Himalayan Nepalese Pty Ltd ATF The Sanu Family Trust Client (Migration)

This matter concerned an appeal by Himalayan Nepalese Pty Ltd ATF The Sanu Family Trust against a decision to impose a standard business sponsorship bar. The delegate had found that the company had breached its sponsorship obligations by failing to pay visa holders for certain periods, withholding wages at the request of visa holders to enable them to save for permanent visa application fees, and by providing payslips that did not accurately reflect the dates of wage payments. Further allegations included a visa holder performing duties not aligned with their nominated occupation and deficiencies in record-keeping regarding wages.

The primary legal issues before the Tribunal were whether Himalayan Nepalese had failed to satisfy its sponsorship obligations and whether it had provided false or misleading information to the Department, thereby establishing prescribed circumstances for the imposition of a sponsorship bar under section 140M of the Migration Act 1958 (Cth). If such circumstances were found to exist, the Tribunal was required to consider the prescribed criteria under regulations 2.89 and 2.90 of the Migration Regulations 1994 to determine what action, if any, should be taken.

The Tribunal considered the evidence presented, including concessions made by Himalayan Nepalese regarding wage withholding and payment delays. While acknowledging the company's explanation for payment delays due to accounting software changes and the visa holders' requests for salary deferral, the Tribunal found that withholding wages was a serious matter impacting the visa holders' ability to support themselves. The Tribunal also noted that while Himalayan Nepalese had a prior satisfactory monitoring outcome, the number of occasions of non-compliance, including failures to pay and record-keeping deficiencies, weighed significantly in favour of taking action. The Tribunal found that Himalayan Nepalese had failed to comply with its obligations on a number of occasions, and that the provision of inaccurate payslips constituted the provision of false or misleading information.

The Tribunal affirmed the delegate's decision under review.