1600006 (Migration)

[2016] AATA 4223

1600006 (Migration) [2016] AATA 4223 (1 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  AUSTOM ELEMENTS PTY LTD

CASE NUMBER:  1600006

DIBP REFERENCE(S):  BCC2015/3582918

MEMBER:Glen Cranwell

DATE:1 August 2016

PLACE OF DECISION:  Brisbane

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

Statement made on 01 August 2016 at 12:42pm

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 11 December 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 30 November 2015. The delegate decided not to approve the application on the basis that the applicant did not satisfy r.2.59(c) of the Migration Regulations 1994 (the Regulations).

3. Mr Eugene Luk appeared on behalf of the applicant before the Tribunal by telephone on 27 July 2016 to give evidence and present arguments. 

4. The applicant was represented in relation to the review by its registered migration agent.  The representative did not attend the hearing.

5. 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

6. 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).

   Lawfully operating business

7. Regulation 2.59(c) requires that the applicant is lawfully operating a business either in or outside Australia.

8. The applicant lodged the sponsorship application without any supporting documents.  In those circumstances, the delegate was not satisfied that the applicant was lawfully operating a business.

9. The applicant did not lodge any documents prior to the hearing, notwithstanding that the matter had been before the Tribunal for over 7 months and the hearing invitation had requested documents be provided by 20 July 2016.  The Tribunal permitted the applicant until 9 am on 1 August 2016 to provide any supporting documents.

10. The applicant provided a number of documents, including BAS, bank and financial statements.  In those circumstances, the Tribunal is satisfied that the applicant is lawfully operating a business in Australia.

11. Therefore the requirement in r.2.59(c) is met.

    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.

13. The evidence before the Tribunal is that it has been trading in Australia for more than 12 months.  Therefore, the applicant must meet the requirements of Training Benchmark A or Training Benchmark B as specified in IMMI 13/030. Under Training Benchmark A, the applicant is required to demonstrate recent expenditure, by the business, to the equivalent of at least 2% of the payroll of the business, in payments allocated to an industry-training fund that operates in the same industry as the business. To satisfy Training Benchmark B an applicant must show 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.

14. The Tribunal carefully explained the requirements of the training benchmarks at the hearing.  The Tribunal emphasised that it would need to be provided with both the payroll figures of the business, as well as the expenditure on training or payments to an industry-training fund so that the Tribunal could calculate the relevant percentages for the periods provided.  The Tribunal even gave the applicant examples of the training expenditure that would be required for particular payroll figures, which is a very straightforward calculation.

15. After the hearing, the applicant provided financial statements for financial year 2014/2015, showing wage expenditure of $108,160.  The applicant also provided a “payroll activity [summary]” for financial year 2015/2016, showing wage expenditure of $87,676.

16. However, no documentation was provided showing the training expenses (if any) for either financial year.  Without figures for the training expenses, the Tribunal is unable to calculate the relevant percentages for the purposes of the training benchmarks.  In these circumstances, the Tribunal is unable to be satisfied that the applicant meets the training benchmarks.

17. 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.

18. 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

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

    Glen Cranwell
    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:

    (i)   the applicant has attested, in writing, that the applicant has a strong record of, or a demonstrated commitment to, employing local labour; and

    (ii)  the applicant has declared, in writing, that the applicant will not engage in discriminatory recruitment 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.