Lee, Annie (Migration)

[2019] AATA 6457

Lee, Annie (Migration) [2019] AATA 6457 (17 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Lee, Annie

CASE NUMBER:  1732957

DIBP REFERENCE(S):  BCC2017/1381287

MEMBER:R. Skaros

DATE:17 December 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision not to approve the application and substitutes a decision that the applicant is approved as a standard business sponsor.

Statement made on 17 December 2019 at 9:24am

CATCHWORDS
MIGRATION – standard business sponsor refusal – applicant lawfully operating a business in Australia – evidence provided –not an existing sponsor – no adverse information known to Immigration –decision under review set aside

LEGISLATION
Migration Act 1958, ss 140, 359
Migration Regulations 1994, rr 1.13, 2.59, 2.60, 2.61

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 and Border Protection on 6 December 2017 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 (the Act) and r.2.61 of the Regulations on 13 April 2017. The delegate decided not to approve the application on the basis that the applicant did not satisfy the training benchmark requirements in r.2.59(d)of the Migration Regulations 1994 (the Regulations).

3. On 18 March 2018, r.2.59 was amended and the requirements relating to the training requirements were omitted. The transitional provisions[1] provide that r.2.59(d), (e), (i) and (j) do not apply in relation to an application for approval as a standard business sponsor made, but not finally determined, before the commencement date.

   [1] cl.6704 to Schedule 13 of the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (F2018L00262).

4. As this application was made before the commencement date, i.e. prior to 18 March 2018, and has not been finally determined, the requirements relating to training are no longer applicable in this case. However, for the application to be approved, the Tribunal must still be satisfied that at the time of decision, the applicant meets the applicable requirements for approval as required by r.2.59 and the additional criteria in r.2.60S. An extract of the applicable provisions is attached to this decision.

5. On 26 September 2019, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, in relation to the requirements in rr.2.59 and 2.60S. Relevantly, the Tribunal invited the applicant to provide updated and current information about the applicant lawfully operating a business either in or outside of Australia. The Tribunal provided examples of the types of information the applicant could provide including, business registration certificate, business activity statements lodged with the Australian Taxation Office (ATO) and financial statements prepared by an accountant that includes a detailed profit and loss statement and balance sheet.

6. On 10 October 2019, the Tribunal received an email from the applicant’s representative, in which he stated that he has attached a document showing that Ms Lee is lawfully operating a business. The only document attached was the letter issued by the Australian Business Register (ABR) dated 17 June 2015 indicating that the ABN registration (67181420399) for Ms Lee was effective as of 22 May 2015.

7. The representative also indicated in the same email that Ms Lee had instructed him that she has a commitment to employing local labour, that there is no adverse information known about her or an associated person and that she has not sought to transfer the cost of the approval process to another person.

8. On 17 October 2019 the Tribunal again wrote to the applicant requesting information about her lawfully operating a business either inside or outside Australia. The Tribunal provided examples of the types of information the applicant may wish to provide including a current ABR extract, financial statements for the applicant’s business for the last two full financial years and copies of activity statements and tax returns lodged with ATO.

9. On 24 October 2019 the applicant provided an extract from ABN Lookup and draft individual tax return for years ended 30 June 2017 and 30 June 2018 and a letter from the applicant’s accountant.

10. On 1 November 2019 the Tribunal invited the applicant to attend a hearing. The Tribunal received an email from the representative on 11 November 2019 seeking to reschedule the hearing to January to February 2020 as the applicant had a total of 8 teeth removed and was awaiting an appointment to replant the teeth. The Tribunal requested from the applicant medical evidence with details of the dental surgeon who carried out the procedure.  The applicant provided a letter containing clinical notes.

11. The Tribunal had regard to the letter provided from the dental institution in support of the request to postpone the scheduled hearing. The examination notes from the dental institution indicated that Ms Annie Lee had not been to the dentist in a long time and only attended the clinic for consultation on 15 November 2019. While the notes indicate that Ms Annie Lee had a number of missing back teeth, the letter also indicated that this was an existing condition. There was no evidence in the notes to indicate that Ms Annie Lee recently had 8 teeth extracted by the dentist as previously submitted. The clinical notes indicated that the dentist has suggested a future treatment plan for Ms Annie Lee, however, it appears that no recent dental was undertaken on Ms Annie Lee. Having considered the information provided, the Tribunal was not satisfied that Ms Annie Lee was unable to appear at the scheduled hearing and informed the applicant of the same.

12. The applicant’s representative responded stating that Ms Annie Lee had not seen the former dentist for 3 months and the existing condition was the recovery of her gum to plant the new teeth which affects her speech. The applicant submitted that the Tribunal’s request for medical evidence was acted upon however due to the non-availability of appointment Ms Lee needed to book for the next week.

13. The Tribunal informed the applicant that it had reviewed all clinical notes and was satisfied that no recent dental work had been undertaken on Ms Annie Lee and it was satisfied that she was able to appear before it at the scheduled hearing.

14. The applicant appeared before the Tribunal by telephone on 18 November 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

15. At the hearing, the Tribunal discussed with the applicant the paucity of evidence regarding her operating a business in Australia as claimed. The applicant insisted that she is operating a business and stated that she operates a food shop in Chatswood called BBQ Delish. She stated that she and family members work there. She indicated that she could provide further evidence of her business’ operations.

16. Immediately after the hearing, the Tribunal received various documents regarding the business ‘BBQ Delish’, the information included photographs of a Chinese food outlet in a shopping centre and a lease document dated 1 February 2017 noting the applicant as the lessee of a shop in the Mandarin Centre in Chatswood. The lease period is for 5 years. The Tribunal also received activity statements for the business for 2018 and 2019. Most of the activity statements suggest that the applicant has paid no salaries, wages or taxes, though in the final quarter of each financial year the applicant appears to have declared the total sales, which were $165,000 in 2018 and $199,000 in 2019. 

17. Given the few requirements that applicants must now meet to become approved business sponsors, the Tribunal considers that, despite concerns about the financial capacity of the business, the applicant has provided the basic evidence required to show that she meets the requirements for approval as a standard business sponsor.

18. For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the applicant as a standard business sponsor

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. 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 r.2.59 and the additional criteria in r.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).

    Process for application

20. Regulation 2.59(a) requires that the applicant has applied for approval as a standard business sponsor in accordance with the process set out in r.2.61. It requires the applicant to make the application for approval in accordance with the approved form, to pay the prescribed fee and, for applications made on or after 1 July 2013, to make the application by using the internet unless the Minister specifies an alternative means.

21. On the basis of information in the Department’s file, the Tribunal is satisfied that the applicant has made the application in accordance with the requirements of 2.61 and accordingly r. 2.59(a) is met.

    Not an existing sponsor

22. Regulation 2.59(b) requires that the applicant is not a standard business sponsor.

23. The Tribunal has had regard to Departmental records which confirm that the applicant, at the time of decision, is not a standard business sponsor. The Tribunal accordingly finds that the applicant is not a standard business sponsor and the requirement in r.2.59(b) is met.

    Lawfully operating business

24. Regulation 2.59(c) requires that the applicant is lawfully operating a business either in or outside Australia.

25. The applicant operates a take away food business under an ABN that is registered and has been active since May 2015. The Tribunal has had regard to the applicant’s tax returns for the financial years ending June 2017 and June 2018 recording recent income and expenses for the business. The Tribunal has also had regard to the lease document and to the business activity statements which indicate that the applicant is operating a business in Australia.

26. Accordingly, the Tribunal is satisfied that the applicant is lawfully operating a business in Australia and the requirement in r.2.59(c) is met.

    Written attestation and declaration

27. Regulation 2.59(f) only applies if the applicant is lawfully operating a business in Australia. It requires that the applicant has attested in writing, that the applicant has a strong record of, or demonstrated commitment to, employing local labour; and has declared in writing that the applicant will not engage in discriminatory recruitment practices (as defined in r.2.57(1)).

28. The Tribunal has had regard to the applicant’s written submission of 10 October 2019 that includes her record of, or commitment to, employing local labour and her declaration to not engage in discriminatory recruitment practices. The Tribunal has also had regard to the written declaration contained within the application for approval as a Standard Business Sponsor lodged with the Department attesting and declaring to these same matters.

29. As the applicant has made the relevant attestation and declaration, the Tribunal finds that the requirement in r.2.59(f) is met.

    Adverse information

30. Regulation 2.59(g) requires that there is no adverse information known to Immigration about the applicant or a person associated with the applicant or it is reasonable to disregard such information. The terms ‘associated with’ and ‘adverse information’ are defined in r.1.13A and 1.13B.

31. The Tribunal has had regard to the Department’s electronic records and notes that there is no evidence which suggests that there is any adverse information, as defined, known to Immigration about the applicant or a person associated with the applicant. The Tribunal therefore finds that the requirement in r.2.59(g) is met.

    Offshore business

32. Regulation 2.59(h) applies if the applicant is lawfully operating a business outside, and not in, Australia. As the applicant is not lawfully operating a business outside Australia, the requirement in r.2.59 (h) does not apply in this case.

    Additional criteria

33. Regulation 2.60S provides for additional criteria that must be met for an applicant to be approved as a sponsor. A copy of the criteria, as relevant to this case, is attached to this decision.

34. Broadly speaking, to meet r.2.60S the Tribunal must be satisfied that the applicant has not taken any action, or sought to take any action that would:

    ·result in the transfer of costs to another person, or another person paying costs, associated with the applicant becoming an approved sponsor; or

    ·result in the transfer of costs to another person, or another person paying costs, that relate specifically to the recruitment of a non-citizen for the purposes of a nomination: r.2.60S(2).

35. The Tribunal must also be satisfied that the applicant has not recovered, or sought to recover from another person, costs associated with the sponsorship approval, or costs that relate specifically to the recruitment of a non-citizen for the purposes of a nomination: r.2.60S(3).

36. These requirements may however be disregarded if the Tribunal considers it reasonable to do so: r.2.60S(4).

37. The Tribunal has had regard to the information in the application for approval as a Standard Business Sponsor lodged with the Department regarding costs associated with recruitment to the nominated position, as well as the applicant’s written submission to the Tribunal 10 October 2019 that it has not taken, or sought to have taken, any action regarding the transfer of costs related to the sponsorship approval process. Accordingly, the Tribunal finds that the additional criteria in r.2.60S are met.

38. For the reasons given above, the Tribunal finds that the applicant meets all the applicable criteria prescribed in the Regulations to be approved as a standard business sponsor. The Tribunal finds that the term of approval as a standard business sponsor is five (5) years.  

    DECISION

39. The Tribunal sets aside the decision not to approve the application and substitutes a decision that the applicant is approved as a standard business sponsor.

    R. Skaros
    Senior Member

    
    

    ATTACHMENT - 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

    (b)the applicant is not a standard business sponsor; 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, or an applicant or proposed applicant (the visa applicant) for a [Subclass 457 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.

    [Note …]

    2.60S Additional criteria for all classes of 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 to 2.60M.

    (2)The criteria that must be satisfied for the Minister to approve an application by a person (the applicant) for approval as a sponsor mentioned in any of regulations 2.59 to 2.60M 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 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 sponsor; 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 sponsor mentioned in any of regulations 2.59 to 2.60M 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 sponsor; 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 sponsor; 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.