23 Digital Pty Ltd (Migration)

The Administrative Appeals Tribunal considered a review application by 23 Digital Pty Ltd concerning a sponsorship bar imposed by the Department of Home Affairs. The dispute arose from 23 Digital's failure to satisfy two sponsorship obligations: ensuring equivalent terms and conditions of employment for its sponsored workers and ensuring that a sponsored person worked only in their nominated occupation. These failures were identified during an investigation by the Australian Border Force.

The Tribunal was required to determine whether a circumstance existed for taking action under section 140M of the Migration Act 1958 (Cth) and, if so, what action should be taken. Specifically, the Tribunal had to consider the prescribed criteria for imposing sanctions, including the applicant's past and present conduct, the number and nature of the failures, the period of sponsorship, the impact on others, the intent behind the failures, cooperation with authorities, and steps taken to rectify the situation.

In its reasoning, the Tribunal affirmed the delegate's findings of breaches under regulations 2.79 and 2.86. While the underpayments related to the equivalent terms and conditions obligation were found to be minor and somewhat inadvertent, the Tribunal expressed concern regarding the sponsored worker's undisclosed secondary employment as an Uber driver for 11-14 hours daily, which indicated a level of neglect of sponsorship obligations. However, the Tribunal also took into account 23 Digital's cooperation with the investigation, its admission of multiple breaches, its lack of prior immigration compliance issues since its approval as a sponsor in 2016, and the significant negative impact a prolonged sponsorship bar would have on its associated business.

Ultimately, the Tribunal decided to vary the decision under review by reducing the period of the sponsorship bar from 18 months to 3 months, finding this period warranted considering the totality of the circumstances and the prescribed criteria.