1420637 (Migration)

[2016] AATA 3402

1420637 (Migration) [2016] AATA 3402 (18 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  J Lauments & M Mark

CASE NUMBER:  1420637

DIBP REFERENCE(S):  BCC2014/2073043

MEMBER:Antonio Dronjic

DATE:18 February 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 18 February 2016 at 11:56am

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 26 November 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 22 August 2014. The delegate decided not to approve the application on the basis that the applicant did not satisfy r.2.59(d) of the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant meet the benchmarks for the training of Australian citizens and Australian permanent residents specified in the relevant instrument.

3. The applicant applied to the Tribunal on 17 December 2014 for review of the delegate’s decision. With the review application, the applicant’s representative submitted a copy of the primary decision record, according to which, on 20 September 2014 and 23 October 2014, the applicant was invited to provide evidence demonstrating that the applicant meets training benchmarks. As the applicant failed to do so, the delegate refused the application on 26 November 2014. 

4. On 17 December 2014 the Tribunal acknowledged the receipt of the application and invited the applicant to provide further documents in support of the application as soon as possible.

5. On 18 January 2016, the Tribunal wrote to the review applicant pursuant to s.359(2) of the Act. The Tribunal letter advised that the applicant was required to meet the criteria in r.2.59 of the Regulations. The letter included the text of r.2.59 and IMMI 13/030, which set out the training benchmarks for Australian citizens and permanent residents that a business which had been trading in Australia for more than 12 months must meet in order to satisfy r.2.59 (d).The letter invited the applicant to provide information that the applicant would rely on to demonstrate that the applicant meets all of the requirements of r.2.59. 

6. The invitation was sent to the review applicant’s address provided in connection with the review and advised that, if the information was not provided in writing by 1 February 2016, or the applicant had not made a request for an extension of time in which to provide information, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

7. On 1 February 2016 the applicant’s representative advised the tribunal that she is no longer acting on behalf of the applicant. On the same day, a copy of the Tribunal letter of 18 January 2016 was forwarded to the applicant.

8. On 1 February 2016 the applicant requested and the tribunal granted an extension of time to provide requested information until 16 February 2016.

9. As the applicant failed to give the information requested before the time for giving it has passed, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if review applicants have no entitlement to a hearing, the Tribunal has no power to permit them to appear: Hasran v MIAC [2010] FCAFC 40.

10. The Tribunal has also considered whether it should adjourn the review under subsection 363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application.

11. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li[3] regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[4] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[5] where analogous issues were discussed.

    [1] [2002] FCA 617

    [2] [2012] FMCA 28

    [3] [2013] HCA 18 (8 May 2013)

    [4] [2014] FCAFC 1 (4 February 2014)

    [5] [2014] FCA 915 (28 August 2014)

12. In this case the Tribunal wrote to the applicant under subsection 359(2) of the Act inviting it to provide information in writing that would confirm that the applicant meets the requirements of r.2.59. The Tribunal further notes that the applicant has had the benefit of representation from a registered migration agent to assist with the review application. Yet, neither the applicant nor its representative provided the requested information within the prescribed periods set for this purpose.

13. The Tribunal further notes that the primary decision record was made by the delegate on 26 November 2014 and that the applicant has been aware of the reasons for refusal of sponsorship application for more than 14 months.

14. According to the primary decision letter, the applicant was invited to provide evidence demonstrating that the applicant meets training benchmarks as early as in September and October 2014.

15. In the circumstances, the Tribunal considers the applicant have had sufficient time in which to address the central issues arising in the application for review. Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that the applicant meets meet the criteria in r.2.59 of the Regulations. 

16. 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

17. 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

18. 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.

19. 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).

20. Based on the evidence before it, the Tribunal the Tribunal finds that the J Lauments & M Mark was active from 21 September 2012. According to the primary decision record provided by the applicant with the review application, the business started operating in October 2013 and has been trading for more than 12 months at the time of application. Accordingly, the applicant is required to meet r.2.59(d).

21. The applicant has not provided evidence of expenditure on training to employees of the business and the Tribunal does not accept that there has been 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.  Neither has it been submitted, nor is it otherwise known to the Tribunal, that the business has made any relevant contribution to any industry training fund.  Thus, in the view of the Tribunal, there has been no expenditure identified which could be counted towards expenditure on training to the level required by the benchmark: IMMI 13/030. 

22. On the evidence before it, the Tribunal is not satisfied that the business has made any recent expenditure either by way of payments to an industry fund (Option A) or in the provision of training to employees (Option B). On the evidence before it, the Tribunal is not satisfied that the applicant meets the training benchmark in IMMI 13/030. The Tribunal, therefore, is not satisfied that the applicant meets r.2.59(d).

23. As the applicant does not meet r.2.59(d), an essential criterion for approval as a standard business sponsor, it is not necessary, in the circumstances, for the Tribunal to determine whether it meets the other criteria set out in r.2.59. Accordingly, the Tribunal must affirm the decision under review.

    DECISION

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

    Antonio Dronjic
    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.