Ye (Migration)

Ye (Migration) [2021] AATA 5355 (15 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Lingzhao Ye
Mr Mingzhe Zhou
CASE NUMBER:  1832724
HOME AFFAIRS REFERENCE(S):          BCC2017/910982
MEMBER:Denis Dragovic
DATE:15 November 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:
·cl 187.233 of Schedule 2 to the Regulations

Statement made on 15 November 2021 at 11:39am
CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Accountant (General) – subject of an approved nomination – adverse information – tax conviction – ongoing investigation into occupational, health and safety issues – whether reasonable to disregard – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.13A; Schedule 2, cl 187.233
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 to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 8 March 2017. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).
The criteria for a Subclass 187 visa are set out in Part 187 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 two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.
In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Accountant (General).
The delegate refused to grant the visas because the applicant did not meet cl 187.233(3) of Schedule 2 to the Regulations because the nomination for the position was not approved.
The applicants appeared before the Tribunal on 10 August and 10 November 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Christopher Baldwin, the nominator of the position, and Harjit Malhi, the visa applicant’s supervisor.
The applicants were represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Nomination of a position
Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia. The position must be the one that was the subject of the declaration made as part of the current visa application.
In the applicant’s case I am satisfied that she was nominated in an application for approval that identifies her in relation to the position; and was made in relation to a visa in a Direct Entry stream. I am satisfied that the nomination application seeks to meet the requirements of subregulation 5.19(12) and that the visa applicant declared in her application as per paragraph 1114C(3)(d) of Schedule 1, that the position to which the application relates is a position nominated under regulation 5.19. As such I am satisfied that cl 187.233(1) is met.
In addition, this criterion also requires that:
·the person who will employ the applicant is the person who made the nomination
·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.
The application was made by The Trustee of BTA Unit Trust of which the majority unit holder is Mr Christopher Baldwin. The applicant has been employed by The Trustee of BTA Unit Trust as evidenced by the ABN used to pay her salary and her employment contract. Mr Christopher Baldwin appeared before the Tribunal and gave evidence of his role in the application for the nomination of the position and his ownership of the company. For this reason I am satisfied that cl 187.233(2) is met.
The nomination has been approved and has not been withdrawn. As such I am satisfied that cl 187.233(3) and (4) are met.
Regarding no adverse information being known to Immigration, adverse information became known to the Tribunal through an internet search of Brown Baldwin and Associates and was put to the nominator under s.359A and discussed at a joint hearing with the visa applicant. The s 359A letter stated:
An ABC News investigation reported revealed that ‘Brown Baldwin’ based in Shepparton is, ‘An accounting firm at the centre of a massive tax avoidance scheme which exploited homeless and drug-addicted people has had its registration cancelled in the wake of an ABC investigation.’[1] The March 2020 article explains:
[1] Dan Oakes, ‘Accountants at centre of multi-million-dollar 'dummy director' scam shut down’, 26 March 2020 month the ABC revealed a group of Victorian accountants were using people addicted to drugs and alcohol, the homeless and other vulnerable Australians as "dummy directors" of companies in order to shield the real directors from the tax office and other creditors.
One man, Rodney Jackson, was the director of 26 companies despite living in a housing commission flat in Melbourne's inner suburbs.
He was unaware of his directorships until he was informed by the ABC.
The accounting firm, Brown Baldwin, had offices in Shepparton and the Melbourne suburb of Northcote.
…
It revolved around the installation of people such as Mr Jackson and others like him as dummy directors of companies that Brown Baldwin supplied to its clients.
When those companies racked up significant debts to the tax office and other creditors, they would be shut down with the assistance of a "friendly" liquidator, and the dummy directors would be left responsible for the debts.
The same article notes that:
Following the ABC's story last month, the Tax Practitioners Board (TPB) cancelled the registration of The Associates Vic Pty Ltd and a number of individual accountants linked to the firm who had worked at Brown Baldwin.
The TPB cited a number of breaches of duties in its code of professional conduct, including obligations to "act honestly with integrity", "comply with taxation laws in conduct of personal affairs", act in "the best interests of your client", ensure that the "tax agent service is provided competently" and "not knowingly obstruct proper administration of taxation laws".
The TPB also cancelled the tax practitioner registrations of Andrew Locantro, Biren Shah and Rajinder Narula, all of whom were accountants at Brown Baldwin.
Mr Locantro is also the son-in-law of Brown Baldwin's founder, Christopher James Baldwin.
In a July 2021 update on the case the site accountantsdaily update
The Tax Practitioners Board has terminated the registration of The Associates Vic Pty Ltd, trading as Brown Baldwin and Associates, and imposed the maximum five-year ban.
Brown Baldwin and Associates’ directors — Andrew Locantro, Biren Shah and Rajinder Narula — have also been disqualified for the maximum period after they were found to be responsible for the misconduct of BBA.
A six-month-long investigation by the TPB found that Brown Baldwin and Associates had knowingly obstructed the proper administration of the taxation laws by assisting some of its clients to set up or transfer companies for the purpose of avoiding payment of debts including taxation liabilities.[2]
ASIC reports obtained by the Tribunal show that in the past you were a director of The Associates Vic Pty Ltd, which has now been deregistered by the Tax Practitioners Board. I note that Brown Baldwin and Associates’ directors — Andrew Locantro, Biren Shah and Rajinder Narula — are reported to have been disqualified for the maximum period relating to misconduct.
In ‘Taxpayers to cover costs of toxic factory fire clean-up’ (16 February 2020) The Age reported on a fire in West Footscray noting that, ‘The warehouse was an illicit dump, packed with steel drums filled with millions of litres of toxic and highly flammable chemicals.’ The report notes the company that owned the warehouse was Danbol Pty Ltd. An ASIC search shows that you were a director of Danbol Pty Ltd. Media reports indicate that both the EPA and WorkCover were undertaking regulatory investigations.[3]
[2] Tax-dodging accounting company, directors cop maximum ban from TPB, accountantsdaily, 8 July 2020 Anger burns over toxic waste stockpile at Tottenham fire site , Star Weekly, 21 October 2019 >
At the joint hearing I explained the law, specifically going through each of the subclauses in r 1.13A(1)(d)-(h) asking the nominator whether they applied. The nominator acknowledged that the following applied:
(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);
The nominator said that he had been convict in relation to the lodgement of his tax returns. I note that taxation is included in subregulation (2) as a relevant matter.
The nominator provided evidence regarding his tax violation. He explained that the violation related to the 2012/13 financial year. He had received a discretionary distribution from a hybrid trust from a firm that he had worked for. He said that he had claimed additional deductions more so than other colleagues, which he said was because he ‘worked harder’ than others. Under the law for discretionary distributions according to the nominator, he was not allowed to claim such deductions. He said that his tax agent was instructed to lodge an amended tax return once the issue was clarified with the tax office, but this did not happen. The issue subsequently went to court with the outcome being that he was fined $2,500 and he had a conviction recorded against his name. He said that there were no consequences to his ability to practice as an accountant. There is no evidence before me to suggest otherwise.
As such I find that there is adverse information as described in r 1.13(1)(d).
In the presentation of further evidence, the nominator provided information that he is under current investigation with regards to the above-mentioned fire in West Footscray.
He explained that he had insurance which expired on the 24 August 2018. The fire occurred on the 30 August 2018. He said that he was offered to extend the insurance through his broker, but he claims that his broker did not follow up on time. He claims that he should have nevertheless been covered for a period after the expiry of the insurance. The nominator sued the insurance company but lost in court and is currently suing the broker.
A report on this case explains the details, which are relevant in the subsequent consideration of whether the finding of adverse information should be waived:
The Supreme Court of Victoria has ruled in favour of Swiss Re International in a property insurance dispute related to a large industrial fire that sent black smoke over Melbourne.
Swiss Re declined to cover property owner Danbol Pty Ltd for damage caused by the fire in the inner suburb of West Footscray on August 30, 2018, saying the policy had expired six days earlier.
But Danbol maintained an agreement was in place to extend cover for 14 days from August 24 to September 7.
Emails about renewing the policy were exchanged between Danbol’s broker Griffiths Goodall Insurance Brokers and Swiss Re representative Pen Underwriting before the expiration date.
The renewal was not straightforward, as the broker had advised the insurer the tenants had changed the use of the property to include storing used gas bottles. This triggered requests from the insurer for more information.
Previously, the tenant’s activities related to timber pallets, reconstituted logs, woodchips and mulch.
“On further consideration this is not one we are going to be able to assist with at renewal with the change of tenancy,” Swiss Re’s representative wrote on the day of expiry. “However, given the timeframe we will offer 14 days extension to assist with placement.” The email showed a net premium calculation of $3506.06 for the extension.
Further discussion about the gas bottles led to confirmation they were decommissioned before storage at the West Footscray property and were sent elsewhere for disposal.
A renewal quotation was sent on August 29 at 12:33pm, quoting a premium of $106,708 and certain conditions. It also said: “If our terms are not accepted below EP [extra premium] applies for the 14-day extension until 7 September 2018 to assist with placement.”
Fire broke out at the property at about 5am the next day.
The broker sent an email at 8:44am saying the new terms had been accepted. Funds were remitted on October 2, which were returned by cheque dated October 4.
Danbol maintained that the email communications showed an extension to the insurance cover was in place as further discussions continued about a renewal.
But Justice Peter Riordan says in his judgment that he considered none of the emails “on any reading” purported to accept the offer of a 14-day extension for a $3506.06 premium.
“The quid pro quo for the defendants’ 14-day extension of the policy was not the plaintiff’s consideration of the renewal of the policy or even refraining from entering into another insurer’s policy,” Justice Riordan says.
“The defendant’s offer was expressly to provide a 14-day extension in consideration of the promise to pay the extra premium. The plaintiff did not make that promise.”
The Coroner, the Victoria Police Arson and Explosives Unit, the Environment Protection Authority, Worksafe, Maribyrnong City Council and the Metropolitan Fire Brigade are continuing to conduct investigations into the fire, the court judgment says.
The fire was fuelled by a range of materials such as acetone drums, canisters and scrap metal, according to the fire brigade. At its height more than 140 firefighters were engaged in fighting the blaze, which took 17 hours to get under control.[4]
[4] Court backs Swiss Re after toxic fire claim rejection 18 February 2020 >
The nominator said that Work Safe is pursuing him for $14-$15 million for the clean-up. He said that the tenant to whom he had rented it had no assets to pursue. Independent reporting states that the tenant had only moved in two months earlier.[5] The company to whom the factory was rented has had 17 charges against it and 17 charges against the individual owner. It is reported that, ‘The charges allege that the company permitted the dumping of industrial waste at the site, caused or permitted the pollution of a local waterway and caused an environmental hazard.’[6]
[5] >
The nominator explained that despite being the owner of the land and not the tenant he was also responsible for any breaches under the Dangerous Goods Act 1985. The nominator said that he had offered Work Safe $3 million as proceeds from the sale of the property.
I note that occupational, health and safety is included in subregulation (2) as a relevant matter and as such I find that there is adverse information as described in r 1.13(1)(d).
I find that both pieces of information, being in the public domain, are known to the Department of Immigration as was indicated through correspondence with the Department.
Having found that there is adverse information known to the Department, I note that cl 1872.33(4A)(b) allows for the Tribunal to consider whether it is reasonable to disregard any adverse information.
In PAM3 the Department provides guidance on the type of situation in which this waiver could be applied.
To illustrate, if a person was found to have breached occupational health and safety legislation two years ago and had since appointed an occupational health and safety manager and had a clean occupational health and safety record, it may be reasonable to disregard the original breach
Furthermore, PAM3 provides policy guidance on the type of issues a Departmental decision maker should consider. I have turned my mind to these in considering the evidence before me.
Regarding the tax conviction, I take into consideration the circumstances namely that it occurred nearly ten years ago, the nominator’s license to practice as a taxation agent was not withdrawn and the conviction came with a relatively low fine of $2,500. Since then the nominator has been audited by the ATO and has passed without any issues being raised. Noting that the nominator now completes his taxation inhouse and he has passed an ATO audit I am satisfied that the causes of his earlier infraction have been dealt with. As such I am satisfied that it is reasonable to disregard the adverse information known to Immigration about the nominator.
Regarding the ongoing investigation into the warehouse fire in West Footscray, I note that it is not related to the business under which the visa applicant is being nominated for and instead arises from a lack of oversight on the part of the nominator of his tenant’s activities in an investment property. The only connection being that the nominator is a director of both companies. The nominator explained that he lives nearly 200 kilometres away, a response that goes to his inability to monitor his tenant’s actions. I note that this matter is yet to be resolved. While the matter remains unresolved, I give weight to the nominator’s evidence that he has sought to settle the matter by way of selling the property to cover the costs of the clean-up. I note policy guidance indicates that consideration should be given to whether the nominator has acknowledged the issues with their ‘behaviour’. In this instance there is no evidence before me that indicates that the nominator’s behaviour contributed to the circumstances other than his lack of visits to his investment property. Another policy consideration is whether the conduct is likely to recur, which I find in this instance it would not. For these reasons I am satisfied that it is reasonable to disregard the adverse information known to Immigration about the nominator.
Despite there being adverse information known to Immigration I find that it is reasonable to disregard the adverse information and as such I find that the visa applicant meet cl 187.233(4A).

At the joint hearing it was confirmed that the position is still available to the applicant as such cl 187.233(5) is met.
I am satisfied that the visa application was made no more than six months after the nomination of the position was approved and as such cl 187.233(6) is met.
Therefore, cl 187.233 is met.
Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.
In relation to the secondary applicant the appropriate action is also to remit their application for reconsideration in light of the finding that the first named applicant now satisfies criteria cl 187.233.
DECISION
The Tribunal remits the applications for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:
·cl 187.233 of Schedule 2 to the Regulations
Denis Dragovic
Senior Member

ATTACHMENT A
187.233(1)     The position to which the application relates is the position:
(a)nominated in an application for approval that seeks to meet the requirements of:
(i)subparagraph 5.19(4)(h)(ii); or
(ii)subregulation 5.19(4) as in force before 1 July 2012; and
(aa)in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); and
(b)in relation to which the declaration mentioned in paragraph 1114C (3)(d) of Schedule 1 was made in the application for the grant of the visa.
(2)     The person who will employ the applicant is the person who made the nomination.
(3)     The Minister has approved the nomination.
(4)     The nomination has not subsequently been withdrawn.
(4A)    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.
(5)     The position is still available to the applicant.
(6)     The application for the visa is made no more than 6 months after the Minister approved the nomination.

[2021] AATA 5355

15 November 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Remedies

Standing

Jurisdiction

Natural Justice