Wisdom Investments Group Pty Ltd (Migration) - [2023] AATA 2248

Wisdom Investments Group Pty Ltd (Migration) [2023] AATA 2248 (12 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Wisdom Investments Group Pty Ltd

REPRESENTATIVE:  Ms Liuzhuo Chen (MARN: 1687418)
CASE NUMBER:  1927017
HOME AFFAIRS REFERENCE(S):          OPF2019/5239
MEMBER:Antonio Dronjic
DATE:12 January 2023
PLACE OF DECISION:  Melbourne
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 12 January 2023 at 1:47pm
CATCHWORDS
MIGRATION – sponsorship bar – satisfaction of sponsorship obligation – providing records – personal bank statements – business bank account statements – other payment records – false or misleading information – net salary amounts – discrepancies between payslips and bank statements – lack of knowledge on how to use the software – lack ‘purposeful falsity’ – sponsorship application or variation criteria no longer met – adverse information – Illegal Worker Warning Notice (IWWN) – whether reasonable to disregard – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 140L, 140M
Migration Regulations 1994 (Cth), rr 1.13A, 2.59, 2.83, 2.89, 2.90, 2.91
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to take an action under s 140M of the Migration Act 1958 (Cth) (the Act) in relation to the applicant’s sponsorship.
The applicant was last approved as a standard business sponsor on 14 June 2016 for a period of five years. On 10 September 2019, the delegate decided to bar the applicant for 24 months from making applications for approval as a standard business sponsor and temporary activities sponsor under s 140M of the Act. The delegate found that:
·     The applicant failed to satisfy a sponsorship obligation by failing to provide records and information to the Minister (reg 2.83);
·     The applicant provided false or misleading information (reg 2.90); and
·     The application or variation criteria was no longer met as the applicant has been the subject of administrative action by a Department (Australian Border Force) that administers or enforces the law and therefore circumstances at reg 2.91 exist.
The applicant lodged an application for review with the Tribunal on 25 September 2019. The delegate’s decision record submitted with the review application by the applicant contains a summary of the monitoring of the applicant undertaken by the Department and the ongoing correspondence between the Department and the applicant, including a Notice of Intention to Take Action (NOITTA) dated 16 July 2019 and the applicant’s response to the notice of 27 August 2019.
On 9 October 2019, the Department issued a s 375A non-disclosure certificate in respect of three documents provided to the Tribunal. On 22 October 2022, the Tribunal wrote to the applicant’s authorised person, inviting her comments on the validity of the s 375A non‑disclosure certificate.
On 5 October 2022, the applicant’s representative provided submissions and documentary evidence…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Wisdom Investments Group Pty Ltd (Migration) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] AATA 2248
Decision Date: 12 January 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision made by the Department of Home Affairs concerning Wisdom Investments Group Pty Ltd. The dispute centred on whether the company had failed to satisfy its sponsorship obligations, provided false or misleading information, or no longer met sponsorship application criteria, which could lead to sanctions under sections 140K, 140L, and 140M of the *Migration Act 1958* (Cth). The Department had previously imposed a 24-month bar on the company, which had expired by the time of the Tribunal hearing.

The Tribunal was required to determine if any of the prescribed circumstances for taking action under section 140M of the Act existed. Specifically, it needed to assess whether Wisdom Investments Group Pty Ltd had failed to satisfy a sponsorship obligation, provided false or misleading information, or if its sponsorship application or variation criteria were no longer met. The Tribunal also considered whether any adverse information, such as an Illegal Worker Warning Notice, was reasonable to disregard.

In its reasoning, the Tribunal found that none of the circumstances specified in section 140L(1)(a) of the Act were met. This meant that the power to take action under section 140M did not arise. The Tribunal was satisfied that the applicant, Ms. Chen, had a good command of the English language and that certain information sought to be protected by the Department related to internal investigative methods and would not be relied upon.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to take any of the actions specified in section 140M of the *Migration Act 1958*.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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 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 C to this decision.Preliminary matters The Tribunal observes that bar on the sponsor imposed by the Department on 10 September 2019 for the period of 24 months expired on 10 September 2021. At the commencement of the hearing, the Tribunal informed the applicant that it has reviewed the information on the Department’s files sought to be protected from disclosure. The Department attempted to protect the information that would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods. The information relates to a monitoring recommendation report, standard tactical plan and risk management assessment. The Tribunal’s preliminary view is that the s 375A certificate is valid and it explained the gist of the information to the applicant. The Tribunal further explained to the applicant that, in making its decision, the Tribunal will not rely on those documents as they predominantly relate to the Department’s internal investigative methods. Ms Chen stated that she has been living, studying and operating several businesses in Australia since 2008. In 2010, she completed master’s in management at Monash University. She has also completed several English language tests (including an IELTS test) where she achieved an average score of 7 or 7.5. The Tribunal was satisfied that Ms Chen has a good command of the English language and invited her to communicate with the Tribunal in the English language. The Tribunal further informed Ms Chen that, if at any point she is unable to understand the questions or finds it difficult to express herself in the English language, she should alert the Tribunal and it will then ask the interpreter to assist. Both Ms Chen and her representative agreed with this proposal.Does a circumstance for the taking of an action exist?

Decision

Reasons for decision

As the Tribunal finds that none of the circumstances for s 140L(1)(a) exist, it follows that the power to take an action under s 140M does not arise.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.Antonio DronjicMemberAttachment A·Australian Border Force. Notice requesting sponsorship records and/or information (with itemised documentary requirements numbered 1-9) dated 17 June 2019o3.1 1 – Employment list o3.2 3 – ASIC Office address change details o3.3 3 – ASIC Officeholder change details oMs Chiu payslips 29 October 2018 – 5 May 2019o3.6 5 Yihsuan Chiu ANZ Access Advantage Bank statement 5 October 2018 – 5 December 2018 o3.8 5 Yihsuan Chiu ANZ Access Advantage Bank statement 5 December 2018 – 5 February 2018 o3.5. 5 – Yihsuan Chiu ANZ Access Advantage Bank statement 5 February 2019 – 5 April 2019 o3.7 5 Yihsuan Chiu ANZ Access Advantage Bank statement 5 April 2019 – 5 May 2019 o3.9 6 – Yihsuan Chiu time worked records. 29 October 2018 – 5 May 2019 o3.10 7 – Yihsuan Chiu leave record. 12 November 2018 to 26 April 2019.oYihsuan Chiu Tax return 1 July 2017 to 30 June 2018. In line with 3.11 Point 8.o3.12 9 – Yihsuan Chiu migration agent fee invoice for 457 visa and nomination. 12 September 2016. o3.13 – Yihsuan Chiu Email between Michelle and Megan Growth at ABF re. payment summary not lodged with the ATO. o3.14 – ATO Tax Agent Portal report. Yihsuan Chiu report PAYG Payment summaries. 9 July 2019. o3.15 – Australian Border Force letter. Notice of Intention to Take Action dated 16 July 2019. o3.16 – Statutory Declaration sworn by Donald Robert Stone declared at Apollo Bay on 27 July 2019. o3.17 – Statutory Declaration sworn by Francis Damien Buhanan declared at Great Ocean Road Health on 27 July 2019. o3.18 – Statutory Declaration sworn by Jacqueline Alexander Coutts (slightly illegible) declared at Apollo Bay on 26 July 2019..o3.19 – Statutory Declaration sworn by Luyu Wang declared at Westpac Bank Apollo Bay on 29 July 2019. o3.20 – Statutory Declaration sworn by Wantong Zhang declared at Ringwood on 28 July 2019. o1.16 – NOICC – Department of Immigration and Border Protection dated 25 May 2018. o1.17 – Record of decision whether to cancel visa. Department of Home Affairs dated 29 May 2018.o1.15 – Form 1099 Notice of intention to consider cancellation under section 116 of the Migration Act 1958. – Liang Chen. Form appears to be incomplete. No date.o4.13 – Multiple transfer details part 3. o4.14 – Multiple transfer details part 4o4.15 – Multiple transfer details part 5o4.16 – Multiple transfer details part 6o4.17 – Multiple transfer details part 7o4.18 – Screenshot of application software.o4.19 – Fungleafood Pty Ltd. Meat and Seafood invoices from 28 November 2018 to 10 July 2019o4.20 – Statutory Declaration sworn by Chung Chia Lin at Apollo Bay on 29 July 2019.o4.1 – Commonwealth Bank of Australia. Notification of annual leave loading transferred. From Danying Chen to mailto:wxq505@hotmail.como4.2 – SNG Partners letter to Danying Chen regarding annual leave loading dated 27 August 2019.o4.3 – SNG Partners letter to Danying Chen advising when annual leave loading should be paid dated 30 July 2019.o4.4 – Annual leave loading transferred screenshot. From Chinese restaurant to Yihsuan Chiu. 29 July 2019.o4.5 – Commonwealth Bank of Australia Business Transaction Account bank statement. Statement no. 33 1 January 2019 – 31 March 2019. In the name of “Directors Unit 51 51-53 Great Ocean Road Apollo Bay Vic 3233.o4.6 – Commonwealth Bank of Australia Business Transaction Account bank statement. Statement no. 32 1 October 2018 – 31 December 2018. In the name of “Directors Unit 51 51-53 Great Ocean Road Apollo Bay Vic 3233.o4.7 – Commonwealth Bank of Australia. Wisdom Investments Group Pty Ltd. Business Transaction Account. Account information and list of transactions from 1 April 2019 – 30 April 2019.o4.8 – Chinese passport biodata page copy. Chia-Lin Chung. Date of expiry 20 August 2025.o4.9 – Colac Otway Shire health inspection report Apollo Surfcoast Chinese (Wisdom Investment Group Pty Ltd) dated 16 August 2018.o4.10 – Letter of observation / support from delivery person Dongbo (illegible) from Funglea Foods regarding Yihsuan Chiu. Undated.o4.11 – Multiple transfer details part 1.o4.12 – Multiple transfer details part 2.o1.6 – Receipt of dishwasher liquids. PHD Import and Export. Dated 4 may 2018.o1.7 – Photograph of dishwashing liquid.o1.8 – Nisbets Express Catering Equipment. Tax Invoice for dishwasher dated 17 April 2018o1.9 – Chinese passport biodata page copy. Liang Chen. Date of expiry 12 August 2025, and Australian passport biodata page copy. Danying Chen. Date of expiry 22 August 2026.o1.10 – Commonwealth Bank of Australia Smart Access bank account in the names of Yihsuan Chiu and Liang Chen. Account information and list of transactions from 1 November 2017 – 28 May 2018.o1.11 – Staff attendance sheets April – May 2018.o1.12 – Roster dated 23 May 2018o1.13 – Wedding invitation and evidentiary photographs.o1.14 – Department of Immigration and Border Protection. Form 956 Advice by a Migration Agent / exempt person of providing immigration assistance. 29 May 2018.o1.0 – Email from Migration Agent to DIBP in response to NOICC. 29/5/2018o1.1 – Further email from Migration Agent to DIBP in response to NOICC dated 29 May 2018o1.2 – Statutory Declaration sworn by Danying Chen at Box Hill on 29 May 2018.o1.3 – Statutory Declaration sworn by Liang Chen at Box Hill on 29 May 2018.o1.4 – Cathay Pacific Passenger E-ticket receipt for Mr. Liang Chen for travel from Fuzhou China to Hong Kong on 19 May 2018, and then Hong Kong to Melbourne on 20 May 2018, then return Melbourne to Hong Kong 9 May 2018, and then Hong Kong to Fuzhou China on 9 May 2018. Travel from Fuzhou China to Hong Kong on 25 May 2018, and Hong Kong to Melbourne on 26 May 2018.o1.5 – Applicant and sister’s household registration.o2.2 – Attachment A – Household registration document. o2.0 – Email sent from Migration Agent to Department of Home Affairs requesting the withdrawal of the Illegal Worker Warning Notice issued to Wisdom Investments Pty Ltd on 23 May 2018.o2.1 – Email sent from Migration Agent to Department of Home Affairs regarding withdrawal of Illegal Worker Notice dated 20 June 2018.o2.3 – Attachment B – Invitation letters submitted for previous visitor visa applications. Comprising of Invitation letter addressed to the Visa Officer, dated 21 December 2015; Invitation letter addressed to the Visa Officer dated 15 January 2017; ASIC Certificate of Registration of a Company – Wisdom Investments Group Pty Ltd. (19/12/2011); Westpac Bank proof of account balance. Danying Chen. 13 December 2016; REIV Contract of Sale of Real Estate. 11 McLennan Street Apollo Bay dated 21 October 2015o2.4 – Attachment C – Statutory Declaration sworn by Liang Chen at Box Hill on 29 May 2018.o2.5 – Attachment D – Statement by Yihsuan Chiu, defacto partner of Liang Chen, as an explanation of her partner’s situation dated 19 June 2018.o2.6 – Attachment E – Commonwealth Bank of Australia Smart Access joint account in the names of Yihsuan Chiu and Liang Chen. Account information and list of transactions from 1 November 2017 – 28 May 2018.o2.7 – Attachment F – Wedding invitation and evidentiary photographs.o2.8 – Cathay Pacific Passenger E-ticket receipt for Mr. Liang Chen for travel from Fuzhou China to Hong Kong on 19 May 2018, and then Hong Kong to Melbourne on 20 May 2018, then return Melbourne to Hong Kong 9 May 2018, and then Hong Kong to Fuzhou China on 9 May 2018. Travel from Fuzhou China to Hong Kong on 25 May 2018, and Hong Kong to Melbourne on 26 May 2018.o2.9 – Attachment H – Chinese passport biodata page Liang Chen. Date of expiry 12 August 2025.o2.10 – Attachment I – Request from migration agent to Department of Home Affairs for movement records dated 8 June 2018.o2.11 – Attachment J – Nisbets Express Catering Equipment. Tax Invoice for dishwasher dated 17 April 2018o2.12 – Attachment K – Letter from Mike McQuinn Plumbing regarding the assistance he received from Liang Chen to install the commercial dishwasher that Apollo Surfcoast Chinese Restaurant on 17 April 2018. Dated 19 June 2018.o2.13 – Attachment L – Invoice from Mike McQuinn Plumbing for installation of dishwasher on 30 April 2018.o2.14 – Attachment M – Statutory declaration sworn by Danying Chen at Box Hill on 29 May 2018.o2.15 – Attachment N – PHD Import & Export Receipt for dishwashing liquid dated 4 May 2018.o2.16 – Attachment O – Photograph of dishwashing liquid.o2.17 – Attachment P – Roster dated 23 May 2018o2.18 – Attachment Q – Staff attendance sheets April – May 2018.o2.19 – Attachment R – Email from Migration Agent to DIBP in response to NOICC. 29/5/2018o2.20 – Submission – Email sent from Migration Agent to Department of Home Affairs regarding withdrawal of Illegal Worker Notice dated 23 May 2018.o2.21 – Email sent from migration agent to Lisa Mingos at Department of Home Affairs regarding the location of Liang Chen when he was alleged to have worked dated 22 June 2018.o2.22 – Attachment S – Movement records for Liang Chen, dated 22 June 2018o2.23 – Email received from the Department of Home Affairs in response to email sent from migration agent on 22 June 2022.o2.24 – Illegal Worker Warning Notice. Department of Immigration and Border Protection. Form 1155, with reference to Liang Chen and issued to Wisdom Investments Pty Ltd. 23 May 2018.o2.25 – Department of Immigration and Border Protection. Decision on request to withdraw the Illegal Worker Warning Notice dated 212 August 2018.o4.33 – Australian Border Force. Notice of Decision to Bar Wisdom Investments Group Pty Ltd for a period of 24 months from making applications for approval as a standard business sponsor and temporary activities sponsor dated 10 September 2019.o4.21 – Statutory declaration sworn by Donald Robert Stone at Apollo Bay on 278 July 2019.o4.22 – Statutory Declaration sworn by Francis Damien Buhanan declared at Great Ocean Road Health on 27 July 2019. o4.23 – Statutory Declaration sworn by Jacqueline Alexander Coutts (slightly illegible) declared at Apollo Bay on 26 July 2019o4.24 – Statutory Declaration sworn by Luyu Wang declared at Westpac Bank Apollo Bay on 29 July 2019.o4.25 – Statutory declaration sworn by Danying Chen at Apollo Bay on 26 August 2019o4.26 – Statutory declaration sworn by Wantong Zhang declared at Ringwood on 28 July 2019.o4.27 – Statement by Fei Liu dated 29 July 2019o4.28 – Nanyang Foodservice invoice dated 27 March 2019o4.29 – Nanyang Foodservice invoice dated 22 May 2019o4.30 – Nanyang Foodservice invoice dated 16 April 2019o4.31 – Nanyang Foodservice invoice dated 27 February 2019o4.32 – Video presentation of application software.o5.8 – CCTV footage of Liang in Doncaster Melbourne on 22 May 2018.oLegal submission from Bardo Lawyers undated.o5.2 – Academic records for Danying Chen. 29 April 2010o5.3 – Monash University proof of qualification letter. 2 March 2010o5.4 – Social media chat records.o5.5 – “Liang was out on 25 April 2018” – social media.o5.6 – “Liang was out on 25 April 2018” – Social media.o5.7 – Email from C Michelle to migration agent substantially in Chinese. Index tab states that this is a flight ticket to Taiwan for May 2018.o5.0 – MYOB invoice addressed to Michelle Chen for dates 17 November 2019 – 30 November 2019.o5.1 – Screenshots of ReckonOne payslips.Attachment B·6.0 – Fei Li current statement [declaration made 27 July 2019, signed and witnessed on 12 October 2022]·6.1 – Chats between Chen and ChiuATTACHMENT C – Extract from the Migration Regulations 19942.89 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.…2.91 Application or variation criteria no longer met…(3) For paragraph 140L(1)(b) of the Act, the criteria that the Minister must take into account in determining what action (if any) to take under section 140M of the Act in relation to the circumstance mentioned in subregulation (2) are:(a) the nature of the applicable sponsorship criteria that the person no longer meets; and(b) whether, and the extent to which, the failure to continue to satisfy the criteria for approval as a work sponsor or family sponsor, or to continue to satisfy the criteria for approval of a variation, has had a direct or indirect impact on another person; and(c) the reason why the person no longer satisfies the applicable sponsorship criteria, including whether the failure to satisfy the criteria is within the person’s control; and(d) the steps (if any) the person has taken to ensure that the person will satisfy the applicable criteria in the future; and(e) any other relevant factors.…

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.