MONEYCHAIN PTY LTD (Migration)

[2023] AATA 1783

MONEYCHAIN PTY LTD (Migration) [2023] AATA 1783 (3 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  MONEYCHAIN PTY LTD

REPRESENTATIVE:  Ms Felice Chen (MARN: 1384510)

CASE NUMBER:  2111671

HOME AFFAIRS REFERENCE(S):          OPF2021/605

MEMBER:Namoi Dougall

DATE:3 February 2023

PLACE OF DECISION:  Sydney

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 03 March 2023 at 5:08pm

CATCHWORDS

MIGRATION – sponsorship cancellation or bar – sponsorship obligations – provision of false or misleading information – nominee appeared to be promoted to a senior role – nominee appointed temporarily as business director – change of business name – reporting change in circumstances – sponsored person works in the nominated occupation – duties of Financial Institution Branch Manager – bonus paid for acting Director’s role – decision under review set aside     

LEGISLATION

Migration Act 1958, s 140
Migration Regulations 1994, rr 2.72, 2.73, 2.83-2.86, 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.

2. The applicant was approved as a standard business sponsor on 18 February 2016. On 27 August 2021, the delegate decided to bar the applicant under s 140M on the basis that the applicant had not satisfied sponsorship; reg.2.89. The delegate also found that the applicant has breached reg.2.90 Provision of false or misleading information.

3. Ms Zhong, the General Manager of the applicant appeared before the Tribunal on behalf of the applicant on 28 February 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the primary sponsored person, Ms Chen. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicant was represented in relation to the review.

5. 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

6. Sections 140K, 140L and 140M of the Act provide for the imposition of sanctions on approved sponsors in certain circumstances.

7. 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.

8. 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.

9. 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?

   10.In the present case, the delegate found that the applicant had failed to satisfy a sponsorship obligation; reg.2.89 being reg.2.84 Obligation to provide information to Immigration when certain events occur and reg.2.86 Obligation to ensure primary sponsored person works or participates in nominate occupation, program or activity. The delegate also found that the applicant had breached reg.2.90 Provision of false or misleading information.

   Failure to satisfy a sponsorship obligation: reg 2.89

   11.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).

   12.On 3 February 2012, the applicant was first approved as a standard business sponsor for a period of 3 years. During this period the applicant successfully nominated Ms Xiaojuan Chen in the nominated occupation Financial Institution Branch Manager. On 18 February 2016, the applicant was again approved as a standard business sponsor for a period of 5 years.

   13.On 3 February 2021, Australian Border Force (ABF) sent the applicant a sec.2.83 request for records or information which included information as to: business details, including change of business circumstances; employee details, including sponsored employees; employment information in relation to Ms Chen.

   14.On 15 March 2021, the applicant responded to the sec.2.83 request and provided, amongst other information, the following:

   ·The registered office is the same address as the Auburn Branch and there are also branches in Sydney City, Kogarah, Chatswood in New South Wales (NSW) and a branch in Perth.

   ·The applicant has sponsored four employees including the visa applicant.

   ·The provided employee staff list stated that Ms Chen is the Branch Manager at the Auburn Branch.

   ·An employment agreement to commence on 8 May 2020 which states that the position is Auburn Branch Manager on a base salary/wage package of $74,006.40 and payslips from 26 June 2020 to 17 January 2021 confirming that Ms Chen was paid that salary during that period.

   ·Examples ofMsChen’s work including: an Annual Performance Review dated 20 June 2020; Work Log of Xiaojuan Chen dated 23 September 2020; sample of Work Report of Xiaojuan Chen and a sample of emails in relation to work; Tasks Checklists for the months from July 2020 to March 2021, which indicated they are created by Ms Chen as Auburn Manager, and a Branch Manager Daily Task Sheet for the Auburn Branch and Ms Chen dated 9 March 2021.

   15.On 30 April 2021, ABF conducted a site visit at the Auburn Branch of the applicant (the April site visit). During the site visit an ABF officer interviewed Ms Jia Wang and Ms Fujuan Huang (Suri) at the Auburn Branch of the applicant. The interviews were recorded. Ms Wang stated, amongst other things, as follows:

   ·Ms Wang worked in the position of teller at the applicant and has worked at the applicant for 3.5 years. (Suri’s) role is to run the west area branches in Sydney.

   ·Ms Chen is in a different position (from Suri) and she is Manager who fixes almost everything for the company. Ms Chen had already worked for the applicant for many years before Ms Wang started, about 5 years ago she has got a promotion. Both Suri and Ms Chen can manage the store and before Suri became the Manager, Ms Chen managed the store.

   ·The ABF office asked if Ms Chen was the manager before Suri and Ms Wang stated that now Ms Chen supports Suri. The ABF office asked how long Suri has been the manager and Ms Wang stated about 1.5 years. 

   ·Ms Wang stated that she worked at the Auburn branch 5 to 6 days a week. She now works 5 days a week. Ms Wang reports to Suri.

   ·The applicant has different area managers as there are many branches and too many employees. The ABF officer asked if there are different managers in each branch and Ms Wang stated that Suri often works in the Auburn Branch, but she does go other branches. There is an East area manager, Fiona. If the Branch Manager cannot fix an issue, then Ms Chen fixes it as she has more power than the area manager.

   16.During the April 2022 sit visit an ABF office interviewed Ms Fujuan (Suri) Huang. Ms Huang stated the interview the following:

   ·She is a Branch Manager for the applicant and has worked for the applicant for 3.5 years. She became a Branch Manager in January 2021. She changed with Ms Chen who is on holidays. Her previous job was administration.

   ·The Branch has 5 staff members, 4 of whom are full time.

   ·Ms Chen was the previous Branch Manager and she is still the Manager at the branch. The ABF officer asked Ms Huang what does Ms Chen do now and Ms Huang stated that she monitors them and her title is General Manager in the Auburn office. Ms Chen finished being a Branch Manager in December 2020. The ABF office asked why did Ms Chen finish and Ms Huang stated that she was promoted to General Manager.

   ·Ms Huang stated at the interview that prior to becoming a Branch Manager in January 2021 she worked on the front counter. When she became the Branch Manager her salary increased from $50,000 to $57,000.

   ·Ms Huang stated that Red Rate is a business name doing the currency exchange. They do currency exchange and transfer money to other countries. It is the same buisness as the applicant and they have the same owners who are Tom Huang and Fanson Yip. She reports to Tom and Larissa. The visa applicant comes every day to the branch.

   17.On 11 May 2021, ABF conducted a further site visit (the May site visit) during which an ABF office interviewed Ms Chen. The interview was recorded, and Ms Chen stated, amongst other things, the following:  

   ·Ms Chen stated that she had worked with the applicant full time for around 7 years and because of her performance her boss sponsored her for 4 years on a Subclass 457 visa and after 2 she had met the applicant’s performance measures and she was promoted to Manager. Also, after further work her boss stated that they would sponsor her on a Subclass 186 visa as the Auburn Branch Manager. It was a good for her career as she finished a Master of Commerce and as the job was Manager and the role was majority of her role was marketing and it was related to her to her major in her degree.

   ·The customers are individuals and few businesses. They are cash income persons, and they have to be patient as most of customers do not speak English. She speaks regional languages and can translate products for the customers. She set goals with the team. As the customers are mainly cash income there is a lot of cash stored in the shop so security is important. She works 4 days Monday to Friday and on Sunday which is the busiest day of the week. She is responsible for the security of her customers and the shop. She is also responsible for her team and their performance, and she helps them as a leader to achieve their goals.

   ·Her daily tasks are security inspection of alarm, safe, CCTV, computer, internet and power. Deals with the company that picks up the cash. She communicates everyday with her team and customers. In 2021 the Chinese government reduced the amount for cash transactions so the business carries less cash so they want to increase the value of each transaction, so they speak to the customers about the advantages of the buisness as there are 5 competitors. Her job is to handle all the store doing everything at once. If there is something that is outside of routine, they speak with her such as high risk persons and identity documentation. They conduct anti money laundering training, and they need to follow compliance officers regulations. She looks after her team to keep them happy and help them meet goals. There are challenges in her job such as some customers have had accounts frozen in China due to scam. The customers are angry at the buisness but they help them with documents so the accounts can be unfrozen. She focusses on their frequency as everyday they do a high volume of transactions about as there is only 8 hours they need to be more efficient. They created a QR code to better prove their identity procedures and speeds up identification. Her teams have worked 3 to 4 years and after they have a break they return to work and they work as friends.

   ·She wanted to move from part time to full time and she was told that they wanted someone who can work on the weekend and who lives in Auburn. Also  she could speak regional languages. From 2015 she was a teller at the Auburn Branch and there was activity in town on the weekends and when her team leader became ill she was made the team leader and lead activities. As she did a good job and her boss saw her leadership, and she started to assist the manager with dealing customers. After a year she hoped to stay in Australia also the business started to expand, and they moved the back office to Parramatta. After that they needed a Branch Manage in Auburn, they tried to recruit but could not find a suitable candidate, so she was appointed as Branch Manager. She was happy as she could stay in Australia.

   ·She started working full time in October 2014 after she graduated. She has been working casually and they advertised in the newspapers and her friends within the business told her about the job. She worked as a teller from October 2014 to April 2016 when she was appointed as a Manager.

   ·Her duties as a teller were: counter transactions, account opening, helping manger with communication. As a Branch Manager she sets goals and plans for the branch; team work’ check cash balance; inventory distribution and adjustment; inspection and security; developing new buisness; maintain high value customer; conduct performance reviews of team; runs meetings; team training; reports daily information to the General Manager; assess large transactions; customer due diligence; guarantee safe security in shop; boast buisness to achieve goals; check emails and reply; rostering; managing leave and reassignment of roles. She reports to Larissa Zhong, Head of Compliance Office. After the business opened more branches, Larissa became the General Manager.

   ·There are 5 staff in the Auburn Branch, and she has 4 who report to her and she reports to the General Manager. The title for her current role is Auburn Branch Manager, and she normally works at Auburn. If a branch manager takes leave from another branch, she can do the work from the Auburn Branch.

   ·The visa applicant confirmed that she has not had any other role and she worked as a Manager and looks after the team.

   ·Her salary is $74,000, she receives a payslip every week. She listed have entitlements and that she receives rewards, bonuses and incentives.

   ·The current director of the applicant is Yong Chen Shi who has been a director since 2019. Ms Chen was a director for 2 months in 2019. It was around her 10 year anniversary and the applicant assigns main managers to be directors for just a few months, however, her job was still as a Manager. When asked what her responsibilities as a director were, Ms Chen answered thinking about businesses and setting goals for business. There was not too much to do. Ms Chen stated that she cannot remember how she became a director. She did not receive a payment for being a director.

   ·The bonuses she received are not for being a director. She revied a bonus of $18,000 in the 2020 financial year as it was her 10-year anniversary. The applicant pays bonuses to outstanding staff.

   ·Ms Chen was asked again about being a director and she said it was for a few months. After anniversaries her boss set incentives and that staff can go for salary raises or dividends. For the small dividends they are assigned to be a director. They are paid incentives to be directors. They are to encourage management group as competitor’s lose staff. The applicant wants to keep staff longer, so they promote the ideas to the staff. Ms Chen stated she got an incentive for being a manager, but she did not get an incentive for being a director. However, an incentive was to be a director for a few months.

   ·She has not been a director of any other company.

   18.At the interview Ms Shen was asked to explain the structure of the bonuses and commission and the visa applicant stated she is not sure as in line with the applicant’s policy every staff member’s salary and bonuses are confidential. The ABF officer asked about her being a branch manager and informing her staff of the bonuses. Ms Chen stated that she informed her team that if they worked for several years there are incentives for outstanding performance incentives. There are KPIs that have to be met and it is motivational, and they work hard. Her boss decides on the bonuses, and she does not know the details of the structure.

   ·Ms Chen’s last bonuses was around $9,000 paid quarterly. In the last financial year she received $80,000. Every year she only received a few $1,000. Appeared on her payslip for the week from 20 June 2020. Ms Chen stated that it was a 10 year bonus. She got it even though she has worked 6 years because she had done a good job. The ABF office pointed out that the amount was more than her wage and Ms Chen stated that she had really done a good job at Auburn. In 2014 there were only 2 people working the weekends which increased to 5, but now 3 due to COVID. They have high value amounts for transactions.

   ·Ms Chen stated that the bonuses is recognition for her work with a high value and high service team in Auburn. The bonus is to give her confidence to work as a Branch Manager. The is no money paid for other work.

   19.At the May site visit the ABF office asked Ms Chen questions as to what Ms Huang has stated in interview during the April site visit. Ms Chen stated that:

   ·Ms Chen informed that the ABF officer had spoken with Ms Huang who described her role at Auburn as Branch Manager. Ms Chen stated that Ms Huang was nervous and that Ms Huang worked in Auburn branch before so is familiar with the branch’s routines. Therefore, when Ms Chen is sick Ms Huang will take over her job as Branch Manager as Auburn is different to Chatswood. Th Auburn customers need to be dealt with face to face and not over the phone. The Manager needs to be in the shop to deal with customers, so Ms Huang was in Auburn as the Branch Manager 2 days, however, her role is Customer Relations at Chatswood. In Auburn Ms Chen is the Branch Manager.

   ·The ABF officer then stated that when she spoke with Ms Huang, she described herself as the Branch Manager and Ms Chen as the General Manager. Ms Huang also stated that she took over from Ms Chen as Branch Manager from January and Ms Chen stated that Ms Huang was not assigned as Branch Manager in Auburn in January.

   ·She had heard from her boss that the Chatswood Branch Manager had quit her job in January so for a few months the applicant looked for a suitable person for the position, so Ms Huang was made Chatswood Branch Manager. Ms Huang does not work at Auburn.

   ·on 30 April 2021 when the site visit was conducted, she was sick but as she did not go to the doctors, she took annual leave. It was too complicated to get a certificate.

   ·The ABF office referred to the sign in the store front for Red Rate and Ms Chen stated that it is another brand. It is not owned by the applicant they just share the office. Ms Chen stated that she had part time job with Red Rate before 2014. For as long as she has worked with the applicant, they have shared the office.

   ·The ABF officer referred to Ms Chen’ s wage payments being made by RQ Partners as shown on her bank statement and Ms Chen stated that this is the payments for her incentives. She does not work for RQ Partners but the applicant has shares in the company.

   ·Before she worked full time with the applicant she worked as a casual for Red Rate because in their mind it is the same shop. Last time she checked her salary she was casual with Red Rate. From October 2014 she worked full time as Teller and then a Manager with the applicant.

   ·As part of the incentives, she is assigned to be a director for a couple of months.

   20.Based on the information provided by the applicant, the Department was not satisfied that the applicant had complied with its sponsorship obligations. Accordingly, on 2 June 2021, the Department issued a ‘Notice of Intention to Take Action’ (NOITTA) outlining the circumstances in relation to which the delegate believed the applicant had failed to satisfy its sponsorship obligations under regulation 2.84, 2.86 and 2.90.

   21.On 1 July 2021, the applicant’s migration agent responded to the NOITTA, providing detailed submissions, and supporting documentation (the NOITTA response). The Tribunal will refer to relevant information below.

   22.After considering the applicant’s responses and supporting documentation, on 27 August 2021, the delegate decided to bar the applicant from making applications for approval as a standard business sponsor and temporary activities sponsor for a period of six months under s 140M of the Act.

   23.On 2 September 2021, the applicant lodged an application for review.

   24.On 16 December 2022, the applicant provided detailed submissions and supporting documentation (the December submission) which the Tribunal will refer to in detail below.

   Regulation 2.84 Obligation to provide information to Immigration when certain events occur

   25.Reg.2.84(3) sets out the events that a standard business sponsor must notify Immigration about including:

   ·A change in work duties carried out by the primary sponsored person (reg.2.84(3)(aa));

   ·A change in address and contact details (reg.2.84(3)(b)(ii); and

   ·If a new director is appointed (if the sponsor is a company) (reg.2.84(3)(c).

   26.The Tribunal will consider first consider the requirement to inform Immigration of a change in contact details and if a new director is appointed. In the December submission it was conceded that the applicant had breached reg.2.84 on at least 5 occasions including:

   ·     Change of business name from Rongqiao Investments Pty Ltd to Moneychain Pty Ltd in September 2018.

   ·     Change of directors in October 2018 when Ms Chen became a Director and Secretary of the applicant.

   ·     Change of directors in May 2019 when Ms Chen ceased to be a Director and Secretary of the applicant.

   ·     Change of directors in September 2019 when another director ceased and a further director was appointed;.

   ·     Change of shareholders in January 2020.

   27.As the sponsor is the applicant, the Tribunal will not consider in relation to this sponsorship obligation Ms Chen’s other directorships.

   28.The NOITTA response submitted that due to lack of communication with the applicant’s former agent, the applicant failed to obtain proper advice on how to report change in circumstances. They acknowledged this failing and provided a Notice of Change of Circumstances with the Subclass 186 TRT application which included the change of name and shareholder information. The decision referred to the reporting of change of circumstances through the Subclass 186 application was not an acceptable way to repot of changes of circumstances to the Department and referred to the methods and timeframes set out in reg.2.84. The December submission submitted that it was not until the applicant received the decision that they became aware that they had to email or submit the legislative form within 28 days.

   29.The Tribunal is satisfied that the applicant has breached reg.2.84(3)(b)(ii) and reg.2.84(3)(c). However, the Tribunal is also satisfied that these breaches are minor and that now that the applicant is aware of these sponsorship requirements they will comply in future. The Tribunal will consider this further below.

   30.The Tribunal has considered in detail below whether the applicant has breached reg.2.86 obligation to ensure primary sponsored person works or participates in nominated occupation. The Tribunal is satisfied that the applicant has not breached this sponsorship obligation as the Tribunal is satisfied that the applicant continued to be a Branch Manager up to the present. Therefore, the Tribunal is satisfied that the applicant has not breached 2.84(3)(aa).

   Regulation 2.86 Obligation to ensure primary sponsored person works or participates in nominated occupation

   31.Reg.2.84(2B) requires that a sponsor ensures that, a primary sponsored person who holds a Subclass 457 visa, works or participates in the nominated occupation in relation to which the primary sponsored person was identified.

   32.On 9 November 2016, Ms Chen was granted a Subclass 457 visa on the basis of being nominated in the nominated occupation of Financial Institution Branch Manager. Therefore, the above is relevant to the circumstances of this review.

   33.Provided as part of the response was a statutory declaration of Ms Huang dated 24 January 2021 in which she stated that:

   ·She has limited English, and she uses Mandarin more in her daily work and life. She may have misinterpreted the questions she was asked, and it was a hasty and intense investigative environment, and it is possible that she was not able to use English clearly and completely express herself.

   ·She was promoted to Customer Relations Manager in January 2021 and on the day of the April site visit Ms Chen was on leave and she was the most senior manager at the branch.

   ·She thought the investigation was about illegal employees so when asked about the manager and the company structure she made reckless answers without a good knowledge of the real situation.

   ·She uses Chinese in her daily life and work and when asked who is the Manager, she did not clearly distinguish between Branch Manager and General Manger as there is no difference in the Chinese language. She takes herself for granted as a Branch Manager as she is a Customer Relations Manager.

   ·Her daily responsibilities are fundamentally different to those of Ms Chen.

   ·During the interview, she showed the ABF officer her business card and that of Ms Chen’s. The business cards were provided and indicate that Ms Huang’s position is Customer Relations Manager and Ms Chen’s position is general Manager.

   ·A list of her duties was also provided.

   34.Provided as part of the response was a statutory declaration of Ms Wang dated 24 January 2021 in which she stated that:

   ·She uses Chinese in have daily work and life. As English is not her native language and she was nervous she might not have expressed herself clearly.

   ·She has worked for the applicant since January 2018. The Auburn Branch is the busiest of the applicant’s branches and there are two mangers working at the Branch. Ms Chen is in charge of overall management and Ms Huang is in charge of customer service.

   ·On the day of the April site visit, when she was asked who she reported to her first reaction was to say Ms Huang as Ms Chen was on leave and Ms Huang was the most senior manager there. Also, she usually communicates with Ms Huang about customers service issues. Ms Chen and Ms Huang are both her leaders.

   ·Ms Chen as the manager of Auburn has a busy job with heavy responsibilities. She is important as she is the highest level manager in Auburn.

   ·She never said that Ms Chen was a General Manager of the entire group, just that she is the highest-level manager of the entire Auburn Branch.

   35.Although the Tribunal noted some inaccuracies between the interview and the statutory declarations the Tribunal accepts that the interviews were conducted without interpreters and both Ms Huang and Ms Wang referred to Ms Chen as a Manager and that she worked in the Auburn Branch.

   36.Despite the evidence referred to above, the delegate in the decision relied on the evidence of Ms Wang and Ms Huang at their interviews during the April site visit to find that Ms Chen was promoted to General Manager in January 2021. The delegate conceded that Ms Chen may still provide assistance with the tasks of Branch Manager after January 2021.

   37.The submission and evidence provided in the response and December submission that Ms Chen on 1 April 2021 provided assistance to the NSW Police as Auburn Branch Manager, which the Tribunal accepts and places some weight.

   38.At the hearing Ms Zhong stated that she is General Manager and Head of Compliance. Her English name is Larissa. She works in the City Office and has been the General Manager since 2019. Her tasks as General Manager are to: represents the whole company and be the liaison person for the whole operation; manages the currency trading of the company; manages different departments in the company, HR, marketing, payroll, branch managers and compliance; reports on the performance of the company to the shareholders; represents the company if anything comes up such if AUSTRAC has an issue with the company she discusses the business of the company with them; holds monthly meetings with branch managers and bosses, Tom Huang and Fanson Yip. When asked if she had other tasks Ms Zhong stated nothing too specific as she deals with all the matters to do with the company.

   39.At the hearing Ms Zhong stated that the task of Ms Chen as Branch Manager are the operations of the Auburn Branch including training of employees, performance reviews of staff and daily check up, that is every morning she checks the amount of cash and in the evening the balance of the cash. There are two ATMs at the Auburn Branch and Ms Chen deposits cash into the ATM each morning. Ms Chen also takes care of large value transactions and if the front desk needs approval for a special rate due to the size of the transaction, the front desk staff have to get her approval.  She is also in charge of the roster and the CCCTV security system of the Branch; she reports to Ms Zhong on the performance of the Branch; and liaises with high value customers. Ms Zhong confirmed that Ms Chen’s tasks have not changed since she became a Branch Manager in October 2014.

   40.At the hearing Ms Zhong stated that Ms Huang is a Customer Relations Manager and is responsible for all liaison with VIP customers for three branches, Auburn, Chatswood and the City, including visiting them. She liaises to see if they need transactions and during the COVID-19 Pandemic there were complaints from customers, and she looked after them. Mainly there were scams during the COVID-19 Pandemic which led to a ban, and she looked after that. During the period of the site visits, Ms Huang worked in Auburn as she lives close to Auburn. The Tribunal asked if she permanently worked there, and Ms Zhong said she does not have a fixed office. Sometimes she travels to other offices where the customers come for a meeting.

   41.The response provided a number of supporting documents to establish that Ms Chen was the Branch Manager at Auburn and the December submission referred to those documents. In relation of the sample of work reports, they are primarily in Chinese and one dated 23 September 2020 describes Ms Chen as ‘Auburn Manager’ and a leave application form dated 16 August 2019 that may be signed by the Ms Chen as the employee’s ‘manage/supervisor’ In relation to the emails they are a mixture of emails sent to Ms Chen and form her. Those that are from her do not state, in English, her position or job title. However, the Tribunal puts some weight on the task checklists and daily tasks sheet.

   42.At the hearing the Tribunal asked Ms Chen what her tasks were in October 2014, at that time she was a new employee she worked as a teller, reception, opening accounts and process orders. In May 2016 she became a Branch Manager and her tasks were: to achieve sales targets as directed by company; being in charge of all staff at branch, including rostering, team work and training; ensured cash balances match with the system; maintain relationships with commercial and VIP customers; give update to head office on sales and weekly performance of staff; reporting on any issues faced by store and problems she could not resolve; checks security of branch including checking the operation of CCCTV and alarm; and putting promotion brochures on display, orders business cards and appliances for the office.

   43.At the hearing the Tribunal asked if any tasks had changed since she started as Branch Manager in May 2016 and Ms Chen stated No.

   44.At the hearing Ms Chen stated as Auburn Branch was the first established and the team is quite large, and she is primarily responsible for the team. Currently there are six team members at the Auburn Branch.

   45.At the hearing Ms Chen stated she has been a director of the applicant, Red Rate (Australia) and RQ Partners. The Tribunal asked why she did not answer the question accurately when asked by ABF officer and Ms Chen stated that she was not asked that question she was asked whether she was a director of the applicant and she answered yes and a director on one other company. The Tribunal said that this is not entirely accurate Ms Chen stated that at the time she probably did not answer the question properly as all the questions were yes or no and she was not aware that she was asked if she was a director of other companies. The Tribunal also notes that the interview was for nearly 2 hours and there was no interpreter.

   46.The delegate place great emphasis on the change of position and job title but did not in the decision referred to what are the tasks of a Financial Institution Branch Manager and how those tasks are different from a General Manager. In particular, the delegate did not clearly state what were Ms Chen’s tasks as a Financial Institution Branch Manager and how those changed when she was ‘promoted’ to General Manager

   47.As stated above the Tribunal is satisfied that the list of duties stated by Ms Chen at the interview held during the May site visit are equivalent to the tasks that are to be performed by a Financial Institute Branch manager. This was also confirmed by Ms Zhong and Ms Chen at the hearing.

   48.The ANZSCO Unit Group 1499 Other Hospitality, Retail and Service Managers includes the nominated occupation of Financial Institution Branch Manager (ANZSCO 149914).  ANZSCO states that a Financial Institution Branch Manager: ‘Organises and controls the general operational activities of a branch of a bank, building society, credit union or similar financial institution’. On the evidence provided by the applicant and on what Ms Chen and Ms Zhong stated were her duties, the Tribunal is satisfied that Ms Chen was performing the duties of the nominated occupation and, therefore, has worked as a Financial Institution Branch Manager from the time she was appointed to the position of Auburn Branch Manager and up to the present.

   49.The delegate also found that Ms Chen had been ‘working’ as a director and secretary of the applicant and other companies and that this fell outside of the required duties of Financial Institution Branch Manager. However, once again the delegate did not identify what the additional duties were that the applicant was performing as a director and secretary and the Tribunal is not satisfied that there were tasks associated with being a director that were performed as part of her task and duties as a Branch Manager.

   50.The delegate was concerned that the $80,000 bonus paid by the applicant to Ms Chen was actually payment for her role as director of the applicant. The Tribunal accepts the evidence provided in support of the submission that Ms Chen and the Perth Branch Manager were each paid the bonus as outstanding employees on the 10^th anniversary of the applicant and not on the 10^th anniversary of Ms Chen’s employment. Therefore, the Tribunal is also satisfied that the applicant was not paid $80,000 for her role as director of the applicant.

   51.The Tribunal has also considered whether being a director or a secretary is an occupation,

   52.A nomination of an occupation for a Subclass 457 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. A nomination is required to provide, the corresponding six digit ANZSCO code and the name of the occupation. ANZSCO only includes the occupations of Chief Executives and Managing Directors which are contained in Unit Group 1111. There is nothing on the files that suggests that the applicant was a Managing Director or had any executive control over the companies she was a director or secretary.

   53.On the above the Tribunal is not satisfied that the applicant has breached reg.2.86(2B).

   Reg.2.90 Provision of false or misleading information

   54.The NOITTA stated that the applicant had provided false and misleading information as to Ms Chen’s position as 2 employees had confirmed that she was the General Manager and not the Branch Manager. In the decision the delegate stated that applicant had failed to properly address why they had not met reg.2.90 and, therefore, the circumstances still exist with regards to Ms Chen.

   55.The Tribunal has found that Ms Chen was performing the duties of the nominated occupation and therefore has worked as a Financial Institution Branch Manager from the time she was appointed to the position of Auburn Branch Manager and up to the present. Therefore, the Tribunal is not satisfied that the applicant has provided false or misleading information

   56.On the above the Tribunal is satisfied that the applicant has not breached the sponsorship obligation in reg.2.90.

   57.Accordingly, the Tribunal is satisfied that the prescribed circumstance in reg 2.92(2) exists for the purpose of s 140M of the Act but only in relation to reg.2.84.

   Action to be taken

   58.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.

   59.In considering what action to take, the Tribunal has had regard to the prescribed criteria, as extracted in the attachment to this decision. The sponsorship obligation to provide information to Immigration when certain events occur set out in reg.2.84 has been breached by the applicant as it failed to notify Immigration within the timeframes and by the method set out in the regulation relation to the change of name of the applicant and the appointment of directors. The Tribunal, however, was not satisfied that the applicant had failed to notify Immigration of a change in work duties carried out by Ms Chen.

   60.The Tribunal has balanced the nature of the obligation that was breached with the gravity of the breach. The obligation, although important, was not breached by an action that was serious. The applicants did inform Immigration of the change of name and directorships although late, even though some information was provided 4 years after the event, and by the wrong method. The Tribunal also accepts that the evidence of the applicant’s director, Mr Yongchen Shi provided by statutory declaration dated 22 June 2022 that the late notification was not intentional and once a new migration agent was appointed, the oversight was corrected even if it was not done by the method set out in the regulations. The Tribunal also accepts the submission in the December submission that the applicant now appreciates the totality of their sponsorship obligations and will report every event within timeframes. The Tribune also notes that the applicant cooperated with ABF and that this is the only sponsorship obligation that the applicant has breached.

   Conclusion

   61.The delegate in this case imposed a 6-month bar on the applicant from sponsoring any more people under the terms of their current sponsorship agreement. Having carefully considered all the circumstances as discussed above, the Tribunal considers that a sanction is not warranted in this case.

   62.Considering the totality of the circumstances, and having regard to the prescribed criteria the Tribunal finds that none of the actions under s 140M should be taken

   DECISION

   63.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).

   Namoi Dougall
   Member

   
   

   ATTACHMENT – Extract from the Migration Regulations 1994

   2.92   Contravention of law

   …

   (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 circumstances mentioned in subregulation (2) are:

   (a)    the past and present conduct of the person; and

   (b)    the nature of the law that the person has contravened; and

   (c)     the gravity of the unlawful activity; and

   (d)    any other relevant factors.

   …