1416442 (Migration)

[2015] AATA 3268

1416442 (Migration) [2015] AATA 3268 (30 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Gropak Aust. Pty Ltd

CASE NUMBER:  1416442

DIBP REFERENCE(S):  BCC2014/1800668

MEMBER:Kate Millar

DATE:30 July 2015

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to approve the applicant as a standard business sponsor.

Statement made on 30 July 2015 at 1:40pm

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 15 September 2014 not to approve Gropak Aust. Pty Ltd (Gropak) as a standard business sponsor.

2. Gropak 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 23 July 2014. The delegate decided not to approve the application on the basis that the applicant did not satisfy r.2.59(2)(d) of the Migration Regulations 1994 (the Regulations) it did not meet the required training benchmarks for approval as a standard business sponsor.

3. Mr Lui Donatelli, a director of Gropak appeared before the Tribunal on 18 June 2015 to give evidence and present arguments. Gropak was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.

4. For the following reasons, the Tribunal has decided to affirm the decision under review not to approve the applicant as a standard business sponsor.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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).

   Training benchmarks

6. 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.

7. 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). 

8. As Gropak has traded for more than twelve months, it must meet r.2.59(d).  This requires that it meet the training benchmarks set out on IMMI 13/030.  This has two alternative benchmarks an applicant may meet.  There is nothing before the Tribunal to suggest Gropak can meet training benchmark A, which requires a recent expenditure of 2% of the payroll of the business to an industry training fund that operates in the industry. Gropak seeks to meet training benchmark B.  This requires recent expenditure by the business to the equivalent of at least 1% of the payroll of the business in the provision of training to employees of the business.   

9. In submissions provided after the hearing, Gropak states its total payroll was $1,105,486 for the 2013/2014 financial year. It did not provide any payroll information for the 2014/2015 year.   It says that once director’s wages are removed this results in a total of $769,903.  The requirement in IMMI 13/030 is for the total payroll to be considered and the Tribunal does not consider the total payroll can include deductions according to who is paid.  It follows that to meet the training benchmark, Gropak needs to have recently expended 1% of $1,105,486, or $11,054, in the provision of training to employees of the business.  

10. Gropak relies on internal training conducted by a consultant, A.P. Fruit Consultancy.  It provided an invoice for the services of A.P Fruit Consultancy for $4,917 and a training diary for training of its staff.

11. The Tribunal accepts that the costs incurred in employing the consultant of $4,917 was a training expense that can be included in the training benchmark.

12. Gropak has also claimed the wages of its staff while they attended on the job training.  To be accepted training under IMMI 13/030, on the job training  must be structured with a timeframe and clearly identified increase in skills at each stage and demonstrating:

    ·     The learning outcomes of the employees at each stage;

    ·     How the progress of the employee will be monitored and assessed;

    ·     How the program will enhance skills;

    ·     The use of qualified trainers and set assessments; and

    ·     The number of people attending and their skill/occupation. 

13. This information was required from Gropak prior to the hearing and was explained again to Mr Donatelli at hearing, and he was given a further opportunity to provide information on how the on the job training of is employees would meet these requirements. 

14. After the hearing Gropak provided a list of employees who were employed by Gropak in 2013/2014, a list of this who of these employees are Australia permanent residents.  The submission included a statement that most training was in group sessions, and rarely conducted one on one.  It states the employees were put into groups for training.  The submission also says Mr Antonio Donatelli from Icon Financial management Pty Ltd has been conducting some external training with administration an accounts staff.  It did not provide any proof of the expenses incurred in Mr Antonio Donatelli providing training to staff. 

15. Gropak also provided a training manual for the HACCP system for Gropak and a Forklift Operations Manual. 

16. None of this information shows that Gropak meets the requirements in IMMI13/030 for on the job training, and the Tribunal is not satisfied that the wages of the employees during training can be included in Gropak’s training expenditure.

17. No other items of training expenditure were provided to the Tribunal.  The Tribunal finds Gropak has recent expenditure of $4,917 in the provision of training to its employees which is less than 1% of its payroll.  It follows that Gropak does not meet the training benchmarks in MMI13/030.  As a result it does not meet r.2.59(d).  As it does not meet one of the requirements for approval as a standard business sponsor, it is no necessary to consider the remaining requirements. 

18. As the Tribunal is not satisfied that the applicant meets the applicable criteria prescribed in the Regulations to be approved as a standard business sponsor. Accordingly, the Tribunal must affirm the decision under review.

    DECISION

19. The Tribunal affirms the decision not to approve the applicant as a standard business sponsor.

    Kate Millar
    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.

    NB:  the legislation extracted above does not include criteria directed at persons who are sponsoring a Subclass 402, 416 or 488 applicant.