Kinn Niyom Pty Ltd (Migration)

The Administrative Appeals Tribunal considered an appeal by Kinn Niyom Pty Ltd against a decision to cancel its approval as a standard business sponsor and impose a 12-month bar on future sponsorship applications. The dispute arose from information suggesting that the applicant no longer met the prescribed criteria for sponsorship, specifically due to adverse information known to the Department about a person associated with the sponsor. This adverse information related to a former owner, Apichai Amphansup, who had previously been sanctioned in relation to another company, Kinn Castle Hill Pty Ltd, for failing sponsorship obligations.

The Tribunal was required to determine whether circumstances existed for the imposition of sanctions under sections 140K, 140L, and 140M of the Migration Act 1958 (Cth). Specifically, the Tribunal had to assess if the applicant no longer satisfied the prescribed criteria for approval as a standard business sponsor, as stipulated by regulation 2.91 of the Migration Regulations 1994, due to adverse information concerning a person associated with the sponsor. The Tribunal also needed to consider the prescribed criteria for determining what action, if any, should be taken under section 140M, including the nature of the failure to meet criteria, its impact, the reasons for the failure, and any steps taken to rectify the situation.

The Tribunal reasoned that the applicant, Kinn Niyom Pty Ltd, no longer met the criteria for sponsorship because adverse information was known about Apichai Amphansup, who was a former director and shareholder of the applicant and remained a signatory to its bank accounts, indicating an ongoing business relationship and potential influence or control. This adverse information stemmed from the previous sanction imposed on Kinn Castle Hill Pty Ltd, of which Amphansup was the director, for breaches of sponsorship obligations. The Tribunal found that Amphansup appeared to have "phoenixed" the business to a new entity to circumvent the sanction, and that the applicant's incorporation shortly after the sanction and Amphansup's continued involvement suggested an intentional action to avoid regulatory consequences. The Tribunal also noted that staff at the business did not recognise the current owner's name but identified Amphansup as the boss, and that limited evidence of current operations and future intentions was provided. Applying the criteria in regulation 2.91(3), the Tribunal concluded that the circumstances warranted the cancellation of the sponsorship approval and the imposition of a 12-month bar.

The Tribunal affirmed the delegate's decision to cancel Kinn Niyom Pty Ltd's approval as a standard business sponsor and to bar the company from applying for approval as a standard business sponsor and temporary activities sponsor for a period of 12 months from the date of the delegate's decision.