1511969 (Migration)

1511969 (Migration) [2016] AATA 3418 (7 March 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Indian Grill Pty Ltd
CASE NUMBER:  1511969
DIBP REFERENCE(S):  OPF2015/1452
MEMBER:Bruce Henry
DATE:7 March 2016
DECISION:The Tribunal affirms the decision under review.
Statement made on 07 March 2016 at 1:42pm

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 4 April 2013. On 18 August 2015, the delegate decided to bar the sponsor for two years from making future applications for approval as a standard business sponsor under s.140M. The Department determined that the applicant failed to satisfy the obligation to ensure equivalent terms and conditions of employment to one of their sponsored employees over a period of two years, from the time he commenced working for the applicant.
Mr Taranbir Gill, who said that he is a Director of the applicant company, appeared before the Tribunal on 4 March 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Gursamarpreet Singh, who is the visa holder said to have been underpaid by the applicant.
For the following reasons, the Tribunal has decided to affirm the decision under review.
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 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 had failed to satisfy a sponsorship obligation. The delegate had concluded from information gathered during a monitoring exercise conducted by the Department that the visa holder was underpaid $15,400.47 by the applicant. The delegate found that the applicant had acknowledged the breach and paid the full amount to the visa holder.
The departmental file includes the applicant’s response to the Department’s monitoring letter. A letter from the applicant’s representative stated:
Thanks for your email on 17/07/2015. In the notice of intent to take action you have mentioned that the department of immigration has reason to believe the sponsor failed to satisfy this sponsorship obligation because the sponsor did not meet the requirements of the obligation Regulation 2.79 Obligation to ensure equivalent terms and conditions of employment.
The business understands its obligations towards its sponsored employee and ensures that it will strictly follow the regulations under migration act in future.
Please find the following documents attached as a supporting evidence towards this letter:
·A statutory declaration by employee, Mr Gursamarpreet Singh
·A signed letter from business accountant
·Deposit bank receipts of two payments made by company to sponsored employee
In attached declaration provided by the employee, the employee declared that there the employer did not ever request the employee to work over 38 hours per week. However, as directed by the department of immigration on 17/07/2015 the employer decided to pay the employee in full for the total duration since he worked for the employer. Please find the evidence of payments attached with this letter. Total amount of $15,400.47 has been paid to Gursamarpreet Singh by Indian Grill Pty. Ltd. By [sic] bank deposit at Commonwealth bank on 29/07/2015.
Our client also insures that all regulations will always be strictly followed by the standard business sponsor. We ensure you that the directors and shareholders of Indian Grill Pty. Ltd. Are aware of the consequences and will not make any mistake in future.
The letter from the accountants stated that ‘Mr Singh was underpaid for his work for the year ended 30 June 2014 and 2015. He was paid for 38 hours per week when he should have been paid for 45.5 hours per week.’
The statutory declaration by the visa holder, Gursamarpreet Singh, said:
I am sponsored on subclass 457 visa by Indian Grill Pty. Ltd.
The terms and conditions of my employment has been as per terms and mentioned in fair work act 2009
My employer has never requested me to work over 38 hours per week. Whenever I worked over 38 hours per week I worked voluntarily because of my passion for the business.
On 29/07/2015 my employer deposited the following amounts towards my wages.
·AUD 7916.65
·AUD 7483.82
The above figures are calculated by our business accountant and I confirm that the above figures are true and correct. …
I further declare that my employer is one of the most genuine and honest employers around.
During the course of the review the applicant provided the Tribunal with a copy of the delegate’s decision and copies of the response from the representative to the Department with the attachments referred to in that response.
The Tribunal notes that the delegate’s decision states that ‘On 22 April 2015, the Department conducted an unannounced site visit at the sponsor’s restaurant’. No record of this visit appears on the departmental file provide to the Tribunal other than an incomplete ‘Site visit and Interview Proforma’, notwithstanding the obligation contained in s.352(4) of the Act for the Secretary of the Department to provide all relevant documents to the Tribunal.
The departmental file also contains notes indicating that it was the intention of the delegate to issue a certificate to the Tribunal under s.375A of the Act prohibiting the Tribunal from disclosing certain information on the file. Again, the purported certificate consists of an incomplete ‘proforma’ which is unsigned and does not identify the file to which it was intended to relate.
The incomplete ‘Site visit and Interview Proforma’ contains a note that an allegation had been received by the Department that ‘the sponsor has been charging for visas. In addition to the 457 visa holder, 2 other nominations have been approved for RSMS’.
The delegate’s decision record includes the statements that:
On 4 August 2015, the Department rang the visa holder Gursamarpreet Singh, at work on 02 6293 4008 who confirmed that he was repaid the underpayment of $15,400.47 by the sponsor. …
The visa holder Gursamarpreet Singh is being paid for 38 hours per week when in fact he works 45.5 hours a week as stated in his interview in the course of the site visit conducted by the Department on 22 April 2015. …
There is also no record on the file of the telephone call referred to by the delegate in the decision, or of other telephone calls referred to in the Recommendation Report.
The Recommendation Report on the departmental file states that when Mr Singh was interviewed on site ‘he said he commenced work on 1 April 2013 and his position was a Chef. He works seven days a week. Mondays to Fridays 11am to 2.30pm and 5.30pm to 9.30pm, totalling 45.5 hours per week’.
The delegate concluded:
The failure to satisfy the obligation to ensure equivalent terms and conditions of employment appears to be reckless. The visa holder Gursamarpreet Singh was paid for working 38 hours per week when in fact he worked 45.5 hours a week. For a period of two years, there is an underpayment of $15,400.47 which since has been repaid to the visa holder.
The sponsor has provided evidence that they have repaid the visa holder this underpayment. The delegate does not accept the sponsor’s response that: the employee declared that the employer did not ever request the employee to work over 38 hours per week. The Department received information in the course of a site visit conducted on 22 April 2015 that the 457 visa holder was underpaid and on 5 May 2015, the commencement of monitoring letter was sent to the sponsor. The visa holder confirmed in a telephone conversation with the Department on 4 August 2015 that he received the underpayment. I am satisfied that this underpayment was only repaid to the visa holder because the department had commenced monitoring.
At the hearing Mr Gill told the Tribunal that he had not been present during the visit to the restaurant by the Department and thus had not been there when Mr Singh was interviewed. He said that Mr Singh ‘did not always work on Sundays’ in the restaurant. He said that when Mr Singh had started work at the restaurant in April 2013 he had just moved from Brisbane and did not know anyone in Canberra other than the staff at the restaurant. As a result he was lonely on Sundays when he was not at work, and so started going to the restaurant just for company and to talk to the staff. He said that Mr Singh never cooked when he was at the restaurant on Sundays, although he would occasionally help in other ways, ‘like getting something from the fridge’ for the other staff if the restaurant was busy.
Mr Gill said that when the applicant received the letter from the Department stating that Mr Singh had been underpaid they simply paid him the amount specified in the letter because ‘we couldn’t afford to lose him so we didn’t argue’.
The Tribunal pointed out to Mr Gill that his evidence appeared to contradict the statements made in the letters from the applicant’s representative and the accountants as well as Mr Singh’s statutory declaration, all of which had been provided to the Department along with evidence of the payment of the amount specified by the Department. The Tribunal asked Mr Gill to explain this contradiction, and he responded that his representative had already written to the Tribunal to explain that the earlier response was not accurate and that Mr Singh had not worked at the restaurant on Sundays.
The Tribunal advised Mr Gill that it had received no such information from the representative. He replied that he had on his phone a copy of an email that his representative had sent to the Tribunal. The Tribunal accordingly adjourned the hearing to enable Mr Gill to contact his representative to ask for a copy of the email to be provided.
The representative then sent to the Tribunal an email which stated (errors in original):
Dear Tribunal member,

Please note the following factors for today's hearing. There may have been a confusion because of a statement provided by the accountant.

The factors are mentioned below:
·The 457 visa holder Mr Gursamarpreet Singh was physically present at Indian Grill restaurant for approximately 45 hours, but was working for 38 hours per week only. Gursamarpreet Singh was not working for 45 hours per week, even though he was physically present in he restaurant.
·As per letter from the business accountant dated 31/7/2015, the accountant has not consider that the employee was in fact not working for over 38 hours. In that letter the accountant was under an impression that the pay has been calculated as the visa holder was working 45 hours per week. But in-fact the visa holder was working for 38 hours as mentioned above.
When the hearing resumed the Tribunal pointed out to Mr Gill that his representative’s email did not indicate that any earlier material had been sent to the Tribunal, but rather repeated the evidence given by Mr Gill earlier in the hearing. His response was difficult to understand, but he appeared to indicate that the email he had referred to earlier related to a different matter and he had been confused.
Pursuant to its obligations under s.359AA of the Act, the Tribunal put to Mr Gill the information contained on the departmental file that an allegation had been received on 9 December 2014 that ‘the sponsor has been charging for visas. In addition to the 457 visa holder, 2 other nominations have been approved for RSMS’. The Tribunal explained to Mr Gill that no further particulars of the allegation could be provided as the file did not contain any proper record of the allegation, but that if the Tribunal accepted that the allegation was true that information would constitute a reason for the Tribunal to affirm the delegate’s decision.
The Tribunal asked the applicant whether he wanted to respond to the information immediately or whether he would like time to consider his response before replying. He said that he wanted to respond immediately, and said that the allegation was not true. He said that he had never been paid to procure a visa for anyone, and that Mr Singh is a genuine cook as are the other two nominees he has employed under the RSMS scheme.
The Tribunal asked Mr Gill whether the applicant has continued to pay Mr Singh for 45.5 hours per week since the back payment was made in July 2015. He said that since that date Mr Singh has been told not to come to the restaurant on Sundays and he has been paid for 38 hours work from Monday to Saturday.
Mr Singh then told the Tribunal that he started work as a cook at the restaurant in Canberra in April 2013. He said that he had never paid money to the applicant or anyone else for the visa, other than paying the migration agent for his visa application an amount of ‘about $500 or $600’.
Mr Singh said that he had always worked 38 hours a week at the restaurant. The Tribunal asked him why he had told the departmental officers who visited the restaurant that he worked seven days a week, and he replied that he had not said that he worked seven days, but that he came to the restaurant every day. The Tribunal put to him that this differed from the Department’s records of the visit, and he insisted that he had never said that he worked more than 38 hours a week.
The Tribunal put to Mr Singh that he had said in his statutory declaration that was provided in response to the Department’s notice to the applicant that ‘My employer has never requested me to work over 38 hours per week. Whenever I worked over 38 hours per week I worked voluntarily because of my passion for the business.’ He said that this was not right and that he only went to the restaurant on Sundays to ‘chitchat with the boys and the boss’.
Failure to satisfy a sponsorship obligation: r.2.89
The Minister may take one or more of the actions in s.140M if reasonably satisfied the sponsor has failed to satisfy a sponsorship obligation referred to in r.2.78 - r.2.87A of the Regulations in the manner or within the period prescribed: r.2.89(2).
As a result of the deficiencies in the departmental file provided to the Tribunal, were it not for the applicant’s response to the Notice that is set out above the Tribunal would have had no option but to set aside the decision and remit this matter back to the Department. Given the applicant’s response, however, the Tribunal is satisfied that Mr Singh was underpaid and that this underpayment continued from the grant of the visa until the monitoring exercise carried out by the Department.
In making that finding the Tribunal has preferred the evidence provided by the representative in response to the Department’s notice to that of Mr Gill and Mr Singh at the hearing. The Tribunal found the evidence of both unconvincing, and does not accept Mr Gill’s claim that the version of events given in evidence to the Tribunal differed from the earlier response simply because the applicant did not wish to lose Mr Singh’s services and thought it best not to argue with the Department. As the Tribunal pointed out to Mr Gill at the hearing, the response from his representative, and the supporting documents from the applicant’s accountant and Mr Singh all conceded that Mr Singh had worked more than 38 hours and had not been paid for that extra work. In all of that material it was claimed that he had done the work voluntarily and without being asked, not that he had not worked.
Accordingly, the Tribunal is satisfied that the earlier evidence should be accepted.
In relation to the information on the departmental file as to the allegation that the sponsor was paid to procure visas, the Tribunal is not satisfied on the evidence that this occurred and has disregarded this information in making its findings in the matter.
In the circumstances, for the reasons explained above, on the basis of the applicant’s response to the Department’s monitoring letter the Tribunal is satisfied that the applicant has failed to satisfy r.2.79, the obligation to ensure equivalent terms and conditions of employment to the visa holder, Mr Singh, as Australian workers doing the same work as Mr Singh are entitled to be paid for the hours that they work.
Accordingly, the Tribunal is satisfied that the prescribed circumstance in r.2.89 exists for the purpose of s.140M of the Act.
Action to be taken
For these reasons, the Tribunal is satisfied that a relevant circumstances 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. The criteria to be considered where there is failure to comply with sponsorship obligation, are set out in r.2.89(3). In relation to these factors, the Tribunal finds:
The past and present conduct of the person in relation to Immigration
There is no evidence that the applicant has otherwise failed to cooperate with the Department.
The number of occasions on which the person has failed to satisfy the sponsorship obligation
The breach the subject of this application was detected on the first occasion that the applicant was monitored by the Department.
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
The Tribunal is satisfied that this breach occurred over the entire period of the sponsorship until it was detected as a result of the Department’s monitoring action, and that the underpayment of Mr Singh was a serious breach given the hours that he was working. The Tribunal does not accept the evidence given at the hearing that Mr Singh was simply visiting the restaurant on Sundays, nor does it accept that he was not working when he was there.
The period of time over which the person has been an approved sponsor
The applicant has now been an approved sponsor for almost three years.
Whether, and the extent to which, the failure to satisfy the sponsorship obligation has had a direct or indirect impact on another person
The failure to satisfy the sponsor’s obligations had a clear detrimental effect on Mr Singh, as he was underpaid by a substantial amount over a lengthy period of time.
Whether, and the extent to which, the failure to satisfy the sponsorship obligation was intentional, reckless or inadvertent
The Tribunal has rejected the evidence given by Mr Gill at the hearing, and on the basis of the written response made to the Department’s notice about the suspected breach is satisfied that the breach was intentional.
Whether, and the extent to which, the person has cooperated with Immigration, including whether the person informed Immigration of the failure
The breach was detected as a result of the Department’s monitoring action, and while the underpayment was rectified when brought to the applicant’s attention, the Tribunal is satisfied that this would not have occurred had the Department not conducted the monitoring action.
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
As noted above, the underpayment was rectified when brought to the applicant’s attention by the Department.
The processes (if any) the person has implemented to ensure future compliance with the sponsorship obligation
Mr Gill told the Tribunal at the hearing that Mr Singh has been told not to work on Sundays.
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
There is no evidence that other sponsorship obligations have not been satisfied.
Any other relevant factors
The Tribunal considers that the evidence given by Mr Gill at the hearing that Mr Singh was visiting the restaurant every Sunday to talk to his friends rather than to work was untrue.

Considering the totality of the circumstances, and having regard to the prescribed criteria the Tribunal finds that the action taken by the Department under the authority of s.140M(1)(d) to bar the applicant for two years from the date of the decision, 18 August 2015, from making future applications for approval as a standard business sponsor is an appropriate sanction.
DECISION
The Tribunal affirms the decision under review.
Bruce Henry
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.
…

[2016] AATA 3418

7 March 2016

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Natural Justice

Breach

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