Catsbeauty Pty Ltd (Migration)

Catsbeauty Pty Ltd (Migration) [2022] AATA 3461 (9 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:   Catsbeauty Pty Ltd
REPRESENTATIVE:  Mr Konfir Kabo (MARN: 0209289)
CASE NUMBER:  1910667
HOME AFFAIRS REFERENCE(S):             OPF2018/9330
MEMBER:R. Skaros
DATE:9 September 2022
PLACE OF DECISION:   Sydney
DECISION:The Tribunal affirms the decision under review.

Statement made on 09 September 2022 at 10:42am

CATCHWORDS
MIGRATION – sponsorship cancellation or bar – failure to satisfy a sponsorship obligation – change of business ownership – sponsored person no longer employed – sponsored person not working in the nominated occupation – cash salary payments – change of address not notified – keeping and providing verifiable records – impact on the nominee’s permanent visa application – difficulties and challenges when acquiring the business – decision under review affirmed
LEGISLATION
Fair Work Act 2009
Fair Work Regulations 2009
Migration Act 1958, ss 140, 359, 362
Migration Regulations 1994, rr 1.13, 2.79, 2.82-2.89
statement of decision and reasons
application for review

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to take an action under s 140M of the Migration Act 1958 (Cth) (the Act) in relation to the applicant’s sponsorship.
The applicant was most recently approved as a standard business sponsor on 20 November 2015 for a period of 5 years. They were previously approved as a standard business sponsor on 5 April 2012 for 3 years.
On 8 April 2019, the delegate decided to bar the applicant for a period of three years from making applications for approval as a standard business sponsor and temporary activities sponsor under s 140M on the basis that the applicant had failed to satisfy a sponsorship obligation.
Ms Eunjoo Chung, the director of Catsbeauty Pty Ltd, appeared before the Tribunal by videoconference on 23 August 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Yu Ri Jun, Mr Jaeyoung Woo and Mr Chi Sum Tam. The Tribunal was assisted by an interpreter in the English and Korean languages.
The Tribunal notes that the hearing was initially scheduled for 25 August 2022, however, the Tribunal was informed that the applicant’s representative would be travelling overseas, and a request was made for the hearing be rescheduled. Following further correspondence between the applicant’s representative and the Tribunal regarding suitable dates, the applicant agreed to bring the date of the hearing forward to 23 August 2022, to enable the representative to be present at the hearing.
On 22 August 2022, the Tribunal received submissions and documents, together with confirmation that Ms Chung and the witnesses would be attending the reschedule hearing.
The applicant was represented in relation to the review. The representative attended the hearing by videoconference.
The Department’s file included a non-disclosure certificate under s.375A of the Act in respect of various documents on the file. The certificate indicates that disclosure of the documents, other than to the Tribunal, would be contrary to public interest because they contain information that would disclose lawful methods for preventing, detecting, and investigating breaches or evasions of the law which would or likely prejudice the effectiveness of those methods. A copy of the certificate was provided to the applicant’s representative prior to the hearing. At the hearing the Tribunal invited Ms Chung to comment on the validity of the certificate. After some discussion, and the Tribunal’s explanation that the certificate appeared to provide a valid public interest reason and that any adverse or relevant information would still need to be disclosed to the applicant under the provisions of s.359AA, the representative indicated they had no issue with the validity of the certificate.
The Tribunal is satisfied that the s.375A certificate is valid, and considers it was correct for the documents covered by the certificate not to have been released to the applicant in response to their access to documents under s.362A of the Act.
The Tribunal informed Ms Chung that there was information contained in the non-disclosable documents which was relevant to the issues in the review and, given some of that information was not included in the delegate’s decision record, the Tribunal was under obligation to particularise that information using the procedure in s.359AA. The particulars of the information, its relevance to the issues in the review and the consequences if the Tribunal relied on it was explained to the applicant throughout the hearing (as set out below) and Ms Chung was invited to comment on the information or request additional time to comment on or respond to the information. Ms Chung provided her comments at the hearing and the Tribunal has had regard to those comments as part of its consideration.
For the following reasons, the Tribunal has decided to affirm the decision under review.
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 regs 2.89–2.94B 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.
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: regs 2.89–2.94B. 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?
In the present case, the delegate found that the applicant failed to satisfy a sponsorship obligation.
Failure to satisfy a sponsorship obligation: reg 2.89
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: reg 2.89(2).
The delegate considered that the applicant had failed to satisfy one or more of the following sponsorship obligations:
·Regulation 2.82 Obligation to keep records
·Regulation 2.83 Obligation to provide records and information to the Minister
·Regulation 2.84 Obligation to provide information to Immigration when certain events occur
·Regulation 2.86 Obligation to ensure primary sponsored person works or participates in the nominated occupation, program or activity
In determining whether the applicant has failed to satisfy a sponsorship obligation, the Tribunal has had regard to the relevant evidence before it as follows.
As an approved sponsor, the applicant lodged a nomination in the occupation of Hairdresser (391111) in relation to Ms Jin Young Kim. That nomination was approved on 17 February 2017. The guaranteed annual earning was $54,000. Ms Kim’s Subclass 457 visa was granted on 12 April 2017 for a period of 4 years.
The applicant also nominated the occupation of Massage Therapist (411611) in relation to Ms Yu Ri Jun. That nomination was approved on 20 November 2015. Ms Jun’s Subclass 457 visa was granted on 20 November 2015 for a period of 4 years.
On 10 October 2018 Australian Border Force (ABF) officers attended the applicant’s business address (as recorded with the Department) at Russell Street, Melbourne. The location appeared to be under construction and no business was actively operating from that address.
The Department’s file included a site visit/interview report, which recorded the following information. On 11 October 2018, an ABF officer contacted the business by phone and spoke to a person who identified himself as Mr Jaeyoung Woo. Mr Woo informed the officer that he was the General Manager. He informed the officer of the new address for the business (6/108 Bourke Street, Melbourne). He said that the applicant’s director (Ms Eunjoo Chung) was on holidays in Korea. The report indicates that Mr Woo provided the following information:
·On that day (11 October 2018) two staff were working: himself (General Manager) and Ms Tina Kim (Hairdresser).
·Ms Yu Ri Jun was not working on that day.
·There are four staff employed at the business:
-    Director (Ms Chung): Consults and provides eyelash extensions.
-    Rickey Park: Hairdresser
-    Yu Ri Jun: Beauty Therapist
-    Jaeyoung Woo: General Manager
It was recorded that Mr Woo informed the officer that the position of the sponsored person (Subclass 457 visa holder), Ms Yu Ri Jun, was 'Beauty Therapist'. He advised the officer that Ms Jun has been working for the business for about 4 years. It was observed that Mr Woo made no mention of the other sponsored person (457 visa holder), Ms Jin Young Kim.
On 15 October 2018, the Department sent the applicant a notice requesting records and/or information for the purpose of ascertaining the applicant’s compliance with its sponsorship obligations. The records/information requested related to the employment of Ms Kim and Ms Jun, including a copy of the signed employment contract, payslips, payroll records for the preceding three months, records of money paid to the sponsored persons that is capable of being verified by an independent person and records of the hours worked. The applicant was also requested to provide information about any Subclass 457 visa holders who would soon be ceasing employment and information about any changes to the business’ circumstances since approval of the sponsorship on 20 November 2015.
On 20 October 2018, the representative provided information in relation to the employment of Ms Jun, including payslips for the period from July 2018 to September 2018, bank statements showing transfer of payments, records of hours worked by Ms Jun and current company details. The representative advised that no 457 employees were expected to cease employment in near future. The representative subsequently provided a copy of the contract of employment for Ms Jun.
In further correspondence, dated 30 October 2018, the representative informed the Department of the business’ current trading premises (3A/108 Bourke St Melbourne) and that the name “Inhwi Lee” on the bank account in which Ms Jun’s wages were deposited is Ms Jun’s husband. The bank statements provided (for the period from August 2018 October 2018) were in the joint names of Ms Jun and Mr Lee.
The site visit/interview report indicates that on 29 October 2018 an ABF officer called Ms Jun. It was recorded that Ms Jun informed the officer that the business relocated to 3A/108 Bourke Street, Melbourne, over a month prior. When asked about the duties in her current position with the business, Ms Jun said she is a massage therapist and that she provides remedial massage. On the same day, 29 October 2018, the officer called Ms Kim on her mobile. It was recorded that Ms Kim advised that her position is Hairdresser and that she worked 38 - 40 hours a week. She has been employed for over a year with the business and receives monthly salary payments approximately of $3,000. Ms Kim said she receives sick and annual leave, and that she has recently been on leave.
On 2 November 2018, ABF officers conducted a second site visit of the business premises at 6/108 Bourke St, Melbourne. It was recorded in the site visit/interview report that the officers attended the premises and were greeted by a person who identified himself as Rickey. The officers requested to speak to Ms Jun and Ms Kim but were informed that neither were working on that day. The officers showed Rickey photographs of Ms Jun and Ms Kim. He recognised and identified Ms Jun but had no knowledge of Ms Kim.
The director, Ms Eunjoo Chung attended the premises a short time later and was interviewed by the officers. A typed record of interview was included in the sponsor monitoring recommendation report. It indicates that Ms Chung advised officers that Ms Jun was nominated as a Beauty Therapist/Hairdresser, and that her duties included scalp massage, beauty therapy related services and assisting hairdressers. ABF officers asked Ms Chung if the business has other branches/locations and she said there was only one location. It was recorded that Ms Chung then took the officers to another location (upstairs in the centre) and informed them that it was temporary. Ms Chung informed officers that Ms Jun performs massage and beauty services from that location.
It was recorded that ABF officers expressed their concern to Ms Chung and educated her on the sponsorship obligations and that Ms Chung advised that the business had changed ownership about two years ago. She said the previous owner had employed the visa holders and subsequently she inherited the employees and was aware of their visa status and the business sponsorship. ABF officers informed Ms Chung that a change of ownership does not change the obligation of the sponsorship and given her knowledge about the visa holders and the sponsorship with the Department she was required to comply with the sponsorship obligations regarding the visa holders.
It was recorded that Ms Chung showed the officers the temporary place of business where Ms Jun was employed. It was recorded that upon entering the second location at Shop 3A (Cats Esthetics) in the same shopping centre, officers saw Ms Jun behind a small desk where the work computer was placed. It was recorded that Ms Jun said that today was her day off, but she came in for the training held in the morning and she will leave at lunch. It was recorded that the ABF officer asked Ms Chung to explain her nominated position with the sponsor and her duties. Ms Chung stated her position was massage therapist. Ms Chung further stated this place of business is only temporary and she is limited with resources to do her role. ABF officer asked Ms Chung if client records were kept. Ms Chung stated client records were kept and showed the officers some of the client records and consultation notes. ABF officer notice in the records most the clients are beauty related services and queried this with Ms Jun. Ms Jun advised she performs both facial and massage services and most of her clients require both services. ABF officer asked Ms Jun to explain what her duties as a massage therapist include. Ms Jun stated she heals muscles and areas of the body of concern. Officers asked Ms Jun about the posts advertised around the clinic which are only beauty and facial services and no evidence of massage therapy.
It was recorded that ABF officer asked to be shown around the clinic to observe the rooms where massage services are provided. Ms Jun showed the officers the rooms and the products used when providing massage therapy. ABF officers noticed the rooms have machines and products relating to beauty and cosmetics. It records that Ms Jun showed the officers other products used such as massage oils. ABF officer asked Ms Jun how many massage services she provides during a shift, to which she indicated it depends on bookings and walk-in customers. She further stated the massage services were not advertised as much as other services of the business and that due to the change of location clients may not be as aware of the services. ABF officer asked Ms Jun if she also works at the salon as well and Ms Jun stated she also works at the salon when she has no customers. ABF officer asked Ms Jun if she also works as a beauty therapist, to which she said she provides facial massage when Sunmi Lee, beauty therapist employee, requires the assistance. It was recorded that ABF officer educated Ms Jun on the visa conditions granted to her for the nominated occupation of Massage Therapist.
It was recorded that ABF officer also noted that Ms Jun’s name badge said ‘Manager/Skin Specialist’ and questioned her about it. Ms Jun advised that it was a name badge and does not state her current position.
The Department’s file also included hand-written notes of the site visits/interviews conducted by Departmental officers. The Tribunal observed that some of the information in the handwritten notes was missing from the typed record of the site visit/interview report. The discrepancies and gaps are discussed in more detail below.
In another document on the Department’s file, relating to referral for visa cancellation in relation to Ms Kim, it was recorded that information during monitoring indicated that Ms Kim had not worked for the sponsor for approximately two years. The business owner advised that Ms Kim had been on maternity leave and had not returned to work ever since.
On 12 November 2018, the applicant was issued with a Notice of Intention to Take Action (NOITTA). The delegate considered that the applicant had failed to satisfy the obligation in r.2.82 because cash salary payments to Ms Kim were not records capable of being verified by an independent person.
The delegate also considered that the applicant had failed to satisfy the obligation in r.2.83 because they did not provide the documents requested by the Department in relation to the employment of Ms Kim. It was noted that despite the representative advising that they were in the process of obtaining the documents from the former business partner (Mr Kyoseung Lee), no records or information regarding Ms Kim’s employment was provided.
The delegate considered that the applicant had failed to satisfy the obligation in r.2.84(b)(ii) because they had not notified the Department of their change of address within the required timeframe.
The delegate considered that the applicant had failed to satisfy the obligation in r.2.86(2) because information obtained during the interviews and site visit indicated that Ms Jun was working as a beauty therapist and not in the nominated occupation of Massage Therapist. The information also suggested that Ms Kim was not working for the applicant.
On 20 February 2019, the applicant was issued with an infringement notice under s.140Q of the Act for the failure to satisfy the sponsorship obligation in r.2.86 in respect of Ms Yu Ri Jun and Ms Jinyoung Kim. The infringement penalty was $12,600.
Departmental records indicate that a meeting was conducted with Ms Chung on 20 February 2019, after which the infringement notice was re-issued. The re-issued infringement notice identified the failure to satisfy the sponsorship obligation in r.2.86 in respect of Ms Jinyoung Kim. The infringement penalty was reduced to $6,300, which the applicant subsequently paid.
In an email dated 21 February 2019 from a departmental monitoring officer to Ms Chung, the officer referred to the meeting with Ms Chung and requested Ms Chung to provide evidence of Ms Yu Ri Jun’s employment as a massage therapist.
On 25 February 2019, Ms Chung provided documents as evidence of Ms Jun’s employment as a massage therapist. The documents included, Ms Jun’s payslips, qualification certificates, employment contract, workplace photos, client details massage charts, and contact details of clients to whom Ms Jun had provided regular massage services.

In the same email, Ms Chung advised that she had spoken to Ms Kim, whose health had improved. She said she discussed with Ms Kim when she could commence work again. She said Ms Kim has two children and it was difficult to start straight away but she plans to work again soon. She said no date had been set but they will discuss her return at the next meeting.
In a further email to the Department dated 4 March 2019, Ms Chung stated that she had sent the documents requested about proving that Ms Jun did work as a massage Therapist, including contact details of clients. In relation to Ms Kim, Ms Chung stated that she was not properly informed from the previous owner about the process of taking over the business and that Ms Kim had personal circumstances. Ms Chung also referred to the infringement notice.
In responding to Ms Chung’s email, an officer of the Department advised that the Department had received the documents, but based on information obtained, the delegate considered that Ms Jun’s duties do not align with the nominated occupation. It was further advised that the delegate’s decision regarding Ms Kim stands and that breach of r.2.86 still exists even if Ms Kim decides to return to work.
Review application
Prior to the hearing, the Tribunal received various documents, including a current organisation chart, payroll activity summary for Ms Jun from 2020 to date, PAYG statements for Ms Jun, bank records showing transfer of salary payments by the applicant to Ms Jun from October 2020 to date, and Ms Jun’s work roster for the last two months. Also provided was a letter from the applicant’s accountant indicating that they assist the applicant with account keeping and that employees are paid via bank transfer. It was submitted that the applicant has expanded the business and has a new payroll system, and that these records relate to the obligation to keep records.
In relation to the obligation to ensure the primary sponsored person works in the nominated occupation, it was submitted that the applicant has ensured that Ms Jun works as a massage therapist. The Tribunal received a qualification certificate for Ms Jun, including Diploma of Remedial Massage, dated 18 August 2014, and numerous certificates for the completion of various courses by Ms Jun from 2014 to 2018, including pregnancy massage, massage and myotherapy, vacuum cupping, dry needling, shoulder complex treatment, treatment of frozen shoulder, muscle tension, compression, CPR and First Aid.
The Tribunal also received numerous letters of support from various people who indicated they have been regular clients of the applicant’s business (Catsbeauty), some since 2014, and that they have received massage services from Ms Jun, including for shoulder issues, back issues, and pregnancy and postnatal massages.
The Tribunal also received photographs of the applicant’s current business premises, including the massage rooms. It was submitted that the applicant has insurance to provide massage and myotherapy services, for which evidence was provided. Also provided were details of Ms Jun’s health fund provider number and several invoices from 2018 to 2021 for massage services provided by Ms Jun. It was submitted that the business issues clients with a tax invoice which can be claimed directly with the health insurance provider.
At the hearing, the Tribunal acknowledged receipt of the above-mentioned documents, but remarked that, except for two 2018 tax invoices for massage services provided, the documents were not in respect of the period during which the monitoring was conducted by the Department. The Tribunal queried the relevance of the documents to the issues in the review, to which the representative explained that it was to demonstrate the efforts the business has made to comply with its sponsorship obligations. The Tribunal considers much of the information provided on review to be relevant to the prescribed criteria in r.2.89 when determining what action (if any) should be taken and has accordingly considered this information further below.
The first issue that the Tribunal must determine is whether the applicant has failed to satisfy a sponsorship obligation. The Tribunal has considered the evidence against each of the obligations identified by the delegate as follows.
Obligation to provide information to Immigration when certain events occur: 2.84
The obligation in r. 2.84(3)(b) requires a sponsor to notify the Department when certain events occur including any changes to the address details provided by the applicant to the Department in their application for approval as a sponsor. The applicant is required to notify the Department in a specified manner and within the specified timeframe of 28 days
The evidence before the Tribunal (as recorded on the site report) is that on 10 October 2018 ABF officers attended the applicant’s business address (as recorded with the Department) at Russell Street, Melbourne. The location appeared to be under construction and no business was actively operating from that address. It was also recorded that on 11 October 2018, an ABF officer contacted the business by phone and spoke to Mr Woo, who informed the officer that he was the General Manager, and that the new address for the business was 6/108 Bourke Street, Melbourne. It was also recorded that during the site visit to the new premises (on 2 November 2018) ABF officers were informed by Ms Chung that the business had moved to the new location in July 2018. Officers were also advised that the applicant operated another shop in the same shopping complex (3A/108 Bourke St).
At the hearing, using the provisions in s.359AA, the Tribunal particularised the above information to Ms Chung and explained that it was relevant to whether the applicant had failed to satisfy the sponsorship obligation in r.2.84 and that if the Tribunal relied on that information, it may conclude that the applicant had not complied with their obligation in r.2.84 to notify the Department of changes to their address within the prescribed timeframe.
Ms Chung indicated she wanted to comment on the information at the hearing. She agreed that the business had moved to the Bourke street location in July 2018 and that she had informed the ABF officers of this. Ms Chung disputed that Mr Woo had spoken to any ABF officers on 10 October 2018 and said he was not in the shop that day. The Tribunal observed that the information recorded of the conversation with Mr Woo on 10 October 2018 was quite detailed and consistent with other information before it about the business. She said Mr Woo would give evidence that he was not the person to whom the officer spoke. She said they had a poster at the Russell Street address indicating that the business had relocated and suggested that this may have been how the officers found the new address for the business. She said the poster informed the ABF officers of the new address.
In his evidence to the Tribunal, Mr Woo said he had not spoken to any ABF officers on 10 October 2018 as he was assisting with the setting up of the other shop. He suggested that the officers may have spoken to Rickey who could have provided the information recorded by the officers. He said Rickey’s English was not very good and may have misunderstood the questions.
The Tribunal only has a written record of the interview on 10 October 2018, which indicates it was conducted with Mr Woo. It is plausible that the person the officers spoke to was Rickey, as he was the person who greeted the officers on arrival during the second site visit. In any case, for the purposes of considering the applicant’s compliance with their obligations in r.2.84, there appears to be no dispute that the applicant’s business had relocated to Bourke St, Melbourne, in July 2018. While Ms Chung indicated that a poster was mounted at the Russell St address to inform people (including ABF officers) of the new address, the Tribunal does not consider that a poster of the new address complies with the obligation in r.2.84 to notify the Department in a specified manner within 28 days.
The Tribunal finds that the applicant’s business relocated in July 2018 and the applicant failed to notify the Department as required within the prescribed period of 28 days. On this basis, the Tribunal finds that the applicant has failed to satisfy the sponsorship obligation in r.2.84.
Obligation to ensure primary sponsored persons work in the nominated occupation: r.2.86
At the hearing, the Tribunal particularised for Ms Chung the below information, which it considered relevant to assessing whether the applicant had complied with their sponsorship obligation in r.2.86 in respect of Ms Jun and Ms Kim.
·During the phone call with Mr Woo on 11 October 2018, Mr Woo informed the ABF officer that Ms Jun works for the business as a ‘Beauty Therapist’. Mr Woo did not indicate that Ms Kim was an employee of the business.
·During the second site visit on 2 November 2018, at 6/108 Bourke St, Melbourne. ABF officers were greeted by a person who identified himself as Rickey. The officers showed Rickey photographs of Ms Jun and Ms Kim. Rickey recognised and identified Ms Jun but had no knowledge of Ms Kim.
·During the site visit on 2 November 2018, ABF officers spoke with Ms Chung regarding Ms Jun’s employment. Ms Chung advised officers that Ms Jun works as a ‘Beauty Therapist/Hairdresser’. She indicated Ms Jun’s duties included washing hair, scalp massage, beauty and facial treatments and massage. The ABF officers noted that the salon space did not appear to facilitate massage therapy services. There were concerns that the nominated position’s focus was on the beauty salon aspect of the business rather than the massage therapy. It was noted that there were no materials and products such as massage oils and towels to be consistent with the activities to encompass the duties of the nominated occupation of Massage Therapist.
·Ms Chung informed the ABF officers that Ms Jun provided massage therapy at a temporary location separate to the salon, located at the same shopping centre in Shop 3A. The clinic is named ‘Cats Esthetic’, which also provides facial and beauty services.
·When Ms Jun was interviewed by ABF officers, she stated that her role includes assisting the hairdressers with both scalp massage and hair wash in addition to providing facial and beauty massage treatments daily.
·The ABF officers noted that Yu Ri Jun’s name badge as part of her uniform titled her position as a ‘Manager/Skin Specialist’.
·Payslips for Ms Jun indicate that she is paid according to the Award classification of “Beautician”.
·In relation to Ms Kim, no information was provided regarding her employment. Ms Chung indicated that Ms Kim is paid in cash and that she could not recall when Ms Kim last attended work.
·In a document on the Department’s file, relating to referral for visa cancellation in relation to Ms Kim, it was recorded that Ms Kim had not worked for the sponsor for approximately two years, and that Ms Chung had advised that Ms Kim had been on maternity leave and had not returned to work since.
·On 29 October 2018, an ABF officer called Ms Kim on her mobile. Ms Kim advised that her position with the applicant is Hairdresser and that she has been employed for over a year with the business and receives monthly salary payments approximately of $3,000. Ms Kim advised that she receives sick and annual leave, and that she has recently been on leave.
The Tribunal explained to Ms Chung that the information suggests that Ms Jun (during her employment with the applicant as the holder of a Subclass 457 visa) undertook tasks of an occupation that were not consistent with the nominated occupation of Massage Therapist.
It also appears that the director (Ms Chung) and Ms Kim have provided inconsistent information regarding Ms Kim’s employment. It explained that the inconsistencies in the evidence, together with other information before the Tribunal, including the lack of employment records, may lead the Tribunal to conclude that Ms Kim was not working with the applicant in the nominated occupation.
The Tribunal explained to Ms Chung that if it relied on the above information, together with other information before it, it may conclude that the applicant had not complied with their obligation in r.2.86 to ensure that the sponsored persons (Ms Jun and Ms Kim) worked in the occupation for which they were nominated.
Ms Chung conceded that Ms Kim had not worked as a Hairdresser in the applicant’s business since she took over as director (in May 2017). When asked why she had informed ABF officers that Ms Kim was paid in cash, Ms Chung said because there were no pay records for Ms Kim, she assumed Ms Kim must have been paid in cash by the previous owner. The representative also indicated that they had acted for the applicant for various applications over the years and were not aware that the company had employed Ms Kim. It was submitted that attempts were made to contact the previous director, Mr Kyoseung (Jacob) Lee, to obtain documentation regarding Ms Kim’s employment but it was not forthcoming.
In relation to the employment of Ms Jun, Ms Chung gave evidence that Ms Jun was employed as a massage therapist and that she is the only person in the business that can provide that service. She said Ms Jun has no experience as a beauty therapist and clients would not pay an unqualified person to do beautician work. She said Ms Jun is a qualified massage therapist and only undertook work as a massage therapist. Ms Chung admitted that the shop may have looked small, but she informed the officer that it was a temporary location. She said the business operated from two locations, at shop 6 was the hairdressing business and at 3A (where Ms Jun worked) was the beauty and massages services business. She said Ms Jun worked as the massage therapist and another employee worked as the beauty therapist.
The Tribunal put to Ms Chung that information before it suggested that she had told ABF officers that Ms Jun washes hair and provides head massages. Ms Chung disputed that she had told the officer that Ms Jun worked in the hair salon and said Ms Jun only goes to the hair salon to wash towels because that was where they had set up the laundry. She said washing client’s hair or scalp massages were done by the hairdresser and not Ms Jun. When asked about the name tag worn by Ms Jun which said “Manager/Skin Specialist”, Ms Chung said it was her mistake as she had ordered the tags (which were very common for her type of business) from Korea. She said all the staff working at that location had the same tag. She was unsure why Ms Jun’s payslips indicated the beautician Award.
In her evidence to the Tribunal, Ms Jun said she commenced work with the business in 2014/2015. She undertook studies in Australia and completed a Diploma of Remedial Massage in August 2014. She applied for a provider number shortly after completion of her course. When she joined the Catsbeauty (the applicant’s business) in late 2014. The owner at the time was Mr Jacob Lee and Mr Woo was the manager. The business was in Russel St and she was employed as a remedial massage therapist. When the business moved to Bourke St, they had shop which provided beauty and massage services. She provided all the massage services, including remedial massage, hot stone, cupping and pregnancy massages. She said the location in Bourke street was not great, it was small, slightly cold and a bit noisy. She said it was a temporary location and she understands why the officers had doubts. When asked how many clients (for massage services) she had each day during that time, she said about four to five clients. She denied undertaking any beautician work. She said her tasks included providing remedial massages to people with shoulder, neck and head pain, she organised customer bookings and contacted clients who had cupping and dry needling procedures as part of their aftercare.
When asked what she did when she did not have clients at the salon, she said she completed online courses, details of which she provided. She said she is a qualified and skilled remedial massage therapist and wants to pursue that career. She loves her work and hopes in the future to study physiotherapy or osteo-therapy. She said when ABF officers came into the shop, she became very nervous. They told her that she has been working as a hairdresser and beautician, but she tried to explain to them that she is a massage therapist. She even tried to show the officer the massage oils and towels.
In his evidence to the Tribunal, Mr Woo said that Ms Jun worked only as a massage therapist. He said Ms Jun went to the hairdressing shop when she needed to use the washing machine. He said he had not spoken to (or been interviewed by) ABF officers as he was not in the shop when the called and/or visited. The Tribunal queried how this was so, given very detailed information was given to an ABF officer about the new address of the business and its employees when they called in October 2018. He said the ABF officers must have spoken to Rickey who may have told them that he (Mr Woo) was the manager and the positions of the other employees as he understood them. He said Rickey’s English was not very good.
The Tribunal also took evidence from Mr Tam, who has been a regular client of Ms Jun since 2019. He said he had lower back pain and attended the shop for regular (monthly) massages with Ms Jun. He said his wife also books massages with Ms Jun and they recommend her services.
In determining whether the applicant has failed to satisfy its sponsorship obligations in r.2.86 in relation to each of the sponsored persons, the Tribunal has considered the relevant evidence before it as follows.
In relation to the employment of Ms Kim, the evidence before the Tribunal is that Ms Kim, who was granted a Subclass 457 visa on the basis of a nomination by the applicant in the occupation of Hairdresser, had not worked for the business since at least May 2017, when Ms Chung was appointed as director of the applicant. The evidence given by Ms Kim to the Department in October 2018 (as recorded on the Department’s file) regarding her employment with the applicant suggests that either Ms Kim had not provided credible evidence to the Department about having worked for the applicant as a hairdresser or she was referring to a different period (i.e., prior to Ms Chung’s appointment as director). It is not necessary to resolve the inconsistency in Ms Kim’s evidence, given Ms Chung has conceded that Ms Kim had not worked for the applicant as a Hairdresser since she was appointed director. On the evidence before it, the Tribunal finds that the applicant has failed to satisfy the requirement in r.2.86 to ensure that Ms Kim (as holder of the Subclass 457 visa) worked in the applicant’s business in the approved nominated occupation.
In relation to the employment of Ms Jun, the Tribunal has considered the totality of the evidence before it. Ms Chung, Ms Jun and Mr Woo disputed that they had told departmental officers that Ms Jun undertakes any hairdressing or beauty therapist work. It was submitted that during the site visit, departmental officers were taken by Ms Chung to the shop at which beauty and massage therapy services were provided and were shown the massage oils and equipment.
As noted above, there was a typed record of the site visit/interview on a report and there were also handwritten notes. Some of the information on both those records appeared to support Ms Chung’s claim that Ms Jun worked as the applicant’s massage therapist. Other information appeared unfavourable but did not necessarily appear on both records. As such it was difficult to reconcile some of the unfavourable information recorded. Some of the favourable information recorded includes the record of telephone interview with Ms Jun on 29 October 2018 in which she informed the ABF officer that she works at shop 3A (Cats Esthetics) as a massage therapist and that she provides remedial massages to clients. The record of interview with Ms Chung and Ms Jun during the site visit in November also indicated that they both said Ms Jun works as a massage therapist from shop 3A and the photographs taken of shop 3A during the site visit on 2 November 2018 (and those provided by Ms Chung to the Department in February 2019) indicate that the business provided massage services. The photographs showed a massage bed, massage oils, posters, massage related items and signage at the premises. The handwritten notes indicate that Ms Jun provided more details to ABF officers about her tasks as a remedial massage therapist and items she used (e.g., hot stones for deep tissue massages) which were not recorded in the typed report. It was also recorded that Ms Jun had informed officers that she sometimes assists the beauty therapist (Ms Sunmi Lee) with massage aspects of that work, e.g., by performing facial massages. This appears consistent with Ms Chung’s evidence that she employed a qualified beauty therapist who also worked at shop 3A.

In relation to some of the unfavourable information recorded, the Tribunal has considered the evidence as follows. It was recorded that Mr Woo had informed officers during a phone call on 11 October 2018 that Ms Jun was a beauty therapist. However, Ms Chung and Mr Woo both indicated that Mr Woo had never been interviewed by the Department and Mr Woo suggested that the Department may have spoken to an employee named Rickey whose English was not very good. The Tribunal notes that during the site visit on 2 November 2018, it was recorded that the ABF officers were greeted by Rickey. It is plausible that it was Rickey and not Mr Woo who answered the phone on 11 October 2018 and that he informed officers that Mr Woo was the manager. It is also plausible that Rickey, who was employed as a hairdresser at shop 6, may not have been fully aware of Ms Jun’s position given she worked at shop 3A. For these reasons, the Tribunal is unable to place much weight on the information obtained during the phone call conducted on 11 October 2018.
In the typed report it was recorded that Ms Chung had stated that Ms Jun was nominated as a beauty therapist/hairdresser and that her duties included, scalp massage, beauty therapy related services and assisting hairdressers. This appears inconsistent with the record of Ms Chung’s later evidence in which she informed officers that Ms Jun works as the business’ massage therapist and that she undertakes that work at shop 3A (in the same shopping centre). The handwritten notes do not record that Ms Chung provided details of Ms Jun’s duties as was indicated on the typed record. It was also not clear whether the response to some of the questions, which were recorded as ‘Ms Jun works in hair, beauty, and massage’, was in relation to the types of services provided by the applicant’s business or was in response to a direct question about Ms Jun’s tasks.
The typed record of interview refers to ABF officers speaking to Ms Chung about her role with the sponsor’s business and tasks as a massage therapist, however, it was not clear on the face of the records, or with the assistance of the handwritten notes, whether the conversation was with Ms Chung or Ms Jun. It was also not clear from the typed or the handwritten records whether the ABF officers’ concern about the lack of massage equipment was in relation to the location at shop 6 or shop 3A.
In absence of at least an audio recording or transcript, which sets out the location at which the interview/questioning took place, how ABF officers verified the identities of the persons with whom they spoke, the questions asked by the ABF officers and the exact responses by interviewees to those questions, and whether an interpreter was used, the Tribunal is unable to confidently rely on handwritten and/or typed notes (particularly in circumstances where there were variances in the records) to make findings as to the applicant’s non-compliance with r.2.86 in relation to the work undertaken by Ms Jun.
As noted above, Ms Chung, Ms Jun and Mr Woo all disputed that they had told ABF officers that Ms Jun worked as a hairdresser or beauty therapist. Furthermore, Ms Chung said she employed a qualified beauty therapist to undertake beauty therapy work and that Ms Jun is only qualified as a massage therapist and clients wanting beauty services would not pay an unqualified person to undertake that work. The certificates provided for Ms Jun indicate that she qualified as a remedial massage therapist in 2014, and since then has completed numerous courses related to specialised remedial massage techniques. None of the certificates provided suggest that she is qualified to provide any hairdressing or beauty services.
In relation to the name badge, it is plausible as explained by Ms Chung at the hearing that it was a generic badge that she obtained in Korea for staff working in the business, and given the other issues raised above, the Tribunal is unable to rely on Ms Jun’s name badge which indicated manager/skin specialist to find that she undertook hairdresser/beauty therapist tasks in contravention of her nominated position. In relation to Ms Jun’s payslips, the Tribunal notes that Ms Jun was originally employed in the business by Mr Jacob Lee, and it is unclear why the classification of beautician instead of massage therapist was identified on the payslip given Mr Lee was the director at the time Ms Jun was nominated for the position of massage therapist. In any case, the Tribunal is not satisfied that the information on the payslip establishes that Ms Jun worked as a beauty therapist in contravention of her nominated occupation.
The Tribunal has also had regard to the re-issuing of the infringement notice which removed the breach of r.2.86 in relation to Ms Jun. This, in the Tribunal’s view, strongly suggests that at least the ABF officers were somewhat persuaded, after having received additional evidence in February 2019, that Ms Jun’s position with the applicant’s business was massage therapist and not beauty therapist.
In considering all the evidence in its totality, the Tribunal is satisfied that the primary tasks undertaken by Ms Jun during her employment with the applicant were consistent with the occupation of Massage Therapist. While the applicant may have undertaken other tasks, such as washing of items at the hairdressing salon or providing facial massages to assist the beauty therapist, the Tribunal considers that those tasks did not form part of the applicant’s core duties and were incidental to her employment as a massage therapist with the applicant. The Tribunal is satisfied that Ms Jun, as the holder of a Subclass 457 visa, worked for the applicant in the nominated occupation of Massage Therapist.
For the above reasons, the Tribunal is satisfied that the applicant has not failed to satisfy its sponsorship obligations in r. 2.86 in relation to Ms Jun.
Obligation to keep records and obligation to provide records: rr 2.82 and 2.83
Regulation 2.83 requires the applicant, who was an approved work sponsor, to provide certain records and information to the Minister when requested. The records or information must be provided within the period specified. The records or information that the Department can request relevantly include those that the applicant is required to keep under a law of the Commonwealth, or a State or Territory and records required to be kept under r. 2.82 of the Regulations.
Regulation 2.82 requires the applicant to keep specified records to demonstrate compliance with the sponsorship obligations, which includes ensuring equivalent terms and conditions or employment as required by r.2.79. Regulation 2.82(3A) specifies the types of records required to be kept by sponsors in respect of that obligation, which relevantly includes a record of any money paid to the primary sponsored person. The records must be maintained in a manner capable of being verified by an independent person.
Under the Fair Work Act 2009 and Fair Work Regulations 2009 employers are required to keep records for each employee which includes the hours of work and leave taken.
At the hearing, the Tribunal particularised for Ms Chung the below information, which it considered relevant to assessing whether the applicant had complied with their sponsorship obligation in r.2.82 and r. 2.83.
During the interview on 2 November 2018, Ms Chung advised ABF officers that Ms Kim was paid in cash as this was what Ms Kim had preferred. On 15 October 2018, the Department requested information and records, which included records that the applicant is required to keep under Commonwealth and State laws, in relation to the employment of Ms Kim.
The requested information and/or records relating to Ms Kim’s employment was not provided to the Department within the prescribed timeframe.
The Tribunal explained to Ms Chung that the information was relevant to whether the applicant had failed to satisfy the sponsorship obligation in r.2.82, and that if the Tribunal relied on that information, it may conclude that the applicant has failed to keep the required records (which are capable of being verified by an independent person) in relation to the employment of Ms Kim.
The Tribunal further explained that the information was also relevant to whether the applicant had failed to satisfy their obligation in r.2.83 to provide records and information to the Minister and that if it relied on the information, it may conclude that the applicant had not provided the relevant records within the prescribed timeframe.
When invited to comment on the above, Ms Chung indicated that she had nothing to say. She said Ms Kim had not worked in the business since she became director, and she had no records of Ms Kim’s employment and assumed she must have been paid in cash. The representative indicated that efforts were made by his office to obtain documents about Ms Kim’s employment from the previous owner.
The Tribunal acknowledges Ms Chung’s explanation, however, in this case Ms Kim was successfully nominated by the applicant to work in the occupation of Hairdresser and was granted a Subclass 457 visa in April 2017 for 4 years on that basis. In the circumstances, the applicant was required to keep records of Ms Kim’s employment that were capable of being independently verified, including any money paid to her, her hours of work (if any) and any leave she may have taken. Notwithstanding the change of ownership in May 2017, in failing to keep these records, the applicant has failed to satisfy the sponsorship obligation in r. 2.82.
The Tribunal acknowledges that attempts were made to obtain some of the documents regarding Ms Kim’s employment from the previous owner, however, as the requested documents were not provided to the Department, the applicant has failed to satisfy the sponsorship obligation in r.2.83.
Given the above findings, the Tribunal finds that the prescribed circumstance in reg 2.89 exists for the purpose of s 140M of the Act.
Action to be taken
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.
In considering what action to take, the Tribunal has had regard to the prescribed criteria, as extracted in the attachment to this decision.
(a) the past and present conduct of the person in relation to Immigration
The delegate indicated that the sponsor was co-operative during monitoring process but had not provided a response to the NOITTA. At the hearing, Ms Chung indicated that she had provided additional documents to the Department regarding Ms Jun’s employment as a massage therapist. The Tribunal acknowledges that in February 2019, documents were provided to the Department relating to Ms Jun’s qualifications and employment, however, that information appears to have been considered in the context of the infringement notice, which was subsequently reissued.
(b) the number of occasions on which the person has failed to satisfy the sponsorship obligation
The Tribunal considers that the applicant has failed to satisfy the sponsorship obligations in r. 2.86(2) in relation to only one visa holder (Ms Kim) on one occasion. The applicant has also failed to satisfy the sponsorship obligations in r.2.82, 2.83 and 2.84 on one occasion.
(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
In relation to the obligation in r.2.84, the applicant’s business relocated in July 2018, however, the Department did not become aware of the change of address until monitoring was commenced and they attempted to conduct a site visit (at the old address) in October 2018. The Department was not informed of the new business address until they contacted the applicant’s business by phone in November 2018. The period over which the failure occurred was at least three months.
In relation to the obligations r. 2.82, the applicant appears to have failed to keep the required records in relation to the employment of Ms Kim since she was granted the Subclass 457 visa in April 2017. They also failed to provide those documents to the Department when requested: r. 2.83. The Tribunal has had regard to Ms Chung’s explanation that she was not aware of Ms Kim’s employment and just assumed that she was paid in cash. Ms Chung explained that when she took over from the previous director (who was her ex-husband) she was not given a lot of documents and made attempts to obtain the information from different sources, including her accountant.
In relation to the obligation in r.2.86, the period over which the failure to ensure Ms Kim was working in the nominated occupation with the applicant was at least since May 2017, when Ms Chung became director. It is unclear whether Ms Kim worked in the nominated occupation for the applicant prior to that period and no records have been provided to suggest that she had.
The Tribunal acknowledges the challenges experienced by Ms Chung when she became director and took over management of the business. However, the evidence indicates that Ms Chung was aware that the applicant was approved as a standard business sponsor, and the Tribunal considers that the onus was on Ms Chung to obtain professional advice and inform herself of the sponsorship obligations with which the applicant had to comply.
(d) the period of time over which the person has been an approved sponsor
The applicant was most recently approved as a sponsor on 20 November 2015 for a period of five years.
(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 Tribunal considers that the applicant’s failure to satisfy the sponsorship obligations had a direct impact on the Department and on the Subclass 457 visa holders.
In relation to r.2.84, the applicant’s failure to notify the Department of the change of address within 28 days of relocating resulted in ABF officers not being able to successfully conduct their planned site visit on 10 October 2018.
The applicant’s failure to comply with r.2.82 and r.2.83, in not keeping and providing records regarding the employment of Ms Kim has also prevented the Department from assessing whether the applicant had complied with its employment obligations, including compliance with the terms and conditions of employment under the employment contract with Ms Kim at the time the nomination was approved.
The applicant’s failure to ensure that Ms Kim worked in the nominated occupation (r.2.86) has also had a direct impact on Ms Kim as this appears to have triggered the cancellation of her Subclass 457 visa.
In relation to Ms Jun, while the applicant’s failure to satisfy their sponsorship obligations did not trigger the cancellation of her Subclass 457 visa, it has had an impact on her application for a permanent visa. At the hearing, the representative informed the Tribunal that the nomination in relation to Ms Jun, under the permanent employment pathway, was refused and that Ms Jun’s visa application was also likely to be refused.
(f) whether, and the extent to which, the failure to satisfy the sponsorship obligation was intentional, reckless or inadvertent
The Tribunal does not consider the failures to satisfy the sponsorship obligations, at least on the part of Ms Chung since she became director in May 2017, to be intentional.
In her evidence to the Tribunal Ms Chung said she took over the company in May 2017 from her ex-husband in very difficult circumstances. She said he was abusive and violent towards her and on one occasion she had to call the police. Her parents travelled to Australia from Korea to assist with the divorce. She said he had threatened to throw away the company, but she wanted to keep it and agreed to purchase it from him. She said when she took over the business there were so many unpaid bills and tax debts.
Ms Chung gave evidence that she was aware of the company’s approval as a sponsor and the sponsorship of Ms Jun, but she had little information about Ms Kim and assumed that Mr Lee had employed her and was paying her in cash. She contacted the accountant to get Ms Kim’s phone number and spoke to her.
The Tribunal acknowledges the difficulties and challenges experienced by Ms Chung when she acquired the business, however, Ms Chung was aware that the applicant was an approved business sponsor, and the onus was on her (as the applicant’s director) to ensure that she was familiar with all the sponsorship obligations. Ms Chung could have also contacted the Department, or her lawyer (who could have obtained information on her behalf), regarding the status of the sponsorship and all the nomination and/or visa approvals attached to the sponsorship.
Having regard to all the circumstances, the Tribunal considers the failures to satisfy the sponsorship obligations to be reckless.
(g) whether, and the extent to which, the person has cooperated with Immigration, including whether the person informed Immigration of the failure
The evidence before the Tribunal indicates that the applicant cooperated with the Department. The Department was not informed of the failure to comply with the sponsorship obligations by anyone, and only became aware of these failures during the monitoring process.
(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
Given the nature of the failures, including failure to keep records, failure to provide the requested records, failure to notify the Department within a specified period of certain events and ensuring the sponsored person (Ms Kim) works in the nominated occupation, the applicant would not be able to take steps to rectify these types of failures after the fact. The Tribunal does however acknowledge that the applicant has taken steps to ensure these failures do to occur in future.
(i) the processes (if any) the person has implemented to ensure future compliance with the sponsorship obligation
The Tribunal has received submissions and supporting evidence regarding the applicant’s future compliance with sponsorship obligations, including a letter from the applicant’s accountant regarding the keeping of financial records and transfer of salaries and wages via bank transfers.
The Tribunal is satisfied that Ms Chung has taken steps to ensure that sponsorship obligations would be complied with in future.
(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
Other than the sponsorship obligations found not have been satisfied by the applicant, the Tribunal is not aware of any other sponsorship obligations that the applicant has failed to satisfy.
(k) any other relevant factors.
Ms Chung conceded that there were failures on the part of the applicant and asked the Tribunal to consider these failures in the context of her taking over as director/owner of the business from her ex-husband, who deliberately made things difficult for her. She said Ms Jun had worked as the business’ massage therapist and she feels some responsibility towards Ms Jun who has dedicated eight years working in the business.
The representative also submitted that the applicant operates a small business, they have had the challenges of COVID-19, the business since reopening has experienced growth and had a strong need to maintain the employment of Ms Jun.
Overall considerations
In determining what action to take, as provided for in s.140M, the Tribunal has carefully considered all the relevant circumstances as discussed above.
The Tribunal considers that the applicant’s failure to satisfy several sponsorship obligations warrants action to be taken. The Tribunal considers the failure of not ensuring that Ms Kim was working for the applicant in the occupation for which she was nominated, and the failure to keep records in relation to Ms Kim’s employment, and to provide those records when requested to be significant. However, the Tribunal has had regard the fact that Ms Chung was not the director at the time of Ms Kim’s nomination, and the difficult personal and financial circumstances in which Ms Chung became director and acquired ownership of the business.

The Tribunal has made some favourable findings in relation to the employment of Ms Jun. As found above, the Tribunal is satisfied that Ms Jun worked in the nominated occupation of massage therapist throughout her employment with the applicant as the holder of a Subclass 457 visa.
In this case, the Department decided to bar the applicant for a period of three years (from 8 April 2019) from making applications for approval as a standard business sponsor and temporary activities sponsor. The period of the bar ended on 8 April 2022. If the period of the bar was in was still in effect, the Tribunal would have considered varying or reducing the period of the bar by a few months, given the favourable findings made in relation to the employment of Ms Jun in the nominated occupation. However, as the period of the bar has now been served in full by the applicant, there is no utility in varying/reducing the period. In any case, a decision to bar the applicant (for any period) is likely to be considered adverse information, as defined in r.1.13A, in relation to any pending or future sponsorship or nomination applications made by the applicant. The Tribunal notes however, that the legislation also provides for decision makers to disregard adverse information where they consider it reasonable to do so.
The Tribunal acknowledges the effect a decision to take action under s.140M may have in relation to the employer nomination application made in respect of Ms Jun, however, it is open for the applicant to rely on the favourable findings made in this decision record, particularly those made in relation to Ms Jun’s employment in the nominated occupation with the applicant.
Having considered all the relevant circumstances at the time of this decision, the Tribunal has decided to affirm the decision under review.
decision
The Tribunal affirms the decision under review.
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.
…

[2022] AATA 3461

9 September 2022

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