1718060 (Migration)

[2019] AATA 6349

1718060 (Migration) [2019] AATA 6349 (16 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1718060

MEMBER:Alison Mercer

DATE:16 October 2019

PLACE OF DECISION:  Melbourne

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 16 October 2019 at 3:46pm

CATCHWORDS
MIGRATION – standard business sponsor – cancellation of approval as sponsor and two-year bar on applying again – departmental monitoring found two sponsored workers not present – worker worked mainly from home, coming to office when necessary – obligation to ensure equivalent terms and conditions – worker paid less than employment contract specified – pregnancy complications required extra unpaid leave – obligation to keep and provide records – partial response to request to provide records – unable to send documents by email, so sought fax number – no response from department – documents provided to tribunal – obligation to ensure sponsored worker works in nominated occupation – worker’s job description and actual duties compared with ANZSCO occupation description – worker undertaking lower skill level clerical tasks – pregnancy and introduction of National Disability Insurance Scheme – filling out NDIS forms not a purely clerical duty, but requiring in-depth understanding of individual’s situation and needs – worker since ceased employment – two-year bar expired before tribunal hearing – no breach of two obligations and inadvertent and minor breach two others – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 140L(1)(a), 140M(1)(a), (d)

Migration Regulations 1994 (Cth), rr 2.79, 2.82. 2.83(3)(e), 2.86, 2.89(2)

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 to take an action under s.140M of the Migration Act 1958 (the Act) in relation to the applicant’s sponsorship.

2. The applicant, [the company], was approved as a standard business sponsor for the first time from 14 November 2011 to 14 November 2014. It was approved as a standard business sponsor for a second time from 28 September 2015 to 28 September 2020. On 27 July 2017, the delegate decided to cancel the applicant’s approval as a standard business sponsor and to impose a 2 year bar on the applicant applying again for approval under s.140M on the basis that the applicant had breached its sponsorship obligations to the Department.

3. The Tribunal received a review application in respect of this decision on 15 August 2017. It was lodged on behalf of the applicant by [a] director of the applicant.  The review application was accompanied by a copy of the delegate’s decision and an authority by which [the Director] appointed a registered migration agent [as] the applicant’s representative and authorised recipient for correspondence.

4. On 8 March 2018, the applicant’s agent provided a legal submission accompanied by a n extensive range of documents in support of the case to the Tribunal.

5. On 1 August 2019, the applicant’s agent provided further legal submissions to the Tribunal.

6. On behalf of the applicant, [the Director] appeared before the Tribunal on 28 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence from [Employee 1].  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. Following the hearing, the Tribunal received additional submissions from the applicant’s agent on 30 September 2019, with accompanying documents.

8. For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision not to take one or more of the actions specified in s.140M.

   CONSIDERATION OF LAW, CLAIMS AND EVIDENCE

9. Sections 140K, 140L and 140M of the Act provide for the imposition of sanctions on approved sponsors in certain circumstances. 

10. Under s.140M, if prescribed circumstances exist, the Minister (and the Tribunal on review) may take one or more of the following actions:

    ·cancelling the sponsorship approval in relation to a class to which the sponsor belongs;

    ·cancelling the sponsorship approval for all classes to which the sponsor belongs;

    ·barring the sponsor for a specified period from sponsoring more people under the terms of any existing approval; and

    ·barring the sponsor for a specified period from making future applications for sponsorship approval in relation to one or more classes of sponsor.

11. 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; provision of false or misleading information; sponsorship application or variation criteria no longer met; a contravention of the law; unapproved changes to a program; a failure to pay additional security; a failure to comply with certain terms of an agreement; or a failure to pay medical and hospital expenses.

12. Where a prescribed circumstance has been found to exist, the Regulations prescribe criteria that must be taken into account when determining what action, if any, to take: r.2.89 – r.2.94B. These criteria, as they relevantly apply to the circumstances of this case are set out in the attachment to this decision.

    Departmental history

13. The Department’s records indicate that the applicant was approved as a standard business sponsor on 2 occasions, from 14 November 2011 to 14 November 2014, and from 28 September 2015 to 28 September 2020.

14. They further indicate that on 26 October 2015, the Department approved a nomination application by the applicant in respect of [Employee 1]’s subclass 457 visa application, which specified his position as a Community Worker (ANZSCO code 411711) with Guaranteed Annual Earnings (GAE) of $53,900 per year.  On 26 March 2016, the Department approved a second nomination application by the applicant, this time in respect of [Employee 2]’s subclass 457 visa application, which specified her position as a Community Worker (ANZSCO code 411711) with Guaranteed Annual Earnings (GAE) of $53,900 per year.

15. The Department commenced monitoring of the applicant on 27 March 2017, and on 5 April 2017, Department officers conducted a site visit to the applicant’s premises. They found that the 2 sponsored employees were not present, and they interviewed the applicant’s director, [the Director].

16. The Department’s records indicate that a Commencement of Monitoring letter requesting various information and documents was sent to the applicant on 21 April 2017.  On 30 May 2017, Departmental officers conducted telephone interviews with the sponsored subclass 457 visa holders, [Employee 1] and [Employee 2].

    Notice of intention to take action (NOITTA)

17. On 20 June 2017, the Department sent a NOITTA to the applicant identifying the following potential breaches of its sponsorship obligations: regulations 2.79, 2.82, 2.83, and 2.86.

    Applicant’s response(s)

18. On 2 June 2017, [Employee 2] provided bank statements from 27 July 2016 to 24 March 2017, noting that she was overseas for 4 weeks from mid June to mid July.

19. On 5 May 2017, [the Director] provided bank statements for the applicant for the period August 2016 to April 2017, an employment agreement between the applicant and [Employee 1] dated 22 July 2015, an employment agreement between the applicant and [Employee 2] dated 25 January 2016, PAYG summary statements for [Employee 1], [Employee 2] and [the Director] for 2015/16, and record of cheques issued by the applicant for the period July 2016 to March 2017, including to [Employee 1] and [Employee 2].

    Department decision to cancel standard business sponsorship approval and impose 2 year bar

20. On 27 July 2017, the Department made a decision to cancel the applicant’s approval as a standard business sponsor and to bar it for 2 years from seeking further approval. The delegate’s reasons were as follows:

    Regulation 2.83 – obligation to provide records

    ·this requires a sponsor to provide records or information when requested in writing by the Department that it is required to keep under r.2.82 and/or under any law of a State or Territory;

    ·on 5 April 2017, [the Director] was advised that the applicant was being monitored in relation to (amongst other things) its obligations under r.2.83, and on 21 April 2017, the applicant was sent an email to its nominated email address requesting records and information pursuant to r.2.83, including names and positions of any Australian employees who held equivalent positions to the subclass 457 visa holders, their employment contracts and copies of their pay records from 1 July 2016 to 31 March 2017 (or, if there were no equivalent Australian employees, evidence of the current market rate for the sponsored positions); records demonstrating the tasks currently undertaken by the visa holders, including whether these had changed and if so, how; records of the gross and net salary of the visa holders for the period 1 July 2016 to 31 March 2017 and evidence of payment of same to them; records of the hours worked by the visa holders from 1 July 2016 to 31 March 2017; records of any leave (paid or unpaid) taken by the visa holders in the same period; and (if relevant) records of any non-monetary benefits received by the visa applicants in that period;

    ·a partial response was provided on 5 May 2017 but the applicant did not provide the bulk of the requested information and therefore did not meet r.2.83;

    Regulation 2.86 – obligation to ensure sponsored person works in nominated occupation;

    ·the Department approved the nomination of [Employee 2] on 24 March 2016 for the position of Community Worker (ANZSCO code 411711), the occupational description for which indicated that a Community Worker ‘faciliates community development initiatives and collective solutions within a community to address issues, needs and problems associated with recreational health, housing, employment and other welfare matters. Tasks may include:

    oassessing clients’ needs and planning, developing and implementing educational, training and support programs;

    ointerviewing clients and assessing the nature and extent of their difficulties;

    omonitoring and reporting on the progress of clients;

    oreferring clients to agencies that can provide additional help;

    oassessing community need and resources for health, welfare, housing, employment, training and other facilities and services;

    oliaising with community groups, welfare agencies, government bodies and private businesses about community issues and promoting awareness of community resources and services;

    osupporting families and providing education and care for children and disabled persons in adult service units, group housing and government institutions;

    osupervising offenders on probation and parole;

    oassisting young people to solve social, emotional and financial problems;

    opreparing submissions for funding and resources, and reports to government bodies and other agencies;

    ·during the processing of the nomination, the applicant provided the following responsibilities and duties for the nominated position:

    o1. Providing quality and appropriate activities/services to clients:

    §assessing clients’ needs and developing individual supporting plan;

    §providing choices to client and evaluating clients as individuals;

    §monitoring and reporting on the progress of clients;

    §transport/accompany clients to their medical appointments;

    §developing networks;

    §providing support and education for clients and clients’ family members;

    §development of clients’ living skills;

    §development of clients’ social skills;

    §referring clients to appropriate agencies that can provide additional services;

    o2. Working Safely:

    §wearing appropriate clothing and footwear at all times;

    §ensure your own and clients’ safety when activities and services are carried out;

    §identifying, reporting and dealing with safety hazards in the workplace;

    §follow all policies and procedures;

    o3. Work cooperatively with co-workers

    o4. Assist clients with their social connections

    o5. Self development and attending training as directed by employer;

    o6. Attending staff meetings

    o7. Assist individuals, families with emotional or financial difficulties to improve their quality of life and wellbeing

    ·the Department was satisfied that these duties aligned closely with the ANZSCO duties for a Community Worker but was not satisfied, given its monitoring in 2017, that the sponsored visa holder [Employee 2] was actually engaged in those duties;

    ·on 5 April 2017, Department officers visited the applicant’s premises but [Employee 2] was not present. They spoke with [the Director] about [Employee 2]’s duties, and she provided the following statement, ‘[Employee 2] is responsible for the roll-out and doing the applications for the National Disability Insurance Scheme (NDIS). She mainly works from home and comes to the office when she is required to conduct interviews with the residents to obtain information to be included in the forms. She goes to both centres: [Facility 1] and [Facility 2].  I am not sure about [Employee 2]’s title; she works as a social support. [Employee 2] does not have any office in either centre and works from the staff room while in the centres. The other aspect of [Employee 2]’s work is completion of Companion Card forms. I monitor her work by the number of applications she completes. The skills required to fill the form are awareness of privacy and confidentiality, no registration is required to fill out the forms;’

    ·[The Director] also indicated that [Employee 2] had been working on the forms since 1 July 2016 and was only involved in group activities prior to that date, which involved taking residents to social outings and to medical appointments and filling out forms for the NDIS;

    ·however, [the Director] also indicated that [Employee 2] only started completing NDIS forms since 1 July 2016. When asked if [Employee 2] had recently been involved in care plans to familiarise herself with residents, [the Director] responded that care plans were the role of a manager and [Employee 2] was not involved in that;

    ·in summary, [the Director] described [Employee 2] as being responsible for application forms, paperwork and linkages to other services;

    ·in her interview with a Department officer on 30 May 2017, [Employee 2] indicated that she currently works at [Facility 1] only, and no longer at [Facility 2]. She described her duties as:

    ogroup activities;

    oworking on NDIS application forms;

    ogoing on outings with residents for shopping, for example taking residents for a cup of tea;

    oCompanion Card application forms;

    ogetting information from residents;

    odoing paperwork;

    olog support plans on the system;

    ·[Employee 2] indicated that the last time she organised a group activity was July 2016; since then, she had mainly been working on NDIS application forms. She indicated that she had resumed organising some activities after May 2017. However, the majority of work between July 2016 and May 2017 had been entering and processing data and filling out forms;

    ·[Employee 2] was not able to describe her duties and work processes to the level depicted in the job description provided to the Department as part of the nomination application;

    ·there were a number of inconsistencies in the statements provided by [the Director] and [Employee 2], although both conceded that [Employee 2] was mainly working on NDIS application forms since July 2016.  This indicated that the work undertaken by [Employee 2] was not closely aligned to the skill level of a Community Worker (ANZSCO 411711) but was closer to the lower skill level occupations of General Clerk (ANZSCO 531111) or Clerical and Office Support Worker nec (ANZSCO 561999);

    ·in addition to the identified breaches above, the Department was unable to assess the sponsor’s compliance with r.2.79 and 2.82:

    Regulation 2.79 – Obligation to ensure equivalent terms and conditions of employment

    ·r.2.79(2) stipulated that a sponsor was required to ensure that the terms and conditions of employment provided to a sponsored person were no less favourable than those that were, or would be, provided to an Australian employee performing equivalent work in the sponsor’s workplace at the same location (the market rate);

    ·r.2.79(3) stipulated that the sponsor had to provide terms and conditions no less favourable than those that were approved at nomination, including the GAE, to the sponsored person;

    ·on 21 April 2017, the Department requested information on these issues from the applicant but no evidence was received to show that the applicant had complied with r.2.79(2) or (3);

    Regulation 2.82 – obligation to keep records

    ·r.2.82(3)(e) required a sponsor to keep a record of moneys paid to sponsored employees in a manner that was capable of being verified by an independent person;

    ·on 5 May 2017, the applicant provided a partial response to the Department’s request of 21 April 2017 but it was insufficient to verify that it was complying with r.2.82;

    ·the delegate was satisfied that the applicant had breached r.2.89, the identified failures to meet its sponsorship obligations being breaches of r.2.83 and 2.86;

    ·as grounds existed to cancel the applicant’s approval as a standard business sponsor, the delegate had to consider whether it was appropriate to do so, and thus took into account the factors set out in r.2.89(3)(a) to (k), being the sponsor’s past and present conduct, the number of occasions on which the sponsor had failed to satisfy the sponsorship obligation(s), the nature and severity of any breaches, and the duration of time over which they had occurred, the period of time during which the applicant had been an approved sponsor, whether (and to the extent to which) the failure to satisfy the sponsorship obligation(s) had a direct or indirect effect on another person, whether (and the extent to which) the failure to satisfy the obligations was intentional, reckless or inadvertent, whether (and the extent to which) the applicant had cooperated with the Department (including whether it informed the Department of any failure or breach), the steps (if any) taken by the applicant to rectify the breach(es) and whether these were done at the Department’s request, the processes (if any) the applicant had implemented to ensure future compliance, the number of other sponsorship obligations that the applicant had failed to satisfy and (if any) the number, and any other relevant factors;

    ·the delegate noted that the applicant had been approved twice as a standard business sponsor.  She further found that it had breached r.2.86 once, but that that breach was serious as it indicated that the applicant did not have a genuine need for the position for which [Employee 2] was nominated and did not ensure that she undertook the duties for which she had been nominated, which exposed [Employee 2] to breaching the terms of her subclass 457 visa. This also had an impact on the local labour market. The breaches were identified through Departmental monitoring and the applicant had not provided all of the information requested by the Department, nor provided evidence of steps taken to rectify the identified breaches;

    ·accordingly, the delegate decided to cancel the applicant’s approval as a standard business sponsor, pursuant to s.140M(1)(a), and to impose a 2 year bar on the applicant from making further applications to be approved as a standard business sponsor, pursuant to s.140(1)(d). This meant that the applicant could not sponsor any further subclass 457 visa holders.

    Tribunal history

    Submissions of 7 March 2018

1. In summary, the applicant’s agent made the following submissions:

   ·the Department’s NOITTA alleged that the applicant had breached the following sponsorship obligations:

   or.2.83 – obligation to provide records and information to the Minister;

   or.2.86 – obligation to ensure primary sponsored person works or participates in nominated occupation, program or activity;

   ·the main reason surrounding the decision to cancel the standard business sponsorship approval was the applicant’s failure to respond in full to the request sent to the applicant on 21 April 2017 to provide certain records and information;

   ·the applicant provided a partial response to the Notice Requesting Records and Information and did not respond to the NOITTA sent on 20 June 2017;

   ·It was submitted that the cancellation decision could have been avoided if the Department had acted responsively and promptly to the applicant’s query when [the Director] attempted to provide the records and information requested as part of the monitoring process;

   ·notwithstanding the delegate’s findings, the Tribunal was asked to consider the following information:

   ·r.2.83 – Obligation to provide records and information to the Minister

   othe applicant’s director, [the Director], declared in her statement, ‘On 20 June 2017, the Department of Immigration and Border Protection (DIBP) sent a [NOITTA] to my email. Unfortunately, I did not receive this email containing the NOITTA. This was the reason why I have failed to respond to the NOITTA. On 27 July 2017, I received a Notice of Decision regarding the monitoring of [the applicant];’

   o[The Director] attempted to contact the Senior Border Force Officer on 5 May 2017 in the attempt to request for a facsimile number so that she could submit the supporting documents requested in the Commencement of Monitoring Letter Requesting the Provision of Documents and Information dated 21 April 2017. She left several voice mail messages but did not receive any return calls from the Senior Border Force Officer;

   o[The Director] genuinely believed that, had she submitted these documents, the applicant would not have been found to be in breach of r.2.83. She maintains that the documents she wanted to supply were voluminous and hence she was not able to attach them all by email, and therefore wanted to find an alternative way to submit them (such as facsimile).  If she had received a prompt response, she believed the cancellation would probably not have occurred;

   oas the supporting documents were not available at the time of decision, they were now provided to the Tribunal for its consideration, including PAYG Payment Summaries for the subclass 457 holders, payslips for them, company cheque records and bank statements corroborating payment to them, records of hours they worked and records of superannuation paid to them;

   ·r.2.86 – Obligation to ensure primary sponsored person or participates in nominated occupation, program or activity

   othe applicant acknowledged that the Department was concerned about [Employee 2]’s work duties within the business.  [The Director] wanted to clarify that at the time of her interview with the Department inspector, she tried her best to explain that [Employee 2]’s work duties were closely aligned with those of a Community Worker (ANZSCO code 411711), and she gave an example of [Employee 2]’s work duties, being filling out NDIS forms. [The Director] disagreed with the delegate’s assessment that filling out NDIS forms was a purely clerical duty.  She maintained that a Community Worker had to complete the form, and they must have an in-depth understanding of the particular resident’s situation, which included assessing the resident’s needs and planning, developing and implementing a support program. In order to come to a decision to refer a particular patient for the NDIS, [Employee 2] undertook various assessments of the resident’s welfare, employment and developmental needs. Thus, completion of the forms was an integral part of the planning process as a Community Worker (as per the attachment from the Guide to NDIS Assessment);

   o[The Director] believed that the majority of [Employee 2]’s was consistent with those associated with the skilled occupation of Community Worker.  [The Director] had reduced [Employee 2]’s physical outings with the residents since early 2017 as [Employee 2] was experiencing pregnancy complications. Having said that, she still undertook her duties as set out in the job description of Community Worker;

   ogiven the above, it was submitted that the applicant meets r.2.86, particularly taking into account the following supporting documents: employment contracts for [Employee 2] and the other subclass 457 visa holder, their work activity sheets and [Employee 2]’s maternity leave record;

   othe applicant felt that the case was unfairly decided due to the fact that the delegate failed to take into account the full documents relevant to the case.  It was clear that this was a one-off administrative failure and that the breach could have been avoided as the failure to comply was inadvertent and unintentional. Moreover, the applicant was cooperative with the Department officers and agreed to abide by its sponsorship requirements and had taken steps to rectify the identified failure by attempting to contact the Senior Border Force Officer;

   owhile it was acknowledged that the Senior Border Force Officer did not have to respond to a query during the monitoring process, but doing so would most likely have avoided the cancellation; and

   oit was hoped that the Tribunal would be able to make a favourable decision on the papers, given the supporting documents now provided to the Tribunal.

2. The supporting documents provided included the following:

   oGroup Activity and Social Community Access forms completed by [Employee 2] and her colleague [Employee 1];

   owage records for [Employee 2] and her colleague [Employee 1] for 2016 - 2017;

   obank accounts for the applicant, showing wage payments to [Employee 2] and [Employee 1], September 2016 to April 2017;

   oGuide to Accessing NDIS;

   osuperannuation statements for [Employee 2] and [Employee 1] for 30 June 2016 and 30 June 2017;

   oemployment agreements for [Employee 2] and [Employee 1];

   oPAYG payment summary for 2016/17 for [Employee 1];

   omonthly time sheets for [Employee 1] and [Employee 2];

   oservice delivery sheets for various residents, variously dated;

   oGP letter dated 23 April 2016 in respect of [Employee 2]’s ear pain and medical certificate for her for period 16 June 2016 to 10 July 2016;

   oDepartment of Health registration for the applicant for [Facility 2] Supported Residential Service and [Facility 1] Supported Residential Service; and

   o[Employee 2]’s bank records for period July 2016 to March 2017.

3. The matter was constituted to a Tribunal Member on 25 July 2019.

4. The Tribunal received a legal submission from the applicant’s agent on 1 August 2019.  On 16 August 2019, the applicant’s agent confirmed that its contents were the same as the submission dated 7 March 2018.

   Tribunal hearing

5. On 2 September 2019, the Tribunal wrote to [the Director], on behalf of the applicant, via the agent, to invite her to attend a hearing on 24 September 2019. She was requested to provide any further written submissions and/or documents in support of the case at least 1 week prior to the hearing. The Tribunal also requested that the relevant subclass 457 holder, [Employee 2], be available to give evidence as a witness at the hearing.

6. On 16 September 2019, the Tribunal received an email from the applicant’s agent, attaching an amended submission dated 1 August 2019, which corrected an error in the earlier copy. The agent also advised that as it had been more than 2 years since the review application had been lodged, the subclass 457 visa holder [Employee 2] had left her position in October 2018, and her current contact details were unknown. Accordingly, [the Director] instructed that the other subclass 457 visa holder, [Employee 1], would appear as a witness instead to assist the Tribunal at the hearing.

7. At the hearing, [the Director] confirmed to the Tribunal that she was pursuing the review on behalf of the applicant, despite the 2 year bar having expired in July 2019, because she strongly believed that the cancellation of the applicant’s SBS approval and the imposition of the 2 year bar on it reapplying for approval was unwarranted. She stated that she did not wish that to remain on the applicant’s record and cause problems in future.

8. [The Director] told the Tribunal that the applicant bought its first Residential Care Service (RCS) in 2007. This was [the original name] (now [Facility 2]). The applicant then also purchased a nearby boarding house that provided accommodation for people with disabilities who were able to live independently. In 2013, the applicant bought [Facility 1].  The applicant sold [Facility 2] and the boarding house in September 2017 but continues to operate [Facility 1] as an RCS. [The Director] said that she had plans to expand this business further.

9. At the time that the applicant owned all 3 businesses, the residents of the boarding house could elect to participate in activities organised for the residents of [Facility 2]. Both [Facility 2] and [Facility 1] catered for ambulant adults with disabilities, which could be physical, mental and/or intellectual. The aim of both residences was to foster as much as independence for residents as possible.  Both facilities were classed as Supported Residential Services (SRS), which are privately operated businesses that provide accommodation and support for people who need help with day to day activities.  In Victoria, they were regulated by the Department of Health and Human Services. [The Director] explained that the clients of both facilities were mixed in age, with some entitled to support under the National Disability Insurance Scheme (NDIS) while others were entitled to assistance under the My Aged Care (MAC) scheme.  At the time of the Department’s consideration, [Facility 2] had 29 residents, the boarding house had 11 residents and [Facility 1] had 21 residents. [The Director] said that all the facilities generally operated at capacity and there were usually waiting lists to get in.

10. [The Director] told the Tribunal that she felt that the applicant had been treated unfairly in relation to the delegate’s finding that it had not provided the information requested by the Department, as she had assembled all the required information but found it too large to send digitally (only 2 pages at a time could be scanned and sent). Although she left several messages for the case officer at the Department to attempt to provide it another way (ideally by fax) and to clarify what information (if any) she should redact from staff payslips, he never rang her back.  [The Director] said that she felt very strongly that the applicant had incurred a disproportionate penalty when all the information requested was in fact available at the time and could have been provided had she been able to speak to the case officer. [The Director] confirmed that staff were paid by cheque and that payslips were printed off from Excel and given to them.  The Tribunal queried with her why it appeared that [Employee 2]’s taxable income for 2015/16 and 2016/17 was slightly lower than her employment contract specified.  [The Director] said that she thought that it was because [Employee 2] was not paid, and was not entitled to be paid, sick leave in her first year of employment.  She undertook to clarify this in detail following the hearing.  She told the Tribunal that [Employee 2] had some complications in her pregnancy in 2015/16 and [the Director] therefore arranged for her to do a lot of her work from home – this was mainly preparing the NDIS applications on behalf of residents. [The Director] said that [Employee 2] reported to her during this time, and also came into work usually once a week, sometimes more, to obtain information from residents for the purposes of the NDIS applications.

11. [The Director] said that [Employee 2] first started working for the applicant on a part time basis, but she was full time by the 2016/17 financial year, during which she took a considerable amount of leave for health reasons, not all of which she was paid for. In response to the Tribunal’s query, [the Director] said that she did not believe that [Employee 2] was underpaid in any financial year as she took periods of unpaid leave, being sick leave for which she did not have medical certificates.

12. In relation to [Employee 2]’s role in completing NDIS applications on behalf of residents, [the Director] emphasised that this was not simply a clerical task, but involved an assessment of each client and his or her needs, including formulating plans for what would assist them.  [The Director] noted that clients tended not to admit that they had any significant needs so it was not simply a matter of taking their responses at face value, but of understanding their individual circumstances and knowing how these related to the NDIS services and supports. [The Director] noted that the introduction of the NDIS was a very disruptive period for the applicant’s business. The applicant’s staff, including primarily [Employee 2], had to assess the residents for NDIS assistance as there were no external providers available to do this.  There was an incentive to do this as NDIS assistance would generally benefit the applicant’s clients and give them more financial capacity to engage in supportive activities, but clients had to be persuaded to participate and wanted the NDIS explained to them.  [The Director] noted that at the time of the Department’s site visit, the staff were very stressed as they were undertaking the NDIS work for the first time, and the applicant business was dealing with issues such as the withdrawal of services that had previously been provided in-house through local council and/or state funding, such as podiatry, which were now supposed to come under individual resident’s NDIS funding. [The Director] said the role of the Community Workers definitely encompassed helping residents with NDIS matters, as services such as podiatry now had to be part of individual residents’ plans.  There was a lot of work involved in determining who was eligible for what services under the NDIS. The 3 Community Workers employed by the applicant – [Employee 2], [Employee 1] and [Employee 3] – were heavily involved in this process. [The Director] added that the applicant was given very little notice of how disruptive the introduction of the NDIS would be to the existing services offered to residents.

13. [The Director] clarified that she is the director and manager of [Facility 1], and had the same role with [Facility 2] until it was sold in late 2017. She was also the Personal Support Coordinator for both SRSs. She undertook multiple tasks.  When new residents were admitted, she wrote their initial Support Plans after 1 month or so, after they had settled in and she had received sufficient feedback from the Community Workers and Personal Services Assistants (PSAs, formerly called Personal Care Assistants, or PCAs) to do so.  During the lifetime of a resident’s Support Plan, it was reviewed regularly based on feedback from the Community Workers and PSAs as to the resident’s needs and daily activities.  [The Director] said that the Community Workers generally provided feedback on the resident’s capacity and attitude about participating in community activities, while the PSAs generally provided feedback about how the resident coped with their individual daily activities within the residence, such as bathing, dressing and meals as this was what the PSAs assisted with. In contrast, the Community Workers took residents into the community for recreational activities or to do things like banking or using public transport. Their focus was on regulating the interaction between the residents and the public, and encouraging as much as independence as possible for the residents.  PSAs might escalate issues to Community Workers; for instance, if a resident stopped showering. [The Director] confirmed that [Employee 2], [Employee 1] and [Employee 3] were the 3 Community Workers over the 2 SRSs during the time that the Department made its site visit. Generally, there were also 2 PSAs on duty on each shift at [Facility 2] and 1 at [Facility 1], plus 1 Cook at each location in the mornings. [The Director] said that both residences also had students studying Certificates III and IV in various fields, such as Disability and Personal Care, doing work experience shadowing the staff at various times.  This was a regular occurrence.

14. In response to the Tribunal’s query, [the Director] said that she signed off the NDIS plans prepared by [Employee 2], as she ([the Director]) was ultimately legally responsible for making the applications on behalf of residents of SRSs of which she was the director.  She said that she was confident in the preparation undertaken by [Employee 2] when she signed off any NDIS plans, as [Employee 2] did a thorough job and would come in to interview residents when necessary, as well as working from home.  [The Director] confirmed that initially, all 3 Community Workers undertook preparation of NDIS plans but due to [Employee 2]’s health issues, [the Director] made the decision to reassign them all to [Employee 2], at the same time reassigning some of the more physical activities involved in the Community Worker role (such as excursions with residents) to the other 2 Community Workers. This was done to assist [Employee 2], and was done with the agreement of [Employee 1] and [Employee 3], the other Community Workers.  In response to the Tribunal’s query, [the Director] said that [Employee 2] continued to have a full time role while preparing NDIS plans, as there were so many to do in the initial phase of the NDIS roll out in from July 2016 onwards.  [The Director] scheduled them for her and [Employee 2] generally kept to that schedule.  [The Director] said that during this period, she generally saw [Employee 2] twice a week, when she came in to speak to residents about their plans.  [The Director] confirmed that the residents’ activity sheets signed off by ‘[Nickname]’ were signed by [Employee 2], as she was known to staff and residents by that name.

15. [The Director] told the Tribunal that [Employee 2] ceased employment with the applicant in October 2018, as her husband fell ill and she had to take time off to look after him and their [children]. [The Director] checked with [Employee 2] in December 2018 as to when (or if) she intended to return to work but [Employee 2] did not provide a date.  She did not attend the review hearing at the Tribunal (differently constituted) in relation to the cancellation of her subclass 457 visa, even though [the Director] had indicated to her that the applicant would support her in this. [The Director] said that she was not sure what had happened, and that she had not heard from [Employee 2] since then.

16. The applicant’s agent noted that [Employee 2] was no longer on the Department’s online VEVO system, but it was unclear whether she remained in Australia or not. [The Director] noted that the applicant’s business had been able to cope with [Employee 2]’s departure as it retained the 2 other Community Workers, [Employee 1] and [Employee 3], and this was sufficient now that it only operated [Facility 1].

17. [The Director] urged the Tribunal to consider the situation at the time of the site visit, which was one of great upheaval within the SRSs due to the roll out of the NDIS, and she characterised the Department’s concerns during the site visit as misunderstandings of the true situation, which was that [Employee 2] was genuinely employed full time as a Community Worker.

1. The Tribunal then took evidence from [Employee 1], one of the remaining Community Workers employed by the applicant. [Employee 1] confirmed he has worked for the applicant in that capacity since 2015, and worked with [Employee 2], performing similar duties until 2016, when she took over the NDIS plan preparation. He confirmed that he knew of her health issues and that he and [Employee 3] (the third Community Worker) were happy to assist by taking over the more physical activities from [Employee 2] during that period.  He gave evidence about the role of the Community Workers generally, and in implementing the NDIS for residents during 2016, consistent with the evidence given by [the Director] (for which he was not present).

   Post-hearing submissions

2. On 30 September 2019, the applicant’s agent provided additional submissions, stating that the applicant had instructed that:

   ·from 13 January 2016 to 30 March 2016, [Employee 2] worked part time (20 hours per week);

   ·from 31 March 2016, following the grant of her subclass 457 visa, [Employee 2] commenced full time work (38 hours per week);

   ·on 14 June 2016, [Employee 2] took 8 hours of paid sick leave;

   ·between 1 July 2016 and 30 June 2017, [Employee 2] took around 174.50 hours of unpaid leave as she wanted to save her annual leave towards her maternity leave;

   ·from 17 July 2017 to 22 August 2017, [Employee 2] was on paid annual leave;

   ·from 21 August 2017 to 22 August 2017, [Employee 2] was on paid sick leave for 14 hours; and

   ·[Employee 2] gave birth in September 2017.

3. The applicant’s agent provided [Employee 2]’s payslips for the period January 2016 to September 2017.

   Does a circumstance for the taking of an action exist?

4. In the present case, the delegate found that the applicant had breached its sponsorship obligations.

   Failure to satisfy a sponsorship obligation: r.2.89

5. The Minister may take one or more of the actions in s.140M if satisfied the sponsor has failed to satisfy a sponsorship obligation referred to in Division 2.19 of the Regulations: r.2.89(2). These include cancelling the sponsor’s sponsorship approval and/or barring the sponsor, for a specified period, from sponsoring more people under the terms of an existing approval and/or from making future applications for approval as a sponsor for a specified period.

6. As noted above, the delegate found that the applicant had breached the following sponsorship obligations: rr.2.79, 2.82, 2.83 and 2.86.

7. In response, [the Director], on behalf of the applicant, has argued that the applicant did not breach rr.2.79, 2.83 and 2.86 and only inadvertently breached r.2.83.

8. The full text of each of these regulations is included in the legislative attachment to this decision.

   Regulation 2.79 – obligation to ensure equivalent terms and conditions of employment

9. In summary, this regulation requires that the sponsor must ensure that the terms and conditions of employment provided to the primary sponsored person are no less favourable than the terms and conditions of employment that the person provides, or would provide, to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location. They must also not be less favourable than the ones that the Minister approved, under r.2.72(10)(c), when the nomination of the sponsored person was approved.

10. In this case, as noted by the delegate, the nominations of both the sponsored subclass 457 visa holders, [Employee 1] and [Employee 2], were approved by the Department on the basis that they each had guaranteed annual earnings (GAE) of $53,900 per year as Community Workers (ANZSCO code 411711). However, the delegate was not satisfied that r.2.79 was being complied with because the applicant did not provide sufficient evidence about payment of [Employee 1] and [Employee 2] to establish that they were being paid the GAE set out in their nomination applications.

11. Subsequently, [the Director] has provided the following documentary evidence to the Tribunal in relation to [Employee 2]:

    ·employment agreement between the applicant and [Employee 2] dated 25 January 2016 stating that her annual salary is $53,900 plus statutory superannuation, to be fortnightly by cheque;

    ·PAYG payment summaries for [Employee 2] for 2015/16 showing taxable income of $17,308, and for 2016/17 showing taxable income of $49,140;

    ·superannuation statement for [Employee 2] for 2016/17 showing $5,522 approximately paid by the applicant;

    ·[Employee 2]’s bank statements for period July 2016 to March 2017, showing regular salary deposits by cheque of $1,684 per fortnight; and

    ·medical certificate for [Employee 2] certifying she is unfit for work between 16 June 2016 and 10 July 2016 due to an ear infection, and letter from [Employee 2] dated 20 November 2017 to [the Director] requesting an extension of her maternity leave, which commenced on 14 August 2017, to 21 February 2018.

12. In relation to [Employee 1], [the Director] provided the following to the Tribunal:

    ·employment agreement between the applicant and [Employee 1] dated 22 July 2015 stating that his annual salary is $53,900 plus statutory superannuation, to be fortnightly by cheque;

    ·PAYG payment summaries for [Employee 1] for 2016/17 showing taxable income of $53,945;

    ·superannuation statements for [Employee 1] for 12 months to 30 December 2016 showing $,2,562 approximately paid by the applicant, and for 2016/17, showing $5,913 paid by the applicant; and

    ·[Employee 1]’s bank statements for period 8 March 2016 to 7 September 2017, showing regular salary deposits by cheque of $1,684 per fortnight.

13. The Tribunal is satisfied from the above that the applicant did not breach its obligations towards [Employee 1].  In relation to [Employee 2], the Tribunal finds that her annual earnings for 2016/17 were slightly less than her guaranteed annual earnings of $53,900 but accepts [the Director]’s evidence that the difference between the 2 figures is due to the amount of unpaid leave taken by [Employee 2] in that year, with agreement between [Employee 2] and [the Director], which exceeded the amount of paid leave she was entitled to take.  Accordingly, the Tribunal is satisfied that the applicant substantially complied with its obligations to [Employee 2] in respect of her annual earnings. Consequently, it finds that any breach of r.2.79 in respect of [Employee 2] is a technical one.

    Regulation 2.82 – obligation to keep records

14. As noted above, the delegate found that the applicant had not provided evidence of having complied with r.2.83(3)(e), which requires a sponsor to keep a record of moneys paid to sponsored employees in a manner that is capable of being verified by an independent person. This was because the delegate was not satisfied that the applicant had kept such records, as required by r.2.82.

15. [The Director] argued that she did keep records and that she attempted to do provide evidence of this before the due date set by the delegate, but was unable to do so for technical reasons and was unable to get timely advice about how to do so via another medium other than email.

16. Subsequently, she has provided to the Tribunal, on behalf of the applicant, the following records of payments made to the subclass 457 employees [Employee 1] and [Employee 2]:

    ·PAYG payment summaries for [Employee 2] for 2015/16 and 2016/17;

    ·superannuation statement for [Employee 2] for 2016/17;

    ·[Employee 2]’s bank statements for period July 2016 to March 2017, showing regular salary deposits;

    ·PAYG payment summary for [Employee 1] for 2016/17 showing taxable income of $53,945;

    ·superannuation statements for [Employee 1] for 12 months to 30 December 2016 and for 2016/17;

    ·[Employee 1]’s bank statements for period 8 March 2016 to 7 September 2017, showing regular salary deposits;

    ·corresponding banking records for the applicant showing cheques drawn for salary payments for [Employee 1] and [Employee 2] in the above date ranges; and

    ·internal pay records and hours worked per fortnight maintained by the applicant for the above employees.

17. From the above, the Tribunal is satisfied that – although not provided within the due timeframe set by the delegate – the applicant nevertheless kept a record of moneys paid to sponsored employees in a manner that is capable of being verified by an independent person, and thus did not breach its obligation under rr.2.82 or 2.83(3)(e).

    Regulation 2.83 – obligation to provide records and information to the Minister

18. The delegate requested that the applicant provide information (including information relevant to its obligations under r.2.82) on 21 April 2017, with the information to be provided by 5 May 2017. However, the delegate found that only a partial response was provided by the due date, with the result that he considered that the applicant breached its obligation to provide information under r.2.83.

19. On behalf of the applicant, [the Director] argued that she in fact had gathered all the requested information but that it was too voluminous to submit by email. However, she maintained that her attempts to liaise with the delegate to provide the documents in another format (such as fax) were ignored and thus she was unable to comply with the delegate’s deadline.

20. Based on the information on the Department’s file, the Tribunal is satisfied that [the Director] provided the following material to the Department by 5 May 2017:

    ·bank records for the applicant for the period 21 June 2016 to 10 October 2016;

    ·employment contract between [Employee 1] and the applicant dated 22 July 2015;

    ·employment contract between [Employee 2] and the applicant dated 25 January 2016;

    ·PAYG payment summaries for both employees for 2015/16;

    ·record of cheques issued by the applicant for the period July 2016 to March 2017;

    ·list of all employees, including Australian and non-Australian employees, part time or full time status and locations of employment;

    ·certificates of registration for the applicant for [Facility 2] Supported Residential Service and for [Facility 1];

    ·various medical certificates for [Employee 2]; and

    ·reference letter for [Employee 2] from [the Director] dated 15 February 2016;

21. Having read the Department request for information dated 21 April 2017, the Tribunal considers that [the Director] did provide much of the information requested by the delegate, but failed to provide:

    ·records of the hours worked by the subclass 457 visa holder employees;

    ·evidence of what tasks they performed, such as task sheets, rosters, performance reviews or samples of their written work;

    ·evidence of who paid for the costs associated with recruiting the subclass 457 visa holders and any associated migration assistance.

22. While [the Director] maintained that she telephoned the delegate on 5 May 2017 and left voicemail messages seeking to submit additional documents via facsimile, there is no record of this in the Department’s files.

23. Nevertheless, noting that the Tribunal found [the Director] to be a credible witness at hearing, the Tribunal accepts that she did in fact have this material available at the time.

24. Given the above, the Tribunal finds that there was a technical breach of r.2.83 by the applicant, as not all of the requested information was provided by the due date; however, the Tribunal considers that the applicant did substantially comply with the request. Moreover, it is further satisfied that the applicant had the relevant information at that time, even though it did not provide it (or was unable to provide it) and has not manufactured evidence after the fact.

    Regulation 2.86 - Obligation to ensure primary sponsored person works or participates in nominated occupation, program or activity

25. Based on the ANZSCO occupational description for a Community Worker (ANZSCO code 411711), the position description provided, interviews by Departmental officers with [the Director] at the site visit of 5 April 2017 and with [Employee 2] by telephone on 30 May 2017, the delegate was not satisfied that the applicant had met its obligation to ensure that [Employee 2] worked in the nominated occupation of Community Worker. The delegate found that [Employee 2] was not performing all – or the majority – of the tasks of a Community Worker (as set out in ANZSCO for that occupation, and in the position description provided to the Department by the applicant) but was instead performing lower level clerical duties (predominantly, filling out NDIS application forms since July 2016).

26. In response, [the Director] and her agent argued that the information provided during the site visit by [the Director] that [Employee 2] filled out NDIS forms was an example of one aspect of the work undertaken by [Employee 2], not the sole focus of it. [The Director] also maintained that filling out NDIS forms was not low level clerical work, as she argued that it involved in-depth understanding of the particular resident’s situation and needs, in order to develop a support plan for them. [The Director] maintained that [Employee 2] undertook most of the duties listed for a Community Worker in ANZSCO, although she acknowledged that she reduced [Employee 2]’s external outings with residents from early 2017 onwards due to the fact that [Employee 2] was experiencing health problems with her pregnancy.

27. At the hearing, [the Director] and one of her 2 remaining Community Workers, [Employee 1], confirmed the above in evidence they gave consistently but separately. In particular, [the Director] gave detailed evidence about the change in [Employee 2]’s duties due to concerns about her health during her pregnancy, such that she ceased to undertake outings with residents and instead became the employee solely responsible for preparing NDIS applications for residents who were eligible. [The Director] gave detailed and credible evidence about the reason for this change in [Employee 2]’s duties, and about the scope of the responsibilities that she undertook in preparing residents’ NDIS applications, when the NDIS was introduced. The Tribunal is satisfied that this work involved more than clerical work, as the NDIS was an entirely new scheme and mechanism for funding and preparing plans or applications for residents required in-depth knowledge of their circumstances, as well as familiarity with the NDIS itself.  The Tribunal is further satisfied that [Employee 2] was effectively in charge of implementing this significant new development for residents (at least, all those not under My Aged Care packages), although applications were officially signed off by [the Director], as overall Care Coordinator for both residences.  The Tribunal accepts that, as a result of this rearrangement of duties between the 3 Community Workers, [Employee 2] ceased taking residents out (a duty taken over by [Employee 1] and the third Community Worker) and worked largely offsite, though she came in regularly to interview clients and liaise with [the Director].

28. This is supported by the medical evidence provided concerning [Employee 2], and the oral evidence of [the Director] and [Employee 1] at hearing.

29. The Tribunal has had regard to the ANZSCO description for a Community Worker, which states that they facilitate community development initiatives and collective solutions within a community to address issues, needs and problems associated with recreational, health, housing, employment and other welfare matters, and that tasks may include:

    • assessing clients' needs and planning, developing and implementing educational, training and support programs
    • interviewing clients and assessing the nature and extent of difficulties
    • monitoring and reporting on the progress of clients
    • referring clients to agencies that can provide additional help
    • assessing community need and resources for health, welfare, housing, employment, training and other facilities and services
    • liaising with community groups, welfare agencies, government bodies and private businesses about community issues and promoting awareness of community resources and services
    • supporting families and providing education and care for children and disabled persons in adult service units, group housing and government institutions
    • supervising offenders on probation and parole
    • assisting young people to solve social, emotional and financial problems
    • preparing submissions for funding and resources, and reports to government bodies and other agencies

30. (The Tribunal notes that not all of the above tasks would be part of the role of a Community Worker, as they are listed for the ANZSCO subgroup of Welfare Support Workers, which also includes the occupations of Disabilities Services Officer, Family Support Worker, Parole or Probation Officer, Residential Care Officer and Youth Worker. Clearly, some of the above duties would apply to those occupations, but not to a Community Worker, such as supervising offenders on probation and parole, assisting young people to solve social, emotional and financial problems, and supporting families and providing education and care for children and disabled persons in adult service units, group housing and government institutions).  However, the Tribunal is satisfied, from the available evidence, that [Employee 2] undertook, in the relevant periods, duties and responsibilities involving the following during the relevant period (albeit while working largely from home for part of it):

    ·assessing clients' needs and planning, developing and implementing educational, training and support programs;

    ·interviewing clients and assessing the nature and extent of difficulties;

    ·monitoring and reporting on the progress of clients;

    ·referring clients to agencies that can provide additional help;

    ·assessing community need and resources for health, welfare, housing, employment, training and other facilities and services; and

    ·liaising with community groups, welfare agencies, government bodies and private businesses about community issues and promoting awareness of community resources and services.

31. The Tribunal is therefore satisfied that during the relevant period, [Employee 2] was undertaking the majority of duties consistent with both her position description and the duties of a Community Worker as set out in ANZSCO.  To the extent that she was no longer taking residents on outings, the Tribunal accepts that this was by consent between her, her colleagues and [the Director], and was due to health concerns.  The Tribunal does not consider that this arrangement (which was not in any case intended to be permanent) breaches r.2.86.

    Conclusion

32. Having considered the above information carefully, the Tribunal is not satisfied that the applicant breached rr.2.82 or 2.86.  It considers that while it may have technically breached rr.2.79 and 2.83, these breaches were minor and not substantial. Moreover, the Tribunal is satisfied that the breaches were not systematic or deliberate, and that they did not result in exploitation of the applicant’s employees.

33. Nevertheless, the Tribunal is satisfied that the prescribed circumstance in r.2.89 exists for the purpose of s.140M of the Act, even though the breaches of rr.2.79 and 2.83 are minor.

    Action to be taken

34. For these reasons, the Tribunal is satisfied that a relevant circumstance for s.140L(1)(a) exists. Accordingly, it is necessary to consider whether one or more of the actions mentioned in s.140M should be taken.

35. In considering what action to take, the Tribunal has had regard to the prescribed criteria, as extracted in the attachment to this decision.

    (a)the past and present conduct of the person in relation to Immigration; and

    (b)the number of occasions on which the person has failed to satisfy the sponsorship obligation; and

    (c)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

    (d)the period of time over which the person has been an approved sponsor; and

    (e)whether, and the extent to which, the failure to satisfy the sponsorship obligation has had a direct or indirect impact on another person; and

    (f)whether, and the extent to which, the failure to satisfy the sponsorship obligation was intentional, reckless or inadvertent; and

    (g)whether, and the extent to which, the person has cooperated with Immigration, including whether the person informed Immigration of the failure; and

    (h)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; and

    (i)the processes (if any) the person has implemented to ensure future compliance with the sponsorship obligation; and

    (j)the number of other sponsorship obligations that the person has failed to satisfy, and the number of occasions on which the person has failed to satisfy other sponsorship obligations; and

    (k)any other relevant factors.

    The past and present conduct of the person in relation to Immigration

1. The Tribunal considers that the applicant has been largely cooperative with the Department.

   The number of occasions on which the person has failed to satisfy the sponsorship obligation

2. Aside from the breaches discussed above, the Tribunal is not aware of any evidence of other occasions on which the applicant has failed to satisfy its sponsorship obligations.

   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

3. As noted above, the Tribunal is satisfied that the breaches it has found are made out are relatively minor, and took place over a relatively short period some 2 to 3 years ago.

   The period of time over which the person has been an approved sponsor

4. The Tribunal notes that the applicant has been an approved sponsor for approximately 6 years as at the time of the Department’s cancellation decision.

   Whether, and the extent to which, the failure to satisfy the sponsorship obligation has had a direct or indirect impact on another person

5. The Tribunal finds that there was no obvious impact on any other person of the applicant’s minor breach of r.2.83, and that while its minor breach of r.2.79 affected [Employee 2]’s salary, this was with her consent in relation to her taking unpaid leave in addition to paid leave during the relevant period.

   Whether, and the extent to which, the failure to satisfy the sponsorship obligation was intentional, reckless or inadvertent

6. The Tribunal does not consider that the applicant’s failure to satisfy its obligations in relation to rr.2.79 and 2.83 was intentional or reckless, but rather, was inadvertent.

   Whether, and the extent to which, the person has cooperated with Immigration, including whether the person informed Immigration of the failure

7. The Tribunal considers that overall, the applicant has been cooperative with the Department, albeit that it did not provide all information requested by the Department in 2017. However, it has provided a plausible explanation for its failure to do so and provided the relevant information to the Tribunal.

   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

8. The Tribunal is satisfied that the applicant – as represented by [the Director] – has taken steps to rectify the above issues, including by providing relevant documents and information to the Tribunal.

   The processes (if any) the person has implemented to ensure future compliance with the sponsorship obligation

9. [The Director] gave evidence at hearing that she was more conscious of the applicant’s obligations to its temporary visa holder employees, but maintained that the applicant had only ever inadvertently breached its obligation under r.2.82 to provide documents to the Department.

   The number of other sponsorship obligations that the person has failed to satisfy, and the number of occasions on which the person has failed to satisfy other sponsorship obligations

10. The Tribunal is satisfied that the applicant failed to satisfy 2 of its sponsorship obligations, and that the breaches were technical, not substantive.

    Any other relevant factors

11. The Tribunal notes that the bar period affecting the applicant expired in July 2019 but that [the Director] still disputed that the imposition of the bar and cancellation of the applicant’s sponsorship approval was warranted in the first place.

    Conclusion

12. The Tribunal acknowledges that the applicant technically breached rr.2.79 and 2.83 but finds it did not breach rr. 2.82 or 2.86. There is no evidence of any other breaches in its history as an approved standard business sponsor.

13. 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

14. 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.

    Alison Mercer
    Member

    
    

    ATTACHMENT – Extract from the Migration Regulations 1994

    2.89   Failure to satisfy sponsorship obligation

    …

    (3) For paragraph 140L(1)(b) of the Act, the criteria that the Minister must take into account in determining what action (if any) to take under section 140M of the Act in relation to the circumstance mentioned in subregulation (2) are:

    (a)     the past and present conduct of the person in relation to Immigration; and
    (b)    the number of occasions on which the person has failed to satisfy the sponsorship obligation; and

    (c)     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

    (d)    the period of time over which the person has been an approved sponsor; and

    (e)     whether, and the extent to which, the failure to satisfy the sponsorship obligation has had a direct or indirect impact on another person; and

    (f)     whether, and the extent to which, the failure to satisfy the sponsorship obligation was intentional, reckless or inadvertent; and

    (g)    whether, and the extent to which, the person has cooperated with Immigration, including whether the person informed Immigration of the failure; and

    (h)    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; and

    (i)    the processes (if any) the person has implemented to ensure future compliance with the sponsorship obligation; and

    (j)    the number of other sponsorship obligations that the person has failed to satisfy, and the number of occasions on which the person has failed to satisfy other sponsorship obligations; and

    (k)     any other relevant factors.

    …

    Reg 2.79    Obligation to ensure equivalent terms and conditions of employment

    (1)  Subject to subregulation (1A):

    (a)  this regulation applies to a person who is or was a standard business sponsor of a primary sponsored person if:

    (i)  the primary sponsored person holds a Subclass 457 (Temporary Work (Skilled)) visa; or

    (ii)  the last substantive visa held by the primary sponsored person was a Subclass 457 (Temporary Work (Skilled)) visa; and

    (b)  this regulation applies to a person who is or was a party to a work agreement (other than a Minister), and who is or was an approved sponsor of a primary sponsored person, if:

    (i)  the primary sponsored person holds a Subclass 457 (Temporary Work (Skilled)) visa; or

    (ii)  the last substantive visa held by the primary sponsored person was a Subclass 457 (Temporary Work (Skilled)) visa.

    (1A)  This regulation does not apply to a standard business sponsor of a primary sponsored person if:

    (a)  either:

    (i)  the primary sponsored person holds a Subclass 457 (Temporary Work (Skilled)) visa; or

    (ii)  the last substantive visa held by the primary sponsored person was a Subclass 457 (Temporary Work (Skilled)) visa; and

    (b)  the annual earnings of the primary sponsored person are equal to or greater than the amount specified by the Minister in an instrument in writing for this paragraph.

    (2)  The person must ensure that the terms and conditions of employment provided to the primary sponsored person are no less favourable than the terms and conditions of employment that the person provides, or would provide, to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.

    (3)  The person must ensure that:

    (a)  if:

    (i)  the person is mentioned in paragraph (1)(a); and

    (ii)  the nomination by the person of an occupation in which the primary sponsored person is identified was approved under section 140GB of the Act on or after 14 September 2009;

    the terms and conditions of employment provided to the primary sponsored person are no less favourable than the terms and conditions of employment that the Minister was satisfied, under paragraph 2.72(10)(c), were no less favourable than the terms and conditions of employment that are provided, or would be provided, to an Australian citizen or an Australian permanent resident; or

    (b)  if:

    (i)  the person is mentioned in paragraph (1)(a); and

    (ii)  the nomination by the person of an activity under regulation 1.20GA (as in force immediately before 14 September 2009), in relation to which the primary sponsored person was granted a Subclass 457 (Business (Long Stay)) visa, was approved under regulation 1.20H (as in force immediately before 14 September 2009); and

    (iii)  the activity mentioned in subparagraph (ii) is an activity other than an information and communication technology activity; and

    (iv)  paragraph (d) does not apply;

    the primary sponsored person’s base rate of pay is not less than $40 705; or

    (ba)  if:

    (i)  the person is mentioned in paragraph (1)(a); and

    (ii)  the nomination by the person of an activity under regulation 1.20GA (as in force immediately before 14 September 2009), in relation to which the primary sponsored person was granted a Subclass 457 (Business (Long Stay)) visa, was approved under regulation 1.20H (as in force immediately before 14 September 2009); and

    (iii)  the activity mentioned in subparagraph (ii) is an information and communication technology activity; and

    (iv)  paragraph (d) does not apply;

    the primary sponsored person's base rate of pay is not less than $55 725.

    (c)  if:

    (i)  the person is mentioned in paragraph (1)(a); and

    (ii)  the nomination by the person of an activity under regulation 1.20G (as in force immediately before 14 September 2009), in relation to which the primary sponsored person was granted a Subclass 457 (Business (Long Stay)) visa, was approved under regulation 1.20H (as in force immediately before 14 September 2009); and

    (iii)  the activity mentioned in subparagraph (ii) is an activity other than an information and communication technology activity; and

    (iv)  paragraph (d) does not apply;

    the primary sponsored person’s base rate of pay is not less than $45 220; or

    (ca)  if:

    (i)  the person is mentioned in paragraph (1)(a); and

    (ii)  the nomination by the person of an activity under regulation 1.20G (as in force immediately before 14 September 2009), in relation to which the primary sponsored person was granted a Subclass 457 (Business (Long Stay)) visa, was approved under regulation 1.20H (as in force immediately before 14 September 2009); and

    (iii)  the activity mentioned in subparagraph (ii) is an information and communication technology activity; and

    (iv)  paragraph (d) does not apply;

    the primary sponsored person's base rate of pay is not less than $61 920.

    (d)  if:

    (i)  the person is mentioned in paragraph (1)(a); and

    (ii)  the nomination by the person of an activity, in relation to which the primary sponsored person was granted a Subclass 457 (Business (Long Stay)) visa, was approved under regulation 1.20H (as in force immediately before 14 September 2009); and

    (iii)  the primary sponsored person was granted a Subclass 457 (Business (Long Stay)) visa on the basis that subclause 457.223(6) of Schedule 2 applied to the primary sponsored person;

    the primary sponsored person’s base rate of pay is not less than $81 040; or

    (e)  if the person is mentioned in paragraph (1)(b), the terms and conditions of employment provided to the primary sponsored person are no less favourable than the terms and conditions of employment set out in the work agreement.

    (3A)  For the purposes of the terms and conditions set out in a work agreement, the Minister may specify that a minimum salary level is to be worked out in the way specified in an instrument in writing for this subregulation.

    Note:    The terms and conditions of a work agreement may refer to a minimum salary level specified in an instrument in writing.

    (4)  The obligations mentioned in subregulations (2) and (3):

    (a)  start to apply on:

    (i)  the day on which the Minister approves a nomination by the person in which the primary sponsored person is identified; or

    (ii)  if the primary sponsored person was not identified in an approved nomination — the day on which the primary sponsored person is granted a Subclass 457 (Temporary Work (Skilled)) visa on the basis of the person agreeing in writing to being the approved sponsor of the primary sponsored person; or

    (iii)  if the primary sponsored person does not hold a Subclass 457 (Temporary Work (Skilled)) visa on the day the Minister approves the nomination — the day on which the primary sponsored person is granted the visa on the basis of being identified in an approved nomination by the person; and

    (b)  end on the earlier of:

    (i)  the day on which the primary sponsored person is granted a further substantive visa that:

    (A)  is not a Subclass 457 (Temporary Work (Skilled)) visa; and

    (B)  is in effect; and

    (ii)  the day on which the primary sponsored person ceases employment with the person.

    …

    Reg 2.82    Obligation to keep records 

    (1)  This regulation applies to a person who is or was an approved sponsor.

    (2)  The person must keep records:

    (a)  of a kind:

    (i)  if the person is a standard business sponsor —specified in subregulation (3); or

    (ii)  if the person is a party to a work agreement — specified in subregulations (3) and (3A); or

    (iii)  if the person is a temporary activities sponsor, a temporary work sponsor or a professional development sponsor — specified in paragraphs (3)(a) and (b); and

    (aa)  of a kind specified by the Minister in an instrument in writing (if any) made for this subparagraph; and

    (b)  in a reproducible format; and

    (c)  either:

    (i)  in the manner specified by the Minister in an instrument in writing (if any) made for this subparagraph; or

    (ii)  if the record is a record mentioned in subparagraph (3)(a)(iii), (3)(e)(i), (3)(e)(ii) or paragraph (3)(g) — in a manner that is capable of being verified by an independent person; and

    (d)  for the period specified in subregulation (4), (5) or (6).

    (3)  For paragraph (2)(a), the records are:

    (a)  if the obligation mentioned in regulation 2.80 applies to the person:

    (i)  a record of the written request by the primary sponsored person or secondary sponsored person for the payment of return travel costs; and

    (ii)  a record of when the written request for the payment of return travel costs was received by the person; and

    (iii)  a record of how the person complied with the request to pay return travel costs, including:

    (A)  the costs paid; and

    (B)  who the costs were paid for; and

    (C)  the date of the payment of the costs; and

    (b)  if the obligation mentioned in regulation 2.84 applies to the person:

    (i)  a record of a notification to Immigration of an event specified in regulation 2.84 for the person; and

    (ii)  a record of the particulars of the notification of the event, including:

    (A)  the date on which the person notified Immigration of the event; and

    (B)  the method by which the notification was provided; and

    (C)  where the notification was provided; and

    (c)  if:

    (i)  the primary sponsored person holds a Subclass 457 (Temporary Work (Skilled)) visa; or

    (ii)  the last substantive visa held by the primary sponsored person was a Subclass 457 (Temporary Work (Skilled)) visa;

    a record of the tasks performed by the primary sponsored person in relation to work undertaken in relation to the nominated occupation or activity; and

    (d)  a record of the location or locations at which the tasks mentioned in paragraph (c) were performed; and

    (e)  if the obligation mentioned in regulation 2.79 applies to the person:

    (i)  a record of the money paid to the primary sponsored person; and

    (ii)  a record of the money applied or dealt with in any way on the primary sponsored person's behalf or as the primary sponsored person directed; and 

    (iii)  a record of the non-monetary benefits provided to the primary sponsored person, including the agreed value and the time at which, or the period over which, those benefits were provided; and

    (iv)  if there is an equivalent worker or workers in the person’s workplace — a record of the terms and conditions that apply, or did apply, to an equivalent worker or workers, including the period over which the terms and conditions applied; and

    (f)  a copy of the written contract of employment under which the primary sponsored person is employed; and

    (g)  if the person was lawfully operating a business in Australia at the time of:

    (i)  the person’s approval as a standard business sponsor; or

    (ii)  the approval of a variation to the person’s approval as a standard business sponsor;

    all records showing that the person has complied with requirements relating to training specified by the Minister in an instrument in writing for subregulation 2.87B(2).

    (3A)  For subparagraph (2)(a)(ii), the records are the records specified in the work agreement as records that must be kept.

    (4)  If the person is or was approved as a sponsor in a class of sponsor under subsection 140E(1) of the Act, the obligation mentioned in subregulation (2):

    (a)  starts to apply on the day on which the person is approved as a sponsor in a class of sponsor under subsection 140E(1) of the Act; and

    (b)  ends 2 years after the first day on which each of the following occurs concurrently:

    (i)  the person ceases to be an approved sponsor;

    (ii)  there is no primary sponsored person or secondary sponsored person in relation to the person.

    (5)  If the person is or was a party to a work agreement, the obligation mentioned in subregulation (2):

    (a)  starts to apply on the day on which the work agreement commences; and

    (b)  ends 2 years after the first day on which each of the following occurs concurrently:

    (i)  the person ceases to be a party to a work agreement;

    (ii)  there is no primary sponsored person or secondary sponsored person in relation to the person.

    (6)  However, the obligation mentioned in subregulation (2) does not require a person to keep a record for a period of more than 5 years.

    Reg 2.83    Obligation to provide records and information to the Minister 

    (1)  This regulation applies to a person who is or was an approved sponsor.

    (2)  The person must provide records or information to the Minister:

    (a)  if the Minister has requested the provision of the records or information by written notice in the manner specified in subregulation (3); and

    (b)  if the records requested by the Minister:

    (i)  are records the person is required to keep under a law of the Commonwealth or a State or Territory that applies to the person; or

    (ii)  are records the person is required to keep under regulation 2.82; and

    (c)  if the records or information relates to:

    (i)  the administration of Division 3A of Part 2 of the Act and the Regulations made under that Division; or

    (ii)  if the person is a party to a work agreement — the administration of the work agreement; and

    (d)  in the manner, and within the timeframe, requested by the Minister in the notice mentioned in subregulation (3).

    (3)  A notice from the Minister requesting the provision of records or information must:

    (a)  be given using a method mentioned in section 494B of the Act; and

    (b)  specify a date for compliance not earlier than 7 days after the date on which a person will be taken, by section 494C of the Act, to have received the document.

    (4)  If the person is or was approved as a sponsor in a class of sponsor under subsection 140E(1) of the Act, the obligation mentioned in subregulation (2):

    (a)  starts to apply on the day on which the person is approved as a sponsor under section 140E of the Act; and

    (b)  ends 2 years after the first day on which each of the following occurs concurrently:

    (i)  the person ceases to be an approved sponsor; and

    (ii)  there is no primary sponsored person or secondary sponsored person in relation to the person.

    (5)  If the person is or was a party to a work agreement, the obligation mentioned in subregulation (2):

    (a)  starts to apply on the day on which the work agreement commences; and

    (b)  ends 2 years after the first day on which each of the following occurs concurrently:

    (i)  the person ceases to be a party to a work agreement;

    (ii)  there is no primary sponsored person or secondary sponsored person in relation to the person.

    …

    Reg 2.83    Obligation to provide records and information to the Minister 

    (1)  This regulation applies to a person who is or was an approved sponsor.

    (2)  The person must provide records or information to the Minister:

    (a)  if the Minister has requested the provision of the records or information by written notice in the manner specified in subregulation (3); and

    (b)  if the records requested by the Minister:

    (i)  are records the person is required to keep under a law of the Commonwealth or a State or Territory that applies to the person; or

    (ii)  are records the person is required to keep under regulation 2.82; and

    (c)  if the records or information relates to:

    (i)  the administration of Division 3A of Part 2 of the Act and the Regulations made under that Division; or

    (ii)  if the person is a party to a work agreement — the administration of the work agreement; and

    (d)  in the manner, and within the timeframe, requested by the Minister in the notice mentioned in subregulation (3).

    (3)  A notice from the Minister requesting the provision of records or information must:

    (a)  be given using a method mentioned in section 494B of the Act; and

    (b)  specify a date for compliance not earlier than 7 days after the date on which a person will be taken, by section 494C of the Act, to have received the document.

    (4)  If the person is or was approved as a sponsor in a class of sponsor under subsection 140E(1) of the Act, the obligation mentioned in subregulation (2):

    (a)  starts to apply on the day on which the person is approved as a sponsor under section 140E of the Act; and

    (b)  ends 2 years after the first day on which each of the following occurs concurrently:

    (i)  the person ceases to be an approved sponsor; and

    (ii)  there is no primary sponsored person or secondary sponsored person in relation to the person.

    (5)  If the person is or was a party to a work agreement, the obligation mentioned in subregulation (2):

    (a)  starts to apply on the day on which the work agreement commences; and

    (b)  ends 2 years after the first day on which each of the following occurs concurrently:

    (i)  the person ceases to be a party to a work agreement;

    (ii)  there is no primary sponsored person or secondary sponsored person in relation to the person.

    …

    Reg 2.86    Obligation to ensure primary sponsored person works or participates in nominated occupation, program or activity 

    (1)  This regulation applies to:

    (a)  a person who is or was an approved sponsor in relation to a primary sponsored person if:

    (i)  the primary sponsored person holds a visa in relation to which the primary sponsored person was required to be nominated by an approved sponsor; or

    (ii)  an occupation, a program or an activity was required to be nominated in relation to the primary sponsored person by an approved sponsor; and

    (b)   a person who is or was an approved sponsor in relation to a person who was a primary sponsored person if:

    (i)  the last substantive visa held by the primary sponsored person was a visa in relation to which the primary sponsored person was required to be nominated by an approved sponsor; or

    (ii)  an occupation, a program or an activity was required to be nominated in relation to the primary sponsored person by an approved sponsor.

    (2)  If the primary sponsored person holds a Subclass 457 (Temporary Work (Skilled)) visa, or the last substantive visa held by the primary sponsored person was a Subclass 457 (Temporary Work (Skilled)) visa, the person must ensure that the primary sponsored person:

    (a)  does not work in an occupation unless both of the following apply:

    (i)  the occupation was nominated by the person for the primary sponsored person under subsection 140GB(1) of the Act;

    (ii)  the nomination was approved by the Minister under subsection 140GB(2) of the Act; or

    (b)  is not employed in an activity unless both of the following apply:

    (i)  the activity was nominated by the person for the primary sponsored person under regulation 1.20G or 1.20GA (as in force immediately before 14 September 2009);

    (ii)  the nomination was approved by the Minister under regulation 1.20H (as in force immediately before 14 September 2009); or

    (c)  is not employed in an activity unless both of the following apply:

    (i)  the activity was nominated by the person for the primary sponsored person under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009;

    (ii)  the nomination was approved by the Minister under subsection 140GB(2) of the Act.

    (2A)  Subject to subregulation (2B), if:

    (a)  the primary sponsored person holds a Subclass 457 (Temporary Work (Skilled)) visa; or

    (b)  the last substantive visa held by the primary sponsored person was a Subclass 457 (Temporary Work (Skilled)) visa;

    the person must ensure that:

    (c)  if the person is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the person’s approval as a standard business sponsor, or at the time of the last approval of a variation to the person’s term of approval as a standard business sponsor — the primary sponsored person is engaged only as:

    (i)  an employee of the person; or

    (ii)  an employee of an associated entity of the person; or

    (d)  if the person is or was a standard business sponsor who was not lawfully operating a business in Australia, and was lawfully operating a business outside Australia, at the time of the person’s approval as a standard business sponsor, or at the time of the last approval of a variation to the person’s term of approval as a standard business sponsor — the primary sponsored person is engaged only as an employee of the person; or

    (e)  if the person is or was a party to a work agreement — the primary sponsored person is engaged only as an employee of the person.

    (2AA)  In addition to subregulation (2A), if the person is, or was, a standard business sponsor, the person must ensure that, if the nominated occupation is not an occupation specified by the Minister in an instrument in writing for sub-subparagraph 2.72(10)(e)(iii)(B):

    (a)  the primary sponsored person is employed under a written contract of employment; and

    (b)  if the person is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the person’s approval as a standard business sponsor, or at the time of the last approval of a variation to the person’s term of approval as a standard business sponsor:

    (i)  the person does not engage in activities that relate to the recruitment of a visa holder, an applicant for a visa or a proposed applicant for a visa for the purpose of supplying the holder, applicant or proposed applicant to a business that is not associated with the person; and

    (ii)  the person does not engage in activities that relate to the hire of a visa holder to a business that is not associated with the person; and

    (c)  if the person is or was a standard business sponsor who was not lawfully operating a business in Australia, and was lawfully operating a business outside Australia, at the time of the person’s approval as a standard business sponsor, or at the time of the last approval of a variation to the person’s term of approval as a standard business sponsor:

    (i)  the person does not engage in activities that relate to the recruitment of a visa holder, an applicant for a visa or a proposed applicant for a visa for the purpose of supplying the holder, applicant or proposed applicant to any other business; and

    (ii)  the person does not engage in activities that relate to the hire of a visa holder to any other business.

    (2AB)  The person’s obligation in subregulation (2AA) applies only in relation to:

    (a)  a primary sponsored person:

    (i)  who holds a Subclass 457 (Temporary Work (Skilled)) visa; or

    (ii)  whose last substantive visa held was a Subclass 457 (Temporary Work (Skilled)) visa; and

    (b)  a primary sponsored person:

    (i)  who holds a Subclass 457 (Temporary Work (Skilled)) visa on the basis of satisfying the criteria in subclause 457.223(4) of Schedule 2; or

    (ii)  whose last substantive visa was a Subclass 457 (Temporary Work (Skilled)) visa held on the basis of satisfying the criteria in subclause 457.223(4) of Schedule 2.

    (2B)  For subregulation (2A), if the Minister specifies an occupation in an instrument in writing for this subregulation, a primary sponsored person may be engaged in that occupation as an independent contractor by:

    (a)  the person; or

    (b)  an associated entity of the person.

    (2C)  If the primary sponsored person holds a visa other than a Subclass 457 (Temporary Work (Skilled)) visa, the person must ensure that the primary sponsored person works or participates in the nominated occupation, program or activity in relation to which the primary sponsored person was identified.

    (3)  The obligations mentioned in subregulations (2), (2A) and (2C):

    (a)  start to apply:

    (i)  on the day on which the Minister approves a nomination by the person that identifies the primary sponsored person; or

    (ii)  if the primary sponsored person does not hold a visa mentioned in subregulation (1) on the day the Minister approves the nomination — on the day on which the primary sponsored person is granted the visa on the basis of being identified in an approved nomination by the person; or

    (iii)  if the primary sponsored person was not identified in an approved nomination — the day on which the primary sponsored person is granted a Subclass 457 (Temporary Work (Skilled)) visa on the basis of the person agreeing in writing to being the approved sponsor in relation to the primary sponsored person; and

    (b)  end on the earliest of:

    (i)  the day on which the Minister approves a nomination under section 140GB of the Act by another approved sponsor in which the primary sponsored person is identified; and

    (ii)  the day on which the primary sponsored person is granted a further substantive visa that:

    (A)  is a visa of a different subclass to the last substantive visa held by the primary sponsored person; and

    (B)  is in effect; and

    (iii)  the first day on which each of the following has occurred:

    (A)  the primary sponsored person has left Australia;

    (B)  the visa granted to the primary sponsored person on the basis of being identified in an approved nomination by the person has ceased to be in effect;

    (C)  if:

    (I)  the primary sponsored person held a Subclass 020 (Bridging B) visa when the primary sponsored person left Australia; and

    (II)  the last substantive visa held by the primary sponsored person was the visa granted to the primary sponsored person on the basis of being identified in an approved nomination by the person;

    the bridging visa has ceased to be in effect.