Grace Worldwide (Australia) Pty Ltd (Migration)

Grace Worldwide (Australia) Pty Ltd (Migration) [2022] AATA 4665 (21 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Grace Worldwide (Australia) Pty Ltd
REPRESENTATIVE:  Ms Sarah Loch-Wilkinson
CASE NUMBER:  2009231
HOME AFFAIRS REFERENCE(S):          BCC2016/1590311
MEMBER:R. Skaros
DATE:21 December 2022
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 21 December 2022 at 2:39pm
CATCHWORDS
MIGRATION – sponsorship cancellation or bar – record keeping obligations – providing information to Immigration – sponsored person working in the nominated occupation – international movement of skilled Importer/Exporter workers – no reporting of nominee ceasing employment – new monitoring policies and processes ensuring future compliance – no influence over the nominee’s conduct post-employment – decision under review set aside
LEGISLATION
Migration Act 1958, s 140
Migration Regulations 1994, Schedule 8, Condition 8107; rr 2.84, 2.86, 2.89-2.94, 2.96
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 most recently approved as a standard business sponsor on 15 June 2016 for a period of 5 years. On 20 May 2020, the delegate decided to cancel the applicant’s approval as a standard business sponsor under s 140M on the basis the applicant had failed to satisfy the sponsorship obligations in regs 2.84 and 2.86.
The applicant’s Group Human Resources Manager, Ms Fiona Palmer, appeared before the Tribunal by videoconference on 6 December 2022 to give evidence and present arguments.
The applicant was represented in relation to the review. The representative attended the hearing in person.
The Department’s file included a non-disclosure certificate under s.375A of the Act in respect of various documents. The certificate indicates that disclosure of the documents, other than to the Tribunal, would be contrary to public interest because they contain information that would, if disclosed, likely prejudice the ongoing effectiveness of lawful methods for preventing, detecting, and investigating breaches or evasions of the law. A copy of the certificate was provided to the applicant’s representative prior to the hearing. At the hearing the Tribunal invited Ms Palmer and the representative to comment on the validity of the certificate. After some discussion, and the Tribunal’s explanation that the certificate appeared to provide a valid public interest reason and that any adverse information would still need to be disclosed to the applicant for comment, the representative indicated they had no issue with the validity of the certificate.
The Tribunal is satisfied that the non-disclosure certificate issued under s.375A is valid as it provides a public interest reason for the non-disclosure of the specified documents. The Tribunal has also had regard to the information contained in the documents covered by the certificate and is satisfied that the information, in as far as it is relevant to the issues in the review, was disclosed to the applicant in the Notice of Intention to Take Action (NOITTA) and was set out in the delegate’s decision record.
7.For the following reasons, 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Sections 140K, 140L and 140M of the Act provide for the imposition of sanctions on approved sponsors in certain circumstances.
Under s 140M, if prescribed circumstances exist, the Minister (and the tribunal on review) may take one or more of the following actions:
·cancelling the sponsorship approval in relation to a class to which the sponsor belongs;
·cancelling the sponsorship approval for all classes to which the sponsor belongs;
·barring the sponsor for a specified period from sponsoring more people under the terms of any existing approval; and
·barring the sponsor for a specified period from making future applications for sponsorship approval in relation to one or more classes of sponsor.
For these purposes, the circumstances are prescribed in regs 2.89–2.94B and include circumstances in which the Minister, or tribunal on review, is satisfied there has been: a failure to satisfy a sponsorship obligation; provision of false or misleading information; sponsorship application or variation criteria no longer met; a contravention of the law; unapproved changes to a program; a failure to pay additional security; a failure to comply with certain terms of an agreement; or a failure to pay medical and hospital expenses.
Where a prescribed circumstance has been found to exist, the regulations prescribe criteria that must be taken into account when determining what action, if any, to take: regs 2.89–2.94B. These criteria, as they relevantly apply to the circumstances of this case are set out in the attachment to this decision.
Does a circumstance for the taking of an action exist?
In the present case, the delegate found that the applicant failed to satisfy a sponsorship obligation.
Failure to satisfy a sponsorship obligation: reg 2.89
The Minister may take one or more of the actions in s 140M if satisfied the sponsor has failed to satisfy a sponsorship obligation referred to in Division 2.19 of the Regulations: reg 2.89(2).
The delegate considered that the applicant had failed to satisfy one or more of the following sponsorship obligations:
·Reg 2.84 Obligation to provide information to Immigration when certain events occur; and
·Reg 2.86 Obligation to ensure primary sponsored person works or participates in the nominated occupation, program or activity.
In determining whether the applicant has failed to satisfy a sponsorship obligation, the Tribunal has had regard to the relevant evidence before it as follows.
The applicant is a subsidiary of Grace Holdings Ltd, which is one of the largest relocation, logistics and information management operators within Australasia with more than 1000 employees. The wholly owned Grace Group network has fully operational offices and specialist warehousing facilities in every Australian state and territory, as well as in New Zealand. It was submitted that their international corporate mobility team services 128 corporations across Australia.
17.The applicant’s core business is managing the movement of people and goods. It was submitted that the logistics involved in international movement often requires the transfer or hire of their own skilled workers with niche skills and knowledge in international customs and laws, or the marketing, management, and network expertise to ensure business success in this highly competitive industry.
18.The applicant was initially approved as a standard business sponsor since 2013, and most recently approved as sponsor on 15 June 2015.
As an approved sponsor, the applicant had several nominations approved, including a nomination in the occupation of Importer/Exporter (ANZ 133311) in relation to Ms Ms Gina Marie-Claire Monguia. The associated Subclass 457 visa for Ms Monguia was granted on 20 September 2016 for a period of 4 years.
In February 2020, Australian Border Force (ABF) commenced monitoring the applicant. As part of that process, on 19 February 2020, ABF officers conducted a site visit at the applicant’s principal place of business in Hallam Victoria. Information in the NOITTA indicates that ABF officers interviewed the Branch Manager, Ms Michelle Gilchrist, who advised that she had no knowledge of Ms Monguia’s employment with the business. When shown a photograph of Ms Monguia, Ms Gilchrist was unable to identify her. Ms Gilchrist also advised that she manages the Melbourne office and that within the international team of the Melbourne office, the positions of Importer/Exporter had been occupied by the same staff members for over seven years.
21.Information available to the Department also indicated that Ms Monguia had been participating in various forms of acting roles for other organisations that were not associated with the applicant.
22.In response to a request for information and documents, the applicant advised the Department that Ms Monguia had ceased employment with them on or about 13 October 2017. The NOITTA indicates that the Department had no record of the applicant advising the Department (within the prescribed timeframe) that Ms Monguia’s employment with the applicant had ceased.
23.Based on the above information, the delegate considered that the applicant had failed to comply with their sponsorship obligation in reg 2.84 to notify the Department when certain events occur and reg 2.86 to ensure that the sponsored person (Ms Monguia) worked only in the occupation for which she was nominated. A NOITTA was issued to the applicant on 17 March 2020 under reg 2.96 of the Act.
24.The delegate’s decision record indicates that the applicant did not respond to the NOITTA. Consequently, the delegate proceeded to a decision on the information before them, which resulted in the cancellation of the applicant’s approval as a standard business sponsor.
25.On review, the Tribunal received a submission from the applicant’s Finance Director, dated 1 June 2020, together with supporting documents. The documents included a copy of the response to the NOITTA from the former Group HR Manager, which the Tribunal notes was not received by the Department before the primary decision was made, and an employment contract and payslips for Ms Monguia.
26.It was submitted that the applicant holds their relationship with ABF in the highest regard and it was not their intention to not respond to the NOITTA. They claimed to have sent the response on 7 May 2020, but due to IT issues, the email did not transmit, and they only became aware of this upon receiving delegate’s decision. It was submitted that the applicant had introduced several new policies and processes regarding the tracking, recording and monitoring of staff on work visas and ensuring future compliance.
27.In response to their obligations in reg 2.84, it was submitted that while they had initiated an internal process to notify the Department of Ms. Monguia’s cessation of employment within the required timeframe, they have no copy of the actual letter, and the staff involved have since left the business. The applicant acknowledged that the onus was on them to prove the notification was in fact sent and the failure to demonstrate this was an error on their part. It was submitted that the applicant now has policies in place to ensure this would not occur again in the future. It was submitted that the company moved to “Kronos”, a sophisticated human resources information system, and they are confident that the required actions will be taken under this system, and that they will hold a verifiable audit trail to confirm the facts should an audit take place at any time.
28.In relation to the obligation in reg 2.86, it was submitted that there were no changes to Ms. Monguia’s role until her resignation in October 2017. Ms Monguia was employed in the title of Mobility Specialist (Import/Export) and looked after the imports and exports part of one division of the business. It was submitted that Ms Gilchrist, whom ABF officers interviewed, would have no knowledge of Ms. Monguia’s past employment nor access to her past employee file, as Ms. Monguia did not work in Melbourne branch office. She worked in a different department, located in a different part of the building in the Mobility Imports/Export division, which is part of the applicant’s head office, not the branch team. Also, Ms Gilchrist only commenced with sponsor in March 2019, long after Ms Monguia’s departure.
29.In recent submissions received by the Tribunal, dated 5 December 2022, the applicant’s representative further submitted that Ms Monguia was employed with the applicant on a fulltime basis in the nominated occupation, however, once she had ceased employment with the applicant, they could not have exercised control over her movements or actions, and that unbeknown to them, Ms Monguia chose to remain in Australia and undertake other activities rather than depart.
30.At the hearing, Ms Palmer gave evidence that the applicant takes their sponsorship obligations very seriously and that there was always an intention on the part of the applicant to notify the Department of Ms Monguia’s cessation of employment. Ms Palmer referred to the evidence provided, which included emails between different staff within the applicant’s HR team, including Ms Salisbury (Mobility Services Manager), Ms Gibson (Senior Employee Officer), and Ms Wallace (Human Resources Manager), indicating that in October 2017 the HR team was aware of the sponsorship obligation to inform the Department of Ms Monguia’s cessation of employment. Unfortunately, in that instance, the task of notifying the Department “slipped through the cracks” as it was unclear to whom the task had eventually been assigned. Ms Palmer stated that the applicant has now implemented procedures to ensure this does not occur in future.
31.In relation to the employment of Ms Monguia in the nominated occupation, Ms Palmer gave evidence about the applicant’s business operations and the tasks of the position of Importer/Exporter within the business. The Tribunal has also had regard to the supporting evidence provided, including the employment contract, payslips, emails, and other material which confirms Ms Monguia’s employment as an Importer/Exporter with the applicant up until October 2017. The Tribunal accepts on the evidence before it that the applicant operates a relocation and logistics business, which involves managing the movement of people and goods. The Tribunal also accepts that the position of Importer/Exporter is a genuine role within the applicant’s business and that Ms Monguia had worked in that position, and undertook tasks consistent with that occupation, up until she ceased her employment with the applicant in October 2017.
32.In relation to the evidence of Ms Gilchrist, the Tribunal accepts the explanation that Ms Gilchrist, who commenced employment with the applicant in 2019 and was the manager at the Melbourne office, would not have had knowledge of Ms Monguia or her employment given Ms Monguia had ceased working some two years prior (in 2017) and worked in a different division of the business.
33.Other evidence before the Tribunal, including a Linked-in profile for Ms Monguia indicates that she was working with the applicant until October 2017, after which she became involved in acting roles for a Netflix series. There is no evidence before the Tribunal which suggests that Ms Monguia was undertaking these acting roles at the time as she was employed by the applicant.
34.The Tribunal considers that, in the circumstances of this case, the obligations in regs 2.84 and 2.86 are inextricably linked. If the Department had been notified, within the prescribed period, of Ms Monguia’s cessation of employment, as required by reg 2.84, then Ms Monguia’s subsequent conduct (of not working in the nominated occupation and engaging in other activities), may not have been the responsibility of the applicant, as the Department would have likely taken action to regularise Ms Monguia’s visa status. The Tribunal considers that the obligation in reg 2.86 in relation to the employment of Ms Monguia continued to apply to the applicant up until Ms Monguia’s Subclass 457 visa ceased to be in effect, which, unfortunately for the applicant did not occur until 20 August 2020, when Ms Monguia’s Subclass 457 visa was cancelled.
Obligation to provide information to Immigration when certain events occur: 2.84
35.The obligation in r. 2.84(3)(a) requires a sponsor to notify the Department when certain events occur including information about the cessation, or expected cessation, of a primary sponsored person’s employment with the sponsor. The applicant is required to notify the Department in a specified manner and within the specified timeframe of 28 days.
36.While the Tribunal accepts that the applicant was aware of their obligations under reg 2.84, and had intended to comply, the Tribunal finds on the evidence before it, and the applicant has conceded, that this sponsorship obligation had not been complied with. On this basis, the Tribunal finds that the applicant has failed to satisfy the sponsorship obligation in reg 2.84.
Obligation to ensure primary sponsored persons work in the nominated occupation: r.2.86
37.In this case Ms Monguia was nominated by the applicant to work in the occupation of Importer/Exporter. The Tribunal is satisfied on the evidence before it that Ms Monguia worked only in the nomination occupation with the applicant up until the cessation of her employment on or about 13 October 2017. The evidence before the Tribunal indicates that Ms Monguia, whilst still the holder of the Subclass 457 visa, ceased employment with the applicant and undertook other activities/work, including acting roles, which were not related to the nomination occupation or for an entity associated with the applicant. On this basis, the Tribunal finds that the applicant has failed to satisfy the sponsorship obligation in reg 2.86.
38.Given the above, the Tribunal finds that the prescribed circumstance in reg 2.89 exists for the purpose of s 140M of the Act.
Action to be taken
For these reasons, the Tribunal is satisfied that a relevant circumstance for s 140L(1)(a) exists. Accordingly, it is necessary to consider whether one or more of the actions mentioned in s 140M should be taken.
In considering what action to take, the Tribunal has had regard to the prescribed criteria, as extracted in the attachment to this decision.
The past and present conduct of the person in relation to Immigration
The delegate indicated that the sponsor had been co-operative throughout the monitoring process. It was however noted that they had not provided a response to the NOITTA. The Tribunal accepts, on the evidence before it that a response to the NOITTA had been prepared, together with the requested supporting documentation, but that due to IT issues, the submissions did not transmit, and this was not subsequently checked by staff.
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 regs 2.84 and 2.86 on one occasion in each instance.
The nature and severity of the circumstances relating to the failure to satisfy the sponsorship obligation, including the period of time over which the failure has occurred
In relation to the obligation in r.2.84, the applicant failed to notify the Department of Ms Monguia’s cessation of employment within the prescribed period of 28 days. The Tribunal accepts that the applicant intended to comply with this obligation, as evidence by the contemporaneous correspondence between members of the applicant’s HR Team, but had not done so due to a failure on the part of HR staff to send the required notification.
The failure to notify the Department of Ms Monguia’s cessation of employment with the applicant, prevented the Department from taking the necessary action, which would have included communicating with Ms Monguia about her visa, the conditions imposed on that visa and taking action to regularise her status accordingly. The Tribunal considers this failure to be significant as it allowed Ms Monguia to remain in Australia as the holder of a Subclass 457 visa, which was attached to a nomination made by the applicant, even though she was not fulfilling the purpose for which that visa was granted. The Tribunal notes that the Department only became aware of this failure after the monitoring process was commenced.

In relation to the obligation in reg 2.86, the Tribunal considers that this was only breached after Ms Monguia had ceased employment with the applicant (in October 2017), and that the applicant would have had no influence over Ms Monguia’s movements or conduct after she had ceased employment with them. The Tribunal also considers that this obligation was breached due to the same failure that led to the breach of reg 2.84, being the failure to notify the Department of the cessation of employment of Ms Monguia. Had the Department been promptly notified, Ms Monguia’s status would have been regularised and the applicant’s employment related obligations in respect of Ms Monguia would not have continued.
The period of time over which the person has been an approved sponsor
The applicant was most recently approved as a sponsor on 15 June 2016 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 Tribunal considers that the applicant’s failure to satisfy the sponsorship obligations had a direct impact on Ms Monguia.
The applicant’s failure to notify the Department of the cessation of Ms Monguia’s employment within 28 days resulted in Ms Monguia remaining in Australia as the holder of a Subclass 457 visa, which had condition 8107 (work only for approved sponsor in nominated occupation) imposed on it. Had the Department been informed of Ms Monguia’s cessation of employment, they would have taken action to regularise Ms Monguia’s visa status. In this case, Ms Monguia remained in Australia and undertook activities (not relevant to her nominated occupation) with another organisation, in breach of visa condition 8107.
Whether, and the extent to which, the failure to satisfy the sponsorship obligation was intentional, reckless or inadvertent
The Tribunal does not consider that the applicant’s failure to satisfy their sponsorship obligations was intentional, however, it does consider the applicant to be reckless in not ensuring that the compliance requirements had been actioned and checked by the responsible staff members.
In relation to the obligation in reg 2.84, the Tribunal accepts that the applicant was aware of the obligation to notify the Department of Ms Munguia’s cessation of employment and accepts that they intended to inform the Department accordingly. However, it appears that the task of notifying the Department was not actioned by the applicant’s HR team. The Tribunal considers it the applicant’s responsibility to ensure that critical notifications were properly actioned by the relevant staff and that the relevant records were kept as part of their compliance obligations.
In relation to the obligation in reg 2.86, as found above, The Tribunal is satisfied that Ms Monguia, during her employment with the applicant, was working in the nominated occupation. Ms Monguia’s subsequent conduct, including her decision to remain in Australia and undertake activities that were not consistent with her nominated position, was not a factor within the control of the applicant. The Tribunal considers that this failure was an inadvertent consequence of the applicant’s reckless failure to notify the Department of the Ms Monguia’s cessation of employment.
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 was cooperative with the Department. The Tribunal accepts that the applicant had prepared a response to the NOITTA, but that due to IT issues the response failed to send. It is unfortunate that no checks were subsequently made to ensure that the response had been successfully sent, as this may have avoided the consequence of the applicant’s sponsorship being cancelled by the Department.
The evidence before the Tribunal indicates that the Department was not informed of the failure to comply with the sponsorship obligations, and that the Department 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, including the failure to notify the Department within a specified period of certain events and ensuring the sponsored person (Ms Monguia) works only in the nominated occupation whilst holding the associated Subclass 457 visa, the applicant would not be able to take steps to rectify these types of failures. The Tribunal does however acknowledge that the applicant has taken steps to ensure these failures do to occur in future.
The processes (if any) the person has implemented to ensure future compliance with the sponsorship obligation
The Tribunal has received detailed submissions and supporting evidence regarding the applicant’s future compliance with sponsorship obligations.
56.It was submitted that the applicant has implemented a sophisticated Kronos HR management software system. A copy of the workflow process that is in place when a new employee commences with the applicant was provided to the Tribunal. It was submitted that the detailed management system will be used to ensure compliance with the applicant’s sponsorship obligations. It was submitted that the Kronos system was implemented in August 2019 and allows for detailed visa information to be entered and tracked. It was further submitted that the Kronos system has the capability to instigate notifications for senior managers regarding specific employees and that the applicant will be working with their immigration advisors to implement the required software amendments to ensure that, when certain events occur, a notification is sent to the HR Group Manager (Ms Palmer) to ensure that sponsorship notifications will not be missed.
At the hearing, Ms Palmer provided detailed evidence regarding the Kronos system and the information that will be collated from non-citizen employees prior to commencement of employment. Ms Palmer stated that they also had in place initial and ongoing checks of VEVO (Visa Entitlement Verification Online) to confirm an employee’s visa entitlements and work permissions. She said they will work closely with their nominated migration agent to ensure that sponsorship obligations were complied with in future.
The Tribunal is satisfied that the applicant has taken steps to ensure that sponsorship obligations would be complied with 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 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.
The applicant has conceded that there were failures on their part to comply with sponsorship obligations but has requested that this be considered in the context of one error, being the failure to inform the Department of Ms Monguia’s cessation of employment, which was a task that “fell through the cracks” within the applicant’s HR team. Ms Palmer gave evidence that the applicant had every intention of complying with their sponsorship obligations, and they undertake to ensure all obligations will be complied with in future. They do not want the failures to adversely impact their future applications, as they would like the to be in a position, if the opportunity arises, to be able to sponsor skilled workers.
Conclusion
The Tribunal has carefully considered and weighed up the evidence in relation to the above relevant circumstances. The Tribunal notes that the applicant has been an approved standard sponsor since 2013, and that other than the failures which occurred because of a missed task by the HR Team in October 2017 regarding notification of the cessation of employment of one of the 457 employees, the applicant has generally complied with their obligations and has been cooperative with the Department.
The applicant has demonstrated genuine regret for their failures and have invested in a comprehensive HR System to ensure that these failures do not occur again. The Tribunal considers that cancellation of the applicant’s sponsorship was excessive in light of the evidence now before it, which the Tribunal notes was not before the delegate when the primary decision was made. The Tribunal accepts that cancellation of the applicant’s sponsorship approval would have serious ramifications on the applicant’s business given the nature of their activities and the need which may arise in future to relocate (and sponsor) employees to work in Australia.
63.Considering the totality of the circumstances, and having regard to the prescribed criteria the Tribunal finds that none of the actions under s 140M should be take.
DECISION
64.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.
…

[2022] AATA 4665

21 December 2022

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