THE TRUSTEE FOR ATOZ UNIT TRUST (Migration)

[2023] AATA 3946

THE TRUSTEE FOR ATOZ UNIT TRUST (Migration) [2023] AATA 3946 (25 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  The Trustee for Atoz Unit Trust

REPRESENTATIVE:  Mr Edward Miller

CASE NUMBER:  2207980

HOME AFFAIRS REFERENCE(S):          BCC2021/192444

MEMBER:Katie Malyon

DATE:25 July 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to approve the applicant as a Temporary Activities Sponsor

Statement made on 25 July 2023 at 12:53 pm

CATCHWORDS
MIGRATION – sponsorship approval – temporary activities sponsor – ‘Australian organisation’ – Trustee – two individuals – COVID-19 Special Measure Practice Direction - Migration and Refugee Division – no response to s 359A invitation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140E, 359C, 360, 363, 363A

Migration Regulations 1994 (Cth), rr 2.57, 2.60, 2.60S

CASES
Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617

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 Immigration on 13 May 2022 not to approve the applicant as a sponsor under s 140E of the Migration Act 1958 (Cth) (the Act).

2. The applicant, The Trustee for Atoz Unit Trust T/A Kilcran & Associates ABN 11 209 513 254 (the Trustee), applied for approval as a temporary activities sponsor on 2 February 2021.  The delegate decided not to approve the application on the basis that the Trustee did not satisfy regulation 2.60(c)(vi) of the Migration Regulations 1994 (the Regulations) as the Trustee has been identified as individuals and, as an individual, was not a person who is the captain or owner of a superyacht, or an organisation that operates a superyacht. 

3. Inconsistent with cl 2.13of the Tribunal’s COVID-19 Special Measure Practice Direction - Migration and Refugee Division dated 27 April 2020, the representative not provide, on lodgement of its application for review, all relevant evidence and a detailed submission setting out the Trustee’s claims as to why review of the delegate’s decision had been sought. 

   The Tribunal’s s 359A letter

4. On 10 July 2023, the Tribunal wrote to the Trustee pursuant to s 359A of the Act and invited the Trustee to comment on the following particulars:

   An ABN Lookup extracted on 7 July 2023 shows details for ABN 11 209 513 254 as
   follows:

   ·Entity name: The Trustee for Atoz Unit Trust

   ·Entity type: Fixed Unit Trust

   ·Trading names: Kilcran & Associates and Kilcran Accounting & Taxation

   Services.

   This information is relevant to the review because it may lead the Tribunal to find that

   the applicant does not meet reg 2.60(c) of the Regulations as the applicant is not:

   (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.

   The term ‘Australian organisation’ is defined in reg 2.57(1) as ‘a body corporate, a partnership or an unincorporated association (other than an individual or a sole trader) that is lawfully established in Australia’ (emphasis added). As individuals and sole traders are expressly excluded from the definition of ‘Australian organisation’, they cannot be approved as sponsors. Based on the Atoz Trust Deed lodged with the Department, the trustees are identified as 2 individuals, Anthony Constantine Patterson and Qiang Li.

   If we rely on this information in making our decision, we may find the Trustee cannot satisfy the requirements in reg 2.60(c) and, as such, cannot be approved as a sponsor.

5. The Tribunal also invited the Trustee to provide updated and current information addressing all of the relevant criteria in reg 2.60 and reg 2.60S of the Regulations. In this regard, without limiting the information that may be provided, the Tribunal requested the following information in writing:

   1)about the applicant directly operating an active and lawful business in Australia, and its financial position for at least the last 2 financial years – for example, the applicant’s tax returns as lodged with the Australian Taxation Office (ATO) for the last 2 years, signed Financial Reports prepared by an Accountant that include a detailed Profit & Loss Statement and a Balance Sheet, all Business Activity Statements lodged with the ATO from 1 July 2021 to date;

   2)about the applicant’s current organisational structure; and,

   3)that shows the applicant has the capacity to comply with all of the sponsorship obligations applicable to a person who is or was a temporary activities sponsor as follows:

   2.78     Obligation to co-operate with inspectors
   2.80     Obligation to pay travel costs to enable sponsored persons to l

   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

   2.87Obligation not to recover, transfer or take actions that would result in another person paying for certain costs.

6. In its letter, the Tribunal advised that if the information in writing was not received by the Tribunal on or before 24 July 2023 or, in the alternative, if the Trustee did not, on or before that date, make a request for an extension of time in which to provide the information, the Tribunal may make a decision on the review without taking further steps to obtain the information; and, the Trustee would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

7. The Tribunal is satisfied that its s 359(2) letter was properly dispatched to the email address of the Trustee’s representative, Mr Edward Miller of Miller & Co Lawyers & Migration Agents. No response has been received from the Trustee in response to the Tribunal’s letter. The Trustee has not provided any updated and current information about its business or any evidence to satisfy the requirements of reg 2.60 and reg 2.60S of the Regulations and nor as the Trustee responded to the s 359A adverse information in the Tribunal’s letter. Further, the Trustee has not sought additional time in which to do so.

8. In these circumstances, s 359C of the Act applies and, pursuant to s 360(3) of the Act, the Trustee is not entitled to appear before the Tribunal. If a review applicant has no entitlement to a hearing, the effect of s 363A of the Act is that the Tribunal has no power to permit the applicant to appear: Hasran v MIAC [2010] FCAFC 40.

9. Although the Trustee has not requested this, the Tribunal has considered whether it would be appropriate to adjourn the review under s 363(1)(b) of the Act to allow the Trustee additional time in which to provide evidence to support this review application. In this regard, the Tribunal has considered whether, in the circumstances of this case and having regard to the recent COVID-19 pandemic, evidence that Trustee meets all of the relevant requirements of reg 2.60 and reg 2.60S of the Regulations is likely to be forthcoming, whether the Trustee has had a fair opportunity to provide the information or documents already, and the significance of the information or documents to the Trustee. The Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2]where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes.

   [1] [2002] FCA 617.

   [2] {2012] FMCA 28.

10. In the circumstances of this case, the Tribunal considers that the Tribunal has had sufficient time to provide the requested information and thereby address all of the issues arising on review. Accordingly, the Tribunal has decided not to exercise its discretion under s 363(1)(b) of the Act to adjourn the review any further. The Tribunal has determined to make a decision on the review without taking any further action to obtain the information in accordance with s 359C of the Act.

11. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the Trustee meets the requirements for approval as a temporary activities sponsor as set out in reg 2.60 and reg 2.60S of the Regulations. For the sponsorship application to be approved, all of the relevant requirements must be met: if any of the relevant requirements are not met, the sponsorship application must be refused. The provisions of reg 2.60 of the Regulations are set out in the Attachment to this decision.

    Regulation 2.60  Criterion for approval as a temporary activities sponsor

13. Under reg 2.60(c) of the Regulations, the applicant must fall within one of the following categories as these are relevant to the applicable Schedule 2 criteria for approval of a Subclass 403, 407 or 408 visa:

    (i)    an Australian organisation that is lawfully operating in Australia;

    (ii)   a government agency;

    (iii)  a foreign government agency;

    (iv)  a sporting organisation that is lawfully operating in Australia;

    (v)   a religious institution that is lawfully operating in Australia;

    (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.

14. The delegate refused the Trustee’s sponsorship application on the basis that the Trustee has been identified as 2 individuals and not a person who is the captain or owner of a superyacht, or an organisation that operates a superyacht. 

15. On 10 July 2023, the Tribunal wrote to the Trustee under s 359A of the Act inviting comments on information adverse to the sponsorship application and invited information to address that adverse information. No information has been received in response to the Tribunal’s letter.

16. As set out above, the Tribunal observed in its s 359A letter that it had conducted an ABN search on 7 July 2023 which shows details for ABN 11 209 513 254 as follows:

    • Entity name: The Trustee for Atoz Unit Trust
    • Entity type: Fixed Unit Trust
    • Trading names: Kilcran & Associates and Kilcran Accounting & Taxation Services.

17. The Tribunal also noted that the term ‘Australian organisation’ is defined in reg 2.57(1) of the Regulations as ‘a body corporate, a partnership or an unincorporated association (other than an individual or a sole trader) that is lawfully established in Australia’ (emphasis added). Since individuals and sole traders are expressly excluded from the definition of ‘Australian organisation’, they cannot be approved as sponsors. The only exception applies to a person who is the captain or owner of a superyacht: reg 2.60(c)(vi) of the Regulations. Based on information set out in the Atoz Trust Deed lodged with the Department, the trustees are identified as 2 individuals, Anthony Constantine Patterson and Qiang Li. There is no evidence before the Tribunal that Anthony Constantine Patterson and Qiang Li are partners in a partnership.

18. Having regard to available information, the Tribunal is not satisfied that the Trustee meets the requirements of reg 2.60(c) of the Regulations.

    Conclusion

19. As the Tribunal is not satisfied that the requirements set out in reg 2.60(c) of the Regulations are met, the Tribunal is also not satisfied that the criteria in reg 2.60S of the Regulations is met. Accordingly, the decision under review must be affirmed.

    DECISION

20. The Tribunal affirms the decision under review not to approve the applicant as a Temporary Activities Sponsor.

    Katie Malyon

    
    Member

    Attachment – Extract from the Migration Regulations 1994

    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.

    oOOo