Twin Power Australia Pty Ltd (Migration)

[2023] AATA 3907

Twin Power Australia Pty Ltd (Migration) [2023] AATA 3907 (19 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Twin Power Australia Pty Ltd

CASE NUMBER:  2101259

HOME AFFAIRS REFERENCE(S):          BCC2020/2781213

MEMBER:Wan Shum

DATE:19 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 19 July 2023 at 2:34pm

CATCHWORDS 
MIGRATION – Employer Nomination – approval as a standard business sponsor – lawful operation of business – no recent financial information – decision under review affirmed

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 January 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 8 December 2020.

3. 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 of a lack of evidence regarding business operations and activities.

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 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).

6. The applicant provided information at the time the application for review was lodged with the Tribunal to support a claim that it was lawfully operating a business including profit and loss statements for years ending 30 June 2019, bank statements from February 2020 to January 2021.

7. On 3 July 2023, the Tribunal wrote to the applicant to invite updated and current information on its business operations. No response was received by the due date of 17 July 2023.

8. The Tribunal has decided to proceed to a decision without taking any further action to obtain the information.

9. The Tribunal will first consider whether the applicant is lawfully operating a business either in or outside Australia as this was the reason for not approving the sponsorship.

10. Although information was provided when the application for review was lodged in February 2021 which reflected that the applicant was lawfully operating a business, such as profit and loss statements for year ending 30 June 2020 and 30 June 2021 and a bank statement for 30 November 2020 to 31 December 2020, there is no recent financial information on which the Tribunal could determine whether the applicant is currently lawfully operating a business.

11. Given the information before the Tribunal is not current, the Tribunal is not satisfied that the applicant is lawfully operating a business in Australia and finds the requirement in reg 2.59(c) is not met. As this is one of the requirements that must be met for the applicant to be approved as a sponsor, the Tribunal has not proceeded to consider the other requirements.

12. 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.

    Wan Shum
    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.