1614729 (Migration)

[2016] AATA 4787

1614729 (Migration) [2016] AATA 4787 (7 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Stage Productions Pty Ltd

CASE NUMBER:  1614729

DIBP REFERENCE(S):  BCC2016/1484781

MEMBER:Glen Cranwell

DATE:7 December 2016

PLACE OF DECISION:  Brisbane

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 07 December 2016 at 3:16pm

CATCHWORDS

Migration – Standard business sponsor – Lawfully operating business

LEGISLATION

Migration Act 1958, s 140E

Migration Regulations 1994, r 2.61, r 2.59(c), r 2.60S

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 26 August 2016 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 18 April 2016. 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. 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

4. 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).

   Process for application

5. 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.

6. From the documents on the Departmental file the Tribunal is satisfied that the applicant to made the application for approval in accordance with the approved form and paid the prescribed fee.

7. Given the above finding, the requirement in r.2.59(a) is met.

   Not an existing sponsor

8. Regulation 2.59(b) requires that the applicant is not a standard business sponsor.

9. The Tribunal is satisfied that the applicant is not currently approved as a sponsor.

10. The requirement in r.2.59(b) is therefore met.

    Lawfully operating business

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

12. The Tribunal has been provided with accounts, payslips, BAS and ASIC extracts which all show that the applicant is lawfully operating a business in Australia.  The Tribunal considers this to be ample evidence of the lawful operation of the applicant’s business.

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

    Training benchmarks

14. 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.

15. 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.

16. The payroll of the business for the period 1 January 2016 to 30 November 2016 is $48,522.  The applicant claims to have spent $9,438 on training, but it is apparent from the breakdown of transactions that many of these expenses do not fall within the Training Benchmarks.  However, the financial training provided to Darren Teague and Emily Budden on 31 October 2016 alone, totalling $540, is in itself greater than 1% of the applicant’s payroll for the relevant period.

17. On the basis of this information, the Tribunal is satisfied the applicant meets Training Benchmark B.

18. 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

19. 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.

20. The sponsorship application form contains the relevant attestation.

21. Therefore the requirement in r.2.59(f) is met.

    Adverse information

22. 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. For the purpose of this regulation, ‘associated with’ and ‘adverse information’ and are defined in r.2.57(2) and (3) respectively.

23. There is no adverse information before the Tribunal in relation to the applicant or an associate and the applicant confirmed at the hearing that there was no such information.

24. Therefore the requirement in r.2.59(g) is met.

    Offshore business

25. 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.

26. As the applicant is applying for sponsorship on the basis of a business it operates in Australia, the requirement does not apply.

    Number of nominees

27. 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.

28. 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.

29. The sponsorship application form indicates that the applicant proposes to nominate 2 foreign nationals in the business.   The Tribunal considers the number proposed by the applicant is reasonable and therefore the requirement in r.2.59(i) is met.

    Training requirements

30. 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.

31. As the applicant has not previously been a standard business sponsor, the requirement does not apply.

    Additional criteria

32. 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. 

33. 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)

34. 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)

35. These requirements may however be disregarded if the Tribunal considers it reasonable to do so: r.2.60S(4).

36. There is nothing before the Tribunal which raises concerns in relation to whether the applicant has taken or sought to take any action as set out above in the previous two paragraphs, and the Tribunal is satisfied that the additional criteria in r.2.60S are met.

37. 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. The Tribunal finds that the term of approval as a standard business sponsor is 3 years.

    DECISION

38. 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.

    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.