Sentenal Technologies (Migration)

[2023] AATA 2650

Sentenal Technologies (Migration) [2023] AATA 2650 (7 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Sentenal Technologies

CASE NUMBER:  2104068

HOME AFFAIRS REFERENCE(S):          BCC2020/2151630

MEMBER:Namoi Dougall

DATE:7 July 2023

PLACE OF DECISION:  Sydney

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

Statement made on 07 July 2023 at 3:24pm

CATCHWORDS

MIGRATION – approval of a nomination – actively and lawfully operating a business in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 140, 359
Migration Regulations 1994, rr 2.59-2.61, 5.19

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 9 March 2021 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 (Cth) (the Act) and reg 2.61 of the Regulations on 24 August 2020. The delegate decided not to approve the application on the basis that the applicant did not satisfy reg 2.59(c) of the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied that the applicant lawfully operating a business due to insufficient evidence.

3. 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

4. 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 reg 2.59 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).

5. The Tribunal wrote to the applicant pursuant to s 359(2) of the Act on 22 June 2023 for updated and current information addressing the requirements in reg.5.19. They were advised that if no response was received they would lose any entitlement to a hearing and the Tribunal may make a decision without taking any further action.

6. On 25 June 2023, the Tribunal’s email sent on 22 June 2023 was returned as delivery failed. The Tribunal’s files was checked for change of address or authorised recipient, there had been non change. The email address was provided in the application form was checked and it was the same as the one used to send the Tribunal’s email of 22 June 2023.

7. The Tribunal has given consideration as to whether it should proceed to a decision without taking any further action to obtain information from the applicant. As there has been no response or any communication from the applicant regarding this case for some time, the Tribunal has decided to proceed to a decision based on the information before it. Therefore, the Tribunal is satisfied that the applicant was sent to the last email address provided to the Tribunal. No response was received by the due date.

8. Regulation 5.19(c) requires that the applicant is lawfully operating a business.

9. As no response was received from the applicant, the Tribunal does not have information that the applicant is currently lawfully operating a business.

10. Given this, the Tribunal does not consider that there is evidence at the time of this decision that the requirements in regs.5.19(c) are met.

11. Given the above findings, the Tribunal is not satisfied that reg 5.19(c).

12. 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

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

    Namoi Dougall
    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

    (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 a [Subclass 457 visa] or a Subclass 482 (Temporary Skill Shortage) visa, or an applicant or a proposed applicant (the visa applicant) for a Subclass 482 (Temporary Skill Shortage) 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.

    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

    (ba)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 a nomination under subsection 140GB(1) of the Act (including a fee mentioned in subregulation 2.73(5) or (7) or 2.73A(3) or 2.73B(5) or (7) or nomination training contribution charge); and

    (bb)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 a nomination under subsection 140GB(1) of the Act (including a fee mentioned in subregulation 2.73(5) or (7) or 2.73A(3) or 2.73B(5) or (7) or nomination training contribution charge); 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

    (ia)    associated with a nomination under subsection 140GB(1) of the Act (including a fee mentioned in subregulation 2.73(5) or (7) or 2.73A(3) or 2.73B(5) or (7) or nomination training contribution charge); 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

    (ia)    associated with a nomination under subsection 140GB(1) of the Act (including a fee mentioned in subregulation 2.73(5) or (7) or 2.73A(3) or 2.73B(5) or (7) or nomination training contribution charge); 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.