Careers Zodiac Pty Ltd (Migration)

[2024] AATA 2822

Careers Zodiac Pty Ltd (Migration) [2024] AATA 2822 (2 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Careers Zodiac Pty Ltd

CASE NUMBER:  2302081

HOME AFFAIRS REFERENCE(S):          BCC2022/5437213

MEMBER:Mary Sheargold

DATE:2 August 2024

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 temporary activities sponsor.

Statement made on 02 August 2024 at 11:30am

CATCHWORDS
MIGRATION – application for approval as temporary activities sponsor – adverse information – partner’s previous business interests – standard business sponsorship of partner’s company cancelled – administrative step after company dissolved – no notification to department – passage of time and strong business plan – reasonable to disregard information – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 140E
Migration Regulations 1994 (Cth), rr 1.13A(2), 1.13B(1)(b), 2.60(d), 2.60S, 2.61

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 8 February 2023 not to approve the applicant as a temporary activities sponsor.

2. The applicant applied for approval as a temporary activities sponsor under s 140E of the Migration Act 1958 (Cth) (the Act) and reg 2.61 of the Migration Regulations 1994 (Cth) (the Regulations) on 22 April 2021. The delegate decided not to approve the application on the basis that the applicant did not satisfy reg 2.60(d) of the Migration Regulations 1994 (Cth) (the Regulations) because there was adverse information known to Immigration about a person associated with the applicant, and that it was not reasonable to disregard that information.

3. Ms Deepika Kamdar, the sole director of Careers Zodiac Pty Ltd (the applicant) appeared before the Tribunal by MS Teams video link on 30 July 2024 to give evidence and present arguments. The Tribunal also received oral evidence from her partner, Mr Shivam Joshi.

4. Initially, the applicant was represented in relation to the review by its registered migration agent.  However, the migration agent advised the Tribunal on 30 July 2024 that she was no longer a registered migration agent, and Ms Kamdar withdrew authorisation for her to continue as an authorised recipient of information relating to this application shortly after the conclusion of the Tribunal hearing.

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 temporary activities sponsor.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant meets the requirements for approval as a temporary activities sponsor in accordance with the criteria in reg 2.60 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).

7. On 13 April 2023, the applicant’s former representative provided the Tribunal with a detailed submission and annexures relating to the question of whether it was reasonable to disregard adverse information relating to Mr Shivam Joshi’s previous business interests.  She also supplied the Tribunal with copies of the applicant’s business registration documents, extracts from the Australian Securities and Investments Commission relating to the applicant’s business, a letter from the applicant’s accountant, a business plan for the applicant’s business, and copies of Mr Joshi’s and Ms Kamdar’s identity documents.

8. On 28 July 2023, Ms Kamdar provided the Tribunal with a statutory declaration and request to expedite its decision for this application. 

9. In reaching its findings, the Tribunal has considered all of these documents, as well as the documents contained in the Department’s file.

   Process for application

10. Regulation 2.60(a) requires that the applicant has applied for approval as a standard business sponsor in accordance with the process set out in reg 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.

11. The Tribunal has considered the documents on the Departmental file and the submissions made by the applicant recently and notes that the application has been made in accordance with the approved form and made using the internet, and that the acknowledgement of application letter from the Department to the applicant states that the prescribed fee has been paid.

12. Given the above findings, the requirement in reg 2.60(a) is met.

    Already a sponsor

13. There is no evidence before the Tribunal to suggest that the applicant is already a temporary activities sponsor.  At the hearing, Ms Kamdar confirmed that this is the second application that the applicant has made for sponsorship approval; the first was refused on the same grounds regarding adverse information.  As the applicant is not already a temporary activities sponsor, the Tribunal is satisfied that the requirement in r.260(b) is met.

    Lawfully operating in Australia

14. The applicant has provided ASIC documents, business registration documents, business plan, and a letter from its accountant demonstrating that it is lawfully operating a business in Australia known as Out of the Box Co.  At the hearing, Ms Kamdar and Mr Joshi gave detailed evidence regarding the current operations and scope for expanding the business once it attains approval as a temporary activities sponsor.

15. Based on this information, the Tribunal is satisfied that the applicant meets the requirement in r.2.60(c)(i).

    Adverse information known to Immigration

16. Regulation 2.60(d)(i) 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 ‘adverse information’ and ‘associated with’ are defined in regs 1.13A and 1.13B.

17. A non-exhaustive definition of ‘adverse information’ is set out in r.1.13A(2) as including information that a person has been the subject of administrative action (including being issued with a warning) for a possible contravention of a law of the Commonwealth, a State or Territory, by a Department or regulatory authority that administers or enforces the law.  The term ‘associated with’ in r.1.13B(1)(b) states that 2 persons are associated with each other if one is or was a consultant, adviser, partner, representative on retainer, officer, employer, employee, or member of the other.

18. Ms Kamdar and Mr Joshi both accept that Mr Joshi’s former company, Australian Skill Programs Pty Ltd, had its standard business sponsorship cancelled on 26 April 2019.  This was an administrative step taken by Australian Border Force after Mr Joshi dissolved the company but did not notify the Department.  Ms Kamdar and Mr Joshi both accept that this fact, although occurring with no malice intended on Mr Joshi’s part, constitutes ‘adverse information’ for the purposes of r. 2.60(d)(i).  Therefore, the Tribunal must determine whether it is reasonable to disregard this information.

19. In this case, Mr Joshi elected to wind up a business that he was operating in 2017 due to a combination of factors including his ex-wife’s unilateral decision to relocate to India with the couple’s 2 children.  Mr Joshi had come to Victoria after running a number of successful businesses in Queensland following the breakdown of his marriage, and opened a restaurant business in Ballarat using this company vehicle.  However, the business was not viable due to a number of factors including local government roadblocks, and Mr Joshi made a decision to cut his losses and wind up the company.

20. Mr Joshi accepts that some time after his company was wound up, the Department cancelled an existing standard business sponsorship.  This was an administrative action, undertaken as the continuation of the standard business sponsorship approval was not legal in circumstances where the sponsor had ceased to exist.  Mr Joshi denies that he told the Department that his business was insolvent.  There is no evidence that Australian Skill Programs Pty Ltd ever entered voluntary administration nor was it subject to any insolvency action in the courts of Victoria.

21. After commencing a new relationship with Ms Kamdar, whom he had been friends with for many years, the couple travelled to India in late 2019 for a small marriage ritual attended by their family and friends.  They have held off formalising their marriage in Australia until such time as this application is resolved and their business in Australia is stabilised.  Ms Kamdar was frank in her admissions regarding her hopes to have a proper wedding celebration and noted her despair in her inability to start a family given the significant stress the couple has been under awaiting the outcome of this application.

22. Mr Joshi established Careers Zodiac Pty Ltd and duly applied for approval as a temporary activities sponsor, but the application was refused because of the adverse information relating to the cancellation of the SBS approval for his former company.  Ms Kamdar and Mr Joshi gave evidence at the hearing that their motive in changing directorship of the company from Mr Joshi to Ms Kamdar was not to attempt to circumvent the adverse information finding occurring again, but rather because Ms Kamdar was the person who was truly running the business, and who was more mentally stable; Mr Joshi had continued to struggle with his mental health after his children returned to India. 

23. Mr Joshi explained that although he has visited his children once since they left, the process for accessing them includes an application to the local court each time he returns to India where approval must be granted before he can see them.  He stated that he did not seek to exercise his rights to have his children returned to their Australian home under the Hague Convention not because of the cost but because he did not wish to inflict trauma on them that would likely follow if armed police had turned up to raid their home, remove them to the Australian embassy in Delhi via probable stays in local police custody, and forcibly return them to Australia.  He is clearly deeply affected by his children being removed from him.

24. The Tribunal accepts Ms Kamdar’s evidence that she was better placed to manage the day to day operations of their business at the time they changed the company structure and accepts that there were no mala fides in their actions.

25. The Tribunal is cognisant that the adverse information relating to Mr Joshi is over 5 years old, and also notes that it arose not as a result of malicious wrongdoing, but rather Mr Joshi’s oversight in contacting the Department to advise that he had ceased trading under Australian Skill Programs Pty Ltd and had decided to dissolve the company.  The evidence available at review points to a couple who are law abiding, hard working business people who have a strong plan to develop training and skills for overseas workers through formal training in the Australian hospitality sector.

26. Based on all the evidence available at review, the Tribunal concludes that it is reasonable to disregard the adverse information known to Immigration regarding Australian Skills Program Pty Ltd and its director Shivam Joshi, and the applicant satisfies r.2.60(d)(ii).

27. Given the above findings, the requirement in reg 2.60(d) is met.

    Capacity to comply with sponsorship obligations

28. Ms Kamdar has attested during the hearing that the applicant has the capacity to comply with any sponsorship obligations applicable to it, and noted that at all times, both she and Mr Joshi have conducted their businesses in line with all Australian laws.  There is no information before the Tribunal to suggest that the applicant does not have the capacity to comply with sponsorship obligations that may be imposed.

29. Therefore, the Tribunal is satisfied that the applicant meets the requirement in r.2.60(e).

    Additional criteria

30. 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.

31. Broadly speaking, to meet reg 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; 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: reg 2.60S(2).

32. 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, or costs associated with the nomination itself: reg 2.60S(3).

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

34. The evidence before the Tribunal confirms that the applicant’s business is a going concern.  There is no evidence available to suggest that the applicant has 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, or costs associated with the nomination itself. All the evidence available at review suggests that the applicant has borne and will continue to bear such costs itself.

35. Given the above findings, the additional criteria in reg 2.60S are met.

36. 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 temporary activities sponsor.

    DECISION

37. The Tribunal sets aside the decision not to approve the application and substitutes a decision that the applicant is approved as a temporary activities sponsor.

    Mary Sheargold
    Member