Carna Therapeutics Pty ltd (Migration)

[2019] AATA 4528

Carna Therapeutics Pty ltd (Migration) [2019] AATA 4528 (14 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Carna Therapeutics Pty ltd

CASE NUMBER:  1838147

DIBP REFERENCE(S):  OPF2018/8995

MEMBER:R. Skaros

DATE:14 August 2019

PLACE OF DECISION:  Sydney

DECISION:  The Tribunal sets aside the decision under review and substitutes a decision to take the following actions:

·cancel the applicant’s approval as a standard business sponsor.

·bar the applicant for a period of nine months from the date of the Department’s decision, being from 20 December 2018 to 19 September 2019, from making an application for approval as a standard business sponsor.

Statement made on 14 August 2019 at 12:29pm

CATCHWORDS
MIGRATION – cancellation – sponsorship approval – compliance with sponsorship obligations – ensure sponsored person work in nominated occupation – Massage Therapist – production, promotion and sale of aromatherapy products – action to be taken – cooperation with the Department – steps taken to rectify breach – proportionality of sanctions imposed – decision under review substituted

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

CASES
1413754 (Migration) 2015 AATA 3858

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 2015 for a period of five years. On 4 October 2018, the Australian Border Force (ABF) Sponsor Monitoring Unit (the Department) commenced a monitoring audit to ascertain the applicant’s compliance with their sponsorship obligations. Following the audit, the Department issued the applicant a Notice of Intention to Take Action (the Notice). In response to the Notice, the Department received submissions and supporting documents which the Tribunal has had regard to further below.

3. On 20 December 2018, the delegate found that there was a failure by the applicant to satisfy the sponsorship obligation in r.2.86 of the Migration Regulations (1994) (the Regulations), which requires the applicant to ensure that the primary sponsored person works in the nominated occupation. After considering the relevant circumstances, the delegate decided to cancel the applicant’s approval as a standard business sponsor, bar the applicant for three years from making applications for approval as a standard business sponsor and temporary activities sponsor and bar the sponsor until 19 December 2020 (a period of two years) from sponsoring more people under the terms of the approved standard business sponsorship.

4. The applicant provided a copy of the delegate’s decision record to the Tribunal with the application for review.

5. On 29 April 2019 the Tribunal received submissions and supporting documents which included financial material for the applicant, documents evidencing the of employment of the sponsored person, Ms Yukiko Shimizu and a medical certificate for Ms Shimizu dated 9 October 2018. The Tribunal also received a copy of a contractor’s agreement between the applicant and Ms Tomomi Liu-Brennan for the provision of services.   

6. The applicant’s Director, Mr Shingo Usami, appeared before the Tribunal by telephone on 6 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the 457 visa holder, Ms Yukiko Shimizu. The Tribunal notes that this hearing was held in conjunction with another matter before the Tribunal relating to an application for review of the Department’s decision to refuse to approve an employer nomination under the temporary residence transitional stream, r.5.19(3) of the Regulations, in respect of Ms Shimizu. 

7. The applicant was represented in relation to the review by its registered migration agent. The representative attended the hearing.

8. The Tribunal notes that the review of employer nomination refusal in respect of Ms Shimizu has been finalised by the Tribunal. The nomination refusal was affirmed by the Tribunal for reasons entirely unrelated to this review and that decision is of no relevance to the issues on which this case turns.  

   Non-disclosure certificate – s.375A

9. At the hearing the Tribunal informed the applicant that the Minister’s delegate had issued a non-disclosure certificate under s.375A of the Act in relation to page 3 of the Recommendation Report on Carna Therapeutics (the Report) on the basis that disclosure of that information would be contrary to public interest because it contains operational information including the operation’s name. The Tribunal explained to the applicant that it had formed the preliminary view that the certificate is valid as it provides a valid public interest reason for the non-disclosure of the relevant information. The Tribunal further noted that the affected page of the Report included largely administrative information relating to the monitoring process and the operation’s name and did not appear relevant to the issues in the review. The Tribunal also noted that the information which appears relevant to the issues in the review, including details of the interview with Director and information obtained from the internet, were on different pages of the Report which were not affected by the certificate and had been referred to in the Notice and the delegate’s decision record. When invited to comment on the validity of the certificate, Mr Usami indicated that he did not have any comments to make. The representative also indicated that he had no submissions to make on the issue of validity.

10. For the reasons explained above, the Tribunal considers that the s.375A non-disclosure certificate is valid. The Tribunal did not consider the information covered by the certificate to be material to the issues in the review. The information contained in the Report, which the Tribunal considers relevant to the issues in the review, was not the subject of the certificate and has generally been referred to in the Notice and the delegate’s decision record.

11. For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision to cancel the applicant’s approval as a standard business sponsor and bar the applicant for a period of nine months, from the Department’s decision, from making an application for approval as a standard business sponsor.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

13. 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.

14. For these purposes, the circumstances are prescribed in r.2.89 – r.2.94B of the Regulations 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.

15. 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?

16. In the present case, the delegate found that the applicant had failed to comply with the sponsorship obligation in r.2.86(2) of the Regulations to ensure that the primary sponsored person does not work in an occupation other than that for which they have been nominated and that nomination has been approved by the Minister under s.140GB of the Act.

    Failure to satisfy a sponsorship obligation: r.2.89

17. 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).

18. In determining whether the applicant has failed to ensure that Ms Shimizu works only in the occupation for which she has been nominated, the Tribunal has had regard to all the relevant evidence before it, including information on the Department’s file, information on the Tribunal’s file and the oral evidence received at the hearing.

19. The applicant operates a business that provides massage services. The applicant was approved as a standard business sponsor on 6 July 2015 for a period of five years. The applicant also had a nomination approved, in respect of Ms Shimizu, in the occupation of Massage Therapist (411611).

20. On 4 October 2018, ABF officers conducted a site visit to Mr Usami’s place of residence, which is also the registered address of the applicant’s business, and interviewed him. The Notice, which details the relevant parts of the interview, records that Mr Usami had given information that Ms Shimizu was undertaking business activities outside of her nominated position. The Notice also provides that a search of the internet indicated that Ms Shimizu was operating and running an aromatherapy business. No record of the searches referred to in the Notice had been included on the Department’s file.

21. Submissions and supporting documents were provided in response to the Notice, including a statutory declaration from Mr Usami, dated 21 November 2018, in which he stated that, regarding the employment of Ms Shimizu, it was an error on his part that he did not fully understand his sponsorship obligations. He stated that he was not aware that there were limitations prohibiting Ms Shimizu from taking part in their aromatherapy business as they thought those duties were included in her job title. He stated that when applying for the sponsorship, they had detailed their intention to use original products to provide unique massage services. He stated that it was the business’ intention to blend the two practices, which they believed were related to the position of massage therapist. Mr Usami further stated that even though Ms Shimizu had been engaged in the aromatherapy side of the business, it was only for four hours a week. He stated that the business had now engaged an Australian person to assist with the aromatherapy aspect of the business. Mr Usami stated that he regrets the mistakes made and he undertakes to be more aware of his sponsorship obligations.

22. A statutory declaration from Ms Shimizu, dated 23 November 2018, was also provided. Ms Shimizu stated that she works as a remedial massage therapist the majority of the time and only spends approximately three to four hours every week making massage oils and other aromatherapy products. She stated that she believed that aromatherapy closely correlates with remedial massage as it enhances treatment results. She stated that providing aromatherapy differentiates them from their competitors and that she has been asked by many clients about the products. Ms Shimizu stated that she provides mobile massage services to corporate clients, private individuals at their home and at the sports gym. In relation to the internet advertising, she stated that this was part of her marketing strategy to create an image that focuses on her as a person rather than the brand. She stated that she spends a few minutes on social media posts relating to aromatherapy and muscle care to educate and promote health, which is also part of the business goal. She stated that posting on social media only took about five to ten minutes per week and that it is a hobby and is outside of her work. 

23. A medical certificate for Ms Shimizu, dated 9 October 2018, was also provided stating that she was receiving medical treatment for a medical condition/rib injury and has been unable to attend work from 5 September 2018 until 10 October 2018. Also provided were two letters from people who indicated that they had received massage services from Ms Shimizu.

24. In written submissions, the representative stated that the applicant acknowledges that the 457 visa holder undertook some work outside of the nominated occupation of massage therapist but that they believed the duties to be closely related to the nominated occupation. It was submitted that the blending of massage therapy oils is thought to be essential to providing high-quality massage therapy services and that in the marketing of the oils, although undertaken by contractor, they had used Ms Shimizu as the face of the oils. It was submitted that the tasks of sourcing and making massage oils and the related products were thought to be incidental and supportive of the position of massage therapist. It was submitted that the time spent by Ms Shimizu on additional duties was minor and, apart from the period when she was unwell, she still worked in the nominated occupation for at least 38 hours per week. It was submitted that the applicant had been genuine in all of their dealings with the Department, that there were no related obligation failures, that the applicant had undertaken to rectify the breach by engaging a contractor who will undertake the aromatherapy tasks and that the applicant will ensure that Ms Shimizu works only as a massage therapist. It was submitted that the breach was inadvertent.

25. On review, the Tribunal had the opportunity to take evidence from Mr Usami about the business’ operations, Ms Shimizu’s role and the information relating to the breach. At the hearing, Mr Usami gave evidence that he established the business after meeting Ms Shimizu, as she had extensive knowledge as a massage therapist and he wanted to work with her. Mr Usami gave evidence that the business used to be located in a small studio in rental premises in Darlinghurst, however, in 2016 Ms Shimizu became unwell and they could not afford to pay the rent, so they decided to operate a corporate massage business. Mr Usami gave evidence the business currently does not have business premises and that Ms Shimizu travels to clients to provide massage services. He gave evidence that Ms Shimizu also provides training to junior massage therapists at a massage clinic in Enmore. He gave evidence that an invoice is issued by the applicant to the clinic for the training services provided by Ms Shimizu.

26. The Tribunal discussed with Mr Usami the information before it which indicates that Ms Shimizu had been conducting an aromatherapy business. In response, Mr Usami stated that Ms Shimizu was conducting the aromatherapy business on behalf of the applicant and that it was not Ms Shimizu’s own business. He stated that this may have been a misunderstanding when he was interviewed the ABF officers.  Mr Usami stated that they wanted to expand the business’ activities and that Ms Shimizu was used as the face of the aromatherapy business, including on the internet and social media, but that this was all done on behalf of the sponsoring business.

27. The Tribunal raised the concern that Ms Shimizu’s involvement in the aromatherapy activities of the business, including being involved in the sourcing and mixing of the oils and sales and marketing activities, was inconsistent with the tasks associated with the occupation of massage therapist. In response, Mr Usami stated that Ms Shimizu spent a small amount of time on these other activities and they were not aware that it was inconsistent with the position of massage therapist. He stated that they had organised a developer to set up the website and because she had developed the product (aromatherapy oils) they decided to put her name on the website. The Tribunal noted that information recorded from the interview suggests that he had told ABF officers that the aromatherapy business was Ms Shimizu’s business, to which Mr Usami stated that he does not recall exactly what was said but he was very nervous and may not have communicated effectively.

28. The Tribunal explained to Mr Usami that sponsors are required to comply with all their sponsorship obligations, which the Tribunal noted would have been set out in the sponsorship application and sponsorship approval documents. Mr Usami acknowledged that he, as the applicant’s Director, had to ensure that sponsorship obligations were being complied with, including the obligation to ensure that Ms Shimizu works only as a massage therapist, but stated that he was not aware that working in the aromatherapy part of the business was a breach and thought it was part of being a massage therapist. Mr Usami stated that he had made an error and should have known better and that he has now rectified that mistake.

29. Ms Shimizu also gave evidence at the hearing, which was consistent with the information she provided in her statutory declaration to the Department and Mr Usami’s evidence, indicating that her involvement in aromatherapy, including making of the products and promoting them, has always been on behalf of the applicant.

30. The Tribunal has considered the relevant evidence before it as follows.

31. The evidence about whether Ms Shimizu undertook the tasks associated with the aromatherapy business, such as the sourcing and making of the aromatherapy oils and the sale and marketing of those products, as part of the applicant’s business or on her own account appeared to be inconsistent. When this concern was put to Mr Usami at the hearing, he explained that the inconsistency may have arisen from a misunderstanding, due to him being nervous, of what he had stated during the interview with ABF officers. The Tribunal had regard to the original handwritten notes taken during the interview with Mr Usami which were on the Department’s file, and while they were difficult to read, they do record that Mr Usami had stated that Ms Shimizu sells the aromatherapy products, including at the markets, and that he let her do the aromatherapy side because she was doing well. This information does not necessarily suggest that Ms Shimizu had been conducting her own business and it is plausible that Mr Usami was referring to the aromatherapy ‘side’ of the applicant’s business which they had sought to develop.

32. There is also the concern about the websites in which Ms Shimizu features as the person conducting an aromatherapy business. The Tribunal notes that the Department’s file did not include a print out of the internet pages referred to in the notice and decision record and so the Tribunal is unable to determine for itself whether the information does in fact indicate that Ms Shimizu is operating her own aromatherapy business. The Tribunal has also considered Mr Usami’s explanation, which was in part consistent with information provided by Ms Shimizu in her statutory declaration, that the website belonged to the applicant and that they had used Ms Shimizu’s details to promote the aromatherapy products, as she was the one that had developed them and to make it more personal. In the absence of a contemporaneous record of the internet pages referred to by ABF, the Tribunal considers Mr Usami’s explanation as to why Ms Shimizu was used to promote the aromatherapy aspect of the applicant’s business to be plausible.

33. While the Tribunal is prepared to accept that the tasks undertaken by Ms Shimizu relating to aromatherapy were undertaken on behalf of the applicant’s business, the Tribunal does not consider those tasks to be consistent with the occupation in which Ms Shimizu was nominated. Ms Shimizu was nominated in the occupation of Massage Therapist (411611) which, according to the ANZSCO, involves performing therapeutic massage and administering body treatments for health, fitness and remedial purposes.

1. While the business’ plans may have been to expand into aromatherapy, as indicated in the submissions, the Tribunal nevertheless considers that Ms Shimizu’s involvement in the making, sale, promotion and marketing of those aromatherapy products were not consistent with the tasks associated with the nominated occupation of Massage Therapist.

2. The evidence before the Tribunal does not suggest that Ms Shimizu was merely mixing the oils to use as part of carrying out tasks as a massage therapist, i.e. in the course of providing massages and administering body treatments, but that she has been involved the sourcing, promotion and sale of these products. So even if the Tribunal accepts Ms Shimizu carried out these tasks on behalf of the applicant and that she only spent four hours a week undertaking these tasks, the Tribunal nevertheless considers that the tasks of developing the aromatherapy oils and promoting them to expand the aromatherapy operations of the applicant are not consistent with the tasks of the occupation in which Ms Shimizu was nominated. 

3. In considering the evidence overall, the Tribunal is satisfied that the applicant has failed to comply with its sponsorship obligation in r.2.86 of the Regulations to ensure that the primary sponsored person does not work in an occupation other than that for which she has been nominated. Accordingly, the Tribunal is satisfied that the prescribed circumstance in r.2.89 exists for the purposes of s.140M of the Act.

   Action to be taken

4. For these reasons, the Tribunal is satisfied that a relevant circumstance for s.140L(1)(a) exists. Accordingly, it is necessary to consider whether one or more of the actions mentioned in s.140M should be taken.

5. In considering what action to take, the Tribunal has had regard to the prescribed criteria in r.2.89, as extracted in the attachment to this decision.

   Past and present conduct of the person in relation to Immigration

6. The applicant has not previously been monitored. The delegate indicated in the decision record that the applicant was cooperative during the monitoring process, including providing information and documents as requested.

   The number of occasions on which the person has failed to satisfy the sponsorship obligation

7. Other than the breach of the sponsorship obligation in r.2.86, as set out above, there is nothing before Tribunal which suggests that the applicant has failed to satisfy the sponsorship obligation on any other occasion.

   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

8. The applicant submitted that the breach is minor, in that the time Ms Shimizu spent on making the massage oils was minor relative to the total number of working hours and did not infringe on Ms Shimizu’s full time work as a massage therapist. It was submitted that the ANZSCO job description for Massage Therapist includes ‘employing other techniques, such as acupressure or Shiatsu, and complementary aids, such as infra-red lamps, wet compresses, ice, essential oils and herbal and mineral therapies, to assist recovery’. It was submitted that the use of essential oils is an accepted part of the role of massage therapist and it follows that the appropriate blending of these oils can be viewed as related to the occupation of Massage Therapist.

9. The Tribunal has considered these submissions, however, the evidence before the Tribunal does not suggest that Ms Shimizu was only mixing the aromatherapy oils for the purpose of using them whilst she was undertaking the tasks associated with the occupation of massage therapist. As noted above, the evidence before the Tribunal suggests that Ms Shimizu was developing (mixing) the aromatherapy oils, and had been involved in its sale and promotion, as part of applicant’s plan to expand the aromatherapy side of the applicant’s business. So whilst the Tribunal accepts that the number of hours spent by Ms Shimizu on the aromatherapy side of the business may have been minor compared with the total number of full-time hours she worked as a massage therapist, the Tribunal nevertheless considers that Ms Shimizu’s involvement in the aromatherapy aspect of the business to be inconsistent with the nominated position of Massage Therapist.  

10. The Tribunal does not consider the breach to be insignificant, as suggested by the submissions, however, it does accept that the breach, in the context of the applicant’s business, is at the lower end of the scale.

    The period of time over which the person has been an approved sponsor

11. The applicant’s agreement as a standard business sponsor, which is the subject of this review, was approved by the Department on 6 July 2015 for a period of five years. The Tribunal notes that the applicant had previously been approved as a standard business sponsor for a period of 12 months.

    Whether, and the extent to which, the failure to satisfy the sponsorship obligation has had a direct or indirect impact on another person

12. It was submitted that the failure has not had a direct or indirect impact on another person. The Tribunal considers however that the applicant’s failure to ensure that Ms Shimizu works only in the occupation for which she was nominated resulted in Ms Shimizu breaching the mandatory condition imposed on her Subclass 457 visa requiring her to work in the occupation for which she was nominated and could have led to the cancellation of Ms Shimizu’s Subclass 457 visa.  When asked about Ms Shimizu’s visa status at the hearing, the representative informed the Tribunal that the Department had indicated that they would not be pursuing the cancellation of Ms Shimizu’s visa. The Tribunal was also informed that Ms Shimizu’s Subclass 457 visa was due to naturally cease in July 2019. So while the applicant’s failure to satisfy the sponsorship obligation could have had a direct impact on Ms Shimizu’s visa status, this has not occurred in this case.   

    Whether, and the extent to which, the failure to satisfy the sponsorship obligation was intentional, reckless or inadvertent

13. It was submitted that the failure to satisfy the sponsorship obligation was inadvertent in that the breach was relatively minor and did not affect Ms Shimizu’s ability to perform the tasks of the nominated occupation. It was submitted that the Director had overlooked a minor breach. It was submitted that the breach was not ‘reckless’ as suggested by the delegate as this implies a level of carelessness that is not applicable in this case.

14. At the hearing, Mr Usami stated that the breach was unintentional and he acknowledges that he has made a mistake and stated that he has tried to be a responsible employer. The Tribunal has also considered the information in Mr Usami’s statutory declarations in which he explains that he was not aware of the limitations on Ms Shimizu from taking part in their aromatherapy business as he thought it was included in the job title. While the provision of massages using aromatherapy oils may be consistent with the occupation of Massage Therapist, the production, promotion and sale of these oils, in the Tribunal’s view, is not.

15. While the Tribunal is prepared to accept that the breach was not intentional, it nevertheless considers that Mr Usami could have done more to ensure that the sponsorship obligations were not breached by familiarising himself of the types of tasks involved in carrying out the occupation of Massage Therapist and ensuring that Ms Shimizu did not undertake tasks that were inconsistent with the nominated occupation.

    Whether, and the extent to which, the person has cooperated with Immigration, including whether the person informed Immigration of the failure

16. The delegate indicated in the decision record that the applicant has cooperated with the Department, including acknowledging the failure.

    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

17. It was submitted that the applicant has rectified the breach by employing an additional staff member, Tomimi Liu-Brennan, to blend and market the aromatherapy oils. The Tribunal has before it evidence of a contract agreement between the applicant and Ms Liu-Brennan, together with evidence of invoices/receipts issued to Ms Liu-Brennan for work she has undertaken for the applicant. The Tribunal accepts that the applicant has taken steps to rectify the breach.

    The processes (if any) the person has implemented to ensure future compliance with the sponsorship obligation

18. It was submitted that upon realising the breach, the applicant engaged the services of a contractor. At the hearing, Mr Usami also gave evidence that he sought the professional services of a migration agent and tried to be more knowledgeable about his obligations. The Tribunal acknowledges that Mr Usami, since being notified of the breach, has sought the advice of a migration professional.

    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

19. Other than the breach of the sponsorship obligation in r.2.86 to ensure that Ms Shimizu works only in the nominated occupation, there is nothing before the Tribunal which suggests that there have been any other breaches.

    Other relevant factors

20. It was submitted that the applicant’s breach of r.2.86 was inadvertent and does not provide sufficient reason to cancel the sponsorship, bar the sponsor for three years from making applications for approval as a sponsor or bar the sponsor until 19 December 2020 from sponsoring more people under the terms of the approved standard business sponsorship.

21. The representative referred to a decision of the Tribunal 1413754 (Migration) 2015 AATA 3858, differently constituted, in which the Tribunal took into account the consequences for the visa holder in terms of the potential for a permanent visa application in the future. It was noted that the Tribunal in that case, despite finding that there was a breach, decided to nevertheless set aside the decision and substitute a decision not to take any of the actions specified in s.140M. It was submitted that the consequences for Ms Shimizu, if the cancellation were to be affirmed, would not be in proportion to her actions or the actions of the applicant. It was submitted that the action was inadvertent, isolated and minor and does not warrant the potentially disastrous implications for a possible future permanent visa application.

22. At the hearing, Mr Usami stated that the breach was not intentional, that he will be a responsible employer and that he is willing to correct any errors he has made.

23. The Tribunal notes that it is not bound by other Tribunal decisions and considers that each matter must be assessed on its own circumstances.  Interestingly though, in the case referred to by the representative, the period of the sponsorship approval had already ceased, and the Tribunal in its reasons indicated that had this not been the case, it would have considered it appropriate in that case to, at least, cancel the sponsorship and require a fresh assessment to be made for any future applications for approval and nominations made by the applicant in that case. The Tribunal in that case also noted that, in its view, even where the breach is unintentional, it would not be appropriate to take no action. In any case, given the different factual circumstances of each case, the Tribunal does not consider it appropriate to follow the reasoning in other decisions, though it has had regard to the point being made by the representative that any adverse findings made in this decision could have adverse consequences on any future permanent visa applications that may be made by Ms Shimizu.

24. In deciding what action to take, the Tribunal has carefully considered all of the above circumstances. While the Tribunal accepts that the breach was not intentional, it nevertheless considers that Mr Usami, as the applicant’s Director, should have made efforts to inform himself of the sponsorship obligations, including the tasks of the nominated position, so as to ensure that they have been complied with. The Tribunal considers that the breach, in the circumstances of this case, warrants the cancellation of the applicant’s approval as a standard business sponsor. The Tribunal notes that the cancellation of the sponsorship will not affect Ms Shimizu’s Subclass 457 visa, which, as advised by the representative, the Department has not pursued for cancellation and was due to naturally cease in July 2019.

25. The Tribunal acknowledges that the cancellation of the sponsorship, which would be considered adverse information, could adversely affect any future nominations made by the applicant, as well as any related visa applications that may be made by Ms Shimizu, the Tribunal notes however that where it is a criterion for sponsorship or a nomination approval that there is no adverse information known to Immigration about the sponsor and/or nominator, that requirement is usually accompanied by an alternative criterion against which the decision maker can consider whether it is reasonable to disregard the adverse information. Accordingly, subject to the reduced period within which the applicant is barred from making an application for approval as a standard business sponsor, as discussed further below, the applicant will be able to make an application with the Department for approval as a sponsor, or for approval of a nomination, and those applications will be assessed against the relevant criteria having regard to all the relevant circumstances at the time of that assessment.

26. For the above reasons, the Tribunal considers it appropriate in the circumstances of this case that the applicant’s approval as a standard business sponsor be cancelled.

27. In considering whether any other actions should be taken, while the Tribunal considers it appropriate to bar the applicant for a specified period, the Tribunal considers that a bar of three years from making further applications for approval as a standard business sponsor and temporary activities sponsor to be disproportionate to the nature of the breach, particular considering Mr Usami’s  cooperation with the Department, acknowledgement of the breach and the efforts made by him to rectify the breach. Having regard to these factors, the Tribunal considers that a reduced period of the bar, of nine months from the date of the Department’s decision, to be an appropriate sanction having regard to all the circumstances. On this basis, the Tribunal will set aside the Department’s decision to impose a bar of three years from making applications for approval as a standard business sponsor and temporary activities sponsor and will substitute a decision to bar the applicant for a period of nine months from the date of the Department’s decision, that is from 20 December 2018 to 19 September 2019, from applying for approval as a standard business sponsor.

28. Considering the totality of the circumstances, and having regard to the prescribed criteria the Tribunal considers that the actions mentioned in s.140M(1) to cancel the applicant’s approval as a standard business sponsor and to bar the applicant for a period of nine months from the date of the Department’s decision from making an application for approval as a standard business sponsor, should be taken.

    DECISION

29. The Tribunal sets aside the decision under review and substitutes a decision to take the following actions:

    ·cancel the applicant’s approval as a standard business sponsor.

    ·bar the applicant for a period of nine months from the date of the Department’s decision, being from 20 December 2018 to 20 September 2019, from making an application for approval as a standard business sponsor.

    R. Skaros
    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.

    …