Win & Roam Pty Ltd (Migration)
[2017] AATA 79
•5 January 2017
Win & Roam Pty Ltd (Migration) [2017] AATA 79 (5 January 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Win & Roam Pty Ltd
CASE NUMBER: 1507554
DIBP REFERENCE(S): BCC2015/1047059
MEMBER:Katie Malyon
DATE:5 January 2017
PLACE OF DECISION: Sydney
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 05 January 2017 at 12:37 pm
CATCHWORDS
Migration – Standard Business Sponsor Refusal – r.2.59(d) – Training benchmarks – Lawfully operating business – Payment to an external training provider – Declaration regarding discriminatory recruitment practices
LEGISLATION
Migration Act 1958, s 140E
Migration Regulation 1994, r.1.13, r.2.59, r.2.60, r.2.61STATEMENT 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 on 29 May 2015 not to approve the applicant, Win & Roam Pty Ltd (Win & Roam) 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 Migration Regulations 1994 (the Regulations) on 7 April 2015. The delegate decided not to approve the application on the basis that Win & Roam did not satisfy r.2.59(d) of the Regulations because it did not demonstrate that it had met the training benchmarks for the training of Australian citizens and permanent residents as specified in an instrument in writing made for the purposes of r.2.59(d) of the Regulations.
Mr Alan Win and Mr Dustin Leonard, Directors of Win & Roam, appeared before the Tribunal on 19 September 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Win & Roam shareholder Mr James Lawrence. After the hearing, Win & Roam provided evidence to the Tribunal of appointment of a representative. The company’s representative provided further documentation and submissions after the hearing.
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 of as a standard business sponsor in accordance with the criteria in r.2.59 and the additional criteria in r.2.60S of the Regulations, which must be satisfied regardless of when the application for approval was made. The criteria for approval as a standard business sponsor are set out Annexure A to this decision. For the application to be approved, all the requirements must be met: s.140E(1) of the Act.
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.
From the documents on the Departmental file the Tribunal is satisfied that the applicant to made the application for approval in accordance with the approved form and paid the prescribed fee.
Given the above finding, the requirement in r.2.59(a) of the Regulations is met.
Not an existing sponsor
Regulation 2.59(b) requires that the applicant is not a standard business sponsor.
The Tribunal is satisfied that, having considered departmental records, Win & Roam is not currently approved as a sponsor.
Therefore, the requirement in r.2.59(b) of the Regulations is met.
Lawfully operating business
Regulation 2.59(c) requires that the applicant is lawfully operating a business either in or outside Australia.
The Tribunal has been provided with extensive evidence demonstrating that Win & Roam is lawfully operating a business in Australia. The evidence includes ASIC reports, multiple Business Activity Statements (BAS), company tax returns lodged with the ATO, PAYG payment summary statements for employees as well as national awards won by the company.
Based on the evidence provided the Tribunal is satisfied of the lawful operation of the business of Win & Roam. Given this finding, the requirement in r.2.59(c) of the Regulations is met.
Training benchmarks
Regulations 2.59(d) and (e) contain alternative criteria relating to training requirements an applicant must satisfy if the applicant is lawfully operating a business in Australia depending on how long the applicant has been trading.
Evidence before the Tribunal is that Win & Roam has been trading in Australia for more than 12 months. Therefore, it must meet the requirements of Training Benchmark A or Training Benchmark B as specified in IMMI 13/030 dated 28 June 2013 set out in Annexure B. Under Training Benchmark A, the applicant is required to demonstrate recent expenditure, by the business, to the equivalent of at least 2% of the payroll of the business, in payments allocated to an industry-training fund that operates in the same industry as the business. In the alternative, to satisfy Training Benchmark B an applicant must show recent expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business.
The term “the payroll of the business” is not defined in the Act, the Regulations or in IMMI 13/030. Consistent with immigration policy, payroll expenditure includes any wages, remuneration, salary, commission, bonuses, allowances, superannuation contributions (mandatory or otherwise) or eligible termination payments that are defined as wages in the legislation relating to payroll tax in the relevant State/Territory. Policy also notes that when providing evidence regarding the applicant’s recent expenditure on training and payroll, the evidence must cover the same 12 month period.
Win & Roam’s payroll of the business for the 12 month period 1 October 2015 to 30 September 2016, as confirmed by the BAS lodged with the Tribunal, is $271,755. Two percent of this figure is $5,435 and 1% is $2,717. Win & Roam has also provided evidence to the Tribunal of training expenditure in the 12 month period ending 30 September 2016 in the sum of $3,520. The evidence confirms payment to an external provider to deliver training for Win & Roam’s Australian employees. This exceeds the 1% threshold of Training Benchmark B in the 12 months to 30 September 2016. Accordingly, on the basis of this information the Tribunal is satisfied Win & Roam meets Training Benchmark B.
As the applicant is required to meet r.2.59(d) of the Regulations and given the above findings, the requirements in r.2.59(d) of the Regulations are 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) of the Regulations.
The sponsorship application form lodged by Win & Roam contains the relevant attestation.
Therefore the requirement in r.2.59(f) of the Regulations 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 ‘adverse information’ and ‘associated with’ are defined in r.1.13A and r.1.13B respectively of the Regulations.
There is no adverse information before the Tribunal in relation to Win & Roam or a person associated with the company. This was confirmed at the hearing.
Therefore the requirement in r.2.59(g) of the Regulations 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 Win & Roam is applying for sponsorship on the basis of a business it operates in Australia, the requirement in r.2.59(h) of the Regulations does not apply.
Number of nominees
Regulation 2.59(i) requires the applicant to have 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. This number must be reasonable, having regard to the information provided to the Minister or, alternatively, if the Minister proposes another number, the applicant must have agreed in writing to nominate no more than the other number of persons during the period of the approval as a standard business sponsor.
The sponsorship application form lodged with the Department indicates that Win & Roam proposes to nominate 3 foreign nationals in the business. Having regard to evidence provided confirming growth of Win & Roam since its establishment in 2012 the Tribunal considers the number proposed by Win & Roam is reasonable. Evidence provided to the Tribunal includes details of contracts with Australia’s largest FMCG retailers including Woolworths, Coles and IGA/Metcalfe as well as the Countdown stores in New Zealand. In addition, Win & Roam’s Director Dustin Leonard told the Tribunal of current negotiations with major grocery retailers in China and the United Kingdom.
Therefore, the requirement in r.2.59(i) of the Regulations is met.
Training requirements
Regulation 2.59(j) applies only where the applicant has previously been a standard business sponsor. In these cases, the applicant must have fulfilled any commitments made relating to meeting its training requirements and must have complied with the applicable obligations relating to the training requirements during the applicant’s most recent approval as a standard business sponsor, unless it is reasonable to disregard this.
As Win & Roam has not previously been a standard business sponsor, the requirement does not apply.
Additional criteria
Regulation 2.60S provides for additional criteria that must be met for the sponsorship to be approved. A copy of the criteria, as relevant to this case, is set out in the Attachment 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; and
·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) of the Regulations.
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) of the Regulations.
These requirements may however be disregarded if the Tribunal considers it reasonable to do so: r.2.60S(4) of the Regulations.
There is nothing before the Tribunal which raises concerns in relation to whether Win & Roam has taken or sought to take any action as set out above, and the Tribunal is satisfied that the additional criteria in r.2.60S of the Regulations are met.
Conclusion
For the reasons given above, the Tribunal finds that Win & Roam meets all the applicable criteria prescribed in the Regulations to be approved as a standard business sponsor. The Tribunal finds that, consistent with immigration policy, the term of approval as a standard business sponsor is 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.
Katie Malyon
MemberANNEXURE A - 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
(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 paragraph; 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 paragraph (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 subparagraph (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.
oOOo
ANNEXURE B - Federal Register of Legislative Instruments F2013LO1236
IMMI 13/030
Commonwealth of Australia
Migration Regulations 1994
SPECIFICATION OF TRAINING BENCHMARKS AND TRAINING REQUIREMENTS
(Paragraphs 2.59(d), 2.68(e), subregulations 2.87B(2) and 2.87B(3) and sub-sub-subparagraph 5.19(4)(h)(i)(B)(I))I, BRENDAN O’CONNOR, Minister for Immigration and Citizenship, acting under regulations 2.59, 2.68, 2.87 and 5.19 of the Migration Regulations 1994 (‘the Regulations’):
1. REVOKE instrument IMMI 12/062 signed on 12 June 2012 specifying the benchmarks for the training of Australian citizens and Australian permanent residents, for the purposes of paragraphs 2.59(d) and 2.68(e) and sub-sub-subparagraphs 5.19(4)(h)(i)(B)(I) and 5.19(4)(h)(i)(B)(II) of the Regulations: AND
2. SPECIFY for the purposes of paragraphs 2.59(d) and 2.68(e) and sub-sub-subparagraph 5.19(4)(h)(i)(B)(I) of the Regulations that the benchmarks for the training of Australian citizens and Australian permanent residents are those listed at Schedule A to this Instrument.
3. SPECIFY for the purposes of subregulations 2.87B(2) and 2.87B(3) of the Regulations that the requirements relating to training that the person must comply with, are the benchmarks for the training of Australian citizens and Australian permanent residents listed at Schedule A to this Instrument. This Instrument number IMMI 13/030 commences on 1 July 2013, immediately after commencement of the Migration Legislation Amendment Regulation 2013 (No. 3).
Dated June 28 2013
Brendan O’Connor
Minister for Immigration and CitizenshipSCHEDULE A
Training Benchmarks
The business is not required to demonstrate that they are an industry leader in training. The business is required to show that the training that has been, and continues to be, provided to employees who are Australian citizens and Australian permanent residents is related to the purpose of the business.
The training benchmarks for an established business are:
A) Recent expenditure, by the business, to the equivalent of at least 2% of the payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business.
OR
B) Recent expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business.
Expenditure that can count towards this benchmark includes:
- paying for a formal course of study for the business’s employees who are Australian
citizens and Australian permanent residents or for TAFE or University students, as part of the organisational training strategy
Qualifications Framework for the business’s employees who are Australian citizens and Australian permanent residents or, for TAFE or University students, as part of the organisational training strategy- funding a scholarship in a formal course of study approved under the Australian
- employment of apprentices, trainees or recent graduates on an ongoing basis in numbers proportionate to the size of the business
- employment of a person who trains the business’s Australian employees who are Australian citizens and Australian permanent residents as a key part of their job
- evidence of payment of external providers to deliver training for Australian employees
- on-the-job training that is structured with a timeframe and clearly identified
- increase in the skills at each stage, and demonstrating:
- the learning outcomes of the employee at each stage;
- how the progress of the employee will be monitored and assessed;
- how the program will provide additional and enhanced skills;
- the use of qualified trainers to develop the program and set
assessments; and
- the number of people participating and their skill/occupation
Expenditure that cannot count towards this benchmark includes training that is:
- delivered on-the-job, other than on the job training which meets the requirements
outlined above under the heading ‘expenditure that can count towards this
benchmark’
- confined to only one or a few aspects of the businesses broader operations, unless
the training is in the primary business activity
- only undertaken by persons who are not Australian citizens or permanent residents
- only undertaken by persons who are principals in the business or their family members
- only relating to a very low skill level having regard to the characteristic and size of the business.
oOOo
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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