Hairway Fountain Gate Pty Ltd (Migration)

This matter concerned an appeal by Hairway Fountain Gate Pty Ltd against a decision to cancel its approval as a standard business sponsor and bar it from sponsoring individuals for a specified period. The dispute arose from allegations that the company failed to satisfy its sponsorship obligations by allowing sponsored employees to work as beauty therapists rather than their nominated occupation of hairdressers during a monitoring period. The decision was made by a delegate of the Minister and subsequently reviewed by the Tribunal.

The primary legal issue before the Tribunal was whether the circumstances prescribed by the Migration Regulations 1994 for taking action against a sponsor existed, and if so, what action should be taken. Specifically, the Tribunal had to determine if Hairway Fountain Gate Pty Ltd had failed to satisfy a sponsorship obligation, as contemplated by regulation 2.89. If such a failure was established, the Tribunal was then required to consider the criteria set out in regulation 2.89(3) to determine the appropriate sanction, which could include cancelling sponsorship approval or barring the sponsor for a specified period.

The Tribunal found that a valid public interest certificate had not been provided by the Department, as it lacked sufficient detail to establish a public interest reason. However, the Tribunal was satisfied that Hairway Fountain Gate Pty Ltd had failed to satisfy a sponsorship obligation, as evidenced by information suggesting sponsored employees were working as beauty therapists instead of hairdressers. In considering the appropriate action under section 140M of the Act and the criteria in regulation 2.89(3), the Tribunal took into account the totality of the circumstances, including the nature and severity of the failure, the impact on others, and the steps taken by the sponsor.

Consequently, the Tribunal varied the decision under review. It ordered that Hairway Fountain Gate Pty Ltd be barred from sponsoring further persons under its existing approval as a standard business sponsor and also be prevented from making any future applications for approval as a standard business sponsor, or any other specified classes of sponsor, for the period from 27 June 2017 until 6 May 2018.