Thanh Huyen Vu (Migration)

Thanh Huyen Vu (Migration) [2021] AATA 2869 (9 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Thanh Huyen Vu
CASE NUMBER:  1906296
HOME AFFAIRS REFERENCE(S):          OPF2018/9164
MEMBER:R. Skaros
DATE:9 July 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision under review.

Statement made on 09 July 2021 at 5:54pm

CATCHWORDS
MIGRATION – sponsorship cancellation and bar – applicant failed a sponsorship obligation – sponsored person working in the nominated occupation – occupation of Massage Therapist – additional nail technician work not consistent with the nominated occupation – massaging equipment not set up – business no longer registered after structure change – another employee’s visa had expired – efforts to rectify the compliance – 12 months bar – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 140, 359, 363
Migration Regulations 1994, Schedule 8, Condition 8107; rr 2.59, 2.84, 2.86, 2.89, 2.91
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 (the Act) in relation to the applicant’s sponsorship.
The applicant was most recently approved as a standard business sponsor on 11 November 2016 for a period of five years. On 28 February 2019, the delegate decided to cancel the approval of the applicant as a standard business sponsor and bar the applicant for 12 months from making applications for approval as a standard business sponsor and temporary activities sponsor under s 140M as the delegate found that the applicant had failed to satisfy a sponsorship obligation and that they no longer satisfy the criteria for approval as a sponsor.
The applicant provided a copy of the delegate’s decision record with the application for review.
The applicant, Ms Thanh Huyen Vu, appeared before the Tribunal on 4 May 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Thuy Thi Bich Tran and Thi Thu Giang Ha.
The applicant was represented in relation to the review by their registered legal practitioner. The representative attended the hearing.
The Tribunal notes that the Department’s file initially included a non-disclosure certificate issued under s 375A of the Act. The certificate identified several documents which the Department indicated should not be disclosed to anyone other than the Tribunal. The certificate, however, did not provide any public interest reason for the non-disclosure. Following further correspondence with the Department regarding the validity of the certificate, the Department advised the Tribunal that they had revoked the certificate. Accordingly, the Tribunal informed the applicant about the revocation of the certificate and provided copies of the documents that had previously been withheld from disclosure due to the invalid certificate. The applicant was given additional time to make any further submissions they wished the Tribunal to consider. The Tribunal notes that much of the information in the documents that were the subject of the invalid certificate, in as far as it was relevant to the issues in the review, had already been disclosed to the applicant by the Department and the applicant had an opportunity to respond.
For the following reasons, the Tribunal has decided to affirm the decision under review.
CONSIDERATION OF CLAIMS AND EVIDENCE
Sections 140K, 140L and 140M of the Act provide for the imposition of sanctions on approved sponsors in certain circumstances.
Under s 140M, if prescribed circumstances exist, the Minister (and the Tribunal on review) may take one or more of the following actions:
·cancelling the sponsorship approval in relation to a class to which the sponsor belongs;
·cancelling the sponsorship approval for all classes to which the sponsor belongs;
·barring the sponsor for a specified period from sponsoring more people under the terms of any existing approval; and
·barring the sponsor for a specified period from making future applications for sponsorship approval in relation to one or more classes of sponsor.
For these purposes, the circumstances are prescribed in regs 2.89–2.94B and include circumstances in which the Minister, or Tribunal on review, is satisfied there has been: a failure to satisfy a sponsorship obligation; provision of false or misleading information; sponsorship application or variation criteria no longer met; a contravention of the law; unapproved changes to a program; a failure to pay additional security; a failure to comply with certain terms of an agreement; or a failure to pay medical and hospital expenses.
Where a prescribed circumstance has been found to exist, the Migration Regulations 1994 (the Regulations) prescribe criteria that must be taken into account when determining what action, if any, to take: regs 2.89–2.94B. These criteria, as they relevantly apply to the circumstances of this case are set out in the attachment to this decision.
Background
The applicant operated the business USA Nail Design and Beauty at Bankstown as a sole trader under Australian Business Number (ABN) 15 423 635 875. The applicant was most recently approved as a standard business sponsor on 11 November 2016. The delegate’s decision record also indicates that the applicant has been approved as a sponsor since 1 November 2012.
The applicant had several nominations approved under s 140GB of the Act, which included nominations for the following 457 visa holders:
·Thanh Ha Vu in the occupation of Massage Therapist;
·Thi Thu Giang Ha (Ms Ha) in the occupation of Massage Therapist;
·Thuy Thi Bich Tran (Ms Tran) in the occupation of Hair/Beauty Salon Manager.
The Department commenced monitoring the applicant on 10 September 2018. Departmental officers conducted an unannounced site visit at the business’ premises in Bankstown on 19 September 2018. During the site visit they interviewed several workers at the salon, including Ms Tran and Ms Ha.
On 2 October 2018 the applicant sent an email to the Department referring to the officers’ visit and explaining why she was not able to attend the salon that day. The applicant attached several documents to the email, which she indicated was in response to the information/documents requested by the Department. The documents included copies of employment contracts, payslips, bank statements and position descriptions for the above mentioned 457 visa holders.
On 9 November 2018, the Department issued the applicant with a Notice of Intention to Take Action (the Notice), which set out the circumstances in relation to which the Department was considering taking action. The circumstances identified were:
·Regulation 2.89: Failure to satisfy sponsorship obligation;
·Regulation 2.91: Application or variation criteria no longer met.
The Tribunal has considered each of these circumstances below.
Does a circumstance for the taking of an action exist?
Failure to satisfy a sponsorship obligation: reg 2.89
The Minister may take one or more of the actions in s 140M if satisfied the sponsor has failed to satisfy a sponsorship obligation referred to in Division 2.19 of the Regulations: reg 2.89(2).
In the present case, the delegate found that the applicant had failed to satisfy the sponsorship obligation in reg 2.86. The Tribunal is satisfied that this obligation applies to the applicant as they were an approved sponsor in relation to a primary sponsored person who held a 457 visa on the basis of a nomination approved in a specified occupation: reg 2.86(1).
Relevantly, the obligation in reg 2.86(2) requires a sponsor to ensure that a sponsored person works in the nominated occupation and does not work in an occupation unless they have been nominated to work in that occupation and the Minister has approved the nomination.
In determining whether the applicant has complied with their sponsorship obligation as required by reg 2.86(2), the Tribunal has had regard to the relevant evidence before it as follows.
Information before the Tribunal, which is set out in the notice, indicates that during the site visit Departmental officers obtained the following evidence:
Thuy Thi Bich Tran (Hair/Beauty Salon Manager): She stated she supervised staff in the absence of her boss and looked after customers. She arranged appointments and saw to hygiene of customers. She has worked there since August 2015 and is paid weekly $980 net. She worked from Monday to Friday 9am - 5.30pm. Her days off are not fixed. The roster was given every week and told to her verbally. She was the Manager there.
They did simple massages on the feet and body in the waxing room. She stated they did not do full body massages. They did the hands and feet and the back (done while the customer was seated on the chair). They do not have an appointment book. They had 10 back massages that were done the previous day. They had a massage price list which she stated was at home. They charged $30 for a back massage for 15 minutes and $45 for one hour or a package.
Thi Thu Giang Ha aka Julie (Massage Therapist): She is working there for the last year and a half. She has always worked in beauty and while here she has always worked in nails. She is paid every Monday. The massage she did was massages on customers' hands and feet. Customers call her to book appointments. She worked 5 days per week. She worked from 9-5 on weekdays on Sunday from 10-4pm. The appointments were in the book. She did mainly nails and foot and hands (full arm) massage. She has done a Certificate in Nails two years ago.
It was further noted that the business did not have the equipment for regular massages to be conducted on the premises.
The delegate formed the view that the sponsor has not been compliant with reg 2.86 in relation to Ms Ha and Thanh Ha Vu, as they were both nominated as Massage Therapists but were not working in that occupation.
On 21 November 2018, the Department received a written response from the applicant in response to the notice. In her response, the applicant acknowledged that Departmental officers had interviewed Ms Tran and Ms Ha during a visit to the salon. She stated that she has since obtained statements from each of them explaining the events of the visit. The applicant noted that Thanh Ha Vu, who was also sponsored as a massage therapist, was not working during the visit because it was her day off.
The applicant stated that Ms Tran is the business’ Salon Manager and has majority control over the operations of the salon, including making decisions independently. She set out the responsibilities and tasks undertaken by Ms Tran in the position. The Tribunal notes that there was no issue taken with Ms Tran’s role or the tasks undertaken by her. Of relevance, however, is the evidence given by Ms Tran during the interview about the types of massage services offered by the business.
In relation to Ms Ha, the applicant stated that Ms Ha does work as a massage therapist for the business. She set out the responsibilities of Ms Ha in the position, which included interviewing customers regarding their aches and pains, providing massage services using various techniques, advising customers about the types of stretches and exercises they can practice to encourage healing and pain relief.
In her response, the applicant acknowledged that Ms Ha had been performing duties that exceeded the scope of her employment contract. She stated that she was assured by Ms Ha that Ms Ha had only undertaken nail work during her free time. She stated that she has informed Ms Ha that she must strictly perform the duties that are listed on her employment contract. She stated that she understood from Ms Ha that she has an interest in doing nails, but she has informed Ms Ha that she must comply with her 457 obligations and that Ms Ha is fully aware of that. The applicant stated that she employed two massage therapists (Ms Ha and Ms Vu) who had worked for the business as massage therapists.
In addressing the officers’ observation about the lack of massage equipment at the salon, the applicant stated that they stored the massage equipment in the warehouse as the waxing/massage rooms are small and they wanted to minimise clutter so that customers feel comfortable. She stated that she had instructed staff to put away equipment unless required. She stated that this was her mistake and that this created confusion and misunderstanding with the staff and Immigration officers. The applicant noted that the salon has since been reorganised and the massage equipment has been set up. She provided photographs showing the massage rooms which included a massage bed.
In her statement to the Department, Ms Ha indicated that she was nervous when speaking to the officers and may not have expressed herself accurately. She stated that her main responsibility at the salon is to provide massages, but that she sometimes worked on nails if the salon was very busy and there was not enough staff to attend to customers. Ms Ha described the tasks she undertook, which included massaging customer’s arms and legs whilst they were waiting for their manicure and pedicure.
In her written statement to the Tribunal, Ms Ha further explained that she primarily worked as a massage therapist for the sponsor and that when she told the officers at the interview that she does nails what she meant was that she provided massage services to customers whilst they were getting manicures and pedicures, including arms, legs, back and shoulders. She stated that sometimes she assisted with removing old nail polish before performing these massages. She stated that if a customer required a longer massage then they would make a separate booking and there would be additional charges. She also stated that they do not do full body massages in the sense that they do not massage the chest, abdomen or other sensitive areas of the body.
In her written statement to the Tribunal, the applicant stated that Ms Ha assisted the nail technicians by massaging customers’ arms, hands and lower legs, during which she took the chance to promote the salon’s massage services and her skills as a massage therapist. She stated that Ms Ha assisted nail technicians by removing foil from customers’ fingers and toes, and removing old nail polish, so she can massage the customers’ hands hand feet. She stated that Ms Ha does not get involved in other steps of the manicures and pedicures. The applicant stated that they work in a competitive industry and customer service is very important and that Ms Ha’s assistance with a step of the nail process means that customers do not have to wait for a nail technician to remove old polish before Ms Ha can complete the massage.
In relation to the massage beds, the applicant stated that on the day the Departmental officers visited there was some rearrangement of the massage beds, the light massage bed and massaging equipment was in the storeroom and the electric massage bed was in repair.
In relation to the appointment book and pricelist for massages, the applicant stated that she kept these at home with her as she normally takes them at the end of each day to check the business’ performance and returns them to the salon the following day, but she had not done this on the day the officers visited the salon because she was at the hospital and did not attend the salon that day.
At the hearing, the applicant confirmed that she has been approved as a standard business sponsor since November 2012. The Tribunal discussed with the applicant the requirement for sponsors to comply with their sponsorship obligations, which would have been referred to in the documents for approval as a standard business sponsor. The Tribunal then discussed with the applicant the obligation in reg 2.86(2) and the evidence before it which suggests that Ms Ha had been undertaking tasks that were not consistent with the occupation in which she had been nominated.
In response, the applicant gave evidence that Ms Ha was employed as a massage therapist and normally provided massage services to customers. She stated that the salon has four rooms, two for massages and two for other beauty services. She currently employs two massage therapists and usually they have at least one massage therapist working. The applicant stated that on the day the officers came the massage room was being used for waxing and the massage bed was folded and put in the storeroom.
The Tribunal noted that when the officers visited the salon Ms Ha appeared to be working on nails and had told the officers that she works on nails and has a certificate in nails. In response, the applicant stated that when Ms Ha started working for her she helped with nails, but she was not very experienced. She stated that she had been looking to hire a massage therapist and Ms Ha told her that she has the skills and experience to perform massages. She stated that she was happy with Ms Ha’s massaging skills and decided to employ her as a massage therapist.
The applicant stated that Ms Ha is not a skilled nail technician and that she was just learning and could not do all the tasks performed by a nail technician. The applicant stated that Ms Ha just assisted with a few steps, such as removing nail polish so that she can perform massages on the clients’ hands and feet.
The Tribunal explained to the applicant that Ms Ha was only approved to work as a massage therapist and that in its view the work undertaken on nails, even if it was just to assist nail technicians by removing nail polish, is not consistent with the occupation in which she was approved. In response, the applicant stated that she was not aware and did not know that Ms Ha was not allowed to do nails. The applicant reiterated that Ms Ha only helped with nails when she was free and when the salon was busy. She stated that Ms Ha was just trying to help so that the customers did not have to wait for a long time to be served.
The Tribunal acknowledged that customer service was important in a small business but noted that the applicant was nevertheless under an obligation to ensure that Ms Ha only worked as a massage therapist, being the approved occupation, and was not being used to fill a shortage in nail technicians, which was not an occupation on the 457 occupations list. In response, the applicant stated that she did not know, her previous migration agent did not inform her, and she did not think it was a problem as the staff wanted to make the customers happy. The applicant was apologetic and stated that she realises now that it was her mistake and she is very sorry that she had not directed her staff not to assist with nail work.
When asked if the business had a HICAPS (Health Industry Claims and Payments Service) facility for massage services offered by the salon, the applicant indicated that they did. When asked if Ms Ha and Ms Vu had their own provider numbers, as required by most health funds, to provide, and claim for, massage services via the HICAPS facility, the applicant confirmed that they did and she undertook to provide evidence of the details after the hearing.
In her evidence to the Tribunal, Ms Ha stated that she worked in the applicant’s business as a massage therapist, including massaging customers’ hands and feet while they were getting their nails done. She also indicated that she provided, on average, six to seven full massages to customers each day. In relation to the concerns raised in the notice about her performing nail technician work, Ms Ha indicated that she was just assisting by removing the customers’ nail polish, which can take a long time, so she could perform an arm massage.
After the hearing, the Tribunal received information indicating that HICAPS approval and new merchant applications were made by T&M Nail and Beauty, and in respect of Ms Ha and Ms Vu as approved providers, in June and July 2019. The applicant’s representative advised that there were no HICAPS records for any period prior to September 2018.

In considering the evidence before it, the Tribunal notes that it is somewhat difficult to ascertain the time spent by the 457 visa holders, specifically Ms Ha, in performing tasks that were associated with the occupation of Massage Therapist as opposed to those normally performed by a nail technician. The applicant and Ms Ha claimed that Ms Ha had been working as a massage therapist and downplayed the amount of time Ms Ha spent working on nails.
However, it is not necessary for the Tribunal to determine the proportion of time spent by the applicant performing tasks that were relevant to the nominated occupation compared with those that were not. The issue in this case is whether the applicant, as the approved sponsor in this case, had ensured that the sponsored persons, specifically Ms Ha, worked in the approved nominated occupation of Massage Therapist and that she did not work in any other occupation.
The evidence before the Tribunal indicates that Ms Ha, during her employment as the holder of a 457 visa, had undertaken tasks that are normally performed by a nail technician. Whether Ms Ha had only assisted with nails when she had spare time, or when the salon was too busy and customers were waiting, or if she was assisting with only one step of the manicure/pedicure process, the Tribunal considers that this was still in breach of the obligation to ensure that Ms Ha did not perform tasks that were not consistent with the nominated occupation. The Tribunal considers that assisting nail technicians with the removal of old nail polish, which the applicant has admitted was a task being performed by Ms Ha, is not consistent with the types of tasks associated with the occupation of massage therapist.
The Tribunal is satisfied on the evidence before it that Ms Ha, during the course of her employment as the holder of a Subclass 457 visa with the sponsor, undertook tasks that were not consistent with the occupation for which she was nominated and had been approved by the Minister.
The Tribunal acknowledges the applicant’s explanation that she was not aware of the sponsorship obligations and that her former agent had not explained this to her, however, the Tribunal considers that it was the applicant’s responsibility, as a long time user of the temporary work program, to ensure that she understood the terms of the sponsorship agreement and that she complied with the obligations.
Having carefully considered all the evidence before it, the Tribunal finds that the applicant has not complied with the obligation in reg 2.86(2) to ensure that the sponsored person does not work in an occupation other than that which has been approved.
Accordingly, the Tribunal is satisfied that the prescribed circumstance in reg 2.89 exists for the purpose of s 140M of the Act.
Criteria no longer met: reg 2.91
The Minister may take one or more of the actions in s 140M if the sponsor no longer satisfies the prescribed criteria for approval of the sponsorship or for variation of the terms of the sponsorship: reg 2.91(2).
As set out in the notice, the delegate considered that the applicant no longer met the requirement for approval as a standard business because information before the Department, which was obtained from open sources, indicated that the business’ ABN had been cancelled since 1 July 2017.
It was indicated in the notice that the Department was not informed of this change and that the information only came to the attention of the Department after an unannounced site visit was conducted by officers on 19 September 2018. It was also noted that during the site visit an illegal worker was found working at the business’ premises and that the business card indicated they operated as USA Nail Design & Beauty.
The notice further indicated that, following the site visit, the Department found that the business has not been registered since 1 July 2017 and that further checks conducted had revealed that T&M Nail & Beauty Supplies Pty Ltd operates under the business name USA Nail Design and Beauty.
In her response to the Department, the applicant stated that she was a sole trader operating as Vu Thanh Huyen, trading as USA Nails Design & Beauty. She stated that she now operates the business under T&M Nail and Beauty Supplies Pty Ltd, trading as USA Nails Design & Beauty and that she holds 100% of the shares in that company.
The applicant stated that after the interview, when she was made aware that Vu Thanh Huyen is no longer registered as a sole trader and was not eligible to sponsor the Subclass 457 visa holders, she submitted a 482 sponsorship application for T&M Nail and Beauty Supplies Pty Ltd.
In relation to the illegal worker, the applicant acknowledged that Immigration officers found an illegal worker, Chen Yu-Hsin, who was working at the salon during the visit. The applicant stated that Chen Yu-Hsin worked with them one day a week in the preceding six months and that she was on a working holiday visa which expired a month prior. The applicant stated that she was not aware that Chen Yu-Hsin’s visa had expired and that she has since terminated her employment. The applicant stated that they have conducted VEVO Checks on all the staff and she can confirm that all staff are either Australians or hold valid visas. The applicant gave an undertaking to ensure that VEVO checks are done on all potential new employees so as to prevent this error from reoccurring.
In her written submissions to the Tribunal, the applicant stated that her accountant advised her to change the business structure for better tax and legal requirements. She stated that he did not inform her of the effect it would have on her sponsorship and she believed that ASIC, ATO and Immigration are all government offices which work and link together. She stated that her previous migration agent did not advise her about changing the business structure and how that would affect the sponsorship. She stated that she is still running the same business as before and that only the business structure had changed.
At the hearing the Tribunal explained to the applicant the significance of the change in business structure. The Tribunal explained to the applicant that the sponsorship was approved for the sole trader business, Thanh Huyen Vu trading as USA Nails Design and Beauty under ABN 15 423 635 875. The Tribunal acknowledged that the applicant is the 100% shareholder of the company T&M Nail and Beauty Supplies Pty Ltd which now operates the business, but noted that the company is a separate legal entity and that the change in business structure meant that the 457 visa holders were no longer employed by the entity that had sponsored them.
The Tribunal further noted that the registration of the business under the company structure (T&M Nail and Beauty Supplies Pty Ltd) also meant that the approved sponsor, being the sole trader business trading under ABN 15 423 635 875, has not been operating a business since July 2017 and no longer met the requirements for approval as a standard business sponsor.
In response, the applicant stated that she started a small business to support herself and her family. She stated that her accountant advised her to operate the business as a company and she did not understand the difference.
The Tribunal noted that she would have had to register the company with ASIC, would have had to obtain a different ABN, would have had to update their paperwork, including lodgement of activity statements under the new entity and would have issued PAYG statements to staff noting the company as the employer. The applicant confirmed that this was the case but explained that it was her accountant that took care of these things. The Tribunal expressed some surprise that the applicant would not have sought advice from a migration agent about the consequence the change of business structure would have on the sponsorship agreement, to which the applicant responded stating that she had called the migration agent who advised her that it was not a problem at all if the business changed its structure. The applicant stated that she did not actually realise that she had to notify anyone and did not pursue it with the migration agent. The applicant also stated that she thought the Immigration office was connected to other Departments, in the same way that the ATO and Centrelink are linked, and that they would be aware of the changes.
The Tribunal explained to the applicant that as a business owner and operator, the onus was on her to ensure that she complied with all her legal obligations, not just in relation to registration and tax matters, but also employment and immigration matters. The Tribunal noted that the contracts of employment for the 457 visa holders that she had provided to the Department in response to the request for information in October 2018 were the contracts of employment with the sole trader entity which had ceased to operate a business since July 2017. In response, the applicant stated that she now understands; she thought things were simple and did not realise that she had to inform Immigration. The applicant appeared apologetic and stated that she was very sorry for what occurred and that it was her fault that she did not know these things.
The Tribunal has had regard to the applicant’s explanations and sincere regret in its consideration of the factors under reg 2.91(3) when considering what action, if any, to take in this case. However, for the purposes of reg 2.91(1) the Tribunal is satisfied on the evidence before it that from July 2017 the applicant no longer met the criteria for approval as a standard business sponsor in reg 2.59(c) because the applicant Thanh Huyen Vu (ABN 15 423 635 875) has not been lawfully operating a business, whether in or outside Australia.
Accordingly, the Tribunal is satisfied that the prescribed circumstance in reg 2.91 exists for the purpose of s 140M of the Act.
In relation to the employment of an illegal worker, the Tribunal did not consider this to be relevant in this case because at the time of site visit the business for which the illegal person was working was not being operated by the applicant. At the time of the site visit, the business was being operated by the company T&M Nail and Beauty Supplies Pty Ltd. Accordingly, any breaches relating to the employment of illegal workers would have been those of the company and not the applicant in this case.
Action to be taken
For the above reasons, the Tribunal is satisfied that a relevant circumstance for s 140L(1)(a) exists. Accordingly, it is necessary to consider whether one or more of the actions mentioned in s 140M should be taken.
In considering what action to take, the Tribunal has had regard to the prescribed criteria, as extracted in the attachment to this decision.
The past and present conduct of the person in relation to Immigration
Information before the Tribunal indicates that the applicant was co-operative during the monitoring process and provided information/documents to the Department as requested.
The number of occasions on which the person has failed to satisfy the sponsorship obligation
The Tribunal considers that the applicant has failed to satisfy the sponsorship obligations in reg 2.86(2) in relation to at least one visa holder on one occasion.
The nature and severity of the circumstances relating to the failure to satisfy the sponsorship obligation, including the period of time over which the failure has occurred
The Tribunal considers that the sponsor has failed to ensure that the visa holder does not perform tasks that were not consistent with the occupation for which she was approved. The Tribunal acknowledges the applicant’s explanation that Ms Ha only undertook minor tasks relating to nails when the salon was busy, that they wanted to provide good customer service and that she was not aware that Ms Ha was undertaking those tasks. However, the Tribunal considers that the applicant had an obligation to ensure that she was aware of the obligation in reg 2.86(2) and that it had been complied with by the sponsored employee. The Tribunal considers that the failure occurred since the visa holder was employed as a massage therapist and up to the time of the site visit.
The period of time over which the person has been an approved sponsor
The applicant has been approved as a sponsor since November 2012 for successive periods, with the most recent being in November 2016.
Whether, and the extent to which, the failure to satisfy the sponsorship obligation has had a direct or indirect impact on another person
The Tribunal considers that the applicant’s failure to ensure that the visa holder works only in the approved occupation has had a direct impact on the visa holder. In performing tasks that are not consistent with the approved nominated occupation, the visa holder would have been in breach of condition 8107. At the hearing, the applicant informed the Tribunal that Ms Ha’s 457 visa has already been cancelled. This is unfortunate for Ms Ha, as this failure is also likely to impact her ability to apply for a permanent residence visa under the employer nomination pathway. The applicant expressed her remorse over the failure and the adverse consequences it has had on the sponsored employees.
Whether, and the extent to which, the failure to satisfy the sponsorship obligation was intentional, reckless or inadvertent
In the written submission to the Department, it was stated that the applicant did not intentionally breach immigration laws and that staff answered the questions during the interview to the best of their ability and that any failure to satisfy a sponsorship obligation was an honest mistake.
At the hearing, the applicant indicated that she did not know that Ms Ha could not do any work on nails. She stated that she was trying to keep things simple and was trying to operate the business and expand it by providing massage services to clients.
The Tribunal accepts that the applicant’s failure was not intentional in that she has not deliberately used the temporary work program to sponsor the nominee to fill a shortage in nail technicians for her business. The Tribunal accepts that the applicant genuinely wanted to expand her beauty business by providing massage services, however, it also appears to be the case that Ms Ha had performed tasks that would normally be undertaken by nail technicians.
The Tribunal considers that the applicant’s failure to ensure that the visa holder worked only as a massage therapist and did not perform tasks in another occupations, including tasks normally performed by a nail technician, was reckless. The Tribunal acknowledges the applicant’s explanation that she did not know, however, as a long-term user of the employment sponsorship program, the applicant should have ensured that she was informed of the obligations under the sponsorship agreement, that they were communicated to her sponsored staff and that they were complied with.
Whether, and the extent to which, the person has cooperated with Immigration, including whether the person informed Immigration of the failure
The delegate noted that the applicant has been co-operative with the Department during the monitoring process, though noted that the failures only came to the attention of the Department during the monitoring process.
In her written response to the Department, the applicant stated that she accepts responsibility for failing to ensure that Ms Ha works in her nominated occupation as a massage therapist. She stated that Ms Ha did nails during her free time as she had an interest and held a Certificate in Nails. The applicant stated that Ms Ha never neglected her duties as a massage therapist, but she also performed nail work, beyond the duties as stated in her employment contract. The applicant stated that the lack of massage equipment at the shop may have led to a misunderstanding that they did not provide massage services, however, the equipment was in storage and is now on display.
At the hearing, the applicant expressed her remorse and takes full responsibility for the failure. The Tribunal accepts that the applicant did not appreciate the seriousness of permitting Ms Ha to undertake tasks relevant to the provision of nail services in circumstances where Ms Ha was sponsored for the purpose of filling a position in the occupation of massage therapist. The Tribunal considers that had it not been for the Departmental officers’ unannounced site visit, it is likely that Ms Ha would have continued to perform tasks, albeit limited, which are normally performed by nail technicians.
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
In the written response to the Notice, the applicant stated that in addressing the failure, she recognises the need to ensure that the failure will not happen again and that she has since received assurances from her staff that the 457 visa holders will strictly perform the duties noted on their employment contract.
The applicant stated that she has also re-organised the massage rooms and equipment and has displayed the massage equipment in the room, including massage oils, towels and lotions so that they are readily available. The applicant provided photographs of the massage rooms at the salon. Further photographs of these rooms were also provided to the Tribunal.
The Tribunal acknowledges that the applicant has made a genuine effort to rectify the failure to comply with the sponsorship obligation.
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
The Tribunal considers that the applicant has also failed to comply with their obligation in reg 2.84 to notify Immigration when certain events occur. The relevant events which the applicant was under an obligation to notify Immigration of included the change in business structure, being the applicant ceasing to operate the business as a sole trader and the company (T&M Nail and Beauty Supplies Pty Ltd) becoming the entity that operated the business in which the 457 visa holders were nominated to work.
When discussing this further failure with the applicant at the hearing, the applicant stated that she did not know and thought the Department would be aware of this change when the accountant registered the company. As explained to the applicant at the hearing, her understanding that federal government departments are connected and readily exchange information about such matters is misguided and this failure could have been overcome had she appreciated the importance of familiarising herself with her sponsorship obligations, including seeking advice from a qualified professional, and ensuring that the obligations are complied with.
Any other relevant factors
When asked at the hearing whether there was anything else she wished the Tribunal to consider, the applicant stated that she wished she knew, she regrets what occurred and feels bad for putting her staff, who are not at fault, through difficulties and that she is trying her best to fix the situation.
The Tribunal acknowledges the applicant’s remorse and her wish to rectify the breaches which were the result of her failure to appreciate the significance of the obligations placed on her as an approved sponsor.
Application or variation criteria no longer met
The Tribunal has found, as detailed above, that the applicant has ceased to satisfy the criteria for approval as a standard business sponsor. In determining what action, if any, to take in relation to this circumstance, the Tribunal has had regard to the factors prescribed in reg 2.91(3) as follows.
The nature of the applicable sponsorship criteria that the sponsor no longer meets
The sponsorship criteria that the applicant no longer meets is that in reg 2.59(c), which requires the applicant to be lawfully operating a business either in or outside Australia. As noted above, the applicant has ceased to satisfy this criterion for approval since 1 July 2017 when they ceased to be registered as a sole trader.
Whether, and the extent to which, the failure to continue to satisfy the criteria for approval as a sponsor has had a direct or indirect impact on another person

The applicant’s failure to continue to lawfully operate a business may have a significant and direct impact on the sponsored employees in that they may not be able to qualify for the permanent employer sponsored visa which usually requires them to be employed in the position for which they have been nominated by their approved sponsor for a period of at least two years immediately before the visa application was made.
When the above was discussed with the applicant at the hearing, she acknowledged the impact that the failure would have on the 457 visa holders; she stated that she takes responsibility for the failure but hopes that it would not affect the sponsored workers’ applications for permanent residence.
The reason why the sponsor no longer satisfies the applicable sponsorship criteria, including whether the failure to satisfy the criteria is within the sponsor's control
The applicant has explained that she was not aware that she no longer satisfied the sponsorship criteria and thought that any change in the business’ structure would be known to Immigration as her accountant had registered the company and the ATO was aware that the business was registered under the company.
While the Tribunal acknowledges the applicant’s explanation, it nevertheless considers that it was well within her control to inform herself, or at least to seek advice, about the impact that a change in business structure would have on her sponsorship approval and the sponsored workers, and to take the necessary action, such as seeking sponsorship approval for T&M Nail and Beauty Supplies Pty Ltd and transferring the employment of the sponsored employees to that entity, so as to avoid or minimise any adverse impact on them. The Tribunal acknowledges that T&M Nail and Beauty Supplies Pty Ltd did eventually apply for approval as a standard business sponsor, however, this does not appear to have occurred until after monitoring had commenced in September 2018.
The steps (if any) the sponsor has taken to ensure that it will satisfy the applicable criteria in the future
The Tribunal notes that the applicant has ceased to operate a business since July 2017; this is not something that can be rectified given the effluxion of time since the applicant has ceased to operate the business as a sole trader.
Any other relevant factors
In the response to the Notice, the applicant submitted that the sponsored employees have contributed to the company though their hard work and dedication. She stated that she hoped that the decision taken would not adversely affect the sponsored workers’ current visas and that she be allowed to nominate them for permanent visas so they can continue to work for the company indefinitely. The applicant stated that the company is prepared to accept not being permitted to sponsor any more temporary workers for a period to show that it has rectified all its processes and will be faultless in its compliance.
At the hearing, the applicant reiterated her submission that the 457 visa holders should not be disadvantaged by her mistake and that they be granted the permanent employer nomination visas. The Tribunal acknowledged the applicant’s concern but explained to her that it was not assessing the nomination or any related visa applications, but was reviewing the Department’s decision to cancel and bar the applicant, being the sole trader entity, which has ceased operating the business since 2017. The Tribunal observed that it was unlikely that the sole trader entity could sponsor anyone in future given it is not actively and lawfully operating a business in Australia, being one of the requirements for approval of an employer nomination. The Tribunal further noted that while the company (T&M Nail and Beauty Supplies Pty Ltd) may be able to nominate the visa holders, if it is found that adverse information exists because of the decision made on the present review, the decision maker may still be able to consider reasons to disregard the adverse information as this usually exists as an alternative consideration in circumstances where adverse information about a nominator is found to exist.
The Tribunal has also had regard to the evidence given by Ms Tran and Ms Ha at the hearing. Ms Tran gave evidence that she has been working at the business for the last five years and that the applicant has put a lot of effort into developing the company and supporting the employees in the business. Ms Tran spoke glowingly about her employer and the efforts she has made, including during Covid-19, to support the business’ employees and maintain their employment.
Action to take
Having carefully considered all the circumstances as discussed above, the Tribunal considers that a sanction is warranted in this case. The delegate in this case decided to cancel the applicant’s approval as a standard business sponsor and impose a 12-month bar on the applicant from making applications for approval as a standard business sponsor and temporary activities sponsor. The Tribunal is satisfied that this action is commensurate with the nature of the breaches in this case.
As provided for in s 140M of the Act, the Tribunal affirms the decision to cancel the applicant’s approval as a standard business sponsor. The Tribunal also affirms the decision to bar the applicant for a period of 12 months effective from the date of the delegate’s decision.
DECISION
The Tribunal affirms the decision under review.
R. Skaros
Senior Member

ATTACHMENT – Extract from the Migration Regulations 1994
2.89   Failure to satisfy sponsorship obligation
…
(3) For paragraph 140L(1)(b) of the Act, the criteria that the Minister must take into account in determining what action (if any) to take under section 140M of the Act in relation to the circumstance mentioned in subregulation (2) are:
(a)    the past and present conduct of the person in relation to Immigration; and
(b)    the number of occasions on which the person has failed to satisfy the sponsorship obligation; and
(c)     the nature and severity of the circumstances relating to the failure to satisfy the sponsorship obligation, including the period of time over which the failure has occurred; and
(d)    the period of time over which the person has been an approved sponsor; and
(e)     whether, and the extent to which, the failure to satisfy the sponsorship obligation has had a direct or indirect impact on another person; and
(f)     whether, and the extent to which, the failure to satisfy the sponsorship obligation was intentional, reckless or inadvertent; and
(g)     whether, and the extent to which, the person has cooperated with Immigration, including whether the person informed Immigration of the failure; and
(h)    the steps (if any) the person has taken to rectify the failure to satisfy the sponsorship obligation, including whether the steps were taken at the request of Immigration or otherwise; and
(i)    the processes (if any) the person has implemented to ensure future compliance with the sponsorship obligation; and
(j)     the number of other sponsorship obligations that the person has failed to satisfy, and the number of occasions on which the person has failed to satisfy other sponsorship obligations; and
(k)    any other relevant factors.
…
2.91   Application or variation criteria no longer met
…
(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 nature of the applicable sponsorship criteria that the person no longer meets; and
(b)    whether, and the extent to which, the failure to continue to satisfy the criteria for approval as a work sponsor or family sponsor, or to continue to satisfy the criteria for approval of a variation, has had a direct or indirect impact on another person; and
(c)     the reason why the person no longer satisfies the applicable sponsorship criteria, including whether the failure to satisfy the criteria is within the person’s control; and
(d)    the steps (if any) the person has taken to ensure that the person will satisfy the applicable criteria in the future; and
(e)     any other relevant factors.
…

[2021] AATA 2869

9 July 2021

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