Yiyun Corporation Pty Ltd (Migration)

Yiyun Corporation Pty Ltd (Migration) [2024] AATA 2476 (26 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Yiyun Corporation Pty Ltd
REPRESENTATIVE:  Mr Li Dennis Shen
CASE NUMBER:  2215878
HOME AFFAIRS REFERENCE(S):          OPF2021/13845
MEMBER:Amanda Mendes Da Costa
DATE:26 June 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision to take none of the actions under s140M of the Act.

Statement made on 26 June 2024 at 10.16am

CATCHWORDS
MIGRATION – cancellation – sponsorship cancellation – 1 year bar – applicant had failed to satisfy sponsorship obligations – false or misleading information – applicant failed to notify the Department when it changed its Head Office – applicant is now aware of the seriousness and necessity of standard business sponsors keeping adequate records regarding sponsored person – none of the actions under s 140M should be taken – decision under review set aside
LEGISLATION
Migration Act 1958, ss 140M, 376
Migration Regulations 1994, rr 2.83, 2.89,2.90, Schedule 2
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
1.This is an application for review of a decision made by a delegate of the Minister for 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 approved as a standard business sponsor on 5 July 2017. On 10 October 2022, the delegate decided to cancel the applicant’s approval as a temporary activities sponsor and bar it for a period of 12 months from making applications for approval as a standard business sponsor or temporary activities sponsor under s 140M on the basis that it had failed to satisfy its sponsorship obligations under reg 2.89 and provided false or misleading information in contravention of reg 2.90.
Mr Yiyun Wang (a director of the company) appeared before the Tribunal on 14 May 2024 to give evidence and present arguments on behalf of the applicant. The Tribunal also received oral evidence from Mr Wenzhe (Owen) Shi (the sponsored person)
The applicant was represented in relation to the review, with its representative also participating in the hearing.
The documentation provided to the Tribunal for the purpose of the review includes the following:
·Written submissions dated 29 August 2023 and 16 May 2024.
·Extracts of monthly financial overview reports of the applicant company, produced by the nominee.
·Extract of periodic answers from Internal Questionnaire checklists completed by Head of Departments for review by the nominee in auditing and assessing the performance of the business.
·Report authored by the nominee following a process audit of the applicant’s financial position in January 2023.
·Moorabbin Relocation Audit Plan for the applicant scheduled for September 2023.
·Working documents for the financial year 2022 to 2023, to which the nominee contributed.
·Group Budget Working documents for the 2022 to 2023 financial year, to which the nominee contributed.
·Extracts of updated product Quality Assurance documents for the 2022 to 2023 financial year.
·Income statements for the nominee for the financial years 2019 to date.
·Internal reporting checklist.
·Correspondence to Australian Border Force (ABF) dated 1 November 2023 regarding a change of business address for the applicant.
·ASIC notification of Dismissal of Winding Up application for the applicant.
·Subclass 186 nomination record identifying Xiang Zhong Liu as the migration agent for the applicant.
·Extracts showing ‘Tracy’ and Xiang Zhong Liu as being associated with VisaMaster Immigration and Education Centre (VisaMaster).
6.For the following reasons, the Tribunal has decided to set aside the decision under review and substitutes a decision to take none of the actions under s140M of the Act.
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 considered 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.
Non-Disclosure Certificate
The Tribunal notes that the Department has provided a Certificate (dated and signed by a delegate of the Minister on 7 November 2022) issued under s376 of the Act. In this Certificate the delegate states that the disclosure of the Department’s Sponsor Monitoring Unit’s Recommendation Report, Standard Tactical Plan and Operational Risk Assessment of TRIM reference numbers ADD2021/5841946, ADD/2021/6731322 and ADD2021/6731385 would be contrary to the public interest because it 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 Tribunal discussed this Certificate with Mr Wang during the hearing and advised him that subject to any comments or response by him, it considered that the Certificate is valid and that it was not appropriate to disclose the information referred to in the certificate which concerned the ABF’s method of investigating the applicant’s compliance with its sponsorship obligations.
Mr Wang indicated that he was not interested in obtaining information contained in the Certificate as it related to investigative methods rather than the substance of the allegations against the applicant.
Accordingly, the Tribunal has not disclosed the material referred to in the Certificate to either the applicant or its representative.
Background
The applicant was approved as a standard business sponsor on 5 July 2017 and on 6 September 2018 it nominated Wenzhe Shi (the sponsored person) under the subclass 457 visa program to work in the position of Internal Auditor ANZSCO 221214.
In the nomination form the applicant stated that the main duties of the position would be to:
·Conducting audits for each store and operating units across the business.
·Bringing a systematic and disciplined approach to risk management, control, and governance processes to ensure operations effectiveness, financial reliability and compliance with all applicable policies and procedures.
·Working with management to implement changes that will add to the minimization of perceived risks.
·Developing and designing audit objective and audit report , process criteria to ensure adequate financial controls and financial and operations integrity.
·Travelling to different offices and stores to meet relevant staff and obtain documents and information.
·Performing risk assessment and assigned department in required timeline.
·Conducting audit testing and identifying reportable issues and dimension of risk.
·Examining and evaluating the cost effectiveness and risks to the business operational and managerial processes, determining compliance with policies, procedures, and regulatory requirements.
·Providing findings on the existence and effectiveness of the system of internal controls and making recommendations to senior management.
·Working with management to implement changes that will add to the minimization of perceived risks.
·Preparing comprehensive and complete audit reports for management, shareholders, and governing bodies.
·Reviewing and updating internal audit plan.
The applicant also certified that the tasks of the position would include a significant majority of the tasks of the nominated occupation of Internal Auditor, as listed in the ANZSCO.
On 6 April 2022, the Australian Border Force (ABF) wrote to the applicant wrote to the applicant in the form of a Notice of Intention to Take Action (NOITTA) which stated that a delegate of the Minister was considering taking action under s140M of the Act based on the following identified circumstances:
·Regulation 2.89 Failure to satisfy sponsorship obligation.
·Regulation 2.90 Provision of false or misleading information.
The delegate identified the following breaches of the applicant’s sponsorship obligations under reg 2.89 as follows:
·Regulation 2.83          Obligation to provide records and information to the Minister.
·Regulation 2.84          Obligation to provide information when certain events occur.
·Regulation 2.86          Obligation to ensure sponsored person works or participates in the nominated occupation, program, or activity.
Regulation 2.83        Obligation to provide records and information to the Minister
Regulation 2.86(2) requires a standard business sponsor to ensure that its primary sponsored persons do not work in an occupation, other than that for which a nomination has been approved in relation to the primary sponsored persons.
On 21 December 2021, a notice was sent to the applicant (by the Department) requesting various records and information in accordance with the provisions of reg 2.83 and giving the applicant 28 days in which to provide it. On 17 January 2021, the applicant requested an extension of time in which to provide the records and information. This request was granted, and the applicant was given until 31 January 2021 to provide a response.
On 31 January 2021, the applicant provided a written response. However, the Department considered that the records and information omitted to demonstrate:
·What tasks were being performed by the primary sponsored person together with where those tasks were being performed.
·Who paid for the costs associated with recruiting the primary sponsored person and/or the migration costs associated with the nomination application.
·Evidence of research undertaken to establish the market rate which applied to the primary sponsored person for the period 1 June 2021 to 30 November 2021.
Regulation 2.84 Obligation to provide information
The applicant The applicant failed to notify the Department when it changed its head office address from Unit 2, 97-99 Cochranes Road, Moorabbin, Victoria to 131-133 Keys Road, Moorabbin, Victoria.
Regulation 2.86 Obligation in respect of the sponsored person’s work
On 14 December 2021 ABF officers attended the applicant’s business premises and interviewed Wenzhe Shi regarding his role. During the interview Mr Shi (via an interpreter) advised the following:
·His job is auditing and involves checking documents.
·He looks after internal reimbursements, checks for mistakes and reports these to his boss.
·Many of the company’s products come from China, so he checks the containers on arrival. He assesses the quality and quantity of the products.
·He works at a computer at a desk, and in the warehouse. He sends emails daily during his role.
·He reports to Jerry Wu.
Following the provision by the applicant on 31 January 2021 of information regarding Mr Shi’s role (as detailed above) the ABF emailed the applicant on 3 February 2022, advising that the position description given by it was insufficient to enable the Department to assess whether Mr Shi was working in his nominated occupation. The Department requested the applicant to provide additional information regarding Mr Shi’s role. In response the applicant provided seven documents which when translated were each demonstrated to be titled ‘JINHANG Production Department – Testing Record.’ The applicant also advised that the Internal Auditor role covers multiple parts of the business and over the past few years his role has moved into Supplier Chain auditing.
On assessing the above documentation, the Department found that Mr Shi was performing a role more closely aligned to the ANZSCO Unit Group 5911 (Purchasing and Supply Logistics Clerk). It further found that he had provided no information or evidence during his interview with ABF officers that suggested he performed any of the duties that would normally be expected of an Internal Auditor (in accordance with the ANZSCO description) and the applicant had not provided any evidence of this, despite being requested to do so on more than one occasion.
Regulation 2.90 Provision of false or misleading information
27.On 21 December 2021, the Department requested the applicant among other things to provide evidence which showed who paid for the costs associated with recruiting the primary sponsored person and the migration costs associated with the visa nomination and application.
On 10 February 2022, the applicant provided the Department with the following four invoices issued by VisaMaster:
·Invoice 1000115 Visa application fee (Subclass 457 sponsorship application fee) - $425.90.
·Invoice 1000089 Service fee (Subclass 457 visa application fee, 1^st instalment) - $2,500.
·Invoice1000163 Service fee (Subclass 457 nomination application service fee) - $2,000.
·Invoice 1000191 Visa application fee (Subclass 457 nomination application fee) - $334.62.
In response, the Department requested that the applicant provide evidence by way of bank statement regarding payment of the claimed amounts.
On 4 April 2022, the applicant bank statements from 2017 demonstrating that Invoice 1000115 and Invoice 1000190 were paid via bank transfer. However, the applicant advised that Invoice 1000089 and Invoice 1000163 had been paid in cash.
The payment of two invoices in cash led the delegate to find that Invoices 1000089 and 1000163 were fraudulently manufactured, or altered, to mislead the ABF and satisfy its obligation under reg 2.87.
Applicant’s response to the NOITTA
The applicant provided a written response to the NOITTA (dated 21 June 2022). Whilst the applicant acknowledged that it had overlooked notifying the Department of its change of business address it submitted that it overlooked this due to its involvement in other business activities.
The applicant further submitted that it genuinely believed that the documentation it provided to the Department regarding Mr Shi’s role and responsibilities substantiated that he performed the role of Internal Auditor. The applicant explained that it subsequently developed a more informed understanding of their sponsorship obligation regarding the provision of information to the Department and was unrepresented when it did provide the information.
The applicant submitted in respect of Invoice 1000089 and Invoice 1000163 that it had made enquiries of its previous legal representative, VisaMaster which advised that the amounts for each of these invoices was paid by bank deposit in accordance with the following entries:
·23 May Direct Credit 128594 Schiwenzhe Shiwenzhe 2,500.
·14 August Direct Credit 128594 Wenzhe SHI Wenzhe 2^nd pay $2,000.
The applicant explained that the above amounts were paid by Mr Shi’s sister Tianli Shi on 22 May 2017 and 11 August 2017 and are attributed to the service fees for migration agent assistance. The applicant submitted that it provided the Department with extracts of bank records from Ms Shi which indicated that the amount of $2,500 was paid on 22 May 2017 under the description “Shiwenzhe” and the amount of $2,00 was paid on 11 August 2017 under the description “Wenzhe Shi 2^nd pay” to VisaMaster’s bank account.
The applicant also provided a statutory declaration (dated 7 May 2022) by Ms Tianli Shi in which she explains that she made the payments from her account to assist her brother (Wenzhe Shi) who was overseas at the time. Ms Shi explains that she was reimbursed by the applicant in cash in July 2021.
Although Ms Shi states in her statutory declaration that she was unable to recall the exact date on which she was reimbursed by the applicant, she stated that there was an entry in her bank statement on 21 July 2017 showing a cash deposit of $3,500.
The applicant submitted in its NOITTA response that to assure the Department that it had covered the fees for the Subclass 457 nomination application for Wenzhe Shi, it again reimbursed Mr Shi but instead of cash payments, it did so by way of bank transfer in the full amount of $4,500.
The applicant submitted that this reimbursement complied with the applicant’s sponsorship obligations.
Evidence of Mr Yiyun Wang at the hearing
Mr Wang told the Tribunal that his father originally established the applicant’s business in 1996 when the company was registered. The original business model involved the company in exporting Australian products to China current business model for the company has been in operation since 2012 and involves the importing of LED lighting from China, which the business sells to Chinese railways. However, after a few years, Chinese businesses found replacement products in China, and the applicant’s business remained in abeyance for a few days until the business model changed in 2012.
For the past 12 years the principal activities of the business have involved the importation of cost-effective luminaire including LED lights from China which are principally sold on a wholesale basis. The applicant has a head office and warehouse in Melbourne together with another outlet in Altona in Melbourne and an outlet in Brisbane, New Zealand. The business has a further premises in China where its buyers are based.
The current head office address for the business is 13 Corporate Drive, Heatherton, Victoria. It was previously located at Unit 2, 97-99 Cochranes Road, Moorabbin, Victoria and 131-133 keys Road, Moorabbin, Victoria. The business employs 32 staff in Australia and four in China. Part form Mr Wang, the applicant employee’s other family members including Mr Wang’s parents, wife, and brother.
Although the business has grown substantially in the past eight years in September 2023 an application was made to the federal Court for winding up of the company. This was due to an oversight by an employee regarding the payment of a business debt. This matter was resolved, and the application was withdrawn. Otherwise, the business is in a sound financial position.
The applicant decided to apply for approval as a standard business sponsor in 2017 after it had undertaken the recruitment process for the position of Internal Auditor and has identified Mr Shi as the most suitable candidate for the position. Mr Wang comes for a financial background and when he took over the management of the business in 2016, he identified a need for an employee to review the financial decisions made by the business and provide strategic advice regarding the growth of the business. This is of particular importance as the business is family-operated and there is often a requirement for an independent person to make a contribution to family decision-making.

The applicant was the most suitable candidate for the position due to his experience in the financial sector in China, his knowledge of Chinese business practices and the fact that he is bi-lingual in the Mandarin and English languages.
The business has employed in the position of Internal Auditor since November 2018. During this period, his role has not changed, although during the Covid-19 pandemic, Mr Shi spent part of each day on other tasks not associated with his nominated occupation. This was due to the financial pressure on the business as a result of government restrictions, staffing shortages and the need to split shifts to reduce the number of employees working at the premises at one time.
The applicant accepts that there were periods in 2020 and 2021 when Mr Shi was undertaking tasks (particularly in the warehouse) which were not part of his job description and those contained in the ANZSCO dictionary for Internal Auditor. This was occurring when ABF officers interviewed Mr Shi at the business premises on 14 December 2021.
The company moved its head office address in January 2021 because it had outgrown the available space and the lease had expired. The applicant accepts that it failed to notify the Department of the move to 131-133 Keys Road, Moorabbin, Victoria. This was an oversight by the applicant during the busy move, the requirement to renovate the new premises and the fact that this was the first period of standard business sponsorship during which the applicant was not fully aware of its sponsorship obligations.
VisaMaster was previously the migration agent for both the applicant and Mr Shi. . The company paid the nomination expenses for the applicant and visa expenses for Mr Shi to Tianli Shi (Mr Shi’s sister). These payments were made in cash to Ms Shi in 2017 and later paid again by bank transfer in 2022 after ABF raised concerns about the payment of these expenses by Mr Shi’s sister. The payments were made in 2017 to refund Ms Shi who paid VisaMaster for the nomination and visa expenses and again in 2022 to satisfy ABF that it has in fact paid the amounts claimed.
The cash payment was made because the applicant was not aware at the time that it would be required to prove that it had paid the nomination and visa expenses. When asked about why Ms Shi paid the nomination expenses to VisaMaster in the first place Mr Wand said that he couldn’t recall exactly, and the applicant may choose to reimburse Ms Shi because she was handing her brother’s visa application on his behalf and the business was handling a lot of cash at this time.
Since the ABF raised concerns about its performance of its sponsorship obligations the applicant has made changes to recording Mr Shi’s tasks and responsibilities and the company has sought legal advice about the extent of its sponsorship obligations.
The cancellation of the applicant’s standard business sponsorship has been time consuming and expensive. However, more importantly it has made the applicant aware of the seriousness of sponsorship obligations and the need to keep accurate records about Mr Shi’s employment and his roles and responsibilities.
Mr Shi’s position is a genuine one and he currently undertakes the majority of the tasks set out for the occupation of Internal Auditor as set out in the ANZSCO dictionary.
Evidence of Mr Wenzhe Shi at the hearing
Mr Shi told the Tribunal that he had been employed by the applicant as an Internal Auditor since November 2018. He was referred to the business by his older sister Tianli Shi who lives in Australia. he holds a Bachelor of Business Administration and Accounting from a university in China and worked in the Finance industry for a government affiliated organization in China before coming to Australia. he commenced his employment with this organization as a member of the Auditing Team and was eventually promoted to the position of Team Leader.
Apart from periods during the Covid-19 pandemic in 2020 and 2021 his role as an Internal Auditor has not changed since his employment commenced. His duties currently involve undertaking financial auditing generally and also auditing for specific projects. He is involved in financial decision making for the company throughout Australia and new Zealand which includes the review of budget statements and financial projections.
Whilst some of his work requires the production of hard copy documentation, he is also involved in providing oral advice and making contributions to discussions with other employees and contributing to financial documents and information contained in the SharePoint system used by the applicant for internal employee communications.
Although he is not responsible for physically checking the containers arriving from China with stock, he is responsible for conducting stock audits. Given the recent expansion of the business, including the number of its business premises, he is required to contribute to the assessment of the financial viability of the growth of the business.
He acknowledges that he was working in the applicant’s warehouse on 14 December 2021 when he was interviewed by ABF officers. Due to staff shortages and limitations on the number of staff permitted to work together during the Covid-19 pandemic, he was undertaking other duties in order to maintain business operations at that time. He has since returned to performing only the duties associated with the position of Internal Auditor.
He had no prior notice of the visit by ABF officers on 14 December 2021 and was not prepared to be interviewed. Although he admitted to the officers that he was “helping” in the warehouse they probably misrepresented what he said as “working” in the warehouse.
When he applied for the subclass 186 visa his migration agent was named Tracey. As he was not able to physically pay the fees associated with the application because he was still living in China, his sister offered to take care of the payments on his behalf.
He was unable to recall the name of the visa agent for whom Tracy worked but didn’t think it was VisaMaster. He had no recollection of his siter paying the expenses associated with the applicant’s nomination application but didn’t think this had occurred.
His sister has never asked him to repay the monies expended by her on his behalf for his visa application.
Does a circumstance for the taking of an action exist?
63.In the present case, the delegate found that the applicant had failed to satisfy its sponsorship obligations under reg 2.89 and had provided false or misleading information under reg 2.90.
Failure to satisfy a sponsorship obligation: reg 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: reg 2.89(2).
Findings
Based on the evidence before it (including the evidence of Mr Wang at the hearing) that The Tribunal accepts that the applicant failed to notify the Department when it changed its Head Office from Unit 2, 97-99 Cochranes Road, Moorabbin, Victoria to 131-133 Keys Road, Moorabbin, Victoria,
The Tribunal therefore finds that the applicant has failed in its obligation under reg 2.84 to provide information when a certain event (i.e., change of Head Office) which constitutes a failure by the applicant to satisfy a sponsorship obligation pursuant to reg 2.89.
The Tribunal accepts that the only employee sponsored by the applicant is Mr Shi and that prior to the investigation of its activities by ABF officers Mr Yiyun had limited understanding of the applicant’s role as sponsor and the business’s record keeping practices were not thorough.
Whilst the Tribunal acknowledges that the applicant responded to the Department’s request (dated 21 December 2021) for documentation regarding Mr Shi’s employment with it, the tribunal finds that the applicant did not provide the requisite information regarding the tsks undertaken by Mr Shi in the position of Internal Auditor. Nor was the applicant able to prove records regarding the payments made by it to Tianli Shi as reimbursement of the monies she paid the VisaMaster on behalf of the company and her brother for the costs of the nomination and visa applications, respectively.
The Tribunal further notes that the applicant acknowledged to the Department that it did not undertake research in the period 1 June 2021 to 30 November 2021 for market rates relating to Mr Shi. The Tribunal accepts that the nominee was paid well within market rates for the position and provided evidence to the Department in support of its claims.
Based on the evidence before it, the Tribunal is satisfied that although the applicant did endeavour to provide the documents requested by the Department in its Notice dated 21 December 2021, it did not provide the requisite documents and therefore has not complied with reg 2.83.
However, the Tribunal accepts the applicant’s submission that when it received the Notice dated 21 December 2021 it had no previous experience as a business sponsor and its record keeping practices were limited. The Tribunal accepts Mr Yuyin’s oral evidence that the applicant has since improved its record keeping practices, particularly in respect of Mr Shi’s employment and his tasks and responsibilities as an Internal Auditor. The Tribunal further accepts that the applicant has sought legal advice regarding its sponsorship obligations. The Tribunal is satisfied that the applicant is now aware of the seriousness and necessity of standard business sponsors keeping adequate records regarding sponsored person.
Accordingly, the Tribunal is satisfied that the applicant has failed to provide records and information to the Department under reg 2.83 which constitutes a failure by the applicant to satisfy a sponsorship obligation pursuant to reg 2.89.
The Tribunal accepts that during the Covid-19 pandemic in 2020 and 2021 the applicant’s business experienced financial and staffing difficulties because of government restrictions on the operation of businesses and the number of staff permitted to work together in business premises. This led to the applicant instructing Mr Shi to perform tasks not related to the nominate position in addition to those tasks which were associated with the position of Internal Auditor. These additional tasks were predominantly in the applicant’s warehouse where he was interviewed by Departmental officers on 14 December 2021. The Tribunal is satisfied that during the Covid Pandemic Mr Shi was predominantly performing the role of Warehouse manager although it accepts that he has since returned to performing only the tasks of the nominated position.
Whilst the Tribunal has concerns about the inability of Mr Shi during the interview with Departmental officers to adequately describe the duties he performed as an Internal Auditor for the applicant, it acknowledges that he was not prepared to be interviewed and was nervous about being interviewed by Departmental officers. However, the Tribunal is satisfied from the evidence of Mr Yiyun and Mr Shi during the hearing that he is currently performing the majority of tasks associated with the position of Internal Auditor, as set out in the ANZSCO dictionary for the nominated occupation and has been since ABF officers took action to cancel the applicant’s standard business sponsorship.
Accordingly, the Tribunal is satisfied that the applicant has failed to ensure that the sponsored person (Mr Shi) worked or participated in the nominated occupation, program, or activity, which constitutes a failure to satisfy a sponsorship obligation under reg 2.89.
The Tribunal also has concerns about the explanation given by Mr Yiyun for Ms Shi’s initial payment of the costs associated with the nomination application by the company. The Tribunal accepts that Ms Shi (who lives in Australia) made the payments to her brother’s migration agent on his behalf because he was living in Chin at the time. However, the Tribunal does not accept that it was the responsibility of either Mr Shi (as the nominee) or his sister to pay for the nomination application. It finds Mr Yiyun’s explanation for the initial payments made by Ms Shi unconvincing. The Tribunal considers that the applicant would have retained records regarding the arrangements with its previous migration agent regarding the nomination application (including the fees involved) and does not accept that Mr Yiyun has been unable to obtain information about this.
However, the Tribunal is not satisfied that there is evidence before it which shows that Invoice 10000089 and Invoice 1000136 were fraudulently manufactured or altered in an attempt to mislead the ABF. The Tribunal notes that correspondence from VisaMaster dated 7 May 2022 which confirms that there were two transactions received by it which correspond to Invoice 10000089 with the description “Shiwenzhe” and Invoice 1000136 with the description “Wenzhe Shi 2^nd pay” and the payments were received by means of bank deposit. This information is consistent with the oral and written evidence of Ms Shi regarding the payments she made to Visa master on behalf of her brother.
Accordingly, the Tribunal is not satisfied that the applicant has provided false or misleading information pursuant to reg 2.90(2).
Findings
79.Based on the evidence before it, the Tribunal is satisfied that the prescribed circumstance in reg 2.89 exists for the purpose of s 140M of the Act.
80.However, the Tribunal is not satisfied that the prescribed circumstance in reg 2.90 exists for the purpose of s 140M of the Act.
Action to be taken
For these reasons, the Tribunal is satisfied that a relevant circumstance for s 140L(1)(a) exists. Accordingly, it is necessary to consider whether one or more of the actions mentioned in s 140M should be taken.
In considering what action to take, the Tribunal has had regard to the prescribed criteria, as extracted in the attachment to this decision and makes the following findings:
·The applicant was approved as a standard business sponsor on 1 April 2017 and was again approved as a sponsor on 6 July 2017.
·The applicant’s failure to satisfy its sponsorship obligations was reckless rather than intentional.
·The applicant has co-operated with the investigation by ABF officers and provided a response to the NOICC in a timely manner.
·The applicant has taken appropriate steps to rectify the failure to comply with its sponsorship obligations, including improved record keeping and ensuring that the Mr Shi is employed only in the role of Internal Auditor and not in other roles within the business.
·The applicant has implemented more accurate and systematic record keeping and its director has obtained legal advice about the applicant’s sponsorship obligations.
·There are no other sponsorship obligations that the applicant has failed to satisfy.
83.The Tribunal has also taken into account the period of time (12 months) in which the applicant was barred from making applications for approval as a standard business sponsor or temporary activities sponsor under s140M, as a result of the delegate’s decision.
84.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
85.The Tribunal sets aside the decision under review and substitutes a decision to take none of the actions under s140M of the Act.
Amanda Mendes Da Costa
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.
…
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.
…

[2024] AATA 2476

26 June 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Natural Justice