Simar Mechanical Services Pty Ltd (Migration)

Simar Mechanical Services Pty Ltd (Migration) concerned a review by the Administrative Appeals Tribunal of a decision by the Department of Home Affairs to cancel the applicant's approval as a standard business sponsor. The cancellation was based on the applicant's alleged failure to satisfy sponsorship obligations, specifically in relation to the terms and conditions of employment offered to a sponsored person. The applicant had been approved as a sponsor on 29 July 2019 for a five-year period.

The primary legal issues before the Tribunal were whether the applicant had failed to satisfy its sponsorship obligations, and if so, what action, if any, should be taken under section 140M of the *Migration Act 1958* (Cth). This involved considering whether the sponsored person was provided with equivalent terms and conditions of employment, whether they were employed in the nominated occupation, and the circumstances surrounding any alleged non-compliance, including the impact of the COVID-19 pandemic. The Tribunal also had to consider the validity of a certificate issued under section 376 of the Act, which restricted the disclosure of certain information.

The Tribunal found that while there had been non-compliance with sponsorship obligations, it occurred in extraordinary and unusual circumstances, particularly in the context of the COVID-19 pandemic. The Tribunal was satisfied that the applicant had not misused the sponsorship program, intentionally sought to underpay the sponsored person, or arranged employment for migration purposes. The Tribunal considered the criteria set out in subregulation 2.89(3) of the *Migration Regulations 1994* (Cth), including the nature and severity of the circumstances, the intentionality of the failure, and the applicant's cooperation.

Ultimately, the Tribunal set aside the decision under review and substituted a decision not to take any of the actions specified in section 140M of the *Migration Act 1958* (Cth). This outcome was based on the finding that the non-compliance, though significant, was not intentional and occurred within the exceptional context of the pandemic, with no evidence of misuse of the sponsorship system.