Melbourne Scooters Pty Ltd (Migration)
[2024] AATA 1070
•2 May 2024
Melbourne Scooters Pty Ltd (Migration) [2024] AATA 1070 (2 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Melbourne Scooters Pty Ltd
REPRESENTATIVE: Mr Michael Kotsifas
CASE NUMBER: 2301872
HOME AFFAIRS REFERENCE(S): OPF2021/10323
MEMBER:Susan Hoffman
DATE:2 May 2024
PLACE OF DECISION: Perth
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 02 May 2024 at 8:57am
CATCHWORDS
MIGRATION – sponsorship cancellation or bar – record keeping obligations – ensuring work in the nominated occupation – nominee did not receive his Guaranteed Annual Earnings – position of motor mechanic – employment details provided within time – Skills Assessment Result verified – nominee identified by other employees – power to take an action does not arise – decision under review set aside
LEGISLATION
Migration Act 1958, s 140
Migration Regulations 1994, rr 2.72, 2.83, 2.86, 2.89-2.94STATEMENT 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 (Cth) (the Act) in relation to the applicant’s sponsorship.
The applicant was first approved as a standard business sponsor on 10 June 2014 and again on 16 November 2020. On 25 January 2023, the delegate decided to cancel the applicant’s approval as a standard business sponsor and to bar the applicant for 12 months from making applications for approval as a standard business sponsor or temporary activities sponsor from the date of decision under s 140M. The delegate’s decision was made on the basis that on one occasion the applicant failed to meet the obligation to provide records and/or information; and also failed to ensure the sponsored person worked or participated in the nominated occupation, program or activity.
Mr Bhupesh Kukreja, the owner of the applicant business, appeared before the Tribunal on 11 April 2024 to give evidence and present arguments. Ms Payal Chawla, the sponsored person, was also present. The applicant was represented in relation to the review.
The Tribunal has also relied on a written submission lodged on 10 February 2024.
Mr Kukreja’a brother, Mr Mukesh Kukreja, is employed by Melbourne Scooters Pty Ltd. To avoid confusion, any reference to Mr Kukreja is a reference to Mr Bhupesh Kukreja, and for the sake of clarity, the Tribunal will refer to his brother as Mukesh.
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.
Does a circumstance for the taking of an action exist?
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).
In the present case, the delegate found that regs 2.83 and 2.86 had been breached. They are appended in full to this Statement.
Reg 2.83 concerns the obligation to provide records and information to the Minister and reg 2.86 concerns the obligation to ensure the primary sponsored person (Ms Chawla) works or participates in the nominated occupation, program or activity. Ms Chawla was employed to work as a motor mechanic, working with scooters (ANZSCO Code - Motor Mechanic (General) 321211). At the relevant time she was the holder of a Subclass 482 visa.
The Tribunal will first consider the whether the applicant breached reg 2.83.
Did the applicant breach their obligation under reg 2.83 to provide records and information to the Minister?
On 23 June 2022, Australian Border Force (ABF) issued a Notice of Intention to Take Action (NOITTA) to Melbourne Scooters Pty Ltd. In that document, the delegate referred to a notice issued on 22 December 2021, which required the applicant to provide specified records and/or information within 21 calendar days from the day they were taken to have received the notice dated 22 December 2021.
There were 22 categories of records and/or information requested. The applicant responded on 12 January 2022. In the NOITTA, the delegate stated that the applicant had provided most of the requested records but “failed to provide evidence demonstrating the tasks performed by your sponsored person”.
The applicant’s email of 12 January 2022 to the ABF officer is brief. It reads “Hi Cengiz, Plz find attached document as requested on 22 December.” As is standard with emails, attachments were recorded as part of the email header and included “current employment contract _Payal Chawla.pdf”.
The departmental records provided by the Department to the AAT included copies of the records and information provided by the applicant to ABF on 12 January 2022. They included the employment agreement between the applicant and Ms Chawla. The agreement referred to a detailed job description attached to the agreement as Appendix A. Appendix A was included with the documents provided to ABF on 12 January 2022. Under a subheading “Duties and responsibilities”, it set out the details of the tasks Ms Chawla was required to undertake as a motorcycle mechanic.
The Tribunal is satisfied that the applicant did provide ABF with evidence demonstrating the tasks performed by Ms Chawla, and that the evidence was provided by the due date.
The Tribunal finds that the applicant did not breach their obligation under reg. 2.83.
Did the applicant breach their obligation under reg 2.86 to ensure Ms Chawla worked or participated in the nominated occupation, program or activity?
As noted, the nominated occupation was that of motor mechanic (ANZSCO code 321211). Reg 2.86(2) required the standard business sponsor must ensure the Subclass 482 visa holder works in the nominated occupation.
On Wednesday 15 December 2021, ABF officers conducted an unannounced site visit at the applicant’s premises. It is agreed that Ms Chawla was not on the premises that day.
Mr Kukreja’s and Ms Chawla’s evidence is that she was absent from work between 10 and 15 December 2021 due to illness. On Friday 10 December 2021, she called the workshop to say she was unwell. In a statutory declaration Mr Kukreja wrote that Ms Chawla also phoned in on Monday 13 December 2021 and Tuesday 14 December 2021. At those times she informed him she was still unwell and would not be attending work, and had undergone pathology tests as requested by her doctor.
Ms Chawla provided evidence of her attending her general practitioner’s surgery on 11, 14 and 15 December 2021, and of being referred by her doctor to Capital Radiology. In her statutory declaration dated 1 July 2022, Ms Chawla wrote that she had been referred for a CT scan and pathology tests.
The Tribunal will first consider whether there is sufficient evidence to find that Ms Chawla was employed by the business and, if so, then consider whether there is sufficient evidence to find that she was employed as a motor mechanic.
The evidence of Mr Kukreja and Ms Chawla was that Ms Chawla was employed by the business from May 2021. In addition to the employment contract referred to earlier, other evidence of Ms Chawla working for the business were its pay records and Ms Chawla’s ANZ bank statements. The latter record weekly payments of $842.46 being deposited into her bank account from 27 May 2021 to 5 January 2022. The weekly payments increased to $863.46 from 12 January 2022 to 27 July 2022 and to $863.75 in August 2022. Each of these deposits was recorded as “Payment from Bhupesh Kukreja. Wages Melb Scoot Payal.”
Also relevant is that on 14 December 2021, the day before the site visit, Ms Chawla’s sister emailed to Mr Kukreja a copy of the referral made by Ms Chawla’s doctor. This was done by way of proof of Ms Chawla being unable to attend work as she was unwell and going to medical appointments.
It is hard to envisage why Ms Chawla (or her sister) would have emailed that information to Mr Kukreja if Ms Chawla was not employed by the business. The only plausible explanation is to explain her non-attendance at work.
In light of the foregoing, the Tribunal is satisfied that Ms Chawla was employed by Melbourne Scooters Pty Ltd before and at the time of the site visit.
The Tribunal will now consider whether she was employed as a motor mechanic or in another capacity.
In his decision, the delegate referred to three images identified as attachments 10,11 and 12 to the NOITTA issued by the ABF on 23 June 2022. In brief, the ABF asked for evidence of communications between Mr Kukreja and Ms Chawla that were work-related. The Tribunal observes that as they were often working in the same workshop, there was little need for them to communicate with each other by phone or send emails or text messages to each other.
The images provided to the ABF were to do with three tasks undertaken by Ms Chawla that were clearly not related to the duties of a mechanic. These were picking up lights for a new showroom, providing details of a phone call Mr Kukreja had missed to him and depositing cheques into the business bank account.
The delegate wrote that it was reasonable for a sponsored worker to, on occasion, undertake duties that are incidental to their role, such as picking up parts or answering phones. At the same time, performing these duties is not evidence of the sponsored person working in their nominated position. The Tribunal agrees with this assessment.
During the site visit, the officers recorded their conversation with Mr Kukreja. Parts of conversations with employees of the business were also recorded. The Tribunal has listened to the recording. The applicant has not. Mr Kukreja and other employees who were there that day provided statutory declarations which referred to what was said during the site visit. In drawing up their statutory declarations, they have had to rely on their memories whereas the Tribunal has had the benefit of the recording. As noted earlier, Ms Chawla also provided a statutory declaration.
The Tribunal referred earlier to the email sent to Mr Kukreja on 14 December 2021 by Ms Chawla’s sister. Mr Kukreja offered to forward this email to one of the ABF officers and that was done during the site visit. The Tribunal would observe, based on the recoding, that at all times during the site visit, it appeared that Mr Kukreja was doing his best to assist the officers. There was no sense of him being deceptive or evasive.
There seemed to be some doubt in the officers’ minds as to whether Ms Chawla had the skills to work as a mechanic. The documents include a Skills Assessment Result dated 1 October 2020 and signed by the executive director of VETASSESS. According to that result, the assessment was undertaken by Trades Recognition Australia for the purpose of the Migration Regulations 1994. The assessment of Ms Chawla’s skills as a motor mechanic was successful.
The Tribunal arranged for that document to be verified. VETASSESS advised on 21 February 2024 that the document referred to in the previous paragraph had been issued by VETASSESS.
Given that, the Tribunal is satisfied that Ms Chawla has the skills to work as a motor mechanic.
As its name suggests, Melbourne Scooters Pty Ltd, services and repairs motorbikes and scooters. During the onsite visit, some of the conversation centred on whether Ms Chawla, who had previously worked with cars, had the skills to service and repair motorbikes and scooters as she had not previously worked with motorcycles or scooters.
Mr Kukreja referred to the difficulty of getting skilled mechanics and was essentially explaining that a car mechanic’s skills are transferable to motorbikes and scooters. He referred to occasions when Ms Chawla needed assistance with complex problems. He also said he assisted her and the other mechanics in sorting out very complex mechanical issues.
In his decision, the delegate referred to statements made by other employees with regard to Ms Chawla on the day of the site visit. The Tribunal has transcribed the first part of the recording of the site visit. Mr Kukreja was not present at that point in time and his brother MukeshI spoke to the oficers. The recording starts:
ABF: And you are the brother of Bhupesh who is the owner of …
BK: My brother calls me … [the next part sounds like BK is talking to his brother on the phone]
ABF: Can you just tell me the names of the mechanics again?
BK: Yep. One is … my name is Mukesh, one is Sarbjot.
ABF: How do you spell it? S A?
BK: S A B R J O T[1]
ABF: And who’s the other one?
BK: Payal
ABF: Payal? Is that the other one you told me before? Who were the three you told me before?
BK: Bojan … a list of four
[1] Based on other documents, this employee’s name is Sarbjot not Sabrjot
The fourth person named was Mr Bojan Taseski, an apprentice who had recently started work (in November 2021) at the business on a part time basis and was present at the workshop on the day of the site visit. As he was an apprentice, it is not accurate to describe Mr Taseski as a mechanic. Therefore, Mukesh identified three mechanics employed by the business and an apprentice. The three, according to Mukesh, were himself, Sarbjot and Ms Payal Chawla.
Consistent with this, the statutory declarations provided by Mukesh, Sarbjot, Ms Chawla and Mr Kukreja referred to there being three mechanics plus an apprentice who were employed by the business at the time of the site visit; and that Ms Chawla was not there that day as she was sick.
Mr Krukeja told the ABF officer that his employees did not register when they arrived at work or left work and he (Mr Krukeja) did not record on worksheets which mechanic worked on which motorcycle. Therefore, records such as worksheets do not assist in ascertaining whether or not Ms Chawla was working in the nominated occupation.
In his decision, the delegate wrote that statutory declarations provided by the employees contradicted their original statements and that “I am mindful that each of the three employees, who were interviewed independent of one another, advised that Payal Chawla did not work for you as a mechanic.”
The Tribunal observes that in the decision there is reference to the ABF officers’ contemporaneous notes. The notes are dated 16 December 2021 which is the day after the site visit. According to the notes, “Mokesh [sic] did not identify visa holder as one of the three mechanics. Mokesh, Sabrjoe, Boyem [sic].”
Based on the recording, Mukesh clearly identified Ms Chawla as being a mechanic who worked at Melbourne Scooters Pty Ltd. There was no recording made available to the Tribunal of any of the employees indicating that Ms Chawla was not employed as a motor mechanic or of the conversation between the ABF officer and Mukesh prior to the partial transcript set out above.
In a statutory declaration dated 1 July 2022, Mr Kukreja suggested that any misinformation provided to the ABF officers about Ms Chawla’s employment “may have come from Mr Taseski given he was new and may not have been aware of everyone’s role.”
Given the evidence just set out, the Tribunal is satisfied that the statutory declarations can be relied upon. These all state that Ms Chawla was employed as a mechanic but was not at work on the day of the site visit as she was unwell.
In addition to the statutory declarations, Ms Chawla is a mechanic whose skills have been assessed as such by VETASSESS. She was employed by a business that serviced and repaired motorbikes and scooters. It makes sense that she worked for the sponsoring business as a mechanic rather than in another capacity, and the Tribunal finds accordingly.
In light of the foregoing, the Tribunal finds that the applicant did not breach their obligation under reg. 2.86.
Accordingly, the Tribunal is not satisfied that the prescribed circumstance in reg 2.89 exists for the purpose of s 140M of the Act. That being the case, it follows that the power to take an action under s 140M does not arise.
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).
Susan Hoffman
Member
ATTACHMENT – Extract from the Migration Regulations 19942.83 Obligation to provide records and information to the Minister
(1) This regulation applies to a person who is or was an approved work sponsor.
(2) The person must provide records or information to the Minister:
(a) if the Minister has requested the provision of the records or information by written notice in the manner specified in subregulation (3); and
(b) if the records requested by the Minister:
(i) are records the person is required to keep under a law of the Commonwealth or a State or Territory that applies to the person; or
(ii) are records the person is required to keep under regulation 2.82; and
(c) if the records or information relates to:
(i) the administration of Division 3A of Part 2 of the Act and the Regulations made under that Division; or
(ii) if the person is a party to a work agreement — the administration of the work agreement; and
(d) in the manner, and within the timeframe, requested by the Minister in the notice mentioned in subregulation (3).
(3) A notice from the Minister requesting the provision of records or information must:
(a) be given using a method mentioned in section 494B of the Act; and
(b) specify a date for compliance not earlier than 7 days after the date on which a person will be taken, by section 494C of the Act, to have received the document.
(4) If the person is or was approved as a work sponsor in a class of sponsor under subsection 140E(1) of the Act, the obligation mentioned in subregulation (2):
(a) starts to apply on the day on which the person is approved as a work sponsor under section 140E of the Act; and
(b) ends 2 years after the first day on which each of the following occurs concurrently:
(i) the person ceases to be an approved work sponsor; and
(ii) there is no primary sponsored person or secondary sponsored person in relation to the person.
(5) If the person is or was a party to a work agreement, the obligation mentioned in subregulation (2):
(a) starts to apply on the day on which the work agreement commences; and
(b) ends 2 years after the first day on which each of the following occurs concurrently:
(i) the person ceases to be a party to a work agreement;
(ii) there is no primary sponsored person or secondary sponsored person in relation to the person.
2.86 Obligation to ensure primary sponsored person works or participates in nominated occupation, program or activity.
(1) This regulation applies to:
(a) a person who is or was an approved work sponsor in relation to a primary sponsored person if:
(i) the primary sponsored person holds a visa in relation to which the primary sponsored person was required to be nominated by an approved work sponsor; or
(ii) an occupation, a program or an activity was required to be nominated in relation to the primary sponsored person by an approved work sponsor; and
(b) a person who is or was an approved work sponsor in relation to a person who was a primary sponsored person if:
(i) the last substantive visa held by the primary sponsored person was a visa in relation to which the primary sponsored person was required to be nominated by an approved work sponsor; or
(ii) an occupation, a program or an activity was required to be nominated in relation to the primary sponsored person by an approved work sponsor.
(2) If the primary sponsored person holds a Subclass 457 (Temporary Work (Skilled)) visa, a Subclass 482 (Temporary Skill Shortage) visaor a Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa, or the last substantive visa held by the primary sponsored person was a Subclass 457 (Temporary Work (Skilled)) visa, a Subclass 482 (Temporary Skill Shortage) visaor a Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) 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.
(2A) If:
(a) 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; and
(b) the nominated occupation is not an occupation specified by the Minister in an instrument made under subregulation 2.72(13);
the person must ensure that:
(c) if the person is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the person's approval as a standard business sponsor, or at the time of the last approval of a variation to the person's term of approval as a standard business sponsor — the primary sponsored person is engaged only as:
(i) an employee of the person; or
(ii) an employee of an associated entity of the person; or
(d) if the person is or was a standard business sponsor who was not lawfully operating a business in Australia, and was lawfully operating a business outside Australia, at the time of the person's approval as a standard business sponsor, or at the time of the last approval of a variation to the person's term of approval as a standard business sponsor — the primary sponsored person is engaged only as an employee of the person; or
(e) if the person is or was a party to a work agreement — the primary sponsored person is engaged only as an employee of the person.
(2AA) If:
(aa) 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; and
(ab) the nominated occupation is not an occupation specified by the Minister in an instrument made under subregulation 2.72(13); and
(ac) the person is, or was, a standard business sponsor;
the person must ensure that:
(a) the primary sponsored person is employed under a written contract of employment; and
(b) if the person is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the person's approval as a standard business sponsor, or at the time of the last approval of a variation to the person's term of approval as a standard business sponsor:
(i) the person does not engage in activities that relate to the recruitment of a visa holder, an applicant for a visa or a proposed applicant for a visa for the purpose of supplying the holder, applicant or proposed applicant to a business that is not associated with the person; and
(ii) the person does not engage in activities that relate to the hire of a visa holder to a business that is not associated with the person; and
(c) if the person is or was a standard business sponsor who was not lawfully operating a business in Australia, and was lawfully operating a business outside Australia, at the time of the person's approval as a standard business sponsor, or at the time of the last approval of a variation to the person's term of approval as a standard business sponsor:
(i) the person does not engage in activities that relate to the recruitment of a visa holder, an applicant for a visa or a proposed applicant for a visa for the purpose of supplying the holder, applicant or proposed applicant to any other business; and
(ii) the person does not engage in activities that relate to the hire of a visa holder to any other business.
(2AB) The person's obligation in subregulation (2AA) applies only in relation to the following:
(a) a primary sponsored person who holds a Subclass 457 (Temporary Work (Skilled)) visa on the basis of satisfying the criteria in subclause 457.223(4) of Schedule 2 (as in force before 18 March 2018);
(b) a primary sponsored person whose last substantive visa was a Subclass 457 (Temporary Work (Skilled)) visa held on the basis of satisfying the criteria in subclause 457.223(4) of Schedule 2 (as in force before 18 March 2018);
(c) a primary sponsored person who holds a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream;
(d) a primary sponsored person whose last substantive visa was a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream.
(2B) If:
(a) the primary sponsored person holds a Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa, or the last substantive visa held by the primary sponsored person was a Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa; and
(b) the nominated occupation is not an occupation specified by the Minister in an instrument made under subregulation 2.72C(14);
the person must ensure that:
(c) if the person is, or was, a standard business sponsor—the primary sponsored person is engaged only as:
(i) an employee of the person; or
(ii) an employee of an associated entity of the person; or
(d) if the person is or was a party to a work agreement——the primary sponsored person is engaged only as an employee of the person.
(2BA) If:
(a) the primary sponsored person holds a Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa, or the last substantive visa held by the primary sponsored person was a Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa; and
(b) the nominated occupation is not an occupation specified by the Minister in an instrument made under subregulation 2.72C(14); and
(c) the person is, or was, a standard business sponsor;
the person must ensure that:
(d) the primary sponsored person is employed under a written contract of employment; and
(e) the person does not engage in activities that relate to the recruitment of a visa holder, an applicant for a visa or a proposed applicant for a visa for the purpose of supplying the holder, applicant or proposed applicant to a business that is not associated with the person; and
(f) the person does not engage in activities that relate to the hire of a visa holder to a business that is not associated with the person.
(2C) If the primary sponsored person holds a visa other than a Subclass 457 (Temporary Work (Skilled)) visa, a Subclass 482 (Temporary Skill Shortage) visaor a Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa, the person must ensure that the primary sponsored person works or participates in the nominated occupation, program or activity in relation to which the primary sponsored person was identified.
(3) The obligations mentioned in subregulations (2) to (2C):
(a) start to apply:
(i) on the day on which the Minister approves a nomination by the person that identifies the primary sponsored person; or
(ii) if the primary sponsored person does not hold a visa mentioned in subregulation (1) on the day the Minister approves the nomination — on the day on which the primary sponsored person is granted the visa on the basis of being identified in an approved nomination by the person; and
(b) end on the earliest of:
(i) the day on which the Minister approves a nomination under section 140GB of the Act by another approved work sponsor in which the primary sponsored person is identified; and
(ii) the day on which the primary sponsored person is granted a further substantive visa that is in effect and is:
(A) if the last substantive visa held by the primary sponsored person was a Subclass 457 (Temporary Work (Skilled)) visa—a visa that is not a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa; or
(B) in any other case—a visa of a different subclass to the last substantive visa held by the primary sponsored person; and
(iii) the first day on which each of the following has occurred:
(A) the primary sponsored person has left Australia;
(B) the visa granted to the primary sponsored person on the basis of being identified in an approved nomination by the person has ceased to be in effect;
(C) if:
(I) the primary sponsored person held a Subclass 020 (Bridging B) visa when the primary sponsored personleft Australia; and
(II) the last substantive visa held by the primary sponsored person was the visa granted to the primary sponsored person on the basis of being identified in an approved nomination by the person; the bridging visa has ceased to be in effect.
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.
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