Paxton Trade & Investment Pty Ltd (Migration)

Paxton Trade & Investment Pty Ltd (Migration) [2023] AATA 3019 (11 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Paxton Trade & Investment Pty Ltd
REPRESENTATIVE:  Ms Yi Luo (MARN: 1802013)
CASE NUMBER:  2112618
HOME AFFAIRS REFERENCE(S):          OPF2020/13183
MEMBER:K. Chapman
DATE:11 September 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal varies the decision under review by reducing the period of the sponsorship bar under s 140M(2) from 5 years to 2 years and 1 month from the date of the Department’s decision on 31 August 2021.

Statement made on 11 September 2023 at 1:14pm
CATCHWORDS
MIGRATION – sponsorship cancellation or bar – sponsorship obligations – false or misleading information – working in the nominated occupation of Café or Restaurant Manager – applicant ceased trading and departed the location – two businesses closed – business temporarily changed to grocery store – allegations against a previous migration agent – decision under review varied
LEGISLATION
Migration Act 1958, ss 140, 359
Migration Regulations 1994, rr 2.86, 2.89, 2.90
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, on 31 August 2021, to take an action under s 140M of the Migration Act 1958 (Cth) (‘the Act’) in relation to the applicant’s sponsorship.

The applicant, Paxton Trade and Investment Pty Ltd, conducts a hospitality business. It has traded in various guises since February 2015, including as Jimez Café and Bar, Montana Coffee and most recently as Ma Ma Mu’s Kitchen. Mr Wei-Liang Mu (aka Mr Patrick Mu) is presently the sole director and shareholder of the applicant company. In 2016, Mr Mu and his immediate family obtained Subclass 457 visas through the nomination of the applicant. Mr Mu was nominated in the position of Café or Restaurant Manager, to work at Jimez Café and Bar located in Pacific Pines, Queensland.
The applicant was previously an approved standard business sponsor, enabling it to nominate Mr Mu for the purpose of the Subclass 457 visa program. On 31 August 2021, the delegate decided to act, pursuant to s 140M of the Act, and barred the applicant for five years from making applications for approval as a standard business sponsor and temporary activities sponsor. The delegate determined that, following a site visit on 10 December 2020 to the declared Pacific Pines business premises, the applicant failed to comply with their sponsorship obligations. Further, the delegate determined that the applicant provided false or misleading information in relation to its investigation. On 19 September 2021, the applicant applied to the Tribunal for review of the decision to take action under s 140M of the Act, providing a copy of that decision with their application.
On 6 July 2023, the Tribunal provided to the applicant a copy of a non-disclosure certificate, pursuant to s 375A of the Act, issued by the Department on 17 February 2022. The Tribunal invited comment upon the validity of this certificate. Such comment was ultimately provided at the review hearing. On 13 and 14 July 2023, initial pre-hearing submissions from the applicant were received by the Tribunal. Such material included, but was not limited to, taxation records, lease documentation, photographs and information pertaining to the sanctioning of a former Registered Migration Agent. All submitted material has been duly considered by the Tribunal.
The applicant, through Mr Mu, initially appeared before the Tribunal in person on 21 July 2023. Given the volume of material to be covered, the hearing was not completed in one sitting. It was adjourned and then ultimately resumed on 1 September 2023. The resumed hearing was conducted by video means, with the consent of the applicant. Mr Mu confirmed at each sitting that he would give evidence on behalf of the applicant and that no other persons would give evidence. On 4 September 2023, the applicant submitted post-hearing material to the Tribunal by way of financial and taxation records. The Tribunal has duly considered this material.
For the following reasons, the Tribunal has decided to vary the decision under review by reducing the period of the sponsorship bar under s 140M(2), from five years to two years and one month from the date of the Department’s decision on 31 August 2021.
CONSIDERATION OF CLAIMS AND EVIDENCE
Sections 140K, 140L and 140M of the Act provide for the imposition of sanctions on approved sponsors in certain circumstances.
Under s 140M, if prescribed circumstances exist, the Minister (and the Tribunal on review) may take one or more of the following actions:
·cancelling the sponsorship approval in relation to a class to which the sponsor belongs;
·cancelling the sponsorship approval for all classes to which the sponsor belongs;
·barring the sponsor for a specified period from sponsoring more people under the terms of any existing approval; and
·barring the sponsor for a specified period from making future applications for sponsorship approval in relation to one or more classes of sponsor.
For these purposes, the circumstances are prescribed in regs 2.89–2.94B and include circumstances in which the Minister, or Tribunal on review, is satisfied there has been: a failure to satisfy a sponsorship obligation; provision of false or misleading information; sponsorship application or variation criteria no longer met; a contravention of the law; unapproved changes to a program; a failure to pay additional security; a failure to comply with certain terms of an agreement; or a failure to pay medical and hospital expenses.
Where a prescribed circumstance has been found to exist, the regulations prescribe criteria that must be taken into account when determining what action, if any, to take: regs 2.89–2.94B. These criteria, as they relevantly apply to the circumstances of this review, are set out in the attachment to this decision.
Validity of the non-disclosure certificate
The Tribunal notes that the non-disclosure certificate issued by the Department pursuant to s 375A of the Act, on 17 February 2022, is relevant to the review. The Tribunal provided a copy of the certificate to the applicant prior to the review hearing. The validity of the certificate was discussed with the applicant at the hearing, with no objection being made to its validity. Following careful consideration, the Tribunal finds that this certificate is valid, as public interest grounds are properly stated. With respect to the material under cover of the certificate, the Tribunal provided ‘the gist’ of this information to the applicant at hearing, utilising the procedure in s 359AA of the Act.
Does a circumstance for the taking of an action exist?
In the present matter, the delegate found the applicant breached the sponsorship obligation contained in reg 2.86. That obligation required the applicant to ensure the primary sponsored person, Mr Mu, worked in the nominated occupation of Café or Restaurant Manager (ANZSCO 141111). In summary, the delegate determined that multiple breaches of reg 2.86 occurred as they were not satisfied that the applicant was trading as a restaurant at all relevant times, nor that Mr Mu was employed as a Café or Restaurant Manager (ANZSCO 141111) during those times. The delegate relied upon a site visit conducted on 10 December 2020 (including a telephone call from an Australian Border Force Officer to Mr Mu), enquiries with relevant landlords and property managers, and material submitted in support of Immigration related applications, to come to their findings. In particular, the delegate placed much emphasis upon the applicant maintaining to the Department that it was trading as Jimez Café and Bar at the Pacific Pines location, well after that business had ceased trading and departed the location.
Failure to satisfy a sponsorship obligation: reg 2.89
The Minister may take one or more of the actions in s 140M if satisfied the sponsor has failed to satisfy a sponsorship obligation referred to in Division 2.19 of the Regulations: reg 2.89(2). Upon de novo review, the Tribunal may exercise all relevant powers available to the delegate.
During the review hearing, the Tribunal canvassed with Mr Mu the business activities and structure of the applicant company. Mr Mu advised that the ownership structure of the applicant changed over time, with him now being the sole director and shareholder. He indicated that various other shareholders and directors were involved in the applicant company over the years, although he was the primary person making decisions and investing funds into the company. Mr Mu agreed that the applicant company was primarily created to conduct business activities that would lead to Australian permanent residence for himself and his family. He outlined his migration history to the Tribunal leading up to the creation of the applicant company, with he and his wife utilising the Student visa program from 2012 to position themselves to seek permanent residence in due course. Mr Mu informed the Tribunal of his high achievement as a student.
Mr Mu told the Tribunal that he particularly relied upon a former Registered Migration Agent, Mr Kyung Jun (‘Kevin’) Lee (MARN 0533540) of Hansol Migration Professionals Pty Ltd, for advice regarding the establishment of the applicant company, for the purpose of nominating him for an employer sponsored visa. Mr Mu advised that Mr Lee had his registration cancelled by the Department. The Tribunal notes that the applicant submitted the corresponding decision of OMARA dated 2 May 2016. Mr Mu contended that Mr Lee had mislead him in relation to immigration matters and this caused the problems for the applicant with the Department that flowed from the site visit.
Mr Mu indicated that the applicant company was established in 2014. In early 2015 it purchased Jimez Café and Bar at Pacific Pines. He advised that the applicant commenced trading as ‘Jimez’ at Pacific Pines from February 2015. According to Mr Mu, in late 2015 he provided all necessary documentation to Mr Lee for the purpose of the applicant company nominating him for a Subclass 457 visa. Mr Mu noted that he wanted the applicant to trade for several months prior to lodging the nomination, so that a record of financial performance could first be established.
Mr Mu advised that the applicant operated ‘Jimez’ at Pacific Pines between February 2015 and February 2016. He informed the Tribunal that ‘Jimez’ closed because it was not financially viable. He confirmed that the applicant vacated the Pacific Pines premises at the time of closure. Mr Mu gave evidence that several staff members were initially employed by the applicant during the operation of ‘Jimez’ and that he managed those staff as the Restaurant Manager. He doggedly maintained that he performed the full suite of duties pertinent to the nominated occupation during the operation of ‘Jimez’. Mr Mu also confirmed that, upon the nomination of the applicant company, he was granted the Subclass 457 visa on 3 August 2016 (which is approximately 6 months after ‘Jimez’ closed).
Mr Mu informed the Tribunal that the applicant also operated a second business called Montana Coffee at Nerang between February 2015 and May 2017. Again, Mr Mu contended that he performed the full suite of duties as a Restaurant Manager whilst working at ‘Montana’. He told the Tribunal that he worked at both ‘Jimez’ and ‘Montana’ until 2016, as they traded concurrently during their first year of operation. Thereafter, Mr Mu worked solely at ‘Montana’ until it closed in May 2017 due to financial difficulties. Mr Mu conceded that staffing levels dropped over time at both ‘Jimez’ and ‘Montana’, during his time working in both businesses, due to financial difficulties.
Mr Mu indicated that following the closure of ‘Montana’, he turned his mind to opening another restaurant. He conceded that he and his wife ‘didn’t do much’ for a time after ‘Montana’ closed. In September 2017, Mr Mu’s wife established an Asian grocery store at Benowa called Grand Asia. Mr Mu helped his wife in the store following its establishment. Upon enquiry of the Tribunal, Mr Mu confirmed that the applicant company did not operate a café or restaurant for approximately one year following the closure of ‘Montana’ in May 2017. Furthermore, Mr Mu conceded he did not work as a Café or Restaurant Manager during this time. When asked by the Tribunal if he had advised the Department of the cessation of either ‘Jimez’ or ‘Montana’, Mr Mu doggedly maintained that he instructed Mr Lee to do so. He also contended that he relied upon Mr Lee’s advice that it was permissible for the applicant to have a break from trading as a restaurant, without an adverse consequence to his visa status. However, despite expressing to the Tribunal that he was ‘very concerned’ with his visa status following the closure of ‘Montana’, Mr Mu conceded he did not make contact with the Department himself concerning this issue.
Mr Mu indicated that in July 2018 the applicant company established Ma Ma Mu’s Restaurant at Southport. He confirmed that this restaurant has traded continuously since that time until the present, with an enforced shut down for a period during the acute phase of the COVID-19 pandemic (as occurred with most hospitality venues during that time). Upon enquiry of the Tribunal, Mr Mu confirmed that it is only he and his wife working in Ma Ma Mu’s Restaurant at present. Further, he doggedly maintained that he performs the full range of duties as a Restaurant Manager, notwithstanding this limited staffing. Mr Mu, at the request of the Tribunal, submitted financial records regarding the operation of ‘Ma Ma Mu’s’. These records indicate that the business remains active, albeit with modest turnover.
Throughout the hearing, the Tribunal raised with Mr Mu various potentially adverse portions of the delegate’s decision. In summary, the Tribunal raised concerns that it appeared the applicant maintained to the Department, on several occasions, that Mr Mu was working as a Restaurant Manager at ‘Jimez’ in Pacific Pines, long after that business ceased. In response, Mr Mu staunchly maintained that he relied solely upon the inappropriate advice of Mr Lee. The Tribunal observed Mr Mu to have an initial reluctance to take any responsibility for the predicament of the applicant company, rather seeking to blame Mr Lee for most matters raised in the delegate’s decision. Notably, Mr Mu did concede that the applicant breached reg 2.86, during the period between the closure of ‘Montana’ and the opening of ‘Ma Ma Mu’s’ (a period of approximately one year), when the Tribunal raised that matter squarely with him.
During the hearing, the Tribunal raised several pieces of potentially adverse information with the applicant, utilising the procedure in s 359AA of the Act. The Tribunal utilised this procedure on four occasions. On the first occasion, the Tribunal provided the applicant with ‘the gist’ of certain information contained in Department file OPF202/13183 that was under cover of the s 375A non-disclosure certificate. That material is as follows:
a.the Australian Border Force Operational Risk Assessment, Operational Risk Assessment Summary, Interview Plan, Official Notes, and Sponsor Monitoring Recommendation Report pertaining to the Site Visit that was conducted on 10 December 2020 at 25 Pitcairn Way Pacific Pines Queensland;
b.email correspondence regarding tenancy arrangements at Shop 1, 25 Pitcairn Way Pacific Pines Queensland and Shop 1a of 57 Station Road Nerang Queensland;
c.an allegation from April 2021, from an unknown person, regarding Mr Patrick Musson of Paxton Trade and Investment Pty Ltd and Patrick Mu and Lin trying to obtain false documentation to show to the Department to approve their Permanent Residency application; and
d.internal email correspondence referring Mr Mu’s permanent visa application for further assessment.
The Tribunal advised the applicant that this information is relevant to the review, as it tends to suggest that Paxton Trade & Investment Pty Ltd breached its obligation to ensure Mr Mu worked in the nominated occupation, contrary to Regulation 2.86 and it also breached Regulation 2.90 by providing false or misleading information. The Tribunal advised that if it were to rely upon this information it would be the reason, or a part of the reason, to affirm the decision under review. Mr Mu confirmed he understood why the information raised is relevant to the review. He advised the Tribunal that he wished to comment on or respond to this information immediately. In summary, Mr Mu advised that all significant information, such as menus and photographs, were provided to the Department. He suspected that the anonymous allegation came from a former property manager who discriminated against him. Mr Mu denied the allegation. The Tribunal has carefully considered Mr Mu’s response on behalf of the applicant company.
On the second occasion, the Tribunal raised with the applicant the particular allegations made by the Department in the first Notice of Intention to Take Action (NOITTA) dated 5 February 2021 (noting the Department did not fully particularise the majority of these allegations in its decision record). This NOITTA raised ten allegations concerning the provision of information to it by the applicant, in relation to applications for standard business sponsorship approval, nominations pertaining to Subclass 457 and 187 visa applications, and regarding those visa applications themselves. In summary, the Department contended that the material inappropriately sought to convey the impression that the applicant operated ‘Jimez’ at Pacific Pines, with Mr Mu working as the Café or Restaurant Manager there, when in fact that business had already ceased operation.
The Tribunal advised the applicant that this information is relevant to the review, as it tends to suggest that Paxton Trade & Investment Pty Ltd breached its obligation to ensure Mr Mu worked in the nominated occupation, contrary to Regulation 2.86 and it also breached Regulation 2.90 by providing false or misleading information. The Tribunal advised that if it were to rely upon this information it would be the reason, or a part of the reason, to affirm the decision under review. Mr Mu confirmed he understood why the information raised is relevant to the review. He advised the Tribunal that he wished to comment on or respond to this information immediately. In response, Mr Mu advised that it is factually correct that ‘Jimez’ closed in February 2016 (prior to the Site Visit in December 2020). However, he denied providing false or misleading information, as he maintained all information was provided to the Department by Mr Lee (his former Registered Migration Agent). In summary, Mr Mu contended that it was not under his control what information Mr Lee provided to the Department. The Tribunal has carefully considered Mr Mu’s response on behalf of the applicant company.
On the third occasion, the Tribunal raised with the applicant the particular allegations made by the Department in the second Notice of Intention to Take Action (NOITTA) dated 1 March 2021 (noting the Department did not fully particularise the majority of these allegations in its decision record). This NOITTA referred to enquiries being made with various property managers. Regarding the Centre Management of 57 Station Road Nerang Queensland, it was confirmed that the Montana Coffee Company was no longer trading at Nerang beyond May 2017. Regarding Ma Ma Mu’s Kitchen at Southport, enquires with the relevant property managers indicated this business was not operating as a restaurant, rather its focus was the provision of take away food. According to the Department, this information is contrary to that provided by the applicant in its response to the first NOITTA.

The Tribunal advised the applicant that this information is relevant to the review, as it tends to suggest that Paxton Trade & Investment Pty Ltd breached its obligation to ensure Mr Mu worked in the nominated occupation, contrary to Regulation 2.86 and it also breached Regulation 2.90 by providing false or misleading information. The Tribunal advised that if it were to rely upon this information it would be the reason, or a part of the reason, to affirm the decision under review. Mr Mu confirmed he understood why the information raised is relevant to the review. He advised the Tribunal that he wished to comment on or respond to this information immediately. In response, Mr Mu advised that ‘Montana’ consistently traded as a Café and Restaurant after ‘Jimez’ had closed. He noted that ‘Montana’ did close itself, however ‘Ma Ma Mu’s’ was subsequently established. Mr Mu vigorously denied accusations that ‘Ma Ma Mu’s’ was not operating as a restaurant. He outlined that it only ceased operations for a time during the height of the COVID-19 pandemic, and that it remains trading as a restaurant today. The Tribunal has carefully considered Mr Mu’s response on behalf of the applicant company.
On the fourth occasion, the Tribunal provided the applicant with ‘the gist’ of certain information contained in Department file OPF202/13183 that was under cover of the s 375A non-disclosure certificate. That material is as follows:
a.the Interview Notes from the Australian Border Force Officers, concerning their telephone call to Mr Mu during their Site Visit conducted on 10 December 2020 at 25 Pitcairn Way Pacific Pines Queensland. These Notes indicate that Mr Mu advised them Jimez Café and Bar was still trading from 25 Pitcairn Way Pacific Pines at that time, with the business closing only during April to October of that year due to COVID-19. Their Notes also indicate Mr Mu told them the business employed 15 casual employees and that he had finished work there himself at 5pm that day.
The Tribunal advised the applicant that this information is relevant to the review, as it tends to suggest that Paxton Trade & Investment Pty Ltd breached its obligation to ensure Mr Mu worked in the nominated occupation, contrary to Regulation 2.86 and it also breached Regulation 2.90 by providing false or misleading information. The Tribunal advised that if it were to rely upon this information it would be the reason, or a part of the reason, to affirm the decision under review. Mr Mu confirmed he understood why the information raised is relevant to the review. He advised the Tribunal that he wished to comment on or respond to this information immediately. In response, Mr Mu outlined that he suspected the telephone call he received after hours was a scam. He noted that civil servants do not generally work beyond 3pm and that is why he thought the call was a scam. Mr Mu advised that the caller ‘had all of their personal information’, so he ‘played along with the call’ and provided some information to the caller. He further indicated that he later attempted to make contact with the Department about the phone call, but they did not respond. Mr Mu contended he made an honest mistake in his interaction with the Officer during the phone call, attributing this to his belief he was responding to a scam caller. He also advised that ‘Jimez’ closed due to financial problems but the applicant company itself continued trading and after a period of time ‘Ma Ma Mu’s’ was established. The Tribunal has carefully considered Mr Mu’s response on behalf of the applicant company.
The Tribunal raised with Mr Mu that it might have difficulty accepting he genuinely believed the phone caller to be a scammer because he engaged with the call for some time. Mr Mu was invited to comment and responded that he didn’t provide any personal details beyond those raised by the caller and he was worried the caller would cause problems if he terminated the call. The Tribunal raised with Mr Mu that the evidence before it might tend to suggest he provided false or misleading information to the Department, contrary to reg 2.90, in relation to his employment status at that time. Mr Mu was invited to comment and denied information was provided in that fashion.
During the concluding stages of the review hearing, the Tribunal raised with Mr Mu, on behalf of the applicant, that the evidence before it might tend to suggest that regulations 2.86 and 2.90 were breached by the applicant. In summary, Mr Mu denied that the applicant breached reg 2.86 in the manner alleged by the Department. In due course, following direct questioning by the Tribunal, Mr Mu agreed that reg 2.86 was breached by the applicant during the period it did not trade as a Café or Restaurant, between the closure of ‘Montana’ and the opening of ‘Ma Ma Mu’s’. Regarding reg 2.90, Mr Mu doggedly maintained that no false or misleading information was purposefully provided by him to the Department. In particular, he insisted that he thought the call from the Department Officer during the Site Visit was a scam and that is why the information he provided was inaccurate at that time.
Having observed Mr Mu provide his evidence, initially in person then later utilising a clear video link, the Tribunal formed the view that he is an intelligent and articulate man. Indeed, he told the Tribunal he was a high achiever in his initial studies. However, Mr Mu, on several occasions, gave convoluted answers to its questions regarding responsibility for any potential breaches. Indeed, in the view of the Tribunal, Mr Mu’s evidence largely sought to place full liability for any relevant breaches at the feet of Mr Lee (the former Registered Migration Agent). Mr Mu often sought to distance himself from the actions of Mr Lee and frequently conveyed the impression that where he did not personally provide knowingly incorrect information to the Department, then the applicant had not contravened any provisions. Whilst the Tribunal accepts that Mr Mu (and the applicant) were placed at a significant disadvantage by engaging a highly disreputable former Registered Migration Agent, it is not accepted that Mr Mu had absolutely no awareness of potential breaches of obligation by the applicant company. For example, it is implausible that Mr Mu did not, at the very least, suspect there was a problem when the applicant ceased trading as a Restaurant for approximately one year, whilst he held a visa to work as a Café or Restaurant Manager. Indeed, Mr Mu conveyed the impression that he was being ‘wilfully blind’ to this problem, preferring to shield himself behind Mr Lee as the sole party at fault. This is a subject to which the Tribunal shall return.
False or misleading information: reg 2.90
One or more of the actions in s 140M may be taken if the sponsor has provided false or misleading information to Immigration or the Tribunal: reg 2.90(2).
In summary, the Department’s allegations regarding the provision of false or misleading information may be distilled into three groups. Those regarding the applicant allegedly presenting incorrect information that purported to show it was trading as a Café or Restaurant when rather, in the Department’s view, the applicant only operated a takeaway style outlet. Secondly, there are allegations regarding the applicant indicating to the Department that they were trading as ‘Jimez’ at Pacific Pines, well after that business had closed. Finally, the Department alleges that false and misleading information was provided by Mr Mu, on behalf of the applicant, during the telephone call of 10 December 2020 which formed part of the Site Visit. These allegations are reflected in the two NOITTA and the decision record, when read together.
As noted above, Mr Mu generally sought to disavow involvement in the provision of false or misleading information to the Department. Indeed, he laid responsibility at the feet of Mr Lee (the former Registered Migration Agent) for most matters of difficulty. Regarding the issue of his participation in the Site Visit telephone call, Mr Mu staunchly maintained that he thought at the time of the call he was engaging with a scammer. Therefore, according to him, he ‘played along’ with the call so as to prevent further difficulties. In due course, Mr Mu conceded to the Tribunal that the information he provided in that call was incorrect. He indicated that if he had his time over again, he would approach the call differently. However, Mr Mu clung to his position that he only provided the incorrect information due to being under a misapprehension as to the genuineness of the caller. The Tribunal has some difficulty in accepting this account, a matter to which it shall return.
Analysis
36.The Tribunal has carefully considered the significant volume of evidence before it by way of documentation and verbal testimony. The Tribunal notes that various documents in support of the review application are before it. They have been duly considered, in conjunction with all relevant evidence.
37.Regarding the requirements of reg 2.86, the Tribunal has carefully considered whether the applicant breached the obligation to ensure Mr Mu worked in the nominated occupation of Café or Restaurant Manager. For the following reasons, the Tribunal finds that the applicant breached that obligation. Of note, a holistic assessment of the evidence has led the Tribunal to this conclusion.
38.The ABF Site Visit conducted on 10 December 2020 clearly established that ‘Jimez’ was not operating as a Café or Restaurant at Pacific Pines at that time. Nor was Mr Mu working as a Café or Restaurant Manager at ‘Jimez’ then. Before the Tribunal, Mr Mu confirmed that the applicant company operated ‘Jimez’ from February 2015 to February 2016, ‘Montana’ from February 2015 to May 2017 and ‘Ma Ma Mu’s’ from July 2018 to the present. Mr Mu outlined that initially the applicant employed several staff members at both ‘Jimez’ and ‘Montana’. However, as these two businesses were commercially unsuccessful, over time the applicant came to rely upon only Mr Mu and his wife as workers. Mr Mu doggedly maintained that he was employed by the applicant, as a Café or Restaurant Manager, at all times whilst working in ‘Jimez’, ‘Montana’ and ‘Ma Ma Mu’s’. On balance, with some degree of trepidation, the Tribunal is prepared to give Mr Mu the benefit of the doubt regarding his employment duties. Therefore, the Tribunal accepts that, up to the time of the Department’s decision, the applicant duly employed Mr Mu as a Café or Restaurant Manager whilst it traded as a restaurant.
39.However, it is apparent that the applicant did not trade as a café or restaurant for approximately one year following the closure of ‘Montana’ in May 2017. Indeed, Mr Mu advised the Tribunal that for a time he worked in his wife’s Asian grocery store. Therefore, the Tribunal finds that during this period, the applicant breached the requirement in reg 2.86 to ensure Mr Mu worked in the nominated occupation of Café or Restaurant Manager. Accordingly, the Tribunal is satisfied that the prescribed circumstance in reg 2.89 exists for the purpose of s 140M of the Act.
40.Regarding the requirements of reg 2.90, the Tribunal has carefully considered whether the applicant provided false or misleading information to the Department. The Tribunal is prepared to accept that no false or misleading information was provided by the applicant regarding its trade as a Café or Restaurant, as opposed to a takeaway outlet. However, the Tribunal finds that the applicant provided numerous pieces of false or misleading information to the Department in relation to it trading as ‘Jimez’ at Pacific Pines, well after that business had closed. Indeed, extensive documentation was submitted to the Department in connection with various applications that falsely suggested ‘Jimez’ was still trading at Pacific Pines. Whilst the Tribunal accepts that the bulk of this material was directly submitted by Mr Lee (the former registered migration agent), nevertheless the information was ultimately provided by the applicant. Given the disrepute of Mr Lee, the Tribunal has taken into account that fairness requires due consideration of the degree of culpability of the applicant and Mr Mu. This is a matter to which the Tribunal shall return.
41.The matter of whether Mr Mu provided false or misleading information to the Department, during the telephone call of 10 December 2020, has been carefully considered by the Tribunal. Given Mr Mu’s presentation as an articulate and intelligent individual, the Tribunal simply does not accept that he had no responsibility for the false and misleading information he provided to the Departmental Officer, regarding his work at ‘Jimez’ (which had long since closed). It is, in the view of the Tribunal, implausible that Mr Mu would have engaged with the telephone call for the duration that he did if he genuinely believed it to be a scam caller. Accordingly, the Tribunal finds that Mr Mu, on behalf of the applicant, provided false and misleading information during that telephone call. However, the Tribunal also accepts that Mr Mu was given appalling advice by Mr Lee over a lengthy period of time, resulting in stress and uncertainty to him. Therefore, the Tribunal considers that it is fair to reduce the degree of culpability of the applicant and Mr Mu in relation to this matter. The Tribunal will return to this matter.
42.Accordingly, the Tribunal is satisfied that the prescribed circumstance in reg 2.90 exists for the purpose of s 140M of the Act.
Action to be taken
43.For the reasons outlined, the Tribunal is satisfied that relevant circumstances for s 140L(1)(a) of the Act exist. Accordingly, it is necessary to consider whether one or more of the actions mentioned in s 140M should be taken. In considering what action to take, if any, the Tribunal has had regard to the prescribed criteria, as extracted in the attachment to this decision.
44.Regarding the breach of reg 2.86 by the applicant, to ensure Mr Mu worked in the nominated occupation of Café or Restaurant Manager, the Tribunal has carefully considered all relevant matters. The Tribunal has paid careful regard to ‘the past and present conduct of the applicant in relation to Immigration.’ It is apparent that the applicant failed to inform Immigration that it had ceased trading as a Café or Restaurant for approximately one year, following the closure of ‘Montana’ in May 2017. The Tribunal is satisfied that Mr Mu was aware the applicant should have advised the Department of this situation. Indeed, his visa relied upon him working in the nominated occupation for the applicant. Whilst the Tribunal accepts the applicant (through Mr Mu) was poorly advised by Mr Lee (the former Registered Migration Agent), it is satisfied that Mr Mu was content to follow the instructions of Mr Lee on this topic, even though he knew the situation was not appropriate. However, the Tribunal accepts that Mr Lee must be attributed with the bulk of responsibility for the conduct of the applicant, in the context of the reg 2.86 breach.
45.Having regard to ‘the number of occasions on which the applicant has failed to satisfy the sponsorship obligation’ in reg 2.86, the Tribunal is satisfied the applicant permitted Mr Mu to work other than as a Café or Restaurant Manager for around one year. The Tribunal forms this view following careful consideration of the adverse matters previously outlined.
46.The Tribunal has also carefully considered ‘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.’ Given the adverse matters previously outlined, the Tribunal forms the view that Mr Mu did not work as a Café or Restaurant Manager for approximately one year. The Tribunal considers the circumstances to be of some severity, given the breach of reg 2.86 took place over a sustained period.
47.The Tribunal has carefully considered ‘the period of time over which the applicant has been an approved sponsor’. The Tribunal notes the applicant was previously approved as a standard business sponsor. The Tribunal considers the applicant held the status of an approved standard business sponsor for a reasonable period.
48.The Tribunal has carefully considered ‘whether, and the extent to which, the failure to satisfy the sponsorship obligation in reg 2.86 has had a direct or indirect impact on another person.’ The Tribunal considers that Mr Mu has been brought to the attention of the Department through the breach of the sponsorship obligation. This has the impact of casting him in a disadvantageous light with respect to his application for permanent residency.
49.The Tribunal has carefully considered ‘whether, and the extent to which, the failure to satisfy the sponsorship obligation was intentional, reckless or inadvertent.’ Given the adverse matters previously outlined, the Tribunal is satisfied the breach of reg 2.86 by the applicant was reckless. The breach of reg 2.86 primarily occurred as the result of improper advice from Mr Lee, although Mr Mu should have been aware that the breach was taking place.
50.The Tribunal has carefully considered ‘whether, and the extent to which, the person has cooperated with Immigration, including whether the person informed Immigration of the failure.’ The Tribunal is not satisfied that the applicant cooperated with Immigration regarding the reg 2.86 breach. Additionally, the applicant did not inform Immigration of the breach of reg 2.86. Rather, the breach was confirmed during the review process.
51.The Tribunal has carefully considered ‘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.’ The Tribunal accepts that the applicant has attempted to rectify the breach by operating ‘Ma Ma Mu’s’ since July 2018 and attempting to employ Mr Mu in a Café or Restaurant Manager role. The applicant established this business of its own volition and prior to the Site Visit of December 2020.
52.The Tribunal has carefully considered ‘the processes (if any) the person has implemented to ensure future compliance with the sponsorship obligation.’ Mr Mu submitted that the applicant employs him in the role of a Café or Restaurant Manager at ‘Ma Ma Mu’s’. Whilst the Tribunal accepts the applicant is attempting to comply with reg 2.86, it notes that the limited staffing levels of that business cast some doubt upon whether Mr Mu performs the full range of duties of the nominated occupation, as defined by the ANZSCO. However, for the purpose of this review, the Tribunal accepts the applicant is taking steps to ensure reg 2.86 is not breached.
53.The Tribunal has carefully considered ‘the number of other sponsorship obligations that the applicant has failed to satisfy, and the number of occasions on which the applicant has failed to satisfy other sponsorship obligations.’ The Tribunal is satisfied the applicant has not breached sponsorship obligations other than reg 2.86 with respect to Mr Mu (noting the issue of the provision of false or misleading information is addressed below).
54.The Tribunal has carefully considered ‘any other relevant factors.’ It is accepted by the Tribunal that the applicant (through Mr Mu) received migration advice from an unscrupulous former Registered Migration Agent. Indeed, that individual had his registration cancelled by OMARA. The Tribunal considers this to be a relevant factor in the review and it is satisfied that the culpability of the applicant is reduced regarding its breach of reg 2.86. The Tribunal is further satisfied that the applicant (through Mr Mu) is currently well aware of the requirements of reg 2.86 moving forward.
55.Regarding the breach of reg 2.90 by the applicant, in providing false and misleading information to the Department as outlined above, the Tribunal has carefully considered all relevant matters. The Tribunal has paid careful regard to ‘the purpose for which the information was provided.’ The Tribunal is satisfied that this purpose was to convey the impression to the Department that the applicant was trading as ‘Jimez’ at Pacific Pines, with Mr Mu employed as the Café or Restaurant Manager there, when that was no longer the case.
56.The Tribunal has paid careful regard to ‘the past and present conduct of the applicant in relation to Immigration.’ It is apparent that the applicant presented a plethora of false and misleading information to Immigration, over an extended period, in relation to various applications (such as for standard business sponsorship, nomination and visa related matters). The Tribunal accepts that Mr Lee bears much of the responsibility here. However, Mr Mu himself also provided false and misleading information to the Department, on behalf of the applicant, during the telephone call of 10 December 2020. That does not reflect well upon him.
57.The Tribunal has carefully considered ‘the nature of the information’. Such information was designed to falsely convey the impression that the applicant was trading as ‘Jimez’ at Pacific Pines, with Mr Mu as the Café or Restaurant Manager there, when that was no longer the case.
58.The Tribunal has carefully considered ‘whether, and the extent to which, the provision of false or misleading information has had a direct or indirect impact on another person’. The Tribunal considers that Mr Mu has been brought to the attention of the Department by the provision of the relevant information. This has the impact of casting him in a disadvantageous light with respect to his application for permanent residency.
59.The Tribunal has carefully considered ‘whether the information was provided in good faith.’ Having regard to the manner in which the information was provided, the Tribunal does not accept that it was provided in good faith.
60.The Tribunal has carefully considered ‘whether the person notified Immigration immediately upon discovering that the information was false or misleading.’ The Tribunal considers that the applicant (through Mr Mu) took the opportunity to correct some of the false or misleading information in its response to the two NOITTA. However, the Tribunal is not satisfied that all false and misleading information was corrected in a timely fashion.
61.The Tribunal has carefully considered ‘any other relevant factors’ in relation to the provision of false and misleading information. As noted above, it is accepted by the Tribunal that the applicant (through Mr Mu) received migration advice from an unscrupulous former Registered Migration Agent who had his registration cancelled. Further, the Tribunal accepts that this individual exacerbated the stress felt by Mr Mu in relation to immigration related matters and this played a role in his lapse of judgement during the telephone call of 10 December 2020. Accordingly, the Tribunal is satisfied that the culpability of the applicant is reduced regarding its breach of reg 2.90.
62.The Tribunal notes that it has found one sponsorship obligation, reg 2.86, to have been breached by the applicant. That breach persisted for approximately one year. Further, the Tribunal has found that reg 2.90 has been breached on multiple occasions. Considering the circumstances holistically and having regard to the prescribed criteria, the Tribunal finds that the following actions are warranted.
63.The applicant is to be barred from making applications for approval as a standard business sponsor and temporary activities sponsor from 31 August 2021 until 30 September 2023, a period of two years and one month, pursuant to s 140M(1)(d) of the Act. Therefore, the sanction imposed by the delegate is to be reduced in length and the primary decision is varied.
DECISION
64.The Tribunal varies the decision under review by reducing the period of the sponsorship bar under s 140M(2) from 5 years to 2 years and 1 month from the date of the Department’s decision on 31 August 2021.
K. Chapman
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.
…
2.90   Provision of false or misleading information
…
(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 purpose for which the information was provided; and
(b)    the past and present conduct of the person in relation to Immigration; and
(c)     the nature of the information; and
(d)    whether, and the extent to which, the provision of false or misleading information has had a direct or indirect impact on another person; and
(e)     whether the information was provided in good faith; and
(f)     whether the person notified Immigration immediately upon discovering that the information was false or misleading; and
(g)     any other relevant factors.
…

[2023] AATA 3019

11 September 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction