Partnership Able to Sponsor One of the Partners as a 457 Applicant

The MRT found that a partnership could be an employer sponsor of one of the partners for a subclass 457 visa. In Powercrete 071851799 [2008] MRTA 825 (11 September 2008), which was a concreting business, the partnership consisted of a two person partnership and the MRT concluded:

The primary decision maker disallowed the application on the basis that the applicant for approval as a standard business sponsor is a partnership, one member of which is also the applicant for a subclass 457 visa, and that the partnership was hence proposing to enter, quite unlawfully, into an employment contract with itself. The delegate was probably correct in his understanding of contract law as it applies to unincorporated entities. However, the express wording of the provision does not require such an assessment to be made. It merely requires that the applicant for approval proposes to be the direct employer of the proposed visa holder. In the instant case, that is precisely what the applicant for approval proposes to be. As such, the requirement is met. The legal impermissibility of forming such a contractual relationship is, in the Tribunal’s view, a matter relevant to the assessment of the application for a subclass 457 visa, rather than the approval of the nomination itself.

A side issue was the fact that one of the partners had been unlawful for a period of time and therefore may have fall foul of the compliance with migration laws requirements. But the MRT found the partner was unlawful in his private capacity:

The Tribunal has sought legal advice in relation to the question whether, where ‘the applicant’ is an unincorporated entity as in the present case, its ‘compliance with immigration laws’ refers to the migration and compliance history of each partner, and whether that history is confined to the period or periods in which the unincorporated entity existed. It is satisfied that there is no legal principle that compels the conclusion that every action of a member of the applicant body is an action of the applicant body as such. Any member of an applicant body may act in a personal capacity, which does not implicate the entity of which he is a member. Nor can that history, in the Tribunal’s view, coherently or justly be taken to encompass a period or periods when the partnership (i.e. the applicant) did not exist. On that basis, the Tribunal considers that Mr Lockley’s actions in overstaying his visa and residing in Australia as an unlawful non-citizen were undertaken in a purely private capacity, and that they are not and were not the actions of the partnership of which he is a member. Nothing adverse is known of him in his capacity as a member of the partnership, nor of Mr Dukes, the other member of the partnership. The Tribunal hence finds that the applicant does have a satisfactory record of compliance with the immigration laws of Australia and consequently finds that paragraph (e) is satisfied.