Hoang An Pty Ltd (Migration)

[2019] AATA 1289

Hoang An Pty Ltd (Migration) [2019] AATA 1289 (11 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Hoang An Pty Ltd

CASE NUMBER:  1622429

DIBP REFERENCE(S):  OPF2016/4793

MEMBER:Kate Millar

DATE:11 April 2019

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal sets aside the decision under review and substitutes a decision that a prescribed circumstance to a take action under of the Migration Act 1958 does not exist.

Statement made on 11 April 2019 at 9:11am

CATCHWORDS
MIGRATION – cancellation – sponsorship approval – compliance with sponsorship obligations – provide information to Immigration when certain events occur – no notifiable event – criteria no longer met – lawfully operating a business – change of business structure – continued operation under new structure – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 140E, 140L, 140M
Migration Regulations 1994 (Cth), rr 2.59, 2.84, 2.89, 2.91

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 to take an action under s.140M of the Migration Act 1958 (the Act) in relation to the applicant’s sponsorship.

2. The applicant was approved as a standard business sponsor on 27 June 2014. On 16 December 2016, the delegate decided to cancel the approval of the sponsor as a standard business sponsor under s.140M on the basis that it had failed to comply with its obligation to provide information to Immigration and that the application requirements are no longer met. In particular, the he delegate found the applicant’s Australian Business Number was cancelled on 1 July 2014.

3. For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision that a prescribed circumstance to take action under the Migration Act does not exist.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. Sections 140K, 140L and 140M of the Act provide for the imposition of sanctions on approved sponsors in certain circumstances. 

5. Under s.140M, if prescribed circumstances exist, the Minister (and the tribunal on review) may take one or more of the following actions:

   ·cancelling the sponsorship approval in relation to a class to which the sponsor belongs;

   ·cancelling the sponsorship approval for all classes to which the sponsor belongs;

   ·barring the sponsor for a specified period from sponsoring more people under the terms of any existing approval; and

   ·barring the sponsor for a specified period from making future applications for sponsorship approval in relation to one or more classes of sponsor.

6. For these purposes, the circumstances are prescribed in r.2.89 - r.2.94B and include circumstances in which the Minister, or tribunal on review, is satisfied there has been: a failure to satisfy a sponsorship obligation; provision of false or misleading information; sponsorship application or variation criteria no longer met; a contravention of the law; unapproved changes to a program; a failure to pay additional security; a failure to comply with certain terms of an agreement; or a failure to pay medical and hospital expenses.

7. Where a prescribed circumstance has been found to exist, the regulations prescribe criteria that must be taken into account when determining what action, if any, to take: r.2.89 – r.2.94B. These criteria, as they relevantly apply to the circumstances of this case are set out in the attachment to this decision.

   Does a circumstance for the taking of an action exist?

8. In the present case, the delegate found that the applicant had failed to comply with a sponsorship obligation and that the criteria for approval or variation of the sponsorship were no longer met.

   Failure to satisfy a sponsorship obligation: r.2.89

9. The Minister may take one or more of the actions in s.140M if satisfied the sponsor has failed to satisfy a sponsorship obligation referred to in Division 2.19 of the Regulations: r.2.89(2).

10. The delegate relied in r.2.84(3)(d) and states the applicant failed to notify the Immigration that the legal entity of the person ceases to exist.

11. The applicant provided an historical extract from the Australian Securities and Investment Commission showing the company was registered from 17 September 2012.  It has remained registered.  The director has remained the same since its registration.  I am not satisfied that at the time the delegate made the decision, or at the current time, the legal entity has ceased to exist. 

12. Accordingly the prescribed circumstance in r.2.89 does not exist for the purpose of s.140M of the Act.

    Criteria no longer met: r.2.91

13. The Minister may take one or more of the actions in s.140M if the sponsor no longer satisfies the prescribed criteria for approval of the sponsorship or for variation of the terms of the sponsorship: r.2.91(2).

14. The delegate states the applicant must meet the criteria prescribed in s.140E at the time is was approved as a sponsor.  The criteria are contained in r.2.59, and the delegate found that the applicant did not meet r.2.59(c) which states that to be approved as a sponsor, the applicant is lawfully operating a business (whether in or outside Australia).

15. The applicant is the company Hoang An Pty Ltd.  In response to the notice of intention to take action, it was explained that the structure of the business changed as a trust was established for the business.  The company is the trustee of the trust.  The company, as the trustee and legal entity controlling the trust, continued to the entity that runs the business.

16. The Australian Business Number remained the same, and a current ABN look up at shows the ABN was cancelled and reinstated on the same day on 1 July 2014.

17. The Tribunal requested and was provided a copy of the trust deed for the Hoang Khang Family Trust which shows that Hoang An Pty Ltd is the trustee of the trust.  A record of registration of the business name for the business was provided showing Hoang An Pty Ltd is the holder of the business name Mirrabooka Professional.  This all supports that the business continued to operate under a trust structure with the company continuing to be the entity operating the business

18. There is no other information before the Tribunal on which to base a finding that the applicant no longer lawfully operates a business in Australia.  It is not for the Tribunal to conduct further investigations into whether the applicant is lawfully operating a business in Australia, and it is not satisfied on the information before it that r.2.59(c) is no longer met. 

19. Accordingly, the Tribunal not satisfied that the prescribed circumstance in r.2.91 exists for the purpose of s.140M of the Act.

20. As the Tribunal finds that none of the circumstances for s.140L(1)(a) exist, it follows that the power to take an action under s.140M does not arise.

    DECISION

21. The Tribunal sets aside the decision under review and substitutes a decision a prescribed circumstance to a take action under of the Migration Act 1958 does not exist.

    Kate Millar
    Senior Member

    
    

    ATTACHMENT – Extract from the Migration Regulations 1994

    2.89   Failure to satisfy sponsorship obligation

    …

    (3) For paragraph 140L(1)(b) of the Act, the criteria that the Minister must take into account in determining what action (if any) to take under section 140M of the Act in relation to the circumstance mentioned in subregulation (2) are:

    (a)     the past and present conduct of the person in relation to Immigration; and
    (b)    the number of occasions on which the person has failed to satisfy the sponsorship obligation; and

    (c)     the nature and severity of the circumstances relating to the failure to satisfy the sponsorship obligation, including the period of time over which the failure has occurred; and

    (d)    the period of time over which the person has been an approved sponsor; and

    (e)     whether, and the extent to which, the failure to satisfy the sponsorship obligation has had a direct or indirect impact on another person; and

    (f)     whether, and the extent to which, the failure to satisfy the sponsorship obligation was intentional, reckless or inadvertent; and

    (g)    whether, and the extent to which, the person has cooperated with Immigration, including whether the person informed Immigration of the failure; and

    (h)    the steps (if any) the person has taken to rectify the failure to satisfy the sponsorship obligation, including whether the steps were taken at the request of Immigration or otherwise; and

    (i)    the processes (if any) the person has implemented to ensure future compliance with the sponsorship obligation; and

    (j)    the number of other sponsorship obligations that the person has failed to satisfy, and the number of occasions on which the person has failed to satisfy other sponsorship obligations; and

    (k)     any other relevant factors.

    …

    2.91   Application or variation criteria no longer met

    …

    (3) For paragraph 140L(1)(b) of the Act, the criteria that the Minister must take into account in determining what action (if any) to take under section 140M of the Act in relation to the circumstance mentioned in subregulation (2) are:

    (a)     the nature of the applicable sponsorship criteria that the person no longer meets; and

    (b)    whether, and the extent to which, the failure to continue to satisfy the criteria for approval as a sponsor, or to continue to satisfy the criteria for approval of a variation, has had a direct or indirect impact on another person; and

    (c)     the reason why the person no longer satisfies the applicable sponsorship criteria, including whether the failure to satisfy the criteria is within the person’s control; and

    (d)    the steps (if any) the person has taken to ensure that the person will satisfy the applicable criteria in the future; and

    (e)     any other relevant factors.

    …