Lagoon Caravan Pty Ltd (Migration)

Lagoon Caravan Pty Ltd (Migration) [2023] AATA 3084 (12 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Lagoon Caravan Pty Ltd
REPRESENTATIVE:  Mr Sanji Caldera (MARN: 0635492)
CASE NUMBER:  2106974
HOME AFFAIRS REFERENCE(S):          OPF2021/314
MEMBER:Amanda Mendes Da Costa
DATE:12 September 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to take one or more of the actions specified in s 140M of the Migration Act 1958 (Cth).
Statement made on 12 September 2023 at 2.31pm

CATCHWORDS
MIGRATION – sponsorship cancellation or bar – sponsorship obligations – ensuring equivalent terms and conditions of employment – false and misleading information – underpayment and late payments – nominee ceased employment – impact of the COVID-19 pandemic lockdowns – extra voluntary unpaid leave – salary payments were eventually made – financial hardship – decision under review set aside
LEGISLATION
Migration Act 1958, s 140
Migration Regulations 1994, rr 2.79, 2.83, 2.84, 2.89-2.94
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
1.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 (Cth) (the Act) in relation to the applicant’s sponsorship.

The applicant was approved as a standard business sponsor on 13 July 2012. On 7 May 2021, the delegate decided to cancel the applicant’s approval as a standard business sponsor under s 140M on the basis that it had failed to satisfy its sponsorship obligations and had provided false and misleading information to the Department.
3.Via an internet-enabled audio-visual platform, Mrs Vilani Perera appeared on behalf of the applicant before the Tribunal on 24 August 2023 to give evidence and present arguments.
4.The Tribunal determined it was reasonable to hold the hearing by video, having regard to the nature of this matter and the individual circumstances of Mrs Perera and 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 be conducted by video. The Tribunal was satisfied that Mrs Perera, the applicant’s representative and the Tribunal could satisfactorily see, hear and understand each other throughout the hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments to the Tribunal.
5.The applicant was represented in relation to the review, with its representative also participating in the hearing.
6.At the commencement of the Tribunal hearing, the Tribunal explained to the Mrs Perera the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision. The Tribunal also explained the role of the applicant’s representative during the hearing. The Tribunal informed Mrs Perera that it would seek submissions from both her and the applicant’s representative toward the end of the Tribunal hearing on any matter they considered relevant to the applicant’s review.
The Department file also contained a certificate issued under s375A of the Act and dated 15 August 2023. The Tribunal explained the contents of the certificate to Ms Perera during the hearing and the basis for the Department seeking to ensure that the information covered by the certificate is not disclosed to any person other than to a member of the Tribunal. The Tribunal indicated it had formed a preliminary view that the certificate is valid and binds the Tribunal but invited Ms Perera to comment on the certificate including its validity. It also gave Mrs Perera the opportunity to discuss the matter with the applicant’s representative, prior to responding to the Tribunal.
Mrs Perera indicated that she did not wish to discuss the matter with the applicant’s representative before responding and accepted the validity of the certificate. She made no further comments regarding the certificate.
The Tribunal finds that the certificate is valid and therefore has not disclosed its contents to ither the applicant or its representative.
10.For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision not to take one or more of the actions specified in s 140M.
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.
Background
The Australian Border Force (ABF) commenced monitoring the applicant’s compliance with its sponsorship obligations on 4 January 2021.
On 17 March 2021 the ABF wrote to the applicant in the form of a Notice of Intention to Take Action (NOITTA) which stated that a delegate of the Minister was considering taking action against the applicant under s140M of the Act.
The NOITTA provided an opportunity for the applicant to comment on or respond to the delegate’s concerns that it had failed to satisfy its sponsorship obligations (Regulation 2.89) and had provided false or misleading information (regulation 2.90).
In the NOITTA the delegate identified that the applicant may have failed to satisfy the following sponsorship obligations:
Regulation 2.79 – Obligation to ensure equivalent terms and conditions of employment
The nomination application for Prabath Aravinda Galhenage Don (the sponsored person) to work for the applicant as a Cabinet Maker (ANZSCO 394111) was approved on 16 August 2018 with guaranteed annual earnings of $54,000 based on a 38 hour week.
The delegate analysed the payments made by the applicant to the sponsored person over a 12-month period from June 2019 to June 2020 as recorded in its business bank statements and payslips.
Based on these records, the delegate found that the total amount received by the sponsored person for that 12-month period was $47,769.16 (gross). The delegate further found that he was entitled to receive a gross salary of $54,000 for this period.
Accordingly, the delegate found that the sponsored person had been underpaid a sum of $6,230.84 (gross) and that this meant that the applicant had failed to meet its sponsorship obligation for the sponsored person, set out in reg 2.79.
Regulation 2.83 – Obligation to provide records and information to the Minister
On 6 January 2021 the ABF sent the applicant a Notice requesting records and/or information under reg 2.83. The Request included but was not limited to, hours worked by the sponsored persons and evidence of work performed in their respective nominated positions for the period specified (1 June 2019 to 1 June 2020). The applicant was given 14 calendar days in which to respond, with the due date being 20 January 2021.
The delegate found that the applicant did not provide the requested records to the Department and had therefore failed to meet its sponsorship obligation in reg 2.83.
Regulation 2.84 – Obligation to provide information to Immigration when certain events occur
The delegate found that there was no information on Departmental records to indicate that the applicant’s advised the Department within the prescribed timeframes or by the prescribed method that its former sponsored person ceased its employment with it on 16 November 2020. Accordingly, the delegate found that the applicant had failed to satisfy the sponsorship obligation set out in reg 2.84.
Regulation 2.90 – Provision of false or misleading information
The applicant provided the Department with payslips for the sponsored person for the audit period June 2019 to June 2020. Those payslips indicate that the sponsored person was paid regularly on a fortnightly basis.
For the same audit period, the applicant provided the Department with business bank statements showing salary payments to the sponsored person’s bank account. These records show that only two of the 23 payments were made on the date indicated on the payslip.
The delegate found that given the applicant had provided payslip records misrepresenting salary payments to the sponsored person, this constituted the provision of false or misleading information to the Department.
Response to NOITTA
On 22 March 2021 the applicant provided the Department with a written response to the NOITTA which may be summarised as follows:
·Although the sponsored person was employed by the applicant as a Cabinetmaker on an annual salary of $54,000, the business experienced difficulties due to the Covid-19 pandemic and constant lockdowns in Victoria. The applicant’s business was required to close during the lockdowns as it was designated as a non-essential business. The applicant did not make salary payments to some employees (including the sponsored person) given the financial difficulties experienced by the business.
·The sponsored person also took extra unpaid leave over the Christmas holiday period.
·The employment records requested by the Department were provided by the applicant to its previous migration agent on 29 January 2021 and was placed in the “Junk” folder of his business email system during the closure of the office over the holiday period. After a follow-up enquiry, the documents were provided to the ABF on 10 February 2021.
·The applicant accepts that it failed in its responsibility to advise the Department when the sponsored person ceased his employment with the business. This was due to an administrative error and was not done deliberately.
·Due to the extreme cash flow difficulties experienced by the business during the Covid-19 pandemic, it was unable to make its salary payments to employees on time. However, it did make its best endeavours to make salary payments to them, even if it was not on the due date. The applicant did not change the due date details for each employee as it never intended to mislead the Department about the date on which salary payments were due.
Evidence of Mrs Perera at the hearing
Mrs Perera is responsible for administrative and human relations management for the applicant company and for the purpose of the review is authorised to speak on its behalf. She explained that the applicant’s business is operated by her husband and involves the design and manufacture of custom built on-road and off-road caravans. It has been operating this business for the past 13 years.
The business currently employs 15 employees (in addition to Mr and Mrs Perera) and is located in Campbellfield, Victoria. The applicant was initially approved as a standard business sponsor for the period 13 July 2012 to 13 July 2015. The applicant was further approved as a sponsor from 2 August 2016 to 1 August 2021. Prior to the cancellation of the applicant standard business sponsorship, the applicant successfully sponsored six other employees who were holders of subclass 457 visas.
Mrs Perera explained that the sponsored person was employed by the applicant as a Cabinet maker from 18 January 2019 to 16 November 2020. He voluntary ceased that employment in order to return to his family whom he had not seen for some years.
The Tribunal discussed with Mrs Perera the delegate’s finding that the ABF had sent the applicant a Notice requesting records/ and or information on 6 January 2021 and that the applicant had not responded to this request. Mrs Perera explained that the Notice had been sent to the company’s previous migration agent and due to the applicant’s business being closed during the January 2021 holiday period, she did not read the email from the ABF which was sent to her from the company’s agent. However, she pointed out that the applicant had provided the requested documents to the ABF, albeit at a date later than that initially stipulated.
The Tribunal also questioned Mrs Perera about the finding by the delegate that the applicant given greater had underpaid the sponsored person during the period June 2019 to June 2020 a total sum of $6,230.84. In response, Mrs Perera explained that the sponsored person was paid all salary, superannuation and leave entitlements during that period. However, he had voluntarily taken unpaid leave which resulted in his total salary payments for the above period being $51,411 rather than his stated salary of $54,000.
In relation to the delegate’s finding that the applicant had failed to advise the Department (as required) that the sponsored person had ceased his employment with the applicant on 16 November 2020, Mrs Perera conceded that the applicant had failed in respect of this sponsorship obligation. She explained that it was her responsibility to handle sponsorship responsibilities within the business and until the applicant received the NOITTA she was not aware that she was required to information the Department about the cessation of the sponsored person’s employment.
The Tribunal discussed the finding by the delegate that of the 23 salary payments made to the sponsored person during the period June 2019 to June 2020, only two were made on the date indicated on the payslip. In response, Mrs Perera conceded that this was correct and that it occurred because of the financial difficulties experienced by the business during the Covid-19 pandemic when lockdowns imposed by the Victorian government had a negative impact on the tourist industry and customer orders were either reduced or cancelled.
Mrs Perera said that the cash flow difficulties experienced by the business made it difficult to make salary payments to the sponsored person on time but emphasized that all required salary payments had eventually been made to him.
Mrs Perera told the Tribunal that she had learnt from past mistakes regarding the applicant’s sponsorship’s obligations and obligations to provide correct information to the Department. She said that the applicant had not previously experienced any difficulties in sponsoring its other subclass 457 visa employees and had never been the subject of previous investigation or action by the Department.
The Tribunal questioned Mrs Perera about whether the applicant had implemented any processes to ensure future compliance with any future sponsorship obligations. Although she conceded that the applicant had not implemented any particular processes Mrs Perera said that she was now much more aware of the business’s obligations towards any sponsored employees and the Department. She further explained that since the lifting of Covid-19 restrictions in Melbourne, the business had received numerous orders for new caravans and its cash flow situation had improved. She explained that the business now had no problems in make salary payments on time.
Mrs Perera explained to the Tribunal that Melbourne (and in particular Campbellfield) is the centre of caravan manufacturing in Australia and there are numerous companies vying with the applicant for skilled and experienced employees. She said that Australia is experiencing a shortage in recruiting suitable staff and intends (if permitted) to sponsor further employees. She assured the Tribunal that if the applicant sponsored any further employees, she would ensure that it complied with its sponsorship obligations.
Applicant’s submissions
It was submitted on behalf of the applicant that the Tribunal should accept the oral evidence of Mrs Perera regarding the applicant’s employment of the sponsored person and its compliance with its sponsorship obligations. It was further submitted that in the event the Tribunal made adverse findings against the applicant, it should not take any further action against the company for the following reasons:
·the applicant has successfully sponsored six subclass 457 visa holders, prior to employing the sponsored person;
·prior to the current matters, it has no history of non-compliance with its sponsorship obligations or failure to co-operate with the Department;
·the applicant has cooperated with the audit process and responded to the NOITTA in a timely manner. Its previous failure to respond the Notice requesting records and/or information was due to a misunderstanding and not because it was refusing to cooperate with the ABF.
·the applicant has been prevented from sponsoring any visa holders since the cancellation of its standard business sponsorship – over two years ago.
·The applicant is now fully aware of the obligations of a sponsor and intends to comply with them in future.
Does a circumstance for the taking of an action exist?
42.In the present case, the delegate found that the applicant had failed satisfy a sponsorship obligation (reg 2.89) and provided false or misleading information to the Department (reg 2.90) in respect of the sponsored person.
43.The delegate found that the applicant had failed to comply with its sponsorship obligation under reg 2.79 to ensure equivalent terms and conditions of employment in underpaying the sponsored person the sum of $6,230.84 over a 12 month period; had failed to provide records and information to the Minister as requested by the Department on 6 January 2021, in accordance with reg 2.83; had failed to advise the Department that the sponsored person had ceased his employment with it on 16 November 2020; and had provided false or misleading information to the Department in relation to payslips for the sponsored person.
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).
Failure to satisfy a sponsorship obligation to ensure equivalent terms and conditions of employment: Regulations 2.79
45.The Tribunal accepts that the sponsored person’s gross salary for the period June 2019 to June 2020 was $54,000. It notes that although the applicant does not concede that the sponsored person was underpaid the sum of $6,230.84 for this period (as found by the delegate) it does acknowledge that was only paid the sum of $51,411 and not $54,000. During the hearing, Mrs Perera explained this shortfall by stating that the sponsored person took unpaid leave during the 2019 Christmas holiday period. At the conclusion of the hearing, the Tribunal afforded the applicant an opportunity to provide any further documentation in support of the review. On 29 August 2023 the applicant provided the Tribunal with an email in which it advised that the sponsored person took unpaid leave during the periods 13 August 2020 to 25 September 2020 and 20 October 2020 to 6 November 2020. However, the Tribunal notes that the applicant has not provided any employment records or other documentation to support its claim that the sponsored person took unpaid leave (at his own request). In such circumstances, the Tribunal has given greater weight to the findings of the delegate who analysed the payments made by the applicant to the sponsored person for the period June 2019 to June 2020 as recorded in the business bank statements and payslips obtained from the applicant. The Tribunal therefore finds that the total amount received by the sponsored person for that 12 month period was $47,769.16 (gross) when he was entitled to receive a gross salary of $54,000 for this period.
46.Accordingly, the Tribunal finds that the applicant failed to satisfy a sponsorship obligation to ensure equivalent terms and conditions of employment set out in reg 2.79.
Failure to satisfy a sponsorship obligation to provide records and information to Minister: Regulation 2.83

Although the applicant provided the requested documents to the ABF the Tribunal is satisfied that it did not comply with the request within the specified timeframe of 14 calendar days. The Tribunal accepts there was some confusion on the part of the applicant and its former migration agent about the documents to be provided and that the request was made during a holiday period. However, the Tribunal is satisfied that the Notice requesting records and/or information was sent to the address provided by the applicant for the purpose of communications with the Department and finds that the Notice was properly served on the applicant.
The Tribunal therefore finds that the applicant failed to respond to the Notice within the prescribed timeframe of 14 days and accordingly failed to meet the sponsorship obligation set out in reg 2.83.
Failure to satisfy a sponsorship obligation to provide information when certain events occur: Regulation 2.84
The Tribunal accepts the evidence of Mrs Perera and finds that the applicant failed in its obligation to advise the Department that the sponsored person had ceased his employment with it on 16 November 2020 within the prescribed timeframe or by the prescribed method.
50.The Tribunal is therefore satisfied that the prescribed circumstance in reg 2.89 exists for the purpose of s 140M of the Act.
False or misleading information: reg 2.90
One or more of the actions in s 140M may be taken if the sponsor has provided false or misleading information to Immigration or the Tribunal: reg 2.90(2).
In her oral evidence Mrs Perera conceded that of the 23 salary payments made to the sponsored person during the period June 2019 to June 2020, only two were made on the date indicated on the payslip.
The Tribunal accepts that the restrictions imposed on Victorian businesses during the Covid-19 pandemic are likely to have adversely affected the financial position of the applicant’s business with reduced and cancelled orders for new caravans. However, the Tribunal notes that approximately half of the 23 salary payments were made to the sponsored person prior to the commencement of the pandemic in March 2020. In any event, the Tribunal is satisfied that the reason for salary payments not being made to the sponsored person on the respective due dates was because of financial difficulties being experienced by the business.
The Tribunal accepts that the applicant did not update its payroll system to reflect the changes in the salary payment dates for the sponsored person and it provided information to the ABF which was false and/or misleading.
55.Accordingly, the Tribunal is satisfied that the prescribed circumstance in reg 2.90 exists for the purpose of s 140M of the Act.
Action to be taken
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.
Regulation 2.89 – Failure to satisfy sponsorship obligation
The past and present conduct of the person in relation to Immigration
Departmental records show that the applicant was first approved as a standard business sponsor on 13 July 2012 has successfully nominated six Subclass 457 visa holders. There is no evidence that the applicant has previously been monitored. The Tribunal further accepts that the applicant responded to the NOITTA and has subsequently cooperated with the Department during the monitoring audit.
The number of occasions on which the person has failed to satisfy the sponsorship obligation
The applicant failed to ensure that the sponsored person was paid his guaranteed annual earnings and the Tribunal therefore finds that it has failed to satisfy its sponsorship obligations on one occasion. The Tribunal is further satisfied that the applicant provided false and misleading information to the Department in respect of the sponsored person by providing payslips for him, which showed that he was paid regularly on a fortnightly basis for the audit period June 2019 to June 2020.
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 Tribunal considers that the applicant’s failure to comply with reg 2.79 is a serious one which resulted in the sponsored person being underpaid a total of $6230.84 (gross) for the period June 2019 to June 2020.
The period of time over which the person has been an approved sponsor
The Tribunal accepts that until the cancellation of the applicant’s standard business sponsorship, it had been a sponsor for a period of approximately nine years and no had previous history of failure to satisfy its sponsorship obligations.
Whether, and the extent to which, the failure to satisfy the sponsorship obligation has had a direct or indirect impact on another person
The applicant’s failure to ensure the sponsored person received his approved guaranteed earnings had a direct and significant impact on him in that he was underpaid a total of $6,230.84 over a 12 month period.
Whether, and the extent to which, the person has cooperated with Immigration, including whether the person informed Immigration of the failure
Departmental records show that the applicant cooperated with it during the course of the monitoring audit of its activities. However, the Tribunal finds that applicant did not inform the Department of its failure to comply with its sponsorship obligations, which were discovered by the Department’s monitoring procedures.
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
The Tribunal accepts that applicant’s business suffered financially due to reduced business opportunities during the Covid-19 pandemics and that this resulted in the applicant delayed payment of the wages of its employees. The Tribunal further accepts that the applicant informed them that they would eventually be repaid in full.
The processes (if any) the person has implemented to ensure future compliance with the sponsorship obligation
The Tribunal accepts Mrs Perera has become more vigilant in respect of employment arrangements, record keeping and salary payments since the applicant’s SBS was cancelled, but there is no evidence before the Tribunal of the applicant implementing any formal processes to ensure future compliance with any sponsorship obligations.
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
There is no evidence before the Tribunal that the applicant has failed to comply with any other of its sponsorship obligations and this was confirmed by Mrs Perera in her evidence during the hearing.
Regulation 2.90 – provision of false or misleading information
The purpose for which the information was provided
The information was provided by the applicant for the audit period June 2019 to June 2020. The payslips were provided by it to demonstrate that the sponsored person was paid regularly on a fortnightly basis.
The applicant’s past and present conduct in relation to Immigration
There is no evidence before the Tribunal which indicates that applicant has previously provided any false or misleading information to the Department and Departmental records show that it has only been the subject of a monitoring audit on this one occasion.
The nature of the information
Departmental records show that on 10 February 2021 the applicant provided the Department with the sponsored person’s payslip records and business bank statements, showing salary payments to him for the audit period June 2019 to June 2020. The payslips provided indicate that the sponsored person was paid regularly on a fortnightly basis.
The Tribunal notes that the bank statements show that of the 23 salary payments made to the sponsored person’s bank account only two were made on the date indicated on the payslip.
Whether and the extent to which, the provision of the false or misleading information has had a direct or indirect impact on another person
There is no evidence before the Tribunal which indicates whether and the extent to which, the provision of the false or misleading information has had a direct or indirect impact on another person.
Whether the information was provided in good faith
The Tribunal accepts that the payslips and bank statements in response to the Notice requesting records and/or information (dated 6 January 2021) were not provided by the applicant in order to deliberately mislead the Department and were generated by a payroll system error. The Tribunal further accepts that the applicant did not amend the payslips to reflect the correct payment dates to correspond with its bank statements.
Whether the applicant notified Immigration upon discovering that the information was false or misleading
The Tribunal is satisfied that the ABF discovered the information was false and/or misleading and that the applicant did not notify Immigration about it.
Other relevant matters in respect of Regulations 2.89 and 2.90
In this case, the delegate decided to cancel the applicant’s standard business sponsorship. The Tribunal notes that the applicant’s most recent period of SBS ceased on 1 August 2021. Therefore, at the time of this decision, the applicant has ceased to be a standard business sponsor. It is therefore not open to the Tribunal to take any of the actions in s 140M(1) which relate to approved sponsors. The only actions the Tribunal can take in this matter are those specified in s 140M(2).
Section s 140M(2) provides for actions that may be taken in relation to former approved sponsors, and this includes barring the person, for a specified period, from making future applications for approval as a sponsor. The Tribunal does not consider it appropriate, having regard to all the relevant circumstances, to impose any future sanctions on the applicant.
As the Tribunal is not authorised under the Act to take any of the actions in s 140M(1) and it does not consider it appropriate to impose any future sanctions on the applicant, the Tribunal has decided to set aside the decision under review and substitute a decision not to take one or more of the actions specified in s 140M of the Act.
DECISION
76.The Tribunal sets aside the decision under review and substitutes a decision not to take one or more of the actions specified in s 140M of the Migration Act 1958 (Cth).
Amanda Mendes Da Costa
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.
…
2.90   Provision of false or misleading information
…
(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 purpose for which the information was provided; and
(b)    the past and present conduct of the person in relation to Immigration; and
(c)     the nature of the information; and
(d)    whether, and the extent to which, the provision of false or misleading information has had a direct or indirect impact on another person; and
(e)     whether the information was provided in good faith; and
(f)     whether the person notified Immigration immediately upon discovering that the information was false or misleading; and
(g)     any other relevant factors.
…

[2023] AATA 3084

12 September 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Natural Justice