QTS OZ PTY LTD (Migration)

QTS OZ PTY LTD (Migration) [2023] AATA 2885 (31 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  QTS OZ PTY LTD
REPRESENTATIVE:  Mr Phillip Fook Weng Au (MARN: 9473712)
CASE NUMBER:  2215849
HOME AFFAIRS REFERENCE(S):          BCC2021/2062374
MEMBER:C. Packer
DATE:31 August 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to approve the applicant as a temporary activities sponsor.

Statement made on 31 August 2023 at 10.51am

CATCHWORDS
MIGRATION – application for approval as temporary activities sponsor – capacity to comply with obligations – start-up company financially supported by global partner – some general information and documents provided after prescribed period but no specified information or submissions – financial losses and liabilities – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140E, 359, 359C, 360(3), 363A
Migration Regulations 1994 (Cth), rr 2.60(c), (e), 2.60S

CASE
Hasran v MIAC [2010] FCAFC 40

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 Home Affairs on 10 October 2022 not to approve the applicant as a temporary activities sponsor.
The applicant applied for approval as a temporary activities sponsor under s 140E of the Migration Act 1958 (Cth) (the Act) and reg 2.60 of the Regulations on 29 October 2021. The delegate decided not to approve the application on the basis that the applicant did not satisfy reg 2.60(e) because the delegate was not satisfied the applicant had demonstrated sufficient capacity to ensure sponsorship obligations are met.
On 15 August 2023 the Tribunal wrote to the review applicant pursuant to s.359 of the Act, inviting the applicant to provide updated and current information that addressed the requirements in r.2.60 and 2.60S. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 29 August 2023 the Tribunal may make a decision on the review without taking further steps to obtain the information, and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
However, the applicant did not provide the information within the prescribed period. 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 them to appear: Hasran v MIAC [2010] FCAFC 40.
Subsequently, on 30 August 2023 the applicant provided some documents and information, that the Tribunal has fully considered.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has decided to affirm the decision under review not to approve the applicant as a temporary activities sponsor.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval as a temporary activities sponsor in accordance with the criteria in reg 2.60 and the additional criteria in reg 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).
Capacity to comply with sponsorship obligations
One requirement is regulation 2.60(c) that requires the applicant is:
(i) an Australian organisation that is lawfully operating in Australia; or
(ii) a government agency; or
(iii) a foreign government agency; or
(iv) a sporting organisation that is lawfully operating in Australia; or
(v) a religious institution that is lawfully operating in Australia; or
(vi) a person who is the captain or owner of a superyacht, or an organisation that operates a superyacht; or
(vii) a foreign organisation that is lawfully operating in Australia
In this case, the applicant states they are an Australian organisation that is lawfully operating in Australia. Regulation 2.60(e) then requires that the applicant has the capacity to comply with the sponsorship obligations applicable to a person who is or was a temporary activities sponsor. These sponsorship obligations are as follows:
2.78 Obligation to cooperate with inspectors
2.80 Obligation to pay travel costs to enable sponsored persons to leave Australia
2.80A Obligation to pay travel costs – domestic worker (executive)
2.81 Obligation to pay costs incurred by the Commonwealth to locate and remove
unlawful non-citizen
2.82 Obligation to keep records
2.83 Obligation to provide records and information to the Minister
2.84 Obligation to provide information to Immigration when certain events occur
2.85 Obligation to secure offer of reasonable standard of accommodation (volunteer
positions only)
2.86 Obligation to ensure primary sponsored person works or participates in
nominated Occupation
2.86A Obligation to ensure primary sponsored person works or participates in activity
in relation to which the visa is granted
2.87 Obligation not to recover, transfer or take actions that would result in another person paying for certain costs.
The application showed that:
QTS Australia is a start up company and part of QTS global group worldwide. The Australian entity is financially supported by QTS Shanghai and HK and training provided is part of QTS global program to strengthen its Australian branch, ensuring its standard of service match with QTS global standard.
The organisation was stated to have 1 Australian employee and 1 foreign employee. Turnover was $13,673 and a number of remittances from overseas (mainly to Ivan Chong) were provided. A QTS Shanghai Limited letter of 15/10/2021 stated in part that that business pays salaries, operational and administrative expenses. An accountant’s letter of 11/10/2021 stated:
We are the Registered Tax Agent for QTS OZ Pty Ltd. We hereby confirm the following, to the best of our knowledge. QTS OZ Pty Ltd’s is a start-up Company and is financially supported by QTS China and the Company’s shareholders. Based on this understanding, QTS OZ Pty Ltd has the financial capacity to provide training to its employees. Please note for the purpose of this letter, we have not reviewed the financial records of QTS China.
The Tribunal’s letter of 15 August 2023 invited the applicant to provide information including the following:
1. Information about the identity of any person authorised to speak and make
decisions on behalf of the applicant;
 for example, if the applicant is a company or registered business, an ASIC
company or business name extract ( If the applicant is a company or registered business, current and historical
information about its office holders registration details;
 for example, an ASIC current and historical extract ( Information about the applicant directly operating an active and lawful business in
Australia, and its financial position for at least the last two financial years;
 for example, the applicant’s tax returns for the financial years ending June
2022 and June 2023; financial statements prepared by an accountant/
financial advisor that include a detailed profit and loss statement and balance sheet for the financial years ending June 2022 and June 2023; and business activity statements lodged with the ATO for the financial years ending June
2022 and June 2023
4. Information about the applicant’s current organisational structure, and employees in Australia;
5. Information that shows the applicant has the capacity to comply with the
sponsorship obligations applicable to a person who is or was a temporary activities
sponsor;
6. If Ivan Vern Shen CHONG is employed or being trained by the applicant in
Australia, information concerning his employment and/or training.
 for example: PAYG Payment summaries; payslips; length of employment and whether full-time/part-time; position; employment contract; superannuation payments; list of duties
On 30 August 2023 the applicant provided:
·A financial statement 2022fy
·ASIC printouts
·BAS statements July 2021 to March 2023
The ASIC documents show the business is registered in NSW and the Directors are listed as: Catherine Spicer (Philippines address); Matthew Spicer (Philippines address); Michael Frey (Queensland address) appointed 10/6/2023.
The financial statement 2022fy shows in part:
·Total income $52,926
·Expenses $90,220
·Wages $63,661
·Loss $37,295
·Liabilities $127,059
The BAS statement for January to March 2023 shows total sales of $5,441 and salary/wages are $20,827.
In sum, the late provision of information to a formal invitation from the Tribunal, with no submission or explanatory statement, and lack of current information about the applicant’s current organisational structure and employees in Australia, does not satisfy the Tribunal that the applicant has the capacity to comply with the sponsorship obligations:
2.78 Obligation to cooperate with inspectors
2.82 Obligation to keep records
2.83 Obligation to provide records and information to the Minister
2.84 Obligation to provide information to Immigration when certain events occur
The most recent financial statement shows small income that does not cover expenses, leading to a loss of $37,295 and liabilities of $127,059. The BAS statement for January to March 2023 shows the business continues to make a loss with total sales of $5,441 but salary/wages are $20,827. There is no current information before the Tribunal concerning the financial arrangements between the applicant and overseas businesses. The financial information before the Tribunal does not satisfy the Tribunal that the applicant has the capacity to comply with the sponsorship obligations:
2.80 Obligation to pay travel costs to enable sponsored persons to leave Australia
2.80A Obligation to pay travel costs – domestic worker (executive)
2.81 Obligation to pay costs incurred by the Commonwealth to locate and remove unlawful non-citizen
Given the above findings, the requirement in reg 2.60(c) is not met.
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 temporary activities sponsor. Accordingly, the Tribunal must affirm the decision under review.
DECISION
The Tribunal affirms the decision not to approve the applicant as a temporary activities sponsor.
C. Packer
Member

ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
Regulation 2.60 Criterion for approval as a temporary activities sponsor
For the purposes of subsection 140E(1) of the Act, the criterion that must be satisfied
for the Minister to approve a person (the applicant) as a temporary activities sponsor is
that the Minister is satisfied that:
(a) the applicant has applied for approval as a temporary activities sponsor in
accordance with the process referred to in regulation 2.61; and
(b) the applicant is not already a temporary activities sponsor; and
(c) the applicant is:
(i) an Australian organisation that is lawfully operating in Australia; or
(ii) a government agency; or
(iii) a foreign government agency; or
(iv) a sporting organisation that is lawfully operating in Australia; or
(v) a religious institution that is lawfully operating in Australia; or
(vi) a person who is the captain or owner of a superyacht, or an organisation that
operates a superyacht; or
(vii) a foreign organisation that is lawfully operating in Australia; and
(d) 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
(e) the applicant has the capacity to comply with the sponsorship obligations
applicable to a person who is or was a temporary activities sponsor.
Assessment against subregulation 2.60(e)
Subregulation 2.60(e) requires that the applicant has the capacity to comply with the
sponsorship obligations applicable to a person who is or was a temporary activities
sponsor.
These sponsorship obligations are as follows:
2.78 Obligation to cooperate with inspectors
2.80 Obligation to pay travel costs to enable sponsored persons to leave Australia
2.80A Obligation to pay travel costs – domestic worker (executive)
2.81 Obligation to pay costs incurred by the Commonwealth to locate and remove
unlawful non-citizen
2.82 Obligation to keep records
2.83 Obligation to provide records and information to the Minister
2.84 Obligation to provide information to Immigration when certain events occur
2.85 Obligation to secure offer of reasonable standard of accommodation (volunteer
positions only)
2.86 Obligation to ensure primary sponsored person works or participates in
nominated Occupation
2.86A Obligation to ensure primary sponsored person works or participates in activity
in relation to which the visa is granted
2.87 Obligation not to recover, transfer or take actions that would result in another person paying for certain costs.
An applicant for approval as a temporary activities sponsor must meet all of the requirements outlined in regulation 2.60.

[2023] AATA 2885

31 August 2023

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

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