Mien Salon Spa Pty Ltd (Migration)

Mien Salon Spa Pty Ltd (Migration) [2022] AATA 2671 (31 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mien Salon Spa Pty Ltd
REPRESENTATIVE:  Mr Antony Amhurst Wallace (MARN: 0965140)
CASE NUMBER:  1904508
HOME AFFAIRS REFERENCE(S):          OPF2018/10738
MEMBER:Amanda Mendes Da Costa
DATE:31 May 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision under review.

Statement made on 31 May 2022 at 8.58am

CATCHWORDS
MIGRATION – cancellation – sponsorship cancellation –2 years bar –applicant had breached its sponsorship obligation – applicant had failed to ensure that the primary sponsored persons worked or participated in their respective nominated occupations – sponsored employees are not genuinely employed in the nominated occupations – action should be taken –– decision under review affirmed
LEGISLATION
Migration Act 1958, ss 140M, 363, 376
Migration Regulations 1994, rr 2.83, 2.86, 2.89
CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li[2013] HCA 18
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
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 (Cth) (the Act) in relation to the applicant’s sponsorship.
The applicant was initially approved as a standard business sponsor on 31 July 2007 and approved for a second sponsorship agreement on 28 November 2011. The third period of sponsorship was approved on 16 August 2016.
On 7 February 2019, the delegate decided to cancel the approval of the applicant as a standard business sponsor and bar it for two years from making applications for approval as a standard business sponsor and temporary activities sponsor under s 140M on the basis that it had failed to satisfy a sponsorship obligation in accordance with reg 2.89 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant was invited to appear before the Tribunal on 24 March 2022 to give evidence and present arguments. However, on the morning of the hearing, the applicant advised the Tribunal that given the period in which it was barred from sponsorship had concluded, it did not wish to participate in the hearing and requested the Tribunal to make a decision in the matter based on the documents provided to the Department and to the Tribunal that day.
On 31 March 2022 the Tribunal wrote to the applicant, advising it that a non-disclosure certificate had been issued by the Department pursuant to s 376 of the Act in relation to certain material contained in the Department’s file.
The Tribunal informed the applicant that the Department had sought to restrict the disclosure of the information on the basis that disclosure of the materials in folios 30–40 of the Department’s file would be contrary to the public interest as they contain documents that would compromise investigative methods by disclosing lawful methods by which investigations are undertaken into breaches or possible breaches of the law.
The Tribunal advised the applicant that it had formed the view that the certificate was valid. It invited the applicant to provide any comments (in writing) by 14 April 2022.
The applicant has not provided the comments within the prescribed period (or at all) and has not requested additional time to provide any comments regarding the non-disclosure certificate.
Although the applicant has not requested this, the Tribunal has also considered whether it would be appropriate to adjourn the application for review under s 363(1)(b) of the Act to allow the applicant additional time in which to provide evidence to support its application for review.
In these circumstances, the Tribunal has decided to proceed to making a decision in the matter without taking any further steps to obtain the comments from the applicant.
In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2014] FMCA 28, where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1, which considered this issue, as well as the decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 where analogous issues were discussed.
In these circumstances, the Tribunal considers that the applicant has had sufficient time in which to provide any comments regarding the non-disclosure certificate and/or in which to request an extension of time in order to provide that information but has not either provided the information or requested an extension of time. Accordingly, the Tribunal has decided not to exercise its discretion under s 363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to provide comments regarding the non-disclosure certificate.
The Tribunal notes that the applicant was represented in relation to the review.
The documentation provided to the Tribunal for the purpose of the review included the following:
·Position description for Cheysa Ishtar Brito Rosas.
·Employment contract for Katherine Bell.
·Printout from applicant’s website.
·Applicant’s response to the NOITTA (undated).
·Applicant’s statement including a position description for Katherine Bell.
For the following reasons, the Tribunal has decided to affirm the decision under review.
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.
Does a circumstance for the taking of an action exist?
In the present case, the delegate found that the applicant had failed to satisfy a sponsorship obligation as prescribed by reg 2.89. The circumstances of the failure were that the applicant had failed to ensure that the primary sponsored persons (Katherine Bell and Cheysa Brito Rosas) worked or participated in their respective nominated occupations, programs or activities, as required by reg 2.86.
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 company operates a hair and beauty salon located at 370 Queens Parade, Fitzroy North, Victoria, 3068. ASIC records show the company was registered in November 1998 and the business commenced in 1999.
On 25 October 2018 the Australian Border Force (ABF) commenced monitoring the applicant.
On 5 December 2018 ABF officers conducted a visit to the applicant’s business premises where they spoke to Katherine Bell, one of the employees sponsored by the applicant. ABF officers subsequently spoke by telephone to another sponsored employee, Cheysa Ishtar Brito Rosas[1]. Ms Bell is employed in the position of Salon Manager and Ms Brito Rosas is employed as a Massage Therapist.
[1] Interview took place on 7 December 2018.
After considering the information provided in these interviews, the delegate was not satisfied that the applicant had complied with its sponsorship obligations, including the obligation in reg 2.86 to ensure that the primary sponsored person works or participates in the nominated occupation, program or activity.
On 17 December 2018 the delegate issued the applicant with a Notice of Intention to Take Action (NOITTA) under s 140M of the Act.
In the NOITTA, the delegate noted that during her interview with ABF officers, Ms Bell provided the following information:
·Her role at the salon was that of Salon Manager.
·Along with her managerial duties she has her own clients for whom she performs treatments in the spa.
·On average she sees one client per day although this has increased recently as the salon is so busy.
·She was responsible for hiring Ms Brito Rosas, who performs relaxation and deep tissue massages.
·The applicant employs another therapist who is trained in Shiatsu therapy.
·The salon does not provide any referrals to medical professionals and has no affiliations with other medical professionals in the remedial massage field.
·She receives an annual wage of $54,000 plus commission.
·The commission paid to the applicant’s employees is based on the whether the salon meets its sales targets for the week.
The delegate further notes that in her interview Ms Brito Rosas provided the following information:
·Her role at the salon is that of Massage Therapist.
·Her duties include opening and closing the salon, cleaning, greeting clients and performing massage services.
·The massage services she provides include deep tissue, relaxation and pregnancy massage.
·She does not keep any medical records for her clients and although the salon keeps records regarding client attendance, it is about services undertaken and types of products used or purchased and general information about how clients like to be treated.
·She does not refer her clients to medical professionals in the remedial therapy field nor does she receive any referrals from professionals in the remedial therapy field.
·Her appointments are made by clients contacting the salon or booking via the salon’s website.
·Her annual wage is $55,000 plus commission. This commission is calculated on the basis of the procedures undertaken by clients, the number of visits made by them and the products they purchase at the salon.
The delegate observed that nominations for the position of Massage Therapist lodged after 19 April 2017 have a number of caveats imposed on them. These caveats indicate that sponsorship requirements are not met if:
·the position is not full time;
·the sponsor is not based in a therapeutic setting; or
·the sponsor is involved in the provision of non-medical “relaxation” massage and is located in a retail setting.
The delegate advised the applicant that in their view, the applicant’s business was located in a non-therapeutic retail setting and that the massage performed by Ms Brito Rosas is for relaxation purposes and both Ms Bell and Ms Brito Rosas receive commission for their services to clients. Given that Ms Bell had her own clients, the delegate was further not satisfied that she was solely performing duties in the nominated occupation of Salon Manager.
The delegate invited the applicant to respond to the NOITTA (in writing) within 14 days of receipt of the Notice.
On 28 December 2018 the applicant provided a written response to the NOITTA in which it maintained that:
·Ms Bell is working as a Salon Manager and spends most of her time managing staff and performs the duties outlined in her original Subclass 457 visa nomination.
·Ms Bell earns $57,000 per annum plus commission which can be as much as $10,500 annually. This payment is a reward for the success of Ms Bell’s team.
·Ms Bell sees “the odd client” and the reason for this is to assist the members of her team and to enable them to cope with the Christmas rush.
·Ms Bell has been required to see more clients recently due to another staff member taking maternity leave.
·Ms Bell is listed on the applicant’s website due to the website undergoing an upgrade six months ago and staff descriptions not yet being updated. This website has now been updated to reflect Ms Bell as a Beauty Salon Manager.
·Ms Brito Rosas works in the business as a Massage Therapist for an annual salary of $56,629. She works a 38-hour week and when she is not attending to clients, undertakes other tasks in the salon.
·Ms Brito Rosas is now listed on the applicant’s website as a Therapeutic Masseur. The reason for her not being listed on the website earlier is due to the recent upgrade of the site.
·Ms Brito Rosas does write medical notes on her clients and does make referrals to medical practitioners. There is a medical practice on level 2 of the building where the spa is located, and staff there can attest to the recommendations and referrals that have been made by Ms Brito Rosas.
·The applicant is prepared to request a letter from the medical practice if required by the ABF.
·Ms Brito Rosas may have been confused when interviewed by ABF officers, when she stated she did not make referrals to other people for her clients believing that the officers were referring to external or non-specific recommendations and not the ones she makes to the practitioners located on level 2 of the building where the spa is located.
·The level on which Ms Brito Rosas works at the spa is conducted in a therapeutic setting and not a retail setting. The retail setting of the spa is located on the lower ground level of the building.
·No money has been paid to the co-owners of the business by either Ms Bell or Ms Brito Rosas to sponsor them and if they left their employment, the applicant would provide them with references for the respective positions of Salon Manager and Massage Therapist.
In her decision to cancel the applicant’s approval as a standard business sponsor and bar it from making applications for approval as a standard business sponsor, the delegate noted that on 2 February 2019 ABF officers conducted a search on the applicant’s website where they noted that Katherine Bell remained listed on the website as a Therapist.
The delegate did not accept that it was reasonable for Ms Bell to be listed as a Therapist on the applicant’s website due to an upgrade of its website which took place six months ago. Given that Ms Bell was sponsored as a Beauty Salon Manager on 2 February 2017 the delegate did not accept the applicant’s explanation that she attended to “the odd beauty client” to support her team.
In making her decision, the delegate attached weight to the information provided by Ms Bell in her interview with ABF officers. In particular, the delegate relied on Ms Bell’s explanation that she had her own spa clients and saw at least one client per day. This indicated to the delegate that the work undertaken by Ms Bell as a Therapist was more than incidental.
In relation to Ms Brito Rosas the delegate noted that the applicant had not provided any documentary evidence to support its assertion that she was engaging in any meaningful discussion with medical practitioners or making referrals for her clients.
The delegate further noted that there are a number of caveats regarding “therapeutic setting” which were imposed by the Department to Subclass 457 nominations lodged after 19 April 2017. She found that under Departmental policy, a “therapeutic setting” is defined as a facility that provides services which relate to the healing of disease, as opposed to relaxation services. These are settings likely to include therapeutic massage, together with physiotherapy and/or chiropractic care. Positions that are not based in a therapeutic setting are likely to include positions based in a spa, or shopping/retail mall.
The delegate accepted the information provided by Ms Brito Rosas in her interview with ABF officers in relation to her recordkeeping for clients and found that such records related to the procedures undertaken and products purchased, rather than their medical conditions and referrals to health professionals.
Documentation provided to the Tribunal
Mr Simon Barr is the Managing Director of the applicant. In his statement Mr Barr confirms that:
·The position of Beauty Salon Manager is a full-time management position and has existed for approximately five years. It is necessary to the business operations.
·The spa and beauty part of the business accounts for 30% of the income of the business and is budgeted to have sales of $550,000 in this financial year.
·The business has been in operation since 1999 and has had a Beauty Salon Department since 2006. The company’s website and marketing material attest to this and its core functions as a profitable and large hair and beauty salon. A list of its current employees and their positions in the salon is attached to the statement.
·In 2016, Ms Bell responded to an advertisement for the position of Beauty Salon Manager. A copy of the advertisement is attached to the statement. The applicant was deemed to be suitable for the position on the basis of her familiarity with shortcuts software and her experience in a five-star day spa as a beauty spa therapist and managing the front desk in busy salons in Australia and overseas.
·The position of Beauty Salon Manager was vacant from June 2015 until Ms Bell was employed in 2016. During that period the applicant interviewed many candidates but none had the unique combination of experience in managing both a large multi-department salon and experience as a therapist/beautician in a five-star spa. A number of curriculum vitae from unsuccessful candidates are attached to the statement.
The applicant’s submissions regarding the factors to be taken into account by the Tribunal in relation to whether and if so, what action should be taken against the applicant may be summarised as follows:
The past and present conduct of the person in relation to Immigration.
·The findings made by the delegate in the cancellation decision was the first time in which the applicant has been found in breach of its sponsorship obligations. There is no other adverse information in relation to the applicant.
The number of occasions on which the person has failed to satisfy the sponsorship obligation.
·The sponsored employees (Ms Bell and Ms Brito Rosas) are genuinely employed in the nominated occupations and no monies have been paid by them to the applicant to secure their employment.
The period over which the person has been an approved sponsor.
·The applicant was approved as a standard business sponsor on 6 August 2016 and has an overall record of “good behaviour”. The applicant has been operating a family-run business for 19 years and has not been involved in any previous investigations by the ABF or had action taken against it for tax evasion, breaches of employment laws or other offences.
Whether, and the extent to which, the failure to satisfy the sponsorship obligation has had a direct or indirect impact on another person.
·There is no evidence to suggest that the applicant’s actions in relation to its sponsored employees have deprived an Australian citizen or resident of an opportunity to be employed in that role.
Whether, and to the extent to which, the failure to satisfy the sponsorship obligation was intentional, reckless, or inadvertent.
·The applicant did not set out to engage in deceptive conduct when it employed Ms Bell and Ms Brito Rosas. The representations made to the Department by the applicant in order to secure the nomination approvals for them were genuine and the information accurate.
As to whether, and the extent to which, the person has cooperated with Immigration, including whether the person informed Immigration of the failure.
·Although the applicant does not concede that it has failed to comply with its sponsorship obligations, it has been co-operative with ABF officers and responded to the NOITTA as required.
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.
·Ms Bell and Ms Brito Rosas have been working in their nominated occupations for the entire period of their employment, including at the time of the site visit by ABF officers. The delegate’s decision was based mainly on information that existed on the applicant’s website in December 2018 and since then the website has been changed to reflect the actual positions occupied by Ms Bell and Ms Brito Rosas.

The list of current employees provided by the applicant shows that in addition to Mr Barr, the applicant employs a payroll and accounts officer, a Beauty Salon Manager (Ms Bell), an assistant manager, two receptionists, two stylists, a head colourist, a masseur, four senior stylists, three stylists, a salon assistant and four apprentices.
The employment contract for Ms Bell (dated 5 May 2016) shows that she was employed in the position of Beauty Salon Manager on a permanent and ongoing basis for at least a period of four years. Ms Bell’s salary is $54,000 plus superannuation.
The printout from the applicant’s website shows that the business provides hairdressing, massages, and beauty and day spa services to clients at its premises at 370 Queens Parade, Fitzroy North, Victoria. The website entry for Ms Brito Rosas indicates the following:
Cheysa specialises in treating patients who have issues with muscular aches and pains. Since coming on board at Mien’s wellness centre as a specialist in Therapeutic massage Cheysa has taken on many courses and has attained qualifications across a wide range of related treatments. Cheysa is a delightful therapist and is passionate about improving peoples’ health and wellbeing through the transformative power of massage.
Katherine Bell
The Tribunal has considered the position description, employment contract, list of current employees, submissions and responses provided by Ms Bell in her interview with ABF officers in which she claimed to have been employed in the position of Salon Manager since 2016, which is a full-time position. However, it notes that in her interview with ABF officers she explained that in addition to her role as Salon Manager, she provides therapeutic services to approximately one client a day and sometimes provides additional assistance to the therapists at the salon during very busy periods (such as pre-Christmas) and when other staff are on un-scheduled leave.
The Tribunal notes that the listing of Ms Bell on the applicant’s website was for a Therapist rather than a Salon Manager. The Tribunal finds it difficult to accept Mr Barr’s explanation for this being that the applicant’s website had yet to be upgraded when the ABF officers visited the applicant’s premises in May 2018. The Tribunal considers that even if the applicant’s website has been upgraded, the previous listing of Ms Bells as a Therapist is inconsistent with her performing the role of Salon Manager.
The Tribunal notes that the applicant asserts Ms Bell has been employed in the position of Salon Manager since 2016 and was not previously employed by the applicant in the position of Therapist. The Tribunal considers that if Ms Bell had been employed in the role of Salon Manager for the entirety of her employment with the applicant, she would not have been described on the applicant’s website as Therapist.
As previously noted, the applicant has provided copies of an employment contract for Ms Bell and an organisational chart for its business which shows Ms Bell’s role as that of Salon Manager. However, the Tribunal notes that these documents are internally produced by the applicant and accordingly the Tribunal attaches limited weight to them.
Accordingly, the Tribunal is not satisfied that Ms Bell works or participates in her nominated occupation, program or activities as required by reg 2.86.
Cheysa Ishtar Brito Rosas
In her decision the delegate gave weight to the caveats attached to the nominated occupation of Massage Therapist. The Tribunal acknowledges that for nominations lodged after 19 April 2017 the following caveats apply and indicate that sponsorship requirements are not met if:
·the position is not full time;
·the sponsor is not based in a therapeutic setting; or
·the sponsor is involved in the provision of non-medical “relaxation” massage and is located in a retail setting.
As the applicant’s nomination for Ms Brito Rosas was lodged on 31 July 2017, the Tribunal is satisfied that the above caveats apply to the position for Ms Brito Rosas[2].
[2] The Tribunal notes that the caveats apply for any nominations lodged after 19 April 2017.
The Tribunal has considered the description of Ms Brito Rosas’ position contained on the applicant’s website, the responses given by Ms Brito Rosas in her interview with ABF officers, position description provided by the applicant and the position description for Massage Therapist in the ANZSCO dictionary.
The position description for the role of Massage Therapist indicates that the required duties and responsibilities are commensurate with those contained in the ANZSCO dictionary description for the occupation and include:
·Perform soft tissue therapy and touch modalities including Shiatsu and Deep Tissue to promote relaxation, pain relief, improve circulation or assist healing.
·Ability to perform thorough consultation and deliver tailored treatments to each individual client’s requirements assessing client’s physical condition and case history.
·Provide wellness and rehabilitation advice to clients.
·Use complementary aids including wet compresses, ice, essential oils, herbal and mineral therapies to assist recovery.
·Perform treatments in the set timing allocated.
·Replacing massage table linens.
·Researching new products.
·Maintaining stock levels of oils, minerals, herbs and linens.
·Sterilising instruments.
·Maintaining and increasing knowledge of massage therapy treatments.
·Sharing techniques with other staff.
·Coaching and training new massage therapist staff.
·Arranging appointments and ensuring payments for work undertaken.
·Maintaining high customer satisfaction and providing excellence in treatment delivery by supporting all treatment standards and protocol.
·Maintain health and safety requirements at all times.
·Ensure all guest records are completed and updated accordingly including recommendations during treatments as well as suggested take home products.
The Tribunal notes that the Macquarie Dictionary provide that the meaning of the term ‘therapeutic’ is:
Relating to the treating or curing of disease; curative.
The Tribunal accepts that the information on the applicant’s website indicates that Ms Brito Rosas “specialises in treating patients with muscular aches and pains” and her description on that site is currently that of Therapeutic Masseur. However, when ABF officers visited the applicant’s premises on 5 December 2018, Ms Brito Rosas’ position was described as Massage Therapist.
Although the applicant claims in its response to the NOITTA that Ms Brito Rosas does make medical referrals, it has not provided any documentary or oral evidence to support this assertion. In these circumstances, the Tribunal gives greater weight to the evidence of Ms Brito Rosas who is actually performing the role of Massage Therapist and accepts her direct evidence to the ABF officers.
Whilst the Tribunal does not consider that the applicable caveats require a Massage Therapist to keep medical records or make remedial therapy referrals, it does consider that the role be based in a therapeutic (and not retail) setting or involve therapeutic massage services. Based on in the information provided by Ms Brito Rosas to the ABF officers, the Tribunal considers that the services she provides are in the nature of deep tissue, relation or pregnancy massages, rather than being curative in nature or involved in treating medical conditions. In this respect, the Tribunal notes that Ms Brito Rosas does not keep any records about her client’s physical conditions or aliments or the treatments she provides to them. Instead, the records kept by the salon relate to client attendance, services provided and types of products used or purchased and general information about how clients prefer to be treated. The Tribunal considers that if the services provided by Ms Brito Rosas were therapeutic in nature, the records kept by her would reflect her client’s physical conditions, and ailments together with treatments provided.
Accordingly, the Tribunal is satisfied that the prescribed circumstance in reg 2.89 exists (in relation to Ms Brito Rosas) for the purpose of s 140M of the Act.
Action to be taken
For the above reasons, the Tribunal is satisfied that a relevant circumstance for s 140L(1)(a) exist. 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[3], as extracted in the attachment to this decision:
[3] Regulation 2.89(3) sets out the criteria that must be taken into account in determining what action (if any) to take under s.140M of the Act.
The past and present conduct of the person in relation to Immigration.
·     The Tribunal accepts that the findings made by the delegate in the cancellation decision was the first time in which the applicant has been found in breach of its sponsorship obligations. There is no other adverse information in relation to the applicant.
The number of occasions on which the person has failed to satisfy the sponsorship obligations.
·     The Tribunal is not satisfied that the sponsored employees (Ms Bell and Ms Brito Rosas) are genuinely employed in the nominated occupations.
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 finds that the applicant has failed to ensure that Ms Bell and Ms Brito Rosas work in their nominated occupations. The evidence before the Tribunal suggests that Ms Bell has been working as a Beauty Therapist since her subclass 457 visa was granted on 2 February 2017 and Ms Brito Rosas has been performing massage services in a non-therapeutic setting since 31 July 2017. The Tribunal further accepts that the 457 visa program is designed to allow Australian employers to fill skilled positions with suitably qualified workers from overseas where the sponsor has been unable to ensure that the sponsored person works in the nominated occupation, program or activity is a central requirement of the subclass 457 visa program and is essential to its integrity. In the context, the applicant’s failure to comply with its sponsorship obligations (as required by Reg.2.86) is serious.
The period over which the person has been an approved sponsor.
·     The applicant was approved as a standard business sponsor on 6 August 2016 and has been operating a spa and a business for 19 years. There is no evidence before the Tribunal which indicates that the applicant has been involved in any previous investigations by the ABF or had action taken against it for tax evasion, breaches of employment laws or other offences.
Whether, and the extent to which, the failure to satisfy the sponsorship obligation has had a direct or indirect impact on another person.
·     There is no evidence to suggest that the applicant’s actions in relation to its sponsored employees have deprived an Australian citizen or resident of an opportunity to be employed in that role.
Whether, and to the extent to which, the failure to satisfy the sponsorship obligation was intentional, reckless, or inadvertent.
·     The Tribunal notes that the applicant claims that it did not set out to engage in deceptive conduct when it employed Ms Bell and Ms Brito Rosas and the representations it made to the Department in order to secure the nomination approvals for them were genuine and the information accurate. However, the Tribunal does not accept that these employees were employed in the nominated occupations and finds that the information provided to the Department and ABF officers regards the roles of Ms Bell and Ms Brito Rosas was not accurate. The Tribunal finds that this information was provided intentionally by the applicant.
Whether, and the extent to which, the person has cooperated with Immigration, including whether the person informed Immigration of the failure.
·     The Tribunal accepts that the applicant co-operated with the Department in speaking to ABF officers and responding to the NOITTA in a timely manner.
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.
·     Although the applicant has taken steps to change the description of the roles of Ms Bell and Ms Brito Rosas on its website, there is no evidence to indicate that it has changed the actual duties and responsibilities performed by Ms Bell and Ms Brito Rosas to ensure that they are commensurate with their nominated occupations.
The processes (if any) the person has implemented to ensure future compliance with the sponsorship obligation.
·     The applicant claims to have taken steps to change the position descriptions of Ms Bell and Ms Brito Rosas on its website. However, the Tribunal does not accept that this process will ensure that the applicant employs these employees in the nominated occupations as part of its 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 to indicate that the applicant has failed to satisfy any other of its sponsorship obligations.
Considering the totality of the circumstances and having regard to the prescribed criteria the Tribunal finds that the action mentioned in s.140M(1)(b) and (d) to cancel the approval of the applicant as a standard business sponsor and bar the applicant for a period of two years from making applications for approval as a standard business sponsor and temporary activities sponsor should be taken.
DECISION
The Tribunal affirms the decision under review.
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.
…

[2022] AATA 2671

31 May 2022

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