Humberto Uy Kimpang (Migration)

This matter concerned an appeal by Humberto Uy Kimpang against a decision to cancel his sponsorship approval. The dispute arose from allegations that Mr. Kimpang had failed to meet his sponsorship obligations, specifically concerning the method of payment of wages to an employee, Ms. Mosquite, and associated record-keeping. The decision was reviewed by the Tribunal.

The primary legal issue before the Tribunal was whether the circumstances prescribed under the Migration Act 1958 and Migration Regulations 1994 existed, which would empower the Minister, or the Tribunal on review, to take action under section 140M of the Act. This involved determining if Mr. Kimpang had failed to satisfy a sponsorship obligation, and if so, what action, if any, should be taken.

The Tribunal considered the applicant's admitted practice of paying cash wages to Ms. Mosquite until the Department issued a Notice of Intention to Take Action. Following this notice, the applicant immediately transitioned to electronic funds transfer (EFT) for wage payments. The applicant provided evidence, including payslips and group certificates, demonstrating that he had maintained records of payments, issued payslips, reported wages to the Australian Taxation Office via his accountant, and paid the correct superannuation contributions. The Tribunal found that the applicant had acted on his accountant's advice regarding cash payments and had taken steps to rectify the situation upon notification of a potential breach. The Tribunal also noted that the applicant had cooperated with the Department and implemented processes to ensure future compliance.

Ultimately, the Tribunal set aside the decision under review. It substituted a decision not to take any of the actions specified in section 140M of the Migration Act 1958, finding that the prescribed circumstances for taking such action did not exist in this case.