1502305 (Migration)

[2016] AATA 3618

1502305 (Migration) [2016] AATA 3618 (30 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Max Pracy Pty Ltd

CASE NUMBER:  1502305

DIBP REFERENCE(S):  BCC2014/3129554

MEMBER:Michael Cooke

DATE:30 March 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the applicant as a standard business sponsor.

Statement made on 30 March 2016 at 11:47am

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 6 February 2015 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 20 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 applicant did not evidence that it met training benchmarks. The applicant was represented in relation to the review by its registered migration agent.

3. 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.

ISSUE IN THE CASE

1. 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

1. 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.

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 IMMI13/030. 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).

Relevant findings and reasons, with reference to supporting evidence, including:

•          Whether the applicant is lawfully operating a business in Australia;

1. The Tribunal is satisfied that the applicant is lawfully operating a business in Australia;

•          Whether the applicant meets the benchmarks for the training of Australian citizens and Australian permanent residents specified in a written instrument.

1. The applicant’s agent has submitted evidence that the applicant has spent $2,120 on training at TAFE in payments allocated to an industry training fund that operates in the same industry as the business (T1, f.34 reverse). This indicates it meets the Training Benchmark A for the training of Australian citizens and Australian permanent residents specified in a written instrument

FINDINGS regarding criteria for approval as a standard business sponsor

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

1. The Tribunal finds that the applicant meets the criterion.

(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;

1. The Tribunal finds that the applicant meets the criterion.

(e)       and 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

1. The Tribunal finds the criterion is not applicable to the applicant.

(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:

1. employing local labour; and

2. non-discriminatory employment practices; and

12. The Tribunal finds the appropriate attestation in writing has been made (T1, f.41).       .

(g)       either:

1. there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or

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

1. The Tribunal finds that there is no evidence of adverse information before it concerning the applicant or a person associated with the applicant and the applicant does meet the criteria.

(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:

1. establish, or assist in establishing, on behalf of the applicant, a business operation in Australia with overseas connections; or

2. fulfil, or assist in fulfilling, a contractual obligation of the applicant.

1. The applicant is not lawfully operating a business outside Australia.

1. 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:

2. the proposed number is reasonable, having regard to the information provided to the Minister; or

3. 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

1. The Tribunal finds that the applicant proposes to nominate one person (the associated visa applicant Mr. Jin) is reasonable and the applicant does meet the criteria.

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

1. 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

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

1. The Tribunal finds that that the applicant has not previously been a standard business sponsor.

2. The Tribunal observes that the applicant has also submitted a Department issued Certification Form which has satisfied the Tribunal that the applicant can meet the additional criteria in reg.2.60S (T1, f.42).

3. For the reasons given above, the Tribunal is satisfied that the applicant meets the applicable criteria prescribed in the Regulations to be approved as a standard business sponsor. Accordingly, the Tribunal sets aside the decision under review and substitute a decision approving the applicant as a standard business sponsor.

DECISION

1. The Tribunal sets aside the decision under review and substitutes a decision approving the applicant as a standard business sponsor

Michael Cooke
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.