Elnart Pty Ltd (Migration)

[2022] AATA 900

Elnart Pty Ltd (Migration) [2022] AATA 900 (19 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Elnart Pty Ltd

CASE NUMBER:  1908460

HOME AFFAIRS REFERENCE(S):          OPF2018/5311

MEMBER:Namoi Dougall

DATE:19 April 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision under review.

Statement made on 19 April 2022 at 12:12pm

CATCHWORDS
MIGRATION – sponsorship cancellation and bar – standard business sponsor – adverse information – site visit found unlawful non-citizen working – no response to tribunal’s invitation to provide information or submissions – worker’s visa and work history – advice from agent that she could work on bridging visa – partner and bridging visa applications not lodged by agent – not reasonable to disregard adverse information – bar period now expired – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140E(1), 140L(1)(a), 140M, 359(2), 359C, 360(3), 363A
Migration Regulations 1994 (Cth), rr 1.13A, 2.59(g)(i), 2.91

CASE
Hasran v MIAC [2010] FCAFC 40

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to take an action under s 140M of the Migration Act 1958 (Cth) (the Act) in relation to the applicant’s sponsorship.

2. The applicant was approved as standard business sponsor on 5 August 2017. On 18 March 2019, the delegate decided to bar the applicant for until 14 March 2020 under s 140M on the basis that there was now adverse information known to the Department in relation to the applicant, so the applicant no longer met the requirements for approval as a standard business sponsor, in particular reg.2.59(g)(i). The adverse information was that the Department while conducting an unannounced site visit on 14 June 2018, discovered that the applicant employed and Unlawful Non-Citizen (UNC).

3. On 14 February 2022, the Tribunal wrote to the applicant enquiring if the applicant wished to continue with the application of review in light of the fact that the sponsorship bar expired on 14 March 2020.

4. On 24 and 28 February 2022, a Tribunal officer contact the applicant leaving a message with reception for the director of the applicant. The Tribunal did not receive a response to its letter of 14 February 2022, and no one responded to the Tribunal’s phone calls.

5. On 1 March 2022, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act setting out the circumstances that led to the applicant being barred from being a sponsor until 14 March 2020 and inviting the applicant to provide a submission addressing the criteria set out in reg.2.91.

6. The letter also advised that if the information was not provided within the period allowed, or as extended, the Tribunal may make a decision without taking any further action to obtain the information and the applicant will also lose its right to appear before the Tribunal at a hearing. The applicant did not respond to the Tribunal’s letter of 1 March 2022.

7. The applicant did not provide the information within the prescribed period and no extension was granted. In these circumstances, s.359C applies and pursuant to s.360(3), the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the requested information, given the efforts the Tribunal has taken to contact the applicant including the Tribunal’s request for additional information and as the applicant is aware of the sponsorship bar and that it expired on 14 March 2020.

8. For the following reasons, the Tribunal has decided to affirm the decision under review.

CONSIDERATION OF CLAIMS AND EVIDENCE

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

2. 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.

3. 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.

4. 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?

1. In the present case, the delegate found that the applicant no longer satisfied prescribed criteria for approval as a standard business sponsor.

Criteria no longer met: reg 2.91

1. The Minister may take one or more of the actions in s 140M if the sponsor no longer satisfies the prescribed criteria for approval of the sponsorship or for variation of the terms of the sponsorship: reg 2.91(2).

2. The applicant was approved as a standard business sponsor on 5 August 2017. Following the approval, the Department received information which suggested that there may be ‘adverse information’, as defined in reg 1.13A, known to Immigration about the applicant or a person associated to the applicant. This is relevant to whether the applicant continued to meet the requirement in reg 2.59(g) for approval as a standard business sponsor.

3. On 23 May 2018, the Department commenced monitoring the applicant.

4. On 14 June 2018, an unannounced site visit was conducted on the applicant trading as Neo Nails at the applicant’s shop in Lithgow. During the site visit and unlawful non citizen, Ms Bong Thi Thank Nguyen was discovered working on the premises and the applicant was issued with an Illegal Worker Warning Notice.

5. On 13 September 2018, the sponsor was issued with an Illegal Worker Warning Notice, for employing a worker without work rights.

6. On 21 February 2019, the Department issued a Notice Of Intention To Take Action (NOITTA). The particulars of the circumstances for which action was being considered, was as set out in the three paragraphs immediately above. The NOITTA also stated that the applicant no longer satisfied criteria prescribed under s.140E(1) of the Act at the time they were approved as a sponsor as they no longer met the requirements of reg.2.59(g)(i), which states that there is no adverse information known to Immigration about the sponsor or a person associated with the sponsor.

7. On 13 March 2019, the applicant’s director Mr Augustine Le responded to the NOITTA (the response). It was submitted in the response that Ms Nguyen worked as a Massage Therapist for four years for the applicant while holding a subclass 457 visa. Ms Nguyen’s visa was about to expire in September 2017 so Mr Le asked his agent to apply for a Visitor Visa for Ms Nguyen who was going to holiday in Australia. Mr Le stated that she would not be working while holding a Visitor Visa.

8. The response stated that in late December 2017 Ms Nguyen’s finance, Mr Steve Turner informed Mr Le that he would be sponsoring Ms Nguyen as his spouse and that a migration agent had been engaged. Ms Nguyen asked Mr Le if she could return to work but he informed her she could not without a visa. Ms Nguyen showed Mr Le a text message from her migration agent advising that she would be able to work on a Bridging Visa and they all trusted the migration agent’s professional skill and diligence. On 8 January 2018, Ms Nguyen stated to work again with the applicant and Mr Le stated that they all believed that Ms Nguyen was able to work lawfully and were all shocked, on 14 June 2018, to hear that she had overstayed her tourist visa.

9. The response stated that subsequently, Mr Turner discovered that there migration agent had not lodged their spouse visa or and application for a Bridging Visa for Ms Nguyen. Additional documents and a statutory declaration of Mr Turner dated 8 March 2019 was provided to the Department confirming the facts set out in the response.

10. In the response Mr Le also stated that he was introduced to the Visa Entitlement Verification Online (VEVO) system by the Department which the applicant has now been using since 26 November 2018. The response also stated that to endure ongoing compliance with sponsorship obligations the applicant has implemented a policy that all new overseas workers will have to show their passports and complete a VEVO check before commencing employment.

11. The applicant’s director Mr Le, the UNC Ms Nguyen and her fiancé Mr Turner do not deny that Ms Nguyen was not lawfully working for the applicant at the time of the site visit her Visitor Visa had expired and she did not hold any other visa.

12. The meaning of adverse information is defined in regulation 1.13A, which is adverse information relevant to a person’s suitability to be an approved sponsor and includes information that the person, or a persons associated with the person, has been the subject of administrative action (including being issues a warning) by a competent authority, for a possible contravention of the law. Relevant matters include immigration and further the administrative action must have occurred within the previous 3 years.

13. The circumstances of this review were that the applicant was issued with an Illegal Worker Warning Notice on 13 September 2018 (the warning notice). The Tribunal is satisfied that the warning notice is an administrivia action in relation to a possible breach of the law and is a relevant matter being immigration law. Further, at the time of the decision made on 18 March 2019 less than 3 years had passed since the administrative action was taken. Therefore, the Tribunal finds that there was ‘adverse information’ known to Immigration about the applicant or a person associated with the applicant at the time of the decision. Since the Department issued the warning notice and then became aware of the ‘adverse information’, the applicant no longer satisfied reg 2.59(g)(i) for approval as standard business sponsor.

14. The Tribunal has next considered whether the applicant satisfies the alternative criterion in reg 2.59(g)(ii) as to whether it is reasonable to disregard the adverse information. In considering this, the Tribunal has had regard to the matters raised by the applicant in the repose and supporting information. Most of the response goes to explain why Ms Nguyen did not hold a visa. The Tribunal accepts that these are unfortunate set of circumstances, but it does not explain or excuse the applicant’s director, Mr Le from not checking Ms visa status more thoroughly particularly when the VEVO system is available.

15. For all the above reasons, and given the limited current evidence before it, the Tribunal has concluded that it is not reasonable to disregard the adverse information that became known to Immigration about the applicant or a person associated with the applicant. Therefore, the applicant does not satisfy reg 2.59(g)(ii).

16. As the Tribunal has found that the applicant no longer satisfies a requirement for approval as a standard business sponsor in reg 2.59(g), it follows that a prescribed circumstance in reg 2.91 exists for the purpose of s 140M of the Act.

Action to be taken

1. 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.

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

Nature of the applicable sponsorship criteria

1. The relevant criterion for approval of the sponsorship is whether there is no ‘adverse information’ known to Immigration about the applicant or an associated person or that it is reasonable to disregard the adverse information.

2. The Tribunal accepts that there is some discretion involved in determining whether the applicant no longer satisfies the criterion in reg 2.59(g)(i) given the alternative requirement about whether it is reasonable to disregard the adverse information.  The Tribunal has found that there was adverse information known to Immigration about the applicant or a person associated with the applicant. It has also concluded, after considering all the evidence before it, that it is not reasonable to disregard the adverse information.

3. The Tribunal considers that if the adverse information about the applicant employing an unlawful non citizen was known at the time of the application for approval as a standard business sponsor then the applicant may not have been approved as a standard business sponsor on 5 August 2017. The adverse information only came to the Department’s attention through an unannounced site visit on 14 June 2018. Further, the employment of an unlawful non citizen is serious as the provisions in the immigration legislation in relation to work rights for non citizens are to ensure that only people with work rights work in Australia. The response to the NOITTA mainly dealt with the reason why Ms Nguyen did not have a valid visa but did not address why the applicant was not checking all employee’s right to work including through the use of the VEVO system.

Whether, and the extent to which, the failure to continue to satisfy the criteria for approval as a sponsor has had a direct or indirect impact on another person

1. The applicant’s breach of sponsorship obligations has had a direct impact on Ms Nguyen and her fiancé, although the Tribunal notes that the greatest impact on their partner visa applicant o was the fact that their migration agent did not lodge the application.

2. The Tribunal considers that the applicant’s failure to continue to satisfy the criteria for approval as a sponsor may have had a direct impact on other sponsored workers, although there is nothing to indicate that the applicant has employed other UNCs or those who do not have work rights. The delegate’s decision, however, noted that as the applicant had sponsored seven Subclass 457 visa holders since December 2012 other similar errors may have occurred prior to the site visit on 14 June 2018.

3. There was a general reference in the response to the applicant’s business being severely affected by the ‘problem’. The Tribunal notes, however, that no further information was provided and that there is no evidence before it about the current circumstances of the applicant’s business and current employees.

The reason why the person no longer satisfies the sponsorship criteria including whether the failure was within the person's control

1. The Tribunal considers that the applicant could have had procedures in place to ensure all workers held current visas which also enabled them to work in Australia. The applicant did not have any such processes and procedures but relied on information from an employee which did not include sighting a current visa information.

The steps (if any) the person has taken to ensure that the person will satisfy the applicable criteria in the future

1. The Tribunal accepts that the applicant has now put into place new procedures which include ensuring that all new employees are checked against the VEVO system to ensure they hold a current visa and are able to work lawdully.

Other relevant factors

1. There is limited information before the Tribunal regarding any other factors relevant to the Tribunal consideration.

Conclusion

1. Having carefully considered all the circumstances as discussed above, the Tribunal considers that a sanction is warranted in this case. The delegate in this case imposed a 1-year bar on the applicant from sponsoring any more people under the terms of their current sponsorship agreement. The Tribunal is satisfied that this action is commensurate with the nature of the breaches in this case. The Tribunal considers that the 1-year bar should commence from the date of the delegate’s decision, meaning that the period of the bar has now ended.

2. For the above reasons, the Tribunal is satisfied that the action mentioned in s 140M(1) to bar the applicant until 14 March 2020 from sponsoring more people under the terms of the approved standard sponsorship agreement should be taken. Accordingly, the Tribunal will affirm the decision under review.

DECISION

1. The Tribunal affirms the decision under review.

Namoi Dougall
Member

ATTACHMENT – Extract from the Migration Regulations 1994

2.91   Application or variation criteria no longer met

…

1. 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 nature of the applicable sponsorship criteria that the person no longer meets; and

(b)    whether, and the extent to which, the failure to continue to satisfy the criteria for approval as a work sponsor or family sponsor, or to continue to satisfy the criteria for approval of a variation, has had a direct or indirect impact on another person; and

(c)     the reason why the person no longer satisfies the applicable sponsorship criteria, including whether the failure to satisfy the criteria is within the person’s control; and

(d)    the steps (if any) the person has taken to ensure that the person will satisfy the applicable criteria in the future; and

(e)     any other relevant factors.

…