Studynet Pty Ltd (Migration)

Studynet Pty Ltd (Migration) [2023] AATA 2613 (26 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Studynet Pty Ltd
REPRESENTATIVE:  Mr Prasad Pahalawela
Mr Lorenzo Boccabella
CASE NUMBER:  2105424
HOME AFFAIRS REFERENCE(S):          OPF2020/4682
MEMBER:Katie Malyon
DATE:26 July 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to take one or more of the actions specified in s 140M of the Migration Act 1958 (Cth).

Statement made on 26 July 2023 at 4:29 pm

CATCHWORDS
MIGRATION – sponsorship cancellation or bar – working in the nominated occupation – occupation of Customer Service Manager – short term voluntary Real Estate internships for continuing professional development and licencing – unannounced on-site visit – extensive publicity of the nominee in the CEO role – ‘nil’ Bridging Visa conditions regarding sponsorship undertakings – occupation of CEO inapplicable to a small business – tasks performed outside of the ANZSCO description – employment contract amended – decision under review set aside
LEGISLATION
Migration Act 1958, ss 140, 349, 359
Migration Regulations 1994, Schedule 8, Condition 8107; rr 1.03, 2.72, 2.82, 2.84, 2.86, 2.89-2.94
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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 sponsorship status of Studynet Pty Ltd (the Company).
The Company was most recently approved as a standard business sponsor on 22 April 2016 for a period of 5 years expiring on 22 April 2021. On 16 April 2021, the delegate made a decision under s 140M of the Act not only to cancel the Company’s approval as a standard business sponsor but also to bar the Company for a period of 3 years (that is, until 16 April 2024) from making applications for approval as a standard business sponsor and a temporary activity sponsor.
The basis of the delegate’s decision was that the Company had failed to satisfy its sponsorship obligation in reg 2.86 of the Migration Regulations 1994 (the Regulations), which requires it to ensure that primary sponsored persons work or participate in the nominated occupation and, as this occurred in relation to 2 of its employees, it had failed to satisfy a sponsorship obligation as required by reg 2.89 of the Regulations. Accompanying the review application was a copy of the delegate’s decision.
Background
On 2 August 2022, the Tribunal wrote to the Company advising that it had considered all of the material before it relating to its review application but was unable to make a favourable decision on that information alone. Accordingly, the Tribunal invited the Company to attend a hearing scheduled for 29 August 2022. The next day, notice was received of the appointment of a representative, immigration lawyer Mr Prasad Pahalawela, to assist the Company with its review application.
The newly appointed representative informed the Tribunal on 19 August 2022 that he would be assisted by Counsel, Mr Lorenzo Boccabella, and that, due to Mr Boccabella’s impending travel commitments, he requested the hearing be postponed. Evidence of Mr Boccabella’s pre-arranged travel overseas was provided to the Tribunal. In the circumstances, the Tribunal rescheduled the hearing for 21 October 2022.
Prior to the hearing, the representative forwarded a detailed submission from Mr Boccabella dated 14 October 2022, together with:
1)a copy of the Australian and New Zealand Standard Classification of Occupations (ANZSCO) description for the occupation of Customer Service Manager ANZSCO 149212; and,
2)the assessment criteria for the occupation of Chief Executive Officer (CEO)/Managing Director ANZSCO 111111 from the Migration Skills Assessment Occupational Assessment Framework issued by the Australian Institute of Management, now known as the Australian Institute of Managers and Leaders.
Mr Boccabella’s submission is discussed below.
Hearing – 21 October 2022
The Company’s sole director and shareholder, Ms Shamima Yasmin Anwar, appeared before the Tribunal on 21 October 2022 to give evidence and present arguments. The Tribunal also received independent oral evidence from the Company’s sponsored Customer Service Manager, Mr Mohammed Hossain (Ms Anwar’s husband), and its sponsored internal Accountant, Mr Md Kabir Hossain. For ease, the Tribunal has hereinafter referred to Mr Mohammed Hossain as Mohammed Hossain and Mr Md Kabir Hossain as Md Kabir Hossain. Both Mr Pahalawela and Mr Boccabella attended the hearing in their capacity as the Company’s representatives.
The Tribunal was provided with the following documentation at the hearing:
1)current Organisational Chart for the Company;
2)the Company’s Tax Return as lodged with the Australian Taxation Office (ATO) for the year ended 30 June 2021;
3)certificates from the Australian Women’s Small Business Champion Awards 2022 confirming:
a)    Ms Anwar is a Finalist in the Small Business Champion Influential Woman’s Award; and,
b)    the Company is a Finalist in the Educational Services Award;
4)in relation to the Company’s internal Accountant, Md Kabir Hossain:
a)    PAYG Payment Summaries for the years ended 30 June 2015 to 30 June 2022; and,
b)    individual tax returns as lodged with the ATO for the years ended 30 June 2015 to 30 June 2022.
At the commencement of the hearing, the Tribunal observed that the Department’s file contains a non-disclosure certificate dated 10 May 2021, which was issued under

s 375A of the Act (s 375A Certificate). The s 375A Certificate provides that disclosure of the documents specified, which include internal working documents, including file notes of interviews, would be contrary to public interest because they contain information that would be detrimental to the workings of Departmental investigative processes and procedures should they be disclosed. The Tribunal reminded the Company that it had forwarded a copy of the s 375A Certificate to the Company on 15 August 2022 and invited comments on the validity of the certificate on or before 29 August 2022. It noted that no comments had been received by the due date. Further, in his submission provided prior to the hearing, the Tribunal noted that Mr Boccabella makes no comment on the validity of the certificate.
The Tribunal explained it had taken the view that the s 375A Certificate is valid as it provides a valid public interest reason for the non-disclosure. It observed that information contained in the documentation referred to in the certificate relates to internal investigation reports made by Australian Border Force (ABF) officers and, further, the information in the documentation is essentially set out in the Notice of Intention to Take Action (NOITTA) issued by the Department on 10 March 2021 to the Company. As such, the Tribunal is satisfied that, to the extent that it is relevant, the information the subject of the s 375A Certificate was disclosed to the Company in the NOITTA and that the Company has had an opportunity to respond to that information. Comments from the Company’s then representative, an accredited immigration law specialist, to the Department in response to the NOITTA are discussed below.
Independent evidence provided by Ms Anwar, Mohammed Hossain and Md Kabir Hossain at the hearing is discussed below as are the submissions received from Counsel, Mr Boccabella.
Documentation lodged after the hearing
Following the hearing, the representative provided a further detailed post-hearing

submission from Counsel dated 4 November 2022 together with the following documentation:
1)a signed Memorandum of Advice re Md Kabir Hossain dated 4 November 2022 from Counsel Mr Boccabella in relation to the definition of ‘work’ in reg 1.03 of the Regulations and confirming Md Kabir Hossain’s ability to ‘undertake very short term internships for a real estate agency solely for the purpose of meeting CPD requirements without breaching the work definition nor breaching reg 2.86’ of the Regulations.
2)signed Memorandum of amendment of Employment Agreement made between the Company and Md Kabir Hossain dated 4 November 2022 which provides that:
a)Md Kabir Hossain must only work in the nominated occupation of accountant and must only work for the Company;
b)Md Kabir Hossain may not undertake work with any other employer;
c)the Company authorises Md Kabir Hossain to undertake a very short-term unpaid internship with a real estate agency, solely for CPD purposes in relation to renewing his real estate licence in accordance with the written advice from Mr Boccabella of Counsel; and,
d)breach of this clause (sic) will result in dismissal without notice.
3)the NSW Birth Certificates of the 2 children of Ms Anwar and Mohammed Hossain: Yaleena Hossain born 19 July 2018; and, Yazdan Hossain born 27 June 2020.
The Tribunal notes that both of the children’s NSW Birth Certificates state that Mohammed Hossain’s occupation is that of Customer Service Manager and Ms Anwar’s occupation is stated to be Self-Employed – Business Owner.
4)the Company’s Tax Returns downloaded from the ATO’s website for years ended 30 June 2018 to 30 Jun 2021.
5)further copies of Md Kabir Hossain’s PAYG Payment Summaries referred to above at para [8(4)].
6)ATO Notices of Assessment issued to Md Kabir Hossain for the years ended 30 June 2016 to 30 June 2022.
7)ATO Notices of Assessment issued to Ms Anwar for the years ended 30 June 2020 and 30 June 2021.
8)Statutory Declaration sworn by the Company’s Sales Team Manager Leader, Fahad Edna Malik, on 4 November 2022 in relation to the ABF’s site visit on 4 March 202.;
9)Statutory Declaration sworn by Md Kabir Hossain on 4 November 2022 in relation to his need to work voluntarily with a real estate agency for a minimum of 9 hours every year and participate in CPD courses to validate his real estate licence.
Attached to the Statutory Declaration is the sale agreement for the identified property in Glenfield with the named agent as Mohammed Anisur Rahman of Property Caretaker Real Estate (PC Real Estate) dated 4 September 2017. Md Kabir Hossain states that Mohammed Anisur Rahman was the lead agent working with PC Real Estate at that time and he merely assisted Mohammed Anisur Rahman with the sale of the property on an unpaid basis for his CPD purposes. Md Kabir Hossain notes that Mohammed Anisur Rahman is no longer with PR Real Estate as he is now working with another real estate agency.
10)Statutory Declaration from Mohammad Zakir Hossain, Director of PC Real Estate, sworn on 4 November 2022 confirming Md Kabir Hossain’s work as a volunteer in relation to the sale of 2 properties in Ingleburn and Glenfield in 2017. Also provided was a copy of Mohammed Zakir Hossain’s NSW Driver Licence as evidence of his signature.
In response to the Tribunal’s s 359(2) letter of 3 July 2023 requesting updated information, the representative provided:
1)the Company’s Business Activity Statements (BAS) for the period 1 July 2022 to 30 June 2023 downloaded from the ATO’s website; and,
2)Payroll Summary Report in respect of all employees for the year ended 30 June 2023.
The Tribunal notes that documentation provided confirms turnover for the year ended 30 June 2023 has increased to $5.047 million, up from $4.325 million the year ended 30 June 2021 when the COVID-19 pandemic was adversely impacting the education sector.
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 of the Act.
CONSIDERATION OF CLAIMS AND EVIDENCE
Legal framework
Sections 140K, 140L and 140M of the Act provide for the imposition of sanctions on approved sponsors in certain circumstances.
Section 140K(1) provides that, if a person is an approved sponsor and any of the circumstances prescribed under s 140L of the Act are established, the Minister (or the Tribunal on review) may take one or more of the actions set out in the subsection, including barring the sponsor from doing certain things, cancelling the person’s approval as a work sponsor, imposing a civil penalty order, accepting an undertaking or issuing the person with an infringement notice.
Section 140L provides that the Regulations may prescribe circumstances in which a sponsor may or must be barred or the sponsor’s approval may or must be cancelled. For these purposes, the ‘prescribed circumstances’ are set out in regs 2.89 to 2.94B of the Regulations. Relevant to the circumstances of this case, this includes circumstances in which the Minister, or the Tribunal on review, is satisfied there has been a failure to satisfy a sponsorship obligation (reg 2.89).
A sponsor’s obligations are the obligations referred to in Division 2.19 (reg 2.89(2)) and, relevantly, include the obligation to ensure that the primary sponsored person works or participates in the nominated occupation, program or activity (reg 2.86).
If prescribed circumstances exist, under s 140M of the Act the Minister (or the Tribunal on review) may take any one or more of the following actions:
·cancel the sponsorship approval in relation to a class to which the sponsor belongs;
·cancel the sponsorship approval for all classes to which the sponsor belongs;
·bar the sponsor for a specified period from sponsoring more people under the terms of any existing approval; and,
·bar the sponsor for a specified period from making future applications for sponsorship approval in relation to one or more classes of sponsor.
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 to 2.94B of the Regulations. Relevant provisions from the Act and the Regulations referred to in this decision are set out in the Attachment to this decision.
Does a circumstance for the taking of an action exist?
As noted above, the delegate found the Company failed to satisfy its sponsorship obligation in reg 2.86 of the Regulations that it must ensure primary sponsored persons work or participate in the nominated occupation.
Failure to satisfy a sponsorship obligation: reg 2.89
The Minister may take one or more of the actions in s 140M of the Act if satisfied that the sponsor has failed to satisfy a sponsorship obligation referred to in Division 2.19 of the Regulations: reg 2.89(2) of the Regulations. There are multiple sponsorship obligations set out in Division 2.19 of the Regulations. Relevant to the circumstances of this case, the delegate found that the Company had failed to satisfy reg 2.86 of the Regulations because it had failed to ensure that 2 of its primary sponsored employees, Mohammed Hossain and Md Kabir Hossain, work in their respective nominated occupation.
The Company is an education services provider and it also offers registered migration agency services to international students seeking to study or remain in Australia. Apart from its head office in Sydney, the Company has offices in Melbourne, Brisbane and Adelaide. It also has a presence overseas in Bangladesh, Pakistan, Nepal, India and Malaysia. As noted above, the Company was most recently approved as a standard business sponsor on 22 April 2016 for a period of 5 years expiring on 22 April 2021. The Company successfully nominated Mohammed Hossain for the position of Customer Service Manager ANZSCO 149212. His Subclass 457 visa was granted on 7 March 2013 for a period of 4 years. In addition, Md Kabir Hossain was successfully nominated for the position of Accountant (General) ANZSCO 221111. Md Kabir Hossain‘s Subclass 457 visa was granted on 19 January 2015 for 4 years.
The ABF commenced monitoring of the Company’s compliance with its sponsorship obligations on 21 May 2020. As part of this process, the ABF made requests for information and interviewed some employees. ABF officers also made an unannounced on-site visit on 4 March 2021 to the Company’s Sydney office where interviews were conducted with a number of the Company’s employees. Information was provided by the Company directly and through its Accountants to the ABF over an extended period.
The particulars of the circumstances for which action was being considered by the delegate are set out in the NOITTA which was issued to the Company on 10 March 2021. The NOITTA particularises a number of concerns in relation to the Company’s compliance with its sponsorship obligations regarding 3 of its sponsored employees as follows:
The purpose of this letter is to provide notice that the Minister for Home Affairs and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) is considering taking action under section 140M of the Migration Act 1958 (the Act).
Details of the circumstances in relation to which action is being considered
The Australian Border Force (the ABF) commenced monitoring your compliance with the sponsorship obligations on 21 May 2020. The following circumstance prescribed in the Migration Regulations 1994 (the Regulations) has been identified as potentially applicable:
Regulation 2.89 Failure to satisfy sponsorship obligation
You may have failed to satisfy the following sponsorship obligation(s):
·     Regulation 2.86 Obligation to ensure primary sponsored person works or participates in nominated occupation, program or activity
Reasons are set out below:
In a Radio Broadcast Interview on 23 August 2016, (which was obtained through open source material on the website under the heading of Small-Business-Secret-Story), Mr Mohammed Hossain is introduced, referred to, and claimed to be “CEO of Studynet Pty Ltd”.
On 22 October 2020 in a formal interview with the ABF, Mr Ke Han (sponsored visa holder Contract Administrator ANZSCO 511111) provided the following information:
·He knew Mr Hossain to be the CEO of Studynet Pty Ltd.
·Mr Hossain had flown to Brisbane on a number of occasions to interview Mr Han to assess his suitability for the sponsored position, and eventually had given him the job.
·Mr Hossain also interviewed and employed others in the Brisbane office.
·Yasmin Anwar also reports to Mr Hossain Mohammed as he is the CEO.
·If Mr Han requires any help he will go to Hossain, as do all employees.
During a formal interview conducted on 17 December 2020, former sponsored visa holder Mr Pierre Burgaud, recounted his experience working for Studynet Pty Ltd from 2012 to 2017. Mr Burgaud confirmed:
·Mr Hossain held the position of CEO while Mr Burgaud was sponsored by Studynet,
·Mr Hossain couched himself as the CEO on Youtube videos.
·Ms Yasmin Anwar (Director) was not working at first when Mr Burgaud started his employment, claiming “she only worked part time when she did work”.
·Mr Hossain managed all the business decisions for the organisation with his wife by his side.
Mr Burgaud also provided email correspondence evidencing Mr Hossain giving employment direction to the team members in Studynet Pty Ltd on a (business/ policy matter), with his signature block representing Mr Hossain as the CEO of the organisation.
On 4 March 2021 an unannounced site visit was conducted on the premises of Studynet Pty Ltd at 233 Castlereagh St Sydney. On this occasion a number of persons were interviewed. This included Anwar Yasmin, Mohammed Hossain, Fahad Malak and Md Shaddad Hossain (Registered migration Agent). A number of other staff were engaged in conversations (during the course of the visit) and observations made of the business premise (sic).
At interview Yasmin Anwar confirmed:
·Her husband (Mohammed Hossain) had been acting in her role as CEO since either 2017 or 2018, but was around the time her first child was born.
At interview Mohammed Hossain confirmed:
·He had been acting in the role of CEO from when his UC457 Temporary visa had ceased in 2017
At interview Fahad Malak claimed
·He had been employed at Studynet Pty Ltd since January 2019
·He reported to Mahdiha Mumtaj, who reports to Mr Manir who reports to the CEO Mr Hossain Mohammed.
·Hossain looks after everything.
·Mr Ashish Roy is the Accountant.
When shown a photograph, Mr Malak could not identify Md Kabir Hossain as the Accountant.
When shown a photograph of Mr Islam, Mr Malak noted that he had seen him on a couple of occasions in 2020.
At interview Md Shaddad Hossain claimed
·He was the migration agent dealing mainly with student applications for visas through Studynet Pty Ltd.
·He had met Hossain at a Migration Agents Conference over a year ago, where Mr Hossain was representing himself as the CEO of Studynet Pty Ltd.
·He had commenced employment with Studynet Pty Ltd in August 2020.
·He had never seen Mr Aminul Islam in the office
·He had never seen Md Kabir Hossain at the office.
·He was not aware of the sponsorship held by Studynet Pty Ltd
A number of observations were made by officers attending the site visit on 4 March 2021, including large A2 paper size colour posters of Mr Mohammed Hossain pictured as the CEO of Studynet Pty Ltd.
In brief conversations held with other staff present on the day, every staff member spoken to (outside of the formal interviews conducted) understood Mr Hossain Mohammed to be the CEO of the organisation.
I therefore find the sponsor fails regulation 2.86 as the sponsored worker Mohammed Hossain is working and employed as the CEO and not the Customer Service Manager.
On 17 February 2021 the ABF conducted an interview with Md Kabir Hossain (sponsored employee) who provided detail about his employment, and hours spent in employment outside of his role at Studynet Pty Ltd. Mr Kabir also provided detail of an arrangement agreed to by Studynet Pty Ltd which saw Mr Kabir continuing to be employed as the Accountant and allowed him to work outside of his nominated role which saw him working in Real Estate on weekends. Open-source material from 2017 to date evidences multiple Real Estate sales attributed to Mr Kabir including personal testimonies on a number of websites boasting sales success. It was also noted from the Service NSW website that Mr Kabir has been registered with Real Estate qualification/ license since 17July 2016. At interview Mr Kabir maintained:
·     He had continuously worked for Studynet Pty Ltd for a period of six years, and to the date of the interview.
·     He only worked on weekends selling Real Estate
·     He worked most days of the week at the office in Castlereagh St Sydney.
·     He occasionally worked from home because his wife was pregnant, but, mostly worked in the 233 Castlereagh St office location.
At interview with Yasmin Anwar, she confirmed:
·     Mr Aminul Islam and Mr Md Kabir were still actively employed in their roles at Studynet Pty Ltd.
·     There had been a falling out between the above cited sponsored employees and herself a couple of weeks prior to the interview but they were both still actively employed.
At interview with Md Shaddad Hossain, he claimed he was aware of Mr Kabir working in Real Estate Sales. I therefore find the sponsor fails regulation 2.86 as the sponsored worker Md Kabir Hossain is working and employed as a Real Estate Agent for another company and not an Accountant for the sponsor.
I therefore find the sponsor fails regulation 2.86 as the sponsored worker Md Kabir Hossain is working and employed as a Real Estate Agent for another company and not an Accountant for the sponsor.
When ABF officers attended the office of Studynet on 04 March 2021 employees when shown photographs of Mr Aminul Islam were unable to identify him. The migration agent Md Shaddad Hossain stated he had never seen him. Mr Islam was not available when the visit was conducted and no desk was identified where he worked. I therefore find Mr Islam is not employed by Studynet – and therefore not working there as is required for regulation 2.86. I find the sponsor does not meet regulation 2.86 in relation to Mr Islam.
The ABF is aware the sponsored visa holders, Mr Mohammed Hossain who was refused an ENS/RSMS Nomination for the role of Customer Service Manager on 05 March 2019, Mr Md Kabir Hossain who was refused an ENS/RSMS Nomination for the role of Accountant on 28 February 2019, and Mr Md Aminul Islam who was refused ENS/RSMS Nomination for the role of IT Support Technician on 28 February 2019 are all currently seeking review by the AAT (Administrative Appeals Tribunal). As such these sponsored visa holders are in the possession of Bridging Visa A Class visas while there (sic) application decisions are reviewed by the Tribunal.
However, while the Bridging visas noted above have nil conditions imposed on the visa holders, the sponsored employees are required to maintain their employment within the nominated role until they are granted a further substantive visa. Additionally, the sponsor is required to meet Regulation 2.86 Obligation to ensure primary sponsored person works or participates in nominated occupation, program or activity. This requires the sponsor to ensure the sponsored employees only work within those approved nominated roles.

In response to the NOITTA, the Company engaged an accredited immigration law specialist to assist with its response. The accredited immigration law specialist took over the role of adviser from the Company’s former immigration lawyer who had assisted the Company up to that time with lodgement of all of its applications with the Department. The accredited specialist provided a submission, which was carefully considered by the delegate. By way of summary, the accredited specialist submitted that there are 2 distinct periods relevant to this matter. The first period is when a sponsored visa holder is on their Subclass 457 visa sponsored by the Company and the second period is after their Subclass 457 visa has expired and they hold a Bridging A visa ensuring their lawful visa status in Australia pending the outcome of their Subclass 186 ENS visa application.
Regarding the first period, the accredited specialist submitted that the sponsorship obligation on the Company applied to staff members within its business, and in no way could it be responsible for activities of a sponsored person outside the Company’s business operations. With reference to the second period, the accredited specialist opined that, as the holders of Bridging A visas with nil conditions pending the outcome of their respective Subclass 186 visa applications, the obligation in reg 2.86 of the Regulations is completely different to that placed on the visa holder and that could not be acceptable under the law: as such, it would be ultra vires and, therefore, should be read down.
By way of summary, the Company’s accredited specialist submitted that, in relation to:
1)Md Kabir Hossain - any property work undertaken by him has no relevance to the Company;
2)Mohammed Hossain - although the NOITTA raised possible queries regarding the period during which he held a Subclass 457 visa, no actual findings or conclusion has been made; and,
3)Aminul Islam - no specific concerns were raised in the NOITTA while he held a Subclass 457 visa.
After carefully considering the accredited specialist’s submission, the delegate’s decision the subject of this review (a copy of which was provided to the Tribunal) correctly, in the view of the Tribunal, states that Condition 8107 and the obligations in reg 2.86 place different requirements and responsibilities on separate parties. Given Md Kabir Hossain and Mohammed Hossain applied for Subclass 186 permanent residence visas nominated by the Company under the employer nomination scheme in the same position for which they had been successfully nominated for a Subclass 457 visa, the delegate observes that it is reasonable to expect the Company maintain the person continues working in their approved occupation. The delegate opines that, should the person be seeking employment elsewhere or in a role different to the permanent nomination, this would question the genuineness of the Company’s ENS nomination.
The Tribunal notes the delegate’s decision makes no reference at all to any findings regarding Aminul Islam. In the circumstances, the Tribunal has restricted its comments in this decision, and during the hearing, to findings in relation to the activities of Md Kabir Hossain and Mohammed Hossain.
Evidence before the Tribunal
In addition to the evidence contained in the Department’s file, the Tribunal has before it oral evidence provided at the hearing from Ms Anwar, Mohammed Hossain and Md Kabir Hossain as well as the detailed submissions provided by Mr Boccabella both before and after the hearing.
Ms Anwar’s evidence
The Tribunal discussed with Ms Anwar during the hearing the evidence set out in the NOITTA and the delegate’s decision. The Tribunal found Ms Anwar to be a genuine and credible witness.
By way of summary, Ms Anwar told the Tribunal that the Company strongly relied on the advice of their former representatives: the immigration lawyer who assisted the Company with its sponsorship, nomination and visa applications and then the accredited immigration law specialist who assisted with the Company’s response to the NOITTA. She said she is now disappointed with them. Based on the advice from the former representatives, she was of the view that her husband Mohammed Hossain, as the holder of a Bridging A visa, could take on her role as CEO from time-to-time following expiry of his Subclass 457 visa on 7 March 2017. He did not take on any such duties until early July 2018 when she was about to give birth to the couple’s first child.
Ms Anwar added that, in any event, given the nature of the Company’s professional services business her husband’s duties as Customer Service Manager align to a large extent with what she is, and was, doing as both the Company’s CEO and its Director. She explained the Company really has only 2 categories of customers: on the one hand, there are students in Bangladesh, Pakistan, Nepal, India and Malaysia who are considering study options in Australia or those already here who want to undertake further study and, on the other hand, there are over 150 educational institutions across Australia which are also customers. These institutions include all 26 universities and 9 TAFEs, most of which are located in NSW, as well as other educational institutions such as Holmes Institute. As such, in his role as Customer Service Manager, Mohammed Hossain is dealing directly with the Company’s customers on a day-to-day basis. Ms Anwar also told the Tribunal that her husband again took on some of her duties as Director and CEO when she gave birth to the couple’s son in June 2020. She added that, during COVID-19 and especially following Australia’s border closures in March 2020, the role of Customer Service Manager was so very important to the Company.
In relation to information set out in the NOITTA regarding evidence given to the ABF by the Company’s Contract Administrator Mr Ke Han, Ms Anwar explained that Mr Ke Han would likely have been of this view because he thought that, as the original founder of the Company, Mohammed Hossain was the CEO. She added Mr Han had been around since the days when Mohammed Hossain was the CEO because, going back to that time, she was not yet in Australia. The Tribunal’s review of publicly available ASIC records confirms that Mohammed Hossain was a Director of the Company from 30 October 2012 to 11 June 2013 when Ms Anwar was appointed as the Company’s only Director and took on the role of CEO.
Ms Anwar also confirmed that she gave evidence to the ABF officers during their visit that her husband Mohammed Hossain had acted in her role after her daughter was born in July 2018. She added that her husband sometimes calls himself CEO but, in reality, he is not doing all of the tasks of a CEO: that is her job. Rather, he is doing the job of Customer Service Manager which is very important because the Company’s main sales result from his work. Ms Anwar echoed earlier comments that, given the nature of the Company’s business, its Customer Service Manager’s duties align to a large extent with her duties as CEO as his focus is interacting with customers to ensure sales are made to those customers. She added her husband’s focus on sales is why the Company reports a profit.
The Tribunal acknowledged it appeared the Company had relied on the accredited immigration specialist’s advice in responding to the issues raised in the NOITTA. It put to Ms Anwar that none of the comments in the Company’s response to the NOITTA challenge any of the statements made by her or staff to the ABF officers. The Tribunal noted this appeared to suggest that the comments as reported in the NOITTA are accurate. Ms Anwar acknowledged the Tribunal’s observation and reiterated her earlier comment that they just relied on the professional advice of their former representatives.
During the hearing, the Tribunal stated that, based on personal experience, Accountants frequently work from home and merely visit their place of work on an as needs basis given that so much of their work is done online using accounting software. It has been this way for many years, even decades. This is particularly the case for internal positions such as Accountant (General) ANZSCO 221111 since such professionals provide services which relate to financial reporting and accounting information systems, as well as advising on associated record-keeping requirements. The Tribunal noted that, typically, an external accountancy firm assists with lodgement of BAS and corporate Tax Returns with the ATO. Ms Anwar responded that the Company’s only internal Accountant has been Md Kabir Hossain and that he often works from home with the support of his on-site team: Assistant Accountant, Asish Roy: Accounts Payable Clerk, Wilson Du; and, Accounts Receivable Clerk, Pranathi Muvva. She explained Md Kabir Hossain’s flexible work arrangements explain why the ABF officers received advice from some staff at its unannounced site inspection on 4 March 2021 that they did not know him.
Ms Anwar confirmed during the hearing that her current representative has provided the Tribunal with copies of 2 Certificates from the Australian Women’s Small Business Champion Awards 2022 and noted that she has been recognised as a Finalist in the Small Business Champion Influential Woman’s Award and that, due to her success in leading the business, the Company itself is a Finalist in the Educational Services Award. The Tribunal acknowledged receipt of the information and congratulated Ms Anwar on recognition of her work in making it as a Finalist in both of these award categories. It has independently confirmed that, although Ms Anwar was a Finalist in each of these highly competitive categories, she was not the eventual winner of these awards.[1]
Md Kabir Hossain’s evidence
[1] Australian Women's Small Business Champion Awards - Businesses (womensbusinesschampions.com.au)
In his independent evidence to the Tribunal and in response to its question regarding working in the real estate industry, Md Kabir Hossain said that, with the benefit of advice from the Company’s former representative, he had volunteered to work with a real estate agency in the Minto region where he lives following expiry of his Subclass 457 visa on 19 January 2019. This was so that he could comply with his professional obligations for registration as a Real Estate Agent: it is something he had been working towards at the time. He added that he worked as a volunteer for PC Real Estate but was never paid for any of the work that he did, and he only ever worked on weekends when most real estate agencies are open. The Tribunal acknowledges that Md Kabir Hossain has provided the Tribunal with his PAYG Payment Summaries for the period from 30 June 2015 to 30 June 2022, as well as his lodged Tax Returns and Notices of Assessment issued by the ATO for the period 30 June 2016 to 30 June 2022 which confirm that his only source of income in Australia has been from the Company.
Asked about his volunteering work in the real estate business, Md Kabir Hossain told the Tribunal that he got his real estate agent’s licence before he was granted a Subclass 457 visa sponsored by the Company and, after his Subclass 457 visa ceased on 19 January 2019, he checked in with the Company’s then immigration lawyer and she told him that he had ‘nil’ conditions attached to his Bridging A visa. As such, he could volunteer to work with a real estate business on weekends. He stopped volunteering with the PC Real Estate business when the Company received the NOITTA and Ms Anwar told him he had to stop.
The Tribunal put to Md Kabir Hossain information set out in the NOITTA regarding the photographs with him identified as the agent selling 2 properties in Ingleburn and Glenfield in 2017. He acknowledged information in the 2 photos that he was ‘the agent’. Md Kabir Hossain added that he was just one of the many agents working at PC Real Estate on the sale of those 2 properties but that he was not the agent who actually sold the properties: rather, another of his colleagues acted on the sale. In any event, he was just volunteering there to complete his CPD obligations and thereby ensure that his registration was maintained.
During the hearing, Md Kabir Hossain gave a comprehensive summary of multiple aspects of the financial operation of the Company’s business, including its accounting information systems (which enable him to work from home regularly) and financial reporting. When asked about payment of payroll tax, he told the Tribunal that payroll tax was paid in the year ended 30 June 2020 for the first time and that it was paid to the ATO. Consistent with

s 359AA of the Act, the Tribunal put to Md Kabir Hossain that payroll tax is not paid to the ATO but is paid to the NSW Government. Md Kabir Hossain responded that the Company’s external Accountant looks after its tax including payroll tax obligations. Questioned about his qualifications in Accounting, Md Kabir Hossain told the Tribunal he was enrolled to undertake a Certified Practising Accountant course in 2019 but was unable to complete the course due to arrival of his baby later that year.
Mohammad Hossain’s evidence
Mohammad Hossain gave independent evidence to the Tribunal. The Tribunal found him to be a genuine and credible witness. Mohammad Hossain confirmed that, as set out in the NOITTA, he told the ABF officers that he was acting in the role of CEO. Mohammad Hossain added that he had only done so whilst his wife was busy with their children. He said that, the morning of the site visit by ABF officers, he and his wife had taken their children to local Childhood Centre for a routine check-up on their development: this is something they do on a routine basis every couple of months. Whilst at the Centre with his wife that morning, a staff member phoned to inform him that the couple needed to attend the office as soon as possible for an interview with ABF officers.
The Tribunal asked Mohammad Hossain why he had not, consistent with the obligation to notify the Department of his changed duties due to his wife’s need to take maternity leave, inform the Department of his need to undertake the role of CEO for a short time. Immigration policy contemplates that working on higher or lower duties for a period of up to 2 months is reasonable in limited circumstances.[2] He replied that they did get advice from their then immigration lawyer who assisted them with their applications: she did not mention anything of this nature to them. After the Company received the NOITTA, he and his wife ceased communications with her and engaged the accredited immigration law specialist to assist them with the Company’s response to the NOITTA.
[2] Under policy, a primary sponsored person may perform temporary higher duty arrangements if: the primary sponsored person agrees to undertake the higher duties; the appointment of the primary sponsored person at a higher level is for a period of 2 months or less; records are kept regarding the temporary arrangement, including duration of the higher duties and any additional salary paid. Regulation 2.84(3)(aa) requires that the sponsor must advise the Department of a change to the work duties carried out by the primary sponsored person. Under policy, a new nomination must be lodged if the period of higher duties exceeds 2 months duration and the duties are outside of the scope of the ANZSCO code of the original nominated occupation: [Div2.11-Div2.23] Sponsorship compliance framework: Sponsorship obligations (immi.gov.au).
Questioned about his current duties with the Company, Mohammad Hossain said that his role involves him servicing its 2 main customer groups – that is, its students and educational institutions - as well as leading the B2B side of the business including managing the customers focused migration agent consultancy business. He confirmed that his business card states that he is the Company’s Customer Service Manager, as do the Birth Certificates of his children.
Counsel’s submissions
Before the hearing, Mr Boccabella provided the submission dated 14 October 2022 referred to above in para [6]. Following the hearing, the Company’s representative provided a detailed submission from Mr Boccabella together with the supporting documentation set out above at paras [12] and [13]. The Tribunal has considered the multiple issues raised in Mr Boccabella’s submissions to address the delegate’s findings which led to the sanctions referred to above being imposed.
Mohammed Hossain and the CEO issue
First, Mr Boccabella submits that it is a consistently accepted view among immigration lawyers, including accredited immigration law specialists, that a person on a Bridging A visa with ‘nil’ conditions and who previously held a Subclass 457 visa is no longer bound by sponsorship undertakings. This is confirmed in the letter dated 16 April 2021 from the Company’s former accredited immigration law specialist who assisted the Company with its response to the NOITTA.
In these circumstances, Mr Boccabella submits, and the Tribunal accepts, that the Company did not wilfully breach its sponsorship obligation to ensure sponsored employees continue to work in the approved nominated occupation as this was consistent with the advice from the immigration lawyer who initially assisted them with lodgement of the Company’s sponsorship, nomination and visa applications. Her incorrect advice was confirmed by the accredited immigration law specialist who assisted the Company with its response to the NOITTA.
Second, Mr Boccabella submits, and the Tribunal accepts, that the term CEO cannot be applied to a small business where there are less than 50 employees and where there are no layers of management. As set out in his submission of 14 October 2022, Counsel opines that there would be zero prospect of Mohammad Hossain ever obtaining a positive skill assessment for the position of CEO from the relevant skill assessing authority, the Australian Institute of Management, now known as the Australian Institute of Managers and Leaders (the Institute).
Relevantly, the Institute provides the following information in relation to a favourable skill assessment for the occupation of CEO or Managing Director ANZSCO 111111:
Position and reporting lines
Dependent on the size of the organisation, business or geographical structure:
• The CEO/MD position held by the applicant must be the most senior position;
•The applicant is expected to have reported to the Board of Directors, the Head of the organisation or equivalent; and
•The applicant is expected to have directed senior managerial staff in charge of main functions and/or departments.
Type of organisation
To be assessed as a CEO/MD for migration purposes, the size and complexity of the organisation will influence the assessment.
It is unlikely that employment with an organisation with a total staff of less than 50 employees would support employment experience at the required level (emphasis added).[3]
[3] Chief Executive (CEO) / Managing Director (MD) criteria - IML AU (managersandleaders.com.au)
Mr Boccabella submits, and the Tribunal accepts, that the tenor of the Institute’s skill assessment guidelines is of a large organisation with layers of managers, which is well beyond the scope and size of the Company: the concept of a CEO does not apply to a small family business such as that of the Company. Counsel submits that a person may be the managerial head of a small family business but, almost by definition, for the purposes of the Regulations they cannot be a CEO.
Based on the Organisation Chart provided to the Tribunal and oral evidence at the hearing, the Company has 15 full-time staff and 9 part-time staff, that is, a total of 26 employees, none of whom are casuals. In addition to the Company’s Director, Ms Anwar, who acts as Chief of Marketing, it engages Mohammad Hossain as the Customer Service Manager and Dibesh Maharjan as its IT Manager. These 3 positions are the only managerial level positions in the Company. Based on the Payroll Summary Report recently provided to the Tribunal, it is clear that staffing numbers have increased to 36. This number is still well below the 50 employees referred to in the Institute’s guidelines for skill assessment.

The Tribunal also notes that the Company’s sole Director and shareholder, Ms Anwar, does not hold herself out to be CEO or Managing Director: rather, as stated in her oral evidence at the hearing and as set out in both of her children’s NSW Birth Certificates, respectively dated 19 July 2018 and 27 June 2020, she is a Self Employed - Business Owner. The Organisation Chart provided to the Tribunal states that she is the Company’s Director and its Chief of Marketing: the chart does not indicate that the Company has a CEO. The Tribunal also notes that Ms Anwar was nominated for the Australian Women’s Small Business Champion 2022 Awards and was a Finalist in the Small Business Champion Influential Woman category. Relevantly, the awards do not have a Small Business Champion CEO category.[4]
[4] Australian Women's Small Business Champion Awards - Businesses (womensbusinesschampions.com.au)
In relation to his submission regarding the inapplicability of the occupation of CEO to a small business, such as that of the Company, Mr Boccabella also submits that this is recognised by the Department itself. Relevantly, for businesses seeking to nominate the position of CEO or Managing Director ANZSCO 111111, the nominee is required to receive annual earnings of at least $180,001 per annum.[5] Counsel opines, and the Tribunal accepts, that an annual salary in excess of this amount is consistent with the current legislative instrument relevant to employers nominating Subclass 457 visa holders under the ENS for permanent residence: Migration (LIN 19/049 Specification of Occupations and Assessing Authorities - Subclass 186 Visa) Instrument 2019. Evidence provided confirms that both Ms Anwar and Mohammad Hossain have respectively averaged annual earnings in the order of $62,000 per annum and $54,500 per annum. As such, their combined income of approximately $116,500 is well below the prescribed earnings of $180,001 per annum.
[5] ‘Caveat’ 5: “(a) The position has nominated annual earnings of less than AUD180,001”– see Migration (LIN 19/049: Specification of Occupations and Assessing Authorities—Subclass 186 Visa) Instrument 2019.
Further, Mr Boccabella also submits, and the Tribunal accepts, the mere fact that a person may call himself or herself a CEO does not mean the person is actually a CEO and exercising the functions of a CEO. In simple terms Mohammad Hossain was not a CEO and, therefore, there hasn’t been no breach of the Company’s sponsorship obligations. He adds that, to quote Shakespeare, “A rose by any other name would smell as sweet”[6]: that is, put simply, the name of a person or a thing cannot affect what they actually are. Even though Mohammad Hossain called himself CEO, Mr Boccabella states that the reality is Mohammad Hossain was, and continues to be, the Company’s Customer Service Manager. As set out in the ANZSCO, Chief Executives and Managing Directors ANZSCO 111111 determine, formulate and review the general policy program and overall direction of an organisation within the framework established by a Board of Directors or similar governing body. By comparison, a Customer Service Manager ANZSCO 149212 plans, administers and reviews customer services and after-sales services, and maintains sound customer relations.
[6] Romeo and Juliet, William Shakespeare (Act 2, Scene 2)
Based on the publicly available ASIC records and as confirmed during the hearing, Mohammad Hossain became a shareholder and Director of the Company in October 2012. The Company had been established in March 2012 by Md Kabir Hossain. ASIC records confirm that Mohammad Hossain resigned as Director on 11 June 2013 and, since that time, Ms Anwar has been the Company’s sole shareholder and its sole Director.
The Tribunal accepts that, as set out in the Company’s Tax Returns provided to the Tribunal, the Company’s main business activity is providing educational support services in the Australian and New Zealand Standard Industry Classification (ANZIC) Code 82200.[7] In their independent oral evidence to the Tribunal both Ms Anwar and Mohammed Hossain confirmed the nature of the Company’s business requires Mohammed Hossain, in his role as Customer Service Manager, to proactively engage with its customers: that is, on the one hand the Company’s 150 educational institutions and, on the other, its overseas based students seeking to study in Australia as well as students who are already in Australia and who wish to undertake further studies. The Company also offers immigration advice to students to assist them with any visa application.
[7] Buscodes | Get Business Codes
In addition, Mr Boccabella also submits it is commonplace that, if a task falls within the scope of an employee’s education or experience and the request is reasonable, then the employer may ask an employee to perform such tasks. He opines that, in a small family business like that of the Company, such flexibility is expected. Counsel reiterates his earlier submission that the ANZSCO is not a ‘straight jacket’: rather, people can do tasks outside of the ANZSCO description when reasonably required without falling outside of their approved nominated occupation.
Third, and relevant to the issue outlined immediately above, Mr Boccabella has raised the nature of questioning by ABF officers at their site visit.
The Tribunal notes that, as set out in the NOITTA extracted above at para [25], there were large A2 paper size colour posters of Mohammed Hossain pictured as the CEO of the Company. Further, email correspondence with a Mr Burguard contains a signature block representing Mohammed Hossain as the CEO. In addition, information the subject of the

s 375A Certificate contains a photograph of a Staff Listing with all employee’s names, their phone extension and their position title. The Staff List clearly states ‘Hossain’ is CEO.
Mr Boccabella submits, and the Tribunal accepts, that in relation to interviews conducted by the ABF officers there is no evidence in the NOITTA or the delegate’s decision to demonstrate that the officers provided ANZSCO extracts or summaries for the occupations of Customer Service Manager and CEO for staff at the Company’s office to consider when they were asked if Mohammed Hossain is the CEO. It is submitted that the lack of comparative questioning and the absence of ANSZCO extracts provided to witnesses is a limited approach as it serves merely to establish that Mohammed Hossain referred to himself as a CEO at times and not whether he is the Customer Service Manager.
The Tribunal acknowledges Mr Boccabella’s submissions in this regard. However, it notes the evidence from staff at the Company’s office as outlined immediately above. Further, Ms Anwar has confirmed that following the birth of her first child in July 2018, she has frequently worked from home, focusing on doing her online marketing and her corporate governance tasks there, while at the same time looking after her young children. As at the date of the ABF officers site visit on 4 March 2021, her daughter was 2½ years old and her son was just 9 months old. In the circumstances, the Tribunal accepts that Ms Anwar’s husband Mohammed Hossain would have stepped up to undertake some more senior managerial tasks not entirely consistent with his role as Customer Service Manager.
Md Kabir Hossain
It is accepted by Mr Boccabella that the evidence concerning Md Kabir Hossain’s real estate activities is problematic.
However, Counsel submits that Md Kabir Hossain did not obtain any income from PC Real Estate and was merely the secondary agent in relation to the sale of the 2 properties in Ingleburn and Glenfield referred to in the NOITTA. The Tribunal accepts that, in addition to Md Kabir Hossain’s oral evidence at the hearing, the following information confirms Md Kabir Hossain did not earn any income from the sale of these properties:
1)Md Kabir Hossain’s PAYG Statements for the years 30 June 2015 to 30 June 2022;
2)Individual Tax Returns as lodged with the ATO for the years ended 30 June 2015 to 30 June 2022;
3)ATO Notices of Assessment for the years ended 30 June 2016 to 30 June 2022; and,
4)the Statutory Declaration of Mohammad Zakir Hossain sworn 4 November 2022. As set out in the Statutory Declaration, Md Kabir Hossain:
a)was a voluntary agent in respect of 2 properties in Ingleburn and Glenfield sold by Mohammad Zakir Hossain’s business PC Real Estate;
b)engaged with PC Real Estate for the purpose of renewing his real estate licence on a voluntary basis and never received any financial monetary benefits; and,
c)spends approximately 9 hours per year doing his voluntary real estate work to validate his licence and also sometimes does unpaid internship work.
It is submitted that Md Kabir Hossain was also professionally advised that he could engage in these real estate activities once he was on a Bridging A visa with nil conditions. This is consistent with the legal advice received from the Company’s immigration lawyer who assisted with lodgement of its sponsorship, nomination and visa applications and is also set out in its accredited immigration law specialist’s response on behalf of the Company to the Department’s NOITTA.
As noted above, following the hearing the Tribunal was provided with a signed Memorandum of Advice re Md Kabir Hossain dated 4 November 2022 from Mr Boccabella. The Memorandum of Advice extracts the definition of ‘work’ in reg 1.03 of the Regulations which states that “work means an activity that, in Australia, normally attracts remuneration”. Having regard to Condition 8107 which was attached to Md Kabir Hossain’s Subclass 457 visa and which precluded him from engaging in work for another person or on his own account whilst undertaking employment in relation to which that visa was granted, Mr Boccabella submits, and the Tribunal accepts, that it is common for many qualified persons/graduates, particularly in their early years, to undertake unpaid internships with various professional offices. The Tribunal acknowledges this is not uncommon in the fields of accounting, law, journalism, engineering, real estate and media, to name but a few. Indeed, the Fair Work Ombudsman’s website acknowledges that unpaid work experience arrangements or unpaid internships are common in many industries.[8] Counsel submits, and the Tribunal accepts, that Md Kabir Hossain could undertake a very short-term internship with a real estate agency solely for the purposes of meeting CPD requirements without breaching the ‘work’ definition in reg 1.03 and nor would the Company breach its sponsorship obligation in reg 2.86 to ensure that the primary sponsored person works or participates only in the approved nominated occupation, program or activity.
[8] Unpaid work - Fair Work Ombudsman
To clarify the obligations of both the Company and Md Kabir Hossain, after the hearing and as noted above at para [12], the representative provided a signed Memorandum of Amendment of Employment Agreement made between the Company and Md Kabir Hossain dated 4 November 2022 which provides that Md Kabir Hossain: must only work for the Company in the nominated occupation of Accountant; may not undertake work with any other employer but he may undertake a very short-term unpaid internship with a real estate agent solely for CPD purposes in relation to renewing his real estate agent’s licence in accordance with the written Memorandum of Advice from Mr Boccabella. Breach of the amended employment arrangement will result in Md Kabir Hossain’s dismissal without notice. The Memorandum of Amendment has been signed by both Ms Anwar and Md Kabir Hossain.
Mr Boccabella also made a submission in relation to the Tribunal’s payroll tax question which was directed to Md Kabir Hossain during the course of the hearing. He submits, and the Tribunal’s accepts that, payroll tax rates and thresholds have varied over time. In the year ended 30 June 2018, the threshold was $750,000. This increased to $850,000 in the year ended 30 June 2019, then to $900,000 in the year ended 30 June 2020 and, since then, it has stabilised at $1,200,000.[9] Further, the payroll tax rate has varied from 4.85% to 5.45%. Counsel submits, and the Tribunal accepts, that many small businesses not only have an internal Accountant but also have the benefit of an external Accountant to look after more complicated regulatory issues such as complying with payroll tax obligations. As the Company’s payroll has only passed the relevant threshold on one occasion, it is not surprising to the Tribunal that Md Kabir Hossain could not recall all information in relation to the Company’s payment of payroll tax.
Mr Malak’s interview with the ABF
[9] Rates and thresholds | Revenue NSW; Payroll Tax NSW - atotaxrates.info
It is submitted by Mr Boccabella that Mr Malak’s statement as set out in the NOITTA that he did not know Md Kabir Hossain during his interview with ABF officers is not enough to justify sponsorship cancellation. As set out in the Statutory Declaration sworn by Mr Malak on 4 November 2022, he works part-time as a Student Counsellor with the Company as the holder of a Subclass 500 Student visa. When the ABF officers came for their site visit, he thought it was some kind of police raid and, like everyone else, became frightened as he did not want to get into trouble. He thought Md Kabir Hossain was in trouble and, therefore, he said he did not know him. That was incorrect information and he now truly apologises for giving it.
Mr Boccabella submits, and the Tribunal accepts, that it is common for people from some other countries to have a different view of police compared with perceptions in Australia and, therefore, Mr Malak’s reaction is understandable. Mr Malak thought that Md Kabir Hossain was in trouble with the police and, therefore, did not want to be seen as an associate of Md Kabir Hossain.
Sponsorship cancellation process
Mr Boccabella refers to the prescribed grounds for cancellation, as set out in s 140L of the Act and reg 2.89 of the Regulations, which state that a failure to satisfy a sponsorship obligation is a prescribed ground. He submits that the CEO issue outlined above does not amount to a prescribed ground.
In relation to the issue with Md Kabir Hossain’s real estate activities, Mr Boccabella submits that unpaid internships are common in professional occupations and that the Tribunal should accept that Md Kabir Hossain’s unpaid work with PC Real Estate cannot be classified as ‘work’ as defined in the migration regime.
Mr Boccabella has also provided submissions addressing each criterion in reg 2.89(3) of the Regulations to be considered by the Minister (or the Tribunal on review) in determining what action (if any) should be taken if a sponsor has failed to satisfy a sponsorship obligation. Counsel’s submissions in this regard are discussed below.
Consideration
The Tribunal has carefully considered the evidence before it and notes there is a clear trend in the evidence that Mohammad Hossain has, whilst Ms Anwar was either heavily pregnant or looking after her young children, undertaken more senior managerial tasks and proactively engaged with her corporate governance responsibilities as the Company’s sole Director.
It accepts that, based on its independent research, Md Kabir Hossain established the Company in March 2012 and Mohammad Hossain acquired an interest in October 2012. At the time, Mohammad Hussein was studying for his Bachelor of Business at Federation University. Mohammad Hossain was the Company’s sole Director from 30 October 2012 until 11 June 2013 when Ms Anwar became its sole Director and shareholder.
As set out above, the Tribunal accepts many of Counsel’s submissions in relation to Mohammad Hossain undertaking the role of CEO. However, it is evident that, as accepted by both Ms Anwar and her husband Mohammad Hossain during the course of the hearing, he has undertaken some of the duties assigned to the role of CEO, as set out in ANZSCO. Based on evidence provided, the Tribunal also accepts Mr Boccabella’s submissions in relation to Md Kabir Hossain’s voluntary unpaid work with PC Real Estate to maintain his real estate agent’s licence. In relation to feedback from some employees that Md Kabir Hossain does not come into the office, the Tribunal acknowledges its personal experience in relation to internal Accountants who predominantly work from home and who may go into the employer’s office on rare occasions only - typically, quarterly - as most of their work is now done online and this has been the case for decades.
The Tribunal acknowledges explanations offered by Ms Anwar and Mohammad Hossain regarding the need for Mohammad Hossain to take on some of the duties of the occupation of CEO. It also acknowledges Counsel’s submission that the Company was incorrectly advised by its former solicitor and then, subsequently, its accredited immigration law specialist in relation to the ability of Mohammad Hossain to undertake the duties of a CEO once his Subclass 457 visa had expired on 7 March 2017, and advice to Md Kabir Hossain that he could work on weekends as a real estate agent, albeit doing unpaid work, following expiry of his Subclass 457 visa on 19 January 2019. The Tribunal also accepts Counsel’s submission that any unpaid activity undertaken by Md Kabir Hossain does not constitute ‘work’ for the purposes of reg 1.03 of the Regulations.
Both Mohammad Hossain and Md Kabir Hossain have been nominated by the Company for Subclass 186 visas in their respective positions of Customer Service Manager and internal Accountant. Based on available evidence, the Tribunal finds that the Company has not complied with its sponsorship obligation in reg 2.86 of the Regulations that Mohammad Hossain must work only in his approved nominated occupation of Customer Service Manager. The Tribunal accepts evidence from Ms Anwar as to the nature of the Company’s business and the close alignment between the duties of a CEO and a Customer Service Manager in the context of the Company’s business and its size. However, there appears to be clear evidence that Mohammad Hossain has undertaken the duties and held himself out as CEO for more than the 2 months permitted under immigration policy referred to above.
Accordingly, having found that the Company has failed the sponsorship obligations in reg 2.86 of the Regulations, the Tribunal is satisfied that the prescribed circumstance in reg 2.89 of the Regulations exists for the purposes of engaging s 140M of the Act.
Action to be taken
For the reasons outlined above, the Tribunal is satisfied that a relevant circumstance for s 140L(1)(a) of the Act exists. Accordingly, it is necessary to consider whether one or more of the actions mentioned in s 140M of the Act and referred to above in para [19] should be taken.
In considering what action to take, the Tribunal has had regard to the prescribed criteria in reg 2.89(3) of the Regulations which is extracted in the Attachment to this decision.
Past and present conduct of the person in relation to Immigration: reg 2.89(3)(a)
Mr Boccabella submits, and the Tribunal accepts, that the Company’s activities are not the most serious of potential breaches of its obligations as a sponsor. It does not accept his description of the breach as being low level. Counsel submits that, if it is found that Mohammed Hossain had overstepped his role as Customer Service Manager, it is only technical in nature.
Additionally, Counsel notes that, to remove any doubt, the Company's failure in relation to Md Kabir Hossain’s past real estate activity has now been rectified as his contract has been amended.
There is no evidence before the Tribunal that the Company has not engaged with the Department.
The number of occasions on which the person has failed to satisfy the sponsorship obligation: reg 2.89(3)(b)

The delegate found that the Company failed to ensure that 2 of its nominated employees continued to work only in their respective nominated occupation. For the reasons outlined above, the Tribunal is satisfied that there is only one instance of this occurring, that is, Mohammed Hossain from time to time undertook the duties of a CEO and held himself out as the Company’s CEO following expiry of his Subclass 457 visa on 7 March 2017 when he became the holder of a Bridging A visa. This started around the time that his wife was heavily pregnant and then gave birth to the couple’s eldest child on 19 July 2018.
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: reg 2.89(3)(c)
In the event that the Tribunal finds that there has been a contravention of the Company’s obligations as a sponsor, Mr Boccabella submits, and the Tribunal accepts, that the legal advice provided to the Company by its former representatives played a significant role in leading to the contravention of the Company’s obligation as a sponsor.
The Company’s contravention of its obligation to ensure that Mohammed Hossain only works as the Company’s Customer Service Manager and, if needs be, only takes on his wife’s duties as CEO for a period of up to 2 months consistent with immigration policy, continued up until the time of the delegate’s decision on 16 April 2021. Until the Company received the delegate’s decision, it continued to rely on advice from its former immigration lawyers including its accredited immigration law specialist that Mohammed Hossain was able to undertake such duties as his Subclass 457 had ceased.
The period of time over which the person has been an approved sponsor: reg 2.89(3)(d)
The Company’s initially approval as a standard business sponsor expiring on 31 December 2015. Subsequently, it was granted approval for a 5 year period expiring on 22 April 2021.
Whether, and the extent to which, the failure to satisfy the sponsorship obligation has had a direct or indirect impact on another person: reg 2.89(3)(e)
No submissions were made in this regard.
However, the Tribunal notes that the Company has pending before the Tribunal 4 ENS nomination applications which have not been able to proceed because of the findings by the Department in relation to adverse information about the Company. As noted above, these pending ENS nominations include the position of Customer Service Manager for Mohammad Hossain (and thereby, indirectly, Ms Anwar and the couple’s children) as well as the position of Accountant for Md Kabir Hossain.
Whether, and the extent to which, the failure to satisfy the sponsorship obligation was intentional, reckless or inadvertent: reg 2.89(3)(f)
It is submitted by Counsel, and the Tribunal accepts, no shortcomings in the Company’s conduct were reckless. Rather, to the extent the action of enabling Mohammad Hossain to take on Ms Anwar’s role of CEO due to her pregnancy and family commitments was intentional, this was entirely due to the Company receiving incorrect legal advice from its former representative and then, subsequently, the accredited immigration law specialist who was engaged to assist with a response to the NOITTA. As noted above and confirmed in the response to the NOITTA in the Department’s file, incorrect legal advice had been received from an accredited immigration law specialist that, as the holders of Bridging A visas following the expiry of their respective Subclass 457 visas sponsored by the Company, Mohammed Hossain had no restrictions and could undertake any additional work or change his duties.
In addition, the potential impact of allowing Md Kabir Hossain to take on unpaid weekend work as a real estate agent was also based on the same incorrect legal advice from its former representative and the accredited immigration specialist who assisted with the Company’s response to the Department’s NOITTA. With the benefit of hindsight, the Company should have sought clear instructions from Md Kabir Hossain about why he was undertaking weekend work with PC Real Estate, whether or not he had an employment relationship with PC Real Estate and whether or not he was getting paid.
In summary, the Company’s breach of its obligations appears to be entirely due to it receiving incorrect legal advice.
Whether, and the extent to which, the person has cooperated with Immigration, including whether the person informed Immigration of the failure: reg 2.89(3)(g)
There is no evidence before the Tribunal that Ms Anwar, Mohammad Hossain or Md Kabir Hossain did not co-operate with the Department.
On the contrary, following advice from one of their colleagues that that ABF officers had made an unannounced site inspection and wanted to speak with them, Ms Anwar and Mohammad Hossain travelled directly to the Company’s office despite the fact that the call had been taken whilst they were at their local Childhood Centre where both of their children were having routine development checks.
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: reg 2.89(3)(h)
Ms Anwar told the Tribunal that, since being fully informed by the Company’s current representative and Counsel of its obligations as a sponsor, it has set in place policies and procedures to ensure all of its sponsorship obligations are fully complied with. Ms Anwar is now back working essentially full-time in her role as Director and Chief of Marketing. Her husband, Mohammad Hossain, continues to undertake his role as Customer Service Manager. Ms Anwar apologised to the Tribunal for the quality of legal advice provided to the Company that led to the delegate to find the Company had breached one of its sponsorship obligations. Her reputation and that of the Company are, respectively, key assets of her and her business.
Relevantly, after the hearing, the representative provided an updated amendment to the employment contract made between the Company and Md Kabir Hossain. The amendment clarifies that he is prohibited from undertaking any work for any organisation other than the Company apart from unpaid real estate agency work entirely for the purpose of meeting CPD requirements and thereby ensuring he continues to be eligible to hold a real estate agent’s licence.
The processes (if any) the person has implemented to ensure future compliance with the sponsorship obligation: reg 2.89(3)(i)
As noted above, the Contract of Employment between Md Kabir Hossain and the Company has been amended by the signed Memorandum of Amendment dated 4 November 2022. Further, Ms Anwar told the Tribunal that the Company policies and procedures have been revised.
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: reg 2.89(3)(j)
The only sponsorship obligation that the Company has failed to satisfy is, as set out in the delegate’s decision, its obligation to ensure nominated persons continue to work in their approved nominated occupation. For the reasons outlined above, the Tribunal is satisfied that the issue will not occur again.
Any other relevant factors: reg 2.89(3)(k)
Mr Boccabella submits, and the Tribunal accepts, that the Company has an important role in the international education sector. The Tribunal accepts that the international education sector is a significant contributor to the Australian economy and that, given the Company’s offices overseas in Bangladesh, Pakistan, Nepal, India and Malaysia as well as its 4 offices in Australia in Sydney, Brisbane, Melbourne and Adelaide, it has a footprint which can potentially connect many students with educational opportunities in Australia.
Furthermore, Counsel notes that Ms Anwar and the Company have been recognised as impressive participants in the international student industry sector. Certificates have been provided from the Australian Women’s Small Business Champion Awards 2022 confirming that Ms Anwar was a Finalist in the Small Business Champion Influential Woman’s Award and, further, the Company was a Finalist in the Educational Services Award. The Tribunal has established that neither Ms Anwar nor the Company won these awards: however, it recognises that being a Finalist in these respective awards is a high commendation.
Conclusion
The Tribunal has had regard to all relevant circumstances as outlined above. It accepts that the Company’s failure was unintentional as it was the result of misinformation from its former immigration lawyer and, subsequently, its accredited immigration law specialist adviser. The Tribunal found Ms Anwar to be a credible and genuine witness. It accepts that Ms Anwar, as the Company’s Director, is therefore responsible for corporate governance issues and she has now put in place procedures to ensure that the Company is fully aware of all of its obligations as a sponsor. It also accepts that Md Kabir Hossain’s contract of employment with the Company has been appropriately amended and that the nature of any unpaid work he undertakes outside the Company’s role as its internal Accountant has been clarified.

104. In this case, the delegate decided not only to cancel the Company’s approval as a standard business sponsor but also impose a bar for 3 years from making future applications for approval as a standard business sponsor and temporary activities sponsor. At the time of this decision, the Company is no longer an approved sponsor as its sponsorship expired 22 April 2021. Had the Company still been an approved sponsor at the time of this decision, the Tribunal would have considered varying the delegate’s decision, as provided for in
s 349(2)(b) of the Act, by reducing the period of the bar. In the Tribunal’s view, a significant reduction in the period of the 3 year bar would have been more commensurate with the nature of the Company’s non-compliance with its sponsorship obligation in reg 2.86 of the Regulations which, as noted above, the Tribunal has found was based on incorrect advice from its immigration lawyers. However, at the time of this decision, the Company has ceased to be an approved sponsor and, as a consequence, it is not open to the Tribunal to take any of the actions in s 140M(1) of the Act which relate to ‘approved sponsors’. The only actions the Tribunal can take in this matter are those specified in s 140M(2) of the Act.
105. Section 140M(2) of the Act provides for actions that may be taken in relation to ‘former approved sponsors’. This includes barring the person, for a specified period, from making future applications for approval as a sponsor. Having regard to all the relevant circumstances in this case, the Tribunal does not consider it appropriate to impose any future sanctions on the Company.
106. Since the Tribunal is not authorised under the Act to take any of the actions in s 140M(1) of the Act, and as it does not consider it appropriate to impose any future sanctions on the Company, 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 of the Act
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).
Katie Malyon

Member
ATTACHMENT – Extracts from the Migration Act 1958 and Migration Regulations 1994
Extracts from the Migration Act 1958
…
140L Regulations may prescribe circumstances in which sponsor may be barred or sponsor's approval cancelled
(1) Circumstances in which the Minister may take action The regulations may prescribe:
(a) either or both of the following:
(i) circumstances in which the Minister may take one or more of the actions mentioned in section 140M in relation to a person who is or was an approved sponsor if the Minister is reasonably satisfied that the person has failed to satisfy a sponsorship obligation in the manner (if any) or within the period (if any) prescribed by the regulations;
(ii) other circumstances in which the Minister may take one or more of the actions mentioned in section 140M; and
(b) the criteria to be taken into account by the Minister in determining what action to take under section 140M.
(2) Circumstances in which the Minister must take action The regulations may prescribe either or both of the following:
(a) circumstances in which the Minister must take one or more of the actions mentioned in section 140M in relation to a person who is or was an approved sponsor if the Minister is reasonably satisfied that the person has failed to satisfy a sponsorship obligation in the manner (if any) or within the period (if any) prescribed by the regulations;
(b) other circumstances in which the Minister must take one or more of the actions mentioned in section 140M.
(3) Different circumstances and different criteria may be prescribed for:
(a) different kinds of visa (however described); and
(b) different classes in relation to which a person may be, or may have been, approved as a work sponsor or family sponsor.
140M Cancelling approval as a sponsor or barring a sponsor
(1) Actions that may be taken in relation to approved sponsors If regulations re prescribed under section 140L, the Minister may (or must) take one or more of the following actions in relation to an approved sponsor:
(a) cancelling the approval of a person as a work sponsor or family sponsor in relation to a class to which the sponsor belongs;
(b) cancelling the approval of a person as a work sponsor or family sponsor for all classes to which the sponsor belongs;
(c) barring the sponsor, for a specified period, from sponsoring more people under the terms of one or more existing specified approvals as a work sponsor or family sponsor for different kinds of visa (however described);
(d) barring the sponsor, for a specified period, from making future applications for approval as a work sponsor or family sponsor in relation to one or more classes prescribed by the regulations for the purpose of subsection 140E(2).
(2) Action that may be taken in relation to former approved sponsors If regulations   are prescribed under section 140L and a person was an approved sponsor, the Minister may (or must) bar the person, for a specified period, from making future applications for approval as a work sponsor or family sponsor in relation to one or more classes prescribed by the regulations for the purpose of subsection 140E(2).
….
Extracts from the Migration Regulations 1994
…
2.86 Obligation to ensure primary sponsored person works or participates in nominated occupation, program or activity
(1) This regulation applies to:
(a) a person who is or was an approved work sponsor in relation to a primary sponsored person if:
(i) the primary sponsored person holds a visa in relation to which the primary sponsored person was required to be nominated by an approved work sponsor; or
(ii) an occupation, a program or an activity was required to be nominated in relation to the primary sponsored person by an approved work sponsor; and
(b) a person who is or was an approved work sponsor in relation to a person who was a primary sponsored person if:
(i) the last substantive visa held by the primary sponsored person was a visa in relation to which the primary sponsored person was required to be nominated by an approved work sponsor; or
(ii) an occupation, a program or an activity was required to be nominated in relation to the primary sponsored person by an approved work sponsor.
(2) If the primary sponsored person holds a Subclass 457 (Temporary Work (Skilled)) visa, a Subclass 482 (Temporary Skill Shortage) visa or a Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa, or the last substantive visa held by the primary sponsored person was a Subclass 457 (Temporary Work (Skilled)) visa, a Subclass 482 (Temporary Skill Shortage) visa or a Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa, the person must ensure that the primary sponsored person:
(a) works in the nominated occupation; and
(b) does not work in an occupation unless both of the following apply:
(i) the occupation was nominated by the person in relation to the primary sponsored person under subsection 140GB(1) of the Act;
(ii) the nomination was approved by the Minister under subsection 140GB(2) of the Act.
(2A) If:
(a) the primary sponsored person holds a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa, or the last substantive visa held by the primary sponsored person was a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa; and
(b) the nominated occupation is not an occupation specified by the Minister in an instrument made under subregulation 2.72(13);
the person must ensure that:
(c) if the person is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the person's approval as a standard business sponsor, or at the time of the last approval of a variation to the person's term of approval as a standard business sponsor--the primary sponsored person is engaged only as:
(i) an employee of the person; or
(ii) an employee of an associated entity of the person; or
(d) if the person is or was a standard business sponsor who was not lawfully operating a business in Australia, and was lawfully operating a business outside Australia, at the time of the person's approval as a standard business sponsor, or at the time of the last approval of a variation to the person's term of approval as a standard business sponsor--the primary sponsored person is engaged only as an employee of the person; or
(e) if the person is or was a party to a work agreement--the primary sponsored person is engaged only as an employee of the person.
(2AA) If:
(aa) the primary sponsored person holds a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa, or the last substantive visa held by the primary sponsored person was a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa; and
(ab) the nominated occupation is not an occupation specified by the Minister in an instrument made under subregulation 2.72(13); and
(ac) the person is, or was, a standard business sponsor;
the person must ensure that:
(a) the primary sponsored person is employed under a written contract of employment; and
(b) if the person is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the person's approval as a standard business sponsor, or at the time of the last approval of a variation to the person's term of approval as a standard business sponsor:
(i) the person does not engage in activities that relate to the recruitment of a visa holder, an applicant for a visa or a proposed applicant for a visa for the purpose of supplying the holder, applicant or proposed applicant to a business that is not associated with the person; and
(ii) the person does not engage in activities that relate to the hire of a visa holder to a business that is not associated with the person; and
(c) if the person is or was a standard business sponsor who was not lawfully operating a business in Australia, and was lawfully operating a business outside Australia, at the time of the person's approval as a standard business sponsor, or at the time of the last approval of a variation to the person's term of approval as a standard business sponsor:
(i) the person does not engage in activities that relate to the recruitment of a visa holder, an applicant for a visa or a proposed applicant for a visa for the purpose of supplying the holder, applicant or proposed applicant to any other business; and
(ii) the person does not engage in activities that relate to the hire of a visa holder to any other business.
(2AB) The person's obligation in subregulation (2AA) applies only in relation to the following:
(a) a primary sponsored person who holds a Subclass 457 (Temporary Work (Skilled)) visa on the basis of satisfying the criteria in subclause 457.223(4) of Schedule 2 (as in force before 18 March 2018);
(b) a primary sponsored person whose last substantive visa was a Subclass 457 (Temporary Work (Skilled)) visa held on the basis of satisfying the criteria in subclause 457.223(4) of Schedule 2 (as in force before 18 March 2018);
(c) a primary sponsored person who holds a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream;
(d) a primary sponsored person whose last substantive visa was a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream or Medium-term stream.
(2B) If:
(a) the primary sponsored person holds a Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa, or the last substantive visa held by the primary sponsored person was a Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa; and
(b) the nominated occupation is not an occupation specified by the Minister in an instrument made under subregulation 2.72C(14);
the person must ensure that:
(c) if the person is, or was, a standard business sponsor--the primary sponsored person is engaged only as:
(i) an employee of the person; or
(ii) an employee of an associated entity of the person; or
(d) if the person is or was a party to a work agreement----the primary sponsored person is engaged only as an employee of the person.
(2BA) If:
(a) the primary sponsored person holds a Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa, or the last substantive visa held by the primary sponsored person was a Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa; and
(b) the nominated occupation is not an occupation specified by the Minister in an instrument made under subregulation 2.72C(14); and
(c) the person is, or was, a standard business sponsor;
the person must ensure that:
(d) the primary sponsored person is employed under a written contract of employment; and
(e) the person does not engage in activities that relate to the recruitment of a visa holder, an applicant for a visa or a proposed applicant for a visa for the purpose of supplying the holder, applicant or proposed applicant to a business that is not associated with the person; and
(f) the person does not engage in activities that relate to the hire of a visa holder to a business that is not associated with the person.
(2C) If the primary sponsored person holds a visa other than a Subclass 457 (Temporary Work (Skilled)) visa, a Subclass 482 (Temporary Skill Shortage) visa or a Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa, the person must ensure that the primary sponsored person works or participates in the nominated occupation, program or activity in relation to which the primary sponsored person was identified.
(3) The obligations mentioned in subregulations (2) to (2C):
(a) start to apply:
(i) on the day on which the Minister approves a nomination by the person that identifies the primary sponsored person; or
(ii) if the primary sponsored person does not hold a visa mentioned in subregulation (1) on the day the Minister approves the nomination--on the day on which the primary sponsored person is granted the visa on the basis of being identified in an approved nomination by the person; and
(b) end on the earliest of:
(i) the day on which the Minister approves a nomination under section 140GB of the Act by another approved work sponsor in which the primary sponsored person is identified; and
(ii) the day on which the primary sponsored person is granted a further substantive visa that is in effect and is:
(A) if the last substantive visa held by the primary sponsored person was a Subclass 457 (Temporary Work (Skilled)) visa--a visa that is not a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa; or
(B) in any other case--a visa of a different subclass to the last substantive visa held by the primary sponsored person; and
(iii) the first day on which each of the following has occurred:
(A) the primary sponsored person has left Australia;
(B) the visa granted to the primary sponsored person on the basis of being identified in an approved nomination by the person has ceased to be in effect;
(C) if:
(I)   the primary sponsored person held a Subclass 020 (Bridging B) visa when the primary sponsored person left Australia; and
(II)   the last substantive visa held by the primary sponsored person was the visa granted to the primary sponsored person on the basis of being identified in an approved nomination by the person;
the bridging visa has ceased to be in effect.
…
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.
…
oOOo

[2023] AATA 2613

26 July 2023

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Immigration

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