Amardeep Singh Johal (Migration)

This matter concerned an appeal by Amardeep Singh Johal against a decision to cancel his approval as a standard business sponsor and impose a 12-month bar on re-applying for sponsorship. The dispute arose from the department's finding that the sponsored worker, Tejalben Sachinkumar Patel, was not working in her nominated occupation as a hairdresser, but was instead performing duties more aligned with a beauty therapist. The applicant contended that any beautician work was incidental to hairdressing and that the appointment book supported his claims. The Administrative Appeals Tribunal was required to determine whether the sponsored worker had failed to satisfy the sponsorship obligation by not working in her nominated occupation, and if so, whether the department's decision to cancel sponsorship and impose a bar was appropriate.

The Tribunal was required to consider the provisions of sections 140K, 140L, and 140M of the Migration Act 1958 (Cth) and relevant regulations concerning sponsorship obligations and the imposition of sanctions. Specifically, the Tribunal had to assess whether the sponsored worker's duties as described by the sponsor and evidenced by monitoring, including an interview with the sponsor, constituted a failure to work in the nominated occupation as a hairdresser, as defined by ANZSCO. The Tribunal also had to consider the criteria set out in the Migration Regulations 1994 for determining what action, if any, should be taken when a sponsorship obligation is not met, including the nature and severity of the failure, whether it was intentional, reckless, or inadvertent, and the sponsor's cooperation.

The Tribunal found that the sponsor's own testimony during an interview unequivocally demonstrated that the sponsored worker performed duties such as waxing and make-up, which were not incidental to hairdressing and were performed by her exclusively. The Tribunal also found the sponsor's explanations regarding the appointment book to be highly questionable and self-serving, noting that entries suggested walk-ins were recorded and that the sponsored worker's work was not reflected. Consequently, the Tribunal was satisfied that the sponsor had failed to ensure the sponsored worker performed her nominated occupation, constituting a breach of Regulation 2.86(2). However, given that the 12-month bar period had expired and more than two years had passed since the initial action was taken, the Tribunal decided not to impose any further sanctions. The Tribunal affirmed the decision under review.