Harbour Lights Cafe (Migration)

[2022] AATA 578

Harbour Lights Cafe (Migration) [2022] AATA 578 (17 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Harbour Lights Cafe

REPRESENTATIVE:  Mr Jae Joon Hwang (MARN: 9905346)

CASE NUMBER:  1829364

HOME AFFAIRS REFERENCE(S):          BCC2018/3496166

MEMBER:C. Packer

DATE:17 March 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 17 March 2022 at 12:16pm

CATCHWORDS
MIGRATION – application for approval as standard business sponsor – applicant a sole trader, not an Australian organisation as defined – no response to tribunal’s invitation to provide information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140E, 359, 360(3), 363A
Migration Regulations 1994 (Cth), rr 2.60(c)(i), 2.61

CASE
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 17 September 2018 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 14 September 2018. The delegate decided not to approve the application on the basis that the applicant did not satisfy reg 2.60(c)(i) because ABN 37442133809 provided by the applicant showed Harbour Lights Café (Marino , Robert) is in fact an Individual/Sole Trader and not an ‘Australian Organisation’ as defined.

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

4. On 25 February 2022 the Tribunal wrote to the review applicant pursuant to s.359 of the Act, inviting the applicant to provide updated and current information that addressed the requirements in r.2.60. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 11 March 2022 the Tribunal may make a decision on the review without taking further steps to obtain the information, and the 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 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 to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant meets the requirements for approval as a standard business sponsor. For the application to be approved, all the requirements must be met: s 140E(1).

8. Subregulation 2.60(c) requires that the applicant is one of the categories of individual, agency or organisation outlined in that subregulation:

   Regulation 2.60 Criterion for approval as a temporary activities sponsor
   For the purposes of subsection 140E(1) of the Act, the criterion that must be satisfied for
   the Minister to approve a person (the applicant) as a temporary activities sponsor is that the
   Minister is satisfied that:
   (a) the applicant has applied for approval as a temporary activities sponsor in accordance
   with the process referred to in regulation 2.61; and
   (b) the applicant is not already a temporary activities sponsor; and
   (c) the applicant is;
   (i) an Australian organisation that is lawfully operating in Australia; or
   (ii) a government agency; or
   (iii) a foreign government agency; or
   (iv) a sporting organisation that is lawfully operating in Australia; or
   (v) a religious institution that is lawfully operating in Australia; or
   (vi) a person who is the captain or owner of a superyacht, or an organisation that operates a
   superyacht; or
   (vii) a foreign organisation that is lawfully operating in Australia; and
   (d) 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
   (e) the applicant has the capacity to comply with the sponsorship obligations applicable to a
   person who is or was a temporary activities sponsor.

   Australian organisation means a body corporate, a partnership or an unincorporated association (other than an individual or a sole trader) that is lawfully established in Australia.

9. However, on 25 February 2022 the Tribunal wrote to the applicant and invited the applicant to provide:

   ·     Information that shows you are an Australian organisation that is lawfully operating in Australia (r.2.60). An Australian organisation means a body corporate, a partnership or an unincorporated association (other than an individual or a sole trader) that is lawfully established in Australia.

10. The applicant has not provided the information within the prescribed period, no extension has been granted, and the Tribunal has decided to proceed to decision without taking further steps to obtain the information.

11. The Tribunal is not satisfied that the applicant is an Australian organisation and so r.2.60(c)(i) is not met. The applicant does not meet any other part of r.2.60(c). The Tribunal finds r.2.60 is not met.

12. 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

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

    C. Packer
    Member