USA Nails (Migration)

USA Nails (Migration) [2021] AATA 351 (8 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  USA Nails
CASE NUMBER:  1831236
HOME AFFAIRS REFERENCE(S):          OPF2018/545
MEMBER:Andrew George
DATE:8 February 2021
PLACE OF DECISION:  Darwin
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.

Statement made on 08 February 2021 at 3:50pm
CATCHWORDS
MIGRATION – standard business sponsor barred from applying for sponsorship approval for 18 months – failure to satisfy sponsorship obligations – allowed sponsored workers to work outside nominated positions – job tasks – workers’ anxiety and language barrier when interviewed by Border Force investigators – sponsorship bar expired – applicant does not wish to sponsor anyone in the future – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 140L(1)(a), 140M(2)
Migration Regulation 1994 (Cth), r 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 an approved Standard Business Sponsor from 14 April 2015 to 14 April 2018. On 5 October 2018, the delegate decided to bar the applicant for 18 months from making applications for approval as a Standard Business Sponsor and Temporary Activities Sponsor under s 140M(2). The delegate did so on the basis that the applicant had failed to satisfy its sponsorship obligations under r 2.89 of the Migration Regulations 1994 (the Regulations).
Mr Trong Bai Nguyen appeared for the applicant before the Tribunal on 27 January 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
In late compliance with the practice directions, the applicant provided an outline of evidence pursuant to paragraph [6.8]. The applicant did not rely upon any documents, pursuant to paragraph [6.12].
The applicant was represented by Mr Liu of Visa Specialists & Consultants Pty Ltd.
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.
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 considered 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 made numerous adverse findings against the applicant. These largely flowed from the following finding:[1]
The circumstances relating to the failures arose from the sponsor allowing its two sponsored Hair or Beauty Salon Managers to perform a considerable amount of duties more in line with that of a beauty therapist. The failures are severe; as the purpose of the temporary skilled visa programme is to allow Australian businesses to sponsor foreign nationals to work in a skilled position that it is unable to fill using the local labour market. It appears that the failures have occurred over a period of approximately three years, when its first primary sponsored person, Nguyen Bich Tram Pham, commenced employment with it.
[1] Notice of Decision/6-7.
The delegate classed this as “… at the very least, a reckless act”.[2]
Failure to satisfy a sponsorship obligation: reg 2.89
[2] ibid/7.
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’s evidence was, in effect, a denial of any breach of any sponsorship obligation. The applicant gave evidence that he operates a relatively small salon business, of about 25 to 28 employees, and that his managers performed their tasks as salon managers. The applicant acknowledged that his salon managers had to be aware of technique changes and perform training, but that they mostly did not perform work on the nails of clients. There were some exceptions to this, for example if a client specifically asked for the salon manager.
The applicant was concerned that his salon managers had been anxious when they were interviewed by Australian Border Force (ABF) and that a language barrier had caused misunderstanding.
The Tribunal questioned the applicant on a material part of an ABF statement, which said:[3]
Thi [a manager] stated that she does nails, waxing and facials. Thi was unable to quantify the proportion of time sent doing management duties and that spent on nails, waxing and facials; but did remark that nails and facials are what she spends most time doing.
[3] Site Visit & Interview Plan/9.
The applicant said that the relevant salon manager was under stress at the time of her interview, with inference being that the Tribunal should not accept this evidence.
The Tribunal is at a disadvantage in this matter as none of the interviewers nor interviewees have appeared before it to give evidence. The applicant was not present at the time of the interview. Hence, the best evidence available to the Tribunal is hearsay. The Tribunal accepts that the applicant has given his evidence truthfully but is not persuaded that the applicant’s evidence is reliable.
On balance, and in the absence of direct evidence from the interviewees, the Tribunal prefers the contemporaneous notes of ABF over the hearsay evidence of the applicant given several years after the event. Accordingly, the Tribunal is satisfied that the salon managers at times worked outside of their nominated positions and that this constituted a breach of Condition 8107.
The Tribunal is not satisfied that there are grounds for the finding that “the failures have occurred over a period of approximately three years, when its first primary sponsored person, Nguyen Bich Tram Pham, commenced employment with it”. The Tribunal also classes the breach as one of inadvertence, rather than recklessness.
The Tribunal notes that the applicant’s sworn evidence is that it does not wish to sponsor anybody in the future. Indeed, the applicant is aware that the sponsorship bar has expired. The Tribunal implies from this evidence that the applicant seeks merely to ‘clear its name’, in effect. It is therefore important to note that, in making adverse findings, the Tribunal does not imply that the applicant has been dishonest in its sworn evidence.
For the reasons above, the Tribunal is satisfied that the prescribed circumstance in reg 2.89 exists for the purpose of s 140M of the Act. The Tribunal is also 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.
Action to 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 Tribunal notes that any action that it takes to vary the length or type of sponsorship bar will take effect from the date of this decision. This may cause the applicant real prejudice if it changes its view and indeed does wish to act as a sponsor again soon. What this means is that by reducing the period of sponsorship bar the Tribunal would in fact be increasing the effective period of the bar.
Abiding its obligations under reg 2.89, the Tribunal notes that the applicant has been cooperative and candid, albeit mistaken, in its evidence to the Tribunal. The applicant has employed two salon managers, at least one of whom has worked outside of her nominated position, meaning that the sponsor has failed to satisfy its obligation on at least one occasion whilst an approved Standard Business Sponsor between 14 April 2015 to 14 April 2018. This failure is serious, but the evidence before the Tribunal does not allow it to be satisfied of the period over which the failure occurred. This is the only breach of the applicant’s sponsorship obligations of which the Tribunal is aware.
The Tribunal notes that there is insufficient evidence before it to make findings on the extent to which the failure to satisfy the sponsorship obligation has had a direct, or indirect, impact on another person.
The Tribunal notes that the nature of the applicant’s honest, but mistaken, denial of a breach meant that it did not inform Immigration of that breach.
Considering the totality of the circumstances and having regard to the prescribed criteria, the Tribunal does not regard the period of 18 months as a suitable sponsorship bar given its findings. However, the Tribunal notes that if it were to impose a lesser bar then that bar would take immediate effect and thus increase to total effective period of the applicant’s sponsorship bar. Accordingly, the preferable decision is that none of the actions under s 140M should now be taken.
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.
Andrew George
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 351

8 February 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Appeal