UNITED PHYSIOTHERAPY GROUP PTY LTD (Migration)

Case [2017] AATA 204

UNITED PHYSIOTHERAPY GROUP PTY LTD (Migration) [2017] AATA 204 (9 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  UNITED PHYSIOTHERAPY GROUP PTY LTD

CASE NUMBER:  1509117

DIBP REFERENCE(S):  BCC2015/1097343

MEMBER:Danica Buljan

DATE:9 February 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 09 February 2017 at 4:00pm

CATCHWORDS

Migration – Standard business sponsor – Training benchmarks – No response to hearing invitation – No payments to industry training fund – No evidence of employee training

LEGISLATION

Migration Act 1958, ss 140E, 353, 359, 360, 363, 379A
Migration Regulations 1994, rr 2.61, 2.59, 2.60, IMMI 13/030

CASES

Alimi v Minister for Immigration & Anor [2007] FMCA 1520

Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429

Durzi v Minister for Immigration and Multicultural and Indigenous Affairs2006] FCA 1767
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1

Moller v Minister for Immigration and Citizenship [2007] FMCA 168

Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492

Visnumolakala v Minister for Immigration [2006] FMCA 1209

Woo v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1596

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 7 July 2015 not to approve the applicant as a standard business sponsor.

  2. The applicant applied for approval as a standard business sponsor under section 140E of the Migration Act 1958 (‘the Act’) and regulation 2.61 of the Migration Regulations 1994 (‘the Regulations’) on 13 April 2015. The delegate decided not to approve the application on the basis that the applicant did not satisfy the relevant training benchmarks for the purposes of subregulation 2.59(d) of the Regulations. This was on the basis that the applicant had not sufficiently demonstrated recent expenditure of at least 1% of its payroll on the provision of training to its employees who are Australian citizens and Australian permanent residents.

  3. On 7 July 2015 the applicant applied to the Tribunal for review of the delegate’s decision, and included a copy of the primary decision record with the review application.[1]

    [1]     MRT case file 1509117 (T1), f.1-5

  4. The matter was constituted to the Presiding Member on 11 January 2017. The Tribunal has before it the departmental file[2] relating to the applicant. It has also had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.[3]

    [2]     D1 - Departmental file BCC2015/1097343, folio numbered 1-113   

    [3]     T1 - MRT case file 1509117, folio numbered 1-33

    The Tribunal Invitation to Provide Information

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UNITED PHYSIOTHERAPY GROUP PTY LTD (Migration) [2017] AATA 204
Case
[2017] AATA 204
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application by United Physiotherapy Group Pty Ltd for approval as a standard business sponsor. The dispute concerned whether the applicant met the criteria for sponsorship, specifically regarding training benchmarks and payments to industry training funds. The AAT was required to determine if the applicant satisfied the requirements of regulation 2.59 and regulation 2.60S of the Migration Regulations 1994.

The Tribunal was required to assess whether the applicant met the training benchmarks stipulated in IMMI 13/030, as required by subregulation 2.59(d) because the applicant had been trading in Australia for more than 12 months. This involved interpreting the meaning of "recent expenditure" in the context of training. Additionally, the Tribunal considered the broader criteria for standard business sponsors, including any obligations related to payments to industry training funds and evidence of employee training, as outlined in the relevant regulations.

The Tribunal found that the applicant, having been active in Australia since 2002, was required to meet the training benchmarks under subregulation 2.59(d). However, the applicant had not provided evidence of "recent expenditure" on training Australian citizens and permanent residents, nor had it made payments to an industry training fund. The Tribunal concluded that the applicant had failed to satisfy this essential criterion for approval as a standard business sponsor. Consequently, the Tribunal affirmed the decision not to approve the applicant.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.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 regulation 2.59 and the additional criteria in regulation 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: subsection 140E(1).Training benchmarks Subregulations 2.59(d) and (e) contain alternative criteria relating to training requirements that an applicant must satisfy if the applicant is lawfully operating a business in Australia, depending on how long the applicant has been trading. Specifically:·If the applicant has traded in Australia for 12 months or more, the applicant must meet the benchmarks for the training of Australian citizens and Australian permanent residents specified in a written instrument: subregulation 2.59(d). The relevant instrument is IMMI 13/030; If the applicant has traded in Australia for less than 12 months, the applicant must have an auditable plan to meet the benchmarks specified in that relevant instrument (IMMI 13/030): subregulation 2.59(e). In its application form the applicant advised that it trades as ‘United Physiotherapy Group’ in South Yarra, Victoria. It also set out its Australian Business Number (ABN) and Australian Company Number (ACN).[12] Publicly available records from the Australian Business Register and ASIC confirm that this is a registered Australian company that has been active in Australia since 9 December 2002.[13] [12] D1, f.6[13] T1, f.18-21 Accordingly, the Tribunal finds that the applicant has traded in Australia for 12 months or more and, therefore, it must meet the training benchmarks set out in IMMI 13/030 for the purposes of subregulation 2.59(d). Notably, the training benchmarks specified in IMMI 13/030 require the applicant to demonstrate ‘recent expenditure’ by the business on training. This concept is not defined in the legislation. According to the Macquarie Dictionary Online the word ‘recent’ is variously defined to mean: “1. of late occurrence, or origin; lately happening, done made etc.: recent events; 2. not long past, as a period; 3. belonging to such a period; not remote or primitive”.[14] The word ‘expenditure’ is relevantly defined to mean: “1. the act of expending; disbursement; consumption; 2. that which is expended; expense.”[15] [14] T1, f.30 - Accessed 9 February 2017[15] T1, f.31 Therefore, the wording of subregulation 2.59(d) would appear to favour the view that the training expenditure incurred by the applicant should not have taken place at some distant time in the past. However, the wording of this provision does not indicate at what point in time the assessment that the applicant meets the training benchmarks specified in IMMI 13/030 should be undertaken. In other words, subregulation 2.59(d) does not stipulate whether this assessment is to be made at the time the sponsorship application was lodged, or at the time the Tribunal is making its decision, or at both of these points in time.

Decision

Reasons for decision

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 The Tribunal affirms the decision not to approve the applicant as a standard business sponsor.Danica BuljanMemberATTACHMENT - Extracts from the Migration Regulations 19942.59 Criteria for approval as a standard business sponsorFor 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(d)if the applicant is lawfully operating a business in Australia, and has traded in Australia for 12 months or more — the applicant meets the benchmarks for the training of Australian citizens and Australian permanent residents specified in an instrument in writing made for this subregulation; and(e)if the applicant is lawfully operating a business in Australia, and has traded in Australia for less than 12 months — the applicant has an auditable plan to meet the benchmarks specified in the instrument, in writing, made for subregulation (d); 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.(i)the applicant has provided to the Minister the number of persons who the applicant proposes to nominate during the period of the applicant’s approval as a standard business sponsor, and:(i) the proposed number is reasonable, having regard to the information provided to the Minister; or(ii) if the Minister proposes another number of persons as part of considering the application — the applicant has agreed, in writing, to nominate no more than the other number of persons during the period of the applicant’s approval as a standard business sponsor; and(j)if the applicant has previously been a standard business sponsor:(i) the applicant:(A)fulfilled any commitments the applicant made relating to meeting the applicant’s training requirements during the period of the applicant’s most recent approval as a standard business sponsor; and(B)complied with the applicable obligations under Division 2.19 relating to the applicant’s training requirements during the period of the applicant’s most recent approval as a standard business sponsor; or(ii) it is reasonable to disregard subsubregulation (i).[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.

Ratio Decidendi

Legal Principle Established

The Tribunal affirms the decision not to approve the applicant as a standard business sponsor.Danica BuljanMemberATTACHMENT - Extracts from the Migration Regulations 19942.59 Criteria for approval as a standard business sponsorFor 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(d)if the applicant is lawfully operating a business in Australia, and has traded in Australia for 12 months or more — the applicant meets the benchmarks for the training of Australian citizens and Australian permanent residents specified in an instrument in writing made for this subregulation; and(e)if the applicant is lawfully operating a business in Australia, and has traded in Australia for less than 12 months — the applicant has an auditable plan to meet the benchmarks specified in the instrument, in writing, made for subregulation (d); 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.(i)the applicant has provided to the Minister the number of persons who the applicant proposes to nominate during the period of the applicant’s approval as a standard business sponsor, and:(i) the proposed number is reasonable, having regard to the information provided to the Minister; or(ii) if the Minister proposes another number of persons as part of considering the application — the applicant has agreed, in writing, to nominate no more than the other number of persons during the period of the applicant’s approval as a standard business sponsor; and(j)if the applicant has previously been a standard business sponsor:(i) the applicant:(A)fulfilled any commitments the applicant made relating to meeting the applicant’s training requirements during the period of the applicant’s most recent approval as a standard business sponsor; and(B)complied with the applicable obligations under Division 2.19 relating to the applicant’s training requirements during the period of the applicant’s most recent approval as a standard business sponsor; or(ii) it is reasonable to disregard subsubregulation (i).[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.