Xu Hong Bin (Migration)

Xu Hong Bin (Migration) [2020] AATA 5997 (24 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Xu Hong Bin
CASE NUMBER:  2001681
DIBP REFERENCE(S):  OPF2018/9931
MEMBER:R. Skaros
DATE:24 November 2020
PLACE OF DECISION:  Sydney
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 24 November 2020 at 3:22pm

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 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 a standard business sponsor on 27 June 2014 for a period of three years. On 14 January 2020, the delegate decided, under s.140M of the Act, to bar the applicant for a period of 12 months from making applications for approval as a standard business sponsor and temporary activities sponsor.
Mr Hong Bin Xu appeared before the Tribunal on 19 October 2020 to give evidence and present arguments. The Tribunal hearing was conducted by video with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing by telephone.
Non-disclosure certificate: s.375A
The Department’s file includes documents that are covered by a non-disclosure certificate under s.375A of the Act. The s.375A certificate states that disclosure of the specified documents, which included intellectual property, identification documents and intelligence supplied, would be contrary to public interest because it contains protected information, ABF internal reports, recommendations and intelligence gathered. While the public interest reason for non-disclosure of the affected documents is not clearly articulated in the certificate, it is apparent from the document descriptions on the certificate that disclosure of the information, which relates to investigative methods used by the Department to gather intelligence, may be prejudicial.
A copy of the certificate was sent by email to the applicant’s representative prior to the hearing. Issues relating to the validity of the certificate and relevance of the information covered by the certificate were discussed with the applicant and the representative at the hearing. The Tribunal acknowledged that some of the information in the documents covered by the certificate was relevant to the issues in the review, but noted that the information, to the extent that it was relevant, was disclosed to the applicant in the Notice of Intention to Take Action (the Notice) and that the applicant had an opportunity to respond to that information. After discussions about the nature of the information covered by the certificate, no issue was taken with the validity of the certificate.
Other information covered by the certificate, which included unsubstantiated allegations against the applicant by a person who claimed to be a former employee and information about persons who may or may not be associated with the applicant, was not considered by the Tribunal to be in any way relevant to the issues in this review.
The Tribunal is satisfied that the s. 375A certificate is valid and that the information relevant to the issues in the review have been disclosed to the applicant by the Department.
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 r.2.89 - r.2.94B of the Regulations 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.
Does a circumstance for the taking of an action exist?
In the present case, the delegate found that the applicant failed to satisfy sponsorship obligation in r.2.83 of the Regulations to provide records and information to the Minister and r.2.86 of the Regulations to ensure that the primary sponsored persons work in the nominated occupation.
Failure to satisfy a sponsorship obligation: r.2.89
The Minister may take one or more of the actions in s.140M if satisfied the sponsor has failed to satisfy a sponsorship obligation referred to in Division 2.19 of the Regulations: r.2.89(2).
Background
The applicant is a sole trader who operates a massage therapy business that trades as Mass-age Massage. The business operates from two retail locations in Western Australia, Kingsway and Currambine.
The applicant was initially approved as a standard business sponsor on 26 August 2013 for one year. On 27 June 2014 the applicant was approved for a further period of three years.
The applicant successfully nominated Li Song, Ching-Fen Wu and Xue Sun for positions to work in the business as massage therapists. The nominations in respect of Ms Song, Ms Wu and Ms Sun were approved on varying dates in 2014 and 2015. The nominated annual base salary for each visa holder was $54,000. The visa holders were granted their Subclass 457 visa for four years.
On 10 September 2018, the Department commenced monitoring the applicant. The applicant was issued with a Request for Documents and Information notice which required the applicant to provide to the Department, by the specified date, the requested documents and information to enable the Department to assess the applicant’s compliance with sponsorship obligations.
Information on the Department’s file indicates that while the applicant responded to the request notice by providing some documents, the applicant did not provide his bank statements covering the period between 1 July 2018 and 19 October 2018 as requested. It was noted that the applicant had instead provided the bank statements of the visa holders, some of which appeared to be screenshots which could not be verified.
Departmental officers conducted two site visits at the applicant’s business premises. The first was at the Kingsway location on 10 October 2018 and the second was at both the Kingsway and the Currambine locations on 20 March 2019. During the site visits officers spoke to some of the business’ employees. Details of the interviews and the officers’ observations were noted in the monitoring report.
On 10 May 2019, the applicant was issued with a Notice of Intention to Take Action (the Notice). In relying on information arising out of the site visits and the applicant’s failure to provide his bank statements, the delegate considered that the applicant had failed to comply with the following sponsorship obligations:
Regulation 2.83 Obligation to provide records and information to the Minister
Regulation 2.86 Obligation to ensure primary sponsored person works or participates in nominated occupation, program or activity
In relation to the obligation in r.2.83 of the Regulations to provide records and information to the Minister, the delegate set out the following reasons as to why the applicant had failed to comply:
The r.2.83 Request Notice request, is to the sponsor, for the sponsor’s records to evidence they can meet the obligations and provisions of their standard business sponsorship agreement.
Sponsors are required to maintain evidence that demonstrates the sponsored person was paid in a manner that can be verified by an independent third party under regulation 2.82(3)(e).
In response to the r.2.83 Request Notice the sponsor submitted the three visa holders, Li SONG, Ching-Fen WU and Xue SUN’s, bank statements in order to evidence the above.
As the sponsor is an operating business they would have their own third party verifiable records of payments made to the sponsored employees, however they did not provide these records within the prescribed time period, they instead provided the visa holders bank statements.
Two of the three supplied visa holder’s bank statements were able to be verified as being Li SONG and Ching-Fen WU with salary payments identified, however the one supplied for Xue SUN appeared to be screenshots taken from a mobile device. There are no identifying details on any of these screenshots as to whose account it is. Therefore it cannot be used as evidence for compliance with regulation 2.79.
In the contracts supplied by the sponsor in response to the r2.83 Request Notice, it states under ‘Ordinary hours of work’, the visa holder is to keep a timesheet setting out the hours they have worked.
‘Item 15’ of the r.2.83 Request Notice requested ‘Records of the hours worked each week by the visa holder/s for the period 1 July 2018 to 19 October 2018. If the visa holder works a split shift, please specify the hours of the split shift.’
In response to this item the sponsor did not provide these records but provided a Roster in Word format. The properties of this document evidence that it was created on 1 November 2018 and last modified on the same date. Therefore not a verifiable contemporaneous record.
The impact of not providing these timesheets was that r2.79 was not able to be assessed.
The delegate therefore considers that the sponsor has not complied with regulation 2.83 obligation.
In relation to the obligation in r. 2.86 to ensure that the sponsored persons work in the nominated occupation for the sponsor, the following information was set out in the Notice:
In response to the r2.83 Request Notice the sponsor provided each of the visa holder’s employment contracts and the memberships/registrations for Xue SUN and Li SONG to the appropriate industry providers.
During the site visit conducted by ABF at the sponsor’s place of business at Kingsway WA on 10 October 2018, it was established that Li SONG, Ching-Fen WU and Xue SUN were not in attendance.
The roster supplied by the sponsor in reply to the r2.83 Request Notice, shows that Ching-Fen WU and Xue SUN were on their weekly days off on the day of this first site visit (10 October 2018) but Li SONG should have been working that day, at Kingsway WA, from 0930 – 1700.
The payslip for Li SONG for this period does not record any leave taken during this pay period.
During this investigation it was identified there was another outlet of the sponsors business (XU, Hong Bin). This location is at Currambine Central Shopping Centre, 1244 Marmion Avenue CURRAMBINE, trading as Mass Age Massage.
Officers conducted a second site visit for this sponsor at both the CURRAMBINE and KINGSWAY businesses on 20 March 2019. Upon arrival at CURRAMBINE officers were greeted by Li SONG. During the interview with Li SONG they explained that they usually work at KINGSWAY but does ‘float’ between the locations to ensure staffing at both premises is adequate. She described her duties (in line with ANZSCO) and confirmed her tenure with the sponsor of over five years.
Further investigation by the Department identified that the sponsor is associated with other entities including Greenclassic Health Industry Pty Ltd (Greenclassic). The sponsor is a joint Director with his wife, Yan LUI, who is also an approved standard business sponsor trading as Natural Island Therapy which operates from Hawaiian’s Bassendean, Shop 34, 2 West Road, BASSENDEAN WA 6054. Greenclassic is registered as operating from Shop 20, 148 Scarborough Beach Road, MT HAWTHORN WA 6016 and also trades as Natural Island Therapy.
Reg 2.86(2A) allows a sponsored subclass 457 visa holder to work for an associated entity of the sponsor. In this case this would mean that the sponsor’s (XU) subclass 457 visa holders are able to work at either KINGSWAY or CURRAMBINE and MT HAWTHORN (associated entity).
The roster provided by the sponsor in response to the r2.83 Request Notice, lists Ching-Fen WU as working at KINGSWAY, as does her nomination application. During the second site visit to KINGSWAY on 20 March 2019, the identities of persons who work for the sponsor were verified by officers, no one by the name of Ching-Fen WU was identified and the group of workers that spoke to officers said there were no other workers apart from some casuals who come in when it is busy.
Whilst analysing the photos of the appointment book, taken with consent at the site visit, it appears ‘Olivia’s’ name was present for the 15 March 2019 and had very limited appointments in comparison with the other masseuses in the sponsors employ.
Ching-Fen WU / Olivia does not appear on the other five days of the appointment diary. Nor did they appear on the Staff Daily Running Sheet for the date of the second site visit, 20 March 2019.
‘Olivia’ is the name in the description of the sponsors wage payment transactions evidenced in Ching-Fen WU’s bank statement, provided by the sponsor in reply to the r2.83 Request Notice, as well as the appointment book on 15 March 2019. There were no records sighted of this name other than the hand-written entry in the diary.
I am of the view that both Ching-Fen WU and Xue SUN have not been working in their nominated occupations for the following reasons:
·They were not at the nominated workplace when ABF officers conducted the site visit on 10 October 2018 at KINGSWAY.
·Phone attempt made on 13 March 2019 to business landline reveal that a staff member did not know Ching-Fen WU and Xue SUN.
·They were not at the nominated workplace when ABF officers conducted the site visit on 20 March 2019 at KINGSWAY.
·Staff members present during the site visit on 20 March 2019 at KINGSWAY did not appear to know Ching-Fen WU.
·Sponsored persons not listed in the appointment book nor the staff daily running sheet.
As a consequence, the sponsor appears to not be complying with reg 2.86 pertaining to Ching-Fen WU and Xue SUN’s employment.
The Tribunal notes that the Notice also set out reasons for the delegate considering that another circumstance, being that in r. 2.90 of the Regulations, that the applicant had provided false or misleading information, existed for the purpose of taking action under s.140M of the Act, however, the delegate ultimately concluded that this circumstance was not made out. The Tribunal has come to the same conclusion as the delegate on this issue and for this reason it is not necessary to set out the information which gave rise to the suspicion relating to the circumstance in r.2.90.
Response to the Notice
The applicant responded to the Notice by providing submissions and supporting documents.
In relation to the failure to provide his bank statements for the period from 1 July 2018 to 19 October 2018, the applicant acknowledged that he did not provide his bank statements as requested. In explaining why he did not do so, the applicant stated that the reason he submitted the visa holders’ bank statements instead of his bank statements was because it would be easier for the Department to identify their salary payments from their bank statements as they do not have any other income. He stated that his bank statements have a large volume of transactions and it may not be easy to identify the payments. He also stated that the visa holders are not identified in the statements by their formal names, making it even harder to identify to whom salary payments had been made.
The applicant subsequently provided copies of his bank statements, which included the relevant period, with an explanation that the visa holders’ salary payments can be identified in the statements by their English names Sarah (Li Song), Linda (Xue Sun) and Olivia (Ching-Fen Wu).
In relation to the concerns raised about the roster, the applicant stated that he had already admitted to the Department that he does not keep a staff roster because the visa holders work standard hours regularly. The applicant explained that the visa holders work full time and that their payslips have a record of their work hours each week. He stated that after he was advised by the Department that it is a requirement to keep a roster to evidence the 457 employees’ work hours, he started keeping a roster. The applicant stated that the first roster was created on 1 November 2018 and that he has been diligently keeping it since that date.
In response to the concerns that Ms Li Song was not working during the site visit on 10 October 2018, the applicant stated that when the officers attended the practice at Kingsway, Ms Li Song (Sarah) was in the treatment room attending to a client. He stated that no one went into the room to look for her and she was not asked to come out of the room to meet the officers. The applicant attached various HICAPS claims receipts for service rendered by Ms Li Song on 10 October 2018.
In relation to the concerns raised regarding the visits conducted at Kingsway and Currambine on 20 March 2019, the applicant stated that the officers had spoken to both Ms Li Song and Ms Xue Sun. He stated that the person whom the officers spoke to when they visited the Currambine practice was Ms Xue Sun and not Ms Li Song, as indicated in the Notice. The applicant provided HICAPS claims receipt for service rendered by Ms Xue Sun on 20 March 2019 at Currambine. The applicant further stated that the officers had spoken with Ms Li Song on 20 March 2019 when they visited the Kingsway practice on the same day. The applicant provided HICAPS claims receipt for service rendered by Ms Li Song on 20 March 2019.
In response to the concern about the telephone calls made on 13 March 2019 to business’ landline during which a staff member did not know Ms Ching-Fen Wu and Ms Xue Sun, the applicant explained that most staff know Ms Xue Sun as ‘Linda’, and Ms Ching-Fen Wu as 'Olivia', so they would not have responded to the names ‘Xue Sun’ or ‘Ching-Fen Wu’. He stated that as the staff are from different backgrounds, they find formal names difficult to remember and pronounce.
In relation to the concern about Ms Wu not working at the Kingsway practice on 20 March 2019 and her name not appearing on the other five days of the appointment diary or the staff daily running sheet, the applicant provided the following explanation: that the officers’ first visit, on the 10 October 2018, was a Wednesday, which is the day Ms Wu normally has off. He stated that when the officers visited the second time, on 20 March 2019, it was also on a Wednesday, and that this was the reason for why Ms Wu was not at the Kingsway store. The applicant explained that when the staff were speaking to the officers they may not have appreciated the seriousness and importance of what they were saying to the offices and may not have given much thought to ensuring that they provided completely correct information about all the persons who work at the business.

In relation to the concerns about Ms Wu having limited appointments on 15 March 2019 and the very limited appointments in comparison with the others employed by the applicant, it was explained that the appointment book is not used as a roster. It was explained that some massage therapists have regular clients with regular appointments, while others, like Ms Wu may not have many regular clients and would normally attend to walk in clients who would not be recorded in the appointment book. The applicant further explained that Ms Wu’s provider application with Medibank had not been approved and that she was unable to treat customers covered by Medibank, which is the biggest private health fund in Australia.
The applicant stated that if a customer calls to make an appointment for remedial massage and does not specify a particular therapist, then they just record it as ‘Rx’, which stands for remedial massage, and that anyone with a provider number can attend to that client. He explained that if a massage therapist’s name does not appear in the booking diary, it does not mean that they do not have a full workload. The applicant also provided numerous HICAPS claims receipts for service rendered by Ms Wu on various dates in March 2019 which noted health funds other than Medibank.
Discussion of issues at the hearing
At the hearing, the applicant gave evidence that he established the massage therapy business in 2009 and that he continues to operate the two stores in Kingsway and Currambine. He stated that he has twenty employees, including the visa holders. The applicant confirmed that all three visa holders, Ms Song, Ms Sun and Ms Wu continue to work for him in a full-time capacity for 38 hours a week.
the Tribunal discussed with the applicant the concerns set out in the Notice regarding the alleged non-compliance. In response to the Tribunal’s query about why he did not provide his bank statements as requested by the Department, the applicant stated that the reason he provided the visa holders’ bank statements instead of his was to make it easier for the Department to identify the payments of wages to the visa holders as they would not have been able to do so from his bank statements due to large number of transactions and the description of the payments. The Tribunal noted that he could have identified the payments on his statements and/or provided an explanation about how the officers could check which payments on the statements were in respect of the visa holders. The applicant acknowledged that he was in error and stated that he misunderstood the requirements and provided his bank statements as soon as he became aware that it was an issue.
In relation to the roster, the applicant reiterated the evidence given to the Department in response to the Notice. He also stated that prior to November 2018, he had not kept a roster because his employees, including the visa holders, worked regular hours. He stated that the visa holders consistently worked 38 hours a week.
The Tribunal also discussed the site visits and the concerns raised by the delegate in the Notice regarding the employment of the visa holders, particularly Ms Sun and Ms Wu. In his evidence, the applicant gave evidence that the visa holders have worked for him on a full-time basis as massage therapists since their 457 visas were granted. He stated that he cannot explain why the Department thought that the officers had only spoken to Ms Song and that there must have been some confusion as Ms Sun had also spoken to officers and answered their questions about the work she does and whether she provides acupuncture. The applicant was unsure about whether the officers had asked Ms Sun to provide a copy of her identification.
After the hearing, the Tribunal received a statutory declaration from Ms Sun detailing, to the best of her recollection, the questions she was asked by the Department’s officer who interviewed her on 20 March 2019. She stated that she was not asked to provide her ID.
In relation to the concerns about the employment of Ms Wu, the applicant’s evidence was consistent with his response to the Department. He stated that Ms Wu works primarily at the Kingsway store and that if the officers had visited the site on a day other than Wednesday, they would have been able to speak with her.
Considerations
The Tribunal has carefully considered all the evidence before it as follows.
Regulation 2.83 requires the applicant, who was an approved work sponsor, to provide certain records and information to the Minister when requested. The records or information must be provided within the period specified. The records or information that the Department can request relevantly include those that the applicant is required to keep under a law of the Commonwealth, or a State or Territory and records required to be kept under r. 2.82 of the Regulations.
Regulation 2.82 requires the applicant to keep specified records to demonstrate compliance with the sponsorship obligations, which includes ensuring equivalent terms and conditions or employment as required by r.2.79. Regulation 2.82(3A) specifies the types of records required to be kept by sponsors in respect of that obligation, which relevantly includes a record of any money paid to the primary sponsored person. The records must be maintained in a manner capable of being verified by an independent person.
Under the Fair Work Act 2009 and Fair Work Regulations 2009 employers are required to keep records for each employee which includes the hours of work.
In this case, the applicant was found to have breached the requirement in r.2.83 due to a failure to provide his bank statements as requested by the Department in the Request for Information notice. The Tribunal acknowledges that the applicant did not provide the requested document within the period specified by the delegate, however, the Tribunal considers that the other documents or information provided by the applicant to the Department, when considered in combination, would, in the Tribunal’s view, satisfy the obligation in r.2.83 requiring the applicant to provide the types of records specified in r.2.82.
While the applicant did not provide the exact documents requested by the Department, he nevertheless provided other documents, which included payslips for the visa holders and their bank statements which showed that they had received regular wage payments from the applicant. The Tribunal considers that these records, when cross-matched, would have enabled the Department to verify whether the visa holders had received their wage/salary entitlements.
The Tribunal acknowledges that the delegate was unable to ascertain, from the screenshots of the bank statements, whether Ms Wu was in fact the said account holder. While this may have been an inconvenience, the Tribunal nevertheless considers that this omission could have easily been rectified. The Department could have requested the applicant to provide the original bank statements which could have been cross matched with the screenshots of the bank statements provided to the Department within the specified period.
The Tribunal further notes that the applicant, upon receipt of the notice, promptly provided his bank statements for the relevant period which showed the transfer of wages to his employees, including the visa holders who were identified on the bank statements as ‘Olivia’, ‘Linda’ and ‘Sarah’, which is consistent with information before the Department noting the English names that the visa holders were known by. This information, in the Tribunal’s view, would have verified the information contained in the screenshots of Ms Wu’s bank statements indicating that she had been receiving her wage/salary entitlements from the applicant for the relevant period.
In relation to the roster or the request for records of the hours worked by each visa holder for the relevant period, the Tribunal notes that the applicant has admitted that he did not keep a roster and that he had only commenced keeping a roster since November 2018 after being visited by the Department’s officers who advised him that he was required to keep a roster detailing the hours worked by each employee.
The applicant is required under Commonwealth legislation to keep a record of the hours worked by his employees, the Tribunal notes however that this need not be in the form of a roster and can be satisfied, as in this case, by recording the number of hours a person has worked in each pay period. The Tribunal has considered the applicant’s explanation that the reason he did not keep a roster is because his employees worked set hours each week which is recorded on their payslips.
The Tribunal has had regard to the payslips provided by the applicant to the Tribunal and observes that the payslips record the number of hours worked each week by each visa holder, being a set 38 hours each week. The Tribunal considers that the applicant has kept the records required in respect of the hours worked by each visa holder.
On the evidence before it, the Tribunal is satisfied that the applicant has provided records relating to the monies paid to each of the visa holder and their hours of work, being records that were kept by the applicant as required by the sponsorship obligations and under Commonwealth law. There is nothing on the Department’s file which raises concerns about the integrity or reliability of those documents.
Having carefully considered the evidence before it, the Tribunal is satisfied that the applicant has complied with the sponsorship obligations in r.2.83 to provide the requested records and information.
The Tribunal now turns to consider the evidence relating to the sponsorship obligation in r.2.86 of the Regulations.
Regulation 2.86(2), to which the applicant is subject, requires the sponsor to ensure that the visa holders work in their nominated occupation and that they do not work in an occupation for which they have not been approved.
The Tribunal has had regard to the concerns raised in the Notice regarding the employment of each of the visa holders, however, the Tribunal formed the view that each of those concerns have been satisfactorily addressed by the applicant.
In relation to Ms Li Song not being located at the Kingsway store when the officers visited on 10 October 2018, the Tribunal accepts as plausible the explanation that Ms Li Song was in the treatment room with a client and that the officers had not specifically asked to speak to her. The Tribunal notes that this information appears consistent with records on the Department’s file which indicate that officers were informed, when they visited the Kingsway site on 10 October 2018, that there was another worker in the treatment room attending to a client and that they had not requested to speak to that worker as they did not want to disrupt the business. The Tribunal considers it is entirely plausible that the employee who was in the treatment room at the time of the site visit was Ms Li Song. The Tribunal also notes that Ms Li Song was interviewed by officers during their second visit at the Kingsway store, on 20 March 2019, during which she confirmed her employment as a massage therapist for the applicant. Furthermore, HICAPS receipts for massage services rendered by Ms Song were provided to the Department. On the totality of the evidence, The Tribunal is satisfied that Ms Song worked in the nominated occupation of Massage Therapist for the applicant.
The Tribunal also accepts as credible that Ms Wu was not at the Kingsway or Currambine Stores during site visits because they both occurred on a Wednesday, being Ms Wu’s regular day off. The Tribunal also notes that Ms Wu’s English name (Olivia) does appear in the appointment diary, copies of which were on the Department’s file. While the Tribunal acknowledges the Department’s concern that Ms Wu did not appear to have bookings every day of the week, the Tribunal accepts as credible the applicant’s explanation that the diary is reserved for booked appointments and that Ms Wu also services walk-in clients and clients who book for remedial massages without specifying a particular therapist. The Tribunal has also considered the HICAPS receipts for massage services rendered by Ms Wu which further supports the applicant’s evidence regarding Ms Wu employment. On the evidence before it, the Tribunal is satisfied that Ms Wu worked for the applicant in the nominated occupation of Massage Therapist.
The Tribunal has also considered the evidence regarding the employment of Ms Sun. The Notice indicates that Ms Sun was not at the applicant’s store in Kingsway when officers visited on 20 March 2019, however, the applicant claims that Ms Sun was at the Currambine store and that officers had interviewed her. The Tribunal had regard to the information in the statutory declaration received after the hearing from Ms Sun in which she detailed the questions asked of her by the officers and her responses. The Tribunal notes that her evidence is consistent with records on the Department’s file about the types of questions asked by the officers during the site visit. The Tribunal considers it plausible that the Notice may have erroneously indicated that officers were greeted by Ms Li Song at the Currambine store as Ms Song was at the Kingsway on that day and was also interviewed by the officers when they visited. Furthermore, the HICAPS receipts for Ms Song indicate that she was working at the Kingsway store and not at the Currambine store. Furthermore, the HICAPS receipts for services rendered by Ms Sun indicate that she was at the Currambine location. It is therefore entirely plausible that the person interviewed by the Department’s officers at the Currambine store on 20 March 2019 was Ms Sun and not Ms Song as indicated in the Notice. The Tribunal considers, on the totality of the evidence, that Ms Sun had worked for the applicant in the nominated occupation of Massage Therapist.
Given the above considerations, the Tribunal is satisfied that the visa holders did work for the applicant in their nominated occupation of Massage Therapist. There is no information before the Tribunal which suggests that the visa holders had any other employment or that they worked in an occupation for which they had not been approved.
The Tribunal is accordingly satisfied that the applicant has complied with the sponsorship obligations in r.2.86(2) to ensure that the sponsored person work in the occupation for which they have been nominated.
Given the above findings, the Tribunal is not satisfied that the prescribed circumstance in r.2.89 exists for the purpose of s.140M of the Act.
Conclusion
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.
R. Skaros
Senior Member

ATTACHMENT – Extract from the Migration Regulations 1994
2.89   Failure to satisfy sponsorship obligation
…
(3) For paragraph 140L(1)(b) of the Act, the criteria that the Minister must take into account in determining what action (if any) to take under section 140M of the Act in relation to the circumstance mentioned in subregulation (2) are:
(a)    the past and present conduct of the person in relation to Immigration; and
(b)    the number of occasions on which the person has failed to satisfy the sponsorship obligation; and
(c)     the nature and severity of the circumstances relating to the failure to satisfy the sponsorship obligation, including the period of time over which the failure has occurred; and
(d)    the period of time over which the person has been an approved sponsor; and
(e)     whether, and the extent to which, the failure to satisfy the sponsorship obligation has had a direct or indirect impact on another person; and
(f)     whether, and the extent to which, the failure to satisfy the sponsorship obligation was intentional, reckless or inadvertent; and
(g)     whether, and the extent to which, the person has cooperated with Immigration, including whether the person informed Immigration of the failure; and
(h)    the steps (if any) the person has taken to rectify the failure to satisfy the sponsorship obligation, including whether the steps were taken at the request of Immigration or otherwise; and
(i)    the processes (if any) the person has implemented to ensure future compliance with the sponsorship obligation; and
(j)     the number of other sponsorship obligations that the person has failed to satisfy, and the number of occasions on which the person has failed to satisfy other sponsorship obligations; and
(k)    any other relevant factors.
…

[2020] AATA 5997

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice