Basilisco Antonio (Migration)

[2017] AATA 1030

Basilisco Antonio (Migration) [2017] AATA 1030 (20 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Basilisco Antonio

CASE NUMBER:  1512979

DIBP REFERENCE(S):  BCC2015/1969583

MEMBER:D. Dimitriadis

DATE:20 June 2017

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 20 June 2017 at 4:25pm

CATCHWORDS

Migration – Standard business sponsor – Training benchmarks – Training benchmark B – Recent expenditure of at least 1% of the payroll for employee training

LEGISLATION

Migration Act 1958, ss 140E, 140G(1)

Migration Regulations 1994, Schedule 2, r 2.59, r 2.60S, r 2.61, r 2.63, r 1.13A, r 1.13B

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 7 September 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 9 July 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 the delegate was not satisfied that the applicant met the specified training benchmarks.

3. The applicant appeared before the Tribunal on 6 April 2017 to give evidence and present arguments. The Tribunal also took evidence from Ms Jennifer Doust.

4. The applicant was represented in relation to the review by his registered migration agent.

5. 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

6. 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

7. 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.

8. 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 on 9 July 2015, the Department acknowledged receipt of the application and the sponsorship application fee. The Tribunal has had regard to the application for approval as a standard business sponsor on the Department’s file. The Tribunal is satisfied that the requirement in r.2.59(a) is met.

   Not an existing sponsor

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

10. The applicant gave evidence that he has not been approved as a standard business sponsor. The applicant has not previously been a standard business sponsor. The Department’s ICSE records confirm that the applicant is not a standard business sponsor.  

11. Given the above findings, the requirement in r.2.59(b) is met.

    Lawfully operating business

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

13. The applicant provided to the Department a printout from the Australian Business Register, print out from ASIC of Record of Registration for Business Name of Cosmo Hair & Beauty, photographs of the salon, financial statements for the year ended 30 June 2014 and three Business Activity Statements (for the periods 1 July 2014 to 30 September 2014, 1 October 2014 to 31 December 2014 and 1 January 2015 to 31 March 2015).

14. The applicant is a sole proprietor trading as Cosmo Hair & Beauty. The applicant has been trading since 2001. 

15. The applicant provided further documents to the Tribunal including Business Activity Statements for the periods 1 April 2015 to 30 June 2015, 1 July 2015 to 30 September 2015, 1 October 2015 to 31 December 2015, 1 January 2016 to 31 March 2016 and 1 April 2016 to 30 June 2016, and company tax return for the year ended 30 June 2014. After the hearing the applicant provided further financial documents to the Tribunal including a financial statement for the year ended 30 June 2016 and View Activity Statement for the months of July 2015, August 2015, October 2015, November 2015, January 2016, February 2016, April 2016 and May 2016.

16. The applicant gave evidence at the hearing that the business is a hair and beauty salon in Dickson. They have three apprentices. There are twelve employees as well as Ms Doust and the applicant. They have five senior hairdressers.

17. 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

18. 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.

19. 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).

20. The Tribunal is satisfied that the applicant is lawfully operating a business in Australia and has traded in Australia for 12 months or more.

21. The applicant stated in the sponsorship application that the business employed 12 Australian citizens and permanent residents. The applicant stated that the gross payroll expenditure of the business in the 12 months prior to the application was $417,600. The applicant stated that the gross expenditure on training Australian citizens and permanent residents in the 12 months prior to the application was $29,390. The representative provided a submission that the business has employed a qualified trainer and assessor, Ms Jane Maree Woodhouse, who provides training and does assessments of the apprentices.  Her qualifications are a Certificate IV in Training and Assessment. The representative enclosed a copy of this Certificate and a training plan and strategy.

22. The representative submitted that the applicant meets training Benchmark B. The representative provided a submission and stated that their training strategy is to spend at least 1% of the payroll expenditure each year for the next four years on training Australian citizens and Australian permanent residents in the premises of the business under the guidance of a trained assessor and trainer. Cosmo Hair & Beauty is an authorised RTO for hairdressing.

23. In a statement dated 4 July 2015, the applicant stated that the business has spent $26,905.59 on the training of an apprentice and $2,485.35 on training material. The applicant stated that 1% of the payroll of the business is $4,176 and the total expenditure on training ($29,390.94) is above 1% of the payroll of the business.

24. The Tribunal took detailed evidence from the applicant at the hearing about the training the business provides to the Australian employees of the business. The applicant also provided further evidence to the Tribunal after the hearing. 

25. In the financial statement for the year ended 30 June 2016, the salaries are shown as $377,001.17. The applicant also provided the View Activity Statements showing wages for July, August, October and November 2015 and January, February, April and May 2016. The applicant had also provided View Activity Statements for the periods 1 July 2015 to 30 September 2015, 1 October 2015 to 31 December 2015, 1 January 2016 to 31 March 2016 and 1 April 2016 to 30 June 2016.

26. The applicant gave evidence at the hearing that they currently employ two apprentices, Emma Constable and Bridget Magoffin, and they also have a new apprentice. The representative provided a submission after the hearing that, for the year ending 30 June 2016, the applicant employed four apprentices including Emma Constable and Bridget Magoffin. Two other apprentices were no longer employed. The combined wages of the four apprentices is $90,506.

27. The representative stated that the total expenditure on training for the year ended 30 June 2016 was $94,486 ($90,506 paid as wages to the apprentices and $3,980 paid for training to Elite Hair Training). The representative submitted that this is much above the 1% of the payroll of the business.

28. The representative also stated that the business has employed Ms Jane Clark (neé Woodhouse) from August 2008 and they provided the letter of employment confirmation and her PAYG payment summary for the year 2016. The representative stated that the business has a structured training program. A key part of the system is a documented on the job training program developed by Elite Hair Education (formerly known as Essential Hair Education) which mirrors the National Training Package.

29. The applicant provided PAYG payment summaries for four apprentices for the financial year ended 30 June 2016. The applicant has provided apprenticeship training contracts for Emma Constable and Bridget Magoffin. The wages paid to Emma Constable for the period 1 July 2015 to 30 June 2016 were $25,593. The wages paid to Bridget Magoffin for the period 1 July 2015 to 30 June 2016 were $29,070. The applicant provided the Queensland birth certificate for Bridget Magoffin and the Australian passport of Emma Constable.

30. Recent expenditure on training for two apprentices, Bridget Magoffin and Emma Constable, amounts to $54,663. This is well above the 1% of the payroll for the year ended 30 June 2016. The payroll for the year ended 30 June 2016 as shown in the financial statement is $377,001.17 and 1% of the payroll is $3,770.01. 

31. The Tribunal is satisfied that there is 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. Legislative Instrument IMMI 13/030 states that expenditure that can count towards this benchmark includes employment of apprentices, trainees or recent graduates on an ongoing basis in numbers proportionate to the size of the business.

32. The Tribunal has had regard to the evidence and is satisfied that training by the business has been, and continues to be, provided to employees who are Australian citizens and Australian permanent residents and is related to the purpose of the business of a hair and beauty salon.

33. 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 B is met by the applicant.  (Although there is evidence of other training provided by the applicant to meet Benchmark B, it is unnecessary for the Tribunal to consider the cost of this other training as the applicant has already met Training Benchmark B.)

34. 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 attestation and declaration

35. 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)).

36. 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

37. 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.

38. 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.

39. Therefore the Tribunal is satisfied that the requirement in r.2.59(f) is met.

    Offshore business

40. 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.

41. 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

42. 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.

43. 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.

44. In the sponsorship application, the applicant stated that he intends to nominate two job positions to be filled by primary sponsored persons during the lifetime of the agreement.  

45. The applicant provided to the Tribunal a list of employees of the business and this shows that the applicant currently employs 16 people and 90% of the employees are Australian. 

46. The Tribunal has had regard to the evidence of the applicant at the hearing and the list showing 16 employees of the applicant. The applicant has indicated on the sponsorship form that he proposes to nominate two persons 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. 

47. Given the above findings, the requirement in r.2.59(i) is met.

    Training requirements

48. 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.

49. The applicant confirmed at the hearing that he 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

50. 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.

51. 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)

52. 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)

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

54. 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.

55. 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.

56. 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 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 the business has been trading since 2001.

57. The Tribunal finds that the term of approval as a standard business sponsor is three (3) years from the date of the approval.

    DECISION

58. 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.

    D. 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:

    (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.