Vinton Specialist Pty Ltd (Migration)

Vinton Specialist Pty Ltd (Migration) [2019] AATA 6107 (18 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Vinton Specialist Pty Ltd
CASE NUMBER:  1831456
DIBP REFERENCE(S):  OPF2017/16972
MEMBER:Antoinette Younes
DATE:18 December 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision under review.
Statement made on 18 December 2019 at 3:17pm

CATCHWORDS
MIGRATION – cancellation – sponsorship approval – compliance with sponsorship obligations – keep records – business bank records – failure to label individual transactions – discriminatory recruitment practices – China-Australia Free Trade Agreement (ChAFTA) – failure to conduct interviews with candidates – provision of false or misleading information – interview notes – candidate interview evaluation forms – evidence of three job applicants denying the occurrence of claimed interviews – consideration of mandatory criteria – purpose of the 457 scheme – Australian citizens and residents deprived of opportunity – intentional breach of obligation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140M, 140L
Migration Regulations 1994 (Cth), rr 2.82, 2.87C, 2.89, 2.90

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
1.This is an application for review of a decision made by a delegate of the Minister for Immigration to take an action under s.140M of the Migration Act 1958 (the Act) in relation to the applicant’s sponsorship.

The applicant was approved as Standard Business Sponsor (SBS) on 7 October 2015. On 18 October 2018, the delegate decided to cancel the approval of the SBS and to bar the applicant for one year from making applications for approval as a standard business sponsor under s.140M.
The applicant appeared before the Tribunal on 13 November 2019 to give evidence and present arguments. The applicant was represented in relation to the review by its registered migration agent.
4.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 r.2.89 - r.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: r.2.89 – r.2.94B. These criteria, as they relevantly apply to the circumstances of this case are set out in the attachment to this decision.
BACKGROUND
9.The applicant (sponsor), Vinton Specialist Pty Ltd is a real estate investment company. The applicant conducted a recruitment practice in October 2016 that resulted in a role being filled by a subclass 457 visa holder Mr Qijun Mo. Monitoring conducted by the Department discovered that candidates in this recruitment process who the sponsor said had been interviewed for the position, had not been interviewed. The delegate found that this constituted a discriminatory recruitment practice, as the visa holder was chosen to fill the position without the applicant interviewing any other candidates. The delegate also found that the evidence provided to the Department constituted false or misleading information as there is evidence that records of interviews with candidates were incorrect as other job applicants denied any contact by the applicant.
10.The delegate identified two grounds for cancellation: r.2.89 “Failure to satisfy sponsorship obligations” and r.2.90 “Provision of false or misleading information.” The sponsorship obligation the sponsor was said to have breached was r.2.87C “Obligation not to engage in discriminatory recruitment practices.”
Submissions of 28 February 2018
11.In those submissions, the applicant indicated that it is their belief that the selection process relating to the position of Real Estate Agent was open, equitable and just. The process was consistent with those principles and treated candidates equitably irrespective of their race, gender, nationality, or visa status. The applicant indicated that they are looking for an individual of a high-calibre with the “right talent and attitude, meet our selection criteria, accept our proposed remuneration packages and to be ready to contribute to our business ongoing needs and growth.”
12.The applicant provided a substantial number of documents, as outlined in the List of Documents attached to this decision.
Notice of Intention to Take Action (NOITTA/Notice) – dated 2 August 2018
13.On 11 December 2017, the Department commenced monitoring of the applicant. The monitoring identified potential action to be taken pursuant to s.140L, specifically r.2.82, r.2.87C, and r.2.90.
14.In summary, the Notice referred to the following matters:
i)   The applicant has failed to satisfy sponsorship obligation under sub-regulation 2.82(2)(c)(ii) which requires a sponsor to keep records relating to sponsored persons’ terms and conditions in a manner capable of being verified by an independent person.
ii)     In relation to r.2.83 and following a request, the applicant provided copies of the applicant’s NAB account for the period from 1 January 2017 to 19 January 2018. The applicant also provided banking records in relation to a visa holder’s (Lei Shen) personal ANZ account bank. These personal ANZ records show regular monthly deposits into the visa holder’s account of $3708.33 throughout the monitoring period. Those transactions are labelled as “Vinton Specialist wages”. The delegate noted that although those records show that the visa holder is receiving wages from the applicant, the obligation under r.2.82 is for the applicant to keep records in a manner that is capable of being verified by an independent person. The delegate noted that the applicant had stated that they have a number of employees working for the business, and assessment of the business bank records provided by the applicant lists a number of transactions in a month, all of which are labelled as “wages”. As a consequence, the delegate expressed the opinion that it was difficult to assess which transactions related to which employee based solely on the assessment of the applicant’s business bank records.
iii)    In relation to another employee, Mr Qijub Mo, the applicant provided to the Department copies of the applicant’s NAB account for the period from 1 January 2017 to 19 January 2018. The applicant also provided banking records in relation to the visa holder’s personal Commonwealth account bank. These personal Commonwealth bank records show regular monthly deposits into the visa holder’s account of $3708.33 throughout the monitoring period. Those transactions are labelled as “Vinton Specialist wages”. The delegate noted that although those records show that the visa holder is receiving his wages from the applicant, the obligation under r.2.82 is for the applicant to keep records in a manner that is capable of being verified by an independent person. The delegate noted that the applicant had stated that they have a number of employees working for the business, and assessment of the business bank records provided by the applicant lists a number of transactions in a month all of which are labelled as “wages”. As a consequence, the delegate expressed the opinion that it was difficult to assess which transactions relate to which employee based solely on the assessment of the applicant’s business bank records.
iv)   In relation to Lei Shen, the applicant on 29 July 2018 wrote to the monitoring officer providing the same response as above. The delegate noted that the applicant has now corrected the labelling of the wages paid to the visa holder’s and that corroborating evidence demonstrates that the visa holders had received their wages, however since the obligation under r.2.82 is for the sponsor to keep records of wages paid, the delegate found that the sponsor had failed to comply with this obligation in relation to that visa holder on six occasions during the monitoring period.
v)    On 29 July 2018, the applicant emailed the monitoring officer in a follow-up after an interview and stated “…by accident last Friday I checked with my bookkeeper in regard to identifications of wages payment to each staff member, 457 visa holders in particular on bank statements. I was advised that as a matter of fact, since December 2017, we have implemented to use the first letter of each staff member’s “Given Name” and “First Name” as an identifier to identify them on each payment run… So it would be easy now to identify each payment corresponded to whom got paid”. The applicant provided examples. The delegate noted that the applicant has now corrected the labelling of the wages paid to the visa holders and that corroborating evidence demonstrates that the visa holders had received their wages, however since the obligation under r.2.82 is for the sponsor to keep records of wages paid, the delegate found that the sponsor had failed to comply with this obligation in relation to that visa holder on six occasions during the monitoring period.
vi)   In relation to r.2.87C which is an obligation not to engage in discriminatory recruitment practices, the delegate noted that on 2 February 2017, Mr Qijun Mo was granted a subclass 457 in order to fill the position of Real Estate Agent with the applicant, however there were concerns that the recruitment process demonstrated discriminatory practices. On 16 February 2018, the Department requested from the applicant “All records relating to the recruitment practices relating to the position of Real Estate Agent which is now filled by the visa holder Qijun Mo – for example advertisements, interview notes.” On 1 March 2018, the applicant responded to the request and provided records and information, such as the job advertisements for the position from October 2016, resumes from applicants for the position, interview notes from telephone interviews for the position, and second interview notes.
vii) On 23 July 2018, job applicants who were claimed to have been interviewed during the secondary process were contacted by the Department. Yong Kang Gong advised the Department that although he had applied for the position in November 2016, he was not interviewed at any time, or had any contact with the applicant in relation to the application for the position. Yong Kang Gong stated that he googled Jerry Zhang and confirmed that he had never met that person or had any conversations with him. Grace Corcoran confirmed that although she might have applied for the position, she has never heard of the applicant or had an acknowledgement email about the application. Fangyun Fu stated “From what I record, I really don’t remember I talked to any Jerry or Vinton Realty before”. The delegate formed the view that the applicant did not hold interviews for the advertised position of Real Estate Agent demonstrating discriminatory practices against other applicants. This amounted to failure to comply with r.2.87C. The delegate concluded that there were reasons to believe that the applicant had provided false or misleading information to the Department.
viii) Assessment of the records provided by the applicant identified a number of fraudulent documents produced for the purpose of satisfying the assessment under r.2.87C. Those documents are candidate interview evaluation forms in relation to Fangyun Fu (Vivian), Grace, Yong Kang Gong (Alan/Allen), and interview notes of Vinton Realty for the first and second interviews.
ix)   On 24 July 2018, the director of the applicant’s company, Mr Tony Xiong was interviewed by the Department and it was put to him that individuals claimed to have been interviewed have confirmed that they were not interviewed. Mr Xiong stated that he conducted the first and second interviews himself and that all the other interviews were conducted by Jerry Zhang (manager in charge of the business).
x)    In a follow-up email of 24 July 2018, Mr Xiong indicated:
(1)As I said clearly during the interview, at the time 2016 Mr Jerry Jiawei Zhang was a manager in charge of newly established realty and Tracy Lan Chen was a support staff facilitating him with recruitment process. I did participate in a part of selecting work and also interviewed a few people. However the thing happened in November 2016, almost 2 years ago. Was hard to recollect all details. Thus we had to rely on and stick to our records.
(2)As advised, Jerry resigned in May 2017 (I have checked out his payroll record. He got paid from September 2016 to May 2017). I have managed to contact him and confirmed with him. Jerry responded that he had done all proper recruitment processes including interviews which I have recorded in those documents submitted. In terms of what you mentioned Grace in particular during the conversation this morning, you advised that she said she did not receive an interview from us while our records show she did. As a thing happened two years ago, no any other third party evidence can judge who told a lie while the other told a truth. Thus we stick to our records. Jerry has agreed to give his personal email address.
xi)   The delegate formed the view that three independent individuals contradicted the claims made by the applicant about being interviewed and that this amounted to the provision of false and misleading records pursuant to r.2.87C.
xii) There is an allegation that the visa holder Qijun Mo paid money to the applicant to nominate him as a Real Estate Agent.
Response to the NOITTA
15.In submissions dated 30 August 2018, the applicant’s representative made the following submissions:
Regulation 2.82: Obligation to Keep Records
·The failure to label individual transactions does not amount to non-compliance with the sponsor’s obligation to keep records that can be independently verified – the delegate has adopted an “impermissible, narrow interpretation of the law…” The legal test is as set out in r. 2.82 is that the sponsor must keep records of payments of the wages for the primary sponsored person (for the purposes of this notice) are in a manner that is capable of being verified by an independent person. The labelling of wage payments might be one method that assists in the verification by an independent person, but it is not the only way. The law does not require that the bank statement from the sponsor, which shows wages being paid to a primary sponsored person, must identify the primary sponsored person in name in the transaction record.
·What the law requires is that the record is capable of being verified by an independent person. Payments made by bank transfer, as is the case here, are obviously capable of being verified by an independent person. All that is required either bank records of the sponsor, evidencing payment, and the bank statements of the primary sponsored person, which will evidence the receipt of the wage payments.
·Any independent person can check the account number from which the wages were received in the primary sponsored worker’s account and verify that the wages were paid by the sponsor. That might appear to be a task that requires more effort than just checking labelled payments, but it is not unreasonable to expect such forensic analysis be done.
·The bank can also verify separately that the payments have been made by the sponsor to the primary sponsored person. Records of payment by bank transfer from the sponsor to the primary sponsored person are records that are capable of being verified by an independent person.
·The evidence shows that payments were actually made and consequently there has been no non-compliance with r.2.82 in the manner described in the notice.
Regulation 2.87C: Obligation not to engage in discriminatory recruitment practices
·The sponsor denies partaking in discriminatory recruitment processes and there is no probative evidence to support a claim of discrimination. It is not discriminatory to make a decision who to employ. There is no explanation in the notice as to how there has been discriminatory recruitment practices and there has been no such discrimination. An organisational structure for the business for 2017 and 2018 shows that the sponsor employs Australian citizens, Australian permanent residents and temporary visa holders.
·By recruiting a Chinese national, the sponsor cannot be said to be discriminating in a recruitment practice. The sponsor is not required to undertake labour market testing because of international treaty obligations.
·The sponsor made a decision about who to employ and this “simply was not one of the three persons mentioned in the notice… There is no element of discrimination in the making of that decision, and it is a serious allegation to make, in the absence of any probative evidence”.
·The Statutory Declaration of Ms Yan Gui dated 20 August 2018 confirms that recruitment is not discriminatory.
Regulation 2.90: Provision of false or misleading information
·The sponsor denies that it provided false or misleading information. The Interview evaluation forms are evidence that the interviews took place, and the recollections of the interviewees should be challenged given that there is no additional evidence. The allegation is based on an incorrect assumption.
·Although Mr Yong Kang Gong states that he never had contact with the company, there is an interview note (candidate interview evaluation form) from Jerry Jiawei Zhang showing that he was interviewed in contradiction of his assertions. Mr Gong refers to 1 November 2016 whereas the date of the interview note was 6 November 2016 and consequently it appears that Mr Gong is speculating. If Mr Gong had not been interviewed, how is it then that Mr Zhang recorded that Mr Gong terminated his own employment in real estate to work in the furniture business? It is unclear why Mr Gong ‘s recollection of events has been preferred over that of the applicant where there is documentary evidence in support.
·With regards to Ms Grace Corcoran and her claim that she had never heard from the sponsor, in contradiction of the sponsor’s interview notes. There is no reason to prefer her version over that of the sponsor where there are interview notes. The notes show that an interview was conducted via WeChat and the reasons for her not being selected; her salary request was above what the sponsor was willing to pay and she wanted relocation allowance from the ACT for which there was no budget. Ms Corcoran might have forgotten that she was contacted.
·In relation to Ms Fangyun Fu where she states that she really did not remember. The sponsor states that she was interviewed as recorded in the interview notes.
·There has been no opportunity for the sponsor to have those three applicants subject to questioning where their evidence and recollections can be challenged.
·A full record of interview with each of those persons has not been provided for comment contrary to procedural fairness requirements. WeChat has been used by Mr Zhang on his personal telephone and the sponsor has been unable to provide records of those calls. The nature of that platform with passage of time prevents the recovery of deleted records. However the sponsor is entitled to rely on the records provided by its employees entrusted with the recruitment process.
·The claim that Mr Qijun Mo paid cash for the visa is a serious allegation and Mr Mo denies and refutes this in his Statutory Declaration dated 7 August 2018.
·There has been no non-compliance but in case of any such finding, no sanction should be imposed as the sponsor has relied on the diligence of its now former employee.
·The sponsor has no reason to doubt the claims of their former employee and provided all information to the Department in good faith.
16.The applicant provided a number of documents in support including Statutory Declarations from Guangwu Yuan and Zibin Cai, who say they were interviewed for the position but were unsuccessful. The Delegate found this to be contradictory evidence as there were no records of these two candidates being interviewed on the initial records provided to the Department.
17.An allegation of the visa holder Qijun Mo having paid for his visa was received by the Department from the ex-partner of Mr Mo.
The delegate’s decision record
18.The delegate made a decision to cancel the sponsorship approval of the applicant, and to impose a sanction of a one year bar from making an application for approval as a standard business sponsor.
19.In relation to r.2.82: Obligation to Keep Records, the delegate accepted the explanations provided by the applicant.
20.The delegate however identified two grounds for cancellation: r.2.89 “Failure to satisfy sponsorship obligations” and r.2.90 “Provision of false or misleading information.”
21.The sponsorship obligation the sponsor was said to have breached was r.2.87C “Obligation not to engage in discriminatory recruitment practices.”
22.In essence, the delegate found:
·     Regulation 2.87C “Obligation not to engage in discriminatory recruitment practices.”
o   Sponsor monitoring identified that the sponsor held a recruitment exercise in 2016 and filled the position with 457 visa holder Qijun Mo without interviewing any prospective applicants.
o   The evidence provided in response to the NOITTA was contradictory, as the Statutory Declarations of claimed interviewees were made by people not listed on the initial records of the interview process.
o   By employing the visa holder in the nominated position, the sponsor discriminated against other applicants by not conducting a competitive recruitment exercise.
- Regulation 2.90 “Provision of false or misleading information”
Evidence before the Tribunal
23.In support of the application for review, the applicant provided a copy of the delegate’s decision record.
24.In the course of the hearing, Mr Tony Xiong, Managing Director of the applicant appeared and gave evidence before the Tribunal.
25.The applicant provided to the Tribunal submissions essentially focusing on the law relating to secs.140L and 140M.
26.A central point in the applicant’s submissions is the contention that as Labour Market Testing (LMT) was not required in relation to the relevant nomination, there cannot be a requirement of non-discriminatory practice in the relation to the recruitment of Mr Mo.
Hearing
27.Mr Xiong explained to the Tribunal the structure of the sponsor, including its current number of employees being six, three of whom are Australian citizens and/or permanent residents, and three temporary visa holders.
28.The Tribunal asked Mr Xiong about the sponsor’s recruitment practices. He explained to the Tribunal that Mr Qijun Mo had previously worked with the sponsor as a contractor and he impressed Mr Xiong as he was a good worker. Mr Xiong stated that despite Mr Mo being an impressive candidate, in order to select the best person for the role and despite having LMT exemption due to the China-Australia Free Trade Agreement (ChAFTA/Agreement), the sponsor decided to advertise in Seek[1], Sydney Today, and Indeed.
[1] Seek position advertisement on 6 October 2016.
29.The Tribunal referred to the advertised position criterion requiring “Proficiency in English and Chinese” and asked for the reasons. Mr Xiong stated that as most of the sponsor’s clients are Mandarin/Cantonese speakers, it was important to get a candidate fluent in either or both of those dialects.
30.Mr Xiong gave evidence that over 20 candidates applied for the role. He explained that as he is a very busy person, he delegated recruitment duties to a then manager, Mr Gerry Zhang who was assisted by Tracy. He explained to the Tribunal that he had acted as a migration agent for two individuals (Carabeen Cai and Corby Yuan) who approached him about the role. He stated that he interviewed those two individuals himself in October or November 2016. He stated that both of those individuals saw the advertisement for the position and contacted him directly, he felt that as he knew them personally, it was appropriate that he would interview them.
31.The Tribunal questioned Mr Xiong for some time about the reasons for him conducting those interviews personally, given that he claimed to be a very busy person and that he had delegated the recruitment process to other entrusted employees in his business. He reiterated that as he knew those two individuals personally, he felt it would be best for him to interview them. The Tribunal asked him why he decided not to employ either of those individuals and he stated that he was concerned about their English language skills. The Tribunal asked him why he would interview them in circumstances where it would be reasonable to suggest that he would have known about their language skills given the fact that they were former clients. He said although he had a good idea about Corby’s English language skills, Carrabeen was a secondary visa applicant. He reiterated that he felt it would be appropriate to interview those two individuals personally given that they were former clients. The Tribunal asked Mr Xiong if he told those individuals in the course of the interviews about their suitability and he stated that he told them that their English was not at the preferred standard.
32.The Tribunal asked Mr Xiong about the former manager, Mr Zhang and whether they parted on good terms and he stated that Mr Zhang resigned. He stated although they parted amicably, they have not kept in touch. The Tribunal asked if he had told Mr Zhang about him interviewing the two individuals and he stated that he could not recall if he had told him but he stated that he told Tracy.
33.Mr Xiong gave evidence that Tracy and Mr Zhang went through all the applications and interviewed those considered to be suitable. The Tribunal asked him if he knew how many applicants were interviewed and he stated he was not sure but possibly 3 to 4 individuals. He could not recall all the details.
34.In accordance with s.359AA, the Tribunal discussed with the applicant the information that three individuals, namely Yong Kang Gong, Grace Corocran, and Fangyun Fu who were claimed by the sponsor to have been interviewed for that position, were contacted by the Department and although Fangyun Fu was uncertain whether he had spoken with Jerry or Vinton Realty, the other two confirmed that they were not interviewed. He stated that all the information that was provided by the sponsor was delegated and has been provided in good faith.
35.In accordance with s.359AA, the Tribunal discussed with Mr Xiong the information provided during the interview between himself and the Department and the subsequent email that he sent on 24 July 2018. He stated that he did conduct two interviews himself and all information provided to the Department has been provided in good faith.
36.In accordance with s.359AA, the Tribunal discussed with Mr Xiong the allegation that Mr Mo had paid him money in order for the sponsor to nominate him in the role. He denied that he has received any money and continued to reiterate that Mr Mo was the best candidate. He stated that Mr Mo had issues with a former partner who could have been responsible for those allegations.
37.Mr Xiong gave evidence that the fact that LMT was not required in this case, it is difficult to see how the decision to advertise and conduct interviews could then come within those requirements.
38.In oral submissions, the applicant’s representative indicated that even if the Tribunal were to find that incorrect information has been provided, on the evidence, it is reasonable to find that this was done in good faith and there was no intention to provide false or misleading information.
Section 359A letter
39.On 19 November 2019, the Tribunal sent to the applicant a s.359A letter as follows:
·In the course of the hearing, the Tribunal raised with the applicant a number of matters, including, a person claiming that the visa holder, Mr Mo has paid Vinton money in order to be nominated in the position of Real Estate Agent. Mr Xiong provided explanations and the Tribunal would consider further those explanations.
·The Tribunal discussed with the applicant the information that three individuals, namely Yong Kang Gong, Grace Corocran, and Fangyun Fu who were claimed by the sponsor to have been interviewed for that position, were contacted by the Department and although Fangyun Fu was uncertain about speaking with Jerry or Vinton Realty, the other two confirmed that they were not interviewed. Mr Xiong provided explanations and the Tribunal would consider further those explanations.
·There is an allegation in the Departmental file made by a person who provided their name and contact details (referred to as X) claiming that they needed to tell the truth about an incident. X claimed that they had received a message on WeChat from someone purporting to be a friend. X was in New Zealand at the time (November 2018), and X agreed to meet with a female. The female flew to New Zealand and also brought with her a male. X stated that neither person was known to X and they did not give their names. X stated that those persons told her that they knew that X had provided information to the Department about not having an interview for a job, and they told X that if X was willing to write to say that X had in fact had an interview then they would help X with a visa application for Australia. X stated the meeting made X very uncomfortable and X thought about not saying anything but decided to tell the truth to the Department. X stated that X was thinking about writing to the Department via email but X decided to call firstly. X stated that X definitely did not have any interviews for the job with Vinton. This information is adverse as it provides further evidence that the applicant did not interview the three claimed individuals and it could support a finding that the applicant engaged in discriminatory recruitment practices and provided false or misleading information, contrary to the relevant regulations.
Response to s.359A letter
40.The allegation that Mr Mo had paid the sponsor money in order to be nominated, is denied. The director would not engage in what could amount to a criminal conduct. Mr Mo had identified his former girlfriend to be the person who is believed to have made the false allegation. Mr Mo’s relationship with his former girlfriend deteriorated in April 2017 and she threatened Mr Mo that she was going to sabotage his visa and destroy his life. Mr Mo has previously provided a Statutory Declaration dated 7 August 2018.
41.In relation to the three individuals claimed to have been interviewed when they were not, Mr Jerry Zhang was responsible for the recruitment of new staff. Mr Zhang was an experienced and talented person in recruitment and team management. He commenced employment with the sponsor in September 2016 and resigned in May 2017. He was paid an annual salary of $80,000 plus superannuation and commissions. The recruitment of staff was delegated to him entirely. After the whole selection process and based on the assessment outcome, Mr Mo was selected. There was no element of discrimination in the making of that decision. Other staff (Ms Tracy Chen and Ms Dorothy Xu) of the sponsor have also provided Statutory Declarations supporting the version that a genuine selection process took place, including interviews. The director and the sponsor have always acted in good faith in responding to the Department. The director relied on reports provided to him by employees and if Mr Zhang took shortcuts and did not provide accurate interview reports to the Director, the sponsor must take responsibility. However, the director and the sponsor have never intended to provide information that was false or misleading to the Department or engage in discriminatory recruitment practices. Moreover the free trade agreement between Australia and China provides a mechanism to preference a Chinese worker over an Australian worker.
42.The sponsor has cooperated with the Department and there have been no other occasions of any breach of laws or regulations in Australia. As a result of the cancellation of the sponsor’s approval, two experienced 457 visa holders had to leave the sponsor and there have been business and financial losses as a consequence. Mr Mo lost his chance to obtain permanent residency and he has passed the GTE assessment and has joined his partner’s student visa last December. Mr Mo has not gained any benefit from the 457 program.
43.In relation to the allegations made on 12 November 2018 by person X, when the director was interviewed by telephone on 24 July 2018 and in the follow-up email, the director indicated that as Mr Zhang had resigned a year and a half earlier and the recruitment incident occurred two years earlier, there was no other evidence available to substantiate the sponsor’s response and accordingly the director advised that “he had to stick to the records”. In the aim to look further into the allegations, Ms Dorothy Xu was asked by the sponsor to contact some selected interviewees but this did not include Mr Gong and Ms Corcoran. Ms Fangyun Fu (Vivian) had a marketing campaign on the Internet for her AirBNB services and had published (supporting document attached) her mobile number as well as the WeChat account. The sponsor communicated with Vivian through WeChat but mainly discussed property investment in New Zealand. She recommended her friends and agreed to have a face-to-face discussion on relevant matters.
44.After multiple communications, Vivian agreed to meet Dorothy and they had dinner on the night of 8 September 2018. They discussed a number of real estate and property investment topics and they had a happy discussion. During the second half of the dinner, Dorothy explained to Vivian the reason for her visit and hoped that she could help to find out whether she had participated in the job interview with the sponsor in November 2016. Vivian was uncomfortable and unhappy as she thought that Dorothy was coming to see her to discuss property investment. Dorothy explained to Vivian that the sponsor’s records show that she had participated in the interview, contrary to her advised that she could not recall. During the conversation, Vivian revealed that she had participated in several interviews from different companies and asked Dorothy whether Vinton Realty was the same company as Longton Property Group to which Dorothy replied in the negative. They farewelled amicably around 10:30 PM and Dorothy paid the dinner bill. Dorothy requested Vivian to check her records and subsequently Vivian indicated that she had checked her emails but it has been long as she could not find any. The company had no further contact with Vivian (communications through WeChat attached).
45.If Vivian felt that the conversation was not for the right purpose, she could have left and not engaged any further with Dorothy. There was nothing threatening, or bribery, or any attempt to influence or attract a false testimony from Vivian. Vivian introduced herself as a New Zealand citizen, free to live in Australia or New Zealand and consequently there is no need or necessity for others to assist her to obtain an Australian visa. The sponsor has difficulties understanding why it took two months for Vivian to report to the Department about the alleged incident. The sponsor has never attempted to influence any witness of concern and the sponsor was entitled to obtain details from Vivian because of the allegations she had made against the sponsor.
46.Following a release of documents by the Department on 14 April 2019 and further evidence obtained by the sponsor, there is evidence to contradict Vivian’s version of events. On 23 July 2018 and around 5 PM, in an email, Vivian replied to the Department “without more information it is really hard for me to remember which company I had a phone interview with, I even don’t use my mobile number anymore sorry I’m not sure how I can help”. In a subsequent email on the same day at about 5:40 PM, Vivian replied to the Department “From what I record, I don’t remember this company or had a phone interview with anyone called Jerry before. I have lost my Australian SIM card, hard to check the phone calls record too. Sorry still can’t help much”. On 9 September 2018 at approximately 11:05 AM, in Vivian’s WeChat to Dorothy she replied “I have checked my email. It is been long and I can’t find it’. On 12 November 2018 at 11:18 AM, Vivian advised the Department that she “definitely did not have any interviews for the job with Vinton Realty”. Vivian appears to have changed her “rhetoric and what she stated lacks consistency and reasonable degree of certainty” and consequently her statement of 12 November 2018 is unreliable and should not be given any weight.
Does a circumstance for the taking of an action exist?
47.In the present case, the delegate identified two grounds for cancellation, namely, the obligation not to engage in discriminatory recruitment practices (r.2.87C) and provision of false and misleading information (r.2.90).
Failure to satisfy a sponsorship obligation not to engage in discriminatory recruitment practices: r.2.87C
48.Under r.2.87C, a standard business sponsor must not engage in, or have engaged in, discriminatory recruitment practices during the period of their approval as a sponsor.[2] The term ‘discriminatory recruitment practice’ is defined as a recruitment practice that directly or indirectly discriminates against a person based on the immigration status or citizenship of the person, other than a practice engaged in to comply with a Commonwealth, State or Territory law.[3]
[2] r.2.87C(2).
[3] r.2.57(1).
49.According to the Explanatory Statement to the amendment which inserted this obligation, the intention is to provide a basis for enforcement action in relation to inappropriate use of the Subclass 457 programme by sponsors who rely excessively or exclusively on Subclass 457 visa holders despite the availability of qualified Australian citizens or permanent residents.[4] The obligation is also intended to prohibit discrimination against overseas, non-citizen and non-permanent resident workers.
[4] Explanatory Statement to F2016L00523, p.20.
50.The question in relation to this obligation is whether the sponsor has engaged in a recruitment practice that directly or indirectly discriminated against a person or persons. The delegate found that although the sponsor did advertise for the position of Real Estate Agent and despite having an exemption due to the ChAFTA, by employing Mr Mo without conducting a competitive recruitment exercise for the position, the sponsor had discriminated against other applicants. Essentially, the delegate did not accept the material provided by the applicant that interviews had been conducted and that the best person for the role had been selected through a competitive recruitment practice.
51.There is substantial material before the Tribunal. The applicant has maintained a version of events that the sponsor interviewed at least three individuals who later confirmed (two unequivocally) that they were not interviewed. The applicant has a vested interest in this matter and although the Tribunal recognises that having a vested interest does not mean the applicant’s version is questionable, it does mean however that it needs to be considered with that context in mind.
52.There is no dispute and the Tribunal accepts the evidence that the applicant was exempt from LMT pursuant to the ChAFTA but nevertheless had decided to advertise in Seek[5], Sydney Today, and Indeed.
[5] Seek position advertisement on 6 October 2016.
53.The applicant has focused its submissions on the argument that as there was an exemption, it cannot be said that there must be a recruitment practice that is open and competitive. The applicant contended that the CHAFTA “places Chinese workers in an equal position with local Australians when a temporary entry position needs to be filled in Australia... Because a citizen of China is exempted from the application of the labour market testing condition, there is no regulatory mechanism to require the sponsor must have taken any recruitment actions that are open and competitive to identify that Australian citizens or permanent residents were not available or suitably skilled for the nominated position. Thus, the sponsor preference the visa holder who subject to the LMT exemption over other should not be considered as engaging in discriminatory recruitment practices that adversely affect Australian citizens or any other person based on visa status or citizenship status… In this case, if the department accepts “there was a labour market testing exemption for the position” at the time the sponsor commends the nomination for the position”, even though there was a circumstance of the sponsor employed the visa holder (a Chinese worker) in the nominated position by not conducting a competitive recruitment exercise for the position and not giving an opportunity to Australian citizen or Australian permanent resident, it cannot be concluded that recruitment decision is evidently made based on the immigration status or citizenship of the person, because to be consistent with Article 10.4 paragraph 3 of the CHAFTA, LMT condition does not apply when a Chinese worker was considered for or field a position through temporary entry pathway, the sponsor can feel the position with him or her even the Australian citizens or permanent residents were interested in filling this role. Therefore, again the sponsor has not failed…”[6]
[6] Applicant’s submissions of 12 November 2019 provided to the Tribunal.
54.The applicant argued that by accepting the existence of an LMT exemption, there cannot be an expectation of recruitment actions that are open and competitive to identify suitable candidates. As discussed in the course of the hearing, the Tribunal is of the view that despite the exemption by choosing to advertise the position allegedly for the purpose of selecting the best person for the role, it is reasonable to suggest that the applicant had made a decision to test the market openly and to indicate to potential candidates that there is a genuine position available with the sponsor and that the sponsor is genuinely looking for the best person for the role. The Tribunal is not persuaded by the applicant’s submissions asserting that the existence of the LMT essentially means that there cannot be an expectation of competitive recruitment practices. The Tribunal is of the view that the applicant is engaging in a circular argument and failing to recognise the significant issue in this matter, namely that by advertising, the sponsor had created a legitimate expectation in the Australian labour market of an existence of a genuine position to be filled by the best person for the role subsequent to a competitive recruitment exercise. Otherwise, it could be said that the applicant advertised a role in bad faith, that is after having decided on the candidate but advertising to support a claim of testing the market. The exclusion of other candidates would amount to indirect discrimination.
55.Moreover, although the concepts are not mutually exclusive, LMT is different to the sponsorship obligation. The Tribunal is of the view that LMT relates to a specific nomination but the obligation not to engage in discriminatory recruitment practice is a far-reaching obligation. The obligation has broader implications than LMT. The Tribunal is satisfied that even though there was an LMT exemption in relation to Mr Mo’s nomination, it does not mean that it is open to the sponsor to conduct its recruitment without consideration of such a significant obligation. Accordingly, the Tribunal considers it appropriate to examine the recruitment process surrounding Mr Mo.
56.The central issue in the case is whether the applicant conducted the claimed interviews. The applicant has provided documents and supporting Statutory Declarations that interviews were conducted, however, two of the individuals who claimed to have been interviewed said they were not; Mr Yong Kang Gong stated that he never had contact with the sponsor, in contradiction of the sponsor’s interview notes. Ms Grace Corcoran said she never heard from the sponsor, in contradiction of the sponsor’s interview notes. Ms Fangyun Fu (Vivian) stated that she really did not remember but the sponsor claimed that she was interviewed as recorded in the interview notes.
57.There has been a serious allegation relating to Vivian. In response to the s.359A letter, the applicant indicated that Ms Dorothy Xu was asked by the sponsor to contact some selected interviewees but this did not include Mr Gong and Ms Corcoran. Ms Fangyun Fu (Vivian) had a marketing campaign on the Internet for her AirBNB services and that the sponsor communicated with Vivian through WeChat discussing mainly property investment in New Zealand. The sponsor acknowledged that Ms Xu met with Vivian and had dinner on the night of 8 September 2018. The sponsor indicated that the two discussed a number of real estate and property investment topics and also they discussed the issue relating to the interview. The Tribunal is satisfied that this version in part supports Vivian’s version that she was contacted by representatives of the sponsor.
58.The Tribunal has carefully considered the applicant’s responses to this issue but finds it difficult to accept that given the seriousness of the matter that any member of the sponsor’s staff would have considered it appropriate to approach Vivian. The Tribunal is not persuaded or convinced by the applicant’s explanations that the sponsor was worried that Vivian might have concerns and therefore it was appropriate to make direct contact with her. The Tribunal is concerned about the applicant’s contentions that the sponsor was “entitled to try and get detailed information from Vivian because of the allegation[7]…”. On the contrary, the Tribunal is of the view that making contact in those circumstances was inappropriate and could be perceived as trying to influence the testimony of a witness. The fact that Vivian subsequently contacted the Department is credible evidence that she believed that the contact was inappropriate.
[7] Response to s.359 letter dated 2 December 2019, last para at p.9.
59.The Tribunal accepts that it has not had the opportunity to speak to any of the three individuals who claimed not to have been interviewed by the sponsor and consequently their testimony needs to be given appropriate weight and in that context. The Tribunal is however of the view that it is difficult to see why at least two individuals would make clear statements to the Department that they were not interviewed by the sponsor, contrary to claims made by the sponsor. The Tribunal further notes that Vivian on 12 November 2018 during a telephone call with the Department clearly articulated that she did not have an interview for the position with Vinton Realty. The Tribunal recognises that Vivian was at times uncertain but what is evident is that she could not support the applicant’s claim that she was interviewed.
60.The applicant has claimed that there has not been an opportunity for the sponsor to have those three applicants subject to questioning where their evidence and recollections can be challenged, is not entirely correct; the applicant has advised the Tribunal that Vivian was contacted and asked about her recollection. It is correct that the Tribunal has not tested the evidence of the three relevant individuals, the Tribunal is however satisfied that there would not be a reason for them to provide the Department with incorrect answers in relation to a matter where they would not have a vested interest. Vivian contacted the Department directly expressing concerns about a contact from a person who knew that she had provided information to the Department about not having an interview for a position. The applicant has acknowledged that Vivian had in fact met with Dorothy in New Zealand and that Dorothy had asked questions about her recollection of any alleged interviews. Vivian ultimately advised the Department on 12 November 2018 that she definitely did not have any interviews with Vinton Realty, contrary to assertions made and documents provided by the applicant.
61.Mr Yong Kang Gong, Ms Grace Corcoran and Ms Fangyun Fu are three independent individuals who have no vested interest in the outcome and there is no evidence before the Tribunal of bad faith or ulterior motives on their part. On balance, the Tribunal is of the view that it is reasonable to give their evidence weight.
62.The Tribunal has carefully considered the material before it and the Tribunal has decided to give significant weight to the information provided by the three candidates who were claimed to have been interviewed, namely Yong Kang Gong, Grace Corocran and Fangyun Fu.
63.The applicant submitted that Mr Jerry Zhang was entirely responsible for the recruitment, however the applicant decided to interview two individuals personally because he claimed to have known them previously in his capacity as acting representative. This is not entirely consistent with what the applicant had advised the Department when he was interviewed on 24 July 2018 and in the follow-up email on the same day; Mr Xiong stated that he interviewed a few people but it was hard to re-collect all the details, yet he was able to recall the names of the two individuals in the course of the hearing, over a year subsequent to the contact with the Department on 24 July 2018. The Tribunal notes that in the follow-up email of 24 July 2018 when arguably Mr Xiong would have had the opportunity to carefully consider his response as it was in writing, there is no specific mention of the two individuals whom he claimed to have interviewed personally. Mr Xiong told the Tribunal that he had acted as a migration agent for the two individuals (Carabeen Cai and Corby Yuan) who approached him about the role. He stated that he interviewed those two individuals himself in October or November 2016. It is difficult to see why there is no mention of those specific two individuals in his dealings with the Department on 24 July 2018.
64.The applicant has provided documents such as interview records and candidate interview evaluation forms and notes, as well as Statutory Declarations asserting that those individuals were interviewed. The Tribunal has carefully considered that material but they do not overcome the Tribunal’s concerns in this matter and consequently the Tribunal has given that material limited weight. The Tribunal has decided to prefer the evidence provided by the three individuals who were claimed to have been interviewed. In consideration of the evidence as a whole, the Tribunal finds that contrary to the claims made by the applicant, the sponsor did not interview Yong Kang Gong, Grace Corocran or Fangyun Fu.
65.In relation to the allegation relating to payment of money by Mr Mo to the sponsor in return for employment, the Tribunal has carefully considered the explanations in Mr Mo’s Statutory Declaration of 7 August 2018 that his former girlfriend had made threats. The Tribunal accepts as plausible that the former girlfriend had made allegations. On the evidence, the Tribunal cannot resolve the issue as to whether Mr Mo had paid money to the sponsor in return for employment but the Tribunal is prepared to proceed on the basis that no payment was made by Mr Mo.
66.The applicant spoke highly of Mr Mo’s skills and suitability for the role but indicated that the sponsor wanted to test the market. The Tribunal is satisfied that the applicant advertised the position and that a number of individuals applied. On the evidence however the Tribunal is not satisfied that there were interviews as claimed by the applicant. The Tribunal is satisfied on the evidence cumulatively that not carrying out interviews with candidates who might have been suitable amounted to indirect discrimination and favouritism for one applicant, Mr Mo. The Tribunal acknowledges that the applicant did not have to go through LMT, however when the applicant chose to advertise, the applicant created an expectation in the Australian labour market that there is a vacant position with the sponsor and that candidates would be afforded an equal opportunity to be considered on merit. The Tribunal appreciates that businesses are entitled, within exceptions such as discrimination, to employ whom they consider to be the most suitable candidate in their business. This is however the subclass 457 scheme and the applicant is an approved business sponsor and there are obligations not to engage in discriminatory recruitment practices. By being an approved business sponsor, the applicant has accepted that it must comply with its sponsorship obligations and that not to do so could have adverse consequences.
67.Mr Xiong has accepted limited responsibility as the director, he has however continued to rely on his delegation of recruitment practices to a person who is no longer in his employ. The Tribunal is concerned at Mr Xiong’s perceived conditional acceptance of responsibility.
68.For the reasons stated above, the Tribunal is satisfied that the applicant has engaged in discriminatory recruitment practices in breach of its sponsorship obligation pursuant to r.2.87C. Accordingly, the Tribunal is satisfied that the prescribed circumstance in r.2.89 exists for the purpose of s.140M of the Act.
False or misleading information: r.2.90

One or more of the actions in s.140M may be taken if the sponsor has provided false or misleading information to Immigration or the Tribunal: r.2.90(2).
Under s.140L(1)(a)(ii) and r.2.90, a circumstance in which the Minister may cancel or bar the approval of a sponsor is that the sponsor has provided false or misleading information to Immigration[8] or to the Tribunal.
[8] Immigration is defined in r.1.03 to mean ‘the Department administered by the Minister administering the Migration Act 1958’ in relation to visa applications made on or after 22 March 2014: SLI 2014, No.30. For visa applications made prior to 22 March 2014, the term was defined as ‘the Department of Immigration and Multicultural and Indigenous Affairs’.
There is no relevant definition of what constitutes false or misleading information for these purposes in the Act or the Regulations. It is a question of fact for the Tribunal to determine and the nature of the information will be indicated by the decision under review. Regulation 2.90 does not specify information in relation to particular processes such as in relation to sponsorship approval or in relation to assessing compliance with the Act and Regulations. Instead, it is expressed in terms of the recipients of the information. Although it is not express in the terms of r.2.90, having regard to the underlying context of the provision, it may be inferred that the relevant information is that which has been provided by the sponsor in relation to the sponsorship approval or a related process.
In assessing whether a particular piece of information was false or misleading, the Tribunal may have regard to such matters as information required in relation to the application for approval as a sponsor, information required in relation to any related nominations, e.g. nomination of an occupation for a Subclass 457 visa, information required in relation to monitoring of sponsorship obligations, and information provided to the Tribunal in relation to review of decisions on the above matters.
Contrary to the applicant’s assertions and for the above reasons, the Tribunal has found that the applicant has provided evidence that three individuals claimed to have been interviewed were not interviewed. The applicant provided interview records and notes to assert that interviews took place. The applicant has continued to deny that interviews were not conducted. The sponsor provided Statutory Declarations from persons who claimed of having had interviews for the position of Real Estate Agent but neither of these applicants was mentioned in prior submissions provided by the sponsor detailing who applied for the position or who was interviewed. The sponsor has claimed that the records of the recruitment process are true representation of the events since they are notes taken by the sponsor at the time, however the sponsor also provided declarations made in September 2018 from two applicants with no corresponding records from October 2016. The applicant has denied the provision of false or misleading information and questioned the reasons that the evidence of job applicants would be preferred over documentary evidence such as interview notes.
The Tribunal has carefully considered the material individually and cumulatively. The Tribunal is satisfied that a fair appraisal of the material before it and on balance, the applicant did provide false and misleading information in relation to the recruitment that resulted in the employment of Mr Mo. Specifically, the Tribunal finds that the applicant provided misleading information such as the candidate interview evaluation forms relating to Yong Kang Gong (Alan/Allen), Grace Corocran and Fangyun Fu (Vivian), as well as Vinton Realty first and second interview notes. Accordingly, the Tribunal is satisfied that the prescribed circumstance in r.2.90 exists for the purpose of s.140M of the Act.
Failure to satisfy sponsorship obligation
When considering whether to bar or cancel a sponsorship on the basis that the sponsor has failed to satisfy a sponsorship obligation,[9] there are prescribed criteria that must be taken into account. Some of those criteria are common with the consideration as to whether to bar or cancel a sponsorship on the basis that the sponsor has provided false or misleading information to Immigration or the Tribunal[10].
[9] r.2.89 and s.140L(1)(a)(i).
[10] s.140L(1)(a)(ii) and r.2.90.
The Tribunal will now deal with the relevant criteria that must be taken into account.
Common criterion
·the past and present conduct of the sponsor in relation to Immigration;
77.The Tribunal notes that the sponsor has cooperated with the Department by providing responses and the willing to be interviewed.
78.However, the Tribunal has found that the information provided by the sponsor is incorrect in the aspects specified.
79.Therefore the Tribunal gives this aspect limited weight in the applicant’s favour.
Criteria related to the sponsor’s failure to satisfy a sponsorship obligation
·the number of occasions on which the sponsor has failed to satisfy the sponsorship obligation;
80.Apart from the current occasion for failing to satisfy the obligation not to engage in discriminatory recruitment practices, there is no information before the Tribunal of any other occasion of breach.
81.The Tribunal gives this aspect weight in the applicant’s favour.
·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;
82.In October 2016, the applicant advertised the position of Real Estate Agent and on 2 February 2017, the visa holder, Mr Mo was granted a subclass 457 visa following a nomination by the applicant in that position.
83.The Tribunal has found and for the stated reasons that the applicant has breached the sponsorship obligation of not engaging in discriminatory recruitment practices.
84.The Tribunal considers the obligation not to engage in discriminatory recruitment practices to be significant and it has direct impact on Australia’s labour market. One of the central aims of the 457 scheme is to enable Australian employers to nominate overseas applicants if there are no Australian citizens or permanent residents who have the skills and experience to fill a vacancy. That is, the central purpose of the scheme is to address genuine skill shortages in the Australian labour market.
85.The Tribunal acknowledges that the CHAFTA is capable of undermining that purpose but the Tribunal has found that despite being exempt from the LMT as a result of the CHAFTA, the applicant chose to advertise. By doing so, the applicant had indirectly indicated to the Australian labour market that there is a genuine position available and that the applicant would engage in a genuine recruitment process.
86.The Tribunal gives this aspect significant weight in support of cancellation of the SBS.
·the period of time over which the sponsor has been an approved sponsor;
87.On 7 October 2015, the applicant was approved as a standard business sponsor and the sponsorship expires on 7 October 2020.
88.The Tribunal does not consider this period to be significant and the Tribunal has placed weight on this aspect in support of cancellation of the SBS.
·whether, and the extent to which, the failure to satisfy the sponsorship obligation has had a direct or indirect impact on another person;
89.The information before the Tribunal indicates that there were 23 applicants who applied for the position.
90.The breach of the obligation has meant that potentially qualified and competitive Australian citizens and/or permanent residents were deprived of the opportunity for their applications to be considered on their merit.
91.The Tribunal places significant weight on this consideration in support of cancellation of the SBS.
·whether, and the extent to which, the failure to satisfy the sponsorship obligation was intentional, reckless or inadvertent;
92.The applicant has contended that in case the Tribunal were to find that there has been a failure to satisfy a sponsorship obligation, the Tribunal ought to find that there was no bad faith involved.
93.The applicant advised the Tribunal that he had delegated all recruitment responsibilities to a now former manager. The sponsorship obligations are obligations directed to the sponsor and whether an employee of the sponsor was the culprit is not directly relevant to the issues. The Tribunal has found that the applicant has failed to satisfy a sponsorship obligation and that it is difficult to see how that was reckless or inadvertent.
94.The Tribunal gives this aspect significant weight in support of the cancellation of the SBS.
·whether, and the extent to which, the person has cooperated with Immigration, including whether the person informed Immigration of the failure;
95.The applicant has been cooperative with the Department but has never accepted that there has been any failure to comply with sponsorship obligations and consequently never informed the Department.
96.The Tribunal gives this aspect significant weight in support of the cancellation of the SBS.
·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;
97.The applicant has argued that the employment practices adopted by the sponsor are consistent with its sponsorship obligations, including non-discriminatory recruitment practices.
98.The Tribunal accepts that the sponsor employs Australian citizens/permanent residents, as well as temporary visa holders and the Tribunal gives this aspect some weight in the applicant’s favour.
·the processes (if any) the person has implemented to ensure future compliance with the sponsorship obligation;
99.The applicant assured the Tribunal that the cancellation of the SBS has been a difficult process for him personally from which he has learnt, albeit, the applicant never conceded that there has been failure to comply with a sponsorship obligation.
100.The Tribunal gives this aspect limited weight in favour of the applicant.
·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;
101.There is no evidence before the Tribunal that, apart from the obligation not to engage in discriminatory recruitment practices, there has been any other breach of a sponsorship obligation.
102.The Tribunal gives this aspect weight in favour of the applicant.
Criteria relevant to the question as to whether to bar or cancel a sponsorship on the basis that the sponsor has provided false or misleading information to Immigration or the Tribunal
·the purpose for which the information was provided;
103.The purpose for which the information was provided was in response to a r. 2.83 notice (notice) issued on the sponsor. The notice requested all records relating to the recruitment process for the position of Real Estate Agent filled by Mr Mo.
104.The Tribunal gives significant weight to this aspect in deciding adverse consequences to the applicant.
·the nature of the information;
105.As mentioned previously, the nature of the information provided relates to documents to demonstrate and support a claim that Yong Kang Gong, Grace Corocran and Fangyun Fu had been interviewed when in fact they were not.
106.The Tribunal considers those documents to be significant and the Tribunal gives this aspect significant weight in deciding adverse consequences to the applicant.
·whether, and the extent to which, the provision of false or misleading information has had a direct or indirect impact on another person;
107.The Tribunal is satisfied that the provision of the false and misleading information has caused difficulties in fully assessing the sponsor’s compliance with sponsorship obligations.
108.The Tribunal gives this aspect significant weight in deciding adverse consequences to the applicant.
·whether the information was provided in good faith;
109.The applicant has contended that if the Tribunal were to find that false and misleading information was provided, it is appropriate to find that this was provided in good faith.
110.It is difficult to see how intentionally providing false and misleading information could be provided in good faith. The sponsor would have known and ought to have known that the information provided was misleading and false.
111.Mr Xiong is a registered migration agent and has been so since 2005. A finding that he personally provided false and misleading information to the Department or indeed to the Tribunal could have serious consequences to him personally and professionally.
112.Mr Xiong has accepted limited responsibility for the provision of the false and misleading information. He has denied that any information provided to the Department amounts to false and misleading information. He has continued to assert that his manager was responsible for all. The Tribunal has noted Mr Xiong’s contentions. The Tribunal has some doubts about Mr Xiong’s version of events but given the potential serious consequences to him personally, the Tribunal is prepared to proceed on the basis that he personally did not act in bad faith.
113.The Tribunal is mindful that the provision of false and misleading information in these circumstances could potentially amount to a criminal offence where the standard of proof is much higher than the procedure before the Tribunal.
114.Given the potential serious consequences and on the basis of the evidence before it, the Tribunal has not reached the required level of satisfaction to make a finding with the required level of satisfaction that Mr Xiong personally acted in bad faith. The Tribunal is satisfied that although he was ultimately responsible given his position as a director, it is plausible that he personally acted in good faith by relying on a person to whom he had delegated the recruitment process.
115.The Tribunal gives significant weight to this aspect in favour of adverse consequences to the applicant.
·whether the sponsor notified Immigration immediately upon discovering that the information was false or misleading; and
116.The sponsor has continued to deny the provision of false or misleading information in the Tribunal gives this aspect significant weight in favour of adverse consequences to the applicant.
·any other relevant factors.[11]
[11] r.2.90(3).
The applicant argued that as a result of the cancellation of the sponsor’s approval, two experienced 457 visa holders had to leave the sponsor and there have been business and financial losses as a consequence. The applicant indicated that Mr Mo lost his chance to obtain permanent residency and has not gained any benefit from the 457 program. The Tribunal appreciates that there have been such adverse consequences. The Tribunal does not wish to sound harsh, however, those are direct consequences of the applicant’s actions. The Tribunal gives them limited weight in the applicant’s favour.
The Tribunal notes that the period of bar imposed by the delegate has now expired which means it is open for the sponsor to reapply. Although there is now adverse information about the applicant requiring disclosure in certain contexts, the applicant is now however able to reapply for a new SBS.
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 Tribunal has considered barring the sponsor for a specified period from making future applications for sponsorship approval in relation to one or more classes of sponsor but has decided that the one-year bar has achieved its purpose.
The Tribunal has carefully considered all the relevant material before it individually and cumulatively. In consideration of the totality of the evidence, and having regard to the prescribed criteria, the Tribunal finds that the cancellation of the sponsorship is appropriate and that the one-year bar was also an appropriate action to take in these circumstances.
DECISION
122.The Tribunal affirms the decision under review.
Antoinette Younes
Senior Member
ATTACHMENT – List of relevant documents provided
DEPARTMENTAL FILES OPF2017/16972 (Parts 1 and 2)

ASIC Records

NAB Response includes sponsor’s Bank records

Company Response to Request for Documents

Staff Summary and Organisational Structure Chart

Registration with NSW Fair Trading

Property Listings

Employment Contract - Lei Shen

Submissions RE: Market Salary Rate

Business Marketing Materials

Payroll Documents, Wage Transaction history

Evidence of employment and Payment of Wages

Work Samples

Employment Agreement

Property Certificates

Position Description

Submissions RE: Market Salary Rate and Compliance with r.2.87C

CV and Candidate Evaluation for nominee

Summary of recruitment results

Candidates' Resumes, Candidate Interview Evaluation Forms/records, Statutory Declarations of Guangwu Yuan and Zibin Cai, Statutory Declaration of Yun Xu, Statutory Declaration of Yan Gui.

Company Response to NOITTA

TRIBUNAL FILE (some provided to the Department)

Payroll Summary 01/07/2019-11/11/2019

Annual GST Return 01/07/2016 to 30/06/2017

Financial Statements FY17

Financial Statements FY18

Payment Instructions 30/09/2019 – 30/09/2019

Payment Instructions 01/09/2019 – 30/09/2019

Payment Instructions 01/08/2019 - 31/08/2019

Payment Instructions 01/07/2019 – 31/07/2019

Payment Instructions 01/07/2019 – 19/07/2019

Company Tax Return FY17

Annual GST Return FY18

Instalment Activity Statement 01/10/2019 to 31/10/2019

BAS 01/07/2019 to 30/09/2019

Instalment Activity Statement 01/08/2019 to 31/08/2019

Instalment Activity Statement 01/07/2019 to 31/07/2019

BAS 01/04/2019 to 30/06/2019

Activity Statement Jan-2019 to Mar-2019

Activity Statement Oct-2018 to Dec-2018

Activity Statement Jul-2018 to Sep-2018

Company Tax Return 2018

Applicant Submissions

Representative Submissions

Email from Fangyun Fu

Email from Fangyun Fu

Fangyun Fu WeChat Records

Candidate Shortlist

Statutory Declaration – Yun Xu

Statutory Declaration – Lan Chen

Statutory Declaration – Qijun Mo

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.

…

2.90 Provision of false or misleading information
…
(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 purpose for which the information was provided; and
(b)    the past and present conduct of the person in relation to Immigration; and
(c)     the nature of the information; and
(d)    whether, and the extent to which, the provision of false or misleading information has had a direct or indirect impact on another person; and
(e)     whether the information was provided in good faith; and
(f)     whether the person notified Immigration immediately upon discovering that the information was false or misleading; and
(g)    any other relevant factors.

…

[2019] AATA 6107

18 December 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice