Sisira Real Estate Australia Pty Ltd ATF S & N Malawaraarachchi Family Trust (Migration)

Sisira Real Estate Australia Pty Ltd ATF S & N Malawaraarachchi Family Trust (Migration) [2019] AATA 4242 (1 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Sisira Real Estate Australia Pty Ltd ATF S & N Malawaraarachchi Family Trust
CASE NUMBER:  1719528
DIBP REFERENCE(S):  BCC2017/674389
MEMBER:R. Skaros
DATE:1 October 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 01 October 2019 at 11:19am

CATCHWORDS
MIGRATION – approval as standard business sponsor – training requirements – rule amended – requirements no longer applicable – applicant meets all applicable criteria – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 140E
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 8 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 19 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date, i.e. prior to 18 March 2018, and has not been finally determined, the requirements relating to training are no longer applicable in this case.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 26 August 2019 and invited it to give updated and current information addressing the remaining requirements in rr.2.59 and 2.60S of the Regulations. The applicant responded with information that included:
a.a Trust Deed for the S & N Malawaraarachchi Family Trust appointing Sisira Real Estate Australia Pty Ltd (ACN 145 624 004) as Trustee;
b.an ASIC extract for Sisira Real Estate Australia Pty Ltd;
c.a Victorian certificate of business name registration for Sisira Real Estate;
d.copies of financial statements for Sisira Real Estate Australia Pty Ltd ATF S & N Malawaraarachchi Family Trust for the years ending 2018 and 2019;
e.copies of trust tax returns for S & N Malawaraarachchi Family Trust for the years ending 2018 and 2019;
f.copies of recent business activity statements lodged with the ATO by the Trustee for S & N Malawaraarachchi Family Trust;
g.a copy of a renewal of lease agreement with Sisira Real Estate Australia Pty Ltd named as the tenant; and
h.a written attestation and declaration by the director of the applicant company about its 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;
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
Regulation2.59(c) requires that the applicant is lawfully operating a business either in or outside Australia.
The applicant is a corporate trustee for S & N Malawaraarachchi Family Trust, a discretionary trading trust. The Tribunal has regard to the ASIC extract showing Sisira Real Estate Australia Pty Ltd registered as an Australian Proprietary Company since August 2010, the Victorian certificate of business name registration, the current lease agreement with the applicant as tenant, recent financial statements and BAS and tax returns lodged with the ATO that demonstrate the applicant is currently operating a lawful business in Australia.
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 9 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, the Tribunal finds 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.
The Tribunal therefore finds that 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.
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 9 September 2019 stating that the company has not taken any action or sought to take action resulting in the transfer of costs, or any other person paying costs associated with the sponsorship approval process or the recruitment of a person for a nomination, and has not recovered or sought to recover the costs associated with sponsorship approval or the recruitment of a person for a 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. The Tribunal finds that the term of approval as a standard business sponsor is five (5) years.
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 4242

1 October 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies