1415993 (Migration)

[2015] AATA 3615

1415993 (Migration) [2015] AATA 3615 (9 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  S.P.A. Consulting Engineers Pty Ltd

CASE NUMBER:  1415993

DIBP REFERENCE(S):  BCC2014/1749404

MEMBER:Don Lucas

DATE:9 November 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision not to approve the application and substitutes a decision that the applicant is approved as a standard business sponsor.

Statement made on 09 November 2015 at 3:19pm

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 Immigration on 4 September 2014 not to approve the applicant as a standard business sponsor.

2. The applicant applied for approval as a standard business sponsor under s.140E of the Migration Act 1958 (the Act) and r.2.61 of the Regulations on 17 July 2014. The delegate decided not to approve the application on the basis that the applicant did not satisfy r.2.59(d) the of the Migration Regulations 1994 (the Regulations) because the applicant had not provided evidence demonstrating 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 accordingly failed to meet training benchmark B under the relevant Gazette.

3. In response to a request made for additional information, the applicant provided evidence in relation to all relevant matters with the exception of updated evidence in relation to the training requirement. A hearing was accordingly scheduled to discuss this remaining matter.

4. Mr Robert Kenshole, Director of the applicant company appeared before the Tribunal on 16 October 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Garry Smith, Recruitment Consultant engaged by the applicant company. 

5. For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the applicant as a standard business sponsor.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant meets the requirements for approval of as a standard business sponsor in accordance with the criteria in r.2.59 and the additional criteria in r.2.60S, which must be satisfied regardless of when the application for approval was made. For the application to be approved, all the requirements must be met: s.140E(1).

   Process for application

7. Regulation 2.59(a) requires that the applicant has applied for approval as a standard business sponsor in accordance with the process set out in r.2.61. It requires the applicant to make the application for approval in accordance with the approved form, to pay the prescribed fee and, for applications made on or after 1 July 2013 to make the application by using the internet unless the Minister specifies an alternative means.

8. From the documents on the departmental file the Tribunal is satisfied that the applicant to made the application for approval in accordance with the approved form and paid the prescribed fee.

9. Given the above findings, the requirement in r.2.59(a) is met.

   Not an existing sponsor

10. Regulation 2.59(b) requires that the applicant is not a standard business sponsor.

11. From a review of the department’s records, the Tribunal is satisfied that the applicant is not currently approved as a sponsor. The requirement in r.2.59(b) is therefore met.

    Lawfully operating business

12. Regulation 2.59(c) requires that the applicant is lawfully operating a business either in or outside Australia.

13. The evidence before the Tribunal indicates that the applicant is a proprietary company, limited by shares, which was registered with the Australian Securities and Investments Commission (ASIC) on 4 December 1995 and remains registered to date. Records of the Australian business register indicate that the company has had an Australian Business Number since for April 2000 and has been registered for Goods and Services Tax (GST) since one July 2000.

14. Recent financial records provided to the Tribunal indicates that the company is still actively operating.

15. On the basis of the material before it the Tribunal is satisfied that the applicant is actively and lawfully operating its business in Australia and the Tribunal accordingly finds that the requirement in r.2.59(c) is met.

    Training benchmarks

16. Regulations 2.59(d) and (e) contain alternative criteria relating to training requirements an applicant must satisfy if the applicant is lawfully operating a business in Australia depending on how long the applicant has been trading.

17. If the applicant has traded in Australia for 12 months or more, the applicant must meet the benchmarks for the training of Australian citizens and Australian permanent residents specified in a written instrument: r.2.59(d). The relevant instrument is IMMI 13/030. If the applicant has traded for less than 12 months, the applicant must have an auditable plan to meet the benchmarks specified in that relevant instrument: r.2.59(e). 

18. The evidence before the Tribunal is that the applicant is lawfully operating and has been trading for more than 12 months and is accordingly required to demonstrate training expenditure in accordance with relevant training benchmarks pursuant to r.2.59(d).

19. Prior to the hearing, the applicant had provided evidence in relation to training expenditure. However, as the evidence concerning training expenditure and payroll related to the 2013 – 14 financial period, at the hearing the Tribunal explained that more recent evidence would be required and allowed a further period of time for this to be provided.

20. Subsequent to the hearing, the applicant has provided evidence covering the period one of November 2014 to 31 October 2015. Payroll expenditure over this period has been shown to be $844,443. One precent of this figure is $8,444.43. The applicant has provided evidence of training expenditure over the same period in the sum of $9030.92 to its employees.

21. Accordingly, the applicant has now provided evidence in accordance with training benchmark B to the effect that there has been recent expenditure of at least 1% of the payroll figure made by the applicant towards training’s Australian staff.

    Written attestations

22. Regulation 2.59(f) only applies if the applicant is lawfully operating a business in Australia. It requires that the applicant has attested in writing, that the applicant has a strong record of, or demonstrated commitment to, employing local labour and non-discriminatory employment practices.

23. The online application form submitted to the Department on 17 July 2014 contains the pro forma attestations required.

24. Given the above findings, the requirement in r.2.59(f) is met.

    Adverse information

25. Regulation 2.59(g) requires that there is no adverse information known to Immigration about the applicant or a person associated with the applicant or it is reasonable to disregard. For the purpose of this regulation, ‘associated with’ and ‘adverse information’ and are defined in r.2.57(2) and (3) respectively.

26. There is no adverse information before the Tribunal in relation to the applicant or an associate.

27. Given the above findings, the requirement in r.2.59(g) is met.

    Offshore business

28. Regulation 2.59(h) applies if the applicant is lawfully operating a business outside, and not in, Australia. In these cases, the applicant must be seeking approval as a standard business sponsor in relation to a holder of, or applicant or proposed applicant for, a Subclass 457 visa. The applicant must also intend for that person to establish, or assist in establishing, on behalf of the applicant, a business operation in Australia with overseas connections, or to fulfil, or assist in fulfilling, a contractual obligation of the applicant.

29. The evidence before the Tribunal is that the applicant is only operating a business in Australia.

30. Given the above findings, the requirement in r.2.59(h) is met.

    Number of nominees

31. Regulation 2.59(i) requires the applicant to have provided to the Minister the number of persons who the applicant proposes to nominate during the period of the applicant’s approval as a standard business sponsor.

32. This number must be reasonable, having regard to the information provided to the Minister, or alternatively, if the Minister proposes another number, the applicant must have agreed in writing to nominate no more than the other number of persons during the period of the  approval as a standard business sponsor.

33. The evidence before the Tribunal is that the applicant is intending to nominate one foreign national.

34. Given the above findings, the requirement in r.2.59(i)  is met.

    Training requirements

35. Regulation 2.59(j) applies only where the applicant has previously been a standard business sponsor. In these cases, the applicant must have fulfilled any commitments made relating to meeting its training requirements and must have complied with the applicable obligations relating to the training requirements during the applicant’s most recent approval as a standard business sponsor, unless it is reasonable to disregard this.

36. As the applicant has not previously been a standard business sponsor, the requirement in r.2.59(j) has no application in the present case.

37. Given the above findings, the requirement in r.2.59(j) is met.

    Additional criteria

38. Regulation 2.60S provides for additional criteria that must be met for the sponsorship to be approved. A copy of the criteria, as relevant to this case, is attached to this decision. 

39. Broadly speaking, to meet r.2.60S the Tribunal must be satisfied that the applicant has not taken any action, or sought to take any action that would:

    ·result in the transfer of costs to another person, or another person paying costs, associated with the applicant becoming an approved sponsor; and

    ·result in the transfer of costs to another person, or another person paying costs, that relate specifically to the recruitment of a non-citizen for the purposes of a nomination: r.2.60S(2)

40. The Tribunal must also be satisfied that the applicant has not recovered, or sought to recover from another person, costs associated with the sponsorship approval, or costs that relate specifically to the recruitment of a non-citizen for the purposes of a nomination: r.2.60S(3)

41. These requirements may however be disregarded if the Tribunal considers it reasonable to do so: r.2.60S(4).

42. There is nothing before the Tribunal which raises concerns in relation to whether the applicant has taken or sought to take any action as set out above in the previous two paragraphs, and the Tribunal is satisfied that the additional criteria in r.2.60S are met.

    CONCLUSIONS

43. For the reasons given above, the Tribunal finds that the applicant meets all the applicable criteria prescribed in the Regulations to be approved as a standard business sponsor. The Tribunal finds that the term of approval as a standard business sponsor is three years.

    DECISION

44. The Tribunal sets aside the decision not to approve the application and substitutes a decision that the applicant is approved as a standard business sponsor.

    Don Lucas
    Member

    
    

    ATTACHMENT - Extracts from the Migration Regulations 1994

    2.59    Criteria for approval as a standard business sponsor

    For subsection 140E (1) of the Act, the criterion that must be satisfied for the Minister to approve an application by a person (the applicant) for approval as a standard business sponsor is that the Minister is satisfied that:

    (a)the applicant has applied for approval as a standard business sponsor in accordance with the process set out in regulation 2.61; and

    (b)the applicant is not a standard business sponsor; and

    (c)the applicant is lawfully operating a business (whether in or outside Australia); and

    (d)if the applicant is lawfully operating a business in Australia, and has traded in Australia for 12 months or more — the applicant meets the benchmarks for the training of Australian citizens and Australian permanent residents specified in an instrument in writing made for this paragraph; and

    (e)if the applicant is lawfully operating a business in Australia, and has traded in Australia for less than 12 months — the applicant has an auditable plan to meet the benchmarks specified in the instrument, in writing, made for paragraph (d); and

    (f)if the applicant is lawfully operating a business in Australia — the applicant has attested, in writing, that the applicant has a strong record of, or a demonstrated commitment to:

    (i)employing local labour; and

    (ii)non-discriminatory employment practices; and

    (g)either:

    (i)     there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or

    (ii)    it is reasonable to disregard any adverse information known to Immigration about the applicant or a person associated with the applicant; and.

    (h)if the applicant is lawfully operating a business outside Australia and does not lawfully operate a business in Australia – the applicant is seeking to be approved as a standard business sponsor in relation to a holder of, or an applicant or proposed applicant (the visa applicant) for a [Subclass 457 visa], and the applicant intends for the visa holder or visa applicant to:

    (i)     establish, or assist in establishing, on behalf of the applicant, a business operation in Australia with overseas connections; or

    (ii)    fulfil, or assist in fulfilling, a contractual obligation of the applicant.

    (i)the applicant has provided to the Minister the number of persons who the applicant proposes to nominate during the period of the applicant’s approval as a standard business sponsor, and:

    (i)     the proposed number is reasonable, having regard to the information provided to the Minister; or

    (ii)    if the Minister proposes another number of persons as part of considering the application — the applicant has agreed, in writing, to nominate no more than the other number of persons during the period of the applicant’s approval as a standard business sponsor; and

    (j)if the applicant has previously been a standard business sponsor:

    (i)     the applicant:

    (A)fulfilled any commitments the applicant made relating to meeting the applicant’s training requirements during the period of the applicant’s most recent approval as a standard business sponsor; and

    (B)complied with the applicable obligations under Division 2.19 relating to the applicant’s training requirements during the period of the applicant’s most recent approval as a standard business sponsor; or

    (ii)    it is reasonable to disregard subparagraph (i).

    [Note …]

    2.60S Additional criteria for all classes of sponsor — transfer, recovery and payment of costs

    (1)For subsection 140E(1) of the Act, the criteria in this regulation are in addition to the criteria in regulations 2.59 to 2.60M.

    (2)The criteria that must be satisfied for the Minister to approve an application by a person (the applicant) for approval as a sponsor mentioned in any of regulations 2.59 to 2.60M include a criterion that the Minister is satisfied that:

    (a)the applicant has not taken any action, and has not sought to take any action, that would result in the transfer to another person of some or all of the costs, including migration agent costs, associated with the applicant becoming an approved sponsor; and

    (b)the applicant has not taken any action, and has not sought to take any action, that would result in another person paying to a person some or all of the costs, including migration agent costs, associated with the applicant becoming an approved sponsor; and

    (c)the applicant has not taken any action, and has not sought to take any action, that would result in the transfer to another person of some or all of the costs, including migration agent costs, that relate specifically to the recruitment of a non-citizen for the purposes of a nomination under subsection 140GB(1) of the Act; and

    (d)the applicant has not taken any action, and has not sought to take any action, that would result in another person paying to a person some or all of the costs, including migration agent costs, that relate specifically to the recruitment of a non-citizen for the purposes of a nomination under subsection 140GB(1) of the Act; and

    (e)…

    (f)....

    (3)The criteria that must be satisfied for the Minister to approve an application by a person (the applicant) for approval as a sponsor mentioned in any of regulations 2.59 to 2.60M include a criterion that the Minister is satisfied that:

    (a)the applicant has not recovered from another person some or all of the costs, including migration agent costs:

    (i)     associated with the person becoming an approved sponsor; or

    (ii)    that relate specifically to the recruitment of a non-citizen for the purposes of a nomination under subsection 140GB(1) of the Act; and

    (b)the applicant has not sought to recover from another person some or all of the costs, including migration agent costs:

    (i)     associated with the person becoming an approved sponsor; or

    (ii)    that relate specifically to the recruitment of a non-citizen for the purposes of a nomination under subsection 140GB(1) of the Act; and

    (c)…

    (d)…

    (4)However, the Minister may disregard a criterion referred to in subregulation (2) or (3) if the Minister considers it reasonable to do so.