1602513 (Migration)

1602513 (Migration) [2016] AATA 4597 (1 November 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Australian Academy of Sports Limited
CASE NUMBER:  1602513
DIBP REFERENCE(S):  OPF2014/101
MEMBER:Glen Cranwell
DATE:1 November 2016
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal varies the decision under review by deciding under s.140M(1)(d) to bar the applicant from making future applications for approval as a standard business sponsor for a period of 1 year from the date of the delegate’s decision.
Statement made on 01 November 2016 at 3:11pm

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 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 standard business sponsor on 5 December 2011. On 9 February 2016, the delegate decided to bar the applicant for 3 years from making future applications for approval as a standard business sponsor under s.140M.
The applicant was represented in relation to the review by its registered migration agent.
On 12 September 2016 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 1 November 2016. The hearing was scheduled to be conducted in Brisbane, on the basis that the applicant had provided an address in Bokarina, which is approximately 97 km from Brisbane. The hearing invitation stated:
If you are not able to attend the hearing Australian Academy of Sports Limited should advise us as soon as possible. Please note that we will only change this date if satisfied that Australian Academy of Sports Limited has a very good reason for being granted an adjournment. If we do not advise you that an adjournment has been granted, Australian Academy of Sports Limited must assume that the hearing will go ahead.
If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable Australian Academy of Sports Limited to appear before us … [emphasis added]
At 10:24 am on 31 October 2016, a Tribunal officer recorded the following interaction with the applicant:
Call from RA. Hearing scheduled for tomorrow but he is between Sydney and Melbourne for the rest of the week. I asked that he put any request for postponement in writing.
At 10:41 am on 31 October 2016, the Tribunal received an email from the applicant’s representative requesting a 1 week extension. A medical certificate was provided from a doctor in Auburn, NSW, which stated:
This is to certify that Mr Admed Sokarno will be unfit for work due to a medical condition from Monday, 31 October 2015 to Wednesday, 2 November 2016 inclusive.
At 2:36 pm on 31 October 2016, the Tribunal wrote to the representative in the following terms:
Please be advised that the Tribunal Member has requested that the review applicant will need to provide medical evidence setting out the applicant's condition and specifically stating he is unfit for a tribunal hearing. Otherwise there will be no adjournment.
At 3:32 pm on 31 October 2016, the Tribunal received an email from the representative attaching a revised medical certificate, which stated:
This is to certify that Mr Admed Sokarno will be unfit for work due to upper respiratory tract infection and ear infection from Monday, 31 October 2015 to Wednesday, 2 November 2016 inclusive.
The Tribunal notes that the revised medical certificate does not specifically state that the applicant is unfit for a hearing as requested. It is trite to observe that being unfit for work does not necessarily mean that an applicant is unfit for a Tribunal hearing of up to 2 hours duration. The Tribunal has concerns that the original contact with the Tribunal by the applicant did not refer to illness, but referred only to his presence in Sydney and Melbourne for the rest of the week. In these circumstances, the Tribunal is not satisfied that the applicant is suffering from a medical condition such that he is unfit to participate in a hearing.
Further, the Tribunal notes that the applicant advised the Tribunal that he would be in Sydney and Melbourne for the week. The medical certificate was issued in Sydney. In the Tribunal’s view, it is open for it to conclude that the underlying reason for the postponement request is that the applicant made travel arrangements which were inconsistent with attendance at a hearing in Brisbane. The Tribunal does not consider that this conduct should be rewarded with a postponement in circumstances where the applicant had over 6 weeks’ notice of the hearing. The Tribunal notes that no request for a video or telephone hearing was received by it.
The Tribunal did not advise the applicant that an adjournment had been granted, and the applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
12.For the following reasons, the Tribunal has decided to vary the decision under review by deciding under s.140M(1)(d) to bar the applicant from making future applications for approval as a standard business sponsor for a period of 1 year from the date of the delegate’s decision.
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?
17.In the present case, the delegate found that the applicant failed to satisfy r.2.89 and r.2.90.
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).
The applicant provided the Tribunal with a copy of the Department’s decision. The decision contains the following statement of the factual background:
Background
On 15 January 2014, Departmental officers visited the sponsor's business address at the corner of Sports Drive and Morala Avenue, Runaway Bay, ()Id, 4216. During this visit a Commencement of Monitoring Letter (COML), requesting records and information under Regulation 2.83, was hand delivered to a representative of the sponsor. None of the sponsored visa holders named in the COML (that is Amitabahen Bhaveshkumar Patel, Hemantkumar Mulajibhai Barot and Bhavikkumar Rameshbhai Patel), nor the sponsor's Chief Executive Officer (CEO), Mr Ahmad Sokarno, were present at the business premises at the time of this visit.
On 24 January 2014, the sponsor provided a response to the COML through its nominated registered migration agent, Mr Mofid Bebavvy.
On 12 March 2014, officers from the Department undertook a second site visit to the sponsor's business address at the corner of Sports Drive and Morala Avenue, Runaway Bay, Old, and found the premises to be empty. Officers were advised that the business had moved its operations to a new address, that is Level 1, 10 Scarborough Street, Southport, Qld.
Officers then visited the Level 1, 10 Scarborough St, Southport site and located the business, noting there was no signage promoting the business. Officers were advised during the visit that none of the sponsored visa holders (that is Amitabahen Bhaveshkumar Patel, Hemantkumar Mulajibhai Barot and Bhavikkumar Rameshbhai Patel) were at work, and that Mr Sokarno was currently travelling interstate for work.
As the sponsored visa holders were not present at either business address, officers then contacted three visa holders by phone to discuss their employment activities and conditions, that is Amitabahen Bhaveshkumar Patel, Hemantkumar Mulajibhai Barot and Bhavikkumar Rameshbhai Patel. Officers also attempted to call a fourth subclass 457 visa holder, Jaspreet Kaur, on two occasions, but the calls were not answered.
On 4 April 2014, a 'Notice requesting records and/or information' under Regulation 2.83 was sent to the sponsor by email, requesting a detailed description of the duties and tasks performed by five sponsored visa holders, that is:
·Ms Amitabahen Bhaveshkumar Patel, who was nominated on 20 September 2012 to work for the sponsor in the position of 'Network Administrator' (occupation code 263112 in the Australian and New Zealand Standard Classification of Occupations (ANZSCO)) at the sponsor's premises at the corner of Sports Drive and Morala Avenue, Runaway Bay, Qld.
·Mr Hennantkumar Mulajibhal Barot, who was nominated on 2 June 2012 to work in the position of 'ICT Business Analyst' (ANZSCO code 261111) at the sponsor's premises at the corner of Sports Drive and Morala Avenue, Runaway Bay, Qld;
·Mr Bhavikkumar Rameshbhai Patel, who was nominated on 24 May 2013 to work in the position of 'Marketing Specialist' (ANZSCO code 225113) at the sponsor's premises at the corner of Sports Drive and Morala Avenue, Runaway Bay, ad;
·Ms Jaspreet Kaur, who was nominated on 25 October 2013 to work in the position of 'Customer Service Manager' (ANZSCO code 149212) at the sponsor's premises at the corner of Sports Drive and Morala Avenue, Runaway Bay, Qld; and
·Ms Amritpal Kaur, who was nominated on 8 November 2012 to work in the position of 'Community Worker' (ANZSCO code 411711) at the sponsor's premises at the corner of Sports Drive and Morala Avenue, Runaway Bay, ()Id, and then on 16 April 2013 to work in the position of 'Customer Service Manager' (ANZSCO code 149212) at the sponsor's premises at the corner of Sports Drive and Morale Avenue, Runaway Bay, Qld.
The notice also requested a list of the primary location where each sponsored visa holder worked, given that on the two previous site visits none of the above-named sponsored visa holders were present at their nominated work location. On 30 April 2014, the sponsor provided a response to the notice advising the duties undertaken by, and the work locations of, four of the sponsored visa holders. Specifically, the sponsored advised that:
·Jaspreet Kaur works in the position of 'Customer Service Manager' at 1/10 Scarborough Street, Southport, QId;
·Bhavikkumar Rameshbhai Patel works in the position of 'Marketing Specialist' at 2/39 Queen Street, Auburn, NSW;
·Amitabahen Bhaveshkumar Patel works in the position of 'Network Administrator' at 1/10 Scarborough Street, Southport, ad; and
·Hemantkumar Mulajibhai Barot works in the position of 'Systems Analyst' at 1/10 Scarborough Street, Southport, Qld.
The sponsor also provided a long list of duties allegedly undertaken by each of these visa holders.
The sponsor failed to provide any information about Amritpal Kaur in its response to the notice.
On 20 May 2014, officers from the Department conducted a second (announced) site visit at the sponsor's Southport business address and spoke with sponsored visa holders, Amitabahen Bhaveshkumar Patel and Jaspreet Kaur. Officers were advised that visa holder, Hennantkumar Mulajibhai Barot, was working on the Sunshine Coast in another Australian Academy of Sports office at 320 Nicklin Way, Bokarina, Qld.
On 24 June 2014, officers attempted to visit the Sunshine Coast office at 320 Nicklin Way, Bokarina, QId. The building directory indicated that the sponsor had an office at this location, however the office was empty with the doors closed and no lights on.
On 1 July 2014, officers attempted a second visit at the Sunshine Coast office and found the premises closed. Officers also noted that the interior of the office closely resembled the previous visit, with no indication that the premises had been occupied between visits.
On 18 July 2014, a NOITTA was sent to the sponsor, which identified the following sponsorship obligation failures:
·Regulation 2.84 - Obligation to provide information to Immigration when certain events occur
·Regulation 2.86 - Obligation to ensure primary sponsored person works or participates in nominated occupation, program or activity
In relation to Regulation 2.84, it was noted that the sponsor had failed to advise the Department in accordance with the requirements set out in Regulation 2.84 of its change of business address from Runaway Bay to Southport.
In relation to Regulation 2.86, it was noted that the Department had concerns that Amitabahen Bhaveshkumar Patel was not working in her nominated position of 'Network Administrator', based on her responses during telephone interviews, which indicated that she did not have the specialist knowledge to undertake the duties of this role. Concerns were also raised that Hemantku mar Mulajibhai Barot was not working in his nominated position of 'ICT Business Analyst' because Mr Barot was not present at work during three site visits conducted by the Department at the sponsor's Runaway Bay and Southport addresses, and because he provided responses during a short telephone interview on 12 March 2014 which indicated that he did not have the specialist knowledge to undertake the duties of an ICT Business Analyst.
On 23 July 2014, officers received a phone call from sponsored visa holders, Amitabahen Bhaveshkumar Patel and Hemantkumar Mulajibhai Barot, who advised they had been sent a copy of the NOITTA and were calling to discuss the content. Rather than discuss their duties over the phone, monitoring officers decided to invite both visa holders to the Department for a face-to-face interview. Accordingly, on 24 July 2014, Ms Patel and Mr Barot were invited, via Mr Bebawy, to attend an interview at the Department's Brisbane office on 31 July 2014.
In attendance at the interview on 31 July 2014 were two officers from the QLD Sponsor Monitoring Unit and a third officer from the Department's 'Information and communications technology' area, who was engaged to provide subject matter expertise, given that both Ms Patel and Mr Barot were nominated to work in IT-related occupations.
During her interview, Ms Patel:
·identified the clearing of a printer jam as an example of her specialised work;
·was unable to provide an explanation of the difference between a print server and a file server; and
·advised that to attach a new PC to the network she would utilise a cable on a wireless network.
Overall, her responses indicated that she was working mainly in an administrative / receptionist type role and not in the more highly skilled position of 'Network Administrator'.
During his interview, Mr Barot:
·provided a low complexity response within the single example provided (Paperport), which took 10 hours to complete;
·stated that he undertook an analysis of, and developed training material on, a $99 product, which performs many of the same functions as a standard Microsoft product and/or are readily available on a freeware basis;
·stated that he undertook a wide range of system analyst and systems maintenance work on a Saturday; and
·advised that the majority of his role involves data entry of student information.
In a letter dated 1 August 2014, the sponsor responded to the NOITTA of 18 July 2014, indicating that the 'administration office' had moved to 1/10 Scarborough St, Southport, QLD, response also advised that Mr `Bharof [sic] is 'fulfilling his duties as an ICT Business Analyst and has shown his great technical skills and depth of knowledge', while Ms Amitabahen Bhaveshkumar Patel 'is fulfilling her duties as a Network Administrator and is a highly valued member of our team'.
On 5 August 2014, the sponsor provided a Paperport training guide, entitled 'User Training Guide, PaperPort Professional 14', which contained the name of 1-lemant Barot' on each of the 10 pages, as further evidence of the work undertaken by Mr Barot.
On 10 August 2015, a second NOITTA was sent to the sponsor, providing further information that would be taken into account in the assessment of Regulation 2.86, namely the information that both Ms Patel and Mr Barot had provided at interview on 31 July 2014, and that it appeared that Mr Barot was not working in his nominated position of `ICT Business Analyst', but more as a Data Entry Operator (ANZSCO code 532111).
The second NOITTA also identified a deemed failure of Regulation 2.90 - Provision of false or misleading information, because Departmental investigations indicated that the Paperport training guide that had been provided to the Department as evidence that Mr Barot was working in his nominated position had been plagiarised from a resource called 'Paperport 14 Getting Started Guide' located on the Internet.
On 18 August 2015, the sponsor provided a response to the second NOITTA, which contained letters from sponsored visa holders, Ms Amitabahen Bhaveshkumar Patel and Mr Barot, addressing their job descriptions and daily duties.
In his letter, Mr Barot stated that he currently works for the sponsor as a Business/System Analyst `to provide solutions to my client including Academic divisions, business policies and services. As part of my role, I have to daily work with business users, build and maintain strong relation [sic] with business owners and other stack holders [sic] of the academy to ensure that we continue to support business needs regularly'. Mr Barot goes on to provide a long list of duties specific to his role.
In her letter, Ms Patel states that she works 'on client side for our client Australian Academy of Sport Ltd. My main duty is to maintain and monitor existing Server for our client. If Students complains [sic] about any network issues or any server crash or any performance issues then as part of my role, I have to troubleshoot the issue and fix it. Make report of the issue so that if the issue arise [sic] again then we can follow the same steps to fix it'. Ms Patel goes on to describe what she does 'on day to day base [sic]', as well as her current project to build 'Online Management Systems for our client'.
On 19 August 2015, the sponsor provided a further response to the second NOITTA, which contained a letter from the CEO, Mr Sokarno, addressing the duties undertaken by sponsored visa holders, Ms Amitabahen Bhaveshkumar Patel and Mr Barot. In this letter, Mr Sokarno advised that Mr Barot is employed as a Business Analyst and his daily activities are in line with this position. Mr Sokarno further advised that Ms Patel is employed as a Network Administrator and her daily duties are in line with this position. Mr Sokarno stated that a copy of each visa holder's employment contract were attached, however, the contracts were not attached.
On 24 August 2015, the sponsor provided another response to the second NOITTA, to which was attached the previously provided letter from Mr Sokarno, as well as employment contracts and evidence of academic qualifications for Ms Amitabahen Bhaveshkumar Patel and Mr Barot.
In its response to the second NOITTA, the sponsor did not specifically address the deemedfailure of Regulation 2.90 (Provision of false/misleading information)
On 16 September 2015, a third NOITTA was issued to the sponsor, providing further information obtained during the site visit on 20 May 2014 to the Southport office that would be taken into account in the assessment of Regulation 2.86. Specifically, the sponsor was advised that:
·officers had observed Ms Patel working in a receptionist role on their arrival at site;
·Ms Patel indicated that the business email address was a 'gmail account, rather than the sponsor's actual '@aas.org.au' account;
·the network diagram that Ms Patel drew at the request of officers on 20 May 2014 was very simplistic, in contrast to information previously provided to the Department;
·Ms Patel was unable to explain what functions a PCMCIA (Personal Computer Memory Card International Association) and an RJ45 (a modular connector) perform within the Network Administration field;
·Departmental IT experts had advised the monitoring officers that a Network Administrator would be able to provide much more detailed responses than Ms Patel has been able to provide in response to Departmental questioning; and
·officers had noted that the sponsor had elected to move its administrative operations from Runaway Bay to Southport (which involved the removal and reinstatement of the server from the existing location to the new building) whilst Ms Patel, their Network Administrator, was on leave. When this was put to Ms Patel, she stated that a woman called 'Erica' may have assisted but Ms Patel could not provide any further information.
As a result of the information obtained from Ms Patel on 20 May 2014 and during the course of many interactions with Ms Patel, the sponsor was advised that it appears that Ms Patel has been working as a receptionist or in another 'client service role', rather than in her nominated occupation of 'Network Administrator'.
In addition, the sponsor was advised in the third NOITTA that it had provided the Department with false or misleading information at the time of nomination on the basis that Ms Patel does not work as a Network Administrator, and therefore that this position did not genuinely exist at time of nomination.
It was further noted in the third NOITTA that the prescribed circumstance under Regulation 2.91 (Application or variation criteria no longer met) exists for taking action under section 140M of the Act, because the Department had received information from the Australian Securities and Investment Commission (ASIC) that the Australian Academy of Sports Limited had lodged a 'Notification of Application to Wind Up Company Under S. 459p, 462 or 464', which indicated that the sponsor no longer meets the criteria prescribed at the time of sponsorship approval.
On 29 September 2015, the sponsor provided a response to the third NOITTA, which contained:
·a record (extracted on 29 September 2015) from the ASIC Register for Business Name 'Direction Employment and Training', showing that the Holder Name is 'Australian Academy of Sport Limited', the Holder Type is 'Body Corporate', and the principal place of business is 3 Sports Drive (corner of Sports Drive and Morala Avenue), Runaway Bay, Qld
·an 'ABN Lookup' for Australian Academy of Sport Limited, indicating that the Australian Academy of Sport Limited was registered as an Australian Public Company on 1 March 2010 and registered as a charity on 3 December 2012, with the business name of 'Direction Employment and Training' (previously 'Gold Coast Pirates'); and
·a letter dated 29 September 2015 from CEO, Mr Sokarno, in which he addressed a number of points raised within the third NOITTA about the work undertaken by sponsored visa holders, Ms Amitabahen Bhaveshkumar Patel and Mr Barot.
In his letter of 29 September 2015, Mr Sokarno stated that:
·Ms Patel 'is fulfilling her duties to the best of her abilities and our company is satisfied with her performance';
·Ms Patel does not work as a receptionist or perform reception duties, and was merely seated at reception on 20 May 2015 whilst the company's receptionist (Isabelle) was in the bathroom;
·Ms Patel misunderstood the question about the business email address from Departmental officers on 20 May 2015 and thought she was being asked for her personal email address;
·Ms Patel drew a basic network diagram on the assumption that she did not have to draw every computer and device on the network;
·Ms Patel was unable to explain what PCMCIA and RJ45 functions because they are not used in the company's premises in Queensland;
·Ms Patel is very familiar with 'cat 6 cables' but was unable to describe the colour of the 'cat 6 cables' when officers called her on 12 March 2015 because she 'had just given birth to a baby 3 weeks prior and was still not in the right state of mind';
·an IT company was contracted to transfer the company's systems when it moved locations;
·Mr Barot indicated that he does student data entry 'When the immigration officers asked Mr Barot what he does in his spare time when work is not busy' and that this data entry involves 'analysis and testing. Mr Barot is not involved in data entry as a main duty however he conducts his job as an ICT business analyst which includes data testing and analysis to validate the input and ensure that the systems are reporting true and accure te reports. Mr. Barot runs tests to see if any data is corrupt, missing or if the data system is malfunctioning'; and
·both Mr Barot and Ms Patel are working in their nominated positions.
In its response to the third NOITTA, the sponsor did not specifically address the deemed failure of Regulation 2.90 (Provision of false/misleading information)
Assessment
I have considered the evidence gathered during monitoring and the sponsor's response to the NOITTA. I am satisfied that the following circumstances exist to bar the sponsor or cancel the approval of the sponsor:
·Regulation 2.89 Failure to satisfy sponsorship obligation
oRegulation 2.84 - Obligation to provide information to Immigration when certain events occur
oRegulation 2.86 - Obligation to ensure primary sponsored person works or participates in nominated occupation, program or activity
AND
·Regulation 2.90 - Provision of false or misleading information
Regulation 2.89 Failure to satisfy sponsorship obligation
Regulation 2.84 - Obligation to provide information to Immigration when certain events occur
In relation to Regulation 2.84, I have noted the sponsor's advice that the 'administration office' had moved to 1/10 Scarborough St, Southport, QLD, 4215, but that training was still undertaken at its 'previous address in Runaway Bay'. However, this explanation does not negate the sponsor's obligation under subparagraph 2.84(3)(b)(ii) to advise the Department when there has been a change to the information provided to the Department at time of sponsorship application in relation to the sponsor's address and contact details.
Regulation 2.86 - Obligation to ensure primary sponsored person works or participates in nominated occupation, program or activity
In relation to Regulation 2.86, I note that Hemantkumar Mulajibhai Barot was nominated for the position of 'ICI Business Analyst', ANZSCO code 261111, on
2 February 2012. In the accompanying application, the sponsor advised that the position would have the following responsibilities:
·analysing business process, proceedures [sic] and work practice,
·identifying and evaluating inefficencies [sic] and recommending optimal business practice,
·using project management techniques to develop project plans and manage projects,
·creating user training documentaion [sic] and
·conducting formal training
The sponsor further advised that the main duties of the nominee would be:
·providing guidance and assistance in the sysytem [sic] project decision making process,
·developing solutions,
·creating and implementing system test plan,
·ensuring acceptable quality and integrity of teh [sic] system
The sponsor also certified that the duties of the nominated occupation include a 'significant majority of the position ICT Business Analyst as listed in the ANZSCO dictionary'.
According to the ANZSCO dictionary, an ICT Business Analyst 'Identifies and communicates with users to formulate and produce a requirements specification to create system and software solutions', and that the tasks of ICT Business and System Analysts include:
·working with users to formulate and document business requirements
·identifying, investigating, and analysing business processes, procedures and work practices
·identifying and evaluating inefficiencies and recommending optimal business practices, and system functionality and behaviour
·using project management methodologies, principles and techniques to develop project plans and to cost, resource and manage projects
·taking responsibility for deploying functional solutions, such as creating, adopting and implementing system test plans, which ensure acceptable quality and integrity of the system
·creating user and training documentation, and conducting formal training classes
·developing functional specifications for use by system developers
·using data and process modelling techniques to create clear system specifications for the design and development of system software
·acting as a central reference and information source, providing guidance and assistance in the system project decision making process
In the employment contract between the sponsor and Mr Barot that was signed by both parties on 2 June 2012 and provided with the nomination application, it states that Mr Barot would have the following duties and responsibilities:
·Report Directly to the CEO concerning day to day Assesments [sic]
·You are to report to and are accountable to Mr Ahmad Sokamo (CEO)
·The present location is Cnr sports drive & Morala Avenue Runaway Bay QLD 4216
·Communicate with other staff members regarding the quality assurance
·working with users to formulate and document business requirements
·identifying, investigating, and analysing business processes, procedures and work practices
·identifying and evaluating inefficiencies and recommending optimal business practices, and system functionality and behaviour
·using project management methodologies, principles and techniques to develop project plans and to cost, resource and manage projects
·taking responsibility for deploying functional solutions, such as creating, adopting and implementing system test plans, which ensure acceptable quality and integrity of the system
·creating user and training documentation, and conducting formal training classes
·developing functional specifications for use by system developers
·using data and process modelling techniques to create clear system specifications for the design and development of system software
·acting as a central reference and information source, providing guidance and assistance in the system project decision making process
I have reviewed all the information gathered from the sponsor and Mr Barot during this monitoring audit and compared it to the types of duties that Mr Barot should be undertaking in his nominated occupation, as outlined in the nomination application, his employment contract with the sponsor, and the ANZSCO dictionary, and I am not satisfied that Mr Barot is working primarily in his nominated position of ICT Business Analyst.
Despite the sponsor's claims that Mr Barot is working in his nominated position, I have given considerable weight to Mr Barot's statement at interview that he spends most of his time doing student data entry.
I reject the sponsor's assertions that Mr Barot made this statement in response to a question about what he does in his spare time when he is not busy at work, as the Departmental interview notes do not indicate that the question was framed in this way. Moreover, I do not accept the sponsor's attempts to characterise this data entry as being of a more 'technical' nature and in so doing suggest that this work is more highly skilled.
Coupled with the fact that Mr Barot has not been on site during any of the Department's five site visits to the sponsor's three alleged business locations in Southport, Runaway Bay and the Sunshine Coast, Mr Barot's low level responses at interview on 31 July 2014, and my finding (discussed below) that Mr Barot did not write the 'User Training Guide, PaperPort Professional 14', I find that Hemantkuniar Mulajibhai Barot is not working in his nominated occupation of ICT Business Analyst, but rather in a data entry role.
Therefore, I find that the sponsor has failed to satisfy its obligation set out in paragraph 2.86(2)(a) in relation to Mr Barot.
With regards to Ms Amitabahen Bhaveshkumar Patel, I note that she was nominated to work in the position of 'Network Administrator' (ANZSCO code 263112) by the sponsor on
September 2012. In the accompanying application, the sponsor advised that the position would have the following responsibilities:
·hardware maintenance,
·network maintenance,
·management of sat centre systems,
·network diagnostics
The sponsor further advised that the main duties of the nominee would be:
·server and network maintance [sic],
·hardware maintenance,
·monitoring networks and maintaing [sic] efficiency,
·network diagnostics
The sponsor also certified that the duties of the nominated occupation include a 'significant majority of the position Network Administrator as listed in the ANZSCO dictionary'.
According to the ANZSCO dictionary, a Network Administrator 'Installs and maintains hardware and software, documents diagnosis and resolution of faults, manages user passwords, security and inventory documentation, ensures the efficient performance of servers, printers and personal computers, and attends to other operational tasks. May also perform tasks such as help desk support and user training'. The dictionary further states that the tasks of Network Administrators include:
·analysing, developing, interpreting and evaluating complex system design and architecture specifications, data models and diagrams in the development, configuration and integration of computer systems
·researching, analysing, evaluating and monitoring network infrastructure to ensure networks are configured to operate at optimal performance
·assessing and recommending improvements to network operations and integrated hardware, software, communications and operating systems
·providing specialist skills in supporting and troubleshooting network problems and emergencies
·installing, configuring, testing, maintaining and administering new and upgraded networks, software database applications, servers and workstations
·providing network programming in support of specific business needs and requirements
·preparing and maintaining procedures and documentation for network inventory, and recording diagnosis and resolution of network faults, enhancements and modifications to networks, and maintenance instructions
·monitoring network traffic, and activity, capacity and usage to ensure continued integrity and optimal network performance
In the employment contract between the sponsor and Ms Patel that was signed by both parties on 15 September 2012 and provided with the nomination application, it states Ms Patel would have the following duties and responsibilities:
·You are to report to and are accountable to Mr Ahmad Sokarno (CEO)
·The present location is Cnr sports drive & Mora/a Avenue Runaway Bay QLD 4216
·Server and network guidance and performance assistance
·Analysing data models
·assessing and recommending improvements to network operations and integrated hardware, software, communications and operating systems
·Adjusting storage and network settings to different technological environments
·Conducting fault reports and network diagnostics
·Conducting server efficiency tests
·Configuring server settings and programs
·Hardware maintenance and selection to network settings
·Providing recommendations to management as to system upgrades and enhanced performance and storage solutions
·Installing and configuring servers
·Integration of computer based systems
·Monitoring and reconfiguring networks to perform optimal performance
·Network maintenance and updates to maintain efficiency
·Preparing procedures and policies manuals [sic] of network systems
·Provides proactive management of data centre systems as a whole.
I have reviewed all the information gathered during this monitoring audit from the sponsor and Ms Patel and compared it to the types of duties that Ms Patel should be undertaking in her nominated occupation, as outlined in the nomination application, her employment contract with the sponsor, and the ANZSCO dictionary, and I am not satisfied that Ms Patel is working primarily in her nominated position of Network Administrator.
I have given considerable weight to the responses that Ms Patel provided during her telephone and in-person interviews with monitoring officers, which clearly indicate a lack of specialist knowledge that would be required to carry out the functions for which she was nominated.
I note the sponsor's repeated claims that Ms Patel is working in her nominated position, but I consider that the responses provided by Ms Patel when questioned by Departmental officers provide a more accurate picture of the work that Ms Patel has/has not been doing for the sponsor, because their 'on the spot' nature could not benefit from prior research or input from others.
I do not accept the sponsor's explanation as to why Ms Patel was sitting at reception when Departmental officers conducted a site visit on 20 May 2014, as a review of the Departmental site visit notes indicate that Ms Patel confirmed that she does sit at the reception desk but is a Network Administrator. I also do not accept that Ms Patel was unable to answer technical questions during the site visit of 20 May 2014 because she had had a baby some three weeks previously.
Coupled with the fact that Ms Patel was not on site during the Department's first two site visits conducted at Runaway Bay in January and March 2014, I find that Amitabahen Bhaveshkumar Patel has not been working in her nominated occupation of Network Administrator, but has primarily been undertaking more general office duties.
Therefore, I find that the sponsor has failed to satisfy its obligation set out in paragraph 2.86(2)(a) in relation to Ms Patel.
Regulation 2.90 - Provision of false or misleading information
The sponsor did not make any comments in its responses to the second and third NOITTAs about the findings that it had provided false/misleading information to the Department by:
·submitting a document that was allegedly written by Mr Barot to demonstrate that has been working in the position of ICT Business Analyst, when significant portions of the document had been found to have been plagiarised from another document on the internet; and
·nominating a Network Administrator position when there was not a genuine need for this position.
Given my findings in relation to Regulation 2.86, and in the absence of any specific comments from the sponsor about the finding that it has contravened Regulation 2.90 on the above two 'counts', I am satisfied that the sponsor has deliberately provided false/misleading information to the Department for the reasons noted above.
Note: With regards to Regulation 2.91, I note that on 4 December 2015 the Federal Court of Australia dismissed the application filed on 27 August 2015 to wind up the Australian Academy of Sport Limited. Therefore, I am not satisfied that the circumstance prescribed in Regulation 2.91 still exists to bar the sponsor or cancel the approval of the sponsor.
20.The Tribunal is satisfied that the applicant did not advise the Department of its change of address. Accordingly, the Tribunal finds that the applicant has not satisfied r.2.84.
21.The Tribunal is satisfied that Mr Barot was not working primarily in his nominated occupation of ICT Business Analyst. The Tribunal has placed considerable weight on Mr Barot’s statement that the majority of his role involves data entry of student information. This indicates that the majority of his duties do not fall within the scope of the duties expected of an ICT Business Analyst as outlined in the ANZSCO guide. Based on Mr Barot’s statement, the majority of his duties relate to the occupation of Data Entry Operator. The Tribunal did not find the applicant’s explanation that he did this in his spare time to be persuasive, given Mr Barot’s statement to the contrary which the Tribunal places greater weight on.
22.The Tribunal is also satisfied that Ms Patel was not working primarily in her nominated occupation of Network Administrator. The Tribunal has placed considerable weight on the information obtained during the site visit of 20 May 2014, as set out in the delegate’s decision. Ms Patel was seated in a receptionist position during this visit, and was unable to answer technical questions as would be expected of a Network Administrator. The Tribunal did not find the applicant’s explanation, including that Ms Patel had had a baby 3 weeks prior, to be persuasive. While it is unnecessary for the Tribunal to identify an alternate occupation for Ms Patel, the Tribunal agrees with the delegate’s observations that she appears to have been working in a receptionist or general administrative role.
23.Accordingly, the Tribunal finds that the applicant has not satisfied r.2.86.
24.Accordingly, the Tribunal is satisfied that the prescribed circumstance in r.2.89 exists for the purpose of s.140M of the Act.
False or misleading information: r.2.90

One or more of the actions in s.140M may be taken if the sponsor has provided false or misleading information to Immigration or the Tribunal: r.2.90(2).
The Tribunal was not provided with the original nomination applications and supporting documents, and is therefore unable to be satisfied that false or misleading information was provided in those applications. The Tribunal is entitled to verify the delegate’s findings by examining relevant documents for itself, and should not have to take the delegate’s word as to the contents of those documents. The Tribunal notes the Department’s obligations to provide the Tribunal with all relevant documents pursuant to s.352(4).
The Tribunal is not satisfied that the PaperPort Training Guide bearing Mr Barot’s name was false or misleading. While he may have copied significant portions of that document from another publicly available document, there is no evidence to establish that Mr Barot did not edit or adapt the version of the manual bearing his name. Mr Barot’s manual runs for 10 pages, while the publicly available document contained on the Department’s file runs to 61 pages. Some exercise of judgment would have been required in producing the shorter document.
28.Accordingly, the Tribunal is not satisfied that the prescribed circumstance in r.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. The criteria to be considered where there is failure to comply with sponsorship obligation, are set out in r.2.89(3). The Tribunal now turns to its consideration of the criteria under r.2.89(3).
(a) the past and present conduct of the person in relation to Immigration
With the exception of the failure to identify the sponsorship obligations identified above, there is nothing before the Tribunal to suggest that the applicant’s conduct has been unsatisfactory.
(b) the number of occasions on which the person has failed to satisfy the sponsorship obligation
The Tribunal has found that the applicant has failed to satisfy r.2.84 and r.2.86. The former failure occurred when the applicant moved premises; the latter failures were ongoing failures in that 2 sponsored persons were working in a different occupation over a period of time.
(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
The Tribunal considers the employment of 2 sponsored persons in occupations other than that nominated to be a serious failure. The employment of sponsored persons in occupations other than those nominated undermines the transparency of the program. The Tribunal considers the failure to notify a change of address to be relatively trivial.
(d) the period of time over which the person has been an approved sponsor
The Tribunal finds that the applicant had been a standard business sponsor from 5 December 2011 to 5 December 2014.
(e) 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 r.2.86 had a direct impact on the 2 sponsored persons, as it resulted in them working in roles other than those for which they were nominated. The failure to satisfy r.2.84 had a relatively minor impact on the Department’s ability to monitor the applicant’s compliance.
(f) whether, and the extent to which, the failure to satisfy the sponsorship obligation was intentional, reckless or inadvertent
The Tribunal finds that the applicant’s failures to satisfy r.2.86 were reckless. The applicant has had little regard to ensuring that the 2 sponsored persons were employed in the occupations for which they were nominated. The Tribunal finds that the applicant’s failure to satisfy r.2.84 was inadvertent.
(g) whether, and the extent to which, the person has cooperated with Immigration, including whether the person informed Immigration of the failure
There is no evidence that the applicant has not cooperated with the Department.
(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
The applicant has advised the Department of its change of address.
(i) the processes (if any) the person has implemented to ensure future compliance with the sponsorship obligation
There is no evidence that the applicant has taken any such steps.
(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
The Tribunal accepts that the applicant has not been identified as having breached any of the other sponsorship obligations.
(k) any other relevant factors
The Tribunal is not aware of any other relevant factors.
Considering the totality of the circumstances, and having regard to the prescribed criteria the Tribunal finds that the action mentioned in s.140M(1)(d), to bar the applicant for 1 year from the date of the delegate’s decision from making future applications for approval as a standard business sponsor, should be taken. The reduction from the 3 year bar imposed by the delegate reflects the fact that the Tribunal did not accept that the applicant also failed to satisfy r.2.90, and is consistent with other decisions made by the Tribunal. The Tribunal also notes the recommendation set out at on the reverse side of folio 336 of Department file OPF2014/101 is for a significantly lesser period than that ultimately imposed by the delegate, and also does not include breaches of r.2.90. Given that the applicant’s previous standard business sponsorship expired on 5 December 2014, the Tribunal’s decision in substance means that the applicant will be require to serve a period of over 2 years during which it has not been approved as a standard business sponsor. The Tribunal considers this to be an appropriate penalty.
DECISION
43.The Tribunal varies the decision under review by deciding under s.140M(1)(d) to bar the applicant from making future applications for approval as a standard business sponsor for a period of 1 year from the date of the delegate’s decision.
Glen Cranwell
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 4597

1 November 2016

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