Multivac Australia Pty Ltd (Migration)

[2024] AATA 1933

Multivac Australia Pty Ltd (Migration) [2024] AATA 1933 (4 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Multivac Australia Pty Ltd

REPRESENTATIVE:  Mr Rick Gunn

CASE NUMBER:  2301603

HOME AFFAIRS REFERENCE(S):          OPF2022/11747

MEMBER:Alison Mercer

DATE:4 June 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to take one or more of the actions specified in s 140M of the Migration Act 1958 (Cth).

Statement made on 4 June 2024 at 4:05pm

CATCHWORDS

MIGRATION – sponsorship cancellation or bar – sponsorship obligations – transferring sponsorship or recruitment costs to another person – directing sponsored workers to repay Skilling Australians Fund levy – perceived entitlement to recover fees when a sponsored employee resigns – levy costs not recovered – taking action that would result in transfer of costs – vulnerability of sponsored workers – decision under review set aside         

LEGISLATION

Migration Act 1958, ss 140, 359, 360
Migration Regulations 1994, rr 2.73, 2.87, 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 first approved as an standard business sponsor (SBS) on 30 March 2006. It was most recently approved as an SBS on 26 June 2020. On 20 January 2023, the delegate decided to impose a bar on the applicant from sponsoring any visa applicants until 20 January 2024 under s 140M on the basis that the applicant had breached its sponsorship obligations.

3. The Tribunal received a review application on 8 February 2023. It was lodged on behalf of the applicant by Ms Jenny Lawson, the applicant’s Head of People Operations, and was accompanied by a copy of the delegate’s decision and an authority by which Ms Lawson appointed a migration lawyer, Mr Rick Gunn, as the applicant’s representative and authorised recipient for correspondence.

4. On 1 February 2024, the Tribunal received detailed submissions and supporting documents from the applicant and its lawyer.

5. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to section 360(2)(a) of the Act.

6. 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 LAW, CLAIMS AND EVIDENCE

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

8. 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.

9. 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.

10. 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?

11. The Department’s records indicate that it sent a Notice of Intention to Take Action (NOITTA) to the applicant on 10 November 2022. The grounds set out in the NOITTA were:

    ·there were grounds to conclude that the applicant had breached its regulation 2.87 obligation not to recover, transfer, or take actions that would result in another person paying for certain costs;

    ·in particular, the applicant may have breached the obligation for a current or former SBS not to take, or seek to take, any action that would result in the transfer to another person of some or all of the costs associated with becoming or being an approved sponsor, or costs that relate specifically to the recruitment of a non-citizen for the purposes of a nomination; or take, or seek to take, any action that would result in another person paying to the sponsor some or all of the costs associated with becoming or being an approved sponsor, or costs that relate specifically to the recruitment of a non-citizen for the purposes of a nomination; or recover, or seek to recover, some or all of the costs associated with becoming or being an approved sponsor, or costs that relate specifically to the recruitment of a non-citizen for the purposes of a nomination;

    ·this was based on the fact that information had been received by Australian Border Force that indicated that the applicant had directed overseas skilled sponsored workers to enter into a written agreement requiring them, in the event that they resigned from their employment, to repay either the entirety of the Skilling Australians Fund (SAF) levy of $7,550 or a lesser percentage, dependent upon how many years of employment they had fulfilled before resigning;

    ·this information was recorded within a document titled ‘Private & Confidential – Subject: Repayment of VISA fees’ and the author of the document was noted to be the applicant’s Human Resource Manager;

    ·in reviewing Departmental systems and noting the information that the applicant had provided in support of nominations for overseas skilled workers, it was noted that no documents of this nature were disclosed to the Department. Similarly, in reviewing the employment contracts for the applicant’s sponsored employees, it was apparent that nothing relating to the recovery of the SAF levy was specified in relation to terms of ‘Termination of Employment’ or ‘Deductions;’

    ·the SAF levy was a cost directly associated with sponsorship and was to be satisfied by the applicant (as the sponsor) and any attempt to recover this cost from a sponsored worker could be considered to be non-compliance with r.2.87;

    ·based on the information provided, the applicant appeared not have complied with the r.2.87 ‘Obligation not to recover, transfer or take actions that would result in another person paying for certain costs.’  Further, based on the standardised commercial nature of the applicant’s employment agreements, it appeared that it had not complied with this particular Regulation in relation to all temporary skilled sponsored workers it had employed;

    ·if the Department found that a circumstance to bar or cancel the sponsor existed, the actions that might be taken were:

    ocancellation of the applicant’s approval as a standard business sponsor; and/or

    obarring the applicant, for a specified period, from sponsoring more people under the terms of its existing approval as a standard business; and/or

    obarring the applicant for a specified period of up to five years, from making future applications for approval as a work sponsor;

    ·where a sponsor or former sponsor had failed to satisfy the sponsorship obligations, there were other actions the Department might take, including:

    oapplying to the courts for a civil penalty order

    oissuing an infringement notice to the sponsor as an alternative to civil penalty proceedings

    ·the applicant was invited to provide a response to the above, which would be taken into account before any final decision was made.

12. On 22 November 2022, the applicant’s lawyer made the following submissions in response to the NOITTA allegations:

    …

    2. We provide these submissions and evidence in response pursuant to our instructions that the Sponsor genuinely misunderstood advice received by its legal representation and has never sought to, or in fact, reclaimed any funds from any overseas skilled sponsored worker and that there has accordingly been no breach of Sponsorship obligations in this matter.

    Background

    3. Multivac Germany is a world-leader in automated packaging systems, of which the Sponsor is its Australian subsidiary. The Sponsor has an annual turnover of $75 million reported for the most recent financial year and employs 113 people Australia-wide.

    4. The company was approved as an Accredited Sponsor on 26 June 2020, with the sponsorship set to expire on 26 June 2025 (annexure 2).

    5. On 15 December 2020, a subclass 482 nomination application was lodged in respect of Mr Nathan SPOWART (“the Nominee”) The nomination was lodged to facilitate transferring the sponsorship from the Nominee’s previous employer to the Sponsor (see annexure 3).

    6. On 18 December 2020, the Sponsor sent a letter signed by Mrs Jenny Lawson (née Dimmick) to the Nominee. The Sponsor acknowledges that this letter is the subject of the Notice. See annexure 4 for a copy of the complete unredacted letter.

    7. On 19 December 2020, the Department approved the Sponsor’s nomination application. A copy of the approval is attached at annexure 5.

    8. The Nominee subsequently resigned from his position on 9 August 2022, and the Sponsor duly notified the Department on 10 August 2022 via email, through our office as its authorised representative (see annexure 6).

    Regulation 2.87 of the Migration Regulations

    9. With regard to the Sponsor’s alleged breach of reg 2.87 of the Migration Regulations 1994, we respond as follows:

    Regulation 2.87 Obligation not to recover, transfer or take actions that would result in another person paying for certain costs

    This regulation applies to a person who is or was an approved work sponsor.

    (1A) The person:

    (a) must not take any action, or seek to take any action, that would result in the transfer to another person of some or all of the costs, including migration agent costs:

    (i) associated with the person becoming an approved work sponsor; or

    (ii) associated with the person being an approved work sponsor; or

    (iii) associated with the person being a former approved work sponsor; or

    (iiia) associated with a nomination under subsection 140GB(1) of the Act (including a fee mentioned in subregulation 2.73(5), or (7), 2.73A(3) or 2.73B(5) or (7)) or nomination training contribution charge; or

    (iv) that relate specifically to the recruitment of a non-citizen for the purposes of a nomination under subsection 140GB(1) of the Act; and

    (b) must not take any action, or seek to take any action, that would result in another person paying to the person some or all of the costs, including migration agent costs.

    (i) associated with the person becoming an approved work sponsor; or

    (ii) associated with the person being an approved work sponsor; or (iii) associated with  the person being a former approved work sponsor; or

    (iii) associated with a nomination under subsection 140GB(1) of the Act (including a fee mentioned in subregulation 2.73(5), or (7), 2.73A(3) or 2.73B(5) or (7)) or nomination training contribution charge; or

    (iv) that relate specifically to the recruitment of a non-citizen for the purposes of a nomination under subsection 140GB(1) of the Act; …

    10. Although the Sponsor acknowledges that this letter was sent, it is our submission that it was sent to the Nominee due to a genuine misunderstanding on part of Mrs Lawson in December 2020 in relation to the business’s entitlement to recover fees if a sponsored employee resigns. There is also independently verifiable evidence for this submission (see below). More relevantly, we provide evidence that the Sponsor at no stage took any action that resulted in costs being repaid.

    A genuine misunderstanding

    11. A Statutory Declaration by Mrs Lawson is attached at annexure 7. Mrs Lawson has been the Human Resources Manager for the Sponsor since July 2018 to present, and in her declaration states that:

    “The letter was drafted and sent due to my genuine misunderstanding at the time that the Skilling Australia Fund levy (“SAF levy”) fees could be reclaimed if a Nominee resigned from their position within the period of the nomination”. (Emphasis added)

    12. She declares that she sought clarification at the time the nomination application was lodged in December 2020, saying:

    “I have a recollection of discussing the proposed letter with Mr GUNN at the time of sending this letter to Mr SPOWART in December 2020 as it is my usual practice to confirm that we are acting in compliance with the migration law with Mr GUNN before taking any steps with visa applications. However I can only assume that I had misunderstood the advice as I would never have sent the letter if I had understood that Multivac was not permitted to reclaim the SAF levy and nomination fees. I have checked my records and unfortunately do not have any written record of that advice from the time.”

    13. Upon the Nominee handing in his notice on 8 August 2022 (and some 3 months before this NOITTA was sent), Mrs Lawson states in her declaration the following:

    “I consulted Mr Rick GUNN, the legal representative for Multivac in relation to its immigration matters. During this exchange I sought to clarify the position of the company in respect to reclaiming SAF levy payments…”.

13. A copy of email correspondence regarding this is attached at annexure 8, where our office advised:

    “It’s fine to reclaim any visa fees that you have paid for him, you just can’t reclaim the costs of the nomination from him which technically includes the SAF levy.”

14. Upon receiving the above advice, the Sponsor did not in fact seek or otherwise direct any repayment from the Nominee to recover costs. It is our submission that, while the Sponsor sent the letter (due to a misunderstanding), it cannot in fact be considered as being in contravention of its sponsorship obligations under reg 2.87, namely (with our emphasis):

    (1B) The person:

    must not recover [or (b) seek to recover] from another person some or all of the costs, including migration agent costs: …

    (iii) associated with a nomination under subsection 140GB(1) of the Act (including a fee mentioned in subregulation 2.73(5), or (7), 2.73A(3) or 2.73B(5) or (7)) or nomination training contribution charge; or

    (iv) that relate specifically to the recruitment of the primary sponsored person, or a non-citizen, for the purposes of a nomination under subsection 140GB(1) of the Act; and

    …

    No further action sought

    16. We submit that the Sponsor cannot not be construed as having taken an action, or having sought to take an action, that would result in obtaining these funds, since sending the letter would also require a follow-up action to retrieve these from the Nominee. The proposed action to recover funds in the letter is conditional – which is to say its terms were that if Mr Spowart were to resign, then (and only then) would the Sponsor seek to recover these funds. However, when Mr Spowart resigned, the Sponsor in fact took no action.

    17. Mrs Lawson goes on to say:

    “While this letter was sent to Mr SPOWART, I confirm that Multivac never in fact pursued repayment from Mr SPOWART or, for that matter, any other sponsored Multivac employee. I have personally never sent another letter of this type to any other sponsored employee.”

    18. As there are no Departmental directions, policy or case law relating to what ‘actions’ are taken to be included under reg 2.87, we are confined to the ordinary definition of the terms involved.

    19. The Notice explicitly asserts that the Sponsor “directed” workers to enter into an agreement. According to its ordinary definition, to “direct” indicates in this instance order, command, or control.1 The Sponsor has never, and did not in this matter, ever control or coerce the Nominee into repaying the levy as evidenced by his final payslip from August (see annexure 9).

    20. The Notice also asserts that a breach could be considered as “any attempt to recover this cost” associated with the SAF levy. To ‘attempt to recover’ costs would, under its ordinary definition, indicate that the Sponsor successfully regained the fees, or at the very least actively pursued their recovery. 2 The Sponsor has not reclaimed the SAF levy fees, and has not attempted to recover them (which by necessity involves action on its part to enforce the purported agreement), and it is not alleged by ABF that this has occurred.

    21. An ordinary definition of ‘seek’, as in per reg 2.87, means that the Sponsor would ‘try to obtain something’, or actively try to acquire or gain the funds back from the Nominee. 3 We contend that the Sponsor did not seek repayment as no other action was taken to result in the Nominee repaying any SAF levy fees.

    22. At the time the letter was sent, the nomination had not been approved. The Sponsor was certainly not seeking repayment of any fees at that time. Ms Lawson declares that this was a genuine misunderstanding, and the fact of her having contacted our office in relation to the matter (3 months in advance of this NOITTA) is compelling evidence that Ms Lawson was actively seeking to confirm the Sponsor’s proper path of action. Upon receiving the advice that the Sponsor could not in fact pursue reimbursement for the SAF levy, no further action was taken.

    23. We reiterate Mrs Lawson’s statement in her statutory declaration that:

    “The company has never sent a similar letter to any other employee, and understands that it cannot be reimbursed for any nomination fees or SAF levy payments.”

    Actions of the Nominee

    24. We are instructed that the letter came into the possession of ABF after a coincidental and unrelated issue with Mr Spowart’s visa following a trip to New Zealand. As we understand it, the Nominee advised his former employer (while he was still employed) that Ms Lawson’s letter was sighted by immigration officials and, it is assumed, referred on to the ABF. The Sponsor acknowledges that the course of action proposed in the letter, if it were acted upon, would constitute a breach of Sponsorship obligations.

    25. Any suggestion that the Sponsor ‘directed’ workers (note the plural) to enter into a written agreement to agree to reimburse any nomination fees is wholly refuted by the Sponsor. Firstly, your letter gives no indication that more than one worker is involved. You have provided a copy of a single redacted letter, and our client has attached the original version. We are instructed that the Sponsor is confident that this is the only instance of such a letter as no others exist. Secondly, our client specifically instructs that Mr Spowart was the only sponsored worked to ever receive such a letter, and that it was sent as the result of a misunderstanding.

    26. Our instructions are that the Nominee (Mr Spowart) could not have provided this letter to the ABF as a ‘dob in’ as the result of being unlawfully directed to reimburse Multivac. There is also no suggestion in the NOITTA that the Sponsor has in fact sought the reimbursement of any funds – if that is alleged against the Sponsor then please provide further details for the Sponsor to respond.

    27. If Mr Spowart had been pursued by the Sponsor to repay these fees contrary to law, it would be a logical and understandable course of action for him to provide it directly to the ABF. This has not been alleged. There was no action taken by the Sponsor, even after the Nominee resigned from his position, and this was as a result of Ms Lawson confirming what the Sponsor was entitled to do in August 2022 when Mr Spowart resigned.

    Conclusion

    28. In summary:

    • The Sponsor acknowledges that the letter was sent prior to the nomination being approved;

    • The letter was sent as the result of a genuine misunderstanding at the time as to what it could lawfully reclaim if the nominee resigned;

    • In August 2022, some 3 months before this NOITTA was sent, Ms Lawson sought clarification with our office about whether the Sponsor could reclaim SAF levy fees upon Mr Spowart handing in his notice;

    • Upon receiving confirmation that it could not, no action was taken by the company;

    • Evidence is attached in the form of his final payslip that Mr Spowart received his full entitlements and no monies were deducted; and

    • We are instructed that the Sponsor did not send a follow-up letter to Mr Spowart correcting the position with the SAF levy fees as by that point he had resigned, and Multivac had already made the decision that it was taking no action with regard to the fees.

    29. We submit that the Sponsor has consistently acted ethically and in full compliance with all legal obligations. We submit further that there has been no breach of reg 2.87 in this instance as the Sponsor has not sought to, nor has it in fact attempted to reclaim any costs from this single nominee.

    30. If, in the alternative, you are of the view that merely sending the letter constitutes a breach of reg 2.87 “to recover, transfer or take actions that would result in another person paying for certain costs” which in our submission on proper construction it cannot, we submit that the evidence emphatically indicates that the letter was sent in error, and on that basis it would be inappropriate to impose any sanction on the Sponsor.

    31. Our instructions are that the Sponsor takes this NOITTA extremely seriously, and that it would never take any course of action which could jeopardise its standing as an Accredited Sponsor. Viewed objectively, it would make absolutely no sense for a multimillion-dollar company to knowingly and unlawfully pursue a former employee for what would be approximately $3,600, and in do doing risk its sponsorship status. Our instructions are that our client is now in absolutely no doubt as to this sponsorship obligation. We would also highlight the evidence of it complying with other obligations, such as immediately notifying about Mr Spowart’s resignation. We submit that Multivac is not an organisation which adopts a cavalier attitude to its legal obligations, and can confirm that the business (and Ms Lawson in particular) is mortified to have inadvertently been the source of this NOITTA.

    …

1. However, on 20 January 2023, the delegate found that the applicant failed to satisfy its sponsorship obligation.

2. In reaching this conclusion, the delegate made the following findings:

   …

   I note you have admitted the Private & Confidential Agreement letter seeking to recover the SAF levy costs (in whole or in part) was sent to your sponsored worker and that you have contended that this was not a breach of Regulation 2.87 of the Migration Regulations 1994.

   Based on your submissions in your response to the NOITTA and other evidence gathered during monitoring I consider that at the relevant time, namely when you sent your sponsored worker the Private & Confidential Agreement letter to sign at the commencement of his employment, you did act, and intended to act, to recover the SAF levy.  I consider that sending this letter to your sponsored worker particularly given his vulnerability as a sponsored worker, dependent on your continued sponsorship to retain a valid migration status in Australia, was an act that would reasonably result and was designed to result in your recovery of the SAF levy costs from your sponsored worker in the event that he resigned in the first four years of his employment.  I also consider that once made aware of your genuine but mistaken belief as to the legality of recovery of the SAF levy, you then withdrew your intention to act further to recover the SAF levy.

   Therefore I am satisfied that you have taken action that would result in another person paying for certain costs and therefore I am satisfied that a failure of Regulation 2.87 - Obligation not to recover, transfer or take actions that would result in another person paying for certain costs, has occurred.

   I find circumstances for cancelling your approval as a sponsor or for barring you from use of the program, for a specified period of time, exists or existed.

   Given this assessment, I am satisfied that the following circumstance(s) is met:

   Regulation 2.89 Failure to satisfy sponsorship obligation

   The identified breach of the sponsorship obligations was:

   Regulation 2.87 Obligation not to recover, transfer or take actions that would result in another person paying for certain costs

   Considerations

   In deciding what action to take under section 140M of the Migration Act, there are certain criteria that I must take into account, as set out below.

   Regulation 2.89 – Failure to satisfy sponsorship obligation

   I have determined that you have failed to satisfy the following sponsorship obligation - Regulation 2.87 Obligation not to recover, transfer or take actions that would result in another person paying for certain costs. I have taken into account the following criteria, as required by subregulation 2.89(3), in determining what action to take under section 140M of the Migration Act.

   Your past and present conduct in relation to Immigration and the period of time over which you have been an approved sponsor

Comments

You have been an approved Standard Business Sponsor since 30 March 2006 and have previously not been monitored.

The number of occasions on which you have failed to satisfy the sponsorship obligation

Comments

You have failed to satisfy Regulation 2.87 Obligation not to recover, transfer or take actions that would result in another person paying for certain costs on one occasion.

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

Comments

You have stated in response to the NOITTA that you have consistently acted ethically and in full compliance with all legal obligations. We submit further that there has been no breach of reg 2.87 in this instance as you have not sought to, nor has in fact attempted to reclaim any costs from this single nominee.’

I have taken this into account when considering what action to take under s140K of the Migration Act. I have also taken into account that any action to recover certain costs in breach of Regulation 2.87 whether inadvertent or otherwise is considered serious and should be deterred. This is because a sponsored worker is generally considered to be more vulnerable and in a weaker bargaining position when compared to that of an Australian citizen or permanent resident worker. At the time the letter was sent to him your sponsored worker was dependent on you for sponsorship to validate his continued migration status in Australia. The perceived financial burden resulting from sending the letter would have had an impact on your sponsored worker’s freedom to choose alternative migration or sponsorship pathways should the need arise.

Therefore I have also considered the need to uphold and protect the rights of non-citizens sponsored to work in Australia under the temporary skilled visa program and to deter this type of action being taken in the future by any sponsor, inadvertently or otherwise.

I have also taken into consideration that you did not act further to recover the SAF Levy and therefore I consider the failure of Regulation 2.87 to be less severe than if you had actually recovered some or all of the SAF levy..

Whether, and the extent to which, the failure to satisfy the sponsorship obligation has had a direct or indirect impact on another person

Comments

I consider that the failure to satisfy Regulation 2.87 has had an indirect impact on your sponsored worker because sending him the letter advising you would recover the SAF levy should he resign, particularly given his vulnerability as a sponsored worker, dependent on your continued sponsorship to remain in Australia, was an act that would reasonably result in a financial burden being passed on to your sponsored worker.

Further I consider there was a direct impact on your sponsored worker because you sent the letter advising of recovery of the SAF levy at the time of commencement of the sponsored worker’s employment as a means of discouraging the sponsored worker from resigning within the first four years of his employment with the sponsor. This perceived financial burden would have impacted on your sponsored worker’s freedom to choose alternative migration or sponsorship pathways should the need arise.

Whether, and the extent to which, the failure to satisfy the sponsorship obligation was intentional, reckless or inadvertent

Comments

You have stated that the letter was sent in error, and on that basis it would be inappropriate to impose any sanction on the Sponsor.

Based on the evidence gathered during monitoring I consider that you did act, and intended to act, to recover the SAF levy by presenting your sponsored worker with the Private & Confidential Agreement to sign at the commencement of his employment. I do not agree that the letter was sent in error because at the relevant time, the letter was intended to be sent, and was actually sent to your sponsored worker, and the plain meaning of the words contained in that letter, clearly demonstrates an intention from the outset of his employment to recover the SAF Levy from your sponsored worker should he resign within the first 4 years of his employment with you.  Therefore I consider the failure of Regulation 2.87 was intentional.

However I note that once made aware of your genuinely mistaken belief as to the legality of recovering the SAF levy, you withdrew the intention to act further to recover the SAF Levy.  I have also noted the statutory declaration and genuine concern of Ms Jenny Lawson, HR manager, once she was made aware of her mistaken belief.

Whether, and the extent to which, you have cooperated with Immigration, including whether you informed Immigration of the failure

Comments

You did not inform Immigration of the failure of Regulation 2.87 Obligation not to recover, transfer or take actions that would result in another person paying for certain costs. You have cooperated with Immigration as you responded to all correspondence relating to the monitoring audit.

The steps (if any) you have taken to rectify the failure to satisfy the sponsorship obligation, including whether the steps were taken at the request of Immigration or otherwise

Comments

You have stated that you did not send a follow-up letter to Mr Spowart correcting the position with the SAF levy fees as by that point he had resigned and you had already made the decision that you were taking no further action with regard to recovering the fees. I also note that you sought legal advice to clarify your mistaken belief in recovering SAF Levy from your sponsored worker.

The processes (if any) you have implemented to ensure future compliance with the sponsorship obligation

Comments

I note that you have advised you have never sent a similar letter to any other employee, and now understand your obligation to pay the SAF Levy cannot be recovered from your sponsored workers. .  

The number of other sponsorship obligations that you have failed to satisfy and the number of occasions on which you have failed to satisfy other sponsorship obligations

Comments

There are no other sponsorship obligations you have failed to satisfy.

Any other relevant factors

Comments

No other relevant factors to be considered.

Request to waive a bar

Under section 140O of the Act, the Minister may decide to waive the bar placed on a sponsor under section 140M of the Act. You may make a written request to the Minister to consider waiving the bar.

It is important to note that a request to waive the bar is not a review of the decision to impose the bar; it provides the Minister with the option to waive the bar if certain criteria are met.

The criteria which are to be taken into account in considering whether to waive the bar are contained in regulation 2.101 of the Regulations. You should address all the criteria in regulation 2.101 to allow a delegate of the Minister to make a decision on whether to waive the bar. A decision not to waive the bar is not merits reviewable.

…

1. There is no evidence before the Tribunal to indicate that the applicant requested the Department to waive the bar.

2. As noted above, the Tribunal received a review application in respect of the decision to impose the bar on 8 February 2023. It was lodged on behalf of the applicant by its Head of People & Operations, Ms Jenny Lawson, and was accompanied by a copy of the delegate’s decision and an authority by which Ms Lawson appointed a migration lawyer, Mr Rick Gunn, as the applicant’s representative and authorised recipient for correspondence.

3. On 15 August 2023, the Tribunal conducted outreach, seeking to clarify whether the applicant wished to proceed with the review application given that the sponsorship bar expired on 20 January 2024.

4. On 16 August 2023, the applicant’s lawyer responded to indicate that the applicant wished to proceed with the review application:

   … for the avoidance of doubt we confirm that the Applicant wishes to preserve it right to a hearing, and so on that basis please accept this email as a response pursuant to s 359(C) and we will seek further instructions from our client in terms of a substantive response.

   We note further that extensive submissions were provided to the Department prior to the imposition of the sponsorship bar, and subject to any additional information it wishes to provide, the Applicant refers to and repeats those submissions.

   …

5. On 1 February 2024, the Tribunal wrote again to the applicant via its lawyer to note that the sponsorship bar had expired on 20 January 2024, and to seek clarification of whether the applicant wished to proceed with the review application.

6. On the same date, the applicant’s lawyer responded to confirm that the applicant still wished to proceed with the review application, and that given the facts had not changed since the Department’s decision, the applicant relied on the lawyer’s earlier submissions and supporting material provided to the Tribunal in January 2024 and its submissions to the Department prior to the refusal decision. The lawyer noted, however, that they were happy to provide further submissions if it would assist the Tribunal. He stated that he and the applicant considered the Department’s decision in this matter ‘to be quite unreasonable, and more relevantly, incorrect based on all of the available facts… As such we respectfully request an “on the papers” finding that there was in fact no breach of the sponsor’s obligations pursuant to r.2.87 and ask that the finding of the [Department] be set aside.’

   Failure to satisfy a sponsorship obligation: reg 2.89

7. 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).

8. In the decision of 20 January 2023, the delegate made a decision pursuant to s.140M of the Act to bar the applicant from sponsoring any employees for visas between 20 January 2023 and 20 January 2024. That period has now expired, but the applicant has chosen to continue with the review application, seeking to obtain a more favourable outcome.

9. The Department’s basis for imposing the bar was because the delegate concluded that the applicant had breached the sponsorship obligation in r.2.87 of the Regulations not to recover, transfer or take actions that would result in another person paying for certain costs; in this case, advising a nominated employee that the applicant would seek to recover the SAF levy from him if he resigned in the first 4 years of his sponsored employment.

10. It was not disputed by the applicant that the applicant did initially write to its nominated employee Mr Spowart on 18 December 2020 to advise, amongst other things, that the SAF levy would be recoverable if he left the company within the first 4 years of his employment.

11. However, it was strongly argued by the applicant and its lawyer that:

    othe above action was based on a mistaken understanding by Ms Lawson, Head of People Operations/HR, of what the applicant was entitled to do if a sponsored employee ceased employment within the first 4 years;

    oMs Lawson sought clarification of the applicant’s position on this issue with its lawyer prior to receiving the NOITTA;

    oas a result, no further action was taken by the applicant to recover the SAF from Mr Spowart, who had in the meantime resigned from the applicant’s employment;

    oall employment contracts were reviewed to ensure that they complied with r.2.87;

    othe applicant had not sought to recover the SAF from any other sponsored employee nor written to them to advise that it would do so; and

    othe applicant had adhered to all its other sponsorship obligations over a number of years, and took its responsibilities in this regard very seriously. The letter dated 18 December 2020 was a one-off and was genuinely based on an incorrect understanding of the law by Ms Lawson, and was not a deliberate attempt by her or the applicant to unlawfully recover the SAF from sponsored employees.

12. The Tribunal has considered carefully whether the fact that the applicant did not in fact recover all or part of the SAF from its sponsored employee Mr Spowart means that it did not contravene r.2.87. However, it has concluded that by sending the letter dated 18 December 2020, it did take an action that would have resulted in another person (Mr Spowart) paying for certain costs (the SAF levy) if Mr Spowart had resigned in the first 4 year of his employment and complied with the request. This is regardless of the fact that the applicant did not in fact take any further action to recover the SAF levy from Mr Spowart when he did resign and did not recover all or part of the SAF from him (or any other sponsored employee).

13. Accordingly, the Tribunal finds that the applicant did breach its r.2.87 obligation, and it is therefore further satisfied that the prescribed circumstance in reg 2.89 exists for the purpose of s 140M of the Act.

    Action to be taken

14. For the above 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.

15. In considering what action to take, the Tribunal has had regard to the prescribed criteria, as extracted in the attachment to this decision.

    (a)the past and present conduct of the person in relation to Immigration; and

16. The Tribunal has reviewed the Department’s records and is satisfied that the applicant generally has had a good relationship with the Department, with the exception of the incident which is the subject of this cancellation decision. It has been approved more than once as an SBS and there is no record that it has breached any other sponsorship obligations since it was first approved, or otherwise contravened immigration (or any other) law.

17. The Tribunal gives this factor weight in favour of the applicant.

    (b)       the number of occasions on which the person has failed to satisfy the sponsorship obligation; and

18. As noted above, the Tribunal and Department have identified only 1 occasion on which the applicant failed to satisfy a sponsorship obligation. The Tribunal gives this factor some weight in favour of the applicant.

    (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

19. The Tribunal notes that the period of time over which the failure occurred was relatively short, being between 18 December 2020 when Ms Lawson sent the SAF recovery letter to Mr Spowart, and when she sought and received clarification from the applicant’s lawyer Mr Gunn that this could not be recovered from Mr Spowart. The Tribunal further notes that Ms Lawson received this advice prior to the applicant receiving the NOITTA and prior to Mr Spowart actually resigning from the company, both of which occurred in 2022.

20. The Tribunal accepts that the applicant did not seek to recover the SAF from Mr Spowart when he did resign in 2022. It also notes that the applicant was first approved as a sponsor by the Department in 2006, and that the SAF was introduced by the Australian government in March 2018, so was not applicable to the applicant until then. As also noted above, the applicant and Ms Lawson denied sending any other such letters to other employees, and there is no evidence that they did. This weighs in favour of the applicant, in the Tribunal’s view.

21. The Tribunal acknowledges, however, the delegate’s observation that receiving the letter dated 18 December 2020 may have affected or influenced Mr Spowart’s decision to remain with the applicant for longer than he otherwise would have (although he ultimately resigned in late 2022), given he was advised that he would be liable to repay all or part of the SAF of approximately $7,500 if he resigned during his nomination period. This weighs against the applicant, and the Tribunal acknowledges that sponsored employees holding temporary visas are generally in a less powerful position than their Australian employers.

    (d)       the period of time over which the person has been an approved sponsor; and

22. As noted above, the Department’s records indicate that the applicant was first approved as an SBS in 2006, and its most recent approval in 2020 expires in 2025.

23. The Tribunal considers that the applicant has been an approved sponsor for a significant period, during which time only this 1 incident has been identified by the Department. The Tribunal considers that this weighs in favour of the applicant.

    (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

24. The Tribunal concurs with the delegate that the letter sent by the applicant to Mr Spowart on 18 December 2020 may have had an indirect impact on him, in that it may have influenced him not to resign in circumstances where he otherwise might have done so, for fear of having to pay back the SAF of approximately $7,500. However, the Tribunal notes that Mr Spowart did in fact ultimately resign approximately 2 years after receiving the letter, and it accepts that the applicant did not take any steps to pursue him for the SAF.

1. The Tribunal is not satisfied that any other employees of the applicant were affected as it accepts Ms Lawson’s written evidence that she did not send a letter like the one of 18 December 2020 to any other sponsored employee.

2. The Tribunal considers that, on balance, this weighs in favour of the applicant.

   (f)        whether, and the extent to which, the failure to satisfy the sponsorship obligation was intentional, reckless or inadvertent; and

3. Ms Lawson and the applicant’s lawyer characterised the letter of 18 December 2020 being sent to Mr Spowart as inadvertent and not in any way deliberate. In contrast, the delegate considered that the act of drafting and sending the letter was a deliberate action on the part of the applicant to indicate to Mr Spowart that he would have to repay the SAF if he resigned before his nominated period finished, even if Ms Lawson subsequently received advice that this was not correct and took no further action to pursue the issue.

4. Having considered the matter carefully, the Tribunal is satisfied that the letter sent on 18 December 2020 was deliberately sent but was based on an incorrect interpretation of legal advice by Ms Lawson, and that this interpretation was not deliberate. It is further satisfied that Ms Lawson took steps to clarify the position and that the applicant took no further action to pursue Mr Spowart for the SAF when he resigned, and that it reviewed all of its employee contracts to ensure that none contained any similar clauses.

5. Therefore, while the initial action in sending the letter to Mr Spowart may have been deliberate, this occurred in the context of an inadvertent and mistaken understanding by Ms Lawson, and this was corrected as soon as it was realised. Accordingly, the Tribunal considers it fair to characterise the sponsorship failure as reckless or inadvertent, but not deliberate in the sense that the applicant did not deliberately choose to take an action it knew not to be justified or deliberately set out to breach its sponsorship obligation.

6. This counts in the applicant’s favour.

   (g)       whether, and the extent to which, the person has cooperated with Immigration, including whether the person informed Immigration of the failure; and

7. While the applicant did not inform the Department of the failure, the Tribunal accepts that it did not do so as Ms Lawson did not see the need to do so as the applicant had by then realised it had no legal basis to attempt to recover the SAF from Mr Spowart in the event that he resigned his employment. The Tribunal does not consider that this should be characterised as a deliberate ‘cover up’ on the part of the applicant; rather, it accepts that the matter did not seem relevant to inform the Department of in circumstances where the applicant did not try to recover the SAF from Mr Spowart (or any other sponsored employee).

8. The Tribunal is satisfied from the Department’s records and the applicant’s submissions that the applicant cooperated with the Department to the best of its ability, once the matter was raised by the Department.

9. This counts in the applicant’s favour.

   (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

10. The Tribunal accepts that following the internal identification of the sponsorship breach, the applicant reviewed its employment contracts and correspondence to ensure that no other employee was given the impression that the SAF would have to be repaid if they left their employment during the nomination period. The Tribunal further accepts that the applicant retains an immigration lawyer to assist it to comply with its obligations and immigration law more generally.

11. The Tribunal considers that this weighs in the applicant’s favour.

    (i)        the processes (if any) the person has implemented to ensure future compliance with the sponsorship obligation; and

12. The Tribunal relies on its findings at paragraphs 52 and 53 above in relation to this consideration.

    (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

13. As noted above, the Tribunal is satisfied that there is only a single instance of the applicant failing to satisfy its sponsorship obligations, and no evidence of any other sponsorship breaches or contravention of immigration law more broadly.

14. This weighs in favour of the applicant.

    (k)       any other relevant factors

15. Few other factors were advanced by the applicant or its lawyer. The Tribunal notes, however, that the applicant is a reputable international company with a substantial Australian workforce and has been an approved sponsor without issue for most of its approval period(s). While this does not preclude an adverse finding in relation to it, the majority of the available information indicates that it is operating successfully, retains an immigration lawyer to handle its sponsored employees and is generally compliant with immigration law.

16. This weighs in the applicant’s favour.

    Conclusion

17. 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, as it characterises the sponsorship breach as a non-deliberate, technical one which was rectified without any direct harm or penalty to the affected employee, in circumstances where the applicant reviewed its processes and correspondence to ensure that it did not occur again. There is no evidence before the Tribunal to indicate any repetition of the breach, or any other breaches, by the applicant.

    DECISION

18. 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).

    Alison Mercer
    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.

    …