Taco 99 Pty Ltd ATF Taco 99 Unit Trust (Migration)

Taco 99 Pty Ltd ATF Taco 99 Unit Trust (Migration) [2021] AATA 3460 (26 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Taco 99 Pty Ltd ATF Taco 99 Unit Trust
CASE NUMBER:  1930186
HOME AFFAIRS REFERENCE(S):          BCC2017/4267218
MEMBER:Michael Ison
DATE:26 August 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 26 August 2021 at 4:43pm
CATCHWORDS
MIGRATION–nomination – Temporary Residence Transition nomination stream – Cook – adverse information – reasonable to disregard any adverse information known to Immigration – historical connection between the adverse information and the nominator – genuine need for the nominator to employ a paid employee –decision under review set aside
LEGISLATION
Migration Act 1958, ss 140GB, 245AR, 359, 360, 376
Migration Regulations 1994, rr 1.13, 2.82, 2.86, 2.89, 5.19
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 4 October 2019 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 14 November 2017 and is referred to as the nominator in these reasons for decision. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)) and a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.5.19(2) and meets 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).
In this case, the nominator has applied for approval of a nomination of a position of Cook, occupation code 351411 under the Australian and New Zealand Standard Classification of Occupations (ANZSCO), seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.
The delegate refused the application on the basis the nominator’s nomination did not satisfy r.5.19(3)(g) of the Regulations because in June 2019 an unrelated company, HS & Sons Pty Ltd, had been barred from making applications as a standard business sponsor for four years because it contravened r.2.89 of Schedule 2 to the Migration Regulations 1999 (Regulations) by failing to meet its sponsorship obligations. Those failures were that HS & Sons failed to keep proper records and failed to ensure a sponsored person worked in their nominated occupation in contravention of rr.2.82 and 2.86 respectively.
The nominator and HS & Sons shared a common director, Mr Barinder Pal Singh (Mr Singh) at the time of the contraventions which caused the delegate to find they are associated entities as that term is defined in r.1.13B and the adverse information, as that term is defined in r.1.13A, about HS & Sons was also therefore adverse information about the nominator. The delegate also found it was not reasonable to disregard this information because Mr Singh was the managing director of HS & Sons at the time the contraventions occurred and was also the managing director of the nominator at the time of the nomination that is the subject of this review.
The applicant was represented in relation to the review by its lawyer, Mr Rick Gunn from Carina Ford Immigration Lawyers. Mr Gunn is referred to as the nominator’s representative or the representative in these reasons for decision.
The nominator’s representative provided several submissions during this review, which have been considered by the Tribunal. The main submission provided on 7 May 2021 in response to a request for information from the Tribunal was an 11-page written submission and 28 attachments totalling 293 pages. This submission was logically ordered, clearly indexed and provided recent and relevant information.
On 6 August 2021 the nominator’s representative provided a second detailed submission in response to a further request for information from the Tribunal. This submission was also logically ordered, clearly indexed and provided recent information that was important to the findings the Tribunal has made in these reasons for decision.
The considered manner in which the nominator’s representative provided its submissions to the Tribunal was of considerable assistance to the Tribunal in the conduct of this review.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the nominator on the basis of the material before it, pursuant to s.360(2)(a) of the Act.
Background
At the time of this decision the nominator operates a Taco Bill Mexican Restaurant, as a franchisee, that operates under the trading name Taco Bill Caroline Springs. That business was established in March 2011 and employs up to 12 full time and part time staff, including cooks and waiting staff, as part of the restaurant operations.
The nominee, Ms Navdeep Kaur, has worked at the restaurant as a cook since 17 December 2014 according to her application for a Subclass 186 visa lodged on 14 November 2017.
Certificate under s.376 of the Act
On 9 April 2021 the Tribunal wrote to the nominator advising that the Tribunal had received a certificate issued under s.376 of the Act and dated 4 October 2019. The certificate applied to a ‘dob-in’ letter in which the author of the letter claimed Mr Singh, then director of the nominator, was charging fees to sponsor applicants for visas, amongst other allegations. The Tribunal also informed the nominator that this information would be the reason, or a part of the reason, to affirm the decision under review in accordance with the procedure set out in s.359A of the Act, including particularising the information, explaining its relevance to the review and the consequences for this review if the Tribunal relied on the information.
The Tribunal was satisfied the certificate was validly issued and bound the Tribunal but exercised its discretion and provided a copy of the certificate and a copy of the dob-in letter, redacted to de-identify its author, to the nominator.
On 7 May 2021 the nominator responded to the Tribunal’s letter. The response stated that Mr Singh denies the claims made against him in the dob-in letter and the nominator provided information that casts sufficient doubt about those claims that the Tribunal gives the claims no weight and has not considered them further as relevant to this review.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the nominator meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in r.5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.
The application must be compliant: r.5.19(3)(a)
Regulation 5.19(3)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a relevant person and occupation and identify a need for the nominator to employ that person, as a paid employee, to work in the position under the nominator’s direct control.
Having regard to the information provided by the Department, the Tribunal is satisfied that the application for approval was made on the approved form, was accompanied by the prescribed fee and included a written certification stating whether the nominator had engaged in conduct in relation to the nomination that contravenes s.245AR(1). The requirements of r.5.19(2) and consequently of r.5.19(3)(a)(i) are met.
The application for approval identifies Ms Navdeep Kaur as the nominee for the nominated position. Ms Navdeep Kaur was granted, according to Department records, a subclass 457 visa on 23 July 2015 on the basis of satisfying cl.457.223(4) of Schedule 2. Accordingly, the requirements of r.5.19(3)(a)(ii) are met.
The occupation identified in the application is Cook (ANZSCO 351411). The Tribunal is satisfied based on the nominee’s contract of employment and Department records, that the occupation identified is the same occupation as that carried out by the nominee as the holder of a subclass 457 visa. The Tribunal is also satisfied that this occupation carries the same four-digit code as the occupation carried out by the nominee whilst she held the Subclass 457 visa. Accordingly, the requirements of r.5.19(3)(a)(iii) are met.
The Tribunal has received extensive financial and operational information about the nominator, including an organisational chart, and is satisfied the nominator has identified a need to employ the nominee as a paid employee to work in the nominated position under the nominator’s direct control.
Given the above findings, the requirements in r.5.19(3)(a) are met.
Status of the nominator: r.5.19(3)(b)
Regulation 5.19(3)(b) requires the nominator to be or have been the relevant standard business sponsor who is actively and lawfully operating a business in Australia. In addition, the nominator, as that standard business sponsor, must not have met certain criteria relating to the operation of a business overseas, in the most recent sponsorship approval.
The Tribunal has been provided with relevant information from the Department confirming the approval of the nominator as a Standard Business Sponsor, from the Australian Securities and Investments Commission (ASIC), from the Australian Business Register as well as relevant business activity statements, financial statements and general information about the nominator that satisfies the Tribunal that the nominator is actively and lawfully operating a business in Australia and does not operate a business overseas.
Given the above findings, the requirement in r.5.19(3)(b) is met.
Previous employment of the nominee: r.5.19(3)(c)
Broadly speaking, to meet the requirement in r.5.19(3)(c), either:
·the nominee must have been employed full time in Australia in the position for which he or she holds a Subclass 457 visa for at least 2 of the 3 years preceding the nomination application; or
·the nominee holds a Subclass 457 visa on the basis that s/he was identified in a nomination of a specified occupation for that visa, the nominator nominated the occupation, and the nominee has been employed in that occupation for at least 2 years in the 3 years immediately before the application.
The nominator has provided documents to the Tribunal’s satisfaction that confirm the nominee was granted a Subclass 457 visa on 23 July 2015 and had worked in the position of Cook for the nominator from 17 December 2014, continuously and full-time, up until (and after) the lodging of the nomination on 14 November 2017.
There is no information before the Tribunal that the nominee took any unpaid leave between 23 July 2015 and 14 November 2017.
The Tribunal finds that at the time of the lodgement of the nomination application, the nominee had worked for more than two (2) years in the last three (3) years immediately preceding lodgement as a Cook for the nominator on a full-time basis.
Given the above findings, the requirement in r.5.19(3)(c) is met.
Future employment of the visa holder: r.5.19(3)(d)
Regulation 5.19(3)(d) only applies to certain nominees (those described in r.5.19(3)(c)(i)). For this class of person, the Regulations require that the nominee will be employed on a full-time basis for at least two years on terms that do not expressly preclude the possibility of an extension.
The Tribunal notes that the occupation, for which the nominee held the Subclass 457 visa, is that of Cook (ANZSCO 351411). As the occupation is not one of those specified in the relevant instrument for the purposes of r.5.19(3)(c)(ii), the nominee is not a person described in r.5.19(3)(c)(ii) and the nominator is therefore not exempt from having to satisfy the requirement in r.5.19(3)(d). As the nominee is a person described in r.5.19(3)(c)(i), the nominator must satisfy the requirements of r.5.19(3)(d).
The Tribunal has reviewed the financial information provided by the nominator and is satisfied that historical information, the long trading history of the nominator and its now long-term employment of the nominee demonstrate the nominator has the capacity to employ and pay the nominee at the agreed annual salary. Accordingly, the requirement in r.5.19(3)(d)(i) is met.
The Tribunal has been provided with the employment agreement between the nominator and nominee that confirms the nominator will employ the nominee in the full-time position of Cook for a minimum of two years from the date of the grant of the Subclass 186 visa that the nominee has applied for. The terms of the employment contract do not expressly preclude the possibility of an extension to that employment. Accordingly, the requirement in r.5.19(3)(d)(ii) is met.
Given the above findings, the requirements in r.5.19(3)(d) are met.
No less favourable terms and conditions of employment: r.5.19(3)(e)
Regulation 5.19(3)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
The nominator does not employ any Australian citizen or permanent resident in a position of Cook in the business. The nominator provided evidence of searches of the Job Outlook and PayScale websites and a review of job advertisements for equivalent positions at similar businesses that causes the Tribunal to accept that the offered salary of AUD54,000 per annum is no less favourable than the salary that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.
Accordingly, the requirement in r.5.19(3)(e) is met.
Training commitments and obligations: r.5.19(3)(f)
Regulation 5.19(3)(f) requires the applicant to have fulfilled any commitments made relating to meeting training requirements, and complied with applicable obligations relating to training requirements, during the period of the applicant’s most recent sponsorship approval. These requirements may be disregarded if it is reasonable to do so.
The relevant training benchmarks are specified in IMMI 13/030. Relevantly, a business meets the benchmarks by demonstrating:
·recent expenditure to the equivalent of at least 2% of the payroll of the business to an allocated industry training fund and a commitment to maintain expenditure in each fiscal year for the term of approval as a sponsor; or
·recent expenditure to the equivalent of at least 1% of the payroll of the business in the provision of training to employees of the business and a commitment to maintain expenditure to that level each fiscal year for the term of approval as a sponsor.
The Tribunal is satisfied based on the financial information provided to it and receipts for training that the applicant’s expenditure over the approved sponsorship period was at least 1% of the payroll expenditure.
The Tribunal is therefore satisfied that the applicant has spent 1% of the payroll expenditure in the required period of the standard business sponsorship approval and that the applicant has satisfied Training Benchmark B.
Accordingly, the requirement in r.5.19(3)(f) is met.
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 rr.1.13A and 1.13B.
The relevant definition of ‘adverse information’ at r.1.13A(1), as in force before 14 November 2017, states:
Reg 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:
…
(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; …
…
(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).
Reg 2.57 Interpretation
(1)      In this Part:
competent authority           means a Department or regulatory authority that administers or enforces a law that is alleged to have been contravened.
As noted in paragraphs 4 and 5 of these reasons, the delegate found there was adverse information known about the nominator because its managing director when the nomination was made in November 2017, Mr Singh, was also the managing director of HS & Sons when that company contravened r.2.89 of Schedule 2 to the Regulations by failing to keep proper records and failing to ensure a sponsored person worked in their nominated occupation in contravention of rr.2.82 and 2.86 respectively.
This contravention of r.2.89 led to the Department barring HS & Sons from making applications as a standard business sponsor for four years. The Tribunal finds this is adverse information within the definition of that term in r.1.13A(b). By banning HS & Sons for four years as the Department did, HS & Sons was the subject of administrative action by a competent authority, as that term is defined in r.2.57, in accordance with rr.1.13A(f) and (4). At the time of the delegate’s decision in October 2019 the relevant sanction had been imposed on HS & Sons in June 2018 which is within the previous three years in accordance with r.1.13A(3).
The key issue then becomes whether the nominator, because Mr Singh was the managing director of both it and HS & Sons at the relevant time, is an associated entity of HS & Sons such that it is also affected by the adverse information.
Regulation 1.13B establishes the meaning of “associated with” for these purposes to include that a person is associated with another person that is a corporation if the associated person is an officer of the corporation, a related body corporate or an associated entity: r.1.13B(1).
The nominator concedes that it is infected by the adverse information known in relation to HS & Sons through Mr Singh’s common directorship of the nominator and HS & Sons at the relevant time.
Regulation 5.19(3)(g)(ii) provides the Minister must approve the nomination if it is reasonable to disregard any adverse information known to Immigration about the nominator. The Regulations do not define reasonableness in this context.
The Department’s Procedures Advice Manual, known as PAM3, sets out factors that may be considered in deciding whether it is reasonable to disregard the adverse information known about the nominator. This is an inclusive but not exhaustive list which indicates decision makers should consider all of the relevant circumstances including:
·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.

In relation to these considerations the delegate who made the primary decision found:
Based on the 4-year sanction imposed on the nominator’s associated entity, the adverse information subject of the sanction was deemed serious by the investigating authority, which I also consider serious given the identified breaches of sponsorship obligations by the nominator’s associated entity managed by a common director.
A full investigation was conducted in relation to the findings of the Department with full opportunity given to the associated entity to participate and provide evidence and given the associated entity’s cooperation and response during the investigation, I consider that the contravention, which allegedly occurred in 2017, has been substantiated and the allegations found sufficiently credible.
There is no evidence to indicate that the associated entity has taken steps to ensure the circumstances that led to the adverse information did not recur.
I have taken into account the nominator’s submission that “there is clearly a significant difference between being a current director of the Nominating business and not having been a director for more than 12 months (particularly where it was Mr Singh’s conduct as managing director of the business which was the offending behaviour)”. I place less weight to this factor for the reason that it was the conduct of HS & Sons Pty Ltd and the nominator, as both managed by a common director, that is made the basis of the adverse information which the legislation also considers vicarious adverse information in relation to the current nomination. It is not a case where an officer of the nominator had nothing to do with the adverse conduct of the associated entity. Rather, both associated entities were managed by the same director at the time of breach and as of the time the nomination was lodged. It is of little consequence that the nominator’s new business owner has no business or personal connection to the then common director of both associated entities or that it would be unfair and unreasonable to punish the nominator and the nominee when neither of those parties has committed acts that amount to adverse information, as submitted by the nominator.
For the above reasons, I am not satisfied that it is reasonable to disregard the imputed adverse information against the nominator.
The representative for the nominator submitted in written submissions to the Tribunal, in summary:
·From 4 July 2018 the nominator has been owned by Mrs Kamalpreet Kaur;
·The nominator sponsored Mrs Kamalpreet Kaur many years ago which led to Mrs Kamalpreet Kaur obtaining permanent residency in Australia;
·Despite this previous association, Mr Singh has declared in a statutory declaration he did not know Mrs Kamalpreet Kaur as they worked at different locations at the time of that earlier sponsorship and the purchase of the nominator by Mrs Kamalpreet Kaur was an arms-length transaction where Mrs Kamalpreet Kaur responded to a business broker’s advertisement and the sale was properly documented with a detailed written sale agreement and commercial purchase price that required Mrs Kamalpreet Kaur to pay the purchase price in full by 30 June 2020;
·Mr Singh has had no involvement in the business of the nominator since the sale of the business;
·Mr Singh remained a non-beneficial shareholder of the nominator to secure payment of the balance of the purchase price;
·Mrs Kamalpreet Kaur sought and was granted by Mr Singh extensions of time to make the final payment initially to 30 June 2021 and then to 30 July 2021;
·Mrs Kamalpreet Kaur has now completed payment of the purchase price, the non-beneficial shares held by Mr Singh have been transferred to Mrs Kamalpreet Kaur who is now the sole director and shareholder of the nominator;
·The representative provided documentary evidence, which the Tribunal accepts, in support of the sale of the business, the recent completion of that purchase, the transfer of the shares and Australian Securities and Investments Commission records confirming Mrs Kamalpreet Kaur is the sole director and shareholder of the nominator;
·It is reasonable to disregard the adverse information because it relates to conduct alleged by Mr Singh, who has had no involvement in the nominator for over three years;
·Mr Singh, as sole director of HS & Sons, has appealed the decision to bar HS & Sons as a standard business sponsor for four years to the Tribunal and that application for review has not yet been heard or determined by the Tribunal;
·To rely on the adverse information against Mr Singh to refuse the nominator’s nomination would be to punish Mrs Kamalpreet Kaur and would also punish the nominee for the position of Cook made by the nominator, Mrs Navdeep Kaur, and both of these individuals are innocent of any wrongdoing; and
·Given the extremely tenuous connection of the contravening behaviour of Mr Singh to the nominator business, by any objective assessment we submit that it is “reasonable” to disregard the adverse information as provided for under Reg 5.19(3)(g)(ii). The sanctions handed out to Mr Singh’s former business H S & Sons have absolutely nothing to do with Mrs Kaur’s company, let alone the nominee Ms Navdeep Kaur
HS & Sons was barred from being a standard business sponsor for four years from 14 June 2019. That action taken against HS & Sons is the subject of an application for review filed at the Tribunal on 24 June 2019, which remains not yet heard or determined.
The nature of the adverse information is that it relates to HS & Son’s obligations in relation to how it employs and pays sponsored visa holders, keeps records of those arrangements and ensures sponsored visa holders’ are working in their nominated occupations.
The delegate’s decision indicates the adverse information became known through the Department’s own investigations and Mr Singh as managing director of HS & Sons co-operated with that investigation. The Tribunal considers this information credible and the allegations substantiated notwithstanding HS & Son’s application for review to the Tribunal. HS & Sons’ application for review to the Tribunal is not required to and does not specify the grounds for review. Mr Singh has not denied the findings made against HS & Sons arising from his behaviour as the managing director of that company in any of the submissions made to the Tribunal or to the Department, although the Tribunal notes this could be inferred from the lodging of the application for review (which can also be just about penalty).
The adverse information relates to contraventions that occurred in 2017, over four years ago, which are not current contraventions but are also contraventions that the Tribunal considers did not occur a long time ago.
The delegate who imposed the sanction on HS & Sons considered the adverse information significant enough to impose an administrative sanction of barring HS & Sons for four years from being able to sponsor new visa applicants. This indicates to the Tribunal that the delegate who imposed the sanction considered the adverse information to be a ‘significant failure’, not a ‘minor failure’, but not a ‘serious failure’ as those terms are defined in PAM3.[1]
[1] PAM3, 21/10/2017 – 17/11/2017, Sponsorship compliance framework: Penalties, sanctions and enforcement.
This further indicates that the delegate considered the contraventions by HS & Sons to be the result of negligence or recklessness rather than deliberate actions, noting that the Department considers ignorance of obligations to be no excuse.
The delegate had multiple options when considering what sanction to impose on HS & Sons. Those options include:
·issuing a formal warning letter;
·barring the sponsor – s.140M of the Act;
·cancellation of approval as a sponsor – s.140M of the Act;
·serving an infringement notice – s.506A of the Act and Regulations Division 5.4 – Prescribed Penalties, (Infringement notices); or
·applying to a court for a civil penalty order under Part 8D of the Act (litigation).
The imposition of a four year ban on HS & Sons sponsoring visa holders, in circumstances where the contraventions were not deliberate, Mr Singh cooperated with the Department’s investigation and Department policy at the time was a bar should be for at least three months but no more than five years, cumulatively indicates to the Tribunal that the delegate who imposed the sanction attached great significance to the adverse information.
Balanced against these considerations are the following considerations:
·The current owner of the nominator Mrs Kamalpreet Kaur was not involved in the behaviour that led to the adverse information which occurred in 2017 prior to her purchase of the nominator;
·There is no information before the Tribunal that any adverse findings have been made by the Department about the nominator or Mrs Kamalpreet Kaur since Mrs Kamalpreet Kaur has owned and managed the nominator;
·Mrs Kamalpreet Kaur has owned and managed the nominator for over three years;
·The nominee, Ms Navdeep Kaur, has been employed at the nominator since December 2014 and there is no information that Ms Navdeep Kaur has been involved in similar behaviour to the behaviour that caused the adverse information to arise;
·The author of the behaviour that caused the adverse information to arise, Mr Singh, has had no involvement in the nominator since July 2018 and since 30 July 2021 has had no non-beneficial shareholding or other interest in the nominator;
·There is no information before the Tribunal to indicate that the Department has any concerns that the behaviour of Mr Singh as the managing director of HS & Sons that led to the adverse information arising is at risk of being repeated by Mrs Kamalpreet Kaur in her ownership and management of the nominator. Therefore, the Tribunal does not consider that Mrs Kamalpreet Kaur needs to take any steps in her management of the nominator to rectify the behaviour of Mr Singh in his management of HS & Sons in 2017.
For the Tribunal what emerges from these considerations is that there is only a historical and not current connection between the nominator and the behaviour of concern at HS & Sons under Mr Singh’s control and management that caused the adverse information to arise.
The Tribunal was troubled by the submission that Mrs Kamalpreet Kaur was sponsored by the nominator prior to gaining permanent residency in Australia. There is insufficient information about the timing of this sponsorship and Mr Singh’s control or otherwise of the nominator, noting there has been a series of directors since the nominator was incorporated on 29 March 2011, for the Tribunal to critically examine Mr Singh’s declaration in a statutory declaration that he did not know Mrs Kamalpreet Kaur at that time of that sponsorship.
The concern for the Tribunal is that this sponsorship of Mrs Kamalpreet Kaur by the nominator could reveal a connection between Mrs Kamalpreet Kaur and Mr Singh that undermines the claims that the sale of the nominator has been through an arms-length, on market transaction. If those claims were undermined the Tribunal may then have become concerned that Mr Singh could continue to have a ‘behind the scenes’ role in the nominator and Mr Singh’s poor management practices at HS & Sons could be occurring at the nominator.
The Tribunal did not pursue these issues at a hearing with Mrs Kamalpreet Kaur or Mr Singh. This is because the evidence before the Tribunal, which the Tribunal has accepted, is that since Mrs Kamalpreet Kaur has been in control of and managing the nominator the Department has not made any allegations or adverse findings against the nominator of similar behaviour to that which occurred under Mr Singh’s control and management of HS & Sons.
There seems little to no utilitarian purpose in the Tribunal relying on such a historical connection between the adverse information and the nominator, particularly in the present circumstances of the nominator.
If the nomination of the nominator was not approved by the Tribunal the likely consequences are the nominator would be denied the services of Ms Navdeep Kaur who has been a cook for the business since December 2014. This is because Ms Navdeep Kaur would not have an approved sponsorship in support of her application for the Subclass 186 visa and her application for that visa, currently before the Tribunal, would have to be refused.
The Tribunal is mindful that during the current COVID-19 global pandemic businesses such as that operated by the nominator have been and continue to be very significantly adversely affected by the periodic restrictions on the movement of people in Victoria that have and continue to be put in place in response to the pandemic. The loss of a cook in a business such as that operated by the nominator, particularly when that cook has worked in the business since December 2014, could have far greater consequences for the business in present circumstances than it may have had prior to the COVID-19 global pandemic emerging.
In these circumstances, the Tribunal finds it is reasonable to disregard any adverse information known to Immigration about the nominator.
Accordingly, the requirement in r.5.19(3)(g) is met.
Satisfactory compliance with workplace relations laws: r.5.19(3)(h)
Regulation 5.19(3)(h) requires the applicant to have 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.
The Tribunal requested information held by the Commonwealth Fair Work Ombudsman (FWO) in relation to the nominator. The FWO responded that it conducted searches for any records, not more than five (5) years old, limited to instances where the FWO is currently investigating, or has completed an investigation, which resulted in a sanction or formal caution involving the nominator including:
·Whether an investigation is ongoing;
·Any monies recovered on behalf of employees;
·Whether a Compliance Notice or Infringement Notice was issued and not complied with;
·Whether a Letter of Caution was issued; and/or
·Whether another specified Enforcement Tool was implemented.
The FWO advised these searches revealed a ‘nil response’ which means the FWO does not currently hold any records of non-compliance by the nominator.
There is no information before the Tribunal that the nominator has been found to be in non-compliance with any of the workplace relations laws of the Commonwealth or of the State of Victoria in relation to the operation of its business.
Accordingly, the requirement in r.5.19(3)(h) is met.
Genuine need to employ nominee: r.5.19(3)(i)
Regulation 5.19(3)(i) requires that there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.
The Tribunal notes that the nominee has been working for the nominator in the full-time position of Cook since 17 December 2014. The Tribunal is satisfied there is a genuine need for the nominator to employ the nominee, as a paid employee, to work in the position of Cook under the nominator’s direct control.
Accordingly, the requirement in r.5.19(3)(i) is met.
Conclusion
Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.
Michael Ison
Senior Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
5.19Approval of nominated positions (employer nomination)
…
(2)The application must:
(a)be made in accordance with approved form 1395…; and
(aa) 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; 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
(iv)    identifies a need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control; 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; and
(i)there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.

[2021] AATA 3460

26 August 2021

Key Legal Topics

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Immigration

Administrative Law

Legal Concepts

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Procedural Fairness

Statutory Construction

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