L & Z Restore Massage Pty Ltd (Migration)

L & Z Restore Massage Pty Ltd (Migration) [2021] AATA 3548 (18 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  L & Z Restore Massage Pty Ltd
CASE NUMBER:  1904095
HOME AFFAIRS REFERENCE(S):          OPF2018/9093
MEMBER:R. Skaros
DATE:18 August 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision to bar the applicant for a period of three months (from the date of the delegate’s decision) from sponsoring any more people under the terms of the existing approval as a standard business sponsor.

Statement made on 18 August 2021 at 9:48am
CATCHWORDS
MIGRATION – cancellation of the sponsorship – sponsorship bar – primary sponsored person does not work in the nominated occupation –not reasonable to disregard the ‘adverse information’ – employed a lawful non-citizen in breach of a work-related condition – a one-off incident – bar the applicant for a period of three months – decision under review set aside
LEGISLATION
Migration Act 1958, ss 140M, 375A
Migration Regulations 1994, rr 1.13, 2.59, 2.79, 2.82, 2.83, 2.86,2.89, 2.91

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 Home Affairs to take an action under s 140M of the Migration Act 1958 (the Act) in relation to the applicant’s sponsorship.
The applicant was initially approved as a standard business sponsor on 26 October 2015. The approval was extended on 3 April 2017 for a period of five years, however, on 4 February 2019 the delegate decided to cancel the applicant’s approval as a standard business sponsor and to bar the applicant for a period of 12 months from making applications for approval as a standard business sponsor and temporary activities sponsor.
A copy of the delegate’s decision record was provided to the Tribunal with the application for review.
The applicant’s Director, Ms Fang Zheng, appeared before the Tribunal by Microsoft Teams videoconference on 9 August 2021 to give evidence and present arguments on behalf of the applicant.
The applicant was represented in relation to the review by their legal practitioner. The representative attended the hearing.
Non-disclosure certificate: s 375A
The Department’s file includes documents that are covered by a non-disclosure certificate issued under s.375A of the Act. The s.375A certificate provides that disclosure of the documents specified, which include internal working documents, tactical plans and a recommendation report, would be contrary to public interest because it contains information that would be detrimental to the workings of the Departmental processes and procedures should they be disclosed.
A copy of the certificate was sent by email to the applicant’s representative prior to the hearing. Issues relating to the validity of the certificate and relevance of the information covered by the certificate were the subject of a written submission from the representative.
The Tribunal has had regard to the representative’s submission about the information contained in the documents, particularly in the recommendation report, which the representative submitted would contain information specific to the applicant and the matter under review rather than about processes and procedures. The Tribunal notes that the recommendation report is part of the Department’s internal procedures, and while it contains information that is relevant to the issues in this review, the Tribunal is satisfied that, to the extent that it is relevant, the information was disclosed to the applicant in the Notice of Intention to Take Action (NOITTA) and that the applicant had an opportunity to respond to that information.
The Tribunal is satisfied that the s 375A certificate is valid as it provides a valid public interest reason for the non-disclosure. The Tribunal is also satisfied that the information relevant to the issues in the review have been disclosed to the applicant by the Department.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision to bar the applicant for a period of three months (from the date of the delegate’s decision) from sponsoring any more people under the terms of the existing approval as a standard business sponsor.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 regs 2.89–2.94B 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: regs 2.89–2.94B. 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 had failed to satisfy the sponsorship obligation in reg 2.86 of the Regulations to ensure that the primary sponsored person works only in the nominated occupation. The delegate also found that the applicant no longer satisfies the prescribed criteria for approval or variation of the terms of the sponsorship: reg 2.91(2).
The Tribunal has considered the evidence relevant to each of the circumstances as follows.
Failure to satisfy a sponsorship obligation: reg 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: reg 2.89(2).
The applicant in this case operates a massage therapy business that is located in Chatswood, NSW.
The applicant was initially approved as a standard business sponsor on 26 October 2015. On 3 April 2017 the applicant was approved for a further period of five years.
The applicant had two nominations approved by the Department, which relevantly included the nomination in the occupation of Massage Therapist (ANZSCO 411611) in respect of Mr Ping Huang. The nomination in relation to Mr Huang was approved on 19 February 2018. At that time, Mr Huang was already the holder of a Subclass 457 visa which had been granted to him on 26 October 2016 in connection with a previous nomination by another employer.
At the hearing, Ms Zheng gave evidence that Mr Huang commenced working in the applicant’s business as soon as the nomination was approved in February 2018. She gave evidence that Mr Huang worked five days a week, usually from Monday to Friday.
Evidence before the Tribunal indicates Australian Border Force (ABF) officers conducted a site visit of the business’ premises at Chatswood on Wednesday 3 October 2018. Departmental records indicate that ABF officers spoke to two of the employees who did not recognise Mr Huang’s photograph.
During the site visit, one of the employees was given a letter addressed to the applicant requesting information and documents be provided to the Department to ascertain the applicant’s compliance with its obligations as an approved sponsor.
In response to the request for information and documents, the applicant’s director provided various documents relating to the employment of Mr Huang, including bank records, cheque stubs and electronic funds transfers.
After considering the evidence, the delegate was not satisfied that the applicant had complied with several sponsorship obligations, including the obligation in reg 2.86 to ensure the primary sponsored person works in the nominated occupation, and decided to issue a Notice of Intention to Take Action (NOITTA) to the applicant on 16 November 2018.
The Tribunal notes that the NOITTA identified other possible breaches of sponsorship obligations, including reg 2.82 obligation to keep records and reg 2.83 obligation to provide records and information to the Minister, the delegate ultimately concluded in the decision record that the applicant had not breached these obligations. Accordingly, the Tribunal has confined its considerations to the obligation in reg 2.86.
In relation to the obligation to ensure that Mr Huang works in the nominated occupation, the NOITTA set out the following adverse information:
During the course of the site visit the following employees were interviewed at the business premises:
Ms Qiu, Yehuazi (aka Wendy) - she chose to phone the sponsor during our visit and did not heed the ABF Officer's request to terminate the phone call. She stated that she worked there for a year. The sponsor advised her to inform us that Ping Huang worked there from Monday to Friday, he had been working there for 8 months and that he was on a day off that day.
Ms Mueller, Rofelita (aka Lita) - an Australia Citizen stated that she started work there 2 weeks ago for 2 or 3 days a week. She stated that she hasn't seen Ping Huang (a photo was shown) since she started working at that business.
Ms Khunpaew, Jariyawadee (aka Mo) - when interviewed stated that she works 2 days, Tuesdays and Wednesdays. She has worked there for a year and she has not seen this person (photo shown of sponsored employee) Ping Huang. She may have seen him once.
In response to the NOITTA, the applicant’s representative provided submissions and supporting documents, including statutory declarations from Ms Zheng and Ms Qiu. Ms Zheng and Ms Qiu indicated that on 3 October 2018 (the day of the site visit) Ms Qiu called Ms Zheng and asked her to view the CCTV of the shop, when Ms Zheng asked for details, Ms Qiu informed Ms Zheng that she could not speak and asked her to quickly check the shop’s CCTV video to view what was happening. Ms Zheng and Ms Qiu denied making any mention of Mr Huang during the call.
It was submitted that Mr Huang had been employed as a full-time massage therapist of the business since February 2018 and that he is well known to the clients who regularly attend the Chatswood store. Letters of support were also provided from several individuals who received massage services from Mr Huang at the Chatswood store.
On review, the Tribunal received a submission from the applicant’s representative together with supporting documents. Of significance, the Tribunal received a copy of the material provided in relation to Mr Huang’s application for review of the decision to cancel his Subclass 457 visa under s 116(1)(b) of the Act. The Tribunal also received a copy of the decision of the Tribunal, differently constituted, dated 28 August 2019 which detailed the evidence upon which the Tribunal relied to conclude that the applicant had only ever worked in the nominated occupation of massage therapist for the sponsor.
The documentary evidence provided included pay slips, bank statements and PAYG summaries evidencing Mr Huang’s employment with the applicant since February 2018. Also provided was a letter from Medibank, dated 8 June 2018, confirming that Mr Huang’s application to become a Medibank recognised provider of remedial massage had been approved on 4 June 2018 and issuing him with a provider number. The trading address noted was that of the applicant’s business at Chatswood. Receipts for massage services provided by Mr Huang at the Chatswood location and claimed via Medibank were also provided. Mr Huang had also provided numerous letters of support from his regular clients at the Chatswood store. The decision record indicates that a number of those clients were contacted by the Tribunal, differently constituted, without notice and that they had confirmed that they know the applicant and had received massage services from him at the Chatswood store. Oral evidence was also received from Ms Zheng and Mr Huang and the Tribunal, differently constituted, found their evidence about Mr Huang’s employment with the applicant to be credible and consistent.
At the hearing before the present Tribunal, Ms Zheng gave unequivocal evidence that Mr Huang has been employed full time in her business as a massage therapist since February 2018. She provided evidence about meeting, interviewing and deciding to employ Mr Huang in the position. She stated that it was unfortunate Mr Huang had taken a day off when the ABF officers visited. She stated that she has another massage business in Blacktown which was monitored around the same time and she had received confirmation from the Department that the outcome was satisfactory. Ms Zheng stated that Mr Huang worked at the Chatswood store, was known to the workers in the neighbouring businesses and had regular clients to whom he provided massage services.
The Tribunal discussed with Ms Zheng the unfavourable evidence in the NOITTA and expressed its concern that two of the workers at the shop had told ABF officers that they did not know Mr Huang when shown his photograph. In response, Ms Zheng stated that she could not explain why they denied knowing Mr Huang, but she understands that everyone at the shop was shocked and very nervous when the officers were questioning them and they thought Mr Huang may have been in some kind of trouble and did not want to be associated with him. Ms Zheng stated that one of the employees (Lita) was very new but the other employee (Mo) had been there for a long time and knew Mr Huang. In relation to the evidence by Ms Qiu, Ms Zheng emphatically stated that she had not instructed Ms Qiu to inform the ABF officers that Mr Huang worked there. She stated that this was an assumption made by the ABF officers about the phone call and there was no mention of Mr Huang. The Tribunal noted that Ms Qiu could not provide the officers with evidence of Mr Huang’s work or a roster. In response, Ms Zheng stated that she keeps the schedule of shifts and Ms Qiu did not have access to the roster.
The Tribunal acknowledged the substantial amount of material provided to evidence Mr Huang’s employment, including letters from neighbouring businesses indicating that they know him and that he works at the store in Chatswood, letters from Mr Huang’s regular clients and HICAPS receipts for massage services he had provided at the Chatswood store. When asked whether it was possible that any of the other employees used Mr Huang’s provider number at the store, Ms Zheng stated no this would not occur. She indicated that Ms Qiu had later obtained her own provider number. The other employees ceased employment with the business shortly after the ABF visit.
The Tribunal has carefully considered the evidence before it and notes that there is an overwhelming amount of evidence which, in combination, indicates that Mr Huang has been employed as a massage therapist at the Chatswood store.
In relation to the adverse information contained in the site visit records, the Tribunal accepts many of the explanations provided by the applicant’s director. While the Tribunal acknowledges the ABF officer’s concern that Ms Qiu may have been told by Ms Zheng to tell the officers that Mr Huang worked there, it is not clear on what basis that assumption was made because there is no admission by Ms Qiu in any of the records that she has been so instructed and it is unclear how the officers could have known what Ms Zheng had told Ms Qiu during the telephone conversation. Ms Zheng and Ms Qiu indicated that Ms Qiu had called Ms Zheng to ask her to watch the CCTV footage so she can view what was occurring at the store. They denied discussing Mr Huang’s employment or what Ms Qiu should say to ABF officers.
In the absence of substantive evidence regarding the telephone conversation between Ms Qiu and Ms Zheng, the Tribunal cannot be satisfied that Ms Zheng had in fact instructed Ms Qiu to provide inaccurate information about Mr Huang’s employment. It was explained to the Tribunal that ABF officers had requested to enter the business’ premises and that Ms Qiu had called Ms Zheng to inform her of this and to ask her to view the events on her CCTV footage. Ms Qiu stated that she terminated the call shortly after being requested to do so by ABF officers. Given Ms Qiu is not the owner or manager of the business, it is understandable that she would have wanted to inform Ms Zheng of the events that were unfolding in the store. The Tribunal considers that given Ms Zheng is the proprietor of the business, it would have been entirely appropriate for ABF officers to request to speak to Ms Zheng and to question her about Mr Huang’s employment, including requesting evidence of rosters, appointments and work schedules.
The people interviewed by the ABF officers during the site visit were all employees of the business and none appear to have had a supervisory or managerial role. In the circumstances, it is understandable that Ms Qiu may not have been able to produce any evidence or provide details of Mr Huang’s employment. Notwithstanding the ABF officers’ concerns about the reliability of Ms Qiu’s evidence, the records indicate that Ms Qiu informed officers that she did know Mr Huang and that he had worked at the business for the preceding 8 months. This appears consistent with other evidence before the Tribunal regarding Mr Huang’s employment with the applicant.
In relation to the evidence of the other two employees, the Tribunal notes that Ms Khunpaew, when shown a photograph of Mr Huang, stated that she had not seen him but also stated she had seen him once. This evidence is internally inconsistent and cannot be considered reliable. The other employee, Ms Mueller, who had only started working at the business two weeks prior denied ever seeing Mr Huang. It is plausible, as explained by Ms Zheng, that Ms Khunpaew and Ms Mueller may have been concerned that Mr Huang was in some sort of trouble and did not want to be involved. The evidence of Ms Khunpaew and Ms Mueller is not consistent with other evidence before the Tribunal and cannot be comfortably relied upon to confidently conclude that Mr Huang was not employed by the applicant as a massage therapist.
In considering the evidence overall, the Tribunal is not satisfied that the alleged breach of the obligation in r.2.86 to ensure that the applicant works in the nominated occupation has been established. Accordingly, the Tribunal is not satisfied that the prescribed circumstance in reg 2.89 exists for the purpose of s 140M of the Act.
Criteria no longer met: reg 2.91
The Minister may take one or more of the actions in s 140M if the sponsor no longer satisfies the prescribed criteria for approval of the sponsorship or for variation of the terms of the sponsorship: reg 2.91(2).
One of the requirements for approval as a standard business sponsor is that there is no adverse information known to Immigration about the applicant or a person associated with the applicant or it is reasonable to disregard that information: r.2.59(g). Relevantly, adverse information is defined in r.1.13A and includes, in relation to an approved sponsor, information that they have been the subject of administrative action (including being issued with a warning) for a possible contravention of such a law by a Department or regulatory authority that administers or enforces the law.

In this case, the applicant was issued with an Illegal Worker Warning Notice (IWWN) by the Department following the site visit conducted by ABF on 3 October 2018. During the site visit, ABF officers identified Ms Aranya Duangdee as one of the workers. Ms Duangdee was the holder of a visitor visa, which had a ‘no work’ condition imposed.
It is not in dispute that by being issued with the IWWN by the ABF, the applicant, who was an approved sponsor, became the subject of administrative action for a possible contravention of a law by the relevant regulatory authority. Therefore, adverse information became known to Immigration about the applicant. In the circumstances, the applicant failed to continue to satisfy the requirement for approval in reg 2.59(g)(i).
Regulation 2.59(g)(ii) requires consideration of whether it is reasonable to disregard the adverse information. In the response to the NOITTA, Ms Zheng conceded that she had employed a worker who did not have permission to work but contended that this was not intentional. Ms Zheng explained that Ms Duangdee used to work for her in 2014 as a subcontractor at the Blacktown business and that Ms Duangdee was then the holder of a student visa. Ms Zheng stated that Ms Duangdee had informed her that she had an Australian citizen partner and they have a child together. Ms Zheng stated that Ms Duangdee departed Australia for some time and, when she returned to Australia, she approached Ms Zheng for work and informed Ms Zheng that she had already applied for a partner visa. Ms Zheng stated that she was under the impression that Ms Duangdee had a bridging visa and could work.
At the hearing, the Tribunal put to Ms Zheng that she had been approved as a standard business sponsor since 2015 and had regularly employed staff who held various types temporary visas and that she would, or should, have appreciated the importance of ensuring that she only employ persons who were authorised to work in Australia. Ms Zheng acknowledged the Tribunal’s concerns and stated that it was an oversight on her part and she regrets what occurred. She stated that she has requested all her staff to provide proof of their visa status and work entitlements and that she would undertake these checks on a regular basis.
The Tribunal acknowledges Ms Zheng’s regret over the employment of Ms Duangdee who at the time of the site visit was not permitted to work in Australia. It also acknowledges that Ms Zheng has since put in place procedures to ensure that this failure does not occur in future. However, the Tribunal nevertheless considers that the onus was on Ms Zheng to ensure that the applicant continued to meet the requirements of the sponsorship approval and that as an employer they not fall foul of the law. Employing a lawful non-citizen in breach of a work-related condition, as occurred in this case, is an offence under the Migration Act. The offence attracts serious penalties even if the employer did not do so knowingly. For these reasons, the Tribunal is not satisfied that it is reasonable to disregard the ‘adverse information’ known to Immigration about the applicant. The applicant therefore does not continue to satisfy reg 2.59(g)(ii).
As the applicant does not continue to satisfy reg 2.59(g)(i) or (ii), the Tribunal finds that the applicant no longer satisfies the prescribed criteria for approval of the sponsorship. Accordingly, the Tribunal is satisfied that the prescribed circumstance in reg 2.91 exists for the purpose of s 140M of the Act.
Action to be taken
Given the above, 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, if any, the Tribunal has had regard to the prescribed criteria, as extracted in the attachment to this decision.
The nature of the applicable sponsorship criteria that the person no longer meets
As found above, the sponsorship criteria that the applicant no longer meets relates to the requirement that there is no adverse information known to Immigration about the applicant or an associated person or it is reasonable to disregard that information.
Whether, and the extent to which, the failure to continue to satisfy the criteria for approval as a work sponsor or family sponsor, or to continue to satisfy the criteria for approval of a variation, has had a direct or indirect impact on another person
The delegate considered that the failure to satisfy the criteria for approval as a sponsor had a direct impact on the illegal worker as she did not regulate her visa status and that this has had an effect on her supporting herself and her economic status. The Tribunal however accepts the representative’s submissions that there is no basis on which to conclude that Ms Duangdee failed to regulate her status due to the applicant providing her with employment.
There is no evidence before the Tribunal which suggests that Ms Duangdee was being exploited or underpaid by the applicant such that she was unable to support herself. The Tribunal nevertheless considers that the employment of Ms Duangdee by the applicant would have had a direct impact on Ms Duangdee as she would have been working in breach of the no work condition imposed on her visitor visa, which would have consequently been liable for cancellation.
The applicant conceded that their failure to check Ms Duangdee’s visa status and employing a person who did not have permission to work could potentially have an indirect impact on the Australian labour market generally. The Tribunal considers that the employment of Ms Duangdee who did not have permission work potentially deprived another person, either an Australian citizen or permanent resident or a temporary visa holder with permission to work, of employment with the applicant.
The Tribunal also considers that the failure to continue to satisfy the criteria for approval has given rise to a circumstance for which action can be taken under s 140M. That action would be considered adverse information known to Immigration about the applicant and could potentially be relied upon to refuse the permanent employer nomination made by the applicant in respect of Mr Huang. The failure therefore may have a direct impact on Mr Huang’s ability to satisfy the criteria for approval of a permanent employer nomination visa if the nomination in relation to him is not approved.
The reason why the person no longer satisfies the applicable sponsorship criteria, including whether the failure to satisfy the criteria is within the person’s control
As discussed above, the applicant does not continue to satisfy the sponsorship criteria in reg 2.59(g) because adverse information became known about the applicant which was not reasonable to disregard. The adverse information was the issuing of the IWWN by the ABF on the basis that the applicant had employed a person who held a visitor visa with a ‘no work’ condition. The Tribunal considers that it was entirely within the control of the applicant’s director, Ms Zheng, to undertake regular checks of her employees’ visa conditions which can be easily ascertained using the Department’s Visa Entitlement Verification Online (VEVO) facility.
The steps (if any) the person has taken to ensure that the person will satisfy the applicable criteria in the future
Ms Zheng has provided evidence that she has requested from all her employees evidence of their visa status and work permissions. At the hearing, Ms Zheng also gave evidence that she will undertake these checks before commencement of employment and will regularly check the status of employees.
Any other relevant factors
The applicant’s representative submitted that the applicant’s failure should be considered a once-off minor failure. The representative referred to the Department’s policy which indicates that the Department will normally attempt to resolve the failure or contravention through informal action if a minor failure is identified. The policy provides that a failure may be considered minor if all the following apply:
- it has no detrimental effect on a visa holder or on the Department’s capacity to monitor the sponsor
- it does not undermine the integrity or intent of the relevant visa programme
- there is no negative impact to Australia or Australian citizens and permanent residents
- the sponsor immediately rectifies the failure
- the failure was unintentional.
It was submitted that there was no evidence that the failure of the review applicant conducting VEVO check led to a detrimental effect on Ms Duangdee. It was submitted that there is no effect on the Department’s ability to monitor the review applicant. It was submitted that the failure was not directly linked to the integrity or intent of the relevant visa programme, being the temporary sponsored work programme.
It was submitted that any possible negative impact on the Australian labour market is speculative and remote. It was submitted that the review applicant has rectified their failure and implemented system immediately to ensure that the failure does not recur. It was also submitted that based on all facts and circumstances that the failure was unintentional.
The Tribunal has had regard to all the evidence and submissions as set out above. The Tribunal does not consider the failure of the applicant to continue to satisfy the requirement relating to Adverse information to be minor, though it accepts that it was a one-off incident. Employment of a person who does not have permission to work and failing to conduct checks regarding that person’s work entitlements is in contravention of s 245AC of the Act and is an offence which carries serious penalties.
The Tribunal accepts that the failure was unintentional and was the result of an uninformed assumption made on Ms Zheng’s part. The Tribunal also accepts that Ms Zheng has put in place procedures to ensure that regular checks are undertaken of employees’ visa status and work rights. The Tribunal gives these factors some favourable weight in its consideration.
The Tribunal considers that cancellation of the sponsorship would have been warranted if it had found that the applicant failed to satisfy the sponsorship obligation in reg 2.86, but as the Tribunal did not so find, it considers it appropriate to set aside the decision to cancel the approval of the sponsorship. This would effectively reinstate the applicant’s approval as a standard business sponsor until 3 April 2022.
The Tribunal nevertheless considers that some action is warranted in this case. The Tribunal has decided to bar the applicant for a period of three months from sponsoring any more people under the terms of the existing sponsorship approval. The period of the bar commences from the date of the delegate’s decision. This means that the bar ended on 4 May 2019. While the period of the bar has since passed, the decision to take one of the actions mentioned in s140M nevertheless recognises that a failure to continue to satisfy the criteria for sponsorship approval did occur and that action commensurate to that failure should be taken.
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) to bar the applicant for a period of three months from sponsoring more people under the terms of the existing approval as a standard business sponsor should be taken.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision to bar the applicant for a period of three months (from the date of the delegate’s decision) from sponsoring any more people under the terms of the existing approval as a standard business sponsor.
R. Skaros
Senior 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.
…
2.91   Application or variation criteria no longer met
…
(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 nature of the applicable sponsorship criteria that the person no longer meets; and
(b)    whether, and the extent to which, the failure to continue to satisfy the criteria for approval as a work sponsor or family sponsor, or to continue to satisfy the criteria for approval of a variation, has had a direct or indirect impact on another person; and
(c)     the reason why the person no longer satisfies the applicable sponsorship criteria, including whether the failure to satisfy the criteria is within the person’s control; and
(d)    the steps (if any) the person has taken to ensure that the person will satisfy the applicable criteria in the future; and
(e)     any other relevant factors.
…

[2021] AATA 3548

18 August 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Remedies

Procedural Fairness