Soto Nominees Pty Ltd (Migration)

The Administrative Appeals Tribunal reviewed a decision by a delegate to cancel Soto Nominees Pty Ltd's approval as a standard business sponsor and to bar it for one year from making future sponsorship approval applications. This action was taken because the delegate was satisfied that Soto Nominees had failed to meet its sponsorship obligation to ensure a primary sponsored person worked in the nominated occupation.

The Tribunal was required to determine two key issues: first, whether the prescribed circumstance of the sponsor failing to satisfy its sponsorship obligation to ensure the primary sponsored person worked in the nominated occupation existed; and second, if that circumstance was found to exist, what action should be taken under section 140M of the Migration Act 1958 (Cth). The relevant sponsorship obligation, under regulation 2.86 of the Migration Regulations 1994, required an approved work sponsor to ensure a primary sponsored person works in the nominated occupation, particularly where the sponsored person held a Subclass 457 visa.

In its reasoning, the Tribunal considered the totality of the circumstances and the prescribed criteria for determining action under section 140M, as set out in regulation 2.89. These criteria included the sponsor's past and present conduct, the number and nature of sponsorship obligation failures, the impact on others, the intentionality of the failure, cooperation with immigration authorities, and steps taken to rectify the failure and ensure future compliance. The Tribunal noted that the applicant had not provided witness statements from the visa holders or employees whose remarks had prompted the delegate's decision, and that the applicant was aware that an inference might be drawn that such evidence would not assist its case.

The Tribunal affirmed the delegate's decision. It found that the prescribed circumstance of failing to satisfy the sponsorship obligation existed and determined that the actions specified in section 140M(1)(b) and (d) should be taken. Consequently, Soto Nominees Pty Ltd's approval as a standard business sponsor was cancelled, and it was barred from applying for approval as a standard business sponsor or temporary activities sponsor for one year from 25 June 2019.