Therapy In The Home Pty Ltd (Migration)

Therapy In The Home Pty Ltd (Migration) [2021] AATA 1242 (2 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Therapy In The Home Pty Ltd
CASE NUMBER:  1835382
HOME AFFAIRS REFERENCE(S):          OPF2017/10616
MEMBER:R. Skaros
DATE:2 March 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision under review.

Statement made on 2 March 2021 at 2:06pm
CATCHWORDS
MIGRATION – cancellation – sponsorship approval – hearing invitation – non-appearance before the Tribunal – compliance with sponsorship obligations – equivalent terms and conditions of employment – providing records – pay slips of monitored sponsored persons – notify Immigration of certain events – change of address – unannounced site visit – action to be taken – nature and severity of the breach – direct impact on the Department – 2-year bar on sponsoring – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 140L, 140M, 362B, 379A
Migration Regulations 1994 (Cth), rr 2.79, 2.83, 2.84, 2.89
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 initially approved as standard business sponsor on 8 April 2013 for a period of 3 years. A further period of approval was granted on 12 July 2017 for 5 years.
On 12 November 2018, the delegate decided to bar the applicant for a period of 2 years from sponsoring more people under the under the terms of the approved standard business sponsorship.
The applicant provided a copy of the delegate’s decision record with the application for review.
On 3 February 2021 the Tribunal wrote to the applicant’s director, Mr Vinh Kang Nguyen, and invited him to attend an in-person hearing to give evidence and present arguments on behalf of the applicant. The Tribunal noted that it had considered all the material before it but could not make a favourable decision on that information alone. The invitation also stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice.
The Tribunal sent the hearing invitation by email to the applicant’s nominated email address. On the same day, the Tribunal received notification that the email had failed to deliver as the email account does not exist. An officer of the Tribunal attempted to call the applicant’s director on the landline and mobile numbers provided, however, no one answered the calls. The Tribunal officer left a voice message requesting a call back. The Tribunal attempted again on the same day to send the hearing invitation by email, however, it failed to deliver.
On 4 February 2020, further attempts were made by the Tribunal officer to contact the applicant’s director on the mobile number provided, however, the call went through to voice mail. On instruction from the member, the officer sent a courtesy copy of its hearing invitation letter dated 3 February 2020 to the postal address provided in the review application form.
The Tribunal also notes that two automated SMS hearing reminders were successfully sent on 11 and 17 February 2020 to the mobile number provided in connection with the review.
No response to the hearing invitation was received and the review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.379A(5). The Tribunal acknowledges that the invitations did not successfully deliver by email as the email account no longer exists, however, the Tribunal also sent a courtesy copy to the applicant’s postal address and attempted on numerous occasions over two days to make contact with the applicant’s director. The Tribunal further notes that two separate SMS reminders were sent to the review applicant about the hearing. The Tribunal did not receive any notification which suggests the SMS reminders had not been successfully delivered.
Given the substantial efforts made to contact the applicant in this case, including sending a courtesy copy of the hearing invitation to the postal address, attempts to call the applicant on the numbers provided and the successful sending of SMS reminders of the scheduled hearing, the Tribunal is satisfied that it is appropriate to proceed with a decision in this matter. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
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 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.
Does a circumstance for the taking of an action exist?
In the present case, the delegate found that the applicant had failed to satisfy the following sponsorship obligations:
Regulation 2.79 Obligation to ensure equivalent terms and conditions of employment
Regulation 2.83 Obligation to provide records and information to the Minister
Regulation 2.84 Obligation to provide information to Immigration when certain events occur
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).
The applicant was most recently approved as a standard business sponsor on 12 July 2017 for a period of 5 years. Prior to that, the applicant had been approved for a period of 3 years. During the periods of their approval as a sponsor, the applicant successfully nominated 9 people under the Subclass 457 program.
On 23 August 2017, the Department commenced monitoring the applicant to ascertain compliance with sponsorship obligations. On 30 August 2017, the Department wrote to the applicant’s directors, Vinh Khang Nguyen and Thi Thank Huong Dinh, requesting records and information.
In response, the applicant provided some of the requested information and records. The Department was not satisfied that the information demonstrated that the applicant had complied with their sponsorship obligations and on 8 March 2018 the applicant was issued with a Notice of Intention to Take Action (the Notice).
In setting out the circumstances in relation to which action was being considered, the delegate identified the following sponsorship obligations which may not have been satisfied by the applicant.
In relation to the obligation to ensure equivalent terms and conditions of employment in r.2.79, it was noted that the sponsor had failed to provide market rates for the sponsored massage therapists and hair or beauty salon mangers. The sponsor had provided employment contracts for all the monitored sponsored persons but had only provided a link to market rates from payscale.com for web administrators and financial advisors. While it was acknowledged that the market salary rate information showed that the sponsor met r.2.79(2) in relation to their sponsored web administrator and financial advisor, the sponsor had not provided evidence as to how the wages for their 5 massage therapists and 2 hair or beauty salon managers had been determined.
It was indicated in the Notice that the sponsor had also failed to provide pay records (pay slips) for any of the monitored visa holders and that the Department was therefore unable to establish if the visa holders were paid their nominated salaries. It was noted that while the sponsor had provided a payroll report for the period from 1 August 2017 to 31 August 2017 with the name of all the employees and their gross and net wages, the records were for a period other than the requested monitoring period, being from 1 July 2016 to 30 June 2017.
In relation to the monitored sponsored persons, the following was noted:
·Thi Huyen Trang PHAM - Nominated occupation is Massage Therapist - Nominated salary is $54,500 gross p/a. The sponsor failed to provide pay slips or any other pay records.
·Ngoc My NGUYEN - Nominated occupation is Massage Therapist - Nominated salary is $54,500 gross p/a. The sponsor failed to provide pay slips or any other pay records.
·Thi Thuy BUI - Nominated occupation is Hair or Beauty Salon Manager - Nominated salary is $57,500 gross p/a. The sponsor failed to provide pay slips or any other pay records.
·Phi Phuong Dung NGUYEN - Nominated occupation is Hair or Beauty Salon Manager - Nominated salary is $57,500 gross p/a. The sponsor failed to provide pay slips or any other pay records.
·Long LE - Nominated occupation is Wed Administrator - Nominated salary is $60,000 gross p/a. The sponsor failed to provide pay slips or any other pay records.
In respect of the obligation to provide records and information to the Minister as required by r.2.83, it was indicated in the Notice that the sponsor failed to provide payslips for five visa holders.
In respect of the obligation to provide information to Immigration when certain events occur as required by r.2.84, the following information was set out in the Notice:
·The sponsor failed to provide change of address to the Australian Border Force (ABF) within the required timeframe.
·On 26 May 2016 an unannounced site visit for was conducted to the business’ registered address at Chester Hill NSW 2162 and it was ascertained that this was the sponsor's residential address. NSW Sponsor Monitoring Unit (SMU) Officers were advised by the sponsor on the telephone that the business was located in Bankstown.
·On 17 August 2017 at 12:25 pm, an unannounced site visit was conducted to the business’ nominated address at Bankstown 2200. During this site visit, it was established that the business is not operating from this address. Departmental Officers were advised that they moved in June 2017.
·In his reply to the commencement of monitoring letter the sponsor stated that their office is at an address in Leichhardt NSW 2040 and that all visa holders work from different salons located in Balgowlah, Frenches Forest and Merrylands.
It was noted that as the sponsor had failed to notify the Department of their change of address, officers were unable to conduct the site visit to the correct address to assess if the visa holders are working for the sponsor.
Response to the Notice
In their response to the Notice, the applicant’s director provided submissions and supporting documents which included contracts of employment for two Australian citizens whom the director claimed were employed by the applicant as a massage therapist and salon manager and whose salaries were equivalent to the sponsored persons. Information from Payscale.com regarding the average salary for massage therapists and salon managers were also provided.
The applicant also provided PAYG statements for all the monitored sponsored persons for the financial year ended 30 June 2017, extracts from the applicant’s business bank account statements for varying periods, payroll report for the month of August 2017 and payslips for the monitored sponsored persons from 28 April 2017 to 26 May 2017. Also provided was a letter from the accountant stating that some of the employees were underpaid by $1 and that this had been rectified.
The applicant’s director submitted that, on his understanding, he has notified the Department of the relevant changes as they would have been included in the nomination applications and he believed this would have been reconciled with information on the Department’s database. He stated that they asked an internal auditor to ensure future compliance with this obligation. The director also noted that they have had issues with their migration agent and that this resulted in the failure to submit documents and that the director has been undertaking a migration course to understand the requirements better.
Considerations
As noted above, the applicant’s director did not appear before the Tribunal to give evidence and present arguments on behalf of the applicant. In the circumstances, the Tribunal makes its decision by reference to the evidence on the Department’s file and as set out in the delegate’s decision record, a copy of which was provided to the Tribunal.
In relation to the obligation in r.2.79(2), the Tribunal notes that the applicant has provided to the Department employment contracts for equivalent Australian employees and Payscale.com information regarding average salaries for the approved occupations. The Tribunal is accordingly satisfied that the applicant has provided to the Department information regarding the market salary rates for the monitored sponsored persons, including those employed in the occupations of massage therapists and hair or beauty salon managers. On this basis, the Tribunal does not consider that the sponsorship obligation in r.2.79(2) has been breached.
Regulation 2.79(3)(a)(iii) requires a sponsor to ensure that the terms and condition of employment provided to the primary sponsored person are no less favourable than the terms and conditions of employment that the Minister was satisfied, under r.2.72(10)(c) of the Regulations, as in force before 18 March 2018, were no less favourable than the terms and conditions of employment that are provided, or would be provided, to an Australian citizen or an Australian permanent resident.
The Department approved the applicant’s nominations in relation to the 5 monitored sponsored persons. Details of the approved occupations and nominated salary for each of the sponsored persons are set out at paragraph 24 of this decision. The hours of work, as set out in the employment contracts, were 38 hours per week plus reasonable additional hours where required. The nominated sponsored persons were also entitled to superannuation, as provided for by the Superannuation Guarantee and were entitled to four weeks of paid annual leave and 10 days of personal/carer leave under the minimum National Employment Standards. These entitlements were also set out in the employment contracts that were provided to the Department by applicant in response to the request for information.
While the applicant provided a number of documents to the Department demonstrating that the nominated sponsored persons had been paid their nominated salary, such as PAYG statements and a payroll report, the Tribunal notes the following concerns with the documents. Firstly, the Tribunal notes that the payslips, which were for a period of only one month in 2017, and not the full 12 months requested by the Department, did not indicate how many hours the nominated persons had worked in each pay period, nor was there any record of any leave taken. Given the gaps in the evidence, the Tribunal is unable to be satisfied that the applicant has complied with their obligations in r.2.79(3).
The Tribunal has next considered the applicant’s compliance with the sponsorship obligation in r. 2.83.
Regulation 2.83 requires the applicant, who was an approved work sponsor, to provide certain records and information to the Minister when requested. The records or information must be provided within the period specified. The records or information that the Department can request relevantly include those that the applicant is required to keep under a law of the Commonwealth, or a State or Territory and records required to be kept under r. 2.82 of the Regulations.
Regulation 2.82 requires the applicant to keep specified records to demonstrate compliance with the sponsorship obligations, which includes ensuring equivalent terms and conditions or employment as required by r.2.79. Regulation 2.82(3A) specifies the types of records required to be kept by sponsors in respect of that obligation, which relevantly includes a record of any money paid to the primary sponsored person. The records must be maintained in a manner capable of being verified by an independent person.
Under the Fair Work Act 2009 and Fair Work Regulations 2009 employers are required to keep records for each employee which includes the hours of work.
In this case, the applicant failed to provide payslips for the five monitored sponsored persons for the requested 12 months period. Initially, the applicant did not provide any payslips for the sponsored persons despite being requested to provide these records on 30 August 2017. In response to the Notice, the applicant provided payslips, but they only covered a one-month period in 2017. Furthermore, the records provided did not indicate the hours worked by the sponsored persons in each pay period or leave entitlements. For these reasons, the Tribunal is unable to be satisfied that the applicant has kept records relating to the hours of work undertaken by each of the five monitored sponsored persons, being records that must have been kept by the applicant as required by their sponsorship obligations and under Commonwealth law.
For the above reasons, the Tribunal is not satisfied that the applicant has complied with the sponsorship obligations in r.2.83.
Regulation 2.84 requires the applicant, who is an approved sponsor, to notify the Department within a specified period, being within 28 days, of a change of address or contact details.
The evidence before the Tribunal indicates that Departmental officers attempted on two occasions in May 2016 and August 2017 to conduct site visits to ascertain whether the applicant was operating a business from the specified address but were not able to do so as on both occasions they were informed by the sponsor’s director, whom they contacted by phone, that the address had changed and that the sponsored persons were working at different locations.
The Tribunal has considered the director’s response that he was under the impression that the Department would have details of the sponsor’s most recent address as noted the nomination applications that had been lodged. The Tribunal notes however, as noted by the delegate, with which the Tribunal agrees, an address provided on a nomination form is in respect of where the occupation will be located and where a visa holder will be undertaking the employment. In any case, the Tribunal is not satisfied with the director’s explanation as the obligation in r.2.84 requires an approved sponsor to notify the Department of their change in address and contact details in a specified manner and within the specified period.

The applicant did not provide the required information about their change of address to the Department within the specified period. The Tribunal accordingly finds that the applicant has failed to satisfy the sponsorship obligation in r.2.84.
Given the above, the Tribunal is satisfied that the prescribed circumstance in reg 2.89 exists for the purpose of s 140M of the Act.
Action to be taken
For these 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
While the applicant’s director failed to provide all the information requested by the Department within the period specified, the Tribunal nevertheless acknowledges that the director did eventually provide much of the information requested. It was also noted in the decision record that the sponsor was co-operative with the Department throughout the monitoring period.
The number of occasions on which the person has failed to satisfy the sponsorship obligation
The Tribunal has found that the applicant has failed to satisfy the sponsorship obligations in r.2.79(3), r.2.83 and r.2.84. There applicant has not satisfied each of these obligations 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
In relation to the applicant’s failure to provide records, this relates to the applicant’s failure to provide information that was requested by the Department, and required to be kept by the applicant, regarding the hours of work undertaken by each of the monitored sponsored persons in the relevant 12 months period. The failure of the applicant to provide the requested records (such as payslips) meant that the Department’s monitoring unit was unable to ascertain whether or not the sponsored persons had been properly remunerated for the number of hours they had worked in each pay period. The Tribunal considers this failure to be serious. This failure also impacted the applicant’s ability to satisfactorily demonstrate that they had complied with their obligation to ensure equivalent terms and conditions of employment.
The Tribunal also considers the applicant’s failure to properly notify the Department of their change of address, which occurred on two occasions, to be serious as it impeded the Department form being able to conduct integrity checks, such as site visits, concerning the operations of the applicant’s business and employment of the sponsored persons.
The period of time over which the person has been an approved sponsor
The applicant was most recently approved as a standard business sponsor on 12 July 2016. This approval was for a period of 5 years and is valid until 12 July 2021. Prior to the current agreement the applicant was approved as a sponsor for a period of 3 years: from 8 April 2013 to 8 April 2016. Information on the decision record indicates that the applicant has had 12 nominations approved by the Department under these agreements.
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 provide the requested documents in respect of the sponsored persons has had a direct impact on the Department’s ability to assess whether the nominated persons were in receipt of equivalent terms and conditions for the duration of their employment with the sponsor as holders of Subclass 457 visas.
The applicant’s failure to notify the Department when certain events occur, including their change of address, also directly impacted the Department’s ability conduct a site visit. On two occasions departmental officers attempted to conduct a site visit of the applicant’s business location but were informed that the business address had changed and that the sponsored persons were working in different locations. This impeded the Department from being able to conduct integrity checks on the applicant’s business activities and employment the sponsored persons.
The failure to satisfy the sponsorship obligations may have also had an indirect impact on the nominated persons, however, there is limited evidence before the Tribunal regarding the impact, if any, the failures may have had on them.
Whether, and the extent to which, the failure to satisfy the sponsorship obligation was intentional, reckless or inadvertent
The Tribunal considers that the sponsor’s failure to satisfy the sponsorship obligations, as found above, was reckless. The applicant was approved as a standard business sponsor on two occasions and had 12 nominations approved. The Tribunal considers that the onus was on the applicant’s directors, who were regular users of the temporary work program, to inform themselves of the sponsorship obligations and to ensure 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
While the applicant has generally been co-operative with the Department in that they responded to the Notice, the Tribunal also notes that the applicant failed to provide the requested information in full and furthermore, they did not inform the Department of the failures, which were only identified during the monitoring process.
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 their response to the Notice, the director informed the Department that they have engaged an internal auditor to ensure they advise the Department of anychanges and keep up to date with all Immigration events so that the failures do reoccur.
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
Other than the sponsorship obligations in r.2.79(3), r.2.83 and r.2.84, the Tribunal is not aware of any other sponsorship obligations that have been breached.
Any other relevant factors
There is limited information before the Tribunal regarding any other factors relevant to the Tribunal consideration.
Conclusion
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 imposed a 2-year bar on the applicant from sponsoring any more people under the terms of their current sponsorship agreement. The Tribunal is satisfied that this action is commensurate with the nature of the breaches in this case. The Tribunal considers that the 2-year bar should commence from the date of the delegate’s decision, meaning that the period of the bar has now ended.
For the above reasons, the Tribunal is satisfied that the action mentioned in s 140M(1) to bar the applicant until 12 November 2020 from sponsoring more people under the terms of the approved standard sponsorship agreement should be taken. Accordingly, the Tribunal will affirm the decision under review.
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.
…

[2021] AATA 1242

2 March 2021

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

Jurisdiction

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