NATURAL TROPICAL PRODUCTS PTY LTD (Migration)

[2018] AATA 5617

NATURAL TROPICAL PRODUCTS PTY LTD (Migration) [2018] AATA 5617 (8 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  NATURAL TROPICAL PRODUCTS PTY LTD

CASE NUMBER:  1709599

DIBP REFERENCE(S):  BCC2017/788516

MEMBER:R. Skaros

DATE:8 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 08 October 2018 at 10:11am

CATCHWORDS
MIGRATION – nomination – standard business sponsor – training requirements – amendment to regulation – training requirements omitted – applicable requirements and additional criteria still to be satisfied – invitation to provide further information – further information not provided – lack of evidence – ongoing business activities – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 140, 359, 360, 363
Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018
Migration Regulations 1994, rr 2.59, 2.60, 2.61, Schedule 13, cl 6704(2)

CASES
Hasran v MIAC [2010] FCAFC 40
Cargo First Pty Ltd v MIBP [2016] FCA 30

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 12 April 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 28 February 2017. The delegate decided not to approve the application on the basis that the applicant did not satisfy r.2.59(d) of the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the training requirements had been met.

3. The applicant provided a copy of the delegate’s decision record to the Tribunal. The applicant was represented in relation to the review by its registered migration agent.

4. 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(2) to Schedule 13 of the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (F2018L00262).

5. 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.

6. On 14 September 2018 the Tribunal wrote to the review applicant pursuant to s.359(2) of the Act, inviting the review applicant to provide current information about the various requirements in r.2.59 and r.2.60S for approval as a standard business sponsor in writing.

7. The invitation was sent to the last email address provided in connection with the review and advised that, if the information was not provided in writing by 28 September 2018 the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

8. The review 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.

9. On 3 October 2018, the Tribunal received an email from the representative advising that he had forwarded the Tribunal’s letter requesting information to the applicant and that the person whom they previously dealt with had advised that he is no longer with the business and thought the company was going to be deregistered.  The representative advised that he had also sent an email to the other director but had still not received a response. 

10. There is no information before the Tribunal to indicate that the applicant has been deregistered, which would have raised issues about whether the applicant still has standing to pursue the review. The information received from the representative, as provided by the applicant’s former director, appears to suggest that deregistration has not yet occurred but may do so in future. In the absence of information confirming that the applicant has been deregistered as a company, the Tribunal proceeds on the basis that the applicant is registered and that the Tribunal has jurisdiction in respect of the application for review. 

11. To date, the Tribunal has not received any further correspondence from the applicant or the representative. The Tribunal has decided to proceed to a decision on the information before it.

12. 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

13. 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).

14. As indicated above, the applicant was invited to provide information about the various requirements for approval as a standard business sponsor but has not done so. For the reasons that follow, the Tribunal has found that the requirement in r.2.59(c) is not met. 

    Lawfully operating business

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

16. The Tribunal requested the applicant to provide current information about whether they are lawfully operating a business either inside or outside Australia. Without limiting the type of information that could be provided, the Tribunal suggested examples of information and/or documents that the applicant could provide to show that they are operating a business, such as evidence of their current business registration, recent business activity statements and financial reports. No response has been received to the invitation to provide information.

17. The Tribunal considers that r.2.59(c) requires the applicant to show that they are engaged in ongoing business activities. The applicant has not provided current evidence to the Tribunal which indicates that they are presently engaged in any business activities. In the circumstances, the Tribunal is unable to be satisfied that, at the time of decision, the applicant is operating a business either in or outside Australia.

18. Given the above, the Tribunal finds that the requirement in r.2.59(c) is not met.

19. 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

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

    R. Skaros
    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.