1413754 (Migration)

1413754 (Migration) [2015] AATA 3858 (15 December 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  SY & HJ Pty Ltd as Trustee for the Ro Family Trust
CASE NUMBER:  1413754
DIBP REFERENCE(S):  OPF2013/7220 OPF2014/4517
MEMBER:Marten Kennedy
DATE:15 December 2015
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to take one or more of the actions specified in s.140M of the Migration Act 1958.
Statement made on 15 December 2015 at 11:10am

STATEMENT OF DECISION AND REASONS

This is an application for review of a decision made by a delegate of the Minister for Immigration to take an action under s.140M of the Migration Act 1958 (the Act) in relation to the applicant’s sponsorship.
The applicant was approved as a Standard Business Sponsor on 17 July 2012. On 23 July 2014, the delegate decided to cancel the applicant as a sponsor, and to bar the applicant for two years from making future applications for approval as a standard business sponsor under s.140M.
The Department found that the applicant had not provided terms and conditions of employment as favourable as those that were approved at nomination contrary to r.2.79(3)(a), and had not ensured the primary sponsored person worked in the nominated occupation contrary to r.2.86.
Having found these obligations had not been satisfied, the Department took into account the prescribed matters in r.2.89(3) and imposed the sanctions mentioned above.
The applicant, represented by its Director Mrs Eun Mee Lee, appeared before the Tribunal on 18 September 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Chun Park. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.
With the consent of the applicant, the hearings in this matter and in matter 1500187 were combined. A separate decision record has been prepared for matter 1500187.
The applicant was represented in relation to the review by its registered migration agent.
CONSIDERATION
Section 140M of the Act provides for the imposition of identified sanctions on approved sponsors in certain circumstances. For these purposes, the circumstances are prescribed in r.2.89 - r.2.94B and include circumstances in which the Minister, or Tribunal on review, is satisfied there has been a failure to satisfy a sponsorship obligation.
Does a circumstance for the taking of an action exist?
Failure to satisfy a sponsorship obligation: r.2.89
The Minister may take one or more of the actions in s.140M if reasonably satisfied the sponsor has failed to satisfy a sponsorship obligation referred to in r.2.78 - r.2.87A of the Regulations in the manner or within the period prescribed: r.2.89(2).
Regulation 2.79 applies to a person who is a standard business sponsor of a primary sponsored person if that person holds a subclass 457 visa, or the last substantive visa held by that person was a subclass 457 visa. The applicant was the sponsor of Mr Chul Park whose last substantive visa was a subclass 457 visa.
Regulation 2.79(3)
The Department found that the applicant had breached r.2.79(3). It found that the applicant had not provided terms and conditions of employment to Mr Park that are no less favourable than the terms and conditions of employment that the Minister was satisfied, under paragraph 2.72(10)(c) of the Regulations, were no less favourable than the terms and conditions of employment that are or would be provided to an Australian citizen or an Australian permanent resident.
Paragraph 2.27(10)(c) of the Regulations falls within the Regulation governing the approval of a nomination of a subclass 457 visa. A criterion for approval under that regulation (r.2.72(10)(c)) is that ‘the terms and conditions of employment of the person identified in the nomination will be no less favourable than the terms and conditions that are provided or would be provided to an Australian citizen or permanent resident performing equivalent work at the same location.
Sub regulation 2.57(3A) provides that a set of terms and conditions of employment for a person are less favourable than another set… if the ‘earnings’ provided for in the first set are less than the earnings provided for in the other set, and there is no substantial contrary evidence that the first set is not less favourable than the other set.
‘Earnings’ are defined at r.2.57A and include wages, amounts applied on the person’s behalf as the person directs and the agreed money value of monetary benefits. Earnings expressly do not include payments that cannot be determined in advance, reimbursements or compulsory employer contributions to superannuation.
In order to assess whether the applicant had not provided ‘terms and conditions of employment to Mr Park that are no less favourable than the terms and conditions of employment that the Minister was satisfied, under paragraph 2.72(10)(c) of the Regulations, were no less favourable than the terms and conditions of employment that are or would be provided to an Australian citizen or an Australian permanent resident’, I must be able to identify the relevant terms and conditions of employment that the Minister was relevantly satisfied of under paragraph 2.72(10)(c) of the Regulations.
In this regard, I have noted that the response by the applicant of to the Notice of Intention to take Action highlighted that the notification of visa approval confusingly refers to the visa holder’s ‘rate of pay’ of $80 000, and the visa holder’s ‘Guaranteed Annual Earnings’ of $73 500. I have taken into account the visa approval notice and confirmed that it refers to these two different concepts and figures.
I have noted that on the Department’s calculations (based on payslip records), if the $80 000 figure is used as representing the ’terms and conditions of employment’, then there will be a breach but if the $73 500 figure is used, there is no breach.
The decision record of the Department in relation to the sponsorship cancellation and bar, in reaching findings as to the breach of r.2.79(3)(a), appears to erroneously substitute the figure of $80 000 for ‘GAE’, before incorrectly attributing the applicant as conceding there to be an underpayment. In fact, the applicant’s position in its written response to the Department was that there was no breach, or that if there was it was the result of misleading information provided by the Department, minor, and had been immediately rectified.
I am unable to identify in the material provided to the Tribunal by the Department a clear expression as to what the Minister was satisfied of for the purposes of r.2.72.(10)(c), and I have no solid basis to discriminate between the figures of $80 000 or $73 500 mentioned on the visa grant notice which is the only record before me that might identify the terms and conditions accepted by the Department when the nomination was approved. I am unable to reach a firm finding as to what the ‘terms and conditions of employment’ the Minister was satisfied of for the purposes of r.2.72.(10)(c) actually were.
I have had regard to the definition of ‘earnings’, and the use of the term ‘Guaranteed Annual Earnings’ on the visa grant notice. I have had regard to the instruction of r.2.57(3A) as to undertaking the comparison between two sets of terms and condition of employment. My approach is to compare the ‘Guaranteed Annual Earnings’ identified on the visa grant notice ($73 500) against the payments actually made to the visa holder, substituting the figure of $73 500 for the figure of $80 000 which I think was incorrectly applied by the Department in undertaking its calculations.
On this basis I find that:
·the terms and conditions of employment that the Minister was satisfied, under paragraph 2.72(10)(c) of the Regulations, were no less favourable than the terms and conditions of employment that are or would be provided to an Australian citizen or an Australian permanent resident are represented by the ‘Guaranteed Annual Earnings’ figure on the visa grant notice. These are ‘earnings’ of $73 500pa; and
·the earnings of the visa holder by reference to payslips produced by the applicant are pro-rated to be the same as that figure – noting that the applicant’s accountant calculated pay on that basis; and therefore
·I am not satisfied that applicant had not provided terms and conditions of employment to Mr Park that are no less favourable than the terms and conditions of employment that the Minister was satisfied, under paragraph 2.72(10)(c) of the Regulations, were no less favourable than the terms and conditions of employment that are or would be provided to an Australian citizen or an Australian permanent resident.
It follows that I am not satisfied that applicant has failed to satisfy the sponsorship obligation prescribed in r.2.79(3A).
I record also for completeness that had I been satisfied that there was a breach of r.2.79(3); for example, if I had concluded that the reference to ‘terms and conditions of employment’ was to be understood as a reference to ‘rate of pay’ in the visa grant notice, or if there had been other evidence before the tribunal identifying a different amount that the Minister had been satisfied of for the purpose of r.2.72(1)(c), I would have accepted the submissions made on behalf of the applicant that such a breach was minor, inadvertent and immediately rectified. I would accept the submission that it was probably the product of confusing terminology in the visa grant notice. I would have placed no adverse weight on the existence of any such technical breach (had I found one) in deciding whether to take action or on what action to take in these circumstances.
Regulation 2.86
Relevantly, sub-regulation 2.86(2) requires that the applicant ensure Mr Park does not work in an occupation unless the occupation was nominated by the person under subsection 140GB(1) of the Act, and the nomination was approved.
Mr Park was nominated and approved to work in the occupation of Sales and Marketing Manager (ANZSCO 131112). In forming a view as to whether it can be said that Mr Park does not work in that occupation, I have had regard to the description of tasks set out in the ANZSCO:
·directing the development and implementation of sales strategies and setting sales targets in order to maximise an organisation's sales and customer loyalty
·directing the development and implementation of strategies to promote an organisation's goods and services to as many people as possible
·directing the development and implementation of strategies to generate increased consumption of an organisation's goods and services through the creation and reinforcement of 'brand image' or 'brand loyalty'
·directing the development and implementation of strategies to build and maintain an organisation's image and reputation with its customers, investors and the wider public
In making the allegation that Mr Park does not work in the approved occupation, the Department states:
·Neither the sponsor nor the sponsored person were able to provide the Department with any evidence to indicated the sponsored person is performing duties commensurate with an occupation of a Sales and Marketing Manager;
·The sponsor was unable to provide any evidence to quantify Mr Park’s contribution to the growth of the business;
·The sponsored person was unable to provide any evidence to indicate he was performing duties of a Sales and Marketing Manager;
·The duties described by both the sponsor and the sponsored person during the interview were more aligned to a position of a lower skill and not consistent with the requirements of the skilled occupation of a Sales and Marketing Manager;
·Mr Park was not present when departmental staff attended or contacted the premises on 8 April 2013, 16 December 2013 and 16 April 2014;
·Evidence obtained by the department indicated the sponsored person is working for a separate entity in breach of condition 8107;
·Evidence provided by the sponsored person indicating his employment with a separate entity in breach of visa condition 8107.
The Department also refers to observations made during the site visit, and statements provided by both the sponsor and the sponsored person.
In response, the applicant conceded that little or no information was provided to support the claimed role with the organisation, but provided further information, including a statement of the Proprietor of the applicant (Ms Lee), and a job description document.
The statement of Ms Lee is detailed and has obviously been prepared with care. Ms Lee acknowledged that the statement was correct and complete at the hearing.
Relevantly, in her statement Ms Lee said that the turnover of her business increased from $581 961 in the year ended 31 August 2012 to $608 691 in the year ended August 2013. She outlined aspects of her business she said described the complexity of the business (at [29]). This included ‘the need to market the store to the local community and to look at the pricing and activities of competitors’ and ‘sales and marketing duties including advertising, customer service and online presence and ordering’.
Ms Lee stated that she tends to focus on the financial side of the business while the balance of management duties are undertaken by her husband and Mr Park.
Ms Lee set out examples of work undertaken by Mr Park.
As to ‘formulating and implementing policies and plans for advertising, public relations and sales and marketing’, Ms Lee states that Mr Park is involved in liaising with suppliers in Sydney and Melbourne regarding sourcing of products, and makes decisions together with the owners about where to advertise. Ms Lee describes his involvement in an online ordering project that was abandoned.
As to ‘directing the development of initiatives towards new products, marketing and advertising campaigns’, Ms Lee states that Mr Park is involved in responding to demand for particular products and sourcing them from suppliers in Asia. Ms Lee states that Mr Park’s judgement and experience is used to adjust product mix to meet the demands of the market, citing examples of preferences for different goods between different ethnicities.
Ms Lee states that Mr Park was involved in only a peripheral way in setting prices and credit arrangements, but points to his fluency in Korean and English as an asset.
At the hearing, I took Ms Lee through the description of tasks for a Sales and Marketing Manager as set out in ANZSCO. I also drew attention to provision in ANZSCO as to the qualifications a person undertaking that occupation might have and the comparative skill level. I pointed out the occupation in question is Skill level 1, generally requiring a person to hold a University degree – suggesting I would expect it to be in a relevant area such as commerce or marketing. I explained I would look beyond the particular job title given to the position on paperwork and in contracts.
I asked Ms Lee to tell me more about her business. She confirmed it was an Asian supermarket located on Norwood Parade. She said that shop was not particularly big. The turnover is in the order of $870 000 at present. There are currently no employees. The business needs staff but has been unable to retain staff after they are trained. Ms Lee said the work is hard because goods are received every day and need to be lifted. Checking expiry dates is also laborious. The business stocks more than 5000 items.
The customers of the shop are mainly ordinary customers. The business once supplied to IGA but no longer does so. The business supplies several large restaurant customers.
Ms Lee confirmed that both she and her husband work in the business. Occasionally her son and daughter may help out.
I raised my concern that the size and scope of the business being described to me did not seem to justify a genuine need for a dedicated Sales and Marketing Manager. I observed that Ms Lee was describing a relatively small retail supermarket where both owners were present, and I was struggling to understand why it needed a Sales and Marketing Manager when regard was had to the description of that occupation in ANZSCO.
Ms Lee said that neither she nor her husband spoke English well, and she had been unwell when the business was first opened. Her plan had been that if the business went well they may have opened another.
I raised another concern. I explained I was not required to determine if Mr Park was qualified to be a Sales and Marketing Manager, but I considered that a person’s qualifications may reflect on whether the occupation they were performing was in fact what it was represented to be. I observed that in this particular case, Mr Park had tertiary qualifications, but they were in physical education and not in a relevant field. I explained this made me wonder whether the position really was a Sales and Marketing Manager position when the person in the position had no relevant qualifications.
Ms Lee said the concept of ‘manager’ was different in Korea to the concept I had described when I went through the provisions of ANZSCO. She said that had she known of the description of the occupation, they would have looked for someone with relevant qualifications.
I reiterated that my concerns as to whether Mr Park had been performing the approved occupation were primarily the size and scope of the business, the presence of the owners in the business, and also the qualifications of the person in the position did not appear to be relevant.
I also afforded Ms Lee a further opportunity to respond to the allegations relied upon by the Department. In the course of doing so, Ms Lee explained that she valued Mr Park because he was able to perform his duties without supervision, providing an example of him undertaking work in the warehouse. She explained that even if I were to class this as a lower class of work, he was nonetheless required.
I suggested to Ms Lee that I would not expect to find a Sales and Marketing Manager undertaking tasks in a warehouse. In response, Ms Lee emphasised the number of items stocked by the business and the need to ensure product rotation and expiry dates. I explained that I would not expect to find a Sales and Marketing Manger checking expiry dates of stock in a supermarket. Ms Lee said that it was not his main job. I asked if Mr Park would work on the checkout. Ms Lee told me if it was very busy he would.
As to the allegation that Mr Park was not there at all during visits by immigration officers, Ms Lee told me that on the first occasion he was at the warehouse, on the second occasion he was delivering goods and on the third occasion he was in the store. I asked if he would deliver goods. Ms Lee said it might be if there were new goods to show a customer.
I asked Ms Lee if she wished to say anything about the Department’s allegation that Mr Park was working elsewhere. Ms Lee told me that until it was alleged by the Department, she didn’t know. Ms Lee said she would have asked him more about it if she had known, but after the allegation had arisen she enquired about it and was told Mr Park was under financial stress due to his daughter securing a scholarship at a private school.
I also took evidence from Mr Park. I explored the evidence given by Ms Lee regarding the tasks undertaken by Mr Park in relation to attempting to secure orders from large restaurant customers.
Mr Park explained the restaurant would order three times a week, and there were many Korean and sushi restaurants in Adelaide. Mr Park said he would focus on this market and new restaurants opened in the city. I asked what specifically he did when he referred to focussing on the restaurants. Mr Park he specifically did. He said he thought about how best to service the restaurants and would adjust the price competitively after researching interstate suppliers.

I referred Mr Park to his statutory declaration (6 June 2014). Mr Park told me he was happy to rely on that statement, and I have had regard to it. The statement refers to Mr Park’s job description. Mr Park explains he has tried to develop the business by word of mouth referrals and placing advertisements in an online advertising publication. He explains his job involves liaising with suppliers in Korea and other parts of Asia. He states he is responsible for delivering products to customers and manage stocktake. He also meets with the owners to discuss matters such as the popularity and availability of goods.
The job description document reproduces / paraphrases the general description of tasks in ANZSCO. It also identifies specific tasks on a daily, weekly, monthly and quarterly basis.
Daily, Mr Park is to serve customers, deliver goods, check products, order goods and control inventory.
Weekly, Mr Park is to plan weekly specials move products to a warehouse, check expiry dates and adjust prices by monitoring competition and inventory.
Monthly, Mr Park is to review complaints, make lists of most and least popular products and plan better offers to customers. Mr Park is to pay bills.
Quarterly, Mr Park is to make projections as to sales volume, ‘maintain’ sales volumes and product mix etc and have contact witthe accountant for preparation of BAS.
I have had regard also to testimonial letters from various customers and suppliers.
I accept Ms Lee’s and Mr Park’s evidence as to the tasks he has undertaken for the applicant. I do not accept however that these tasks can be characterised as the tasks of a Sales and Marketing Manager as that occupation is described in ANZSCO.
I do not accept that tasks such as attending to monitoring of expiry dates, directly serving retail customers, moving products between a store and warehouse, paying bills and the like are sufficiently highly skilled or of the character of the tasks described in ANZSCO to characterise the occupation as a Sales and Marketing Manager.
I note some reference to the monitoring of sales, the formulating of specials, approaching restaurant customers and placing advertising. These tasks in my view tend more to be within the scope of the occupation of a Sales and Marketing Manager, but I do not accept that the regularity or proportion of the applicant’s time spent on such tasks serves to characterise the occupation as a Sales and Marketing Manager. My findings in this regard are consistent with the job description document I have referred to above.
I am reinforced in these findings by the observation that Mr Park does not hold relevant qualifications to perform the occupation of Sales and Marketing Manager.
I am further reinforced in these findings by the evidence of Ms Lee that she and her husband remain involved in the oversight of the business.
I am further reinforced in these findings by the evidence of Ms Lee as to the size and nature of the business. I do not accept that a relatively small Asian supermarket has a need for a designated Sales and Marketing Manager in addition to its two ‘hands-on’ owners, and it follows that I do not accept that is the correct characterisation of the occupation Mr Park is involved in.
I consider that Mr Park’s occupation would be more accurately described as a Retail Manager – ANZSCO 142111. I note in this regard that the tasks of that occupation, according to ANZSCO are:
·determining product mix, stock levels and service standards
·formulating and implementing purchasing and marketing policies, and setting prices
·promoting and advertising the establishment's goods and services
·selling goods and services to customers and advising them on product use
·maintaining records of stock levels and financial transactions
·undertaking budgeting for the establishment
·controlling selection, training and supervision of staff
·ensuring compliance with occupational health and safety regulations
I am positively satisfied that Mr Park was working in an occupation other than the occupation that was nominated by the applicant under subsection 140GB(1) of the Act, and was approved. I find that the applicant has failed in its obligation to ensure the primary sponsored person does not work in an occupation unless the occupation was nominated by the applicant and approved by the Minister under subsection 140GB(2) of the Act.
Action to be taken
It is necessary to consider whether one or more of the actions mentioned in s.140M should be taken.
The criteria to be considered where there is failure to comply with sponsorship obligation are set out in r.2.89(3). In considering what action to take, the Tribunal has had regard to those prescribed criteria.
As to the applicant’s past and present conduct of the person in relation to Immigration, I take into account that the Department visited Ms Lee to educate the applicant about its obligations as a sponsor in March 2013 and that Ms Lee has been cooperative and responded to all requests.
Written submissions contend that the applicant has endeavoured to meet all sponsorship obligations and sought accounting advice regarding the requirements in the Regulations.
I have no adverse information before me in relation to the applicant’s conduct in relation to immigration.
As to the number of occasions on which the person has failed to satisfy the sponsorship obligation, I take into account there is no occasion other than the failure I have identified in the course of this review. I take into account that I have found one instance of failure to satisfy sponsorship obligations.
As to the nature and severity of the circumstances relating to the failure to satisfy the sponsorship obligation, including the period of time over which the failure has occurred, and whether, and the extent to which the failure to satisfy the sponsorship obligation was intentional, reckless or inadvertent, it is submitted in written submissions that the breach should be viewed as minor, albeit the submission is in the context of the alleged breach that I am not satisfied is made out. No specific submissions are made in the written submissions about the breach of sub-regulation 2.86(2).
I note that the Department has expressed the view that the breach of sub-regulation 2.86(2) is a serious failure. The Department viewed the breach of that obligation as intentional.
Ms Lee submitted that she did not know it was viewed as such a serious matter, and reiterated that her business needed a person such as Mr Park. Ms Lee submitted that if it was such an important issue, the Department should not have issued the 457 visa to Mr Park. If she knew those criteria were required (the ANZSCO tasks and qualifications) she would have looked for a person who met the criteria.
I explored with Ms Lee the advice she had received in nominating the particular occupation. Ms Lee told me she saw an agent (not the representative before the tribunal) but the agent did everything and explained nothing. I asked if the agent had asked about he business and the position that needed to be filled. Ms Lee said it was only mentioned that it was a manager and nothing more specific.
I asked if there was anything else Ms Lee wanted to tell me about her dealings with her former migration agent that led to the identification of Sales and Marketing Manager as the occupation, particularly given that it was her business that would be receiving any sanction that I determined should be imposed. Ms Lee said she had no complaint about the agent because the visa was approved quickly. I observed that she was nonetheless in the present situation facing a possible sanction. Ms Lee said she had been unable to contact her former agent to assist with the current issue, and so she had engaged her current agent.
In my view, the breach is best described as a fundamental breach, in that it goes to the very purpose of the 457 visa scheme. It is fundamental in the sense that the scheme envisages that visas are granted to meet specific skill shortages, and this purpose is defeated when visa holders work other than in the approved occupation. I would not characterise the breach as serious in a sense that connotes a calculated fraud or exploitation of a visa applicant on the part of the sponsor. To the contrary, I accept that Ms Lee did not appreciate the significance or the specificity of the occupation description. Other than the identification of a manifestly inappropriate ANZSCO occupation, I am unable to point to any clear examples of a false statement as to the duties being undertaken by Mr Park.
To the contrary, I have examined the Job description document held on the Departmental file. It refers to the kinds of tasks the subject of Ms Lee’s evidence, such as checking inventory, serving customers and delivery of items. These are all tasks that are not the tasks of a tertiary qualified skill level 1 Sales and Marketing Manager, and yet the nomination was approved by the Department.
Furthermore, I observed that throughout the hearing Ms Lee sought to convince me of the need for Mr Park to work in her business, often providing examples of work he did for her regardless of the work not being related to the occupation of Sales and Marketing Manager.
In summary, I would describe the breach as objectively fundamental in the context of the 457 scheme, and in that sense significant and serious. The breach is not however the product of misleading information being provided to the Department about the tasks or duties proposed for the position prior to its approval. It is not calculated (on the part of the applicant) and I do not consider it fraudulent or exploitative of Mr Park. In that sense I do not consider the breach to be serious, but in the sense of the fundamental incompatibility of the breach with the purpose of the 457 scheme, the breach is serious.
Accepting Ms Lee’s evidence that she did not appreciate the description of the occupation in ANZSCO or the seriousness with which the Department viewed the matter, I would not characterise the breach as either inadvertent or intentional, but perhaps the best description is that it is ‘reckless’, albeit that description is imperfect.
As to the period of time over which the person has been an approved sponsor, I take into account that the applicant was approved as a sponsor on 17 July 2012, and the sponsorship would have now ceased in any event:
As to whether, and the extent to which, the failure to satisfy the sponsorship obligation has had a direct or indirect impact on another person, the Department observed that Mr Park’s visa may be cancelled as he appeared to be in breach of condition 8107. I take that into account.
As to whether, and the extent to which, the sponsor has cooperated with Immigration, including whether the person informed Immigration of the failure, I note the submission that the sponsor was unaware of the breach. I take into account that the sponsor had not appreciated there was an ongoing breach, and so had not informed Immigration. I note the Department otherwise acknowledges that the applicant has cooperated with the Department.
As to the steps (if any) the person has taken to rectify the failure to satisfy the sponsorship obligation, including whether the steps were taken at the request of Immigration or otherwise, I identify no overt steps undertaken by the applicant in this regard. I understand that Mr Park is not working for the applicant at present. The nature of the breach is not amenable to the undertaking of rectifying steps in my view.
As to the processes (if any) the person has implemented to ensure future compliance with the sponsorship obligation, I identify no overt processes implemented to ensure compliance with the sponsorship obligation that was breached. As mentioned above, the breach relates to the fundamental nature of the occupation nominated and approved, and is not an issue amenable to the implementation of processes for future compliance.
In submissions, the applicant’s agent observed that nothing had changed in the business between the time the nomination was approved and the time the Department commenced its monitoring, shortly after the visa was granted.
In relation to sanction, it was submitted that the imposition of a sanction against the applicant may have ramifications in relation to other migration applications being made by the applicant, and specifically Ms Lee’s application for permanent residence. It was submitted this may not be justified in circumstances where the applicant had not misled the Department as to the nature of the tasks being undertaken and nothing had changed in the business.
It was submitted that the applicant and Mr Park have been honest witnesses as to the tasks being undertaken and that the breach may be the product of a divergence of opinion of the correct characterisation of the occupation. It was submitted that the breach in that sense was not deliberate, and the breach may have been supported by the Department’s decision to approve the nomination as a Sales and Marketing Manager.
I accept the submissions of the applicant. While I consider the breach to be fundamental in the way I have elaborated upon above, I accept it was not deliberate. To the contrary, I accept that the applicant had accurately described the specific tasks that were to be undertaken by Mr Park. I accept that there was no material change, and the applicant had not misled the Department about what was proposed, other than the selection of an ANZSCO occupation code that I have concluded was inappropriate.
In these circumstances, I have considered carefully what action to take. It is significant in my view that the approval of the standard business sponsorship has now ceased in any event according to its terms at the time of approval (17 July 2015).
In circumstances where insufficient care and insight into the selection of the ANZSCO occupation description was used by the applicant and those advising the company at the time of a related nomination application, I consider it would ordinarily be appropriate to, at least, cancel the sponsorship and require a fresh assessment to be made of any future application for approval and nominations by the sponsor. It would be appropriate in my view to send a message to sponsors and those who advise them that inaccurate occupation descriptions will carry a sanction. In these circumstances, even where the breach is unintentional, it would not be appropriate in my view to take no action.
However, in the applicant’s case, the sponsorship has ceased in any event and the applicant is not currently in a position to nominate positions for approval under the 457 scheme. I found that Ms Lee’s concerns as to unforeseeable consequences of a sanction being imposed on her application for a permanent visa to be persuasive. As I have found that the applicant had provided fundamentally accurate descriptions of the specific tasks to be undertaken in the position, I do not consider that a risk of adverse consequences in this regard is justified by reference to the conduct of the applicant.
In the circumstances of this case, I consider it is sufficient that the sponsorship has ceased, and a fresh application for approval will need to be made before any nomination of a position can be made. I do not think the conduct of the applicant in all the circumstances requires the sanction of cancellation of the sponsorship or the bar imposed to be affirmed.
Considering the totality of the circumstances, and having regard to the prescribed criteria the Tribunal finds that none of the actions under s.140M should be taken.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to take one or more of the actions specified in s.140M of the Migration Act 1958.
Marten Kennedy
Member

[2015] AATA 3858

15 December 2015

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction