Alltwin Holdings Pty Ltd (Migration)

Alltwin Holdings Pty Ltd (Migration) [2019] AATA 5042 (14 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Alltwin Holdings Pty Ltd
CASE NUMBER:  1818938
DIBP REFERENCE(S):  OPF2017/15922
MEMBER:Kate Millar
DATE:14 November 2019
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal varies the decision under review by varying the period of the bar to two years from the date of the delegate’s decision. This means the bar will end on 8 June 2020.

Statement made on 14 November 2019 at 5:00pm
CATCHWORDS
MIGRATION – standard business sponsor – failure to satisfy sponsorship obligation – underpayment of employees, failure to keep evidence of wages paid and failure to provide records – barred from sponsorship for three years – prescribed criteria for action to be taken – decision under review varied
LEGISLATION

Migration Act 1959 (Cth), ss 140L(1)(a), 140M, 359AA
Migration Regulations 1994 (Cth), rr 2.57A(1), 2.79, 2.82, 2.83, 2.89(3)

CASE
MIAC v Khadgi (2010) 190 FCR 24

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

Alltwin Holdings Pty Ltd (Alltwin) operates Chinese restaurants. It was approved as a standard business sponsor in 2005, with periods of approved sponsorship between 2005–2009 and 2011–2017. The directors of Alltwin are Chaw Chung Pui, Chow Lieh Phui and Liew Chin Pui.
On 17 November 2017, the Department of Immigration and Border Protection (the Department) commenced monitoring Alltwin’s compliance with its sponsorship obligations. At this time, Alltwin had two 457 (Temporary Work) visa holders.
Following this monitoring, on 7 May 201 a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs issued a notice of intention to take action, stating there was reason to believe Alltwin had failed to comply with its obligations as a sponsor, in particular that it had underpaid two employees, had failed to keep independently verifiable evidence of the wages paid to employees, and had failed to provide records and information to the Minister.
On 8 June 2018, the delegate found that Alltwin had breached its obligation to keep records as it had paid employees in cash and payments could not be independently verified. It also found Alltwin had failed to provide information requested by the Minister, as it provided a sample of payslips instead of all payslips. While the delegate found sponsored employees had been underpaid, the delegate found this was minor (in the amount of $44 per annum), had been rectified and further action in relation to this breach was not pursued.
As a result of these breaches, the delegate decided to bar Alltwin from making applications for approval as a standard business sponsor and temporary activities sponsor for three years under s.140M of the Migration Act 1958 (the Act). Alltwin has applied for a review of this decision.
Miss Liew Chin Pui, a Director of Alltwin, appeared before the Tribunal on 17 July 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Miss Connie Lee.
At issue in this matter is whether Alltwin has breached its obligations as a sponsor, and if so what action, if any, should be taken.
For the following reasons, the Tribunal has decided to vary the decision under review by ending the period of the bar at the date of this decision.
CERTIFICATE ISSUED UNDER S.376 OF THE ACT
The Department file contained a certificate issued under s.376 of the Act. A certificate validly issued under s.376 of the Act provides the discretion to the Tribunal whether to release of the information. Alltwin was advised of the certificate, the nature of the information covered by the certificate and was provided an opportunity to comment on the validity of the certificate. Alltwin did not provide any comment on the validity of the certificate.
In this case, the certificate covers the personal bank account statements of an employee. This information is no different to information already provided to Alltwin and conceded by it, namely that employees were paid in cash. Other information contained in the documents was not relevant to this matter as it relates to the personal expenditure of the employee.
INFORMATION PROVIDED UNDER S.359AA OF THE ACT
In the course of the hearing, information was put to Miss Pui under s.359AA of the Act. This information is contained in the records of the Department in preparing for the site visit.
The information was that contained in two separate allegations. This information was:
· A male 457 visa holder has a contract that pays $95,000 but the employer takes back money, and he is getting paid $750 per week.
It was explained that if the Tribunal relied on the information it would find the lack of independent records of money paid to the sponsored visa holders supports the allegation that Alltwin was underpaying people or was taking money back from them.
It was explained that this is relevant as if the Tribunal finds there is a breach of a sponsorship obligation, there is a consideration of any action to be taken. The information is relevant to whether the breach was intentional, reckless or inadvertent which is a consideration under r.2.89(3) of the Migration Regulations 1994 (the Regulations). If the Tribunal relied on the information in the allegations it would find that the failure to satisfy the obligation to keep records was intentional, which in turn would inform the action to be taken.
It was explained that Alltwin could comment on or respond to the information at the hearing or seek more time to comment on or respond to the information. Miss Pui chose to respond at the hearing, and said that she would not pay $750, she always pays what she is required to pay. Miss Pui said this [taking back money] has never happened in the company, and while a lot of people offer them money to sponsor them for a visa, this is not right and they would not do that.
After the hearing, Alltwin provided a letter from a current employee, Ms Yi-Ting Chang stating she has worked for the business since 2014. She states she was not asked for money in return for sponsorship, and that she is happy to provide further information if required. The wages for Ms Yi-Ting Chang, unlike those of two other sponsored workers, have been paid by electronic funds transfer and are able to be independently verified.
The imposition of an bar or other penalty on a sponsor for a breach of its obligations may have a serious effect on a business. In this context, establishing a breach of sponsorship obligations must be positively found before any action is imposed. While the allegations appear to be at least part of the reason Alltwin’s compliance with its obligations was monitored by the Department, the allegations were not relied on by the delegate. Allegations are easy to make without any supporting evidence, and in this case, the Tribunal places little weight on these allegations except where there is other evidence that support the allegations.
CONSIDERATION OF CLAIMS AND EVIDENCE
Sections 140K, 140L and 140M of the Act provide for the imposition of sanctions on approved sponsors in certain circumstances.
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.
For these purposes, the circumstances are prescribed in r.2.89–r.2.94B of the Regulations and as they apply in this case include circumstances in which the Minister, or the Tribunal on review, is satisfied there has been a failure to satisfy a sponsorship obligation.
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 apply to the circumstances of this case, are set out in the attachment to this decision.
Does a circumstance for the taking of an action exist?
Failure to satisfy a sponsorship obligation: r.2.89
The Minister may take one or more of the actions in s.140M of the Act if satisfied the sponsor has failed to satisfy a sponsorship obligation referred to in Division 2.19 of the Regulations: r.2.89(2).
In this case, the delegate found that Alltwin has breached its obligation to ensure equivalent terms and conditions, to keep records, and to provide records and information to the Minister. The Tribunal has considered each of these obligations in turn.
(i) Obligation to ensure equivalent terms and conditions of employment
Under r.2.79, a person who is or was a standard business sponsor of 457 visa holders must ensure the terms and conditions of employment offered to the primary sponsored person are no less favourable than the terms and conditions that would be provided to an Australian citizen or permanent resident to perform equivalent work in the person’s workplace at the same location (r.2.79(1) and (2)).
In addition, the sponsor must ensure the terms and condition provided to the primary sponsored person are no less favourable than the terms and conditions the Minister was satisfied under r.2.72(10)(c) that are or would be provided to an Australian citizen or permanent resident (r.2.79(3)(a)).
Regulation 2.72(10)(c) requires that the terms and conditions of employment of the nominee will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work at the same location.
Under r.2.57(3A), a set of terms and conditions is less favourable than another set of terms and conditions if the earnings of the first set are less than the earnings provided in the second set and there is no substantial evidence to the contrary that the first set is no less favourable than the other set.
Under r.2.57A(1), a person’s earnings include the person’s wages, any amounts applied or dealt with in any way on the person’s behalf or as the person directs and the agreed monetary value of non-monetary benefits. Earnings do not include payments, the amount of which cannot be determined in advance, reimbursements, and contributions to a superannuation fund.
In summary, this means a sponsored worker’s earnings must be no less than those of an Australian citizen or permanent resident doing the same or similar work in the same location, and also must be the amount in the approved nomination of the position.
The delegate found here had been minor underpayment of wages according to the payslips, with an amount of $44.31 per annum underpaid for both Mr Yak Chai Ong and Mr Wei Hao Ong.
This was not disputed by Alltwin, and the Tribunal finds there was a breach of the obligation to ensure that the terms and conditions of the sponsored workers are no less favourable than the terms and conditions that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at that same location.
Whether the amount of $44.31 per annum is the extent of any underpayment cannot be verified, as Alltwin paid these employees partly or wholly in cash. This was not pursued by the delegate as an underpayment of wages, but rather as a failure to keep records.
As the sponsored workers were underpaid an amount of $44.31 each per annum, there is a breach of the obligation in r.2.79 of the Regulations.
(ii) Obligation to keep records
Regulation 2.82 applies to a person who was or is an approved sponsor. It requires the sponsor to keep particular records in a reproducible format and for a particular period.
Regulation 2.82 (3)(e) states that particular records must be kept of money paid to a primary sponsored person. As it applies in this case, this includes a record of the money paid to the person (r.2.82(3)(e)(i)). Regulation 2.82(2)(c)(ii) states that records must be kept in a manner that is capable of being verified by an independent person.
In regard to the sponsored worker Mr Yak Chai Ong, Miss Pui said they took over his sponsorship from another employer as they required a person with experience as a chef, and they did not know he had disagreements with his previous sponsor. The employment contract provided was signed on 21 October 2015. Miss Pui said Mr Yak Chai Ong asked to be paid in cash, and while she said they could not really do that, he kept asking and she thought to be a good employer she would agree. She said he wanted cash as he went to the casino after work. Mr Ong left Alltwin’s employment the day before his spouse visa was granted.
Miss Pui said they paid Mr Yak Chai Ong a few times by cash and a few, perhaps three or four, times by cheque. According to the response dated 29 December 2017, until July 2017 he was paid partly in cash and partly by cheque. Given he commenced work with Alltwin in late 2015, the Tribunal finds he was paid in cash for a lengthy period of time. No further information was provided to establish the payments by cheque. Miss Pui said she recorded what he was paid by a note in her journal.
Miss Pui said she is often asked by staff for cash payments, but does not agree to do so. However, in Mr Ong’s case, as he was the chef and they could not run the business without him, she agreed.
Given Miss Pui’s submission was that she did not know she could not pay in cash, she was asked why she had said she “could not really pay in cash” as this tends to indicate she knew there were reasons she should not pay in cash. It was also put to her that the delegate said she had been a sponsor for a long period of time, and would be expected to know she could not pay in cash as this fails to keep independently verifiable records.
In response, Miss Pui said she did not know she could not pay in cash and her migration agent did not tell her she should not pay in cash. She also said it is easier to keep records if he was not paid in cash. She reiterated that she did not know she should not pay him in cash, despite having been a sponsor for a very long time.
Given the business was previously monitored for its compliance with its sponsorship obligations, and that the responsibility for being aware of the obligations of a sponsor lies with the sponsor, the Tribunal does not accept that Miss Pui did not know she was required to keep independently verifiable records of the earnings of sponsored visa holders.
Miss Lee said that Yak Chai asked if he could speak to the boss so that he could be paid in cash. She asked why he wanted cash, and other employees said he goes to the casino after work. Yak Chai told her he had banned himself from the casino.
In regard to the sponsored worker Mr Wei Hao Ong, Miss Pui said they only paid part of the salary in cash, perhaps a few hundred dollars for day-to-day expenses. She said Wei Hao felt uncomfortable going to the bank and requested part of his salary in cash. She said his English was limited and he was very young. Miss Pui said this arrangement continued for the four years he was employed, and that he was paid $800 to $1,000 into a bank account and the rest in cash. His wages were $1,320 and he was paid $300 to $500 in cash.
The records of electronic transfers provided by Alltwin include transfers to Mr Wei Hao Ong together with a handwritten annotation, for example “Wei Hao Ong $461 in cash”.
Alltwin has failed to comply with its obligation to keep records as it paid its employees in cash, or partly in cash, and did not keep an independently verifiable record of the money paid to Yak Chai Ong or Wei Hao Ong.
It follows there has been a breach of its obligations under r.2.82.
(iii) Obligation to provide records and information to the Minister
Regulation 2.83 requires an approved sponsor to provide records and information to the Minister if the Minister provides a written notice in the manner specified in r.2.83(3) and the records are those required to be kept under a law of the Commonwealth, State or Territory that applies or are records the person is required to keep under r.2.82.
Payslips are required to be kept according to s.535 and 536 of the Fair Work Act 2009 and r.3.31 to 3.46 of the Fair Work Regulations 2009.
The delegate of the Minister specified in a written notice dated 17 November 2017 at item 8A that Alltwin was to provide payslips for sponsored workers. The notice complied with r.2.82(3) and specified a date for compliance not earlier than seven days after the date on which Alltwin was taken under s.494C of the Act to have received the notice.
In response, Alltwin provide a sample of the payslips rather than all of the payslips requested. Specifically, it provided eight weekly payslips for Yak Chai Ong in a response to a notice requesting payslips for the period 1 January 2017 to 31 October 2017. Only eight weekly payslips were provided for Wei Hao Ong for the same period.
Miss Pui said everything to do with the sponsorship went through the migration agent. She said that she asked if she had to provide all of the payslips, but the agent told her she did not need to provide all of them, and to provide the PAYG payment summary.
The response provided by Alltwin was submitted after the due date given in the notice. Further information that did not include all relevant payslips was provided eight days later, and further information in relation to Mr Yak Chai Ong was provided 28 days late. A complete set of payslips was not provided until 21 May 2018.
It follows Alltwin has failed to provide records and information to the Minister as specified in the notice, and it has breached r.2.83 of the Regulations.
Action to be taken
For these reasons, the Tribunal is satisfied that a relevant circumstance for s.140L(1)(a) of the Act exists. Accordingly, it is necessary to consider whether one or more of the actions mentioned in s.140M should be taken. In considering what action to take, the Tribunal has had regard to the prescribed criteria.
Prescribed criteria – Breach of a Sponsorship Obligation
The prescribed criteria to be consider in deciding what action to take for the breach of a sponsorship obligation is set out in r.2.89 and each criterion is considered below.
In considering these criteria, the Tribunal has not had further regard to the small underpayments referred to by the delegate of $44.31 for Mr Yak Chai Ong and Mr Wei Hao Ong, as it does not regard these underpayments as significant.
(a) The past and present conduct of the person in relation to Immigration
The delegate recorded that Alltwin was previously monitored in 2006, with a satisfactory outcome.
As recorded by the delegate, Alltwin did not provide a response by the due date, then provided incomplete information on more than one occasion, finally providing the payslips more than five months after they were due.
It was further submitted on 21 May 2018 that Miss Pui is responsible for the administration and operation of the trust and given her heavy workload was unable to comply by the due date.
Alltwin stated in a response of 22 December 2017 that it did not consider it was required to provide information for Mr Yak Chai Ong as he had ceased employment, and this was reported to the Department on 18 August 2017. It is stated that when it became aware of the need to provide these documents it did so promptly. It is acknowledged it did not provide all payslips and says this was done on the advice of the previous migration agent. This does not address or take not account that Mr Yak Chai Ong was specifically named in the notice issued by the Department on 21 April 2017 requesting information.

The submission of 21 May 2018 states that Alltwin was fully cooperative with the Department and disclosed the cash payments and its recording of them to the Department. This is not reflected in the earlier response of Alltwin of 9 December 2017, as it is stated in relation to Mr Wei Hao Ong that there is evidence of money paid to him (although the response refers to Ms Chang). The handwritten annotation was added to the bank statements. It was only by perusing the bank statements and the handwritten annotations that the cash payments were evident. It therefore cannot be the lack of independently verifiable evidence of earnings was drawn to the attention of the delegate by Alltwin.
The failure to provide information specifically requested in the notice requiring information, does not display cooperation with the Department, and weighs in favour of imposing a sponsor bar for a period of time.
(b)The number of occasions on which the person has failed to satisfy the sponsorship obligation
Alltwin continuously failed to comply with its sponsorship obligations over the period it paid Mr Yak Chai Ong and Mr Wei Hao Ong in cash or partly in cash as the records could not be independently verified. As the sponsored workers were paid weekly, each week that it did not keep records is an occasion on which it failed to satisfy its obligations as a sponsor.
Miss Pui was asked at hearing, but could not recall, the period during which Mr Yak Chai Ong or Mr Wei Hao Ong were employed. She was granted further time after the hearing to provide these dates and also advised to make a list of further information to be provided. Miss Pui did not provide this information, and the Tribunal has proceeded as best it can on the information before it.
According to the response of 29 December 2017, Mr Yak Chai Ong was employed from 23 February 2016 to 2 August 2017. It is stated he was paid by cash or cash and cheque until July 2017. It follows Alltwin was continuously in breach of it obligation to keep records in relation to Mr Yak Chai Ong for a period of approximately 16 months.
According to the response of 9 December 2017, Mr Wei Hao Ong worked for Alltwin from 7 May 2014 to the date of the response, with his visa due to expire in May 2018. The responses from Alltwin do not state when Mr Wei Hao Ong was paid partly in cash. As the notice issued by the Department only refers to the period 1 January 2017 to 31 October 2017, the Tribunal has limited its consideration to this time and finds that Alltwin was continuously in breach of its obligations to keep records during this time.
In regard to the failure to provide records and information to the Minister, Alltwin failed to provide the records requested of it in response to the notice issued. The records were provided five months after they were requested.
The Tribunal notes however there was a response from the migration agent on 21 December 2017 stating that the agent had contacted the Department on 25 November 2017 and was advised that Alltwin only had to provide a list of current 457 employees. The response from the Department was that the query was thought to be about the list of visa holders to be provided and that Alltwin was still required to respond with details about any specifically listed visa holder as specified in the notice. While the notice is lengthy, it does specifically name Mr Yak Chai Ong, and requires information that includes his employment contract, records of gross and net salary, payslips and records of money paid to him. As Mr Yak Chai Ong is specifically named in the notice, the Tribunal does not accept that Alltwin was not advised of the need to provide records in relation to his employment.
Alltwin has breached its obligations on many occasions over a lengthy period of time. It has failed to provide information specifically requested of it. These factors weigh against Alltwin and point to a bar being imposed for a period of time.
There is evidence of small underpayments to two sponsored visa holders, however these are not of any great significance, and the Tribunal does not consider this weighs against Alltwin.
(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
Miss Pui said that all of the responses to the Department since Alltwin commenced as a sponsor in 2005 were through a migration agent and there had been no previous problems.
The period of time during which one of the visa holders was paid cash or partly paid in cash and other means is more than 16 months.
Miss Pui acknowledged that they had received requests to sponsor workers in return for cash, but said they would not do that. In light of these requests, and the need to guard against fraud in this visa subclass, there is a real need to keep independently verifiable records. It is not possible to determine what has, in fact, been paid to Mr Yak Chai Ong and Mr Wei Hao Ong.
Miss Pui said that Yak Chai and Wei Hao would provide a letter to say they asked her to pay them in cash. Miss Pui was advised she could seek an adjournment to provide letters from Yak Chai and Wei Hao. She said she is still in contact with Wei Hao and his wife still works for Alltwin. Miss Pui initially sought three months, however the Tribunal declined to provide this length of time. She was granted seven days after the hearing to provide any further information. This was further extended after this date. Alltwin has not provided any further information from Mr Yak Chai Ong or Mr Wei Hao Ong to the date of this decision.
The Tribunal has had regard to complying records that Alltwin did keep in relation to another sponsored worker, Ms Yi-Ting Chang, who also provided a statement after the hearing to say she has never been asked for money by her employer.
In regard to the request for information, Miss Pui said that this was close to the Christmas period, and they always take two weeks off after Christmas. It was pointed out that the information was due and further requested before Christmas. She said they only asked for information on Yak Chai Ong on 21 December 2017. This was not the case, as Mr Yak Chai Ong was specified in the original notice.
The Tribunal considers the nature of the failure to keep independently verifiable records of the amounts paid to two sponsored workers a severe breach of the obligations of a sponsor as it means that it is difficult, if not impossible, to establish whether the workers have, in fact, been paid the correct amount. This was compounded in this case by not providing any records in relation to the visa holder that was solely paid in cash, Mr Yak Chai Ong, and by the length of time over which the breach of this obligation occurred.
(d) The period of time over which the person has been an approved sponsor
Alltwin has been an approved sponsor since 2005 and has previously been monitored for its compliance with no adverse outcome.
The period of time Alltwin has been an approved sponsor and the previous monitoring weighs in its favour in both not imposing a bar or for imposing a bar for a short period.
(e)Whether, and the extent to which, the failure to satisfy the sponsorship obligation has had a direct or indirect impact on another person
The failure to keep independently verifiable records has resulted in the Department, and this Tribunal, being unable to verify the payments that were made to two of the sponsored visa holders. It undertook to provide further statements from the visa holders, but has not provided statements as at the date of this decision. The Tribunal therefore does not have information on, and cannot make any findings about, the direct impact on the visa holders.
The failure to keep and provide records makes it difficult to determine whether the sponsor is complying with its obligations, in particular the obligation to ensure equivalent terms and conditions to Australian citizens or permanent residents performing the same work in the workplace at the same location.
(f)Whether, and the extent to which, the failure to satisfy the sponsorship obligation was intentional, reckless or inadvertent
Both the previous submissions on behalf of Alltwin and Miss Pui in her oral evidence state that the failure to comply with the obligation to keep records was inadvertent.
This oral evidence is to be measured against the length of Alltwin’s approval as a sponsor and the previous monitoring of Alltwin, in which there was no adverse outcome.
When asked what action she had taken to become more aware of her obligations as a sponsor, Miss Pui said she looked at the Immigration website. She said Alltwin has relied on a migration agent in preparing its response.
In paying the sponsored workers in cash against a background of a long period as an approved sponsor and previous compliance, the Tribunal is not satisfied that the failure to keep independently verifiable records and to provide information required by the Minister is be mere inadvertence, and finds that, at the least, this occurred as Alltwin did not take active steps to make sure it was aware of its obligations.
As result, the Tribunal considers the breach by Alltwin of its obligations was at the least in reckless disregard of the obligations as a sponsor.
(g)Whether, and the extent to which, the person has cooperated with Immigration, including whether the person informed Immigration of the failure
While the submission of 21 May 2018 states that Alltwin had provided information on its payment of the sponsored workers, this was not the case. The submission did not refer to Mr Yak Chai Ong, and indicated that bank account statements showed the wages paid to Mr Wei Hao Ong when they did not. It did not advise that Mr Yak Chai Ong was paid in cash until information in relation to Mr Yak Chai Ong was further requested by the Department. This information was provided on 29 December 2017.
Alltwin did not notify the Department of its failure to comply with its obligations, and repeatedly failed to provide Immigration with information. This weighs in favour of taking action against it.
(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
Alltwin states it no longer pays employees in cash, and will only pay by bank transfer. Miss Pui also stated that they now keep records of all payments.
Miss Pui was asked if she had taken any other steps to educate herself as to Alltwin’s obligations as a sponsor, she said she goes to the Immigration website, but that is all. She said that since Alltwin was barred for three years and the economy is poor she has been concentrating on daily business. When asked if she had implemented any different processes to ensure compliance with sponsorship obligations, she said she was not sure.
While this does not operate in Alltwin’s favour, little weight is placed on this factor as it is during the period the bar was in place and the final sponsored worker’s sponsorship ceased shortly after the bar was imposed. However, if Alltwin was approved as a sponsor in the future, it would be well advised to take further steps to appraise itself of its obligations and the actions it must take to comply with its obligations.
Other factors
Miss Pui said the business is an authentic Malaysian restaurant and they cannot get anyone locally to help. She said they have tried to recruit locally but only get one or two applicants. She said the local applicants are not up to the standard they want.
When asked if they have a chef at the moment, Miss Pui said her brother is the head chef. Previously Alltwin also employed two other chefs; Wei Hao and Yak Chai. Ms Pui said they currently have another two cooks who are local but are both aged in their 50s, and they are trying to get someone younger. They want employees who will stay two to four years as otherwise they cannot expand their business.
Miss Pui said they have planned to expand the business but cannot at the moment as they need a chef to partly replace her brother so he can do something else. She said if they have a sponsored worker for two to four years they can plan ahead and expand the business.
Miss Lee said the impact of the bar on the business was they all have to help in the business and reshuffle to the team to make it work. She said the other director is working in the kitchen for 80 hours per week, and they cannot get staff for front of house and in the kitchen. Miss Lee said they currently needed a manager for front of house to manage the counter, seating, rostering and ordering. They also need two sous chefs, and it is difficult to get local people. She said they advertise the chef positions but people cannot cope with the volume of work.
The Tribunal finds that while the bar has resulted in Alltwin not being able to expand as it had planned, and it has had difficulty recruiting locally, it currently does have employees in the positions it requires. The Tribunal finds that while the current bar imposes some hardship on the current business owners, it will not result in the business being unable to trade.
At the time of the delegate’s decision Alltwin had one other sponsored visa holder, Ms Yi-Ting Chang. Miss Pui said Ms Chang had personal problems and returned to Taiwan for a month in May 2018. She has returned, but Alltwin could not offer her further sponsorship. However Ms Chang now has a partner visa and continues to work for Alltwin. It follows the bar does not have an effect on Ms Chang’s employment with Alltwin.
CONCLUSION
Alltwin has been an approved sponsor for some time and has previously complied with its obligations. A bar on seeking further approval as a sponsor will have an impact on the business’ ability to expand, although it does not affect its current ability to operate.
However given the seriousness of failing to keep independently verifiable records of payments, and as the Tribunal considers this is more than inadvertence on the part of Alltwin and is at least reckless, the Tribunal considers that the action mentioned in s.140M(2) should be taken.
If it had been established that the sponsored visa holders had not been paid the amounts in the payslips, the Tribunal would have taken action appropriate to the severity of that breach. However, in this case this has not established, nor was this raised in the decision of the delegate. What has been established is that Alltwin failed to keep independently verifiable records of payments to sponsored visa holders. An appropriate bar is one that reflects this finding without inferring a greater wrongdoing than has been found to have occurred.
Alltwin has not been particularly cooperative with the Department, as it failed to provide information specifically requested of it in relation to Mr Yak Chai Ong. The Tribunal does not consider the business can absolve itself of failing to provide the information by stating it relied on its agent, as the responsibility for compliance lies with the sponsor. While there were a large number of documents requested in the notice, the information in relation to Mr Yak Chai Ong was specifically requested in the notice, and it required a degree of care in reading and compiling the response to comply. In failing to take that care, Alltwin did not have due regard to its obligations as a sponsor.
Having had regard to all of the prescribed factors, the Tribunal considers Alltwin should be barred from applying for approval as a standard business sponsor or a work sponsor. However, the date of the bar is varied to end on 8 June 2020, two years from the date of the delegate’s decision.
DECISION
The Tribunal varies the decision under review by varying the period of the bar to two years from the date of the delegate’s decision. This means the bar will end on 8 June 2020.
Kate Millar
Senior 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.
…

[2019] AATA 5042

14 November 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Breach

Remedies

Jurisdiction

Statutory Construction