1718060 (Migration)

The Administrative Appeals Tribunal reviewed a decision by the Department of Home Affairs to cancel a company's approval as a standard business sponsor and impose a two-year bar on future sponsorship applications. The Department's decision was based on alleged breaches of sponsorship obligations concerning two sponsored workers.

The Tribunal was required to determine whether the sponsor had failed to satisfy its obligations under the Migration Regulations 1994, specifically regarding ensuring equivalent terms and conditions of employment, keeping and providing records, and ensuring sponsored workers performed duties aligned with their nominated occupations. The Tribunal also had to consider the criteria for imposing sanctions under section 140M of the Migration Act 1958, including the nature and severity of any breaches, the sponsor's conduct, and any steps taken towards rectification.

The Tribunal found that while there were some breaches, they were not as severe as initially assessed by the Department. It determined that the sponsor had not breached the obligation to ensure equivalent terms and conditions of employment, nor had it failed to provide records, although its response was partial and delayed. The Tribunal also found that the sponsored worker's duties had shifted to more clerical tasks, particularly related to the National Disability Insurance Scheme, which did not align with the higher-skilled "Community Worker" occupation for which she was nominated. However, the Tribunal considered the sponsor's cooperation, the inadvertent nature of some breaches, and the fact that the two-year bar had expired before the hearing.

Ultimately, the Tribunal set aside the Department's decision to cancel the sponsorship approval and impose the two-year bar. It substituted a decision not to take any of the specified actions under section 140M of the Migration Act, effectively reinstating the sponsor's approval.