1500696 (Migration)

[2016] AATA 3577

1500696 (Migration) [2016] AATA 3577 (22 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Clyne Partners Pty Ltd

CASE NUMBER:  1500696

DIBP REFERENCE(S):  BCC2014/2996883

MEMBER:Karen Synon

DATE:22 March 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 22 March 2016 at 9:55am

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 30 December 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 10 November 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 for review of the primary decision on 19 January 2015 and on the same day provided a copy of the department’s decision to the Tribunal.

4. The Tribunal wrote to the applicant on 19 January 2015 acknowledging the lodgement of the application for review.  In this letter the Tribunal advised “[i]f you wish to provide material or written arguments for us to consider, you should do so as soon as possible”.  No information has been received from the applicant since the time it lodged the application for review.

5. Relevantly on 2 March 2016 the Tribunal wrote to the applicant in accordance with s.359(2) of the Act, inviting it to provide the following information in writing:

   Information that demonstrates that your business meets ALL of the criteria in r.2.59 and r.2.60S of the Regulations, including but not limited to the criterion that the Department’s delegate found was not satisfied.

6. The invitation was sent to the applicant’s email address provided in connection with the review.  The applicant was advised that if the information was not provided in writing by 16 March 2016, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

7. The applicant has not provided the information within the prescribed period and no extension has been requested or granted.

8. In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal.  The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal is satisfied that it has communicated with the applicant via its authorised recipient at the representative’s advised email address in a prescribed manner.

9. The Tribunal has 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 evidence to support the review application.

10. In doing so the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs and Manna v Minister for Immigration and Citizenship in which 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 regarding the reasonableness of any request for an adjournment and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection where analogous issues were discussed.

11. In this case the Tribunal wrote to the applicant in accordance with s.359(2) of the Act inviting information in writing that would satisfy it that the applicant meets all of the requirements of r.2.59 however the applicant has not responded to the Tribunal’s invitation within the prescribed period.

12. Further, the Tribunal notes that the primary decision was made over 14 months ago and clearly sets out the reason why the sponsorship application was refused.  Finally, the Tribunal notes that despite the applicant advising it in a covering letter provided with the application for review that “we will provided extension (sic) information on the training within our organisation including the program of training that our visa applicant has been working under” no substantive information has been provided to the Tribunal during the more than 14 months since the review has been lodged.  In these circumstances, the Tribunal considers the applicant has had sufficient time in which to address the central issues arising in the application for review.

13. After considering the above factors and relevant judicial authority, 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 it meets meet the criteria in r.2.59 of the Regulations.

14. Accordingly the Tribunal has decided to proceed to decision without taking further steps to obtain the information or the comments.

15. For the following reasons, the Tribunal affirms the decision under review not to approve the applicant as a standard business sponsor.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue in this case is whether the applicant meets the requirements for approval 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

17. 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.

18. 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.

19. 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 in the visa application and primary decision, the Tribunal finds that ‘Clyne Partners Pty Ltd’ trading as ‘Clyne Partners Chartered Accountants’ is lawfully operating a business in Australia and has traded in Australia for more than 12 months. 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 in the absence of this the Tribunal cannot be satisfied 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, or otherwise known to the Tribunal, that the business has made any relevant contribution to any industry training fund.

22. The Tribunal notes that the primary decision records that a request was made on 1 December 2014 for the company to “provide evidence of recent expenditure demonstrating that they meet either Training Benchmark A or Training Benchmark B” but no response was received.  Nor did the applicant respond to the Tribunal’s invitation to provide the relevant information and it therefore has none of the necessary and specific information it requested being:

    Information that demonstrates that your business meets ALL of the criteria in r.2.59 and r.2.60S of the Regulations, including but not limited to the criterion that the Department’s delegate found was not satisfied.

23. Therefore, in the absence of any relevant, current information being provided as requested, the Tribunal is not satisfied that there has been expenditure identified which could be counted towards expenditure on training to the level required by the benchmark: IMMI 13/030.

24. Further, without any current information as to the applicant’s payroll and expenditure and/or its recent expenditure either by way of payments to an industry fund (Option A) or in the provision of training to employees (Option B), the Tribunal is unable to be satisfied that the applicant meets the training benchmark in IMMI 13/030.

25. It follows that the Tribunal is not satisfied that the applicant meets r.2.59(d).

26. 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.

27. For the reasons given above, 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

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

    Karen Synon
    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.