Carmel & Co Gymnastics Pty Ltd (Migration)

[2017] AATA 284

Carmel & Co Gymnastics Pty Ltd (Migration) [2017] AATA 284 (21 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Carmel & Co Gymnastics Pty Ltd

CASE NUMBER:  1514986

DIBP REFERENCE(S):  BCC2015/2122867

MEMBER:Rania Skaros

DATE:21 February 2017

PLACE OF DECISION:  Sydney

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

Statement made on 21 February 2017 at 2:16pm

CATCHWORDS

Migration – Standard business sponsor – Training requirement – Training in benchmark A or B – Lawfully operated business in Australia 12 months or more – Payments to industry training fund – Provision of training to employees

LEGISLATION

Migration Act 1958, ss 140E, 359, 360(3), 363A

Migration Regulations 1994, rr 2.60S, 2.61, 2.59(d)

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 Immigration on 20 October 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 24 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 training requirement.

3. On 31 January 2017 the Tribunal wrote to the review applicant pursuant to s.359 of the Act, inviting the review applicant to provide information to demonstrate that it meets the requirements for approval in r.2.59 and r.2.60S of the Regulations in writing.

4. The invitation was sent to the last email address provided in connection with the review and advised that, if the information was not provided in writing by 14 February 2017 the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

5. The review applicant has not provided the information within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review 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. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.

6. 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

7. 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).

8. The delegate refused to approve the sponsorship as the delegate was not satisfied that the applicant had provided evidence to demonstrate that they meet the requirements relating to training in benchmark A or B.

   Training benchmarks

9. 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.

10. The material contained in the Department’s file, includes the ASIC Certificate of Registration which indicates the Company was registered in 2007, the 2014 financial statements and 2014 company tax return. There is no evidence before the Tribunal to suggest that the Company has ceased operating a business. The Tribunal accordingly finds that the applicant is lawfully operating a business in Australia and has traded in Australia for 12 months or more.

11. As 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 and provides for applicants to meet either training benchmark A or training benchmark B.

12. 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.

13. On review the Tribunal received a submission from Mr Andrew Blades, the authorised contact person for the applicant, stating that the Company was unable to provide the requested information to the Department by the due date because of time constraints and staff shortages. It was submitted that the business employs 20 people and that all but one are Australians. It was submitted that the business is committed to training Australian coaches within the industry. The applicant provided a number of supporting documents including payroll report for the financial year ended 30 June 2015 indicating the Company’s total wages for employees is $298,827. Also provided were three tax invoices/statements issued to the applicant from Gymnastics Australia dated between November 2014 and July 2015, totalling $6,750, which the applicant indicated was for training, and a Certificate III in Sport for Dale Watts, a coach, dated 17 February 2010.

14. As indicated above, the applicant has not responded to the Tribunal’s recent request for current information.

15. The Tribunal has considered the evidence before it but is not satisfied, for the reasons that follow, that the evidence meets the requirements. Firstly, the information regarding the applicant’s claimed expenditure on training are now more than 18 months old and in the Tribunal’s view cannot be regarded as evidence of ‘recent’ expenditure by the business. Secondly, there is no evidence that the invoices have actually been paid by the applicant. Thirdly, the invoices provided indicate that it was for camps, accommodation and clinic fee. Without further evidence regarding the nature of the training and whether the participants were Australian citizens or permanent residents, the Tribunal is unable to be satisfied that the amounts payable on the invoices can count towards training. For these reasons, the Tribunal is unable to be satisfied that there was recent expenditure by the business, to the equivalent of 1% of the business’ payroll, in the provision of training for the business’ Australian employees. The Tribunal is accordingly not satisfied that the applicant has demonstrated that they meet training benchmark B.

16. There is also no evidence before the Tribunal that there was 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. The Tribunal is accordingly not satisfied that the applicant has demonstrated that they meet training benchmark B.

17. As neither training benchmark A or B has been met, the Tribunal is not satisfied that the applicant meets r.2.59(d).

18. For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria prescribed in the Regulations to be approved as a standard business sponsor. Accordingly, the Tribunal must affirm the decision under review.

    DECISION

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

    Rania Skaros
    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.