Walter Design & Development Pty Ltd (Migration)

The Administrative Appeals Tribunal (AAT) considered a decision by the Department of Home Affairs to cancel Walter Design & Development Pty Ltd's approval as a standard business sponsor and bar it from sponsoring for two years. The dispute arose from alleged failures to satisfy sponsorship obligations, including underpayment of a sponsored worker due to an incorrectly set up payroll system and unpaid meal breaks, as well as the sponsored person performing duties outside their nominated occupation due to COVID-19 related staff shortages.

The Tribunal was required to determine whether the Department's decision to cancel the sponsorship approval and impose a two-year bar was correct. Specifically, it needed to assess if Walter Design & Development Pty Ltd had failed to satisfy its sponsorship obligations and, if so, what sanction was appropriate under section 140M of the Migration Act 1958 (Cth) and relevant regulations. The Tribunal also considered the validity of non-disclosure certificates issued under sections 375A and 376 of the Act, and whether the applicant had been afforded an opportunity to comment on the information contained within them.

The Tribunal found that while there had been failures to satisfy sponsorship obligations, the circumstances were largely inadvertent and had been rectified by the applicant. The Tribunal noted that the sponsored person's duties had been adjusted after monitoring and notice from the Department, and that the payroll errors were corrected, although the worker was not reimbursed for the initial underpayment. Applying the criteria set out in regulation 2.89 of the Migration Regulations 1994, including the nature and severity of the failure, the extent to which it was intentional or inadvertent, and the steps taken to rectify the situation, the Tribunal concluded that a lesser sanction was warranted.

Consequently, the Tribunal set aside the Department's decision to cancel the sponsorship approval and impose a two-year bar. It substituted this with a decision to bar Walter Design & Development Pty Ltd from sponsoring more people under its existing approval for a period of 12 months from the date of the delegate's original decision, meaning the bar expired on 10 December 2022.