Donnybrook Berries Pty Ltd (Migration)

[2025] ARTA 293

DONNYBROOK BERRIES PTY LTD (MIGRATION) [2025] ARTA 293 (5 MARCH 2025)

DECISION AND  

REASONS FOR DECISION

Applicant:Donnybrook Berries Pty Ltd

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:  2314837

Tribunal:General Member A. Dronjic

Place:Melbourne

Date:  5 March 2025

Decision:The Tribunal confirms the decision to dismiss the application.

Statement made on 05 March 2025 at 10:19am

CATCHWORDS
MIGRATION – application for approval as a sponsor – documentary evidence ordered by tribunal not provided – application for review dismissed – application for reinstatement – obtaining historical documents took longer than anticipated – historical documents not required or ordered – possibility of applying for new sponsorship – dismissal confirmed – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140E, 328(5)
Administrative  Review Tribunal Act 1958 (Cth), ss 79(1), 100

STATEMENT OF 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 September 2023 not to approve the applicant as a sponsor under s 140E of the Migration Act 1958 (Cth) (the Act).

2. By its Direction of 21 January 2025, and pursuant to s.79(1) of the Administrative Review Act 2024 (ART Act), the Tribunal ordered the applicant to provide the following documentary evidence by 4 February 2025:

   ·Current and historical extract from the Australian Securities and Investment Commission (ASIC) that includes past and present office holders and shareholders.

   ·Financial statements for the 2023/24 financial years that include a detailed profit and loss statement and balance sheet.

   ·Australian Federal Police Certificate for Mr Pasquale Cufari.

   ·Submissions as to why criminal conviction of the business director should not be considered an adverse information and/or why is it reasonable to disregard that information.

3. The applicant has failed to do so within the time specified in the Direction and has not requested an extension of time to do so.

4. On 7 February 2025, the Tribunal dismissed the application under s 100 of the Administrative Review Tribunal Act 2024 (Cth) as the review applicant failed to comply with the Tribunal’s order of 21 January 2025.

5. The review applicant was notified of the dismissal decision and given a copy of a written statement setting out the decision, in accordance with s 368B(5). The review applicant was advised that reinstatement of the application could be sought within 28 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 28 days period would result in confirmation of the dismissal decision.

6. The review applicant applied for reinstatement of the application within 28 days after receiving notice of the decision. For the following reasons, the Tribunal did not consider it appropriate to reinstate the application.

7. In his submissions, the applicant’s representative stated that the applicant has failed to comply with the Tribunal’s order because obtaining the police clearance certificate for the director of the prospective sponsor’s business took longer than anticipated. It was submitted that:

   The tribunal previously requested specific information regarding the criminal history, events, admissions, and sentencing records of the applicant’s director. Given that these records date back more than 30 years, obtaining them required liaising with various government agencies and legal authorities. The process was more time consuming than initially anticipated due to the complexity of retrieving historical documents, particularly those held by different jurisdictions.

8. The Tribunal note that it did not order the applicant to provide information regarding the criminal history, events, admissions, and sentencing records of the applicant’s director. In its order the Tribunal requested that the applicant provide an Australian Federal Police Certificate for Mr Pasquale Cufari. This process, according to the information published on the Australian Federal Police web page, is in most cases completed within 48 hours after receiving the application.

9. With the request for reinstatement of the application, the applicant submitted ASIC extract for a different company (Donnabrook Pty Ltd) and not for the applicant (Donnybrook Berries Pty Ltd).

10. The applicant has also failed to provide financial statements for the 2023/24 financial years that include a detailed profit and loss statement and balance sheet.

11. In considering whether to confirm the decision to dismiss the application, the Tribunal considered the potential consequences for the applicant.

12. In his submissions, the applicant’s representative stated that:

    …

    ‘the applicant’s business operations will be significantly affected. Without sponsorship approval, the business will be unable to hire necessary staff, which may lead to financial instability, reputational damage, and disruption to its workforce’.

13. The Tribunal note that there is nothing to prevent the applicant to lodge new sponsorship application with the Depoartment.

14. For the above reasons, the decision to dismiss the application is confirmed. In these circumstances, the decision under review is taken to be affirmed.

    DECISION

15. The Tribunal confirms the decision to dismiss the application.

    Representative for the Applicant:           Mr Abu Siddque