Metwest Steel Pty Ltd (Migration)

This matter concerned an application for review of a delegate of the Minister for Immigration's decision to take action under section 140M of the Migration Act 1958 against Metwest Steel Pty Ltd, an approved sponsor. The dispute arose from an alleged failure by Metwest to satisfy a sponsorship obligation, specifically the requirement under regulation 2.86(2A) of the Migration Regulations 1994 to ensure that a sponsored visa holder was engaged only as an employee of the sponsor or an associated entity. In this instance, a Subclass 457 visa holder, Mr Zhongfei Yao, had worked for a different entity, Quantum International, during a period of unpaid leave from Metwest.

The primary legal issue before the Tribunal was whether Metwest had breached its sponsorship obligation by failing to ensure Mr Yao was engaged solely by Metwest or an associated entity. In addition, the Tribunal was required to consider the prescribed criteria under regulation 2.89 when determining what action, if any, should be taken under section 140M, given that a failure to satisfy a sponsorship obligation had been found to exist. These criteria included the sponsor's past and present conduct, the number and severity of failures, the duration of sponsorship, the impact on others, and whether the failure was intentional, reckless, or inadvertent.

The Tribunal considered Metwest's history of previous contraventions, including sanctions in 2012 and 2016 for breaches related to underpayment of wages, failure to notify changes of business address, and failure to notify cessation of employment and return airfares. While Metwest argued these breaches were minor and rectified, the Tribunal noted that previous contraventions should have heightened awareness of compliance responsibilities. The Tribunal also considered the impact of Mr Yao's visa cancellation on him and the potential, though unsubstantiated, impact on Australian employment. The Tribunal varied the decision under review by limiting the period of a bar imposed on Metwest, such that the bar ended on the date of the decision, while noting that the circumstances of the business and its employees would be considered in any future application for sponsorship approval.