ANECDOTE INTERNATIONAL PTY LTD ATF ANECDOTE INTERNATIONAL UNIT TRUST (Migration)

[2018] AATA 2319

ANECDOTE INTERNATIONAL PTY LTD ATF ANECDOTE INTERNATIONAL UNIT TRUST (Migration) [2018] AATA 2319 (5 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  ANECDOTE INTERNATIONAL PTY LTD ATF ANECDOTE INTERNATIONAL UNIT TRUST

CASE NUMBER:  1516529

DIBP REFERENCE(S):  BCC2015/2691791

MEMBER:Sheridan Lee

DATE:5 July 2018

PLACE OF DECISION:  Melbourne

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 05 July 2018 at 12:48pm

CATCHWORDS
Migration – Standard Business Sponsorship approval – Lawful business – Training benchmarks omitted – Lawfully operated business – No intention to recover costs associated with sponsorship – Practice and procedure – information provided outside the prescribed period – No extension of time – Lost right to a hearing – Decision made on review set aside

LEGISLATION
Migration Act 1958, ss 140E, 140GB, 359, 359C, 360, 363A
Migration Regulations 1994, rr 2.59, 2.60S, 2.61, 2.63, 2.72

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 13 November 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 15 September 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) because it did not submit sufficient substantive evidence of the alleged training expenditure by the business. The delegate noted that evidence of payment was not supplied for some claimed training and that other claimed training fell outside the scope of the training benchmarks. Further, the business did not include superannuation in the total payroll expenses for the purposes of calculating the training benchmark.

3. On 22 February 2017, the Tribunal wrote to the applicant via its agent at the email address provided at the time of the application for review. The letter was issued pursuant to subsection 359(2) of the Act, inviting the applicant to provide current information addressing the relevant criteria under r.2.72 of the Regulations and s.140GB of the Act. The Tribunal provided extracts of those provisions for reference.

4. The invitation requested that the information be provided by 8 March 2017, noting that an extension of time to respond could be requested prior to that date. Finally, the Tribunal advised the applicant that if the information, or a request for an extension, was not received by the due date then the entitlement to appear before the Tribunal would be lost and the Tribunal might proceed to make its decision on the available evidence without taking any further steps to obtain the requested information.

5. The applicant provided a response to the request for information on 9 March 2017, outside the prescribed period. The applicant did not request an extension of time. The Courts have confirmed that where an applicant fails to give information within the prescribed period in response to an invitation issued under s.359(2) of the Act, ss.360(3) and 363A of the Act preclude the Tribunal from offering the applicant a hearing. Accordingly, as the applicant failed to give the information requested within the prescribed period, it has lost the right to appear before the Tribunal to give evidence and present arguments relating to the review application.

6. The Tribunal acknowledges that the applicant had replied to an earlier request for information issued on 24 January 2017 pursuant to s.359(2) within the prescribed period. As a result, at that time the applicant remained entitled to appear before the Tribunal to give evidence and present arguments. Nevertheless, this does not ‘cancel out sections 359C and 360(2)(c)’ as contended by the applicant in submissions on 21 March 2017. The entitlement to appear does not continue indefinitely following an on time response. The applicant must comply with the regulatory requirements that apply throughout the merits review process.

7. Despite losing the right to appear before the Tribunal to give evidence and present arguments, for the following reasons, the Tribunal was able to find in favour of the applicant on the basis of the material before it. 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

8. 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).

   Background – Training requirement

9. At the time of application, regulations 2.59(d) and (e) contained alternative criteria relating to training requirements an applicant had to satisfy if the applicant was lawfully operating a business in Australia depending on how long the applicant had been trading. This was the determinative issue in the departmental decision.

10. On 18 March 2018, regulation 2.59 was amended and the requirements in respect of Training Benchmarks A and B were omitted. The transitional provisions to the amendment[1] provide that r.2.59(d), (e), (i) and (j) do not apply in relation to an application for approval as a standard business sponsor made, but not finally determined, before the commencement date.

    [1] contained in cl.6704 to Schedule 13 of the Regulations.

11. In this review therefore, the Tribunal is not required to have regard to the Training Benchmarks in order to determine the review application.

12. The Tribunal however must consider all the other remaining criteria for approval as a standard business sponsor set out in the Regulation 2.59.

    Process for application

13. 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.

14. A review of the Department’s file and the Tribunal file indicates the applicant has made the application in accordance with the requirements of the regulation 2.61 in the approved fashion and by payment of the authorised.

15. Given the above findings, the requirement in r.2.59 (a) are met.

    Not an existing sponsor

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

17. Departmental records show that the applicant is not a standard business sponsor, as such the requirement in r.2.59(b) is met.

    Lawfully operating business

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

19. Australian Business Register and Australian Securities Investments Commission records show that Anecdote International has been registered as an Australian Proprietary Company since 2013.  The company has provided profit and loss statements from the 2014 – 2015 financial year until the 2017 – 2018 financial year. Further, there is no evidence to indicate the applicant is not carrying on a business lawfully within Australia.

20. Given the above findings, the requirement in r.2.59(c) is met.

    Written attestation and declaration

21. 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 has declared in writing that the applicant will not engage in discriminatory recruitment practices (as defined in r.2.57(1)).

22. The applicant provided submissions, through its representative, to the Department dated 16 September 2015 in which it attested to a strong record of employing local labour and declared that it will not engage in discriminatory recruitment practices. The applicant also made the relevant attestation on the Business Sponsorship Visa application form.

23. Given the above findings, the requirement in r.2.59(f) is met.

    Adverse information

24. 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.

25. The Tribunal finds there is no evidence before the Tribunal of any adverse information known to Immigration about the applicant or a person associated with the applicant.

26. Given the above findings, the requirement in r.2.59 (g) is met.

    Offshore business

27. 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.

28. The applicant is not lawfully operating a business outside Australia and the Tribunal finds that the provisions of sub- Regulation 2.59 (h) do not apply in this case.

    Additional criteria

29. Regulation 2.60S provides for additional criteria that must be met for an applicant to be approved as a sponsor. A copy of the criteria, as relevant to this case, is attached to this decision.

30. 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; or

    ·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).

31. 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).

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

33. On the Business Sponsorship Visa application form submitted to the Department, the applicant declared that they would not take any action to transfer or recover some or all of the costs, or have another person pay some or all of the costs, associated with becoming a business sponsor. The Tribunal has before it no evidence that the applicant has taken any steps to seek recovery of costs associated with sponsorship approval or the recruitment of a person for a nomination.

34. Given the above findings, the additional criteria in r.2.60S are met.

35. 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 in accordance with r.2.63 of the Regulations is for 3 years.

    DECISION

36. 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.

    Sheridan Lee
    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

    (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.

    [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.