1509139 (Migration)

[2016] AATA 3184

1509139 (Migration) [2016] AATA 3184 (4 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  P & S International Pty Ltd

CASE NUMBER:  1509139

DIBP REFERENCE(S):  BCC2015/1107108

MEMBER:Christopher Smolicz

DATE:4 February 2016

PLACE OF DECISION:  Adelaide

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

Statement made on 04 February 2016 at 8:47am

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 18 June 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 14 April 2015. 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).

3. On 2 February 2016 the Tribunal conducted a combined hearing with the related MRD file ref.1513237. Mr Myung Soo Shin appeared on behalf of P & S International Pty Ltd. The Tribunal also received oral evidence from Ms A Ruem Shin, the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages. The applicant was represented in relation to the review by its registered migration agent.

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).

6. The Tribunal questioned Mr Shin about the operation of the business P & S International. Mr Shin said he was the director of P & S International and the business has operated a convenience/newsagency store in Adelaide since 2010. Mr Shin said that the visa applicant was his niece and he is seeking to sponsor the visa applicant to work in the position of Retail Buyer.

7. The applicant indicated on the application form that their recent expenditure on payroll is “0” and that the business does not employ any Australian citizens or permanent residents. At the hearing Mr Shin said that the proposed nominee has been employed by the business as Retail Buyer in a part time capacity since January 2015.

8. Mr Shin submitted a BAS for the period 1 January 2015 to 31 March 2015 and a BAS for the period 1 April 2015 to 30 June 2015. According to the BAS the business paid $4,940 in wages and salary for each quarter. The Tribunal asked Mr Shin if the business had prepared a PAYG payment summary as evidence of the payment. The applicant said that no payment summary was prepared or lodged. The Tribunal also noted that according to the Profit and Loss statement for the period ended June 2014 the business did not pay any wages or salary.

9. The Tribunal noted that the applicant submitted the same BAS for the period 1 January 2015 to 31 March 2015 to the Department which disclosed nil wages and salary for the equivalent period. The Tribunal told Mr Shin that it was concerned that his evidence had changed since the Department refused the nomination and it appeared he was not complying with his taxation obligations.

10. The applicant maintained that Ms Shin commenced working for the business in January 2015 and he omitted to declare her wages in the BAS for the quarter ended March 2015 which was provided to the Department. Mr Shin said that he has since lodged a revised BAS with the ATO and declared income paid to Mrs Shin.

11. The Tribunal told Mr Shin it was concerned about why the business did not disclose Mrs Shin’s wages in the documents which were submitted to the Department. Mr Shin said that he did not have a good understanding of his taxation obligations and failed to declare Mrs Shin’s wages and rectified the issue in June 2015. The Tribunal told Mr Shin that it found his evidence surprising given that he has been operating the business since 2010. Mr Shin maintained that the business was a family operated business and did not have any employees and did not declare any payroll because it was having financial difficulties. He said the business was audited by the ATO in 2014 and he became aware of his obligation to declare wages. Mr Shin maintained that the business has now declared its payroll for the period January 2015 to 30 June 2015, namely $9,880.

    Training benchmarks

12. 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 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).

13. At the hearing, the Tribunal explained the requirements of the training benchmarks to Mr Shin. The Tribunal noted that the delegate found that the applicant provided no evidence of the payroll of the business for the 12 months prior to the lodgement of the application. The delegate found the applicant had not provided evidence to demonstrate they met either Training Benchmark A or B.  The benchmarks require either evidence of 2% of the payroll of the business paid to an industry training fund (Benchmark A) or recent expenditure equivalent to at least 2% of the payroll of the business in providing training to employees who are Australian citizens or permanent residents (Benchmark B). 

14. Mr Shin indicated that the business contributed $400 in April 2015 to a training fund. In support of this evidence the applicant relied on correspondence dated 14 April 2015 confirming the applicant contributed $400 to TAFE Queensland Gold Coast Foundation (TAFE Queensland). The letter states that TAFE Queensland has been established to accept contributions from individuals, companies and employer’s sponsors to improve:

    ·Access and support for the delivery of TAFE Queensland Gold Coast education and training

    ·Engagement with TAFE Queensland Gold Coast’s community, industries and business

    ·Delivery of scholarships for those who demonstrate excellence or hardship.

15. Mr Shin confirmed that P & S International does not employ any Australian citizens or Australian permanent residents. The Tribunal accepts that P & S International has operated in Australia for more than 12 months and does not employ any Australian citizens or Australian permanent residents. The Tribunal has assessed the business against Benchmark A.

16. There is no legal definition of ‘industry training fund’ in the Act, Regulations or IMMI 13/030.  Accordingly, the Tribunal has had regard to the Departmental policy guidelines as set out in the Procedures Advice Manual (PAM3).

17. The Department’s Procedures Advice Manual indicates that:

    Industry training funds are statutory authorities responsible for providing funding for training of eligible workers in certain industries.  These training funds generally source revenue through levies from business operating in that industry.  Industry training funds operate in a range of sectors including construction and mining but are not limited to these industries.  …..

    If there is no industry training fund operating in the same sector as the applicant for approval, the applicant can show evidence of having made a contribution to a recognised scholarship fund that supports education or training for Australian citizens or permanent residents in a university or TAFE course related to the business of the applicant.

18. The Tribunal is not bound by the Departmental guidelines.  The Tribunal also noted at the hearing that there are industry training funds operating in the same industry as the applicant’s business, for example, the Retail Traders Association which provides a range of member services including business counselling, policy development, training and education.[1] The Tribunal advised Mr Shin that there is insufficient evidence to establish that the payment of $400 by P & S International to TAFE Queensland will be allocated to the same industry as his business. The Tribunal questioned Mr Shin about the funds which were contributed to TAFE Queensland. Mr Shin said he did not know anything about TAFE Queensland and said it was recommended by his migration agent.

    Findings

    [1] >

    The Tribunal is not satisfied that TAFE Queensland constitutes an industry training fund for the purpose of IMMI13/030. The Tribunal finds that there are relevant industry training funds operating in the same industry (the retail industry) as the applicant. The Tribunal is also not satisfied that the payment of $400 to TAFE Queensland will be allocated to courses related to the business of the applicant. The Tribunal finds that applicant has not made any payments into an industry training fund which would satisfy Part A of the benchmarks. 

19. Having considered the circumstances of the applicant, the Tribunal is not satisfied that the benchmarks A or B for training are met in this case. As the applicant is required to meet r.2.59(d) and given the above findings, the requirements in r.2.59(d) are not met.

20. 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

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

    Christopher Smolicz
    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.