Hospitality Commercial Cleaning Services Pty Ltd (Migration)

Hospitality Commercial Cleaning Services Pty Ltd (Migration) [2020] AATA 3929 (22 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Hospitality Commercial Cleaning Services Pty Ltd

CASE NUMBER:  1828390
DIBP REFERENCE(S):  OPF2017/6943(1) OPF2017/6943(2) OPF2017/6943(3)
MEMBER:Mr S Norman
DATE:22 July 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision under review.

Statement made on 22 July 2020 at 12:02pm
CATCHWORDS
MIGRATION – cancellation – sponsorship approval – compliance with sponsorship obligations – notify Immigration of certain events – change of address – ensure sponsored person work in nominated occupation – Accountant – Customer Service Manager – majority of work not aligned with nominated occupation – obligation to provide training – verifiable evidence of expenditure – consideration of discretion – nature and severity of the circumstances – direct or indirect impact on another person – intentional, reckless or inadvertent – waiving a bar – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 140M, 140L, 140O
Migration Regulations 1994 (Cth), rr 2.84, 2.86, 2.87B, 2.89, 2.101
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to take an action under s.140M of the Migration Act 1958 (the Act) in relation to the applicant’s sponsorship. The Department delegate’s decision was lodged with the Tribunal.
The applicant was approved as a standard business sponsor on 25 February 2015. On 6 September 2018, the delegate decided, pursuant to s.140M(2) of the Act, to bar the applicant for one year (from 6 September 2018) from making applications for approval as a standard business sponsor and temporary activities sponsor.
The applicant/sponsor (represented by the Director, Mr Jerry XU) appeared before the Tribunal on 11 June 2020 to give evidence and present arguments. Shortly prior to the hearing, the Tribunal was advised that a Mr Nelson SHI (a migration agent) was to attend the hearing as a witness. However, when noting the attendees at the hearing, the Tribunal was not advised of Mr Shi being in attendance, and nor was there any oral request to take evidence from Mr Shi at the hearing; and thus no evidence was taken from him. By post-hearing letter of 23 June 2020 (emailed to the authorised recipient), the Tribunal noted the absence of Mr Shi and advised that, ‘as you know, the Tribunal must have regard to all evidence and submissions lodged with it prior to making its decision’. However, no further evidence from Mr Shi was lodged.
The applicant was represented in relation to the review by its registered migration agent. The applicant was also assisted at hearing by a barrister (also a migration agent).
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. After then having discussed the applicant’s evidence and submissions at hearing, the Tribunal was satisfied the applicant was given a fair opportunity to give evidence and present arguments.
For the following reasons, the Tribunal has decided to affirm the decision under review.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal notes that substantial evidence and submissions were lodged in this case (including that which was lodged post hearing). However, and though not all evidence and submissions have been expressly referred to herein, the Tribunal has taken into account all evidence and submissions prior to finalising this decision.
After the hearing, the applicant was provided with an opportunity to comment on information that had been covered in a s.375A Certificate (which Certificate had been revoked on 12 November 2019). However, as the material gist of the information in withheld folios had been referred to in the delegate’s decision, the Tribunal was not satisfied it was required to put this information to the applicant by one of the prescribed methods. Be that as it may, the material issues were also discussed at hearing, and as indicated above, after the hearing the applicant was given an informal opportunity to comment in writing within an agreed period (a request for an extension was granted[1]). To the extent that any of the evidence and submissions (post hearing or otherwise) was considered material, the Tribunal has discussed same below.
[1] See migration agent email dated 9 July 2020.
That being said, 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 r.2.89 - r.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: r.2.89 – r.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 sponsorship obligation/s.
Failure to satisfy a sponsorship obligation: r.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: r.2.89(2).
The delegate was satisfied the applicant had breached the following sponsorship obligations:
·     Regulation 2.84 - obligation to provide information to Immigration when certain events occur
·     Regulation 2.86 – obligation to ensure primary sponsor person works or participates in nominated occupation, program or activity
·     Regulation 2.87B - obligation to provide training
Regulation 2.84
After the delegate had issued the Notice of Intention to Take Action (NOITTA - dated 19 March 2018[2]), and regarding r.2.84, the applicant said it was a clear oversight but they conceded they had failed to notify the Department of a change of address. They believed they had been compliant in the past when a change of name of the business had been notified. After discussing same at hearing, the Tribunal accepted this breach had occurred, but that it was not substantial.
Regulation 2.86
[2] OPF2017/6943 (Part 2 of 3) – from folio 22.
Regarding Ms Suja KUNWAR – nominated occupation Accountant:
In their decision, the delegate said that Ms Suja KUNWAR (hereafter Ms Suja) had been recorded by Australian Border Force (ABF) officers tasked with investigating the applicant, as saying she was (then) employed in the ordering of chemicals (window cleaning, bleach, exit mould, toilet cleaning chemicals and sponges). The delegate (ultimately) believed Ms Suja was engaged in working as a cleaner and not an Accountant (being the nominated occupation).
The delegate continued that it had been claimed that the “following up on orders [for chemical supplies] is incidental to negotiating prices to meet the company budget”. However, the delegate was not satisfied that such negotiations would ordinarily be undertaken by a business accountant, being Ms Suja (or Ujjwal Neupane). However, no adverse inference was drawn owing to a lack Organisational structure at the business premises on the date of the site visit.
Next, it had also been claimed on her behalf, that Ms Suja was confused about many of the questions being asked of her and that she was distracted with minding her newborn child when interviewed by the ABF officer/s. This was because the interview took place shortly after the birth of her child and this was said to be unreasonable. It was explained that the interview by telephone was held on 27 September 2017, being some seven weeks after Ms Suja had delivered her child (born 9 August 2017). Also, at no time during the interview did the ABF Officer repeat questions for Ms Suja, or find she was unable to understand what was being asked of her.
However, the delegate noted the interview between Ms Suja and the ABF officer lasted for 25 minutes and the ABF Officer “being experienced would have picked up on the necessity for an interpreter during the course of the interview”, if this was needed. Also, that Ms Suja had been in Australia for over 10 years and had appeared to have a ‘good grasp of English’, including through her work in the hospitality industry.
At hearing, and amongst other things, the Tribunal noted that some 7 weeks after having given birth to a child, without more, this did not explain why Ms Suja was unable to provide apparently meaningful responses to the ABF officer. Ms Suja had resided and/or worked in Australia for some ten years and had engaged in business with English speaking persons. Further, based on the evidence, it did not appear that Ms Suja was unable to provide meaningful responses to the ABF officer, just that the responses she did provide did not indicate she worked in her nominated occupation as an Accountant. After considering the evidence, this is one reason that satisfied the Tribunal that Ms Suja was not engaged in the occupation for which she had been nominated.
Next, the delegate noted that Ms Suja said she reported to Judy Bai (the applicant’s Finance Manager – who was also interviewed by ABF officer/s). However, it was recorded that “never once did Ms Bai mention the names of Ms Suja (or Ujjwal Neupane) as working there in the office” with her. The delegate believed that Ms Bai “should know the names of the accountants [purportedly] handling payroll”. Ms Bai had been recorded as claiming at the time of the interview, that another person (Elina) had “done the payroll”.
The delegate also said that if Ms Suja had worked in the Albion Street (Sydney) office and in her nominated occupation since October 2013 (as the applicant had claimed), that it was “surprising that [Ms Bai] did not know the names of those in her team who worked under her”. The delegate believed that with respect to Ms Bai, in her capacity as the Finance Manager for the applicant business, it may be expected she would know the staff that worked the payroll under her.
In agent submission dated 9 April 2018,[3] it was said inter alia that Judy Bai was the Finance Manager and not the Director of the company.
· At hearing the applicant said that Ms Bai had returned from maternity leave around October 2015 (after around one years maternity leave). Post hearing submissions also said:
Judy Bai started maternity leave from 31/01/2016. She was off work for a period of 8.5 months. She returned to work on 17/10/2016 on part-time basis (3 days/week) for 1 month, and then commenced full-time duties on 21/11/2016. She was working at 200 Albion St, Surry Hills NSW between October 2016 and July 2017.
[3] OPF2017/6943 – folio 177.
That said, the delegate continued that Ms Suja stated clearly (at the ABF interview) that her duties involved ordering chemicals and making a budget. She had provided a list of the chemicals she ordered – including window cleaning, bleach, exit mould, toilet cleaning chemicals and sponges. The delegate said that such work was “clearly not closely related to her nominated occupation as set out in ANZSCO”. The delegate did accept the keeping of records for inventories and records for Accounts payable are tasks in line with Ms Suja’s nominated occupation. However, the significant majority of work undertaken by Ms Suja was not in her nominated occupation, and the delegate was not satisfied that r.2.86 was met.
Next, the delegate also noted the applicant’s written response to the Commencement of Monitoring letter and the response to the NOITTA, which stated that Ms Suja (and Ujjwal Neupane) both worked at the Albion Street address of the applicant. However, both employees were not there when the premises were visited by ABF officers, and neither did the vacant desks there belong to them (the officers were given the names of others who occupied those desks). Based on Ms Bai’s statement and the personal observations of the ABF officers, the absence of the sponsored employees Ms Suja (and Ujjwal Neupane), and with no identified desks or computers for them, was further reason the delegate was satisfied that neither Ms Suja (or Ujjwal Neupane) worked at the Albion Street address of the applicant (as had been claimed). After having discussed same at hearing, the Tribunal is also satisfied this is further evidence that Ms Suja was not employed in the occupation for which she had been nominated, and nor at the location where she was said to have been employed.
Next, in agent submissions dated 9 April 2018,[4] it was said inter alia that some work outside the nominated occupation may be considered acceptable under policy. The Tribunal accepts this to be correct, however, after considering the evidence (and the applicant’s below concession), the Tribunal does not accept Ms Suja was engaged in her nominated occupation at the time of the monitoring period (being 1 July 2016 – 1 July 2017).
[4] OPF2017/6943 – folio 177.
When discussed at hearing, the Tribunal understands the applicant subsequently conceded that the majority of work being undertaken by Ms Suja (at the time of the ABF investigation) was not in her nominated occupation. However, it was claimed this work was temporary as she had given birth to her child and had (then) recently recommenced work part time, and at a time when the applicant business was ‘changing and during which management structures and responsibilities were being developed’ (the business was said to have ‘changed hands’ around 2013 (though subsequently evidence indicated some changes around 2015-2016) – and the Tribunal noted this appeared to be (mainly) prior to the investigations undertaken by the ABF during the monitoring period (1 July 2016 – 1 July 2017).
The Tribunal also notes the concession at hearing contradicted the earlier instructions that (ie) the majority of Ms Suja’s tasks were as an Accountant and/or that Ms Suja was providing incorrect responses to the ABF officer given she was distracted, recently then having given birth to her child. The Tribunal believes the earlier evidence to have been untrue.
At hearing, the Tribunal also invited post hearing evidence of the claimed change of ownership and the timeline of the changes and when the business was said to have been located in two locations. Post hearing submissions included that:
A timeline of events around 2016 dealing with management issues, name changes and changes in the location of HCC office. Particularly during the monitoring period between 1 July 2016 and 1 July 2017.
·     22/12/2015 - shareholder changed from METRO GLOBAL PTY LTD to H.S SATPAL PTY LTD … (attached)
·     28/01/2016 - Metro Global (Australia) Pty Ltd changed its name to Hospitality Commercial Cleaning Services Pty Ltd
·     18/03/2016 - changed address from 6/849 South Dowling St, Waterloo NSW 2017 to Level 2/491 Elizabeth St, Surry Hills NSW 2010.
·     12/05/2016 - HCC and GHS entered “SALE AND PURCHASE AGREEMENT” (attached).
·     01/10/2016 - changed address from level 2/491 Elizabeth St, Surry Hills NSW to 200 Albion St, Surry Hills NSW 2010.
That being said, and given the concession at hearing by the applicant’s Director (and that which is in the written submission of Jerry XU dated 9 June 2020), and with respect to Ms Suja, the Tribunal was not satisfied the majority of her work at the time of the ABF investigation, was in her nominated occupation as an Accountant. The Tribunal is satisfied that earlier and contrary evidence submitted about this was false. This is also one reason that satisfied the Tribunal that a breach of r.2.86 had occurred.
Regarding Ms Hyeon-Ju YOU – nominated occupation Customer Service Manager:
Based on the record of ABF investigations, Ms Hyeon-Ju You (hereafter Ms You) is recorded as saying she was employed as a Site Manager at Coffs Harbour. It was claimed she ‘assisted in putting up advertisements for housekeeping attendants’, though she had only done so a ‘few times in her capacity as the Customer Service Manager’.
However, Ms You is also recorded as saying she had ‘no choice’ when the applicant had required her to be the Site Manager at Coffs Harbour. In this role, she had advertised for housekeeping attendants and the advertisements confirmed she was the contact person. This also involved Ms You in assisting in putting up advertisements as the applicant had stated. She had also looked after the ‘housing of staff’ at the staff house (in Coffs Harbour). These were not part of the duties of her nominated occupation (and the Tribunal accepts this is correct).
The delegate continued that it was the applicant’s responsibility that duties undertaken by the sponsored employee fit within the ANZSCO code for the approved occupation (being as a Customer Service Manager), for the entirety of employment. In the case of Ms You, the delegate said it did not appear the work she undertook for the applicant fitted within the ANZSCO code for her nominated occupation (ANZSCO: 149212). The delegate then found this indicated the applicant was also not compliant with their obligation with respect to Ms You.
· In agent submission dated 9 April 2018,[5] it was said inter alia that Ms You worked in Coffs Harbour and Double Bay. It was also said that some of Ms You’s statements may not be perceived as aligning to the work of her nominated occupation in ANZSCO
[5] OPF2017/6943 – FOLIO 177.
In the applicant’s written submission dated 9 June 2020, it was not conceded that Ms You ‘had any breach’. When discussed at hearing, the applicant explained that Ms You was a senior manager and at the time of the monitoring period and at which time she worked as a site manager in Coffs Harbour, she had been placed there due to the need to ‘re-align because of limited resources’ held by the applicant business at the time. The applicant also explained that Ms You had been able to provide work for the applicant company (including the work in Coffs Harbour) and that she had been sent there, also in part, due to the transition of the ownership of the business. It was also claimed that Ms You had subsequently been relocated and now worked in Sydney.
Be that as it may, given Ms You was apparently concerned about being ‘forced’ to work in Coffs Harbour, and given the concession that Ms You’s statements do not indicate her work aligned with the work of her nominated occupation (which the Tribunal now accepts), and given the claim the business was in transition (and in the processing of re-aligning because of limited resources held by the applicant business at the time), the Tribunal was not satisfied the majority of work Ms You was engaged with (in Coffs Harbour) fit within the ANZSCO code for her approved occupation (Customer Service Manager) for the entirety of her employment. This is a further reason that satisfied the Tribunal that a breach of r.2.86 had occurred.
Migration agent submissions of 8 November 2019 and Tribunal response

In migration agent submissions dated 8 November 2019, reference was made to the delegate’s decision and that the delegate had misdirected themselves as to whether the pre or post 18 March 2018 amendment to r.2.86 applied. It was stated (in part):
We contend that the relevant sponsorship obligation will be that which was required to be met by the applicant during the monitoring period, from 1 July 2016 to 1 July 2017.
Regulation 2.86(2)- obligation to work in nominated occupation:
The relevant sponsorship obligation which applied during the monitoring period of 1 July 2016 to 1 July 2017 was that which was introduced by Migration Amendment Regulations 2010 (No. 1), which stated:
If the primary sponsored person holds a Subclass 457 (Temporary Work (Skilled)) visa, or the last substantive visa held by the primary sponsored person was a Subclass 457 (Temporary Work (Skilled)) visa, the person must ensure that the primary sponsored person:
(a)does not work in an occupation unless both of the following apply:
(i)the occupation was nominated by the person for the primary sponsored person under subsection 140GB(1) of the Act;
(ii)the nomination was approved by the Minister under subsection 140GB(2) of the Act
The above form of reg 2.86(2) remained in force until it was substituted with effect from 18 March 2018, pursuant to Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018, with the following form … :
If the primary sponsored person holds a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa, or the last substantive visa held by the primary sponsored person was a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa, the person must ensure that the primary sponsored person:
(a) works in the nominated occupation; and
(b) does not work in an occupation unless both of the following apply:
(i) the occupation was nominated by the person in relation to the primary sponsored person under subsection 140GB(1) of the Act;
(ii) the nomination was approved by the Minister under subsection 140GB(2) of the Act.
and:
It appears to us in the first place that the delegate - see, for example, at p. 2 of the primary decision - applied a test for reg 2.86(2) which was broader than both the pre- and post-March 2018 versions of the obligation, by stating the obligation to be:
…to ensure primary sponsored person works or participates in nominated occupation, program or activity
Furthermore, it also appears to us that the delegate’s formulation of the obligation was closer to the post-March 2018 version, …
The correct identification of the relevant sponsorship obligation will be highly relevant to the evidence to be adduced at the hearing of this matter. We contend that this needs to be resolved before the hearing of the evidence.
At hearing, the Tribunal said it accepted the delegate may have misdirected themselves as to the version of r.2.86(2) that applied to this case. However, the Tribunal was not satisfied the evidence identified by the delegate did not fit within the version of r.2.86(2) that both the agent and the Tribunal accepted was correct (being the pre-18 March 2018 version). At hearing, the Tribunal noted the agent may wish to make submissions about this post hearing - though no material submissions were then lodged.
The Tribunal remains satisfied the accepted evidence set out above, still constitutes a breach of the correct version of r.2.86(2). That is because the Tribunal is satisfied that (ie) the majority of work then being undertaken by the visa holders was not in the occupations for which they had been nominated.
Dob-in report
At hearing, the Tribunal noted it had received information that would be the reason or part of the reason for affirming the decision under review. The information was in a dob-in report that claimed the applicant’s business inter alia hired international students and others who were not aware of their workers’ rights in Australia and that the workers were forced to work for longer hours than the hours for which they were actually paid. The Tribunal said this was relevant as it may cause it to accept the applicant was again in breach of its obligations and or that it may (words to the effect) cause the Tribunal to draw adverse credibility inferences.
After then advising the applicant they may seek further time after the hearing within which to respond (no request was made), the applicant said that in late 2017 it had caused the business to be independently audited in order to ensure that payroll, payslips, attendance etc, complied with its obligations (evidence of same is referred to below).
Be that as it may, and given the Tribunal is unable to test the evidence in the dob-in report, I am not satisfied I should give any weight to that evidence. Therefore, the Tribunal has not considered the dob-in report further.
Regulation 2.87B
Next, and regarding r.2.87B (obligation to provide training), the NOITTA advised the applicant that this obligation requires applicants to contribute to the training of Australian workers in each year to engage a sponsored person as a Subclass 457 visa holder. Sponsors are also required to keep documents (a record) that evidences their compliance with the training benchmarks.
In relation to this regulation, the applicant in their response provided several invoices of various charges for accommodation, a copy of a Training Agreement between the applicant and another organisation (Wise Education Group), a Partnership Agreement with ‘Thrive’, an agreement with Wise Group, training contracts and training expenditure breakdown.
Wise Education Group was subsequently contacted by a Department Officer. They advised they had lost their contract to deliver courses in NSW. With respect to two of the apprentices – one (Dizon) cancelled his apprenticeship on 13 March 2016; and a second (B Shrestha) cancelled his apprenticeship on 7 September 2016. The delegate noted these apprenticeships were cancelled prior to Wise Education Group losing the contract to provide courses.
The delegate then noted that “very few of the documents provided by the applicant for training indicate confirmation of payments made for training delivered”. The contracts for training and training expenses, the training invoices provided, do not confirm for certain that such training was in fact conducted. Several invoices for accommodation and travel expenses had been provided, but these did not confirm payments had been made. With the unavailability of receipts, the delegate had concerns regarding these claimed expenses, given there had been very few receipts submitted to corroborate the claim that the expense had been paid.
The delegate then noted the applicant’s response to the NOITTA and other evidence gathered during the monitoring period. However, the delegate was not satisfied the applicant had provided verifiable evidence for any of the expenses claimed to have been incurred and which attributed to training of their Australian employees and permanent residents. In view of this finding, the delegate was not satisfied the applicant had complied with regulation 2.87B.
Migration agent submissions of 8 November 2019 and Tribunal response
In the migration agent submissions of 8 November 2019, it was stated (in part):
… it appears that the delegate applied an incorrect test; namely, by requiring the applicant to establish that its employees actually undertook training: see, for example, p. 4 of the decision, where the delegate referred to the training invoices as not confirming “…for certain that such training was conducted”.
We contend that the training obligation in reg 2.87B merely requires the applicant to satisfy the benchmarks set out in the relevant instrument made under reg 2.59(d); here, during the monitoring period, being IMMI 13/030. In this case the applicant sought to satisfy training Benchmark “B” in that instrument; namely, training expenditure to the equivalent of at least 1% of the payroll of the business.
There is nothing in reg 2.87B which requires the sponsor to show that the training was actually undertaken; the training obligation is satisfied merely by showing the expenditure as a percentage of the payroll. …
At hearing, the Tribunal noted that IMMI 13/030 also required the sponsor to show either that their employees undertook training or that at least reasonable measures were taken so that employees could undertake training. This view is supported by phrases in IMMI 13/030 such as:
· “The business is required to show that the training that has been, and continues to be, provided to employees who are Australian citizens and Australian permanent residents is related to the purpose of the business”; and
· Regarding Training Benchmark B, “…in the provision of training to employees of the business”
Be that as it may, at hearing the Tribunal noted there was no sufficient record of the training being undertaken by employees who are Australian citizens or permanent residents and that same may cause the Tribunal to find there was a breach of r.2.87B. The applicant agreed to provide relevant evidence of training being undertaken by Australian citizens or permanent residents after the hearing and by 9 July 2020. In post hearing submissions, the applicant lodged evidence of (in part):
·     payment of the subscription period for April 2016 to 3 April 2017 – corporate social responsibility – in the amount of $720
·     payment of invoices dated 10 March 2017 & 18 August 2017 – Tactical Training Group P/L
·     payment to WSS Intersystem Clearing Account - $949.49
·     Metro Global Australia – 18 August 2017 – $4330
In an email dated 8 July 2020 from Judy Bai, it was also said that Profit and Loss statements signed by an accountant for the financial years ending 30 June 2018 and 30 June 2019, had been ‘attached previously’ (though the Tribunal has not located the Profit and Loss Statement for 30 June 2019). In further post hearing submissions lodged on the applicant’s behalf (due by 9 July 2020), it was said:
I am instructed that the tax return for the year ending 30 June 2018 will be sent to me within tomorrow or soon after.
The Tribunal notes this suggests a request for an extension of time – though that ‘self-imposed extension’ ended 10 July 2020 (or soon after). However, no further information had been lodged at the time and date of the Tribunal decision (being 22 July 2020). Therefore, the Tribunal decided to proceed to make its decision based on the information before it.
Without more information relating to the finances of the applicant business (the applicant did not provide adequate financial information either pre or post hearing), the Tribunal is not satisfied that records had been kept that established that the applicant appropriately contributed to the training of Australian workers in each year of the applicable period, to engage a sponsored person as a Subclass 457 visa holder.
After then considering the evidence lodged, the Tribunal finds there was a breach of r.2.87B.
Preliminary findings
The delegate found the following circumstances existed to bar the sponsor from making future applications for approval as a work sponsor:
·     Regulation 2.89: Failure to satisfy the sponsorship obligation. The identified breaches of the sponsorship obligations were said to be:
·     Reg 2.84 - obligation to provide information to immigration when certain events occur
·     Reg 2.86 - obligation to ensure primary sponsored person works or participates in nominated occupation, program or activity
·     Reg 2.87B - obligation to provide training
After considering all the evidence, and given the Tribunal’s relevant findings above, I am satisfied the following circumstances existed to bar the sponsor from making future applications for approval as a work sponsor or cancel the approval of the sponsor:
·     Regulation 2.89: Failure to satisfy the sponsorship obligation. The breaches of the sponsorship obligations were:
·     Reg 2.84 - obligation to provide information to immigration when certain events occur
·     Reg 2.86 - obligation to ensure primary sponsored person works or participates in nominated occupation, program or activity
·     Reg 2.87B - obligation to provide training
Discretion
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 material gist of which was discussed at the Tribunal hearing:
·     Reg 2.89 - failure to satisfy sponsorship obligation – the Tribunal has determined that the sponsor failed to satisfy one or more sponsorship obligations. The Tribunal now has considered the criteria in r.2.89(3):
The sponsors past and present conduct in relation to Immigration:
·     The delegate noted the sponsor’s business premises were visited unannounced by officers from the Department on two occasions in 2017. The applicants/sponsor’s conduct then and during the monitoring period had been said to be co-operative. The sponsor responded to all questions and made themselves available to meet with the Department during the visit. The sponsor has had no other dealings with Immigration outside of the sponsorship program
·     When discussed at hearing, the applicant did not materially comment about this. Be that as it may, and given the apparent co-operation of the applicant (including at the Tribunal hearing), I accept the sponsor has co-operated with Immigration (and the Tribunal) in relation to the review.
The number of occasions on which the sponsor had failed to satisfy the sponsorship obligation:
·     The sponsor had failed the obligation to notify Immigration of certain events on one occasion (change of address)
·     The sponsor had failed the obligation to ensure sponsored persons work in the nominated occupation on two occasions (Ms Suja & Ms You)
·     The sponsor had failed the obligation to provide training
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 sponsor had failed to satisfy the obligation to notify Immigration of a change in address within the required timeframe
·The sponsor had failed the obligation to ensure the sponsored person/s worked in the nominated occupation as two of the visa holders were determined not to have worked in their nominated occupations. The delegate was satisfied this compromised the integrity of the Subclass 457/TSS program
·The sponsor had failed the obligation to recover certain costs as the visa holder was (initially) made to pay her nomination costs (these had been reimbursed as a result of the monitoring of the sponsor[6] - and same was not disputed at hearing)
[6] See OPF2017/6943 – folio 129.
·The sponsor had failed to provide appropriate training
·These failures were identified in the monitoring period 1 July 2016 to 30 June 2017
·When discussed at hearing, the Tribunal noted the evidence that one visa holder had been claimed to have paid for their nomination, but that those monies had been subsequently repaid. The applicant made no material claim about this
·In the applicant’s written submissions of 9 June 2020, the Tribunal notes the applicant claimed to have employed around eight Subclass 457 visa applicants, and the Tribunal understands the applicant was aware of its obligations
The period of time over which the sponsor had been an approved sponsor:
·     The sponsor was approved as a sponsor on 25 February 2015 - expiring on 25 February 2016.
·     The Tribunal accepts this to be correct
Whether, and the extent to which, the failure to satisfy the sponsorship obligation has had a direct or indirect impact on another person:
·The sponsor’s failure to satisfy the obligation to ensure the sponsored person works in the nominated occupation has impacted on two of the visa holders who were unable to develop the skills for which they were granted their visas
·The sponsor’s failure to provide training to their Australian employees may have impacted the furtherance of their careers
·The Tribunal put the gist of the above to the applicant at hearing. The applicant made no material comment. After considering same, the Tribunal accepts the immediately above findings of the delegate
·The Tribunal also notes the applicant sponsored permanent visa holders whose applications may be impacted by the applicant’s failing to satisfy sponsorship obligations – some of these cases are presently before the Tribunal (differently constituted) - though subject to all the circumstances of these cases, it may be reasonable to disregard adverse information (see r.5.19(3)(g))
Whether, and the extent to which, the failure to satisfy the sponsorship obligation was intentional, reckless or inadvertent:
·   The failure to notify the Department of a change in address within the required timeframe appears inadvertent (and the Tribunal accepts this is correct)
·   The failure to satisfy the obligation to ensure the sponsored person works in the nominated occupation was reckless – as is the failure to provide training
·   At hearing, the Tribunal put the gist of the above to the applicant for comment. The applicant explained the business was transitioning from one owner/operator business to another.
·   In that fluid state (when management and other responsibilities were being re-established), the applicant business overlooked its responsibilities with respect to ongoing work in the nominated occupations.
·   The Tribunal accepts, as the applicant claimed, that the business previously had thousands of employees (said to be around 4,000). However, and as noted above, the Tribunal also accepts the applicant business was aware of the ongoing obligations when sponsoring Subclass 457 visa applicants, and the Tribunal accepts the breach was reckless
Whether, and the extent to which, the sponsor had co-operated with Immigration, including whether the sponsor informed Immigration of the failure:
·     The sponsor had generally cooperated with the Department (though the Tribunal was concerned some initial instructions were untrue). Also, the non-compliance with the abovementioned obligations were only brought to light owing to the Department audit of the sponsor (the Tribunal accepts this to be correct)
The steps (if any) the sponsor had taken to rectify the failure to satisfy the sponsorship obligation, including whether the steps were taken at the request of Immigration or otherwise:
·   The sponsor had reimbursed the sponsored employee the costs associated with her nomination. These steps were taken at the request of the Department
·   In post hearing submissions, document/s titled SMETA Corrective Action Plan Report were lodged (the Corrective Action Plan Report summarises the site audit findings and are ‘corrective)
·   Document titled SMETA Sedex Members Ethical Trade Audit Report (labour standards, environment and business ethics)
·   EcoVadis - Supplier Sustainability Ratings
§ After having scanned the SMETA documents, the Tribunal notes the audit set out inter alia what was investigated, with whom issues were discussed, rights and obligations of employees, absenteeism, attitudes of employees, the current system/s, what remedial action may be necessary (Corrective Action Plan)
§ After discussing same at hearing, and noting the post hearing submissions, the Tribunal accepts the applicant had arranged for the businesses to be independently audited in late 2017, and therefore steps had been taken to (independently) ensure the breaches were at least identified
The processes (if any) the sponsor has implemented to ensure future compliance with the sponsorship obligation:
·   The delegate noted the sponsor had been educated on the Sponsorship Obligations and proposed to ensure future compliance with them
·   When discussed at hearing, the Tribunal accepts the applicant was attempting to implement necessary change to ensure sponsorship obligations are complied with
The number of other sponsorship obligations that the sponsor has failed to satisfy and the number of occasions on which the sponsor has failed to satisfy other sponsorship obligations:
·     The sponsor had failed to satisfy three obligations, in particular r. 2.84; r.2.86; and r.2.87B (and given the above related findings, the Tribunal accepts this to be correct)
Penalty:

After noting there were no other relevant factors for consideration, the delegate considered the request to waive the bar (though the Tribunal notes the imposed bar period has now ended). The delegate continued that under s.140O of the Act, the Minister may decide to waive a bar placed on a sponsor under s.140M. A sponsor may make a written request to the Minister to consider waiving the bar. However, a request to waive a bar is not a review of the decision to impose a bar on the sponsor. It provides the Minister with the option to waive the bar if certain criteria are met.
Amongst other things, the delegate noted that in order for the Minister to approve an application by a person for approval as a sponsor, the Minister must be satisfied there is no adverse information known to the Department about that applicant, or it is reasonable to disregard adverse information known to the Department about the applicant or person associated with the applicant. Adverse information about the present applicant and contained in the notice may impact on the ability of the present applicant to satisfy the criteria in any future application for approval as a sponsor.
However, after then considering all of the above (and the waiver provision), and pursuant to s.140M(2) of the Act, the delegate decided to bar the applicant for one year from the date of their decision (being 6 September 2018) from making applications for approval as a standard business sponsor and temporary activities sponsor.
The Tribunal understands the imposition of the penalty may have an ongoing impact on the applicant’s capacity to sponsor further visa applicants (including those visa applicants whose cases are now before the Tribunal). However, and respectfully, the Tribunal accepts the imposition of the bar was appropriate solely for the breaches of r.2.86 (discussed above). Along with the fact the bar period has ended, the Tribunal believes it appropriate to affirm the delegate’s decision.
For completeness, the Tribunal notes the delegate continued that the criteria which are taken into account in considering whether to waive the bar are contained in r.2.101 of the Migration Regulations. The sponsor should address all criteria contained therein, to allow a delegate of the Minister to make a decision on whether or not to waive the bar. A decision not to waive the bar is not merits reviewable.
The Tribunal notes that exercise of the waiver condition is not one that is subject to merits review. Be that as it may, at hearing the Tribunal noted the applicant’s letter of 9 June 2020, asked that the penalty to be imposed on the business be focussed on ‘educating and not destroying’ the business. The agent also referred the Tribunal to the NOITTA letter dated 19 March 2018,[7] where (at p.6), it was stated that ‘lesser penalties may be applied’.
[7] OPF2017/6943 (Part 2 of 3) – from folio 22.
The applicant also said they wished to pursue the current review as there were nine persons whose Subclass 186 visa applications were refused due to the ‘bar’ and these cases were before the Tribunal[8] (differently constituted). The relevant visa applicants were said to have been working for the applicant business for ten years. However, rather than being employed in the housekeeper roles, the applicant said ‘they are all holding very important positions in the company …. [and] are well trained and experienced and cannot be easily replaced’. Further, the reason for the review of these cases was said to be related to the ‘bar decision’ [the subject of this review] was adverse information’ (see r.2.59(g) of the Regulations). Though not for the presently constituted Tribunal to decide, I note it may be reasonable to disregard adverse information after considering all the circumstances of a case (see r.5.19(3)(g)).
[8] See ‘Attachment’ to the applicant letter dated 9 June 2020.
At hearing, the Tribunal also referred to the adverse impact on the Australian (and Global) economy arising from the COVID-19 pandemic.[9] The applicant had said it was difficult to employ persons in the housekeeper role (the primary focus of the business was commercial cleaning). The Tribunal then noted there were now many thousands of newly unemployed in Australia.[10] Be that as it may, the Tribunal acknowledges this is irrelevant to its consideration, but I have included same (again) for completeness.
[9] See: IMF Predicts Global Coronavirus Crisis Akin to the Great Depression, US News, 14 April 2020, , accessed 15 April 2020; Australia heads for recession as stock market falls 7.33% in worst day since GFC, The Guardian, 9 March 2020, accessed 1 April 2020; The economic situation was stabilising before Covid-19, OECD Economic Outlook, Interim Report March 2020, , accessed 1 April 2020; Coronavirus Trade Collapse Paints Grim Australian Economic Picture for 2020, ABC News, 10 Mar 2020, , accessed 1 April 2020; and National House Prices Hold up in March, But its only a matter of time before Coronavirus reduces property gains’, ABC News, 1 April 2020, accessed 1 April 2020.
[10] See 600,000 jobs lost in coronavirus shutdown, but unemployment only rises to 6.2pc, ANC News, May 2020, accessed 20 May 2020.
Accordingly, the Tribunal is satisfied that the prescribed circumstance in r.2.89 exists for the purpose of s.140M of the Act. After then having considered all the evidence and findings herein, the Tribunal is satisfied the imposition of the 12-month bar is not unreasonable. Therefore, and after considering the totality of the circumstances, and having regard to the prescribed criteria, the Tribunal finds that the action mentioned in s.140M(1)(c) should be taken.
DECISION
The Tribunal affirms the decision under review.
Mr S Norman
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.
…

[2020] AATA 3929

22 July 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Breach

Remedies

Procedural Fairness

Jurisdiction