Campanula Pty Ltd (Migration)

[2022] AATA 4489

Campanula Pty Ltd (Migration) [2022] AATA 4489 (19 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Campanula Pty Ltd

REPRESENTATIVE:  Ms Preeti Puri (MARN: 0960289)

CASE NUMBER:  1923249

MEMBER:Michelle East

DATE:19 October 2022

PLACE OF DECISION:  Perth

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

Statement made on 19 October 2022 at 3:35pm

CATCHWORDS  
MIGRATION – Employer Nomination – approval as a standard business sponsor – lawfully operating business – lack of income reporting to the ATO – wages and other payments – no response to s 359(2) invitation – decision under review affirmed 

LEGISLATION 
Migration Act 1958 (Cth), ss 140E, 359C, 360, 363A 
Migration Regulations 1994 (Cth), rr 2.59, 2.61 

CASES 
Hasran v MIAC [2010] FCAFC 40

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 Home Affairs on 1 August 2019 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 (Cth) (the Act) and reg 2.61 of the Regulations on 8 February 2018. The delegate decided not to approve the application on the basis that the applicant did not satisfy reg 2.59(c) of the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied there was sufficient evidence demonstrating that the applicant’s business was lawfully operating in Australia.

3. The applicant was represented in relation to the review.

4. On 12 August 2022, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act. The Tribunal’s letter advised that the applicant was required to meet the criteria r 2.59 of the Regulations as required by s140E(1) and (2) of the Act.

5. The invitation was sent to the applicant’s representative as stated on the application for review. The applicant was advised that if the information was not provided in writing by 26 August 2022 or the applicant had not made a request for an extension of time in which to provide information, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. The applicant has not provided the information within the time period given, or at all. In these circumstances, s.359C applies and pursuant to s.360(3) of the Act the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

7. The Tribunal has also considered whether it should adjourn the review under subsection 363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application.

8. The Tribunal considered whether, in the circumstances of this case, the evidence that the applicant meets all of the requirements of r.2.59 is likely to be forthcoming, whether the applicant had a fair opportunity to provide the relevant information or documents already and the significance of the information or documents to the applicant.

9. The Tribunal has had regard to the fact that the sponsorship application was refused by the Department on 1 August 2019. The applicant submitted a copy of the primary decision record with the review application.

10. With its acknowledgement letter, the Tribunal invited the applicant to provide material or written arguments in support of the review application. The applicant has not done so.

11. The Tribunal wrote to the applicant under subsection 359(2) of the Act inviting the applicant to provide material or written arguments in support of the review application. The applicant has not done so.

12. In the circumstances, the Tribunal considers the applicant has had sufficient time in which to address the central issues arising in the application for review. Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further. The Tribunal has determined to make a decision on the review without taking any further action to obtain the information in accordance with section 359C of the Act.

13. 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

14. 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 reg 2.59 and the additional criteria in reg 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

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

16. As noted in the delegate’s decision, there were concerns that the applicant was not accurately reporting their income and had outstanding debts to the Australian Taxation Office.  Based on their lack of income reporting to the ATO, doubts were raised about their ability to honour their sponsorship obligations.

17. For the January – March 2019 quarter, wages and other payments were reported at zero.  The applicant’s representative provided a submission to the Tribunal stating that the reporting of ‘zero’ was an accounting error and that due to a family tragedy, the director of the company had neglected her financial responsibilities.  A statement in support was provided by the company’s accountant, admitting their fault.

18. The Tribunal notes the new information but is also concerned that it was provided over 3 years ago.  Without any current and up to date information from the applicant, the Tribunal is simply unable to form an opinion on whether the business is still operating lawfully or at all.

19. The Tribunal is therefore not satisfied that the business is operating lawfully.

20. Given the above findings, the requirement in reg 2.59(c) is not met.

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

    Michelle East
    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 work 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 and 2.60.

    (2)The criteria that must be satisfied for the Minister to approve an application by a person (the applicant) for approval as a work sponsor mentioned in any of regulations 2.59 and 2.60 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 work 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 work 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 work sponsor mentioned in any of regulations 2.59 and 2.60 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 work 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 work 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.