Ranay Pty Ltd (Migration)

[2018] AATA 5777

Ranay Pty Ltd (Migration) [2018] AATA 5777 (12 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ranay Pty Ltd

CASE NUMBER:  1805208

DIBP REFERENCE(S):  BCC2017/3088465

MEMBER:Mr S Norman

DATE:12 December 2018

PLACE OF DECISION:  Sydney

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

Statement made on 12 December 2018 at 10:25am

CATCHWORDS
MIGRATION – nomination – applicant is a standard business sponsor – no response – fair opportunity to provide information– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 140, 359, 360, 363
Migration Regulations 1994, rr 2.59, 2.60, 2.61

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18

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 7 February 2018 not to approve the applicant as a standard business sponsor. The Department delegate’s decision was lodged with the Tribunal.[1]

   [1] Tribunal – from folio 3.

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 27 August 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 applicant was determined not to meet the training benchmarks.

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

4. 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

5. 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).

   Not an existing sponsor

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

7. The applicant (Ranay Pty Ltd) sought approval as a standard business sponsor by application lodged with the Department on 27 August 2017, and that application was subsequently refused by the Department on 7 February 2018. On 27 February 2018, the applicant applied to the Administrative Appeals Tribunal (Tribunal), for merits review of the Department decision.

8. By s.359A letter dated 26 November 2018 (dispatched by email to the authorised recipient), the Tribunal advised the applicant that when reviewing standard business sponsorship applications lodged before 18 March 2018, the Tribunal must consider r.2.59(b) of the Migration Regulations. That relevantly stated:

   Reg 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:
   …..
   (b)  the applicant is not a standard business sponsor; … [emphasis added]

9. However, the evidence before the Tribunal included that the applicant had been approved as a standard business sponsor by Department decision dated 16 May 2018. If the Tribunal accepted this information, it would be the reason, or part of the reason, for finding the applicant did not satisfy r.2.59(b) of the Migration Regulations; and that the Tribunal should affirm the Department decision dated 7 February 2018. The applicant was also advised inter alia that if the Tribunal did not receive written comments or response by 10 December 2018, and an extension of time was not approved, the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views and that they will also lose any entitlement they might otherwise have had to appear before the Tribunal to give evidence and present arguments. The Tribunal did not receive any response at the time and date of this decision.

10. Section 360 of the Act states inter alia the “Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments”. However, section 359C of the Act provides that if a person fails to respond to a s.359 or s.359A letter, the “Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information”. In the circumstances of this case, given no response was received to the Tribunal’s s.359A letter, and given no material evidence was otherwise lodged with the Tribunal, and given the applicant was made aware of the deficiencies in the application at the time of the delegate’s decision, I have decided to make a decision on the review without taking any further action to obtain the applicant’s views on the information.

11. Further, the Tribunal has given consideration to whether it should adjourn the review under subsection 363(1)(b) of the Act in order to allow the applicant additional time in which to provide further evidence to support the review application. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[2] and Manna v Minister for Immigration and Citizenship[3] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. I have also had regard to the decision in Minister for Immigration and Citizenship v Li[4] regarding the reasonableness of any request for an adjournment (something that was not requested in this case), and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[5] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[6] where analogous issues were discussed.

    [2] [2002] FCA 617

    [3] [2012] FMCA 28

    [4] [2013] HCA 18 (8 May 2013)

    [5] [2014] FCAFC 1 (4 February 2014)

    [6] [2014] FCA 915 (28 August 2014)

12. The Tribunal considered whether, in the circumstances of this case, the information that the applicant meets the requirements in reg. 2.59(b) is likely to be forthcoming and whether the applicant has had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to the applicant. The Tribunal has also had regard to the fact the application was refused by the Department on 7 February 2018, and the applicant has known for ten months of the delegate’s reasons for refusing the application.

13. In these circumstances, and based on the evidence set out herein, the Tribunal considers that the applicant has had a fair opportunity to provide the relevant information and sufficient time to take steps to satisfy the regulatory criteria. The Tribunal notes that it is uncertain if and when the applicant will provide information in writing as to whether the applicant meets the requirements of reg. 2.59(b).  The Tribunal has decided not to delay its decision any further. Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that they meet the requirements of reg. 2.59(b).

14. That being said, based on the evidence before it the Tribunal accepts the applicant is a standard business sponsor and therefore does not satisfy r.2.59(b) of the Migration Regulations.

15. Given the above findings, the requirement in r.2.59(b) is not met.

16. 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

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

    Mr S Norman
    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.