PEGASUS EDUCATION SOLUTIONS PTY LTD (Migration)

PEGASUS EDUCATION SOLUTIONS PTY LTD (Migration) [2019] AATA 4580 (23 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  PEGASUS EDUCATION SOLUTIONS PTY LTD
CASE NUMBER:  1719844
DIBP REFERENCE(S):  BCC2017/563058
MEMBER:R. Skaros
DATE:23 September 2019
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 23 September 2019 at 2:31pm

CATCHWORDS
MIGRATION – work sponsor approval – training requirements – requirements repealed – applicable requirements – additional criteria – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 140E, 360
Migration Regulations 1994 (Cth), rr 2.59, 2.60S, 2.61

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 9 August 2017 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 (the Act) and r.2.61 of the Regulations on 10 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 requirements relating to training had been met.
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).
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date, i.e. prior to 18 March 2018, and has not been finally determined, the requirements relating to training are no longer applicable in this case.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.
The Tribunal wrote to the applicant on 22 August 2019 and invited the applicant to give updated and current information addressing the remaining requirements in rr.2.59 and 2.60S of the Regulations. The applicant responded on 2 September 2019 with information that included:
a.a current ASIC extract for Pegasus Education Solutions Pty Ltd (ACN 600 383 800);
b.a copy of ABN registration for 74 600 383 800 with Pegasus Education Solutions Pty Ltd as the relevant entity;
c.copies of financial statements for Pegasus Education Solutions Pty Ltd for the years ending 2018 and 2019;
d.copies of company tax returns for Pegasus Education Solutions Pty Ltd for the years ending 2018 and 2019;
e.written attestations and declarations about the applicant’s commitment to employing local labour and not engaging in discriminatory work practices or the transfer or recovery of costs in connection with the sponsorship approval process;
f.copies of various invoices for services provided by the applicant; and
g.copies of various certificates of participation.
On the basis of information in the Tribunal and the Department’s files, the Tribunal did not consider a hearing to be necessary as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.
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
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
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.
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 r.2.61. Accordingly, the requirement in r.2.59(a) is met.
Not an existing sponsor
Regulation 2.59(b) requires that the applicant is not a standard business sponsor.
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
Given the above, the requirement in r.2.59(b) is met.
Lawfully operating business
Regulation 2.59(c) requires that the applicant is lawfully operating a business either in or outside Australia.
The Tribunal received a copy of ASIC records demonstrating that the applicant was registered as an Australian Proprietary Company on 27 June 2014 and has remained registered since that time. It also has information before it from the Australian Business Register demonstrating registration on 5 July 2014 that is also current. Also given to the Tribunal were financial statements for the years ending 2018 and 2019 demonstrating an operating profit, as well as company tax returns lodged with the ATO. Accordingly, the Tribunal finds that the applicant is lawfully operating a business in Australia and the requirement in r.2.59(c) is met.
Written attestation and declaration
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)).
The Tribunal has received a current statement from the applicant’s Director dated 4 September 2019 attesting to having a strong commitment to employing local labour and declaring that the applicant will not engage in discriminatory recruitment practices. The Tribunal is satisfied that the relevant written attestation and declaration has been made in writing.
Given the above findings, the requirement in r.2.59(f) is met.
Adverse information
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.
There is no evidence before the Tribunal which indicates that there is any adverse information known to Immigration about the applicant or a person associated with the applicant.
Given the above findings, the requirement in r.2.59(g) is met.
Offshore business
Regulation 2.59(h) applies if the applicant is lawfully operating a business outside, and not in, Australia. In these cases, the applicant must be seeking approval as a standard business sponsor in relation to a holder of, or applicant or proposed applicant for, a Subclass 457 visa. The applicant must also intend for that person to establish, or assist in establishing, on behalf of the applicant, a business operation in Australia with overseas connections, or to fulfil, or assist in fulfilling, a contractual obligation of the applicant.
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
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.
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).
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).
These requirements may however be disregarded if the Tribunal considers it reasonable to do so: r.2.60S(4).
The Tribunal has received a current statement from the applicant’s Director dated 4 September 2019 stating that the costs associated with the sponsorship approval process and recruitment for the nominated position were paid for by the applicant, and no action has been taken to transfer those costs from another person company has paid all the costs associated with the sponsorship and nomination. There is nothing before the Tribunal to suggest that the applicant has taken any steps to seek recovery of costs associated with sponsorship approval or the recruitment of a person for a nomination.
Given the above findings, the additional criteria in r.2.60S are met.
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.
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.
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.

[2019] AATA 4580

23 September 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Remedies