GS Supplies Pty Ltd (Migration)

[2023] AATA 2080

GS Supplies Pty Ltd (Migration) [2023] AATA 2080 (5 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  GS Supplies Pty Ltd

CASE NUMBER:  2002153

HOME AFFAIRS REFERENCE(S):          BCC2019/6702461

MEMBER:Katie Malyon

DATE:5 July 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to approve the applicant as a temporary activities sponsor.

Statement made on 05 July 2023 at 1:27 pm

CATCHWORDS
MIGRATION – application for approval as temporary activities sponsor – capacity to comply with obligations – no response to tribunal’s invitation to provide information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140E, 359(2), 359C, 360(3), 363(1)(b),
Migration Regulations 1994 (Cth), rr 2.60(e), 2.60S

CASES
Hasran v MIAC [2010] FCAFC 40
Huo v MIMA [2002] FCA 617
Manna v MIAC [2012] FMCA 28

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 15 January 2020 not to approve the applicant as a sponsor under s 140E of the Migration Act 1958 (Cth) (the Act).

2. The applicant, GS Supplies Pty Ltd T/A Greensafe Cleaning Supplies ABN 58 158 038 316 (the Company), applied for approval as a temporary activities sponsor on 16 December 2019. The delegate decided not to approve the application on the basis that the Company did not satisfy reg 2.60(e) of the Migration Regulations 1994 (the Regulations) as there was insufficient information provided to support a conclusion that the Company had the capacity to comply with the sponsorship obligations applicable to a person who is or was a temporary activities sponsor.

   The Tribunal’s 359(2) letter

3. On 19 June 2023, the Tribunal wrote to the Company pursuant to s 359(2) of the Act and invited the Company to provide current and updated information which demonstrates that it meets all of the requirements for approval of the sponsorship application, including information to address the delegate’s reasons for refusing the application. The Tribunal informed the Company that its role in the context of the review application is to consider whether the Company meets all of the criteria in reg 2.60 and reg 2.60S of the Regulations at the time the Tribunal makes its decision.

4. In its s 359(2) letter, the Tribunal advised that if information in writing was not received by the Tribunal on or before 3 July 2023 or, in the alternative, if the Company did not, on or before that date, make a request for an extension of time in which to provide the information, the Tribunal: may make a decision on the review without taking further steps to obtain the information; and, the Company would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

5. The Tribunal is satisfied that its s 359(2) invitation was properly dispatched to the email address of the Company’s representative, Mr Ken Lee. No response has been received from the Company in response to the Tribunal’s s 359(2) letter. The Company has not provided any updated and current information about its business or any evidence to satisfy the requirements of reg 2.60 and reg 2.60S of the Regulations, and nor has it sought additional time in which to do so.

6. In these circumstances, s 359C of the Act applies and, pursuant to s360(3) of the Act, the Company is not entitled to appear before the Tribunal. If a review applicant has no entitlement to a hearing, the effect of s 363A of the Act is that the Tribunal has no power to permit the applicant to appear: Hasran v MIAC [2010] FCAFC 40.

7. Although the Company has not requested this, the Tribunal has considered whether it would be appropriate to adjourn the review under s 363(1)(b) of the Act to allow the Company additional time in which to provide evidence to support this review application. In this regard, the Tribunal has considered whether, in the circumstances of this case and having regard to the recent COVID-19 pandemic, evidence that Company meets all the relevant requirements of reg 2.60 and reg 2.60S of the Regulations is likely to be forthcoming, whether the Company has had a fair opportunity to provide the information or documents already, and the significance of the information or documents to the Company. The Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes.

   [1] [2002] FCA 617.

   [2] [2012] FMCA 28.

8. As noted above, the Tribunal wrote to the Company under s 359(2) of the Act inviting it to provide information that it meets the requirements in reg 2.60 and reg 2.60S of the Regulations. The Company has failed to provide any of the requested information within the prescribed period set for this purpose, or seek additional time in which to do so.

9. In the circumstances of this case, the Tribunal considers that the Company has had sufficient time to provide the requested information and thereby address all of the issues arising on review. Accordingly, the Tribunal has decided not to exercise its discretion under s 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 s 359C of the Act.

10. For the following reasons, the Tribunal has concluded that the decision under review must be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the Company meets the requirements for approval as a temporary activities sponsor set out in reg 2.60 and reg 2.60S of the Regulations. As noted above, for the application to be approved all of the relevant requirements must be met: if any of the relevant requirements are not met, the sponsorship application must be refused.

    Applicant has capacity to comply with sponsorship obligations – reg 2.60(e)

12. Consistent with reg 2.60(e) of the Regulations, the decision maker must be satisfied that the applicant has the capacity to comply with the sponsorship obligations that are applicable to a person who is or was a temporary activities sponsor.

13. The sponsorship obligations applicable to a temporary activities sponsor are as follows:

    2.78     Obligation to co-operate with inspectors
    2.80     Obligation to pay travel costs to enable sponsored persons to leave Australia
    2.80A   Obligation to pay travel costs - domestic worker (executive)

    2.81Obligation to pay costs incurred by the Commonwealth to locate and remove unlawful non-citizen

    2.82     Obligation to keep records
    2.83     Obligation to provide records and information to the Minister
    2.84     Obligation to provide information to Immigration when certain events occur

    2.85Obligation to secure offer of reasonable standard of accommodation (volunteer positions only)

    2.86Obligation to ensure primary sponsored person works or participates in nominated occupation

    2.86AObligation to ensure primary sponsored person works or participates in activity in relation to which the visa is granted

    2.87Obligation not to recover, transfer or take actions that would result in another person paying for certain costs

14. As noted above, the delegate refused the Company’s sponsorship application on the basis insufficient information was provided to demonstrate that it had the capacity to comply with sponsorship obligations.  On 19 June 2023, the Tribunal wrote to the Company pursuant to
    s 359(2) of the Act inviting it to provide current and updated information to demonstrate that it meets all the relevant requirements of the Regulations. No response has been received from the Company. No evidence has been provided to demonstrate that the business has the capacity to comply with sponsorship obligations.

15. Given the above finding, the Tribunal is not satisfied that reg 2.60(e) is met. As the Tribunal is not satisfied that the requirements set out in reg 2.60 of the Regulations of are met, the Tribunal is also not satisfied that the criteria in reg 2.60S is met. Accordingly, the decision under review must be affirmed.

    DECISION

16. The Tribunal affirms the decision under review to not to approve the applicant as a temporary activities sponsor.

    Katie Malyon

    
    Member