The Trustee for Morris AB Trust (Migration)

[2019] AATA 4225

The Trustee for Morris AB Trust (Migration) [2019] AATA 4225 (9 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  The Trustee for Morris AB Trust

CASE NUMBER:  1711767

DIBP REFERENCE(S):  BCC2016/3761820

MEMBER:K. Chapman

DATE:9 September 2019

PLACE OF DECISION:  Brisbane

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 09 September 2019 at 10:17am

CATCHWORDS
MIGRATION – nomination – provisions in r.2.59(d) relating to training requirements no longer apply – lawfully operating business in Australia – attested in writing commitment to employing local labour and not engaging in discriminatory recruitment practices – prior sponsorship cancellation arose due to administrative error – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 140, 359A, 360
Migration Legislation Amendment Regulations 2018 (Cth), Schedule 13, cl 6704(2)
Migration Regulations 1994 (Cth), rr 1.13, 2.59, 2.60s, 2.61

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 and Border Protection on 13 May 2017 not to approve the applicant as a standard business sponsor.

2. The applicant, the Trustee for the Morris AB Trust (T/A Dentucare Denture Professionals, ABN 87 829 276 353), 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 10 November 2016. 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’) due to a lack of satisfaction that either Training Benchmark A or B, pertaining to the training of Australian citizens and permanent residents, was satisfied. On 2 June 2017, the applicant applied to the Tribunal for review of the sponsorship refusal decision, providing a copy of that decision with their application for review.

3. The Tribunal notes that the provisions in r.2.59(d) pertinent to training no longer apply to a standard business sponsor application that is made and not finally determined before 18 March 2018 (see cl.6704(2) of Schedule 13 to the Migration Legislation Amendment Regulations). Accordingly, the Tribunal has considered the balance of the criteria contained in r.2.59 and r.2.60S in conducting this review, which are contained in the Attachment to this decision.

4. On 25 June 2019, the Tribunal wrote to the applicant pursuant to subsection 359(2) of the Act inviting them to provide current information addressing the relevant criteria under r.2.59 and r.2.60S of the Regulations. In response the Tribunal received material including, but not limited to, written submissions, financial statements, Trust Deed documentation, and ABN information.

5. On 26 July 2019, the Tribunal wrote to the applicant pursuant to section 359A of the Act inviting them to comment on or respond to information contained in the Departmental file indicating the Trustee, G & L Morris Investments Pty Ltd, had their standard business sponsorship cancelled on 7 November 2016 for non-compliance with sponsorship undertakings. On 29 August 2019, the Tribunal received in response written submissions and application information contending that the cancellation arose from an administrative error pertaining to incorrect use of an ABN. The Tribunal has duly considered all material submitted on behalf of the applicant.

6. The Tribunal did not consider a hearing to be necessary in this matter, 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.

7. Accordingly, 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

8. The issue in this case is whether the applicant meets the requirements for approval as a standard business sponsor in accordance with the current 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

9. 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.

10. Following careful consideration of the Department file, the Tribunal is satisfied that the applicant applied for approval as a standard business sponsor in accordance with the process set out in regulation 2.61 as described above. Accordingly, the Tribunal finds that the requirement in r.2.59(a) is met.

    Not an existing sponsor

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

12. Having carefully considered Departmental records, the Tribunal is satisfied that the applicant is not a standard business sponsor at the time of this decision. Accordingly, the Tribunal finds that the requirement in r.2.59(b) is met.

    Lawfully operating business

13. Regulation 2.59(c) requires that the applicant is lawfully operating a business either in or outside Australia.

14. The submitted records from the Australian Business Register indicate that the applicant is in possession of current ABN 87 829 276 353 regarding its trading name Dentucare Dental Professionals. Further, the submitted financial statements satisfy the Tribunal that the applicant is a profitable business in the field of dental care. Additionally, the applicant’s website confirms that it is currently offering services to the general public.

15. Following careful consideration of the evidence, the Tribunal is satisfied that the applicant is lawfully operating a business in Australia. Accordingly, the Tribunal finds that the requirement in r.2.59(c) is met.

    Written attestation and declaration

16. 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)).

17. Following careful consideration of the Department file, the Tribunal is satisfied that the applicant made the appropriate attestation as described above. Accordingly, the Tribunal finds that the requirement in r.2.59(f) is met.

    Adverse information

18. 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.

19. The Tribunal notes that the Trustee for the Morris AB Trust is G & L Morris Pty Ltd. The Trustee company had their standard business sponsorship cancelled on 7 November 2016 for non-compliance with sponsorship undertakings. According to information contained in the Departmental file, this cancellation arose due to errors made on the part of a previous representative concerning the incorrect use of the disused ABN 76 092 707 410. Further, it is apparent that the Department approved applications on the basis of the incorrect ABN then subsequently cancelled the aforementioned sponsorship. The applicant submitted that its current ABN 87 829 276 353 has been in use since July 2004 and this is verified by the submitted Australian Business Register records.

20. The Tribunal considers that there is adverse information pertaining to the Trustee company given its prior sponsorship cancellation. However, the Tribunal is satisfied that it is reasonable to disregard this information given the evidence indicates the prior sponsorship cancellation arose as a result of administrative error.

21. Given the above findings, the requirement in r.2.59(g) is met.

    Additional criteria

22. 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.

23. 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).

24. 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).

25. These requirements may however be disregarded if the Tribunal considers it reasonable to do so: r.2.60S(4).

26. The applicant made submissions that they have never taken or sought to take any adverse action pertaining to costs for sponsorship or nomination as outlined above. There is no evidence to the contrary before the Tribunal. Accordingly, the Tribunal finds that the additional criteria in r.2.60S are met.

27. 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 years from the time of application.

    DECISION

28. 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.

    K. Chapman
    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.