V&B Holdings Pty Ltd (Migration) - [2020] AATA 2904

V&B Holdings Pty Ltd (Migration) [2020] AATA 2904 (1 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  V & B Holdings Pty Ltd
CASE NUMBER:  1808595
DIBP REFERENCE(S):  BCC2016/1701131
MEMBER:Terrence Baxter
DATE:1 June 2020
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 01 June 2020 at 4:57pm
CATCHWORDS
MIGRATION– Direct Entry Nomination stream –Cook– satisfactory record of compliance with the laws –position is located in regional Australia – genuine need for the nominator to employ a paid employee – No less favourable terms and condition of employment–decision under review set aside
LEGISLATION
Migration Act 1958, ss 245AR,359
Migration Regulations 1994, rr 1.13, 5.19
CASES
MIBP v Jayshree Enterprises Pty Ltd [2017] FCA 264
Nice Shoes Aust Pty Ltd v MIMIA (2004) FCA 252
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 13 March 2018 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, V & B Holdings Pty Ltd, applied for approval on 11 May 2016. The applicant nominated Mr Uday Partap Singh (the nominee) in the position of Cook. 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 applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Direct Entry Nomination stream.
The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(4)(a)(ii) of the Regulations because the delegate found that the application did not demonstrate a need for the applicant to employ a full-time paid employee to work in the position under the applicant’s direct control.
Mr Brijesh Kalra, a director of the applicant company, appeared before the Tribunal on

4 March 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee.
The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading V&B Holdings Pty Ltd (Migration)

Details

AGLC: V&B Holdings Pty Ltd (Migration) [2020] AATA 2904
Case: [2020] AATA 2904
Decision Date: 1 June 2020

CaseChat Overview and Summary

The case of V&B Holdings Pty Ltd (Migration) concerned an application for approval of a nomination under the Direct Entry nomination stream. The applicant sought to have a decision reviewed by the Tribunal, which had previously refused to approve the nomination. The core of the dispute revolved around whether the applicant, V&B Holdings Pty Ltd, met all the requirements stipulated in regulation 5.19(4) of the Migration Regulations 1994.

The primary legal issue before the Tribunal was to determine if V&B Holdings Pty Ltd satisfied the criteria for the Direct Entry nomination stream, specifically focusing on whether there was a genuine need for a paid employee, whether the position was located in regional Australia, and crucially, whether the applicant had a satisfactory record of compliance with Australian laws, particularly in relation to employment obligations. This included assessing whether any adverse information known to the Department of Immigration and Border Protection (now the Department of Home Affairs) about the nominator or associated persons was present, and if so, whether it was reasonable to disregard such information.

The Tribunal's reasoning centred on the interpretation and application of regulation 5.19(4)(f) and related provisions defining "adverse information." While the Fair Work Ombudsman (FWO) had issued a Letter of Caution and a Compliance Notice to V&B Holdings Pty Ltd in 2017 concerning underpayment of wages to former employees, the Tribunal considered the steps taken by the applicant to rectify these issues. The applicant provided evidence of compensation paid to the affected employees and measures implemented to prevent future contraventions. The Tribunal concluded that, in light of the applicant's subsequent compliance efforts and the nature of the contraventions, it was reasonable to disregard the adverse information.

Consequently, the Tribunal set aside the original decision and substituted a new decision approving the nomination. This outcome was based on the finding that all the requirements of regulation 5.19(4) had been met, including the satisfactory record of compliance with the law, despite the past issues with the FWO.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Direct Entry nomination stream set out in r.5.19(4), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.Evidence presented prior to the hearing The applicant produced to the Department of Immigration and Border Protection (now the Department of Home Affairs) (the Department) the following documents:a.The applicant’s bank statements for the periods 25 November 2015 to 29 January 2016, 25 November 2016 to 27 January 2017 and 24 June 2017 to 24 July 2017.b.The applicant’s 2015 and 2017 financial statements.c.Activity statements for Matilda Uralla for the quarters ending September 2015 to June 2017.d.A submission from the applicant’s accountant dated 3 September 2015.e.Photographs of the applicant’s Uralla premises.f.A table menu from the applicant’s Uralla premises.g.An ASIC Company Details form in respect of the applicant dated 16 September 2015.h.An ASIC company extract in respect of the applicant dated 27 April 2016.i.An Organisational Chart for Matilda Uralla and Caltex Withcott.j.Online market salary evidence for the position.k.An Employment Contract dated 5 May 2016 with schedule of duties and responsibilities attached.l.A certification that the applicant had not contravened subsection 245AR(1) of the Migration Act 1958.m.An ABR Current Details extract for the applicant dated 27 April 2016.n.A Regional Certifying Board certificate dated 28 June 2016 issued by Regional Development Australia – Northern Inland Inc., Armidale.o.The applicant’s 2015 and 2016 tax returns. The applicant produced to the Tribunal the following documents:a.The applicant’s 2017, 2018 and 2019 tax returns.b.The applicant’s 2018 and 2019 financial statements.c.Activity statements for Matilda Uralla for the quarters ending September 2017 to September 2019.d.A submission from the applicant’s accountant dated 24 June 2019. e.A submission from the applicant’s migration agent (undated).f.A Letter of Engagement dated 4 February 2020.g.A Management Organisational Chart for the applicant’s three fuel outlets.h.An ASIC Certificate of Registration of Company for the applicant dated 16 March 2009.i.An ASIC Company Details form for the applicant dated 27 January 2020.j.An ASIC Current and Historical extract for the applicant dated 30 January 2020.k.A further copy of the Regional Certifying Board certificate dated 28 June 2016.l.A Product Sales printout for Matilda Uralla restaurant for 2019 financial year.m.A job description.n.A schedule of superannuation contributions for the nominee covering the period from 6 July 2017 to 18 October 2019.o.Pay Advices for the nominee for periods ending November 2019 to January 2020.p.PAYG payment summaries for the nominee for the 2018 and 2019 financial years.q.Newspaper job advertisements dated 6 November and 11 November 2015.r.A set of photographs of the Uralla premises.s.A further submission from the applicant’s migration agent (undated).t.An email from the applicant’s lawyers HR Law to the Fair Work Ombudsman dated 30 June 2017.u.An email from HR Law to the applicant dated 5 November 2018.v.A job advertisement for the position of administration assistant/payroll officer dated 25 April 2018.w.A resume of the applicant’s employee Sharon Barker.x.A payslip of Sharon Barker for the period ending 9 February 2020.y.An invoice from Lightning Payroll dated 8 November 2017.Evidence presented at the hearing

Ratio Decidendi

Legal Principle Established

Accordingly, the requirements of r.5.19(4)(e) are met.No adverse information known to Immigration: r.5.19(4)(f) Regulation 5.19(4)(f) 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 of the Regulations. The relevant definition of ‘adverse information’ at r.1.13(A)(1), as in force before 18 March 2018, relevantly states that ‘adverse information’ is any adverse information relevant to a person’s suitability as a nominator (within the meaning of r.5.19) and includes information that the person:·has been found guilty by a court, of an offence under a Commonwealth, State or Territory law; or·has, to the satisfaction of a ‘competent authority’, acted in contravention of a Commonwealth, State or Territory law; or·has been the subject of administrative action (including the issue of a warning) by a competent authority for the possible contravention of a Commonwealth, State or Territory law; or·is under investigation, subject to disciplinary action or subject to legal proceedings in relation to an alleged contravention of a Commonwealth, State or Territory law; or·has become insolvent within the meaning of s.5(2) and (3) of the Bankruptcy Act 1966 and s.95A of the Corporations Act 2001. Regulation 1.13(A)(2) provides that the law which has been contravened, or has possibly been contravened as referred to in the first four dot points above, must relate to one or more of the following: discrimination, immigration, industrial relations, occupational health and safety, people smuggling and related offences, slavery, sexual servitude and deceptive recruiting, taxation, terrorism and trafficking in persons and debt bondage. Regulation 1.13(A)(3) provides that the conviction, finding of non-compliance, administrative action, investigation, legal proceedings or insolvency must have occurred within the previous three years. The applicant produced to the Tribunal an email from the applicant’s lawyers HR Law to the Fair Work Ombudsman (FWO) dated 30 June 2017 regarding underpayment of wages by the applicant prior to that date, as well as steps taken by the applicant to compensate the employees and steps taken to ensure that the errors did not continue. The applicant also produced a submission from its migration agent regarding the issue. The Tribunal produced to Mr Kalra, pursuant to the provisions of s.359AA the Act a Letter of Caution and a Compliance Notice issued by the FWO to the applicant dated 4 July 2017 and 13 September 2017 respectively. Mr Kalra stated that he was familiar with these documents. These documents indicate that:a.In 2017, a former employee of the applicant’s Uralla site named Gurwinder Singh lodged a Request for Assistance with FWO with allegations of underpayment of the correct hourly rate of pay, non-payment of penalty rates and failure to provide payslips. The resultant investigation by FWO determined that the applicant had underpaid Mr Singh to the extent of $23,490. The FWO decided that it was not in the public interest to commence civil proceedings against the applicant, but that it was more appropriate to issue a Letter of Caution.b.Later in 2017, another former employee of the applicant’s Uralla site named Tristan Miller lodged a Request for Assistance with FWO with allegations of underpayment of the correct hourly rate of pay and non-payment of penalty rates. The resultant investigation by FWO determined that the applicant had underpaid Mr Miller to the extent of $4,296.65. The FWO determined that the appropriate enforcement measure was to issue a Compliance Notice providing the applicant an opportunity to rectify the contravention by paying the sum of $4,296.65 to Mr Miller.