Australian Colon Health Holdings Pty Ltd (Migration)

[2020] AATA 2753

Australian Colon Health Holdings Pty Ltd (Migration) [2020] AATA 2753 (27 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Australian Colon Health Holdings Pty Ltd

CASE NUMBER:  1905839

DIBP REFERENCE(S):  OPF2018/11344

MEMBER:Sheridan Lee

DATE:27 May 2020

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 27 May 2020 at 12:03pm

CATCHWORDS
MIGRATION – cancellation – sponsorship approval – compliance with sponsorship obligations – ensure sponsored person work in nominated occupation – massage therapist – colonic irrigation therapist – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 140M
Migration Regulations 1994 (Cth), rr 2.86, 2.89

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 was approved as a standard business sponsor on 6 July 2017. On 21 February 2019, the delegate decided to cancel the approval of Australian Colon Health Holdings as a standard business sponsor and bar the company from making applications for approval as a standard business sponsor and temporary activities sponsor for three years under s.140M. The sanctions were imposed on the basis that the applicant had failed to satisfy a sponsorship obligation (Regulation 2.89). The identified breach was of the obligation to ensure that the primary sponsored person worked or participated in the nominated occupation, program or activity.

3. The applicant was represented in relation to the review by its registered migration agent.

4. 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 CLAIMS AND EVIDENCE

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

6. 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.

7. 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.

8. 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.

   Does a circumstance for the taking of an action exist?

9. Australian Border Force commenced monitoring activities on 14 November 2018 in response to a tip-off received through the Border Watch website in respect of the applicant. The tip-off alleged that the visa holder employed by the business, Ms Kim Twiggs, was not working in her nominated occupation of ‘massage therapist’, but as a ‘colonic irrigation therapist’. On 21 November 2018, officers visited the applicant’s principal place of business to make observations and interview Ms Twiggs.

10. At the conclusion of the monitoring activities, the delegate found that Ms Twiggs was not working as a massage therapist and the applicant had consequently failed to satisfy a sponsorship obligation. A copy of the delegate’s decision was provided to the Tribunal on review.

    Failure to satisfy a sponsorship obligation: r.2.89

11. 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).

12. Regulation 2.86 imposes an obligation to ensure that the primary sponsored person works or participates in the nominated occupation, program or activity. In this matter, the nominated occupation was massage therapist.

13. On 9 January 2020, the Tribunal (differently constituted) set aside the decision to cancel Kim Twiggs’ Subclass 457. The Tribunal noted that the descriptor of the occupation of Massage Therapist in the ANZSCO occupation dictionary is generic and does not embrace the totality of applications associated with massage therapy. The Tribunal was satisfied that the applicant delivered continuous abdominal massage during colonic therapy and that her duties sufficiently correlated to the nominated occupation. A copy of the Tribunal’s decision on the related visa cancellation was submitted to the current Tribunal by the applicant on 16 January 2020.

14. The previous Tribunal had the benefit of taking oral evidence from the Director of Australian Colon Health Holdings, the sponsored visa holder and a witness who testified to having received massage therapy from the employee. Having reviewed the evidence provided to the previous Tribunal, the material provided by the applicant in response to the notice of intention to take action, and records provided by the Department, I accept that Ms Twiggs was working in the nominated occupation. Accordingly, the Tribunal is not satisfied that the prescribed circumstance in r.2.89 exists for the purpose of s.140M of the Act.

    Action to be taken

15. As the Tribunal finds that none of the circumstances for s.140L(1)(a) exist, it follows that the power to take an action under s.140M does not arise.

16. The Tribunal notes that the Department issued a certificate on 2 March 2020 over material supplied to the Tribunal under s.375A of the Act. Specifically, the Department sought to restrict the disclosure of a risk assessment of the planned site visit, a standard tactical plan and a sponsor monitoring recommendation report. Having reviewed the material, the Tribunal determined that it was not necessary to put the certificate top the applicant for comment. Notes of the observations made by Departmental officers during the site visit were considered relevant to the review, but ultimately the Tribunal was able to reach a favourable decision on the available evidence.

    DECISION

17. 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.

    Sheridan Lee
    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.

    …