HIGHMOUNT FOODS PTY LTD (Migration)
[2021] AATA 5553
•12 November 2021
HIGHMOUNT FOODS PTY LTD (Migration) [2021] AATA 5553 (12 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: HIGHMOUNT FOODS PTY LTD
CASE NUMBER: 1902252
HOME AFFAIRS REFERENCE(S): BCC2018/3559024
MEMBER:R. Skaros
DATE:12 November 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to approve the applicant as a standard business sponsor.
Statement made on 12 November 2021 at 9:13am
CATCHWORDS
MIGRATION – sponsorship approval – Tribunal’s jurisdiction – lawful operation of business – GST registration cancelled – Strike-off Action in progress – business no longer operating – COVID-19 pandemic – intention to establish another business – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 140EMigration Regulations 1994 (Cth), rr 2.59, 2.60S, 2.61
CASES
Auservices Pty Ltd v MICMSMA [2020] FCCA 1250statement of decision and reasons
application for review
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 January 2019 not to approve the applicant as a standard business sponsor.
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 19 September 2018. The delegate decided not to approve the application on the basis that the applicant did not satisfy reg 2.59(c) of the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied that the applicant was lawfully operating a business. A copy of the delegate’s decision record was provided with the application for review.
Initially, the Tribunal formed the view that it did not have jurisdiction to conduct a review in this matter on the basis that the decision to refuse the application for approval as a standard business sponsor did not consider the criteria in r.2.59(f) of the Regulations that relate to businesses operating in Australia. Accordingly, the applicant was invited to comment on whether they had made a valid application for review. The applicant’s representative responded to the Tribunal stating that the decision record does appear to refer to the requirements for approval in Reg 2.59, including r.2.59(f), and queried whether that was sufficient to find jurisdiction.
At that time, the issue was being considered by the then Federal Circuit Court of Australia in the matter of Auservices Pty Ltd v MICMSMA [2020] FCCA 1250, accordingly, the Tribunal considered it appropriate to await the outcome of that matter. In that case, the Court considered that a literal interpretation of the provisions relating to jurisdiction would not give effect to the intent of parliament, and that the Tribunal will have jurisdiction if the business is based in Australia, notwithstanding that the matter was determined on a discrete issue in reg 2.59 and the delegate had not directly indicated that they had considered regs 2.59(f) in the decision. Given the findings of the Court, the Tribunal determined that it did have jurisdiction in this matter.
On 31 October 2019, the Tribunal invited the applicant to provide current and updated information about each for the requirements in Regs 2.59 for approval as a standard business sponsor. On 12 November 2019, the applicant provided various documents in support of the review but sought an extension of time to provide further information. The applicant was granted an extension of time, however, did not provide any further information in support of the review. Notwithstanding this, as the applicant had provided a substantive response to the request for information, the Tribunal considered that they had preserved their right to a hearing.
On 3 September 2021, the Tribunal again sought updated and current information regarding the requirements for approval in Reg 2.59. Subsequently, the Tribunal came across information obtained from the Australian Business Register and the Australian Securities Commission (ASIC) indicating that the applicant had deregistered for Goods and Services Tax and that a Strike-off Action was in progress. The adverse information, which the Tribunal considered was relevant to the issue of whether the applicant was operating a business, was particularised in a letter, dated 14 October 2021, in accordance with s.359A of the Act and the applicant was invited to comment on the unfavourable information.
On 20 October 2021, the applicant’s representative responded by email stating that the applicant was no longer operating the business. An officer of the Tribunal contacted the applicant’s representative to enquire about whether the applicant wished to withdraw the review, however, on 25 October 2021, the representative wrote to the Tribunal stating that the applicant still wished to continue with the review.
Ms Yan Ye appeared before the Tribunal on 11 November 2021 to give evidence and present arguments on behalf of the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review. The representative attended the hearing.
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
The issue in this case is whether the applicant meets the requirements for approval as a standard business sponsor in accordance with the criteria in reg 2.59 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).
By way of background, the applicant, which traded as the J&L Family Restaurant in Tamworth, was registered with ASIC on 5 August 2016. When applying for approval, the applicant provided several documents, including evidence of company and business registration, and information about the business’ annual turnover and wage expenditure.
The supporting documents also included business activity statements from 2016 until June 2018. The delegate observed that the activity statement for the June 2018 quarter indicated that the applicant owes $29,780 to the Australian Taxation Office (ATO) which the delegate considered was a significant increase from a previous quarter, which noted an amount of $15,392 owing to the ATO. The delegate also considered the 2017 financial statement but gave it little weight as it was more than 12 months old.
A further concern noted by the delegate, which is set out in the decision record, is that the applicant may be associated with J&L Family Restaurant Pty Ltd, about which ‘adverse information’ is known to Immigration.
Departmental records indicate that on 3 August 2016 J&L Family Restaurant Pty Ltd was barred and sanctioned from being an approved sponsor for a period of five years under section 140M of the Act. It was further noted that the directors of both entities have a familial relationship. Further, the business address that was noted on the application form, being Marius Street, Tamworth, is the same address as the sanctioned business operated by J&L Family Restaurant Pty Ltd. The delegate was concerned that the applicant was operating the same business that was sanctioned. The delegate considered that the applicant was established for the sole purpose of circumventing the sanction and ultimately found that the applicant was not lawfully operating a business in Australia.
The Tribunal had regard to the evidence on the Department’s file and considered that there was sufficient evidence before the delegate which suggested that the applicant was, at that time, lawfully operating a business in Australia, in that there was evidence that the applicant was registered with ASIC, had an active ABN, was registered for GST and had been lodging activity statements for the business at the end of each quarter. There was no evidence which suggested that the applicant’s operation of the business was not lawful.
The Tribunal considered that the business’ possible association with the sanctioned company, J&L Family Restaurant Pty Ltd, was relevant to the issue of whether there was ‘Adverse information’, as defined in r.1.13A, known to Immigration about the applicant or a person ‘associated with’, as defined in r.1.13B, the applicant.
In response to the request for further information, the applicant provided some supporting documents, including a declaration that there was nothing adverse known about the applicant. This raised concerns about whether the applicant may have provided information that was false or misleading about the applicant and/or associated persons. In any case, it was not ultimately necessary to consider the issues in r.2.59(g) about whether there was ‘adverse information’ known to Immigration, and whether it was reasonable to disregard the information, if it was so found, because during the processing of the review, other unfavourable information about the applicant became known to the Tribunal.
The unfavourable information related to ASIC records indicating that the applicant was the subject of a Strike-off Action and information on the Australian Business Register indicating that the applicant’s GST registration had been cancelled. In response to the invitation to comment on this information, the Tribunal received a response confirming that the applicant’s business had closed.
One of the requirements for approval as a standard business sponsor is that the applicant is lawfully operating a business, whether in or outside Australia. There is no evidence, and the applicant has not claimed that they operate any business outside Australia.
In relation to the business that the applicant operated in Australia, it appears on the applicant’s evidence that, at the time of this decision, the business is no longer operating.
At the hearing, the Tribunal discussed with Ms Ye the requirement in Reg 2.59(c) and the evidence before it which indicates that the applicant does not operate a business and therefore does not satisfy the requirement for approval as a standard business sponsor. In response, Ms Ye gave evidence that the business was a buffet restaurant that was in a service club which, due to Covid-19 restrictions, could not operate. When asked if she was able to convert the business to a take-away, she indicated that this was not possible due to the restrictions on the club, which had a membership requirement, and parking limitations.
The applicant gave evidence that she would like to establish her own restaurant business at new premises and that she intends to rehire all the previous business’ employees. The Tribunal noted that the applicant (Highmount Foods Pty Ltd) was the subject of a strike-off action and was in the process of being deregistered by ASIC, which suggests that this is not the entity that would carry on any future business she wished to establish. The applicant acknowledged that the applicant (Highmount Foods Pty Ltd) was not currently operating a business and stated that she hoped the nominee can continue working for her in the new business. She stated that there were labour shortages in Australia, and she would need workers for the new business.
The Tribunal acknowledges the matters raised by Ms Ye and accepts that, due to Covid-19, that the applicant has not been able to operate the restaurant business. However, as explained to Ms Ye at hearing, the Tribunal must consider whether the requirements for approval are met at the time of decision. The evidence before the Tribunal, which Ms Ye has confirmed, is that the applicant is not currently operating any business in Australia. The Tribunal acknowledges Ms Ye’s intention to establish another business, however, this does not appear to be a business that will be operated by the applicant as the evidence before the Tribunal indicates that the applicant, who is currently the subject of a strike-off action, is in the process of being deregistered.
Having considered all the relevant evidence before it, the Tribunal finds that, at the time of decision, the applicant is not operating a business either in or outside Australia.
Given the above findings, the requirement in reg 2.59(c) is not met.
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
The Tribunal affirms the decision not to approve the applicant as a standard business sponsor.
R. Skaros
Senior MemberATTACHMENT - 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
(c)the applicant is lawfully operating a business (whether in or outside Australia); 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 a [Subclass 457 visa] or a Subclass 482 (Temporary Skill Shortage) visa, or an applicant or a proposed applicant (the visa applicant) for a Subclass 482 (Temporary Skill Shortage) 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.
2.60S Additional criteria for all classes of work 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 and 2.60.
(2)The criteria that must be satisfied for the Minister to approve an application by a person (the applicant) for approval as a work sponsor mentioned in any of regulations 2.59 and 2.60 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 work 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 work sponsor; and
(ba)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 a nomination under subsection 140GB(1) of the Act (including a fee mentioned in subregulation 2.73(5) or (7) or 2.73A(3) or nomination training contribution charge); and
(bb)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 a nomination under subsection 140GB(1) of the Act (including a fee mentioned in subregulation 2.73(5) or (7) or 2.73A(3) or nomination training contribution charge); 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 work sponsor mentioned in any of regulations 2.59 and 2.60 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 work sponsor; or
(ia) associated with a nomination under subsection 140GB(1) of the Act (including a fee mentioned in subregulation 2.73(5) or (7) or 2.73A(3) or nomination training contribution charge); 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 work sponsor; or
(ia) associated with a nomination under subsection 140GB(1) of the Act (including a fee mentioned in subregulation 2.73(5) or (7) or 2.73A(3) or nomination training contribution charge); 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.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Statutory Construction
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Natural Justice
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