(c) a temporary work sponsor in relation to a primary sponsored person or a secondary sponsored person; or
(d) a temporary activities sponsor in relation to a primary sponsored person or a secondary sponsored person; or
(e) a parent sponsor.
(2) For subparagraph 140L(1)(a)(i) of the Act, the circumstance is that the Minister is satisfied that the person has failed to satisfy a sponsorship obligation mentioned in Division 2.19.
(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
(1) This regulation applies to a person who is or was:
(a) a standard business sponsor; or
(b) a professional development sponsor; or
(c) a temporary work sponsor; or
(d) a temporary activities sponsor; or
(e) a parent sponsor.
(2) For subparagraph 140L(1)(a)(ii) of the Act, an additional circumstance is that the Minister is satisfied that the person has provided false or misleading information to Immigration or the ART.
(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
(1) This regulation applies to a person who is or was:
(a) a standard business sponsor; or
(b) a professional development sponsor; or
(c) a temporary work sponsor; or
(d) a temporary activities sponsor; or
(e) a parent sponsor.
(2) For subparagraph 140L(1)(a)(ii) of the Act, an additional circumstance is that the Minister is satisfied that:
(a) the person no longer satisfies the criteria prescribed under subsection 140E(1) or (1A) of the Act at the time the person was approved as a work sponsor or family sponsor (as the case may be); or
(b) if the terms of the approval of the person as a standard business sponsor, temporary work sponsor, temporary activities sponsor or parent sponsor have been varied—the person no longer satisfies the criteria prescribed under section 140GA of the Act at the time of the approval of the variation.
(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.
2.92 Contravention of law
(1) This regulation applies to a person who is or was:
(a) a standard business sponsor; or
(b) a professional development sponsor; or
(c) a temporary work sponsor; or
(d) a temporary activities sponsor; or
(e) a parent sponsor.
Contravention of law by person
(2) For subparagraph 140L(1)(a)(ii) of the Act, an additional circumstance for the person is that the Minister is satisfied that the person has been found by a court or a competent authority to have contravened a Commonwealth, State or Territory law.
(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 circumstances mentioned in subregulation (2) are:
(a) the past and present conduct of the person; and
(b) the nature of the law that the person has contravened; and
(c) the gravity of the unlawful activity; and
(d) any other relevant factors.
Contravention of law by primary sponsored person
(4) For subparagraph 140L(1)(a)(ii) of the Act, an additional circumstance for a standard business sponsor, a temporary activities sponsor or a temporary work sponsor, in relation to a primary sponsored person, is that the Minister is satisfied that each of the following applies:
(a) the primary sponsored person has been found by a court or a competent authority to have contravened a Commonwealth, State or Territory law;
(b) the law was a law relating to the licensing, registration or membership of the primary sponsored person in relation to the primary sponsored person’s approved occupation;
(c) the primary sponsored person was required to comply with the law in order to work in the occupation nominated by the standard business sponsor, temporary activities sponsor or temporary work sponsor and approved by the Minister.
(5) 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 circumstances mentioned in subregulation (4) are:
(a) whether the person took reasonable steps to prevent the primary sponsored person from contravening a law relating to a licensing, registration or membership requirement of the primary sponsored person’s approved occupation; and
(b) whether any other primary sponsored person, while in the employ of the person, has been found by a court or a competent authority to have contravened a law relating to a licensing, registration or membership requirement; and
(c) the processes (if any) the person has implemented to ensure future compliance with the licensing, registration or membership requirements of a primary sponsored person’s approved occupation; and
(d) any other relevant factors.
2.93 Unapproved change to professional development program or special program
(1) This regulation applies to a person who is or was:
(a) a professional development sponsor; or
(b) a special program sponsor; or
(c) a temporary activities sponsor who is conducting, or has conducted, a program referred to in subclause 408.228(2) (youth exchange program) or (5) (other program) of Schedule 2.
(2) For subparagraph 140L(1)(a)(ii) of the Act, an additional circumstance is that the Minister is satisfied that the person made a change to:
(a) if the person is or was a professional development sponsor—the professional development program; or
(b) if the person is or was a special program sponsor—the special program; or
(c) if the person is or was a temporary activities sponsor referred to in paragraph (1)(c)—the program referred to in that paragraph;
without the approval in writing of the Secretary.
(3) For paragraph 140L(1)(b) of the Act, the criteria that the Minister must to 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 severity of the conduct; and
(b) the past conduct of the person in relation to Immigration; and
(c) the impact, if any, that the taking of the action may have on the Australian community; and
(d) the extent to which the barring of the person as a work sponsor will be an adequate means of dealing with the matter, having regard to:
(i) the seriousness of the inability, or of the failure, to comply; and
(ii) the past conduct of the person; and
(e) any other relevant factors.
2.94 Failure to pay additional security
(1) This regulation applies to a person who is or was a professional development sponsor.
(2) For subparagraph 140L(1)(a)(ii) of the Act, an additional circumstance is that the Minister is satisfied that the person has failed to pay an additional security requested by an authorised officer under section 269 of the Act.
(3) For subregulation (2), a person has failed to pay an additional security if the person has failed to pay the security:
(a) within 28 days of the day on which the person was requested to pay the security; or
(b) within a longer period as allowed by an authorised officer in the request.
(4) For paragraph 140L(1)(b) of the Act, the criteria that the Minister must to 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 severity of the conduct; and
(b) the past conduct of the person in relation to Immigration; and
(c) the impact, if any, that the taking of the action may have on the Australian community; and
(d) the extent to which the barring of the person as a work sponsor will be an adequate means of dealing with the matter, having regard to:
(i) the seriousness of the inability, or of the failure, to comply; and
(ii) the past conduct of the person; and
(e) any other relevant factors.
2.94A Failure to comply with certain terms of special program agreement or professional development agreement
(1) This regulation applies to a person who is or was:
(a) a special program sponsor; or
(b) a professional development sponsor; or
(c) a temporary activities sponsor who is conducting, or has conducted, a program referred to in subclause 408.228(2) (youth exchange program) or (5) (other program) of Schedule 2.
(2) For subparagraph 140L(1)(a)(ii) of the Act, an additional circumstance is that the Minister is satisfied that:
(a) if the person is or was a special program sponsor—the person has not complied with a term or condition of the special program agreement in relation to which the special program sponsor was approved; or
(b) if the person is or was a professional development sponsor—the person has not complied with a term or condition of the professional development agreement in relation to which the professional development sponsor was approved; or
(c) if the person is or was a temporary activities sponsor—the person has not complied with a term or condition of the special program agreement referred to in paragraph 408.228(2)(c) or (5)(c) (as the case requires) of Schedule 2.
(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 current conduct of the person in relation to Immigration; and
(b) the extent to which the person has not complied with the special program agreement or professional development agreement; and
(c) the number of occasions on which the person has failed to comply with the special program agreement or professional development agreement; and
(d) any other relevant factors.
2.94B Change of circumstances relating to approved family sponsor etc.
For the purposes of subparagraph 140L(1)(a)(ii) of the Act, an additional circumstance in relation to a person (the first person) who is or was an approved family sponsor of another person (the sponsored person) is that the Minister is satisfied of any of the following:
(a) the first person has been involved in:
(i) activities that endanger or threaten any individual; or
(ii) activities disruptive to, or violence threatening harm to, the Australian community or a group within the Australian community;
(b) adverse information about the first person, or another person associated with the first person, has become known to Immigration;
(c) the first person, or the sponsored person, has an outstanding public health debt;
(d) there has been a material change in the circumstances on the basis of which the first person was approved as a family sponsor.
Division 2.21—Process to bar sponsor or cancel sponsor’s approval
2.95 Preliminary
(1) This Division applies to a person who is or was an approved sponsor (other than a party to a work agreement).
Note: The Minister cannot take action against a party to a work agreement under section 140M of the Act. The terms of the work agreement will provide for whether the agreement can be cancelled or whether the person can be barred from doing certain things under the agreement.
(2) If the Minister is taking action against a person under section 140M of the Act, the Minister must do so in accordance with the process set out in this Division.
2.96 Notice of intention to take action
(1) If the Minister is considering taking action under section 140M of the Act in relation to the person, the Minister must give a written notice to the person.
(2) The notice must:
(a) specify details of the circumstances prescribed under section 140L of the Act in relation to which action is being considered; and
(b) specify details of the actions that the Minister may take; and
(c) specify the address for providing a response to the Minister; and
(d) be given using a method mentioned in section 494B of the Act; and
(e) specify a date for a response not earlier than 7 days after the date a person is taken to have received the notice by section 494C of the Act.
2.97 Decision
The Minister must consider a response before making a decision if the person:
(a) provides a response to the Minister before the date mentioned in paragraph 2.96(2)(e); or
(b) provides a response:
(i) after the date mentioned in paragraph 2.96(2)(e); and
(ii) before the Minister has made the decision.
2.98 Notice of decision
(1) If the Minister decides to take action under section 140M of the Act, the Minister must notify the person, in writing, of the following matters:
(a) the decision taken by the Minister, including the effect of the decision;
(b) the grounds for making the decision;
(c) if the person has a right to have the decision reviewed by application under Part 5 of the Act—state:
(i) that the decision can be reviewed by the ART; and
(ii) the time in which the application for review may be made; and
(iii) who can apply for the review; and
(iv) where the application for review may be made;
(d) if an action is to bar the person:
(i) details of how the person can apply for a waiver of the bar; and
(ii) the address to which a request for a waiver, if made, must be sent.
(2) If a notice is issued under regulation 2.96, and the Minister decides to take no action under section 140M of the Act, the Minister must notify the person, in writing, of the decision to take no action.
Division 2.22—Waiving a bar on sponsor’s approval
2.99 Application
This Division applies to a person who is or was an approved sponsor other than a party to a work agreement.
2.100 Circumstances in which a bar may be waived
For subsection 140O(2) of the Act, a circumstance in which the Minister may waive a bar is that the Minister has received a request from the person to waive the bar.
2.101 Criteria for waiving a bar
(1) For the purposes of subsection 140O(3) of the Act, the criteria to be taken into account by the Minister in determining whether to waive a bar placed on an approved work sponsor are:
(a) whether the person has made the request to waive the bar in accordance with the process set out in regulation 2.102; and
(b) if the Minister has not previously refused to waive the bar:
(i) whether the interests of Australia would be significantly affected if the bar were not waived; and
(ii) whether a substantial trade opportunity would be lost if the bar were not waived; and
(iii) whether there would be a significant detriment to the Australian community if the bar were not waived; and
(iv) whether the person’s inability to sponsor a proposed primary sponsored person would significantly damage Australia’s relations with the government of another country; and
(v) whether significant new evidence or information has come to light which was not available at the time the decision to place the bar was made; and