Indian themed a la carte restaurant in Karratha in the Pilbara region of Western Australia, Mehakdeep was offered a 4-year contract of employment under the Subclass 457 visa category. Mehakdeep’s Subclass 457 visa was granted on 25-Jan-2017 for the nominated occupation of Cook – 351411 on a salary of $54,000 per annum.

Karratha is located 1,527.7 km north of Perth via National Route 1 and it takes approx. 16 hours to drive there or 2 hours by aeroplane.

On the 08-Mar-2019, after 25.5 months as the holder of a Subclass 457 visa with the same nominating employer, application was made for the Subclass 186 -Employer Nomination Scheme visa through the Temporary Residence Transition (TRT) stream.

The following table provides an overview of Mehakdeep Singh’s payment history with Bollywood Lounge Pty Ltd in Karratha with a Department of Home Affairs approved base salary of $54,000.00 per annum from 25-Jan-2017:

FINANCIAL YEAR	GROSS INCOME	TAX WITHHELD	TAX ASSESS NOTICE	SUPER	% RATE
2017-2018	$22,847.00	$4,400.00	$34,552.00	$2,170.46	9.50
2018-2019	$54,000.00	$10,192.00	Previosu: $49,774.00 Amended: $50,813.00	$5,130.00	9.50
2019-2020	$54,000.00	$10,192.00	$51,858.00	$5,130.00	9.50
2020-2021	$63,711.00	$15,797.00	$67,602.00	$6.052.54	9.50
2021-2022	$73,572.70	$15,926.00	$71,380.00	$7,357.20	10
2022 – 2023	10.50

Mehakdeep is currently paid at the rate of approx. $1,427.64 per week or $74,441.23 per annum:

PAYMENT TYPE	HOURS	ACTUAL RATE	AMOUNT	AWARD RATE, Level 6	AMOUNT
Ordinary hours	18	$31.29	$563.22	$27.02	$486.36
Saturday	10	$39.11	$391.13	$33.78	$337.80
Sunday	10	$46.94	$469.36	$40.53	$405.30
Allowances	$3.93	Not mentioned
TOTAL	$1,427.64	$1,229.46

AAT MERITS REVIEW FILE:

Mr Mehakdeep Singh has worked for Bollywood Lounge Pty Ltd in both Perth (New York Coffee ‘n Grill) and Karratha (Bollywood Lounge), Western Australia since Dec-2016, some 6 years and one month.

Since 25-Jan-2017, a period of nearly 5 years, he has worked for the same nominating employer, Bollywood Lounge Pty Ltd, as the holder of a Subclass 457 visa, and then as the holder of a Subclass 010 BVA holder in association with the Subclass 186 TRT stream visa application.

Mehakdeep remains a loyal employee of Bollywood Lounge Pty Ltd in the remote and regional Pilbara Region of Western Australia. He has become a settled member of the Karratha community, and his considerable increases in salary in the last 2 years to over and above the highest level available for a Cook Tradesperson on the Restaurant Industry Award [MA000119] are testament to his sound culinary skills, and to his status as a highly valued member of Bollywood Lounge Pty Ltd’s team.

…

1. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to section 360(2)(a) of the Act.

2. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF LAW, CLAIMS AND EVIDENCE

   Nomination of a position

3. Clause 186.223 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the visa applicant. The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application.

4. In addition, this criterion also requires that:

   ·the nomination has been approved and has not been subsequently withdrawn

   ·there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of reg 1.13A and reg 1.13B); or it is reasonable to disregard any such information

   ·the position is still available to the applicant, and

   ·the visa application was made no more than six months after the nomination of the position was approved.

5. ‘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)).

6. 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.

7. Regulation 1.13B(2) provides that it does not matter if one of the persons mentioned has ceased to exist.

8. In her decision, the delegate found that the nominating employer and its then migration lawyer conceded that there was adverse information relating to the nominating employer; namely, that it had breached its sponsorship obligations by underpaying some of its employees and was therefore the subject of a decision made by the Department pursuant to s.140M to bar it from sponsoring any further employees for 1 year, running between 22 February 2021 and 2022. The delegate also noted that the nominator had asked for the bar to be waived, but that the Department refused to do so on 30 April 2021. The delegate further found that this constituted adverse information under r.1.13A and was not satisfied that it was reasonable to disregard this information under cl.186.223(3A)(b).

9. The Tribunal is satisfied that the applicant was nominated by Bollywood Lounge Pty Ltd.

10. The Tribunal is further satisfied that Bollywood Lounge Pty Ltd was the subject of a decision made by the Department on 22 February 2021, pursuant to s.140M of the Act, to impose a bar on the company from sponsoring any further employees until 22 February 2022. In the applicant’s former agent’s submissions, a Department audit:

    …

    resulted in a single breach being identified, namely that the sponsor had failed to ensure equivalent terms and conditions of employment for three of its 457 / 482 sponsored workers, by paying wages that are less favourable than those that are provided, or would be provided, to an Australian citizen or permanent resident performing equivalent work in the same location.

    During the course of the audit, the sponsor was given an opportunity to comment on the alleged breaches before any final decision or finding was made. During this time, the sponsor engaged the services of an employment / immigration lawyer, Mr Daniel Estrin of Estrin Saul Migration Specialists, to conduct a thorough audit and to provide advice about compliance. Mr Estrin advised the sponsor that no breach had occurred. Mr Estrin assisted the sponsor to prepare their response to the Australian Border Force (“ABF”) audit and has continued to advise the sponsor to the present day that the findings of the audit are not correct as a matter of law.

    Notwithstanding this advice, the sponsor has subsequently sought a second opinion from two separate employment lawyers and has taken steps to address the breaches as identified by the ABF, and to make back payments to all three sponsored workers for the period in question under the audit and for all periods of employment. The sponsor has adopted the ABF’s preferred methodology for calculating what is, or should be, the equivalent terms and conditions of employment being offered, despite receiving conflicting advice as to the accuracy of the ABF’s methodology.

    Whilst the sponsor recognises any breach of its sponsorship obligations as a serious matter, the extent of the underpayments according to the “market rate” for all three sponsored workers has been calculated as a total of $7,187.17 in cumulative nett pay, plus superannuation obligations of $1,004.17 over a period of approximately 3 years, all of which has now been paid back to the workers. As a simplified calculation based on three full-time employees working over a period of three years, this works out to be a cumulative underpayment of approximately $17 per worker, per week. The Sponsor has made full amends by back paying the staff for any underpayments and increasing the annual salary package to ensure the wages are now above the market rate. The business is now 100% compliant with their sponsorship obligations, thus negating any ongoing implications or adversity to the employees from the relevant conduct.

    The underpayment exposed during the audit process was not malicious or exploitative and arose as part of a mistake on the part of the employer in determining the correct market salary rate. It should be noted that the business has always paid its workers per the annual guaranteed earning specified in the nomination approval notification letters, which were accepted as the relevant market rate by the Department at the time of nomination application and approval as recently as January 2020 at which time the Department approved a nomination for Ms Shumaila Danish.

    …

    The finding of the ABF was not that the business had underpaid its workers as a matter of employment law, but rather that the business had failed to ensure the terms and conditions were “market rate”. This is an important distinction.

    …

    Under the Department’s own policy guidelines, circumstances in which it may generally be considered reasonable to disregard adverse information include but are not limited to situations where the applicant has:

    1. Been barred for a shorter period by the ABF (i.e. less than two years); and / or

    2. Where the applicant has taken steps to negate the implications of relevant conduct or practices; and developed practices and procedures to ensure the relevant conduct is not repeated; and / or

    3. Where the applicant has an overall record of ‘good behaviour’.

    Whilst items (2) and (3) are addressed in more detail below, having regard to all information and circumstances, on the basis of the short period of sanction imposed by the ABF alone, which is under 2 years, we would submit that these circumstances fit well within the ambit of the policy guidelines for a situation where it would be reasonable to disregard the adverse information, as there are no other aggravating features of noncompliance in this particular case.

    …

11. The Tribunal finds that the imposition of a 12 month bar on sponsorship for breaches of its sponsorship obligations constitutes ‘adverse information’ in relation to the nominator within the meaning of r.1.13A, and has proceeded to consider whether it is reasonable to disregard the information. In doing so, it has had regard to Departmental policy, as set out in the Department’s Procedures Advice Manual (PAM3), on this issue. While Departmental policy is not legally binding on the Tribunal, the Tribunal considers it appropriate to have regard to it, where it aids consistency of decision-making, and where the policy is not more restrictive than the underlying legislation in relation to which it purports to provide guidance.

1. The relevant part of PAM3 ([Division 2/reg1.13A] Adverse information and skilled visas (regulation 1.13A and 1.13B, as at 8 March 2019, the version in force at the time that this visa application was made) provides the following guidance:

   4.4.2 Disregarding of adverse information

   There are no definitive rules for when it would be reasonable to disregard adverse information that is known about an applicant.

   Decision-makers must exercise judgement and assess the circumstances of each case individually on its own merits.

   The guidelines below are, however, intended to assist decision-makers in this assessment process, and help ensure a consistent approach is taken in this area. To improve consistency, decision-makers should discuss any decision to disregard adverse information with their team leader or assistant manager before proceeding.
   
   
   4.4.2.1 Factors that should be considered

   Under policy, decision-makers should take the following factors into account when deciding whether it is reasonable to disregard the adverse information:

   ·     the nature and seriousness of the adverse information;

   ·     whether the adverse information arose recently or a long time ago;

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

   ·     whether the allegations have been substantiated or not – e.g. whether the applicant has been convicted of an offence under Australian law or investigations are ongoing;

   ·     whether the applicant has acknowledged the issues with their previous behaviour;

   oNote: acknowledgement is important but would usually not be sufficient basis on which to disregard adverse information, as outlined below, evidence, ideally independently verifiable, must be provided to demonstrate an improved pattern of behaviour.

   ·     whether the applicant has provided evidence to demonstrate that they have rectified any issues where relevant (such as repaying monies to an underpaid employee) and taken steps to ensure the circumstances that led to the adverse information do not recur;

   ofor example, if an applicant was found to have breached occupational health and safety legislation two years ago, but provided evidence to show that they had since appointed an occupational health and safety manager and had a clean occupational health and safety record, it may be reasonable to disregard;

   ·     whether the applicant has demonstrated subsequent compliance;

   ofor example, if an applicant failed to lodge a tax return in 2006-07, but has lodged a compliant return every financial year since, it would probably be reasonable to disregard;

   ·     whether the conduct of concern is likely to recur;

   ofor example, where an applicant has previously been issued with an infringement notice for breaching the sponsorship obligation to provide records and information to the department, it may be reasonable to disregard this if the applicant has paid the infringement notice, complied with sponsorship obligations on all other occasions and the delegate is satisfied that the breach for which the infringement notice was issued was a one-off and is unlikely to recur;

   ·     information about relevant findings made by a competent authority:

   othe decision-maker should consider whether the finding resulted in an infringement notice, a fine or a court imposed penalty;

   oif a court has imposed a penalty for a breach, it is less likely that it will be reasonable to disregard;

   oif there is information available indicating that the competent authority does not regard the workplace incident to be serious or significant in nature because of mitigating circumstances, the competent authority’s findings would be a highly relevant factor that delegates should consider in deciding whether or not to disregard the adverse information.

   ·     whether there are any compelling circumstances affecting the interests of Australia

   oFor example, if the applicant is a multinational company that has sponsored a large number of highly paid professionals over a long period with an otherwise good compliance record is under investigation by the FWO but has been contracted to deliver a major project for the Australian government, it may be reasonable to disregard if the company is working to a very tight deadline and any delays will have a serious negative impact on the project. It will, however, depend on the individual circumstances of the case and the nature of the FWO investigation.

   oDecision-makers should not disregard adverse information on this basis without discussing with their Assistant Manager or Program Management first.

   Note:

   ·     Changes to the ownership, directorship or structure of a business and/or a change to the name of a business or applicant who was previously sanctioned in relation to an offence or contravention of a Commonwealth, State or Territory law does not constitute a circumstance in which it would be reasonable to disregard the adverse information. The delegate must assess the particular circumstances of the breach to determine whether it is reasonable to disregard adverse information.

   ·     If a sponsorship bar has been imposed, it still constitutes adverse information, even if the bar has been waived.

   ·     The fact that a sanction decision by the ABF is under review by the Administrative Appeals Tribunal should still be considered as adverse information and assessed in accordance with these guidelines.

   ·     An ABF delegate will have taken into account a number of factors when deciding on what level of sanction action is appropriate when a breach of sponsorship obligations or other requirements under Migration Legislation is identified. Decision-makers should take this into account when they are assessing adverse information provisions. They are not, however, bound by any previous decision and need to consider based on current circumstances and the information available to them whether it is reasonable to disregard the adverse information.

   4.4.2.2 Circumstances in which it may be reasonable to disregard adverse information

   Circumstances in which it may generally be reasonable to disregard adverse information include but are not limited to:

   ·     the applicant only received a ‘warning’ in relation to their conduct and there is no evidence that they have since been non-compliant;

   ·     the applicant has been barred for a shorter period by the ABF (i.e. less than two years) and there is no evidence that they have since been non-compliant since the expiry of the bar;

   ·     the applicant received a more serious penalty for previous action but has:

   otaken steps to negate the implications of relevant conduct or practices; and

   odeveloped practices and procedures to ensure the relevant conduct is not repeated;

   ·     the applicant has an overall record of ‘good behaviour’ but is being investigated for less serious issues, following receipt of an unsubstantiated allegation; or

   ·     the persons to whom the adverse information relates have no influence over the conduct of the applicant’s partnership or association (for example, silent partner).

   4.4.2.3 Circumstances in which it is unlikely to be reasonable to disregard adverse information

   Circumstances in which it is unlikely to be reasonable to disregard adverse information include, but are not limited to:

   ·     the applicant has been charged for serious and/or repeated breaches of the Australian law in the last five years;

   ·     the applicant has been barred for a period of two years or more, or had their sponsorship cancelled by the ABF, in the last five years prior to the assessment/decision of the new sponsorship/nomination application being considered (unless the cancellation related to a change in business circumstances [e.g. restructure] rather than breaches of sponsorship obligations or the provision of false or misleading information);

   ·     the applicant is being investigated for potentially serious breaches of immigration law (e.g. payment for visa sponsorship or breaches of employment laws resulting in worker exploitation);

   ·     the applicant failed to pay, or failed to pay in full, an infringement notice that they were issued by the Department (decision makers should check ICSE or contact relevant area of the department for details);

   ·     the applicant has not acknowledged or declared their previous adverse conduct;

   ·     the applicant has provided no evidence that they have corrected or made restitution for their previous adverse conduct and/or that they have taken steps to ensure that further issues do not arise;

   ·     the applicant is not currently a sponsor and has declared itself insolvent or is now under external administration (Note: At the nomination or visa stage it may be appropriate for applications to be approved where the sponsor is already an approved sponsor and an external administrator is in place and has provided advice regarding the ongoing operation of the business and the protection of workers’ rights. Officers should contact Program Management for advice in this scenario).

   Note: if adverse information is received from a third party and that information would be the reason, or part of the reason, for refusing to grant the visa, the delegate must invite the applicant to comment on this information before proceeding to a refusal.  For guidance on the requirement to give particulars of the relevant information to the applicant see PAM3: Act - Code of procedure - Notification requirements – Invitation to comment on information – s57.

   …

2. There is no evidence before the Tribunal that the nominator’s conduct falls within any of the examples given in the above policy of when it would generally not be reasonable to disregard adverse information. The Tribunal concurs with the point made by the applicant;s agent; namely, that the nominator’s circumstances appear to fall within 1 of the examples given of when it may be reasonable to disregard adverse information (that being where a nominator has been barred for less than 2 years and there is no evidence that the nominator has subsequently been non-compliant with the applicable sponsorship obligations).

3. Having regard to the factors covered in the PAM3 extract above, the Tribunal is satisfied that:

   ·the nature and seriousness of the adverse information is middling: While the underpayment of the applicant and another employee of approximately $8,000 (salary and superannuation) over an approximately 3 year period is not to be condoned, it has been credibly and plausibly explained by the nominator as inadvertent, and the Tribunal accepts that it was not less than the rates set out in the relevant Award (although less than the identified market rate for the occupations);

   ·the events characterised as adverse information occurred some 4 to 5 years ago now, and proof has been provided that the underpayment of the applicant and the other employee was rectified shortly after it was brought to the nominator’s attention by the Department;

   ·the nominator acknowledged the breaches and has provided a detailed explanation giving the reasons and indicating that the breaches were inadvertent and would not occur again;

   ·the applicant has been a long term employee of the nominating employer and his salary has significantly increased since the events leading to the bar;

   ·there is no indication of any further breaches by the nominator in relation to the applicant’s salary or any other matter; and

   ·the applicant and his employer have a long association and are based in regional Western Australia. The Australian government’s Skills Priority List for 2023 indicates that the applicant’s nominated occupation of Cook is in shortage throughout all states and territories of Australia.

4. Given the above, the Tribunal concludes that it is reasonable in the circumstances of this case to disregard the adverse information and it finds that the applicant meets cl.186.223(3A)(b) and thus meets cl.186.223(3A) as a whole.

5. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

   DECISION

6. The Tribunal remits the application for an Employer Nomination (Permanent) (Class EN) visa for reconsideration, with the direction that the applicant meets the following criteria for a subclass 186 (Employer Nomination Scheme) visa:

   ·cl 186.223(3A) of Schedule 2 to the Regulations.

   Alison Mercer
   Member

   
   

   ATTACHMENT A

   186.223(1)     The position to which the application relates is the position:

   (a)nominated in an application for approval that:

   (i)identifies the applicant in relation to the position; and

   (ii)is made in relation to a visa in a Temporary Residence Transition stream; and

   (c)in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.

   (2)     The Minister has approved the nomination.

   (3)     The nomination has not subsequently been withdrawn.

   (3A)    Either:

   (a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

   (b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

   (4)     The position is still available to the applicant.

   (5)     The application for the visa is made no more than 6 months after the Minister approved the nomination.