Go Logistics Pty Ltd (Migration)

Go Logistics Pty Ltd (Migration) [2023] AATA 784 (30 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Go Logistics Pty Ltd
REPRESENTATIVE:  Mr Irfan Peerzada
CASE NUMBER:  2017472
HOME AFFAIRS REFERENCE(S):          OPF2020/8004
MEMBER:R. Skaros
DATE:30 March 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to take one or more of the actions specified in s 140M of the Migration Act 1958 (Cth).

Statement made on 30 March 2023 at 2:48pm
CATCHWORDS
MIGRATION – specified action in relation to sponsorship – sponsorship bar – failure to satisfy sponsorship obligations – providing records and information and ensuring sponsored person works in nominated occupation – move to new premises not notified – duties of accountant – transport company manager worked as delivery driver – COVID pandemic and need to deliver time-critical medical supplies and perishable items – few occasions only when drivers absent – travel to Central Coast depot and to meet with Newcastle agent – scope of business operations and COVID restrictions – essential services – subsequent position nomination and visa applications refused – accountant no longer working for applicant company – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 140L(1)(a), 140M
Migration Regulations 1994 (Cth), rr 2.82, 2.83, 2.84(3)(b)(ii), 2.86(2)(b), 2.89(2)
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.

The applicant was approved as a standard business sponsor on 21 February 2018 for a period of five years. On 13 November 2020, the delegate decided to bar the applicant for a period of two years from sponsoring more people under the terms of the approved sponsorship on the basis that the applicant had failed to satisfy a sponsorship obligation.
The Director, Mr Peter Volaris, appeared before the Tribunal on 2 March 2023 to give evidence and present arguments on behalf of the applicant. The Tribunal also received oral evidence from one of the sponsored employees, Mr Washimahamed Mohamed Uthuman.
The applicant was represented in relation to the review. The representative attended the hearing.
5.The Tribunal sets aside the decision under review and substitutes a decision not to take one or more of the actions specified in s 140M of the Migration Act 1958 (Cth).
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 Migration Regulations 1994 (Cth) (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?
10.In the present case, the circumstance identified by the delegate was the failure 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 the following sponsorship obligations:
·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.
13.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.
14.The applicant, as a standard business sponsor, successfully nominated a position in the occupation of Transport Company Manager in respect of Mr Uthuman. They also successfully nominated a position in the occupation of Accountant in respect of Ms Komang Putri Aning Suryawan.
15.Information received by the Department, which appeared to be from an anonymous source, alleged that Mr Uthuman was working illegally, however, the Department’s initial checks indicated that Mr Uthuman had been nominated by the applicant. Documents provided in relation to another application, including Mr Uthuman’s bank account and tax returns, also raised concerns that Mr Uthuman may be undertaking work that was not consistent with his nominated occupation of Transport Company Manager.
16.On 2 September 2020, an officer of the Department conducted a telephone interview with Mr Uthuman. Handwritten notes of the interview were placed on the Department’s file. The Tribunal also obtained a copy of the audio recording of the interview and has listened to it.
17.On 7 September 2020 the Department sent the applicant a notice under reg 2.83 requesting records and information for the purpose of ascertaining the applicant’s compliance with sponsorship obligations. The records and information requested relevantly included employment records for Mr Uthuman and Ms Suryawan, records of the tasks being performed by the sponsored persons and where those tasks were performed, and information about any changes to the circumstances of the business since approval of the sponsorship.
18.On 29 September 2020 the applicant’s former representative responded to the request by way of a written submission and supporting documents. The Department was informed that the business’s trading addresses were in Lidcombe NSW 2141 and Berkley Vale NSW 2261. The Department was informed that the business had moved in May 2020 to a warehouse that was four times larger than the previous premises due to significant growth in its operations. Photographs of the new business premises were provided to the Department. It was indicated that Mr Uthuman worked mainly at the Lidcombe warehouse, but that he also worked from the Berkley Vale warehouse when required. Also provided was information regarding the annual market salary for the nominated occupations, employment contracts, payroll advice, payslips issued, and superannuation payments pertaining to each of the sponsored employees.
19.On 9 October 2020 the Department issued to the applicant a Notice of Intention to Take Action (NOITTA) which contained details of the circumstances in relation to which action was being considered.
20.The delegate considered that the applicant had failed to satisfy their obligation in reg 2.83 as they were not satisfied that the response to the NOITTA contained the requested records of the tasks performed by the sponsored workers and where those tasks were being performed.
21.The delegate considered that the applicant had failed to satisfy their obligation in reg 2.84(3)(b)(ii) because they did not notify the Department of the change of business address. It was noted that during the interview with a visa holder (Mr Uthuman), the Department was informed that in May 2020 the applicant’s business moved from 10 Carter St Sydney Olympic Park NSW to Unit 4, 29-33 Carter St Lidcombe NSW. There was no evidence of the notification of the business’s change of address on the Department’s records.
22.The delegate also considered that the applicant had failed to satisfy their obligation in reg 2.86 as they had formed the view that Mr Uthuman was working mostly as a delivery driver, rather than in his nominated position of Transport Company Manager. The delegate relied on information from the interview with Mr Uthuman, in which he said he often used to assist delivering packages when delivery drivers failed to attend work at short notice. The delegate considered that Mr Uthuman should not have been undertaking this task as it was not included in his nominated job description. The delegate further noted that at the interview Mr Uthuman had also indicated he did not know the Immigration status of the delivery drivers even though his job description included “ensure drivers comply with administrative policies and procedures, safety rules and government regulations”. It was further noted that no evidence had been provided in response to the reg 2.83 notice to suggest that Mr Uthuman was doing any of the tasks of his nominated occupation. The delegate also raised the concern about the work that Ms Suryawan was undertaking, as they were not satisfied that the applicant had provided evidence in their reg 2.83 response of the tasks she was performing.
23.The applicant’s former representative provided a response to the NOITTA by way of written submissions and a letter from Mr Volaris. It was submitted that the applicant had not failed to satisfy sponsorship requirements and had always sought to do the right thing. It was submitted that the applicant’s business has been managed by two people (Mr Volaris and Mr Jim Raptis) who come from a very old traditional way of running a business, and that both nominated positions were important for the business and taking actions against the business would be detrimental to it.
24.Details of the relevant tasks, responsibilities, scope, purpose, and work location of the nominated positions were provided. It was submitted that both sponsored employees were working in their nominated occupations. However, due to the nature of the business, which included the need to deliver time critical freight such as medical supplies during COVID-19, Mr Uthuman had to deliver packages, though this only occurred on a few occasions due to the compelling and compassionate nature of the delivery, which was not done often. It was stated that Mr Uthuman mostly worked in the Sydney depot, although he also had to travel to their Central Coast depot and meet with their Newcastle agent when required. It was stated that for privacy reasons, only the Directors had knowledge of the Immigration status of the company’s workers.
25.On review, the Tribunal received written submissions from the applicant’s current representative, together with statements from the sponsored employees, a statement from the applicant’s co-director, Mr Raptis, employment contracts, map of the distance between the previous and current business locations and information about the tasks undertaken by the sponsored employees.
26.At the hearing, the Tribunal discussed with Mr Volaris the information set out in the NOITTA, and other evidence before it which raised concerns about whether the applicant had complied with their sponsorship obligations in regs 2.83, 2.84 and 2.86. Mr Volaris responded to those concerns and the Tribunal has had regard to those responses in its considerations below.
Consideration
27.The obligation in reg 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.
28.The evidence before the Tribunal is that the business’s main depot relocated to a larger warehouse in May 2020. It is not in dispute, and the applicant has accepted, that they did not notify the Department of their change of address within the prescribed period of 28 days.
29.The Tribunal has had regard to Mr Volaris’ evidence that the new location was on the same street, and that they had to move to larger premises due to growth in the business’s operations. The Tribunal has also had regard to Mr Volaris’ explanation that the business moved during the COVID-19 shutdown period, which was an extremely busy period for their business.
30.The Tribunal accepts that as a logistics (courier services) business, the applicant would have experienced significant growth and pressure on its delivery services during the pandemic. Logistics and delivery services were considered essential during the lockdown periods in the State of NSW, and the Tribunal accepts that this may have contributed to the applicant’s failure to notify the Department of their change of address.
31.The Tribunal has had regard to the reasons for the failure when considering what action (if any) to take, however, as the Department was not notified of the company’s change of address within the prescribed period of 28 days, it follows that the applicant has failed to satisfy their obligation in reg 2.84.
32.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 reg 2.82.
33.In this case, the delegate considered that the applicant had failed to provide the information requested regarding the tasks performed by the nominated persons and the location at which those tasks were being performed. At the hearing, the representative submitted that the applicant (through their former representative) had provided information about the tasks, including the contracts of employment, and in the case of Ms Suryawan, the financial documents provided were generated by her as the company’s Accountant. The Tribunal observed that there was nothing in the submissions to suggest that it was Ms Suryawan that had maintained the payroll ledger, generated the payslips or was responsible for the company’s financial reporting. The representative said this was set out in the tasks of the position attached to the contract of employment.
34.The Tribunal had regard to the contracts of employment and accepts that it included (as an attachment) a position description which set out the tasks and responsibilities of the sponsored employees. In respect of Mr Uthuman, it stated as follows:
Plan, organise and manage freight line operations in Sydney and Northern NSW (Central Coast & Newcastle) to ensure transportation schedules are optimised and service levels are maintained.
Identify customer requirements and advise on transportation schedules to suit their delivery needs.
Serve as contact persons for all drivers within assigned territories.
Direct investigations to verify and resolve customer complaints.
Implement transportation schedules based on customer orders received to maximise route efficiencies.
Implement policies to ensure goods are transported in a condition that preserves quality and integrity.
Monitor operations to ensure drivers comply with administrative policies and procedures, safety rules and government regulations.
Promote safe work practices by conducting safety audits and attending company safety meetings.
Monitor spending to ensure expenses are consistent with approved budgets.
Maintain operational records and reports, and analyse expenditure for the development of plans to improve service delivery and profits.
35.In respect of Ms Suryawan, it stated as follows:
Prepare profit and loss accounts, comparing the businesses outgoings with its income.
Prepare balance sheets, providing a snapshot of what the business owns and owes at a particular date.
Prepare cash flow statements, reviewing past cash movements, indicating when and how profits have been earned and determining the business’s future.
Prepare asset, liability, and capital account entries by compiling and analysing account information.
Document financial transactions.
Recommend financial actions by analysing accounting options.
Summarise current financial status by collecting information and regularly preparing balance sheet, profit and loss statement and other reports.
Maintain accounting controls by preparing and recommending policies and procedures.
Reconcile financial discrepancies by collecting and analysing account information.
Maintain financial security by following internal controls.
Prepare payments by verifying documentation, and requesting disbursements.
Answer accounting procedure questions by researching and interpreting accounting policy and regulations.
Comply with Federal, State and local financial legal requirements by studying existing and new legislation, enforcing adherence to requirements, and advising management on needed actions.
Prepare, when requested, special financial reports by collecting, analysing and summarising account information.
36.In written submissions, the former representative also referred to some of the attached financial documents when responding to the request for records that demonstrate the tasks being performed, however, it was not explained that these reports were prepared or generated by Ms Suryawan.
37.At the hearing, Mr Volaris explained that he and his co-director, operate the business in an old-fashioned way. They did not document every task performed or use emails to communicate with the staff. If a task needed to be done, it was communicated verbally. He indicated that what he understood from the request about the tasks and the location, was the tasks that were performed by the sponsored employees, which were those set out in the contract, and the location of the business, details of which they provided. The representative noted that the response to the Department included the new address and indicated that both employees worked at Carter St Lidcombe, though Mr Uthuman (when required) also worked at the Central Coast depot.
38.In considering the totality of the evidence, the Tribunal is satisfied that the applicant had complied with the request, as they understood it, for information about the tasks being performed and at which location. In covering submissions, the former representative provided details of the location at which each sponsored employee worked. Further, the tasks of the positions, which Mr Volaris indicated were those being performed by the sponsored employees, were also provided to the Department as part of the response. For these reasons, the Tribunal is satisfied that the applicant has complied with their obligation in reg 2.83 to provide the requested information.
39.Regulation 2.86 requires and approved sponsor to ensure sponsored employees work in the nominated occupation: reg 2.86(2)(a), and do not work in an occupation unless they were nominated for that occupation and the nomination has been approved by the Minister under s 140GB of the Act: reg 2.86(2)(b).
40.In relation to Ms Suryawan, the delegate was not satisfied that this sponsored employee was working as an Accountant on the basis that no evidence had been provided to demonstrate the tasks that were being performed. As noted above, the position description and tasks of the position were provided in response to the reg 2.83 request, as was a reference (albeit lacking in explanation) to the payroll and other financial documents, which the applicant has submitted were documents prepared and generated by Ms Suryawan. The Tribunal has also had regard to a statement from Ms Suryawan which was provided to the Tribunal with the review application, in which she stated that she has only ever worked for the applicant as an Accountant, and that she had never been asked by management to undertake tasks not consistent with that position. She stated that she was responsible for reconciling the company’s accounts, documenting financial transactions, and preparing financial statements, including profit and loss, balance sheet and cashflow statements on a regular basis. She was also responsible for ensuring compliance with reporting requirements and answering any queries relating to the accounts. At the hearing, Mr Volaris gave evidence regarding Ms Suryawan’s employment which was consistent with her having undertaken tasks associated with the occupation of Accountant. The Tribunal was informed that Ms Suryawan’s Subclass 482 visa ceased in September 2022 and that she has since resigned from the company.
41.Having regard to the totality of the evidence now before it, the Tribunal is satisfied that Ms Suryawan was working for the applicant in the nominated occupation of Accountant and did not work in any other occupation. The applicant has therefore met their obligation in reg 2.86 in respect of Ms Suryawan.
42.In relation to the employment of Mr Uthuman, who was nominated in the occupation of Transport Company Manager, the applicant does not dispute that Mr Uthuman had undertaken driving/delivery tasks, however, it was contended that this occurred infrequently, during the COVID-19 pandemic, and where the delivery of packages was time critical, e.g., medical supplies or perishables.
43.At the hearing, Mr Volaris gave evidence about the operations of the business and Mr Uthuman’s role. He said the applicant has two depots: the main warehouse in Lidcombe and a smaller warehouse in the Central Coast. Incoming freight is taken to the depots for sorting and allocation based on planned routes. The applicant has about 20 employees and 120 contractors. They have contracts in place with several business clients, including large corporates, medical services/supplies, dental laboratories, and stationery businesses. They also have casual clients who book pickup/delivery services online or by calling the call centre.
44.In describing the responsibilities and tasks of Mr Uthuman’s role, Mr Volaris said he mainly works in the Lidcombe depot and sometimes in the Central Coast, he manages the delivery operations, including planning the pickup/delivery routes, the drivers’ schedules and ensuring that items are assigned to the correct runs (routes). He said Mr Uthuman is also responsible for dealing with any accidents and breakdowns, including arranging substitute drivers on short notice. He said Mr Uthuman is responsible for overseeing the OH&S procedures in the depots and liaising with customers to resolve pickup/delivery issues and complaints.
45.In relation to the delivery tasks undertaken by Mr Uthuman, Mr Volaris said that this only occurred during the COVID-19 restrictions period, which was a very difficult and strange time for them. He said they found it difficult to keep up with the rules and restrictions, which were changing every day and there was a very high demand on their services. They had medical supplies and perishable items in the depot which were time critical and everyone in the depot, including himself, was called upon to assist if a replacement driver could not be organised in time. He acknowledged that the delivery of goods was not part of Mr Uthuman’s nominated role but said that this was done rarely and in very difficult circumstances. He said Mr Uthuman has not undertaken any delivery or driving tasks since the COVID-19 restrictions ended.
46.Bank statements for Mr Uthuman indicated that he was regularly in the Central Coast area, and that he had, on a few occasions, received some funds from Airtasker and Uber. In responding to the Tribunal’s observations, which raised concerns about whether Mr Uthuman may have been undertaking a delivery route in the Central Coast area and/or was working in the gig economy contrary to the position for which he was nominated, Mr Volaris said Mr Uthuman had to regularly attend their Central Coast depot, they had a number of established clients there and Mr Uthuman would regularly go to meet with them. Mr Volaris was not aware whether Mr Uthuman had undertaken jobs through Uber or Airtasker. He indicated that Mr Uthuman worked for the company on a full-time basis.
47.In his evidence to the Tribunal, Mr Uthuman described the tasks he undertook on a day-to-day basis, which were entirely consistent with the evidence given by Mr Volaris. Mr Uthuman said he was required to travel to the Central Coast to sort out issues that arose, including speaking with drivers and meeting with customers in the Central Coast and Newcastle.
48.In relation to the funds from Uber shown on his account, Mr Uthuman said he only did this about once or twice. As to funds received from Airtasker, Mr Uthuman claimed that his friend used his bank account to receive the funds. The Tribunal queried why his friend would not use his own bank account, to which Mr Uthuman responded that his friend had newly arrived in Australia and did not yet have his own account. The Tribunal accepts that Mr Uthuman completed only a few Uber jobs, as this is supported by the information on the available bank statements. As to Mr Uthuman’s explanation that his friend used his bank account to receive funds from Airtasker, the Tribunal has some doubts as to the credibility of that evidence, but it was not necessary to pursue that issue, given the amounts shown on the statements were not substantial and related to few transactions.
49.The Tribunal also had regard to the oral evidence given by Mr Uthuman during his interview with the Departmental officer. When asked about his role, he said he was the Transport Manager for Go Logistics (the applicant) and that his responsibilities included overseeing the drivers, managing their schedules, dealing with paperwork and arranging replacement drivers. When asked about how he gets to work, his work hours and whether he was offered work from home, Mr Uthuman said he drives to work and parks his car in the parking lot, his working hours are 9:00am to about 5:00pm or 6:00pm, Monday to Friday. He said he does not work on weekends, and is required to attend the office, to which he has an access key. When asked about his background and experience, Mr Uthuman said he has a Master of Business Administration in Logistics which he completed in 2012 in India. He said he has only ever worked for the applicant as a Transport Manager and that he looks after 105 drivers. When asked about the visa status of the drivers, Mr Uthuman said he did not know that information, but that Mr Volaris would have a record of this.
50.Of significance, the Departmental officer asked Mr Uthuman whether he helped out with deliveries “if they were short of manpower”, to which the applicant replied, “yes, if we’re short of manpower, then I do”. He was then asked how often that would be, to which Mr Uthuman replied, “it’s very often that the driver didn’t give any notice [sic] he just left the job, then [sic] very difficult time, so at that time I had to be a support for my company, so I do sometimes, like very rare, not all the time”. The officer then said, “so yeah, if doesn’t turn up to work”, to which Mr Uthuman replied, “yeah, yeah, doesn’t turn up to work, doesn't give any notice, and it’s going to be like problem for us, two to three days until we fixed the problem, so we just have to help”. In the written notes the Departmental officer observed that Mr Uthuman did not appear to be driving when he was contacted, had answered the call immediately and there was no road noise.
51.In their summary of the interview, the Departmental officer’s written notes recorded that Mr Uthuman said he helps deliver parcels if the drivers are absent without notice which happens often. The delegate appears to have relied on the written notes to form the view that Mr Uthuman often (frequently) delivered parcels. However, having listened to the audio recording, and having regard to other evidence before it, the Tribunal formed the view that the reference to “often” by Mr Uthuman related to when drivers did not turn up without notice. The Tribunal also formed the view, that Mr Uthuman said that when this occurred, it was a difficult time for the company and “we just have to help out”, though he did so “very rarely, not all the time”, suggesting (as explained by Mr Volaris) that everyone in the company (not just Mr Uthuman) assisted with urgent deliveries, and while Mr Uthuman had also assisted with deliveries, this occurred infrequently.
52.The Tribunal has considered the representative’s submission that undertaking deliveries for the sponsor could be subsumed within the tasks of the approved nominated position, including monitoring and managing all deliveries, ensuring transportation schedules were optimised and ensuring goods are transported in a condition that preserves quality and integrity. The Tribunal does not accept this submission. The Tribunal considers these tasks (as they appear in the position description) relate to the development and planning of delivery routes, and the implementation of policies and procedures in respect of the transport of goods, which are managerial higher-level tasks, whereas the task of driving and delivery of goods is an operational (manual) task which, in the Tribunal’s view, aligns with tasks associated with the lower skill level occupation of Delivery Drivers (ANZSCO Unit Group 7321 – Skill level 4).
53.The Tribunal considers the driving and delivery tasks undertaken by Mr Uthuman during his employment with the applicant, as the holder of a Subclass 482 visa, were not consistent with the approved nomination occupation of Transport Company Manager and align more closely with the tasks of the occupation of Delivery Driver. For these reasons the Tribunal considers that the applicant has failed to ensure that Mr Uthuman does not work in an occupation for which he has not been nominated. For these reasons, the Tribunal finds that the applicant has failed to satisfy their obligation in reg 2.86(2)(b).
54.The Tribunal, however, accepts that the driving and delivery tasks undertaken by Mr Uthuman were infrequent and in exceptional circumstances. The Tribunal acknowledges that the COVID-19 pandemic and the prolonged periods of lockdown in NSW were extraordinary and unusual. The government had issued lockdown directives and businesses were required to adjust to meet changing demands. The Tribunal accepts that it was a particularly stressful and unusual time, and that rules and policies were constantly changing. The difficulties encountered by businesses, particularly in NSW which experienced protracted periods of lockdown, was acknowledged by the government and numerous concessions were made to assist businesses (particularly those considered essential) to continue to operate during the lockdown periods. The applicant’s business services, which included logistics, parcel delivery and courier services was in very high demand at the time and the Tribunal accepts that this gave rise to exceptional circumstances, such as the urgent delivery of medical supplies, perishable goods and time sensitive goods, which from time-to-time required reliance on all staff, including Mr Uthuman, to assist with the delivery of these goods. The Tribunal has taken these circumstances into account when considering what actions, if any, should be taken.
55.For the sake of completeness, and for the purpose of informing future applications made by the applicant and/or Mr Uthuman, the Tribunal makes the following findings in relation to the tasks typically undertaken by Mr Uthuman during his employment with the applicant, whilst he held the Subclass 482 visa and to date. The Tribunal is satisfied on the totality of the evidence before it that, but for the occasions on which he had to assist with urgent deliveries, Mr Uthuman’s day to day tasks generally included planning and organising delivery routes for over 100 drivers, managing the drivers and delivery schedules, communicating with customers, maintaining records and ensuring compliance with OH&S procedures. The Tribunal is satisfied that these tasks, in the context of the applicant’s business, are consistent with the tasks of a Transport Company Manager.
56.Having found that the applicant has failed the sponsorship obligations in regs 2.84 and 2.86(2)(b), the Tribunal is satisfied 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.
The past and present conduct of the person in relation to Immigration
The applicant (via their former representative) responded to the request for information under reg 2.83 and responded to the NOITTA. There is no information before the Tribunal which suggests that the applicant has not been cooperative with the Department.
The number of occasions on which the person has failed to satisfy the sponsorship obligation
As found above, the applicant has failed to satisfy the obligation in reg 2.84 on one occasion. Accepting Mr Volaris’ evidence regarding the number of times Mr Uthuman was required to undertake deliveries for the applicant, the Tribunal finds that the applicant failed to satisfy the obligation in reg 2.86(2)(b) in relation to Mr Uthuman on about four or five occasions.
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 applicant’s business relocated in May 2020. The Department did not become aware of the change of address until monitoring commenced in September 2020. The period over which the failure occurred was at least three months.
The Tribunal considers the obligation to notify of change of address, as required by reg 2.84, to be an important one, as it informs the Department of the location at which nominated persons should be working and enables them to conduct monitoring activities, including site visits, to assess compliance with sponsorship obligations.
In relation to the failure in reg 2.86, the Tribunal accepts that the deliveries made by Mr Uthuman were infrequent and were undertaken during the COVID-19 lockdown period when the applicant was under extreme pressure and required to deliver time sensitive packages.
The period of time over which the person has been an approved sponsor
The applicant was most recently approved as a sponsor on 21 February 2018 for a period of five years.
Whether, and the extent to which, the failure to satisfy the sponsorship obligation has had a direct or indirect impact on another person
The applicant’s failure to satisfy the sponsorship obligations had a direct impact on Mr Uthuman, whose subsequent Subclass 482 visa application was refused on 24 June 2021 because he was not the subject of an approved nomination.
The associated nomination, which was made by the applicant on 24 May 2020, was refused on 15 May 2021 on the basis that there was adverse information, as defined in reg 1.13A, known to Immigration about the applicant and that it was not reasonable to disregard the information. The failure to satisfy the sponsorship obligations, which resulted in the applicant being barred for a period of two years, resulted in Mr Uthuman’s subsequent Subclass 482 visa application being refused.
Whether, and the extent to which, the failure to satisfy the sponsorship obligation was intentional, reckless or inadvertent
In relation to the sponsorship obligation in reg 2.84 to notify the Department of their change of address, the Tribunal accepts, as explained by Mr Volaris at the hearing, that the business moved premises during the COVID-19 lockdown period, which was a stressful and unusual time, and that the failure to notify the Department was an unintentional oversight on the part of the applicant.
As to the failure in reg 2.86 in relation to Mr Uthuman, the Tribunal accepts that the delivery/driving tasks undertaken by Mr Uthuman were infrequent and during extraordinary circumstances, and that there was no intention on the part of the applicant to wilfully breach their sponsorship obligation.
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 throughout the monitoring process.
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.
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, being the failure to notify the Department within 28 days of the business relocating and ensuring the sponsored person (Mr Uthuman) does not work in an occupation for which he has not been nominated, the applicant would not be able to take any steps to rectify these types of failures after the fact. The Tribunal does, however, acknowledge that the applicant has taken steps to ensure that these failures do not occur in future.
The processes (if any) the person has implemented to ensure future compliance with the sponsorship obligation
72.At the hearing, Mr Volaris gave evidence that Mr Uthuman had not undertaken any delivery tasks since the COVID-19 restrictions ended. Mr Volaris acknowledged the importance of compliance with sponsorship obligations and said he has taken the responsibility for ensuring that sponsorship obligations are complied with in future.
73.The Tribunal is mindful that the non-compliance occurred during the COVID-19 restriction periods, which has to a great extent contributed to the applicant’s failure to comply with their obligations. These restrictions have now lifted, and Mr Volaris has undertaken to ensure the applicant complies with obligations if they are approved as a standard business sponsor in future.
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 to have been satisfied by the applicant, the Tribunal is not aware of any other sponsorship obligations that the applicant has failed to satisfy.
Any other relevant factors
75.At the hearing, Mr Volaris said that the sponsored employees have been reliable and loyal and had worked for the business in the positions nominated. He said Ms Suryawan ceased working for them as she thought they would not be able to extend her visa following the bar placed on the company by the Department. He said they have complied with their obligations as employers, including paying all taxes and superannuation on time. He said the business has been growing between 18-20% every year for the past 18 years, with their most recent annual turnover being about $23 million. He said it has been a big learning curve for him and his business partner, but they now operate a very profitable business which has 19 employees and over 120 contractors. Mr Volaris said they are a business that always tries to do the right thing, and he got quite upset when he realised that the bar placed on the business would adversely affect the sponsored employees.
Conclusion
76.In this case, the delegate decided to impose a bar from sponsoring more people under the terms of the applicant’s approved sponsorship for a period of two years. If the applicant was still an approved sponsor at the time of this decision, the Tribunal would have considered varying the delegate’s decision, as provided for in s 349(2)(b), by reducing the period of the bar. In the Tribunal’s view, a significant reduction in the period of the bar would have been more commensurate with the nature of the non-compliance, which the Tribunal has found to be not intentional and occurred in extraordinary circumstances. However, at the time of this decision, the applicant has ceased to be an approved sponsor; it is therefore not open to the Tribunal to take any of the actions in s 140M(1) which relate to approved sponsors. The only actions the Tribunal can take in this matter are those specified in s 140M(2).
77.Section 140M(2) provides for actions that may be taken in relation to former approved sponsors, and this includes barring the person, for a specified period, from making future applications for approval as a sponsor. The Tribunal did not consider it appropriate, having regard to all the relevant circumstances, to impose any future sanctions on the applicant.
78.As the Tribunal is not authorised under the Act to take any of the actions in s 140M(1), and as it does not consider it appropriate to impose any future sanctions on the applicant, the Tribunal has decided to set aside the decision under review and substitute a decision not to take one or more of the actions specified in s 140M of the Act.
DECISION
79.The Tribunal sets aside the decision under review and substitutes a decision not to take one or more of the actions specified in s 140M of the Migration Act 1958 (Cth).
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.
…

[2023] AATA 784

30 March 2023

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Immigration

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