D&T Traditional Thai Massage Pty Ltd (Migration)

D&T Traditional Thai Massage Pty Ltd (Migration) [2020] AATA 3846 (16 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  D&T Traditional Thai Massage Pty Ltd
CASE NUMBER:  1900604
DIBP REFERENCE(S):  OPF2018/9253
MEMBER:R. Skaros
DATE:16 September 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal varies the decision under review by reducing the period of the bar from 12 months to three (3) months.

Statement made on 16 September 2020 at 3:26pm

CATCHWORDS
MIGRATION – standard business sponsor – bar from making applications for approval as sponsor – failure to satisfy sponsorship obligation to ensure sponsored person works only in nominated occupation – customer services manager regularly performed tasks normally undertaken by a proprietor, including payment of casual staff – position description includes ‘additional duties assigned by management’ – highly trusted employee – steps taken to rectify failure – lower end on scale of seriousness – bar has expired in any case – decision under review varied
LEGISLATION
Migration Act 1958 (Cth), ss 140L, 140M, 359A, 362A, 375A
Migration Regulations 1994 (Cth), rr 2.86, 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 Immigration to take an action under s.140M of the Migration Act 1958 (the Act) in relation to the applicant’s sponsorship.
The applicant was approved as a standard business sponsor on 11 November 2013 for a period of three years.
On 19 September 2018 the Department issued a notice to the applicant requesting records and/or information as part of the monitoring process. The applicant’s Director, Mr David Leigh Seaman, provided various documents in response to the request for records.
On 31 October 2018, the Department issued a Notice of Intention to Take Action (NOITTA) under s.140M of the Act in relation to the applicant.
On 8 November 2018, the applicant’s Director provided a written response to the NOITTA.
On 20 December 2018, the delegate decided to bar the applicant for a period of 12 months 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.
The Tribunal received a copy of the delegate’s decision record with the application for review.
On 11 February 2020, the applicant’s newly appointed representative made a request for access to written material. On 17 February 2020, the Tribunal provided copies of the written material before it, including all folios in the Tribunal’s file and folios in the Department’s file, with the exception of those that were covered by a non-disclosure certificate issued by the Department under s.375A of the Act.
Further correspondence was received from the representative regarding their request to the Department under Freedom of Information for release of the documents covered by the non-disclosure certificate.
On 17 February 2020, the Tribunal received statutory declarations from the applicant’s Director and two of the applicant’s employees, Ms Nisawan Nampa and Ms Nonthree Songyard.
On 18 February 2020, the Tribunal wrote to the applicant inviting them to comment on the validity of the non-disclosure certificate under s.375A of the Act. The Tribunal also informed the applicant that any relevant information covered by the certificate would be particularised in accordance with s.359A.
On 3 March 2020, the Tribunal wrote to the applicant pursuant to s.359A of the Act. On 5 March 2020, the Tribunal received a statutory declaration from a customer of the applicant, Nattapong Techasopapan, which formed part of the response to the Tribunal’s s.359A letter.
On 5 March 2020, the representative requested copies of the documents referred to in the s.359A letter, which were not the subject of a s.375A certificate, which were provided by the Tribunal as an attachment to an email sent on 17 March 2020.
Mr David Seaman, in his capacity as the applicant’s Director, appeared before the Tribunal on 12 August 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Wanlapha Jungpairoj, the Subclass 457 visa holder, and Ms Kanphitcha Jai Mai, an employee of the applicant.
The applicant was represented in relation to the review by its registered migration agent. The representative attended the hearing.
Non-Disclosure certificate under s.375A
The Department issued a s.375A certificate in respect of the Sponsor Monitoring Recommendation Report (the Monitoring Report) which formed part of the Department’s file. The certificate, which was signed and dated, provides that disclosure of the information covered by the certificate would be contrary to public interest because it contains information relating to the process of conducting audits by the Department. At the hearing, the Tribunal discussed the validity of the certificate with the applicant’s Director and the representative. The Tribunal expressed its view that the certificate is valid as it provides a valid public interest reason for non-disclosure of the Monitoring Report. The Tribunal also noted that any information relevant to the issues in the review had been disclosed to the applicant. After some discussion about the nature of the information contained in the Monitoring Report and a confirmation that the relevant information had been disclosed to the applicant, no further issue was taken with the certificate. The Tribunal is satisfied that the s.375A certificate is valid. The Tribunal is also satisfied that any information contained in the documents covered by the s.375A certificate have been disclosed to the applicant and on which they have had an opportunity to comment.
Following the hearing, the Tribunal received written submissions from the representative to which it has had regard further below.
For the following reasons, the Tribunal has decided to vary the decision under review by reducing the period of the bar from 12 months to three (3) months.
CONSIDERATION OF CLAIMS AND EVIDENCE
Sections 140K, 140L and 140M of the Act provide for the imposition of sanctions on approved sponsors in certain circumstances.
Under s.140M, if prescribed circumstances exist, the Minister (and the tribunal on review) may take one or more of the following actions:
·cancelling the sponsorship approval in relation to a class to which the sponsor belongs;
·cancelling the sponsorship approval for all classes to which the sponsor belongs;
·barring the sponsor for a specified period from sponsoring more people under the terms of any existing approval; and
·barring the sponsor for a specified period from making future applications for sponsorship approval in relation to one or more classes of sponsor.
For these purposes, the circumstances are prescribed in r.2.89 - r.2.94B 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: 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?
In the present case, the delegate found that the applicant failed to satisfy a sponsorship obligation.
Failure to satisfy a sponsorship obligation: r.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: r.2.89(2).
In the present case, the delegate found that the applicant had failed to satisfy their sponsorship obligation in r. 2.86. The obligation in r. 2.86(2) requires a sponsor to ensure that sponsored persons do not work in an occupation unless they have been nominated to work in that occupation and the Minister has approved the nomination.
In determining whether the applicant has complied with their sponsorship obligation as required by r. 2.86, the Tribunal has had regard to all the relevant evidence before it as follows.
A nomination in the occupation of Customer Service Manager (149212) made by the applicant in respect of Ms Wanlapha Jungpairoj was approved on 5 December 2013. Ms Jungpairoj was granted the Subclass 457 visa on 10 January 2014 to work in the approved position.
In response to the request for information and/or documents issued by the Department on 19 September 2018, the applicant provided various documents which relevantly included the following:
·Time records for Ms Jungpairoj (the visa holder) detailing her hours of employment.
·Contract of employment for the visa holder dated 1 November 2013 noting the base annual salary as $54,000.
·Contract of employment for the visa holder dated 27 April 2017 noting the base annual salary as $65,000.
·Bank account statements for the applicant detailing transactions between March 2018 and July 2018.
Information on the Department’s file also included the Monitoring Report dated 4 December 2018. The Monitoring Report included background information in respect of the monitoring conducted by the Department, including an unannounced site visit undertaken at the business’ Five Dock premises on 19 September 2018, the request for information, documents received from the applicant’s Director and the Departmental officer’s assessment of the sponsorship obligations and whether or not they had been satisfied by the applicant.
Of relevance in the Monitoring Report is the assessment against the sponsorship obligation in r.2.86 to ensure that the sponsored person works only in the nominated occupation for the sponsor or an associated entity. The following information was recorded in the Report:
The sponsor’s business account shows a large number of transactions routinely paid to the visa holder (Ms Jungpairoj) beyond her regular wages.
Assessment of Departmental records revealed that the visa holder was approved an ENS nomination for Customer Service Manager (26 July 2017). In support of that application, the sponsor provided their bank records to the Department. Assessment of the bank records by the processing officer identified the same large number of transactions to the visa holder’s account. Further information relating to these transactions were requested and on 18 July 2017 the sponsor’s Director provided the following further information (CLD 2017/25922570):
"The payments Ms Wanlapha Jungpairoj (Annie) has received from D&T Traditional massage Pty Ltd represent her salary, reimbursements of expenses paid on behalf of the company (purchase of massage oil, repairs and replacement of equipment, fire compliance inspections etc) and funds provided to her to pay casual staff."
Based on the above information, the delegate formed the view that the visa holder was performing numerous tasks and roles outside her nominated position. The applicant was invited to respond to the delegate’s concerns, which were set out in the NOITTA, and an extract from the Australian and New Zealand Standard Classification of Occupations (ANZSCO) noting the tasks of a Customer Service Manager (149212) was also set out in the NOITTA for the applicant’s reference.
In response to the NOITTA, in a letter dated 8 November 2018, the Director stated that they accept the visa holder has been performing extra duties in addition to her role as a Customer Service Manager. He explained that the visa holder commenced performing these additional tasks due to her being regularly at the shop locations when they were running out of oil and when maintenance was required. He also stated that it was more convenient for the visa holder to pay casual staff as they trusted her. He stated that the visa holder’s contract was updated on 1 May 2017 to a salary of $65,000 to compensate her for the additional work.
In response to the tasks of a Customer Service Manager, as set out in ANZSCO, it was stated that the visa holder manages and develops the staff to provide customers with high-quality and effective massages in a friendly atmosphere. It was stated that the visa holder provides input into the design of the types massages to be delivered. The Director also stated that from 12 November 2018 the additional duties, such as purchasing of supplies, arranging maintenance and payment to casual staff will be performed by another two trusted members of their staff.
The Director provided a copy of the job description dated 29 October 2013 that was provided as part of the request for approval of the 457-nomination for the occupation of Customer Service Manager in respect of the visa holder. The Director has relied on this job description in submissions to the Tribunal, accordingly, the Tribunal considers it relevant to extract this information:
Position: Customer Services Manager
Job Summary:
Plans, administers and review customer services and after-sales services, and maintains sound customer relations.
Tasks and Duties:
1.Developing and reviewing policies, programs and procedures concerning customer relations and goods and services provided.
2.Ensuring operational efficiency within the shops.
3.Work with masseurs to plan marketing, advertising and any special promotion package.
4.Direct hiring, training, and scheduling of masseurs.
5.Investigate and resolve complaints concerning massage quality and services.
6.Providing direction and feedback to masseurs.
7.Comply with all health and safety regulations.
8.Review and monitor, with bookkeeper or other financial personnel, expenditures to ensure that they conform to budget limitations.
9.Planning and implementing after-sales services to follow up Customer satisfaction, ensure masseurs' performance provided and modify and improve services;
10.Perform other duties as assigned by management.
Review application
In his statutory declaration to the Tribunal, the Director provided background information about approval of the sponsorship, nomination and employment of the visa holder. He stated that the nomination relied on the job summary referred to above which followed the job description in ANZSCO 149212 (version 1.2). The Director relevantly noted that the applicant operates four shops in West Ryde, Burwood, Five Dock and Bondi, and that the visa holder was required to ensure operation efficiency within the shops. He stated that the visa holder was required to visit the shops each day to undertake the types of tasks set out in the position description and that she was provided with a vehicle. It was stated that visa holder was responsible for the vehicle’s maintenance and fuel.
The Director stated that the visa holder, in course of travelling between the different locations, purchased requirements for the business, being one of her duties assigned to her by management. This included the purchase of massage oils, paper towels and paper linen bedding. It was stated that the visa holder also attended to any maintenance issues that required attention. It was submitted that these tasks relate to health and safety requirements and good customer relations as described in the approved position description.
The Director stated that the visa holder was responsible for locating casual staff to meet sudden absences of other staff due to illness or otherwise as she has wide connections within the Thai community, including Thai international students. It was stated that the students requested payment for short term placements, often on a one-day basis, and that the visa holder would pay them from her own funds and would be reimbursed. The Director stated that these roles were within the approved position description and fell within tasks described in ANZSCO for the occupation of Customer Service Manager 149212.
The Director also took issue with the finding made by the delegate that the visa holder was working as Store Manager or Admin Clerk for the sponsor. The Director stated that the visa holder was compensated for the additional work through a salary increase to $65,000. In relation to his comment to the Department that the visa holder was performing additional tasks outside her nominated position, the Director explained that what he meant was that the tasks were undertaken outside the business premises. He stated that the additional tasks do not contradict his statement as he meant that additional salary from 1 May 2017 related to further time spent for additional work. The Director also stated that in his response to the NOITTA he had stated that the additional tasks were allocated to other employees so as not to create any perception that work done outside the company premises by the visa holder was in breach of the conditions of the approved nomination.
In their statutory declarations, the applicant’s employees, Ms Songyard and Ms Nampa, both state that they have always known the visa holder as the manager and that she has provided training to them about how to interact with customers and how to provide a high level of customer service.
In a statutory declaration from Mr Nattapong Techasopapan, a regular customer, Mr Techasopapan stated that visa holder is the customer service manager and that she (the visa holder) always recommends new products or promotion on special occasions. He stated that the visa holder discusses with him the products he needs, arranges the massage therapists and a nice clean room. He stated that the visa holder always ensures they are satisfied with the services and would contact them to get feedback.
As noted above, requests were made by the applicant’s representative for access to documents/ written material under Freedom of Information and s. 362A of the Migration Act. The Tribunal formed the view that the s.375A non-disclosure certificate on the Department’s file is valid and as such the folios covered by the certificate, being the Monitoring Report, were not released to the applicant’s representative.
Even though the relevant information in the Monitoring Report was generally put to the applicant in the NOITTA, the Tribunal nevertheless decided to particularise details of the information using the procedure in s.359A of the Act. The Tribunal explained to the applicant that the information, as set out in paragraph 30 above, together with other information before the Tribunal, is relevant because it suggests that the visa holder had been the assisting in managing the day to day operations of the sponsor’s business and that the visa holder had been undertaking tasks that are not consistent with the nominated occupation of Customer Service Manager. The Tribunal informed the applicant that if it relied on that information it may find that the sponsor failed to ensure that the visa holder did not work in an occupation other than that for which she had been approved and the Tribunal may then find that the applicant had breached their sponsorship obligations in r.2.86. In the same letter the Tribunal also informed the applicant that the information may also be relevant to the Tribunal’s consideration of the circumstances set out in r.2.89(3) on which the applicant was also invited to comment.
In response to the representative’s request for further particulars, the Tribunal provided a copy of the following documents, some of which had to be obtained from the ENS application in respect of the visa holder, which had also been referred to in the Monitoring Report:
·Bank statements for the visa holder detailing transactions for periods between May 2014 and June 2017.
·Bank statements for the applicant detailing transactions for periods between May 2014 and May 2017.
·A copy of the approval of the ENS nomination dated 26 July 2017 in respect of the visa holder.
·A copy of the letter to the Department dated 12 July 2017 from the Director explaining the numerous deposits into the visa holder’s account.
Discussion of issues at the hearing

At the hearing the Director confirmed that the applicant operates a massage therapy business in four locations in Sydney. The Director also gave evidence that the visa holders is his spouse’s niece and that she resides at the same address.
The Tribunal discussed with the Director the evidence before it, as set out in paragraph 30 above, which the Tribunal explained suggests that the visa holder has been managing the day to day operations of the business and has been undertaking tasks that are not consistent with the nominated occupation of Customer Service Manager, which is a managerial position responsible for planning, administering and reviewing customer service policies and procedures.
The Tribunal also noted that it observed from the bank account statements for visa holder and the sponsor that regular and numerous transfers were made to the visa holder’s account and that large sums of cash money were regularly deposited into the visa holder’s bank account.
In response, the Director stated that in relation to the paying of staff, some of the workers would only work for a few days or sessions and they expected to be paid that day and, because he does not speak Thai, he relied on the visa holder to pay these workers from her cash after which he would reimburse her.
In relation to the purchase of equipment, the Director stated that there should not be much of that and it may have been misworded. He stated that it was more likely to be supplies and that the visa holder would go pick up massage oils from Parramatta Rd, pay on pick up and he would reimburse her. The Director also stated that in relation to repairs and maintenance, if there was something that needed to be fixed the visa holder had contacts in the Thai community, like electricians etc, and that she would call them to come out and fix things and she would pay them and he would reimburse her.
The Tribunal reiterated its concern that the types of tasks he has described, including the paying of casual staff, purchasing of supplies and paying trades workers, are not consistent with the types of tasks undertaken by a person performing the role of Customer Service Manager. In response, the Director stated that he relied on the original application which included additional duties as assigned by management. The Tribunal acknowledged that the tasks of the position, which were approved by the Department, indicate that the tasks include those assigned by management, but noted that this still required the tasks to be consistent with the types of tasks included for the occupation of Customer Service Manager and did not encompass tasks that were not consistent with the nominated occupation.
The Tribunal expressed its concern that the visa holder was undertaking tasks normally undertaken by a proprietor of a business. When asked whether the visa holder had a financial interest in the business, the Director indicated that the visa holder did not have an ownership interest in the business or receive any bonuses. He stated that the visa holder’s salary was increased because the business was growing.
The representative submitted that in the context of the business, which has four salons, the purchase of necessary oils or equipment made up a small percentage of the visa holder’s tasks and did not cut across her general duties as approved by the Department. It was also submitted that the visa holder is responsible for ensuring top level quality control and it was important to present the business at the highest level with the best equipment and material available. He stated that the visa holder had to ensure that customers were receiving the treatments and experiences they believe were being supplied or should be supplied by the business. It was submitted that the visa holder was not just going shopping, but that she was ensuring that what was being supplied was what was needed and is of the best quality.
The Tribunal sought evidence from the Director on the submissions made by the representative, to which he stated that all four shops have standard oil and the same requirements for supplies. He stated that, depending on how many people go to each shop, one shop might run out of bedsheets or oil before another and that might be a reason why there are a lot of transaction. He stated that different shops have different supply requirements, there was also a need for paper napkins, which are used for people’s heads, and that different shops would run out of supplies at different times, hence the explanation for the many transactions. The Director stated that the visa holder ensures that everything runs well for the customer and they know they will receive quality service when they attend the salon. He stated that the visa holder follows up on queries or customer emails and, if there were any issues, she would follow up and liaise with the customers to ensure everything was okay.
The Tribunal also took evidence from Ms Mai who was present when Departmental officers attended the premises during the site visit. Relevantly, Ms Mai gave evidence that the officer asked her about the visa holder and that she informed the officer that the visa holder was the customer service manager.
The Tribunal took evidence from Ms Jungpairoj, the visa holder. In her evidence, she stated that as the sponsor’s customer service manager she is responsible for solving customers’ problems and dealing with complaints. She stated that she works with management to launch promotions. She is also responsible for training new staff, confirming their qualifications and ensuring that they can communicate with customers. She stated that she is also responsible for answering emails and making advanced bookings. She ensures that there are sufficient staff to meet customer demand and is responsible for arranging staff schedules at least two to three weeks in advance.
The Tribunal asked the visa holder about her bank statements and the large sums of cash that were often deposited into her account. The visa holder gave evidence that this was her day to day account. She stated that she does not deposit any cash payments from the business directly into her account. The Tribunal noted that there were numerous cash deposits in her bank account, that in the period of July to September 2014 there were amounts ranging from $1500 up to $5000 and numerous other smaller deposits with transaction descriptions such as oil warmers, payment of supplies, sheets etc.
In response, the visa holder stated that sometimes she pools money with her friends to increase her savings and sometimes she gets the funds from her relatives overseas. She also gave evidence that sometimes she pays for massage material and supplies in case her boss is away overseas and the salon needs supplies immediately. She stated that if the supplier does not deliver the massage material on times or in case there is not enough bedsheets or oils, she ensures these supplies are available so that they can provide massage services to customers. She stated that when boss returns from overseas he then reimburses her.
The Tribunal noted that her bank account statements, which span over a number of years, indicated that transactions relating to supplies occurred every few days and over a long period of time and not just for identifiable periods of time when the Director may have been overseas.
The visa applicant gave evidence that her partner, Tania, also runs a massage salon and that she gives her (the visa holder) money to deposit into the account. When asked further questions about why her partner would give her the money, she then stated that it was to assist with instalment payments for a car.
The Tribunal noted that it had also observed transactions on the business’ bank accounts which indicate that she had regularly received funds from the sponsor for payment of supplies. The Tribunal discussed with the visa holder some of the deposits in the month of July 2016, in which there were numerous transactions, some of which were recorded as being for supplies, heater and salaries for contractors. When asked how many hours she spent purchasing supplies on behalf of the sponsor, she stated that on average it was about two to three hours a week. In relation to payment for sub-contractors, the visa holder stated she was responsible for paying staff costs and that some wanted to receive cash in hand. She stated that she had to pay those staff from her own funds and that she would then prepare a summary for the Director who would reimburse her.
In response to the Tribunal’s concern that the visa holder appeared to be regularly and consistently undertaking tasks that do not correspond to the nominated occupation of Customer Service Manager, the Director stated that they relied on the position description provided with the nomination which included tasks assigned by management.
Following the hearing, on 2 September 2020, the Tribunal received the following submissions from the representative on behalf of the Director.
It was stated that based on the visa holders’ application for the Subclass 457 visa, which included the list of the tasks she was to perform, and the subsequent approval of this application by the Department, the Director was under the impression that the visa holder was required to perform the tasks as listed in the application. It was stated that the following duties were included in the list:
·Ensuring operational efficiency of the shops i.e. ensuring the shops have sufficient and good quality supplies “oil, bed sheets etc” thus if a shop was short of supplies, the visa holder would source and obtain and be reimbursed.
·Review and monitor with the bookkeeper or other financial personnel expenditures to ensure that they conformed with budget expectations i.e. source supplies at a reasonable cost.
·Perform other duties assigned to her management i.e. payment of staff when required from her own funds and subsequently be reimbursed on occasions when casual staff had been sourced. This was necessary to ensure smooth running of the business. Staff trusted Wanlapha (the visa holder) and provided her with their bank account details.
It was submitted that any departures from the applicable ANZCO definition of a Customer Service Manager were instigated by the Director as he relied on the tasks included in the approved application. It was submitted that the Director believed that the majority of the tasks performed by the visa holder were as approved on the original nomination.
It was submitted that the Director has discussed with the visa holder the various transactions in her bank account and that she has informed him that most of these transactions are personal and related to her friends or family members who requested her to purchase various items on their behalf . It was submitted that many of the transaction were between the visa holder and her family members and are of personal nature and not related to the business. It was submitted that while they appear to be for large amounts, the visa holder informed the Director that it is common practice within the Thai community to receive funds behalf of friends and relatives.
It was submitted that there are some transactions that relate to the sponsor which were effected for convenience such as $1000 paid for installation of CCTV cameras for the salons on 5 January 2015 for the business and on 12 October 2015 the reimbursement of uniforms for each of the salons. It was submitted that the visa holder, as a highly trusted employee, had the authority to look after these transactions making payments on behalf of the business to the sub-contractors and this gave the Director confidence that the business was running smoothly.
It was submitted that more than 95 percent of the work undertaken by the visa holder relates directly to the approved duties in relation to the Subclass 457 nomination and visa. It was submitted that the minimal and isolated non-specific duties would not constitute any significant variation of the tasks approved.
Consideration of the evidence
The Tribunal has carefully considered all the evidence before it but is not satisfied, for the reasons that follow, that the sponsor has complied with their obligation to ensure that the sponsored person does not work in an occupation other than that for which she has been nominated and approved.
While some concession is given to the fact that the Department approved the nomination which included a position description containing tasks that may not have necessarily accorded with the types of tasks described in the ANZSCO (version 1.2) for the occupation of Customer Service Manager (149212), the Tribunal nevertheless considers that some of the tasks undertaken by the visa holder also fell well outside the tasks described in the position description provided with the nomination.
The Tribunal does not accept that sourcing and purchasing supplies, such as oils, napkins, equipment and bedsheets for the massage therapy salons, which the Director claims was to ensure that the shops have sufficient and good quality supplies, is consistent with the task of ensuring operational efficiency as submitted. In the context of the nominated occupation of Customer Service Manager, as described in ANZSCO, the task of ‘ensuring operational efficiency’ involves organising and controlling the operations of a call centre or organisation. The task of ensuring operation efficiency is, in the Tribunal’s view, a managerial one and would not involve purchasing of oil and bedsheets for the business so that massage therapists do not run out of supply when providing massage services to clients.
Nor does the Tribunal consider the visa holder’s task of arranging for tradespersons to deal with maintenance issues that arise in the salons to be consistent with the nominated occupation of Customer Service Manager, even taking into account the submission that this was part of the visa holder carrying out the task of ‘comply with occupational health and safety regulations’ as approved by the Department. In the context of the nominated occupation, as described in ANZSCO, the Tribunal does not consider that the task of ‘comply with health and safety regulations”, extends to the visa holder arranging for tradespersons to attend to repairs and maintenance issues and being responsible for the payment of those services until she is reimbursed by the Director.
The Tribunal has considered the submission that the purchase of supplies made up a small part of the visa holder’s tasks and did not cut across her other tasks as approved by the Department. The Tribunal acknowledges, and is prepared to accept, that majority of the tasks undertaken by the visa holder during her employment as the holder of a Subclass 457 visa included those approved by the Department, such as interviewing and hiring massage therapists, training massage therapists, conducting promotional activities and dealing with customer complaints and following up with customers. However, the Tribunal also formed the view that the purchase of supplies for the sponsor’s four salons was a regular and consistent task undertaken by the visa holder during her employment with the sponsor as the holder of a Subclass 457 visa. This is evident from the number of transactions that can be seen on the visa holder’s bank account statements.
The Tribunal has before it the visa holder’s account statements for various periods between May 2014 and May 2017. The Tribunal does not propose to highlight each item in the account statement, but it can be observed that from about September 2014, the visa holder had been frequently receiving funds for various purposes, in addition to payments recorded as D&T ‘salary’. In each month, there were approximately ten to fifteen transactions of funds received from ‘D&T’ and in some months up to thirty transactions. For example, in the month of June 2015, there were 15 transactions recorded as funds received from the sponsor ‘D&T Trad’ for ‘supplies’, ‘warmer’ ‘rates’, ‘contractors’ and ‘oil’, for amounts ranging $13 to $700 in each transaction. For the month of November 2016 there were almost thirty transactions relating to funds received from ‘D&T Trad’ with most of them being for ‘supplies’ and ‘sal/contractors’.
The information in the visa holder’s bank account statements do not support the submission that time spent by the applicant in sourcing and purchasing supplies for the sponsor’s business was minimal and that 95 percent of the visa holder’s tasks were those set out in the approved position description. The bank account statements for the visa holder to do not suggest that the purchase of supplies for the sponsor’s salons were incidental or infrequent occurrences, the frequency and consistency of the transactions over several years strongly suggest that the purchase of supplies for the sponsor’s business was a core task undertaken by the visa holder during the course of her employment for the sponsor as the holder of a Subclass 457 visa.
The Tribunal also considers that the payment of casual staff by the visa holder is not consistent with the tasks of the nominated occupation of Customer Service Manager as described in the ANZSCO, nor was it one of the tasks identified on the position description that was provided as part of the nomination. The Tribunal has considered the Director’s explanation that this was one of the duties assigned by management to ensure the smooth running of the business, however, as explained at the hearing, the Tribunal considers that any task assigned to the visa holder by management must still be consistent with the types of tasks undertaken by a person performing the role of Customer Service Manager, which is essentially a managerial role involved in planning, administering and reviewing customer services, after-sales services and maintaining sound customer relations. The Tribunal considers that the visa holder sourcing casual staff, then paying them from her own funds and being reimbursed from the Director is a task that falls well outside the approved position, even when taking into account the position description that was approved by the Department as part of the nomination.
The Tribunal acknowledges that many of the tasks undertaken by the visa holder were consistent with the approved position description, however, there were also other tasks, as described above, which were undertaken frequently and consistently by the visa holder during the course of her employment, as the holder of a Subclass 457 visa, with the sponsor which were not in accordance with the occupation for which she was nominated and had been approved by the Department.
Having carefully considered all the evidence before it, the Tribunal finds that the applicant has not complied with the obligation in r. 2.86(2) to ensure that sponsored person does not work in an occupation other than that which has been approved.
Accordingly, the Tribunal is satisfied that the prescribed circumstance in r.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 and provided all the information in a timely manner.
(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 one visa holder on one occasion. The Tribunal has also considered the Director’s response that this was the only issue that the Department identified and that they had complied with their other sponsorship obligations.
(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

The Tribunal considers that the sponsor has failed to ensure that the visa holder does not perform tasks that are not consistent with the approved nominated occupation of Customer Service Manager. In his response, the Director stated that he was relying on the position description that was provided with the nomination application. The Tribunal acknowledges that many of the tasks undertaken by the visa holder were consistent with the position description approved by the Department, however, as discussed above, there were also other tasks undertaken by the visa holder that were not consistent with the approved position which were frequently undertaken over several years.
(d) the period of time over which the person has been an approved sponsor
The applicant was approved as a sponsor on 11 November 2013 for a period of three 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 ensure that the visa holder works only in the approved occupation has had a direct impact on the visa holder. Firstly, by undertaking tasks that are not consistent with the approved nominated occupation, the visa holder would have been in breach of her Subclass 457 visa condition and that visa would have been subject to cancellation.
Secondly, the sponsor’s failure to ensure that the visa holder works only in the approved nominated occupation has also had an impact on her application for a permanent residence visa. Even though the permanent employer nomination made by the applicant in relation to the visa holder was approved by the Department, the representative informed the Tribunal that associated visa application made by the visa holder was refused as a consequence of the monitoring process. While the visa holder’s Subclass 457 visa was not consequentially cancelled, she was significantly impacted by the sponsor’s breach as it resulted in the refusal of her permanent employer nomination visa.
(f) whether, and the extent to which, the failure to satisfy the sponsorship obligation was intentional, reckless or inadvertent
In response to this consideration, the Director stated that the breach was inadvertent and that he did not realise that the tasks in the position description which was approved by the Department was different to the tasks set out in the ANZSCO. The Tribunal acknowledges that the Director relied on the approved position description and accepts that he was under the impression that most of the tasks undertaken by the visa holder were those approved by the Department. While the Tribunal gives some favourable weight to this circumstance, the Tribunal nevertheless considers that the Director was to some extent reckless when directing the visa applicant to undertake tasks that were well outside the types of tasks noted in the position description. The Director relied on the visa holder to source supplies for the business and to use her own funds to purchase those supplies. The Director also relied on the visa holder to use her own funds to pay casual staff.
While the Tribunal accepts that the visa holder was reimbursed by the applicant, and that there was trust between the parties given the visa holder is the niece of the Director’s spouse, the Tribunal nevertheless considers that requiring or permitting the visa holder to assume these additional responsibilities goes well beyond the position for which the visa holder was approved under the Subclass 457 visa programme. The Tribunal formed the view that the Director relied on the visa holder to undertake tasks that were not consistent with the position for which she was nominated to fill and on this basis the Tribunal considers that the applicant’s failure to satisfy the sponsoring obligation was 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 co-operated with the Department. The Department was not informed of the failure to comply with the sponsorship obligation in r.2.86(2) by the applicant because the Director was under the impression that the tasks undertaken by the visa holder were those approved by the Department.
(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
When asked whether they had taken any steps to rectify the failure, the Director gave evidence that all payments are now done by him. He stated that in relation to any maintenance issues, the staff would inform him and that he would arrange for the tradesperson to attend and would arrange payment. In relation to the purchase of supplies for the salons, the Director stated that another employee takes care of ordering supplies which are then delivered to the shops and that the invoice would be sent to him and he arranges payment. The Tribunal acknowledges that the Director has taken steps to rectify the breach.
(i) the processes (if any) the person has implemented to ensure future compliance with the sponsorship obligation
The Tribunal is satisfied on the evidence before it that the applicant’s Director, since realising that the visa holder had been undertaking tasks that were in excess of those approved by the Department, has made alternative arrangements for those tasks to be undertaken by himself, as the business’ proprietor, or other staff members.
(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
The Monitoring Report indicates that the applicant has failed to comply with one sponsorship obligation, namely r.2.86, in respect of one visa holder.
(k) any other relevant factors.
The Director gave evidence that the nominee is the best person to fill the role as she is fluent in English and Thai and she is trusted by the staff.
Overall considerations
In determining what action, if any, to take, as provided for in s.140M, the Tribunal has carefully considered all of the circumstances as discussed above. The Tribunal gives weight to the fact that the Director relied on the tasks in the position description, which formed part of the temporary employer nomination, which was approved by the Department and relied upon by the visa holder in her application for the Subclass 457 visa. The Tribunal accepts that many of the tasks undertaken by the visa holder were consistent with the tasks in the position description. However, the Tribunal does not accept that the Department’s approval of the position description, which included undertaking “other duties assigned by management” permitted the applicant to direct that the visa holder undertake tasks that did not correspond with the occupation for which the sponsor sought approval. The Tribunal considers that the Director was under obligation to inform himself of the tasks set out in the ANZSCO for the nominated occupation of Customer Service Manager so as to ensure that the tasks carried out by the visa holder aligned with the tasks set out in the ANZSCO. The Tribunal gives favourable to the fact that only one breach in respect of one visa holder was identified during the monitoring process and that the Director had taken immediate steps to rectify that breach.
In this case, the Department decided to bar the applicant for a period of 12 months from making applications for approval as a standard business sponsor and temporary activities sponsor. Even though the period of 12 months ended on 20 December 2019, the Tribunal is required to consider for itself what action, if any, should be taken having regard to all the circumstances. In this case, the Tribunal considers that the breach identified was, having regard to all the circumstances, at the lower end of the scale. On this basis, the Tribunal has decided to reduce the period of the bar to three (3) months, meaning that the bar ended on 20 March 2019.
Considering the totality of the circumstances, and having regard to the prescribed criteria, the Tribunal has decided to vary the decision under review by reducing the period of the bar from 12 months to three (3) months.
DECISION
The Tribunal varies the decision under review by reducing the period of the bar from 12 months to three (3) months.
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.
…

[2020] AATA 3846

16 September 2020

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