XAP Technologies Pty Ltd (Migration)

XAP Technologies Pty Ltd (Migration) [2024] AATA 2861 (19 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  XAP Technologies Pty Ltd
REPRESENTATIVE:  Ms Cindy Zhao
CASE NUMBER:  2320302
HOME AFFAIRS REFERENCE(S):          OPF2023/11928
MEMBER:Bridget Cullen
DATE:19 July 2024
PLACE OF DECISION:  Brisbane
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 (Cth).

Statement made on 19 July 2024 at 12.06pm
CATCHWORDS
MIGRATION – action in relation to sponsorship – cancellation of approval as standard business sponsor and 12-month bar – provision of false or misleading information and criterion no longer met – declaration that no adverse information known about applicant or associated entity – two directors of applicant also directors of associated entity – associated entity barred for 18 months due to failure of sponsorship obligations – bar period reduced on review – reasonable to disregard information – separation of board and managerial operations – directors now non-executive – executives’ focus on ensuring compliance with regulations and development of corporate framework – staffing and facilities – sponsorship application made before associated entity’s notification – associated position nomination applications made soon after associated entity’s notification and applicant unaware of adverse information – inadequate information and advice by former representatives – representatives’ conflict of interest – applicant’s prompt notification to department after becoming aware of adverse information – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 140E, 140M
Migration Regulations 1994 (Cth), rr 1.13A, 1.13B, 2.59(g), 2.90(2), 2.91(2)

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 first approved as a Standard Business Sponsor from 3 September 2020. On 27 November 2023, the Delegate decided to cancel the Applicant’s approval as a Standard Business Sponsor (s 140M(1)(b) of the Act); and also bar the Applicant for 12 months from making applications for approval as a Standard Business Sponsor and Temporary Activities Sponsor (s 140M(1)(d) of the Act).
In the Notice of Intention To Take Action (NOITTA) issued to the Applicant by Australian Border Force on 25 September 2023, the following circumstances were identified as potentially applicable:
·Regulation 2.90 Provision of false or misleading information; and
·Regulation 2.91 Application or variation criteria no longer met.
The Applicant, via Mr Sean Murphy (the Applicant’s Chief Executive Officer), appeared before the Tribunal on 29 May 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Karen Tierney (the Applicant’s Chief Financial Officer) and Ruchir Parekh (Director of associated entity, 23 Digital Pty Ltd).
The Applicant specialises in providing software solutions that streamline administrative processes, reduce manual workloads, and improve operational efficiencies for Early Childhood Education and Care (ECEC) businesses.
The Applicant was represented in relation to the review. The representative attended the Tribunal hearing. The Applicant’s representative prepared comprehensive, well-articulated written submissions, in compliance with the Tribunal’s applicable Practice Direction.
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 to this decision.
Does a circumstance for the taking of an action exist?
In September of 2023, the Applicant received the NOITTA, which flagged the following circumstances as potentially applicable:
·Regulation 2.90 Provision of false or misleading information
·Regulation 2.91 Application or variation criteria no longer met
False or misleading information: reg 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: reg 2.90(2).
In the present case, the Delegate found that the Applicant provided false or misleading information in conjunction with sponsorship applications it lodged after April 2022, by declaring that there was no adverse information known about the Applicant or its associated entity. In the Applicant’s case, the relevant associated entity is 23 Digital Pty Ltd (“23 Digital”).
The Applicant concedes that the information was not correct as provided to the Department in connection with the sponsorship applications in issue. Therefore, the Tribunal is satisfied that the prescribed circumstance in reg 2.90 exists for the purpose of s 140M of the Act.
Criteria no longer met: reg 2.91
The Minister may take one or more of the actions in s 140M if the sponsor no longer satisfies the prescribed criteria for approval of the sponsorship or for variation of the terms of the sponsorship: reg 2.91(2).
The NOITTA advised as follows:
One of these circumstances is that a delegate of the Minister is satisfied that a current or former standard business sponsor no longer satisfies the criteria prescribed under Section 140E of the Act at the time the person was approved as a sponsor.
The criteria for approval as a standard business sponsor are set out in Regulation 2.59. One of the criteria that must be met before an application to be a standard business sponsor can be approved is Regulation 2.59(g), which provides that a sponsor is required to have no adverse information against them, or a person associated with them, unless it is reasonable to disregard the adverse information. The term ‘associated with’ is defined in regulation 1.13B.
There is reason to believe that you no longer meet the requirements under Regulation 2.59(g) because a person associated with you, namely Ruchir Parekh and Pitush Kotadiya, are the Directors of an entity that has been the subject of an investigation by the ABF for offences against the Migration Act 1958. I note that on 1 April 2022, the associated entity was barred for 18 months from making applications for approval as a standard business sponsor and temporary activities sponsor due to the failure of the sponsorship obligations.
The Associated Entity, 23 Digital Pty Ltd
It is necessary here to explain the relationship between the Applicant and 23 Digital. 23 Digital is an agency that focuses on Website design, eCommerce, Mobile Apps, Software Development, and digital marketing. The Applicant has three Directors, two of whom are also Directors of 23 Digital (Ruchir Parekh and Pitush Kotadiya).
On 1 April 2022, 23 Digital was barred for 18 months from making applications for approval as a Standard Business Sponsor and Temporary Activities Sponsor under s140M for failing to satisfy sponsor obligations. 23 Digital was found to have breached Reg 2.79 – obligation to ensure equivalent terms and condition of employment; and Reg 2.86 – obligation to ensure that a sponsored worker works or participates in their nominated occupation, program or activity.
23 Digital reviewed the adverse decision, resulting in the Tribunal (differently comprised) reducing the sponsorship bar period to 3 months. The sponsorship bar therefore was lifted on 1 July 2022, being 3 months from 1 April 2022.
The requirements applicable to the Applicant under reg 2.59(g) contain two limbs: firstly, whether ‘adverse information’, as defined in reg 1.13A, is known to Immigration about the Applicant or a ‘person associated with’ the Applicant, as defined in reg 1.13B; and secondly, whether it is reasonable to disregard that information.
Given that the Applicant and 23 Digital shared two common directors, the Tribunal considers it plain that that there was adverse information that became known to Immigration about a person ‘associated with’ the Applicant, at the time that the Applicant lodged the sponsorship applications, and finds accordingly.
Accordingly, the Applicant, since the Department became aware of the ‘adverse information’, no longer satisfied reg 2.59(g)(i) for approval as a Standard Business Sponsor.
The Tribunal must go on to now consider whether the Applicant satisfies the alternative criterion in reg 2.59(g)(ii), that being whether it is reasonable to disregard the adverse information.
Consideration of mitigating circumstances
The common directorship between the Applicant and 23 Digital, and the knowledge that was assumed to therefore flow between the two companies, is a factor that was given significant focus in the Delegate’s decision.
The Applicant, as part of its efforts to separate Board and Managerial operations for the company, engaged suitably qualified executives at the following times:
·Ms Karen Tierney, CFO, October 2020
·Mr Sean Murphy, CEO, September 2021
·Mr Mark Webster, CTO, August 2022
·Mr Logan McDowell, COO, January 2021
Since August of 2022, the Applicant’s Directors operate as non-executive Directors, following the employment of executive staff to manage the Applicant’s day-to-day operations.
Ms Karen Tierney, the Applicant’s CFO and HR Manager since July 2021, provided a detailed statement dated 27 May 2024, and gave evidence at the hearing. The Tribunal found her to be a straightforward and knowledgeable witness.
Following her engagement, Ms Tierney was focussed on ensuring that the Applicant complied with all regulatory expectations, which was important in the highly regulated child education sector (which the Applicant’s software was marketed to). In her Statement, Ms Tierney says the following:
Between July ’21 and December ’22, my focus was on reviewing the accounting processes and procedures and ensuring that all compliance relating reporting requirements were being met. Lawyers were engaged to review and update the standard Employment Agreement and a review of the HR policies commenced.
The evidence of both Ms Tierney, and Mr Sean Murphy, painted a picture of commitment to compliance with regulatory frameworks. Although the Delegate formed the view that the Applicant’s common Directors with 23 Digital (and therefore the Applicant) did not take seriously the 23 Digital sanction, the Tribunal has formed a different view.
The Tribunal finds that the Applicant was seeking to comply with the labyrinth of legislative and regulatory obligations that exist in the industry within which it operates, and had taken steps to create a framework through which all of its policies were reviewed, and processes established to help mitigate risk. The engagement of qualified executive staff points to the Applicant being a company that was seeking to transition from establishment stage to develop a corporate framework consistent with good corporate governance principles.
Ms Tierney explained the resource sharing that existed between July of 2021 and December of 2022:
·3 staff members, including Manodha Thanapathy and Sandip Patel, who are affected by the Xap sponsorship ban, were employed by 23 Digital but working exclusively on Xap projects. These staff members were effectively contracted to Xap with 23 Digital invoicing Xap each month to cover their employment related costs.
·The employment of Sean Murphy as CEO in Oct 2020, and Logan McDowall as COO in Jan 2021 instigated the transfer of Xap’s main operations from Melbourne to Brisbane. This move, and the embracement of remote working arrangements, led to Xap terminating the lease for their office space in Melbourne and renting a small section of shared office space with 23 Digital. 17 Xap staff share office space 1 day per week with the 23 Digital team and work remotely the remaining 4 days each week. There is no common work being done between these 2 companies. 23 Digital send a monthly invoice to Xap for the rent of the shared space.
·Throughout Xap’s startup phase which includes the early design of the Xap software, Piyush Kotadiya acted in the CTO position to manage ongoing developments. After a 3-month recruitment process, Piyush Kotadiya ceased acting as the Xap CTO in August 2022 following the appointment of Mark Webster as the permanent CTO. Mark’s appointment finalised the separation of Xap and 23 Digital from an operational point of view.
The Tribunal accepts the evidence of Ms Tierney that Manodha Thanapathy and Sandip Patel were working for 23 Digital, but on projects for the Applicant, for which the Applicant was invoiced. Further, the Tribunal accepts the evidence given by Ms Tierney that in seeking approval as a Standard Business Sponsor, which was granted from 3 September 2020 (well before 23 Digital received the NOITTA on 24 January 2022), that the Applicant was preparing to eventually seek to sponsor both Mr Thanapathy and Ms Patel. In this respect, the Tribunal finds that the Applicant did not have any conscious intention to contravene the sponsorship bar imposed on 23 Digital – the Applicant had begun to consider sponsorship of both Mr Thanapathy and Mr Patel well in advance of the difficulties that 23 Digital found itself in.
The Applicant did not complete any of their own sponsorship applications, but engaged legal representatives with advertised migration experience to assist.
The Tribunal wants to be clear that the representatives now appearing before the Tribunal are not the same representatives that prepared the sponsorship applications that are the subject of discussion in these proceedings. As the former migration representatives have not had the opportunity to make submissions in relation to issues that arise in these proceedings relating to the quality of representation, the Tribunal will refer to them as the “Former Migration Representatives”.
Unfortunately, the services rendered by the Former Migration Representatives fell short in several important respects – including communicating effectively with their client, obtaining updated instructions, and ensuring they did not act in a position of conflict. This is important, as the Delegate formed the view that the Applicant, given its shared directors with 23 Digital, must have been aware of the monitoring by the Department of 23 Digital.
The Delegate also observed that the Applicant, and not the Former Migration Representatives, is responsible for ensuring that the information provided to the Department is correct. The Tribunal agrees with the Delegate that the responsibility to ensure the sponsorship applications were correct ultimately rests with the Applicant. However, the Tribunal accepts the evidence of Ms Tierney, Mr Murphy, and Mr Parekh that the Former Migration Representatives effectively denied the Applicant the opportunity to check that the information was correct, by never providing the Applicant with an opportunity to review their sponsorship applications, which were then submitted electronically to the Department by the Former Migration Representatives.
The Delegate observed that:
I note that the same migration agent was used for the monitoring of 23 Digital Pty Ltd as well as for the lodgement of four of the nomination applications lodged with XAP Technologies Pty Ltd. It is unreasonable to accept that the sponsor’s Directors and their representative were not aware or had not discussed the consequences of the sanction and implications of the adverse information. I also note that the Notice of Decision also clearly specified that the adverse information was in relation to ‘the applicant or a person associated with the applicant’. The Notice of Decision was issued to the sponsor before the nominations were lodged by XAP Technologies Pty Ltd.
At the hearing, Ms Tierney explained that the Applicant engaged the Former Migration Representatives as they were seeking to sponsor staff that had been engaged with a software company that the Applicant previously worked with in India. In seeking to sponsor these workers, the Applicant was also seeking to comply with Australian Privacy Principles that require the Applicant’s production data to be securely stored onshore.
Ms Tierney has provided a timeline in relation to the Applicant’s sponsorship application process:
14th Dec 2021, Xap engaged [Former Migration Representatives] to facilitate the sponsoring of these potential staff members from India. This supports the fact that Xap did not intend to circumvent the 23 Digital sponsorship ban. The sponsorship process for Abhishek Patel, Dipak Delvadiya and Jignesh Chauhan started well before 23 Digital received the NOITTA notification.
30th Dec 2021, [Former Migration Representatives] sent Xap a checklist of requirements to undertake a 482 visa sponsorship. Still well in advance of 23 Digital receiving the NOITTA notification.
24th Jan 2022, 23 Digital received their NOITTA letter.
Throughout Feb ’22 – Mar ’22, Xap continued to work with [Former Migration Agents] to prepare the sponsorship supporting documents.
28th March 2022 – Xap received email from migration agents that states “that the SC 482 nomination for Software Engineer has been screened to DoHA today”.
1st April 2022 – 23 Digital received the unfavourable decision to ban them from sponsorship.
11th April 2022 – Migration agent lodged the first of the 3 x 482 applications under Xap.
The Delegate considered that the Applicant, in saying that it ‘stepped up’ ‘in response to the predicament’ of the ‘sanction imposed on 23 Digital Pty Ltd’ and ‘took the initiative to sponsor these employees for the necessary visas,’ admitted that it was aware of the monitoring of 23 Digital. Therefore, the Delegate found that the Applicant had awareness of the 23 Digital monitoring.
However, irrespective of any awareness that the Applicant may have had, as mentioned above, the Tribunal has accepted that the Applicant did not have the opportunity to consider whether all of the information on the sponsorship applications was correct before they were submitted, as the Former Migration Agent did not get in contact with the Applicant prior to electronically lodging the sponsorship applications on their behalf. The Tribunal accepts the evidence of the Applicant’s professional, well-qualified executives, Ms Tierney and Mr Murphy, that had this opportunity been provided, they would have provided the Department with the correct information.

Ms Tierney conceded that there was a short overlap between 23 Digital receiving the adverse sponsorship ban decision, and the Applicant’s lodgement of the first of the sponsorship applications in issue on 11 April 2022. She says that there were 5-business days in this period. As 1 April 2022 was a Friday, and 11 April 2022 was a Monday, it is correct to say that there were 5 clear business days in this period. Irrespective of whether there were 5-business days, or 5 clear business days, the Tribunal considers this to be a relatively short period of time within which the Applicant should have realised that there was a possibility that the Former Migration Agents might submit the sponsorship applications without obtaining updated instructions, and without confirming that the information being submitted to the Department on the Applicant’s behalf was, in fact, still correct.
The Tribunal, like the Delegate, considers the common directorship between 23 Digital and the Applicant to be a significant factor that ordinarily would suggest that the Applicant, in failing to disclose the adverse information, had provided false or misleading information to the Department. However, there is no evidence before the Tribunal that the Applicant’s Directors had any awareness that their Former Migration Representative was proceeding to lodge its sponsorship applications, without confirming that the information contained in the electronic form was correct.
Here, the Former Legal Representatives, having acted for 23 Digital in relation to the adverse decision, knew or should have known, that the information they subsequently submitted to the Department on the Applicant’s behalf was not correct. This is because the Former Legal Representatives were aware of the adverse information, and also aware, or should have been aware, of the relationship between 23 Digital and the Applicant. This raises questions about the compliance by the Former Migration Representatives with their own ethical obligations, and the disadvantage that flowed to the Applicant as a consequence of the manner in which its sponsorship applications were handled.
The conflict of interest between the Applicant and 23 Digital
The evidence before the Tribunal includes a link to the Former Migration Representatives’ website, where they advertise that they are “The Best Immigration Lawyers”. In publicly representing themselves as such, it is reasonable for the Tribunal to assume that they are lawyers bound by the Australian Solicitor’s Conduct Rules.
The evidence before the Tribunal, from both Ms Tierney and Mr Murphy, establishes that the Former Migration Representatives did not relay the information that 23 Digital had received an adverse decision to the Applicant. The Tribunal observes that the Former Migration Representatives have a duty of confidentiality, and could not simply tell the Applicant about the adverse 23 Digital decision.
However, the Tribunal observes that, at the point in time at which the Former Migration Representatives became aware of the adverse 23 Digital decision, they were in a position of conflict vis-à-vis the Applicant. This is because the Former Migration Representatives then held confidential information (that of 23 Digital), which was adverse to the Applicant’s interests.
It is common ground between the Delegate and the Applicant that the adverse information concerning 23 Digital’s sanction was not declared to the Department in relation to the nomination applications that are the subject of these proceedings. The Tribunal accepts the evidence of Ms Tierney that she would have realised this information needed to be declared, as she has a solid understanding of general corporate practice and understood the meaning of associated entity. The Tribunal accepts, on the evidence before it from Ms Tierney and Mr Murphy, that the Applicant did not have the opportunity to confirm the information that was ultimately submitted to the Department by the Former Migration Representatives.
The Applicant has provided submissions to the Tribunal in relation to the possible conflict of interest position that the Former Migration Representatives found themselves in. Relevantly, the Application submits as follows:
Under Rule 11.4, it is clear that the information regarding 23 Digital’s sanction was adverse or detrimental to XAP, as the two entities are associated entities, and XAP has the obligation to disclose this information truthfully to the Department in their six nomination applications under Regulation 2.90; failing to do so ultimately led to the sponsorship sanction being imposed on XAP.
Under these circumstances, [Former Migration Representatives] could only continue to act for XAP if they obtained informed consent from XAP regarding: the existence or potential for a conflict of interests, potential disadvantages of the conflict, any advantages of the conflict to XAP or 23 Digital, any alternative representation available, and how [Former Migration Representatives] intended to manage the conflict.
In these circumstances, the Tribunal cannot overlook the very real possibility that the Former Migration Representatives continued to act for both 23 Digital and the Applicant, in a position of conflict. The importance of this is that, had the Former Migration Representatives ceased to act for the Applicant, or flagged the potential conflict of interest concerns, this would have triggered the Applicant to ask questions about the relevant matters before the Former Migration Representatives submitted the nomination applications to the Department.
There are serious questions, in the Tribunal’s mind, about the circumstances in which the Former Migration Representatives could continue to meet their own ethical obligations in lodging the Applicant’s sponsorship applications in circumstances where the Former Migration Representatives were aware of the adverse information. At the point in which the Former Migration Representatives became aware of the adverse 23 Digital decision, the evidence before the Tribunal strongly suggests that the Former Migration Representatives should have ceased to act for the Applicant.
Had there been evidence before the Tribunal to the effect that the Former Migration Representatives had obtained consent from 23 Digital to share the adverse information with the Applicant, the Tribunal would have formed a different view.
The potential conflict of interest involving the Former Migration Representatives is a significant mitigating factor, as the Applicant lost an opportunity to consider its position in relation to the conflict of interest. Had the Former Migration Representatives withdrawn, the Tribunal thinks it highly likely that the sponsorship applications would not have been lodged shortly after receipt of the 23 Digital decision. As the Tribunal has not heard from the Former Migration Representatives, it is difficult to form a concluded view about the appropriateness or otherwise of the conduct, and is beyond the scope of this Tribunal’s jurisdiction in any event.
There is ample evidence before the Tribunal suggesting that the Applicant had no contumelious intent in failing to declare the adverse information at the time it lodged the sponsorship applications.
For all of the reasons set out above, the Tribunal has concluded that it is reasonable to disregard the adverse information that became known to Immigration about the Applicant or a person associated with the Applicant. Therefore, the Tribunal finds that the Applicant meets reg 2.59(g)(ii),
Accordingly, the Tribunal is not satisfied that the prescribed circumstance in reg 2.91 exists for the purpose of s 140M of the Act.
Action to be taken
As the Tribunal found, above, that the prescribed circumstance in reg 2.90 exists, 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 current representative has provided comprehensive legal submissions, which accurately outline the evidence before the Tribunal, in relation to each of the prescribed criteria. The relevant portions of these submissions are extracted, below:
The purpose for which the information was provided
We submit that our client was genuinely unaware that false information regarding the omission to disclose 23 Digital's sponsorship sanction, was being provided to the Department at the time of the nomination applications. This lack of awareness was due to their agents' failure to provide an opportunity for our client to verify the accuracy of their own declaration. Consequently, our client had no means to determine whether providing incorrect information would influence the outcome of the nomination.
The [Former Migration Representative], was ignorant of the association between XAP and 23 Digital due to professional incompetence. This refutes the Department's view that the information about the association stemmed from the agent's professional incompetence, rather than any deliberate attempt to mislead in order to achieve a favourable nomination outcome.
The past and present conduct of the person in relation to Immigration
Upon becoming aware of the misleading information that had been provided, XAP promptly retained the services of a competent migration lawyer to guide them through the process of addressing the issue with the Department. XAP has submitted six Form 1023 – Notifications of Incorrect Answers to the Department, demonstrating their sincere intention and strong commitment to rectifying the erroneous information and ensuring that accurate details are provided to the Department.
Recently, two employees who were affected by XAP’s sponsor sanction decided to return to India, resulting in the cessation of their employment with XAP. XAP promptly informed the Department about their employment cessation within the legislated 28-day period, demonstrating their commitment to transparency and compliance with regulations.
No information has been uncovered regarding whether XAP has fulfilled its sponsorship obligations or met other necessary requirements.
XAP had been a standard business sponsor since 3 September 2020, and successfully nominated four 482/457 visa holders. They have not undergone any formal monitoring procedures.
XAP has not been found to provide false or misleading information in the past.
The nature of the information
The misleading information provided in response to the question regarding any adverse information concerning the application or associated individuals in six nomination applications is acknowledged. However, we contend that the delegate failed to raise this adverse information with our client during the initial assessment before approving the first nomination on 11 April 2022. Had the delegate provided our client with an opportunity to address the adverse information under section 57 of the Migration Act, our client would have been able to explain or correct the information, preventing further non-disclosures in all six nominations.
Furthermore, we submit that the delegate's approval of both the initial and subsequent nominations may constitute jurisdictional errors of procedural unfairness. This is due to the failure to consider the adverse information that was available to the Department at the time of assessment. By neglecting to thoroughly evaluate this adverse information prior to the approval of the six nominations, the delegate deprived our client of the opportunity to clarify or rectify the situation, leading to our client’s non-disclosure issues and resulting sanctions.
The delegate approved six nominations without reviewing the readily available adverse information within the Department about XAP’s association with 23 Digital. This oversight contributed to the dissemination of misleading information. Had the delegate properly reviewed all relevant information, the details of 23 Digital's sponsorship sanctions would not have been raised from the six nomination applications, and our client would have had the opportunity to rectify the situation.
Whether, and the extent to which, the provision of false or misleading information has had a direct or indirect impact on another person.
The provision of false or misleading information has had a direct and significant impact on other individuals involved in this matter. Specifically:
1)The non-disclosure of adverse information has resulted in the cancellation of our client's sponsorship, imposing a 12-month bar on further sponsorship applications. This consequence directly affects the visa status and employment of the nominated employees. As a result, the affected employees' visas may be cancelled, or their visa applications refused, disrupting their ability to continue working for our client.
2)The cancellation of our client's sponsorship and the potential visa implications for the affected employees will severely impact our client's business operations in the Early Childhood Education and Care (ECEC) sector. The loss of these skilled workers will create staffing shortages, potentially compromising our client's ability to maintain service levels and meet operational demands.
3)The affected employees themselves face significant uncertainty and disruption. Those whose visas are cancelled or refused may be required to depart Australia, resulting in personal and professional upheaval. Even for those able to remain in Australia, the need to seek alternative employment and potentially change career paths due to our client's inability to sponsor them will have far-reaching consequences on their lives and future prospects.
Whether the information was provided in good faith
We strongly disagree with the delegate's assertion that the information was provided "in an effort to deliberately conceal the adverse information, to avoid any unwanted scrutiny to the application."16 Our client did not act with any malicious intent as discussed above. There is no evidence to support the delegate's allegation of a deliberate effort to conceal adverse information.
Our client’s prompt actions upon becoming aware of the issue, including retaining a competent migration lawyer and submitting multiple notifications of incorrect answers, demonstrate their good faith intentions and commitment to rectifying the situation. These actions are inconsistent with any deliberate attempt to conceal or mislead.
Whether the person notified Immigration immediately upon discovering that the information was false or misleading
Our client was unaware that misleading information had been provided for the six nomination applications until they received a Notice of Intention to Take Action on 25 September 2023, and sought professional advice from a competent migration lawyer. Upon discovering the issue, our client promptly notified the Department by submitting six Form 1023 - Notifications of Incorrect Answers, as soon as it was practicable.
Our client's swift action in notifying the Department as soon as they were advised of solutions highlights their commitment to transparency and their desire to correct the erroneous information at the earliest possible opportunity.
Rather than attempting to conceal or prolong the issue, our client demonstrated a genuine willingness to cooperate with the Department and provide accurate information as soon as the circumstances came to light.
The Tribunal considers that the Applicant has provided a credible account of the circumstances which led to the provision of the false or misleading information to the Department. The Tribunal also observes that the evidence supports a finding that the Applicant is a conscientious corporate citizen, working in a sector where it endeavours to comply with significant regulatory frameworks. The Tribunal thinks this points to the Applicant being the sort of corporate citizen that would not consciously seek to mislead the Department.
The evidence supports a finding by the Tribunal that the Applicant did not know that the Former Migration Representatives were submitting the sponsorship applications to the Department as they did not seek updated instructions from the Applicant. Further, the evidence strongly suggests that the Former Migration Representatives acted in a position of significant conflict by continuing to act for both the Applicant and 23 Digital following their becoming aware of the adverse information.
That the Applicant, upon obtaining the current legal representatives, advised the Department of the incorrect information is a factor that bodes strongly in the Applicant’s favour, in suggesting that there was no deliberate attempt to provide false or misleading information to the Department.
Considering the totality of the circumstances and having regard to the prescribed criteria the Tribunal considers that none of the actions under s 140M should be taken.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to take one or more of the actions specified in s 140M of the Migration Act 1958 (Cth).
Bridget Cullen
Senior Member

ATTACHMENT – Extract from the Migration Regulations 1994
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.
…

[2024] AATA 2861

19 July 2024

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

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