Olympian Products Pty Ltd Atf Olympian Products Unit Trust (Migration)

[2021] AATA 1074

Olympian Products Pty Ltd Atf Olympian Products Unit Trust (Migration) [2021] AATA 1074 (17 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Olympian Products Pty Ltd Atf Olympian Products Unit Trust

CASE NUMBER:  2012835

HOME AFFAIRS REFERENCE(S):          BCC2017/3352539

MEMBER:Cathrine Burnett-Wake

DATE:17 March 2021

PLACE OF DECISION:  Melbourne

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 March 2021 at 2:46pm

CATCHWORDS
MIGRATION – applicant is approved as a standard business sponsor – not an existing sponsor – lawfully operating business – no adverse information known to Immigration – decision under review set aside

LEGISLATION
Migration Act 1958, ss 140E, 359, 360
Migration Regulations 1994, rr 1.13, 2.59, 2.60

CASES
Auservices Pty Ltd v Minister for Immigration [2020] FCCA 1250

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 22 May 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 (the Act) and r.2.61 of the Regulations on 14 September 2017. The delegate decided not to approve the application on the basis that the applicant did not satisfy r.2.59(c) the Migration Regulations 1994 (the Regulations).

3. The matter is before the Tribunal because of a Court order. The Court found the Tribunal’s earlier decision that it did not have jurisdiction to review the matter was affected by jurisdictional error of the type identified in Auservices Pty Ltd v Minister for Immigration [2020] FCCA 1250 at [53]-[64] per Judge Vasta. The Court found the Tribunal misconstrued regs 2.59 and 4.02 of the Migration Regulations 1994 (Cth) when it found that the delegate did not consider the criteria at reg 2.09(d) and (e) and concluded that it therefore did not have jurisdiction to determine the application for review.

4. On 18 March 2018, r.2.59 was amended and the requirements relating to the training requirements were omitted. The transitional provisions  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]

   [1] cl.6704 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. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

7. The applicant was represented in relation to the review by its registered migration agent.

8. 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

9. 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

10. 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.

11. 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

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

13. 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

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

15. The applicant operates a Greek speciality food company under an ABN that is registered and has been active since June 2014. The Tribunal has had regard to the applicant’s tax returns and financial statements provided to the Tribunal in late 2020, which indicate that the applicant is operating a business in Australia.

16. 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

17. 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)).

18. The Tribunal has 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 their record of, or commitment to, employing local labour and their declaration to not engage in discriminatory recruitment practices.

19. 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

20. 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.

21. 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

22. 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

23. 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.

24. 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).

25. 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).

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

27. 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, 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.

28. 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

29. 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.

    Cathrine Burnett-Wake
    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 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

    (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

    (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

    (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.