1503218 (Migration)

1503218 (Migration) [2016] AATA 4208 (4 August 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Showpiece Services Pty Ltd
CASE NUMBER:  1503218
DIBP REFERENCE(S):  BCC2014/3519537
MEMBER:Dione Dimitriadis
DATE:4 August 2016
PLACE OF DECISION:  Sydney
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 04 August 2016 at 12:21pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 4 March 2015 not to approve the applicant as a standard business sponsor.
The applicant, Showpiece Services Pty Ltd, (also referred to as Show Piece Services Pty Ltd) 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 December 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 met the specified training benchmarks.
The applicant appeared before the Tribunal on 12 July 2016 to give evidence and present arguments. Mr Pablo Palenzuela, the Managing Director of the applicant, gave evidence on behalf of the applicant and stated that he was authorised to give evidence and represent the applicant at the hearing.
The applicant was represented in relation to the review by its registered migration agent.
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
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).
Process for application
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.
The Tribunal is satisfied on the basis of material in the file of the Department of Immigration and Border Protection (the Department), that the applicant made the application for approval in accordance with the approved form and paid the prescribed fee. In a letter sent by email to the representative, the Department acknowledged receipt of the application and the sponsorship application fee. Although a copy of the application for approval as a standard business sponsor was not on the Department’s file, the Tribunal wrote to the Department which provided a copy of it to the Tribunal. The Tribunal is satisfied that the requirement in r.2.59(a) is met.
Not an existing sponsor
Regulation 2.59(b) requires that the applicant is not a standard business sponsor.
The applicant gave evidence that it has not been approved as a standard business sponsor. The Department’s ICSE records confirm that the applicant is not a standard business sponsor.
Given the above findings, the requirement in r.2.59(b) is not met.
Lawfully operating business
Regulation 2.59(c) requires that the applicant is lawfully operating a business either in or outside Australia.
The applicant provided to the Department a Certificate of Registration of a Company from ASIC, a printout from the Australian Business Register, financial statements for the year ended 30 June 2013, two Business Activity Statements (for the periods 1 October 2013 to 31 December 2013 and 1 April 2014 to 30 June 2014), bank statements and a company tax return for 2012. The applicant is a proprietary company limited by shares. The day of commencement of registration of the company with ASIC was 24 January 2006. The applicant also provided further documents to the Tribunal including Business Activity Statements for the periods, 1 January 2015 to 31 March 2015, 1 April 2015 to 30 June 2015 and 1 July 2015 to 30 September 2015 and company tax return for the year ended 30 June 2014. After the hearing the applicant provided further financial documents to the Tribunal. The applicant gave evidence at the hearing that its business is commercial cleaning. They started the cleaning business in 2001 but became a proprietary limited company in 2006.
The Tribunal is satisfied based on the evidence that the applicant is lawfully operating a business in Australia. Given the above findings, the requirement in r.2.59(c) is met.
Training benchmarks
Regulations 2.59(d) and (e) contain alternative criteria relating to training requirements that an applicant must satisfy if the applicant is lawfully operating a business in Australia and 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 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).
The applicant stated in the sponsorship application that the business employed 14 Australian citizens and permanent residents. It employed 19 foreign employees including 15 overseas students and 4 other employees.
The applicant stated that the gross payroll expenditure of the business in the 12 months prior to the application was $619,734. The applicant stated that the gross expenditure on training Australian citizens and permanent residents in the 12 months prior to the application was $6,620.
Information on the Department’s file is that on 28 January 2015 the Department wrote to the applicant and requested that it provide evidence of recent expenditure to demonstrate that the applicant met either Training Benchmark A or Training Benchmark B.
In the profit and loss statement for the year ended 30 June 2013, the amount spent on wages was $619,734.71 and the amount spent on training was $72.73. In response to a request from the Department for further evidence of training, the applicant provided several receipts as follows:
·Receipt dated 12 September 2014 for $220 for construction white card course;
·Receipt dated 26 November 2014 for $110 for construction white card course;
·Receipt dated 22 December 2014 for a TAFE course for $1,220;
·Receipt dated 26 June 2014 for a TAFE course for $620;
·Netbank notification of $5,400 paid to University of Technology Sydney on 22 December 2014.
In response to a letter from the Tribunal on 22 March 2016, the applicant provided a large number of documents including the following:
oCompany tax returns for 2013 and 2014;
oBank statements;
oBusiness Activity Statements from 1 January 2015 to 31 March 2015 and 1 April 2015 to 30 June 2015;
oActivity statement from 1 July 2015 to 30 September 2015;
oFinancial statements for the year ended 30 June 2014;
oOrganisational chart;
oSuperannuation contribution summaries;
oPayroll summary for the period 1 July 2014 to 30 June 2015;
oReceipt dated 15 April 2016 for $16,258.28 from TAFE Sydney Institute, being for a 457 Temporary Business (Long Stay) visa training Benchmark A Contribution: for Asset Maintenance and Cleaning Scholarship Fund.
The Tribunal brought to the applicant's attention at the hearing that it did not have sufficient evidence before it that the payment by the business was equivalent to at least 2% of the payroll of the business. The Tribunal informed the applicant that the financial statements and tax returns relate to periods two years ago or more and whilst there were more recent Business Activity Statements (BAS), the wages and salary information in those BAS only covered periods of one month.
The applicant stated that they have to report monthly to the Australian Taxation office (ATO) for wages. The applicant can provide a schedule as to what was paid and a report from their accounting software. There are monthly reports. They can also provide BAS for the period April 2015 to April 2016. The applicant stated that they would provide BAS for the period of 12 months before the date of the payment on 15 April 2016 and a ledger of tax paid on wages covering the 12 month period before the payment to TAFE on 15 April 2016. They have to submit this every month to the ATO and it shows payroll tax.
On 22 July 2016 the Tribunal received the applicant’s ‘Payroll Employee Summary’ from 1 July 2015 to 30 June 2016. The representative stated that the expenditure for July 2016 will be approximately equal to the expenditure for July 2015. The representative stated that 2% of the payroll is less than the payment made to TAFE. The representative stated that the payroll is $785,999 and 2% of the payroll is $15,720 and the amount paid to TAFE was $16,258.28.
On 25 July 2016 the Tribunal wrote to the applicant and requested that it provide Business Activity Statements from 1 October 2015 to 30 June 2016 and a number of monthly activity statements lodged with the ATO from April 2015 to April 2016.
On 1 August 2016 the Tribunal received the following documents:
·            ATO GST Activity statement for 1 April 2015 to 30 June 2015;
·            ATO GST Activity statement for 1 July 2015 to 30 September 2015;
·            ATO GST Activity statement for 1 October 2015 to 31 December 2015;
·            ATO GST Activity statement for 1 January 2016 to 31 March 2016;
·            ATO PAYG Income Tax withholding activity statement for April 2015;
·            ATO PAYG Income Tax withholding activity statement for May 2015;
·            ATO PAYG Income Tax withholding activity statement for July 2015;
·            ATO PAYG Income Tax withholding activity statement for August 2015;
·            ATO PAYG Income Tax withholding activity statement for October 2015;
·            ATO PAYG Income Tax withholding activity statement for November 2015;
·            ATO PAYG Income Tax withholding activity statement for January 2016;
·            ATO PAYG Income Tax withholding activity statement for February 2016;
·            Business Activity Statement for 1 April 2016 to 30 June 2016.
The Department’s Policy states that to meet the requirements of Training Benchmark A, the applicant can show evidence of having made a contribution to a recognised scholarship fund that is operated by an Australian university or TAFE college. The scholarship fund should support education or training for Australian citizens or permanent residents in a course related to the business of the applicant. Whilst the Tribunal is not bound by Policy, the Tribunal is satisfied that Training Benchmark A is able to be met in this case by the applicant showing recent expenditure to the equivalent of 2% of the payroll of the business in payments allocated to TAFE for Asset Maintenance & Cleaning Scholarship Fund.
The applicant’s business is commercial cleaning. The Tribunal is satisfied that the payments allocated to an industry training fund are in the same industry as the applicant’s business. The Tribunal is satisfied that the requirements of Training Benchmark A are met. The payroll for the year 1 July 2015 to 30 June 2016 is $785,999. Two per cent of the payroll is $15,720 and the amount paid to TAFE was $16,258.28 on 16 April 2016. The Tribunal has also had regard to the recent BAS and the Activity Statements. The Tribunal is satisfied that there is recent expenditure to the equivalent of 2% of the payroll of the business in payments allocated to TAFE for Asset Maintenance & Cleaning Scholarship Fund.
The Tribunal is satisfied that the applicant is lawfully operating a business in Australia and the applicant has traded for more than 12 months. The Tribunal is satisfied that Training Benchmark A is met by the applicant showing recent expenditure to the equivalent of 2% of the payroll of the business in payments allocated to TAFE for Asset Maintenance & Cleaning Scholarship Fund.
As the applicant is required to meet r.2.59(d) and given the above findings, the requirements in r.2.59(d) are met.
Written attestations
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.
The applicant has made the relevant attestation and declaration on the sponsorship application form. Therefore the Tribunal is satisfied that the requirement in r.2.59(f) is met.
Adverse information
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 such information. The terms ‘associated with’ and ‘adverse information’ are defined in r.1.13A and 1.13B.
There is no information before the Tribunal to indicate that there is adverse information known to Immigration about the applicant or a person associated with the applicant.
Given the above findings, the requirement in r.2.59(g) is met.
Offshore business
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.
The Tribunal has found that the applicant is operating a business in Australia. The Tribunal finds that r.2.59(h) does not apply in this case.
Number of nominees
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.
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.
In the sponsorship application, the applicant stated that it intends to nominate one job position to be filled by a primary sponsored person during the lifetime of the agreement. In a letter dated 16 April 2016 to the Tribunal, the representative stated that the applicant only intends to nominate one applicant.
The Tribunal has had regard to the organisation chart and to the evidence of the applicant at the hearing. Mr Palenzuela stated that the applicant currently employs about 27 people and they have a lot of “casuals”. Some leave and some take over other’s shifts when they leave. They have quite a number of overseas students working for the applicant.
The applicant has indicated on the sponsorship form that it proposes to nominate one person during the period of its approval as a standard business sponsor. Having considered the information before it, the Tribunal is satisfied that the number proposed is reasonable.
Given the above findings, the requirement in r.2.59(i) is met.
Training requirements
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.
The applicant has not previously been a standard business sponsor. The applicant confirmed at the hearing that it has not previously been a standard business sponsor. Accordingly, the Tribunal finds that r.2.59(j) does not apply in this case.
Additional criteria
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.
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)
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).
These requirements may however be disregarded if the Tribunal considers it reasonable to do so: r.2.60S(4).
There is nothing before the Tribunal to raise concerns as to whether the applicant has taken any action, or sought to take any such action (as set out above). The Tribunal is satisfied that the additional criteria in r.2.60S are met.
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.
Section 140G(1) of the Act provides that an approval as a sponsor may be on terms specified in the approval. The terms of approval as a standard business sponsor must be of a kind prescribed by the Regulations. The Tribunal has had regard to r.2.63. Regulation 2.63(1) provides that a kind of term of an approval as a standard business sponsor is the duration of the approval. Regulation 2.63(2)(a) states that the duration of approval may be specified as a period of time. The Tribunal has also had regard to the guidelines in the Department’s Policy stating that in most instances standard business sponsorships should be approved for a period of five years commencing from the date of the approval. However, if the business has been established in Australia for less than 12 months prior to becoming an approved sponsor, and has not been approved as a standard business sponsor in the preceding 12 month period, then the sponsorship should be approved for a period of eighteen (18) months from the approval date. The Tribunal is not bound by the Department’s Policy but has had regard to it. The applicant has never previously been approved as a standard business sponsor. The applicant gave evidence at the hearing that they started the cleaning business in 2001 and became a proprietary limited company in 2006.
The Tribunal finds that the term of approval as a standard business sponsor is five (5) years from the date of the approval.
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.
Dione Dimitriadis
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.

[2016] AATA 4208

4 August 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction