2012948 (Migration)

[2023] AATA 760

2012948 (Migration) [2023] AATA 760 (28 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Chang Min Park

CASE NUMBER:  2012948

MEMBER:K. Chapman

DATE:28 February 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision under review.

Statement made on 28 February 2023 at 11:41am 

CATCHWORDS
MIGRATION – cancellation – applicant had failed to comply with their sponsorship obligations – Ms [D] has never genuinely worked for Mr [Alias 1] in breach of sponsorship obligations – both provided false or misleading information to the Department – applicant is to be barred from making applications for approval as a standard business – sanctions imposed by the delegate are to remain unaltered – decision under review affirmed 

LEGISLATION
Migration Act 1958, ss 140M, 359, 376
Migration Regulations 1994, rr 2.83, 2.89

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.This is an application for review of a decision made by a delegate of the Minister for Home Affairs, on 6 August 2020, to take action under s 140M of the Migration Act 1958 (Cth) (‘the Act’) in relation to the applicant’s sponsorship.

2.The applicant, Mr [A] (aka ‘[Alias 1]’) [Alias 1] Family Trust T/A [Business 1], operates Backpacker accommodation in [City 1], Queensland. [Mr A] also has other business interests in the labour hire sector. He is an Australian permanent resident. His wife, Ms [B] (aka ‘[Alias of Ms B]’), was also a trustee at the time of the delegate’s decision. The applicant is represented in this review by Mr Chang Min Park, of Park & Co. Lawyers in Brisbane (‘the representative’).

3.The applicant was approved most recently as a standard business sponsor on 8 January 2016. On 6 August 2020, the delegate decided to act pursuant to s 140M of the Act and cancel the approval of the applicant as a standard business sponsor. The delegate also barred the applicant for two and a half years from making applications for approval as a standard business sponsor and temporary activities sponsor. The delegate determined that, following a site visit to [City 1], the applicant had failed to comply with their sponsorship obligations.

4.In particular, the delegate was concerned with the applicant’s sponsorship obligations pertaining to two employees, Mr [C] and Ms [D] (aka ‘[Alias of Ms D]’ and ‘[Alias 2 of Ms D]’). Regarding the latter, the delegate was concerned she was actually working in another position at the [Business 2] in [City 1], which is operated by her husband Mr [E] (aka ‘[Alias of Mr E]’ and ‘[Alias 2 of Mr E]’). As will be outlined in further detail below, [Ms D] and [Mr E] have assumed multiple identities in connection with seeking to circumvent Australian migration requirements.

5.On 18 August 2020, the applicant applied to the Tribunal for review of the decision to take action under s 140M of the Act, providing a copy of that decision with their application. The Tribunal initially scheduled a review hearing for 16 December 2022. Shortly thereafter, the applicant requested a postponement of the hearing, due to unavailability of the representative. The Tribunal granted this request and rescheduled the hearing for 23 January 2023.

6.On 16 January 2023, the representative submitted pre-hearing material. This included, inter alia, written submissions, the unsworn statement of Mr [A] (aka ‘[Alias 1]) dated 14 January 2023, unsworn statements of third parties in support of the application for review, unsworn letters of support for [Mr A] and Labour Hire Licence details for [Business 3] Pty Ltd (an entity utilised by [Mr A] to conduct labour hire activities). All submitted material has been duly considered by the Tribunal. On 17 January 2023, the Tribunal provided to the applicant a copy of a non-disclosure certificate issued by the Department, on 7 November 2022, pursuant to s 376 of the Act. The Tribunal invited comment upon the validity of this certificate. Such comment was ultimately provided at the review hearing.

7.The applicant, through Mr [A] (aka ‘[Alias 1]), appeared before the Tribunal in person on 23 January 2023. He confirmed he would give evidence on behalf of the applicant and that no other persons would give evidence at the review hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages, with the applicant confirming he understood the interpreting service. The Tribunal observed [Mr A] to have a strong command of the English language and to rely upon the services of the interpreter only for portions of his evidence. Several breaks were taken during the review hearing. The applicant was represented at the hearing by the representative, who was accompanied by an assistant. The representative was permitted to make submissions to the Tribunal at the hearing.

8.On 25 January 2023, the representative submitted post-hearing material to the Tribunal by way of a written submission. The Tribunal has duly considered that submission.

9.For the following reasons, the Tribunal has decided to affirm the decision under review.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. Sections 140K, 140L and 140M of the Act provide for the imposition of sanctions on approved sponsors in certain circumstances.

2. 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.

3. For these purposes, the circumstances are prescribed in regs 2.89–2.94B and include circumstances in which the Minister, or Tribunal on review, is satisfied there has been: a failure to satisfy a sponsorship obligation; provision of false or misleading information; sponsorship application or variation criteria no longer met; a contravention of the law; unapproved changes to a program; a failure to pay additional security; a failure to comply with certain terms of an agreement; or a failure to pay medical and hospital expenses.

4. 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: regs 2.89–2.94B. These criteria, as they relevantly apply to the circumstances of this review, are set out in the attachment to this decision.

   Validity of non-disclosure certificates 

   14.The Tribunal notes that two current non-disclosure certificates are relevant to this review. There is a certificate issued pursuant to s 376 of the Act, dated 7 November 2022 (replacing a revoked certificate pursuant to s 375A of the Act dated 28 August 2020), pertaining to material in Departmental file [DELETED]. The public interest grounds indicated in that certificate relate to precluding the disclosure of ‘lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods.’

   15.The Tribunal provided a copy of the certificate dated 7 November 2022 (and the prior s 375A certificate, with revocation document) to the applicant prior to the hearing and invited comments upon its validity. Further, the Tribunal discussed the validity of that certificate with the applicant and the representative at the review hearing. The representative indicated there were no concerns with the validity of the non-disclosure certificate dated 7 November 2022. Following careful consideration, the Tribunal finds that this certificate is valid as public interest grounds are properly stated. With respect to the material under cover of the certificate, the Tribunal does not exercise discretion to release the material in full to the applicant, in order to protect the Department’s investigative methods. Accordingly, the Tribunal provided ‘the gist’ of this information to the applicant at hearing, utilising the procedure in s 359AA of the Act.

   16.Another s 376 certificate, dated 6 June 2022, pertains to material in Departmental file [DELETED]. Of relevance to the present review is the material contained in that file at TRIM reference [DELETED]. This material is by way of ‘dob-in’ information, with the informant preferring to remain anonymous. The relevant non-disclosure certificate refers to this material being provided ‘in-confidence’.

   17.The Tribunal provided a copy of the certificate dated 6 June 2022 to the applicant at the review hearing and granted an adjournment for its validity to be considered. Following that adjournment, the Tribunal discussed the validity of the certificate with the applicant and the representative. The representative raised no issues with the validity of the non-disclosure certificate dated 6 June 2022. Following careful consideration, the Tribunal finds that this certificate is valid, as the public interest grounds and in confidence grounds are properly stated therein. With respect to the relevant material under cover of that certificate, at TRIM reference [DELETED], the Tribunal does not exercise discretion to release the material in full to the applicant, in order to preserve the in-confidence nature of the material (noting that the attributes, other than the name, of the anonymous informant should remain in confidence). Accordingly, the Tribunal provided ‘the gist’ of this information to the applicant at hearing, utilising the procedure in s 359AA of the Act. For the sake of completeness, the Tribunal notes the balance of the information under cover of the certificate dated 6 June 2022 is not relevant to this review.

   Does a circumstance for the taking of an action exist?

5. In the present matter, the delegate found the applicant breached two sponsorship obligations, regs 2.83 and 2.86. As reflected in the primary decision, on 5 February 2020 the delegate provided the applicant with a Notice of Intention to Take Action (NOITTA), citing purported breaches of sponsorship obligations including regs 2.83 and 2.86. The former pertains to the provision of records and information to the delegate, the latter to ensuring that a primary sponsored person works in the nominated occupation.

6. The delegate determined that the applicant breached reg 2.83 by failing to provide records of the hours worked each week, by Mr [C] and Ms [D], between 1 July 2019 and 1 December 2019. Regarding reg 2.86, the delegate determined the applicant failed to ensure Ms [D] worked in the nominated occupation of Accommodation and Hospitality Manager, primarily as she was observed working at the [Business 2] in [City 1] by Australian Border Force officers during a site visit.   

   Failure to satisfy a sponsorship obligation: reg 2.89

7. The Minister may take one or more of the actions in s 140M if satisfied the sponsor has failed to meet a sponsorship obligation referred to in Division 2.19 of the Regulations: reg 2.89(2). Upon de novo review, the Tribunal may exercise all relevant powers available to the delegate.

8. During the review hearing, the Tribunal canvassed with Mr [A] (aka ‘[Alias 1]’) his business activities and the nature of the employment relationship concerning Mr [C] (nominated in the occupation of Contract Administrator) and Ms [D] (nominated in the occupation of Accommodation and Hospitality Manager).

9. Mr [Alias 1] advised the Tribunal that the applicant entity operates a Backpacker accommodation business in [City 1]. It has two [premises]. The former commenced operations around 2011, the latter around 2016. Mr [Alias 1] also works in [a] Café in [City 1], a business operated through an entity controlled by his wife, [Alias of Ms B]. Further, Mr [Alias 1] operates a labour hire business through the entity [Business 3] Pty Ltd. It commenced operations around 2010, following Mr [Alias 1] acquiring Australian permanent residence (which he still holds). To a reasonable extent, the Backpacker and labour hire businesses complement each other, as residents of the former often perform agricultural picking work through the latter.

10. The Tribunal confirmed with Mr [Alias 1] that he received the NOITTA, had no further comment upon that document and he had read the primary decision. The Tribunal also offered him the opportunity to make comment upon the site visit conducted by ABF officers, which is referred to in the primary decision. Mr [Alias 1] indicated he was a bit embarrassed and puzzled as to why the officers were visiting.

11. The Tribunal canvassed the primary decision regarding breach of reg 2.83. Mr [Alias 1] indicated the ABF officer wanted time sheets for the two relevant employees. He advised they checked the roster, noting his wife looks after paperwork. Mr [Alias 1] advised the officers they could return later for further information, however, they wished to proceed. He indicated there was a roster for them to observe. The Tribunal raised with Mr [Alias 1] that records of hours worked by his employees might reasonably be regarded as relating to the administration of Division 3A of Part 2 of the Act and the Regulations made under that Division, for the purposes of regs 2.82 and 2.83. Mr [Alias 1] replied that his workers received an annual package for working 38 hours per week. As they were full time employees, Mr [Alias 1] was of the opinion he was not required to keep time sheets for them. He noted the backpackers performing agricultural picking work have very detailed time records kept, due to the agreements with farmers to pay them by hours worked.

12. The Tribunal canvassed the primary decision regarding breach of reg 2.86. Mr [Alias 1] indicated the Department wrongly concluded that Ms [D] was performing a lower skilled occupation. He outlined that [Ms D] played a key role at the working hostel by waking up workers, dropping them to farms and conducting farm visits. He added that her Mandarin language skills were invaluable for interacting with backpackers from Taiwan, who were prevalent in the region at that time. Mr [Alias 1] also noted that [Ms D] performed inspections for bedbugs, which is an important duty in the hostel environment.

13. The Tribunal canvassed the primary decision regarding the sanctions imposed by the Department. Mr [Alias 1] indicated he had lived in [City 1] for 18 years and provided employment for many Australian workers, in addition to backpackers sent to the farms for agricultural picking work. He noted that the ABF monitoring activity occurred prior to the impact of the COVID-19 pandemic, but he was sanctioned at a time when the pandemic had struck. Mr [Alias 1] was displeased that his competitors were able to participate in the new seasonal labour scheme but he was not due to the sanctions imposed. He added that he had to work as a Cook in his wife’s business as a result of the sanctions, he works very hard and he believes the sanctions were harsh.

14. The Tribunal canvassed the nominated workers, referred to in the primary decision, with Mr [Alias 1]. Regarding Mr [C], he confirmed they are not related by family. Mr [Alias 1] outlined that Mr [C] was employed as a Contracts Administrator after working on a farm. Mr [C] was nominated for a Subclass 482 visa. He believes this employee was nominated for visas by other companies, however he isn’t aware of the particulars. Mr [C] has since left the applicant’s employ and is now residing at [a region]. He possibly works in a [Restaurant]. Mr [Alias 1] last saw Mr [C] in December 2022 in [City 1].

15. The Tribunal canvassed the employment relationship of the applicant and Ms [D]. Mr [Alias 1] explained that he knew her husband, Mr [E], from when he came to work in [City 1] as an agricultural picker a long time ago. He noted Mr [E] had also worked as a contractor prior to labour hire licensing being introduced in Queensland. Mr [Alias 1] advised that [Mr E] and [Ms D] opened the [Business 2] in [City 1].

16. Mr [Alias 1] informed the Tribunal that he advertised for the nominated position offered to Ms [D], as is required by the Government. He advised she was the right person and was therefore hired around 2017 or 2018. Mr [Alias 1] indicated that back at that time, it was very busy at the Backpackers and also in the contracting space. He confirmed that [Ms D] is not related by family to him. According to Mr [Alias 1], [Ms D] ceased employment with the applicant when her contract finished in around early 2020. He indicated they talk from time to time but not a lot. He last spoke with [Ms D] around two to three months prior, when he went to the [Business 2].

17. The Tribunal raised with Mr [Alias 1] that the primary decision referred to him apparently knowing the husband of Ms [D]. The Tribunal canvassed with him the history of that relationship. Mr [Alias 1] advised he met Mr [E] around eight or nine years prior, when he came to perform farm work in the [City 1] region. [Mr E] worked for Mr [Alias 1] for a time and brought other agricultural pickers with him. Mr [Alias 1] did not know Mr [E] prior to this time.

18. The Tribunal spent significant time canvassing the nature of the relationship between Mr [Alias 1] and Mr [E], given it was referred to in the primary decision (as is detailed in the audio record of proceedings). Whilst giving his evidence, the Tribunal observed Mr [Alias 1] to be somewhat equivocal in his characterisation of the proximity of such relationship. For example, Mr [Alias 1] initially described their relationship to be ‘just a good friend’ and ‘just a friend helping each other.’ Mr [Alias 1] advised he last spoke with [Mr E] around three or four months prior, adding [Mr E] is always busy. Mr [Alias 1] then advised that since the sanctions were imposed, they are ‘not so close’. He described their relationship to have ‘a bit of distance’, adding he ‘looks like a very good friend but they are not really that close.’ Mr [Alias 1] then characterised them as being ‘very close’ when they worked together and then ‘less close’ later, as [Mr E] started performing tasks for other farms.

19. Mr [Alias 1] initially could not recall directly employing Mr [E], however, he noted he engaged [Mr E] as a subcontractor with an ABN in connection with farm work in around 2012 or 2013. Mr [Alias 1] cited high competition in [City 1] concerning the provision of workers in those times, with [Mr E] bringing in workers at a time prior to labour hire licensing in Queensland. [Mr E] pursued other options after such licensing was introduced. Mr [Alias 1] indicated his business engaged in correct labour hire practices to the benefit of farmers. After the sanctions were imposed upon the applicant, the occupancy of the Backpackers fell significantly and cashflow difficulties emerged. The café and labour hire businesses maintained a level of business activity for Mr [Alias 1], however he lost significant revenue in the wake of the sanctions. Mr [Alias 1] confirmed the only business relationship he had with Mr [E] concerned their subcontracting relationship for the supply of workers to farms in around 2012 or 2013.

20. When asked by the Tribunal if he remained in contact with Mr [E], Mr [Alias 1] advised they say hello when they see each other and sometimes at the [Business 2]. Following a break in the hearing, the Tribunal asked Mr [Alias 1] to clarify the nature of his relationship with Mr [E]. He replied that [Mr E] was ‘a close friend’ prior to the sponsorship sanctions being imposed. Mr [Alias 1] expressed unhappiness that Ms [D] was a director of the [Business 2]. Mr [Alias 1] advised at the time of the site visit, he and [Mr E] were good friends, with them each running their respective businesses. After the NOITTA was issued, their relationship changed. He added that now they are ‘not close’.

1. When asked by the Tribunal to clarify if his relationship with Ms [D] changed after his business was sanctioned, Mr [Alias 1] explained that [Ms D] was a director of the [Business 2] on the advice of her accountant, without telling him. In due course, he advised the relationship did change following the sanctions. He was disappointed in [Ms D] and their relationship became distant after that point. [Mr A] advised it was too late once [Ms D]’s directorship came to his attention, which he didn’t know prior to the site visit.

2. When asked by the Tribunal to clarify if he was close to Mr [E] prior to the sanction decision then the relationship soured, Mr [Alias 1] responded this was ‘not one hundred percent.’ He advised [Mr E] did his own business and he did his business. Mr [Alias 1] added they were ‘not that close because he is [from Country 1] and I’m Korean.’ Mr [Alias 1] informed the Tribunal the Department wouldn’t know the real picture of their relationship. He indicated that during the site visit he couldn’t really detail all the different aspects of their relationship. Mr [Alias 1] told the Tribunal that he said to the ABF officers they were ‘friends’ but they ‘took on board that we were very good friends but that’s not the true picture.’

3. The Tribunal observed Mr [Alias 1] to provide a convoluted and fluctuating narrative, regarding the nature of his relationship with Mr [E], during the early portion of the review hearing. At times he sought to convey a close relationship and at others he sought to convey distance. On balance, the Tribunal is not satisfied that Mr [Alias 1] provided fulsome evidence regarding the nature of his relationship with Mr [E].

4. The Tribunal enquired as to the current activities of Mr [E] and Ms [D]. Mr [Alias 1] advised they continue to operate the [Business 2]. He also believes [Mr E] is helping another licensed labour hire contractor, but he is not sure if [Mr E] has a licence himself. Mr [Alias 1] confirmed [Mr E] and [Ms D] are the current owners of the [Business 2] to his knowledge.

5. When asked by the Tribunal when he first became aware that Ms [D] was an owner of the [Business 2], he advised it was during the ABF site visit. He confirmed he only became aware when the ABF notified him of this situation. The Tribunal raised to his attention that he submitted a statement dated 14 January 2023, indicating (at paragraph 6.3) that prior to the site visit he didn’t know [Ms D]’s husband owned the [Business 2], and sought clarification? Mr [Alias 1] indicated this is not correct information, his memory is a bit confused and he is pretty sure [E] opened that business. The Tribunal raised that paragraph 6.3 of his statement might appear inconsistent with his earlier evidence on the topic of ownership of the [Business 2], inviting his comment. Mr [Alias 1] confirmed at the time of the site visit he knew [Mr E] owned the [Business 2] but he didn’t know that Ms [D] was a director or working there. He attributed the apparent inconsistency to a lapse in memory.

6. The Tribunal canvassed the information in paragraph 6.4 of his statement of 14 January 2023, indicating he knew [Ms D]’s husband from a long time ago when they were backpackers. Mr [Alias 1] indicated he had ‘tried to emphasise that he knew him well’. However, there was some misdescription as [Mr A] wasn’t a backpacker then. Rather [Mr A] meant his business was small at the time he came to know Mr [E].

7. When asked by the Tribunal if Mr [E] or Ms [D] owned or operated any other businesses currently, [Mr A] was unaware. When asked by the Tribunal if [Mr E] or [Ms D] have plans to establish any other businesses, [Mr A] advised he didn’t know. [Mr A] specifically confirmed to the Tribunal that he had never spoken to either [Mr E] or [Ms D] about them wanting to run any other business than the [Business 2].

8. As previously outlined, the Tribunal canvassed with the applicant and the representative the validity of the s 376 certificate dated 7 November 2022. The representative accepted the certificate was valid and the Tribunal forms the same view. Following careful consideration, the Tribunal did not disclose the material under cover of the certificate in full to the applicant. Rather, the Tribunal provided ‘the gist’ of the material to the applicant at the review hearing, utilising the procedure in s 359AA of the Act.

9. Pursuant to the procedure in s 359AA of the Act, the Tribunal raised with the applicant that the Departmental file [DELETED] contains the following information:

   a.the Australian Border Force Initial Interview Plan, Final Interview Plan and Operational Risk Assessment, pertaining to the site visit that was conducted on 9 December 2019. Further, there is the Sponsor Monitoring Recommendation Report completed after the site visit, which informed the Decision Record provided to the applicant. Additionally, there are administrative documents in that file, including the revoked s 375A Certificate and Disclosure Checklist for release of the Department File to the Tribunal for the purpose of conducting the review; and

   b.the Final Interview Plan document contains records taken by Australian Border Force officers during their site visit, some of which are referred to in their Decision Record. Relevantly, the officers recorded that Ms [D] was located at the [Business 2] during the site visit and she advised them her husband is the owner and director of that business. She also indicated she thought she was a shareholder or secretary and then the officers informed her ASIC records confirmed she is a director of [Business 2] and also a director of [Business 3]. Ms [D] advised the [Business 3] business was not operating and was awaiting Council approval;

   c.the officers confirmed Ms [D]’s English language ability and her understanding of their questions. She advised she worked at the [Business 4] for Mr [Alias 1] and was having a day off. She advised she obtained her job as her husband knows [Alias 1] well. [Ms D] indicated she worked [here] for over two years but could not recall the address when asked on multiple occasions. She advised their lawyer, Park & Co., organised all of the paperwork for her position;

   d.[Ms D] also advised [Mr F] was one of the Managers at the [Business 5]. She advised [Mr F] does the same job as her but at [Business 5]. In due course, [Ms D] provided the addresses of the [Business 5][businesses] by referring to information in her mobile phone;

   e.at the [Business 4], the officers spoke with an employee who was shown photographs of [Mr F] and [Ms D]. This person recognised [Mr F] as the Manager but had never seen [Ms D]. This person indicated there is no Manager at the [Business 4] location and nobody worked on Reception there;

   f.at the [Business 5], the officers spoke to Mr [Alias 1]. The officers presented identification, a Fact Sheet, an educational pack and a Regulation 2.83 Notice to him. They cautioned him about the need to provide truthful information. He read the Factsheet and indicated he understood it. He also advised he understood the caution. Mr [Alias 1] initially advised the officers that [Mr F] is employed as the Manager at [Business 5]. He then suddenly corrected his answer and indicated [Mr F] is the Contracts Administrator;

   g.when asked, Mr [Alias 1] initially advised the officers that he only sponsors [Mr F]. He then suddenly corrected his answer and indicated Ms [D] is the Office Manager at [Business 4], who is on a day off and helping out at the [Business 2]; and

   h.Mr [Alias 1] initially advised he did not know who owns the [Business 2]. After being cautioned again, [Mr Alias 1] stated he does not want to get people into trouble and indicated he doesn’t know if [Ms D] is paid to work there but he does know her husband owns the business. [Mr Alias 1] agreed [Ms D] obtained her job as he is friends with her husband, however he stated the position was advertised.

10. The Tribunal indicated the above information is relevant to the review as it tends to suggest that Ms [D] was not employed on a full-time basis as an Accommodation and Hospitality Manager for the applicant, rather she was primarily working in the [Business 2], in contravention of the applicant’s sponsorship obligations. The information also tends to suggest that Mr [Alias 1] has provided false or misleading information in relation to [Ms D]’s employment. The Tribunal informed Mr [Alias 1] that if it was to rely upon this information, it would be the reason, or a part of the reason, to affirm the decision under review, or to vary the decision to increase the period of sponsorship bar.

11. Mr [Alias 1] confirmed to the Tribunal he understood why the information is relevant to the review. When asked by the Tribunal if he would like to comment on or respond to the information now, or if he would like additional time to do so, he indicated he would respond immediately. The Tribunal notes that it refreshed Mr [Alias 1] of each portion of the information, to enable him to respond ‘piece by piece’ as he requested.

12. Mr [Alias 1] indicated he did not know [Ms D] was a director of [named businesses]. He now remembers [Mr E] and [Ms D] were trying to establish a Backpackers business, but he knows nothing further than that. Mr [Alias 1] advised [Ms D] did not have very good English language ability, but he assumes it’s better now. Mr [Alias 1] told the Tribunal it is not his job for her to know the address of the Backpackers. Regarding the issue of [Ms D] advising the ABF officers that she obtained her position due to friendship with [Mr E], Mr [Alias 1] indicated this is about communication. He maintained he went through the correct process to nominate [Ms D]. He opined that [Ms D] may have been embarrassed or scared because she was on a temporary visa and the ABF officers were wearing an official uniform. Mr [Alias 1] stated Park and Co. Lawyers took care of the necessary paperwork and they were paid for their part of the service, which he does not see any problem with.

13. Mr [Alias 1] referred to [Ms D] saying [Mr F] was in the same job type as her. He explained that nobody uses the term Contract Administrator, citing that in Korean culture the term manager is in more common usage. Regarding the worker who told the ABF they had not seen [Ms D] before, Mr [Alias 1] indicated he was not sure how long they had been there. He remarked that a backpacker is not in a position to say what [Ms D] or [Mr F] were doing. He added that they would know a bit more about [Mr F] because he sees many backpackers to discuss work matters such as inductions and visas. Mr [Alias 1] advised many people would recognise [Mr F] but most wouldn’t know [Ms D] unless they were Mandarin speakers. He added that sometimes [Ms D] worked at ‘[Business 5]’.

14. Mr [Alias 1] reiterated that the term Manager was more in use than that of Contract Administrator. He added there was no intention to cheat anyone during the site visit interview and he was puzzled at that time. When the ABF officers visited, he was a bit worried what customers might think as the café and office are in proximity. He wasn’t ‘emotionally comfortable’ and was very nervous as it was his first experience being visited.

15. Mr [Alias 1] advised that as [Mr E] and [Ms D] were living in [City 1] on a temporary visa, he didn’t want to make trouble for them. He thought there may be a big problem for [Mr E] as he didn’t know his visa conditions. Mr [Alias 1] advised he wanted to ‘cautiously answer’ the officers’ questions and he also wanted to protect his business. He admitted this was a mistake and he is correcting it. Mr [Alias 1] added that they wanted to obtain permanent residence and he was worried if something happened that they may have to go back to [Country 1]. Therefore, he was ‘cautious’ about his answers.

16. Given Mr [Alias 1] referred to Park and Co. Lawyers completing paperwork regarding [Ms D]’s visa, the Tribunal asked him to clarify their role. Mr [Alias 1] indicated that he was responsible for the sponsorship paperwork, so he hired Park and Co. Lawyers for assistance. He stated that his wife, [Alias of Ms B], gave [Ms D] the money to pay for their services. Mr [Alias 1] could not recall the quantum of funds, however, he noted that in those times his business had a good cashflow and therefore cash was given to [Ms D] to deposit in the bank for Park and Co. Lawyers.

17. Pursuant to the procedure in s 359AA of the Act, the Tribunal raised with the applicant that the Departmental file [DELETED] contains the following information:

    a.Mr [E] applied for a Subclass 188 visa, including Ms [D] and their children as secondary applicants. On 30 September 2020, Park and Co. Lawyers submitted documentation to the Department in response to a Natural Justice letter that indicated [Mr E] and [Ms D] had provided false identity information in relation to the visa application;

    b.this material included a Statutory Declaration from Mr [E] dated 15 September 2020. Of relevance, it indicates in part:

    “4.  I have previously used the name [Alias of Mr E], and as [Alias of Mr E], I:

    a)applied for and were granted a subclass 976 Electronic Travel authority on 18 September 2006;

    b)travelled to Australia on [date] October 2006;

    c)applied for a Protection visa on 1 May 2008;

    d)were arrested by Victoria Police on 2 May 2008 for obtaining property by deception, equip to steal/cheat and dealing property suspected proceeds of crime;

    e)were handed a 3 months sentence suspended for 21 months on 5 May 2008;

    f)were removed from Australia [in] May 2008.

    5.  I have previously used the name [Alias 2 of Mr E], and as [Alias 2 of Mr E], I:

    a)applied for and were granted a subclass 976 Electronic Travel authority on 21 July 2008;

    b)travelled to Australia on [date] August 2008;

    c)applied for a Protection visa on 26 September 2008;

    d)were refused a Protection visa on 9 December 2008;

    e)lodged a review of the Protection visa refusal decision on 13 January 2009;

    f)had the original refusal decision affirmed by the Tribunal on 27 March 2009;

    g)departed Australia on [date] February 2013 after overstaying my last visa by almost 4 years from April 2009 to February 2013.

    6. [Mr E] is my true current name, I changed to this name on 18 February 2013.  I confirm that my identity and relevant documentary evidence together with this statutory declaration at least would satisfy you with my identity.

    7. Given the truth that I did not disclose in my previous two visa applications including subclass 457 and subclass 500 and I still obtained the grant eventually, so I formed that view that my past has been cleared and I do not have to disclose my previous names, which now I understand totally incorrect and inappropriate.” 

    c.this material also included a Statutory Declaration from Ms [D] dated 15 September 2020. Of relevance, it indicates in part:

    “4.  I have previously used the name [Alias of Ms D], and as [Alias of Ms D], I:

    a)applied for and were granted a subclass 976 Electronic Travel authority on 18 September 2006;

    b)travelled to Australia on [date] October 2006;

    c)applied for a Protection visa on 1 May 2008;

    d)departed Australia on [date] May 2008 because I had to follow my husband who was removed from Australia at that time;

    e)my Protection visa was refused on 22 May 2008 due to my departure;

    f)overstayed my visa from 12 January 2007 to 1 May 2008.

    5.  I have previously used the name [Alias 2 of Ms D], and as [this name], I:

    a)applied for and were granted a subclass 976 Electronic Travel authority on 21 July 2008;

    b)travelled to Australia on [date] August 2008;

    c)applied for a Protection visa on 26 September 2008;

    d)were refused a Protection visa on 9 December 2008;

    e)lodged a review of the Protection visa refusal decision on 13 January 2009;

    f)had the original refusal decision affirmed by the Tribunal on 27 March 2009;

    g)departed Australia on [date] February 2013 after overstaying my last visa by almost 4 years from April 2009 to February 2013.

    6. [Ms D] is my true current name, I changed to this name on 18 February 2013.  I confirm that my identity and relevant documentary evidence together with this statutory declaration at least would satisfy you with my identity.

    7. Given the truth that I did not disclose in my previous two visa applications including subclass 457 and subclass 500 and I still obtained the grant eventually, so I formed that view that my past has been cleared and I do not have to disclose my previous names, which now I understand totally incorrect and inappropriate.

    8.  I am extremely remorseful for what I did before plus not disclosing my previous names and conducts in the subject visa application, I am willing to do whatever it takes to make up my mistakes.” 

    51.The Tribunal indicated the above information is relevant to the review as it tends to suggest that Ms [D] and Mr [E] have engaged in significant dishonesty towards Australian Government officials. The information also tends to suggest that [Ms D] lacks credibility and her evidence to the Department that she worked for the applicant at [Business 4] is false and misleading. The Tribunal informed Mr [Alias 1] that if it was to rely upon this information, it would be the reason, or a part of the reason, to affirm the decision under review, or to vary the decision to increase the period of sponsorship bar.

    52.Mr [Alias 1] confirmed to the Tribunal he understood why the information is relevant to the review. When asked by the Tribunal if he would like to comment on or respond to the information now, or if he would like additional time to do so, he indicated he would respond immediately. Mr [Alias 1] informed the Tribunal that ‘they’ ([Mr E] and [Ms D]) said to him they changed their name. [Mr A] asked them why and they told him there was a passport problem. He recognised the names [but] he didn’t know the background contained in the information raised. They told [Mr A] there had been a problem but he didn’t know they had been removed. He reiterated he didn’t know the history. [Mr A] indicated they had discussed the Subclass 188 visa and changing of the passport, but he never questioned it. He believes they were trying to stay in Australia legally.

    53.Mr [Alias 1] added that he is surprised and he wasn’t aware of their removal, protection visa applications and the outlined history. He advised they never discussed such information. He wondered what the relevance of the information is to him now? Mr [Alias 1] thought when they got their ABN everything was fine and they travelled back and forth to [Country 1]. He thought they were lawfully in Australia and that they were hard working people, so he wanted to help them. Mr [Alias 1] reiterated they never told him about their visa cancellation or any other trouble with the authorities. He thought they were doing fine, for example [Mr E] purchased an expensive vehicle. Mr [Alias 1] thought they got this from hard work.   

    54.Given Mr [Alias 1] indicated he was told about a change of name, the Tribunal asked him when he knew their names had been changed? He replied that he thought [names] were their nicknames and they told him their names were [Mr E] and [Ms D]. He then added he calls himself [first name] and his own wife calls herself [Alias of Ms B]. He didn’t think anything of it.

    55.Pursuant to the procedure in s 359AA of the Act, the Tribunal raised with the applicant that the Departmental file [DELETED] contains the following information:

    a.on 13 December 2019, four days after the site visit regarding the applicant, Park and Co. Lawyers submitted documentation to the Department in support of Mr [E]’s Subclass 188 visa application. Included is the CV of Mr [E] with two referees, one of which is Mr [Alias 1];

    b.on 20 January 2020, Park and Co. Lawyers submitted documentation to the Department in support of Mr [E]’s Subclass 188 visa application. Included is the Form 80 of Mr [E], which indicates he worked for [Business 3] Ptd Ltd from July to September 2014.

1. The Tribunal indicated the above information is relevant to the review as it tends to suggest that Mr [Alias 1] and Mr [E] had a close relationship around the time of the site visit and that [Mr A] has provided false and misleading information to the Department and the Tribunal concerning this relationship. The Tribunal raised that the information also tends to cast doubt upon the genuineness of the claimed employment relationship concerning Ms [D] at the [Business 4]. The Tribunal informed Mr [Alias 1] that if it was to rely upon this information, it would be the reason, or a part of the reason, to affirm the decision under review, or to vary the decision to increase the period of sponsorship bar.

2. Mr [Alias 1] confirmed to the Tribunal he understood why the information is relevant to the review. When asked by the Tribunal if he would like to comment on or respond to the information now, or if he would like additional time to do so, he indicated he would respond immediately. Mr [Alias 1] indicated that regarding [Mr E] working for [Business 3] Pty Ltd, he wasn’t aware of that. He explained that around that time the company was taking around one to two thousand backpackers through the system, with his wife looking after this. He noted that his memory was very weak, as it was nearly ten years prior.

3. Regarding the information concerning him being a referee, Mr [Alias 1] sought clarification regarding the Subclass 188 visa. The Tribunal explained to him the nature of the Subclass 188 visa. He then responded that he ‘vaguely remembered’ he was asked something about the visa and was asked by [Mr E] to be a referee, but he didn’t remember clearly.

4. The Tribunal drew to the attention of Mr [Alias 1] that, earlier in the review hearing, he gave evidence that he hadn’t discussed any business matters with [Mr E] other than the [Business 2]. The Tribunal raised with him that this might seem inconsistent with what he said regarding being approached to be a referee for the Subclass 188 visa application, inviting his comment. Mr [Alias 1] replied to the Tribunal that his evidence is more a case of him not remembering fine details from the past. He added that the nature of his business interests must be considered, including cooking, managing the backpackers, liaising with farmers and conducting maintenance. He was not sure what the inconsistency was.

5. The Tribunal canvassed with Mr [Alias 1] that his earlier evidence indicated he never discussed any other business interests with [Mr E] other than the [Business 2], yet he later advised he vaguely remembered being asked to be a referee for the Subclass 188 visa after the information was raised with him. Mr [Alias 1] maintained he was not aware of the nature of the Subclass 188 visa. He then added that when the Tribunal Member informed him of its nature, ‘it suddenly refreshed’ his memory. Mr [Alias 1] also indicated that he didn’t remember earlier about their [business] concept. He informed the Tribunal he is a busy father of three children, he receives complaints from wholesalers and suppliers in his business, and he is trying to explain the mindset he’s been in. He advised he ‘is all over the shop’ and he is not doing just one business. Therefore, he tends to make some mistakes.  

6. As previously outlined, the Tribunal provided a copy of another s 376 certificate to the applicant at the review hearing. This certificate is dated 6 June 2022 and pertains to Department file [DELETED]. The Tribunal provided an adjournment for the applicant and representative to consider that certificate, following which it canvassed its validity. The representative accepted the certificate was valid and the Tribunal forms the same view. Following careful consideration, the Tribunal did not disclose the material under cover of the certificate in full to the applicant. Rather, the Tribunal provided ‘the gist’ of the material to the applicant at the review hearing, utilising the procedure in s 359AA of the Act.

7. Pursuant to the procedure in s 359AA of the Act, the Tribunal raised with the applicant that the Departmental file [DELETED] contains the following information:

   a.on 12 December 2019, the Department received an allegation from a person who wished to remain anonymous. The Informant refers to the [Business 1], with business owner Mr [Alias 1], and the [Business 2], with business owner Mr [E] and Manager Ms [D] . The Informant alleges that Ms [D] was sponsored to work by Mr [Alias 1] in his Backpackers, but she has never worked there. The Informant referred to the recent site visit by the Department and to [Ms D] not being at the Backpackers at that time. The informant advised the Department to check Victorian criminal records for further information. The Informant advised that Mr [Alias 1] and [D] are involved in the employment of illegal workers on farms around [City 1], only paying them in cash. The informant indicated this scheme has been running for some years and cited [Business 3] as a business involved; and

   b.the Informant also indicated that the [Business 2] falsely claims to employ long term unemployed persons to obtain Queensland Government benefits. The Informant also indicated [Ms D]’s sister Ms [G] and her husband are also involved in wrongdoing, as they hold a Labour Hire Contractor Licence in connection with supplying workers to farms.

8. The Tribunal indicated the above information is relevant to the review, as it tends to suggest that Ms [D] has never genuinely worked for Mr [Alias 1] in breach of sponsorship obligations and that they have both provided false or misleading information to the Department. Further, the information tends to suggest Mr [Alias 1] has provided false or misleading information to the Tribunal. The Tribunal informed Mr [Alias 1] that if it was to rely upon this information, it would be the reason, or a part of the reason, to affirm the decision under review, or to vary the decision to increase the period of sponsorship bar.

9. Mr [Alias 1] confirmed to the Tribunal he understood why the information is relevant to the review. When asked by the Tribunal if he would like to comment on or respond to the information now, or if he would like additional time to do so, he indicated he would respond immediately. Mr [Alias 1] indicated that [City 1] is a small town and, unfortunately, he has accumulated many enemies over the years. He explained he is involved in a very competitive industry and he has received threats from other contractors, although he’s not sure if he told the representative about the threatening messages he has received. He has one of the biggest worker contracting businesses in [City 1] and he presumes there are probably numerous allegations made against him.  

10. Mr [Alias 1] advised that the activities of Ms [G] and her husband [are] nothing to do with him. He believes the allegations against them are unsubstantiated and baseless. Mr [Alias 1] rejected the allegations against him regarding paying cash to backpackers as baseless. He advised that the allegation [D] was not working in his business is false. Mr [Alias 1] told the Tribunal that all the allegations are based upon lies. He added that he didn’t know anything about the criminal record of [Mr E] or their name changes.

11. Mr [Alias 1] informed the Tribunal he received some threatening messages at night once. He was also involved with the Fair Work Commission regarding a baseless unfair dismissal allegation made by an Australian worker formerly employed at the café. He added that this became a criminal matter in the end and the person apparently threatened to report them to the Department. Mr [Alias 1] recalled that he once loaned money to an employee who did not repay it. The matter went to the Queensland Civil and Administrative Tribunal (QCAT) and he obtained an Order in his favour. Initially the money was not repaid but the Order hampered the employee obtaining a home loan, so in due course the money was repaid. Mr [Alias 1] advised that a lot of people are jealous of his success, although not so much now due to the sponsorship sanctions.

12. Mr [Alias 1] also informed the Tribunal that his original visa sponsor, [Mr H], may have dobbed him in. [Mr H] nominated him for a [position]. Now [Mr H] is [doing a specified work]. When Mr [Alias 1] expanded his business into labour hire and a café, [Mr H] would come to the latter and receive a discount. [Mr H] had asked Mr [Alias 1] to purchase him a car. There was also an argument between his wife [Alias of Ms B] and [Mr H]. Apparently, [Mr H] said he would ‘dob in’ Mr [Alias 1] to the Department.

13. The Tribunal invited the applicant to provide information regarding his past and present conduct in relation to Immigration (the Department). Mr [Alias 1] had nothing further to add. The Tribunal invited the applicant to give evidence about steps taken to rectify or to try and prevent any breach of sponsorship obligations. Mr [Alias 1] explained he had outsourced the payroll [function]. This is to comply with various requirements pertaining to the Backpackers business (for instance wage requirements, maintenance of buildings and fire protection). Mr [Alias 1] indicated he is doing his best to comply with his legal obligations, he will provide full cooperation with the Department and if visited again by any Government agency he will provide the best information to them. He added that there are around four or five individuals who may have provided false information to the Department in the ‘dob in’. Mr [Alias 1] has lived in [City 1] since around 2005 and he has always tried to comply with the law, with any errors being mistakes rather than intentional. He reiterated that he didn’t know about Mr [E]’s criminal record and he denied the allegation regarding [Ms D] not working in his business and that pertaining to making cash payments to workers.

14. When asked by the Tribunal if he had any further evidence to provide at hearing, Mr [Alias 1] indicated he is at the hearing, at the end of the two and a half year sponsorship bar, as he wants the decision reviewed. He believes that two issues caused the bar and the decision is harsh. He wants to clear his name and that of his family.

15. The Tribunal raised with the applicant that the evidence might tend to suggest he breached the obligation to provide records and information to Minister, contrary to Regulation 2.83, as cited in the Department’s decision. He was invited to comment and replied that the relevant workers were on a full time annual salary, whilst the backpackers have a good record of their hours worked. Mr [Alias 1] noted it was disappointing he overlooked the matter of recording hours with the relevant employees at the Backpackers business. He noted that the Fair Work Commission had considered his records appropriate, although he accepted there might be a different standard regarding migration matters.

16. The Tribunal raised with the applicant that the evidence might tend to suggest he breached the obligation to ensure Ms [D] worked in the nominated occupation, contrary to Regulation 2.86, as cited in the Department’s decision. He was invited to comment and replied that the Department believed that although [Ms D] was a manager she performed low level duties. Mr [Alias 1] indicated she played a very important role in his business, for example with her language skills and dealing with bedbugs.

17. The Tribunal raised with the applicant that the evidence might tend to suggest he breached the obligation to ensure Ms [D] worked in the nominated occupation, contrary to Regulation 2.86, as she did not legitimately work for him at all. He was invited to comment and replied that he didn’t know what to say about the false allegation. Mr [Alias 1] maintained that [Ms D] did work for his business.

18. The Tribunal raised with the applicant that the evidence might tend to suggest he has provided false or misleading information to both the Department and the Tribunal, contrary to Regulation 2.90, in relation to the employment status of Ms [D]. He was invited to comment and replied that she was working on a full time basis and he had nothing further to add.

19. The Tribunal raised with the applicant that the evidence might tend to suggest that, having regard to the relevant criteria, he has engaged in an intentional course of conduct, over a sustained period, to deceive the Department and the Tribunal in relation to the employment status of Ms [D], who did not genuinely work for him on a full time basis in the nominated occupation. Further, this might tend to suggest his conduct is of such severity that the Department’s decision under review should be affirmed or varied to significantly increase the period of the sponsorship bar. He was invited to comment and replied that if such a decision is made, he has no other option but to accept it. 

20. The Tribunal confirmed with the applicant that he had no further evidence to provide at the hearing. The Tribunal permitted the representative to make verbal submissions at the hearing. They may be summarised as follows. The representative advised that Mr [Alias 1] is close to the end of the sponsorship bar period and he wants to clear his name. The representative indicated that the applicant has raised the matter of jealous competitors possibly providing the ‘dob in’ information, those allegations have not been tested in Court and his evidence is contrary to those allegations. Furthermore, the Department has not penalised the applicant on the basis of such allegations. The representative contended that any inconsistencies in evidence are of a minor nature only.

21. Prior to the conclusion of the review hearing, the Tribunal asked if the applicant had any further information to provide. Mr [Alias 1] advised he is exhausted as he got up early to drive to attend the hearing. He noted this was not an excuse but asked for consideration of this matter. He added that he had not intentionally deceived anyone. The Tribunal noted it had afforded Mr [Alias 1] several breaks during the hearing and that it would carefully consider his evidence. The review hearing concluded as the applicant had no further evidence to provide.

22. The Tribunal notes that a post-hearing submission was lodged by the representative (Mr Chang Min Park). In that submission, the representative makes several contentions inferring the Tribunal made findings or conclusions during the review hearing. For example, the representative writes “…the Tribunal expressly stated that the evidence before the Tribunal would suggest that [Mr A] had engaged in intentional conduct to deceive the Department of Home Affairs (“the Department”) and the Tribunal in relation to the employment status of Ms [D] (“[Ms D]”) for a prolonged period, and that it suggests the conduct is of a severity to affirm or vary the original decision.” Rather, the Tribunal raised that the evidence ‘might tend to suggest’ the matters that followed. No conclusion was drawn by the Tribunal during the review hearing on such matters.

23. Further, the representative writes, “…The Tribunal identified that, within [Mr E]’s CV, [Mr A] was mentioned as a professional referee. The Tribunal suggested that this was contradictory to [Mr A]’s oral evidence that he has never had a business relationship with [Mr A]. It is submitted to the Tribunal that its finding to this regard is unreasonable and baseless. Providing assistance by way of agreeing to be a professional referee on one’s CV does not automatically suggest that there had been a pre-existing business relationship. The Tribunal alleged that this misconceived contradiction contributed to its suggestion that [Mr A] was not credible in his provision of evidence.” Rather, the Tribunal raised the potential inconsistency in the initial evidence given by Mr [Alias 1] that he had not spoken to [Mr E] or [Ms D] about them wanting to run any other business than the [Business 2], with the later evidence that [Mr A] had been recorded as one of two referees for [Mr E]’s CV submitted with the Subclass 188 visa application and associated matters. The Tribunal did not suggest at the review hearing Mr [Alias 1] had a pre-existing business relationship with [Mr E] on the basis of being recorded as a referee in the submitted CV. The Tribunal notes that no findings had been made during the review hearing as inferred by the representative.

24. In summary, the representative contends that the anonymous ‘dob in’ allegation regarding Mr [Alias 1] is untested and should not be relied upon. Indeed, the representative writes, “…the Tribunal is encouraged to be mindful and cautious in its reliance upon the untested evidence presumably contradicting [Mr A]’s oral testimony.” Of note, the representative contends that the Tribunal “…had placed significant weight…” upon the dob in at the time of the hearing. The Tribunal notes that no such decision pertaining to the weight of evidence at the time of the hearing was in fact made. The Tribunal accepts that caution is to be applied to the assessment of evidence provided by anonymous sources and outlines its reasoning below in that regard. The representative also contends that inconsistencies in evidence at the hearing are minor and should not impugn the credibility of Mr [Alias 1] (in addition to the contentions raised regarding potential inconsistency concerning the topic of being a referee in [Mr E]’s CV). The Tribunal has carefully considered all submissions made by the representative.

    Analysis

25. The Tribunal has carefully considered the significant volume of evidence before it by way of documentation and verbal testimony. It has also duly considered the submissions, both written and verbal, of the representative. The Tribunal notes that various documents including, inter alia, statements in support of the review application are before it. They have been duly considered, in conjunction with all relevant evidence.

26. Regarding the requirements of reg 2.83, the Tribunal has carefully considered the evidence pertaining to the provision of records to the ABF regarding Mr [C] and Ms [D]. The Tribunal notes that the applicant provided a copy of their rosters and associated documentation to the ABF and it further notes they were formally engaged on a full time basis (as opposed to part time, casual or any other). The Tribunal notes this topic is finely balanced and a pernickety approach is unhelpful in the prevailing circumstances. Following careful consideration, the Tribunal accepts the applicant provided an acceptable, albeit limited, response to the ABF request for records and information. Therefore, the Tribunal finds the applicant did not breach reg 2.83.

27. The Tribunal has carefully considered whether the applicant breached the obligation in reg 2.86, to ensure Ms [D] worked in the nominated occupation of Accommodation and Hospitality Manager. For the following reasons, the Tribunal finds that the applicant breached that obligation. Of note, a holistic assessment of the evidence has led the Tribunal to this conclusion.

28. The ABF site visit located Ms [D] working at the [Business 2] in December 2019. Her husband, Mr [E], runs that business. [Ms D] was also a director of that business entity at the time of the site visit. Both [Ms D] and [Mr E] have participated in a significant contrivance to circumvent Australia’s migration program. For example, they have assumed multiple identities and been untruthful repeatedly with respect to immigration matters. It is apparent they have been prepared to wilfully lie to Department staff. These matters lead the Tribunal to assess both [Ms D] and [Mr E] to lack credit in their dealings concerning Australian immigration matters. This tends to suggest that [Ms D] would be prepared to give untruthful information to the ABF officers when surprised by them at an announced site visit. This context casts doubt upon the genuineness of [Ms D]’s assertion to ABF officers that she was just filling in at the [Business 2] for her absent husband in December 2019.

1. Additionally, [Ms D] had difficulty advising the ABF officers of the address of her employment with the applicant, despite having purportedly worked there for some time. The ABF officers checked in with [Ms D] as to her English language ability, thus the Tribunal does not accept language difficulties adversely affected the integrity of their interview with her. The difficulty of [Ms D] recalling such basic detail casts further doubt upon her evidence to the ABF officers that she worked full time for the applicant and was merely taking a day off. For completeness, the Tribunal places no weight upon the evidence of the employee spoken to by the ABF at [Ms D]’s employment location, who couldn’t identify her from a photograph, as it is likely they were a transitory person.

2. Further doubt about the authenticity of Ms [D]’s nominated employment is raised by Mr [Alias 1]s interactions with the ABF officers in December 2019. Whilst the Tribunal accepts he was nervous and apprehensive about their unannounced visit, the breadth of his conduct suggests he was less than forthcoming with the officers. For example, the officers recorded that Mr [Alias 1] initially informed them that he only sponsored Mr [C], then with some suddenness he corrected his answer to refer to Ms [D]. Mr [Alias 1] also initially mislead the ABF officers when asked if he knew who owned the [Business 2]. Only after a further caution did he admit to them he knew that the owner was Mr [E]. In evidence at hearing before the Tribunal, Mr [Alias 1] advised that he gave ‘cautious’ answers to the ABF officers initially because he didn’t want to get Mr [E] in trouble. This tends to suggest [Mr A] is prepared to be less than forthcoming where he perceives an advantage to himself or others with whom he is aligned. For the sake of completeness, the Tribunal notes it is satisfied that Mr [C] was correctly identified to be working in the nominated occupation of Contracts Administrator and that this occupation title is more commonly referred to as ‘Manager’ by persons frequenting the applicant’s Backpacker accommodation.

3. The Tribunal spent some time during the review hearing attempting to ascertain the proximity of the relationship between Mr [Alias 1] and Mr [E]. This was because their friendship was raised in the primary decision and it is relevant to this review. The Tribunal had the benefit of observing [Mr A] provide his evidence on this topic in person at the hearing. [Mr A] provided an opaque account, with varying degrees of proximity offered. The Tribunal did not observe [Mr A] to provide direct answers on this topic. Whilst the Tribunal is prepared to accept that [Mr A] was tired and nervous, his demeanour at hearing presented as evasive on this topic. Accordingly, the Tribunal forms the view that [Mr A] attempted to obscure the degree to which he was friendly with [Mr E].

4. The Tribunal is satisfied that Mr [Alias 1] had a closer relationship with Mr [E] than he attempted to portray through the balance of the review hearing. In particular, the Tribunal is satisfied that Mr [Alias 1] agreed to be a referee for Mr [E]’s CV, in connection with a Subclass 188 visa application. This suggests a more proximate relationship than [Mr A] conceded at hearing. The Tribunal does not accept that [Mr A] had a distant relationship with [Mr E] at the time of the Subclass 188 visa application, as his willingness to be a referee for him suggests otherwise. Following careful consideration, the Tribunal is satisfied that Mr [Alias 1] and Mr [E] maintained a reasonably close relationship from their time working together and collaborating in the agricultural picking industry, until at least the time of the Subclass 188 visa lodgement in 2019, shortly after the site visit. The Tribunal does not suggest that [Mr A] and [Mr E] have been in business together on the strength of the former acting as a referee for the latter.     

5. Mr [Alias 1]’s past collaboration with [Mr E] in the agricultural sector, his willingness to initially mislead the ABF officers during the site visit as to the ownership of the [Business 2] and his agreement to be a referee for the CV utilised in connection with the Subclass 188 visa application, all point to the two men having a reasonably close relationship at least up until the end of 2019. This context, combined with [Mr A]’s opaque evidence at hearing regarding the proximity of their relationship, tend to suggest [Mr A] was prepared to assist [Mr E] out of a sense of friendship. The aforementioned matters also tend to suggest that [Mr A] was prepared to assist [Mr E] by employing his wife, [Ms D], in order for her to hold a temporary employment visa (with [Mr E] as a secondary visa holder) and to also allow her to work at the [Business 2] as was required.

6. The Tribunal notes that Ms [D] (aka ‘[Alias of Ms D]’ and ‘[Alias 2 of Ms D]’) and her husband Mr [E] (aka ‘[Alias of Mr E]’ and ‘[Alias 2 of Mr E]’) have admitted to attempting to circumvent Australian migration laws. However, the Tribunal accepts the evidence of Mr [Alias 1] that he did not know the depth of the deception perpetrated by [Ms D] and [Mr E]. Although [Mr A] informed the Tribunal at hearing that he knew these individuals utilised nicknames and was told by them at some point they had changed their names due to a passport issue, it is accepted he did not know their immigration history at the time he employed [Ms D].

7. The Tribunal has carefully considered the ‘dob in’ information provided by the anonymous source regarding the employment situation of [Ms D] by the applicant and additional matters. The Tribunal accepts that it must exercise caution in its assessment of such information given its anonymity, temporal limitation and the inability to question the informant. The Tribunal has also taken into account Mr [Alias 1]’s evidence that he has acquired several jealous enemies over the years. However, the specificity of the information regarding the timing of the site visit and absence of [Ms D], the identification of [Ms D]’s nickname and the suggestion to check Victorian criminal records, point to the informant having reasonable knowledge of the employment situation of [Ms D]. The Tribunal notes that the informant’s knowledge is likely limited in time and their information is not accepted in its entirety.

8. Following careful consideration, the Tribunal affords some weight, although minor in degree, to the informant’s information suggesting [Ms D] did not work for the applicant. However, given the various limitations to the information, particularly temporal, the Tribunal does not accept that [Ms D] never worked for the applicant as suggested. Rather, the Tribunal is satisfied this information points to [Ms D] not consistently performing the duties of her nominated occupation, as would be expected of a full time Accommodation and Hospitality Manager employed by the applicant. Indeed, during the site visit she was observed by the ABF officers to be working at the [Business 2], undertaking other duties. For completeness, the Tribunal notes it affords no weight to the balance of the information provided by the informant, as it is not relevant to this review.

9. Having regard to the evidence holistically, the Tribunal is satisfied that the applicant employed [Ms D] in the nominated occupation of Accommodation and Hospitality Manager for a significant period. This is demonstrated by evidence including, inter alia, third party statements, financial records and the explanations of Mr [Alias 1]. Indeed, some minor discrepancies in [Mr A]’s account do not detract from the aforementioned conclusion. However, having regard to the adverse matters previously outlined in combination, the Tribunal is also satisfied that [Mr A] permitted [Ms D] to undertake work in the [Business 2], as was mutually convenient on multiple occasions. The Tribunal forms the view that this situation arose due to the depth of friendship between Mr [Alias 1] and Mr [E]. In permitting Ms [D] to perform work outside of her nominated occupation, the applicant breached the obligation in reg 2.86, to ensure she worked in the nominated occupation of Accommodation and Hospitality Manager. The Tribunal so finds.

10. Accordingly, the Tribunal is satisfied that the prescribed circumstance in reg 2.89 exists for the purpose of s 140M of the Act.

    Action to be taken

11. For the reasons outlined, 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, if any, the Tribunal has had regard to the prescribed criteria, as extracted in the attachment to this decision.

12. The Tribunal has carefully considered ‘the past and present conduct of the applicant in relation to Immigration.’ It is apparent that the applicant provided some cooperation to the ABF officers during and after their site visit, including by way of the provision of records. However, the Tribunal also forms the view that Mr [Alias 1] was less than forthcoming to the ABF officers regarding the external work performed by Ms [D] at the [Business 2].

13. Having regard to ‘the number of occasions on which the applicant has failed to satisfy the sponsorship obligation’ in reg 2.86, the Tribunal is satisfied the applicant permitted [Ms D] to work at the [Business 2] on multiple occasions, as was mutually convenient. The Tribunal forms this view following careful consideration of the adverse matters previously outlined.   

14. The Tribunal has also carefully considered ‘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.’ Given the adverse matters previously outlined, the Tribunal forms the view that [Ms D] was permitted to work at the [Business 2] on multiple occasions throughout the course of her employment with the applicant. The Tribunal considers the circumstances to be a particularly severe, given the breach of reg 2.86 took place over a sustained period and was not conceded by the applicant.

15. The Tribunal has carefully considered ‘the period of time over which the applicant has been an approved sponsor’. The Tribunal notes the applicant has been approved twice as a standard business sponsor. The most recent period of sponsorship commenced on 8 January 2016 and concluded on the date of the primary decision, 6 August 2020. The Tribunal considers the applicant held the status of an approved standard business sponsor for a significant period.

16. The Tribunal has carefully considered ‘whether, and the extent to which, the failure to satisfy the sponsorship obligation in reg 2.86 has had a direct or indirect impact on another person.’ The Tribunal considers that Ms [D] has been involuntarily brought to the attention of the Department through the breach of the sponsorship obligation. This has the impact of casting her in a disadvantageous light when she interacts with the Department.

17. The Tribunal has carefully considered ‘whether, and the extent to which, the failure to satisfy the sponsorship obligation was intentional, reckless or inadvertent.’ Given the adverse matters previously outlined, the Tribunal is satisfied the breach of reg 2.86 by the applicant was intentional and ongoing. The breach of reg 2.86 occurred, as was mutually convenient, between Mr [Alias 1] and Mr [E] due to their friendship with each other.

18. The Tribunal has carefully considered ‘whether, and the extent to which, the person has cooperated with Immigration, including whether the person informed Immigration of the failure.’ The Tribunal is satisfied Mr [Alias 1] cooperated with Immigration, regarding reg 2.86, only to the extent that he belatedly conceded Mr [E] owns the [Business 2]. For the balance of his interactions regarding reg 2.86, [Mr A] has not cooperated with Immigration. Additionally, the applicant did not inform Immigration of the breach of reg 2.86. Rather, the breach was identified during an ABF site visit. [Mr A] cooperated with Immigration in relation to other matters.  

19. The Tribunal has carefully considered ‘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 does not concede Ms [D] worked at the [Business 2] in breach of reg 2.86. Accordingly, the Tribunal does not accept the applicant took any steps to rectify the failure to satisfy reg 2.86 with respect to [Ms D]. However, the Tribunal notes that [Ms D] left the employ of the applicant some time ago and it is satisfied that should the applicant regain approval as a standard business sponsor, the applicant will take greater care to ensure nominees only work in their nominated occupations.

20. The Tribunal has carefully considered ‘the processes (if any) the person has implemented to ensure future compliance with the sponsorship obligation.’ Mr [Alias 1] submitted that various measures have been implemented in his business to ensure the recording of hours worked by employees and their duties are accurately recorded. The Tribunal accepts that the applicant has sufficient processes in place to ensure future compliance with reg 2.86. Furthermore, the Tribunal is satisfied the applicant would be well aware of the potential consequences of breaching reg 2.86 in the future, given the effect of the sanctions imposed.   

21. The Tribunal has carefully considered ‘the number of other sponsorship obligations that the applicant has failed to satisfy, and the number of occasions on which the applicant has failed to satisfy other sponsorship obligations.’ The Tribunal is satisfied the applicant has not breached sponsorship obligations other than reg 2.86 with respect to Ms [D].

22. The Tribunal has carefully considered ‘any other relevant factors.’ It is accepted by the Tribunal that Mr [Alias 1] was nervous before it and the ABF officers. However, it does not accept that he was denied procedural fairness due to those matters, or a purported language barrier, nor is it accepted that he was not provided with relevant information by the ABF officers during their site visit. Of note, Mr [Alias 1] advised the Tribunal of the significant impact of the sanctions imposed upon him by the ABF. The Tribunal considers this to be a relevant factor in the review and it is satisfied that [Mr A] is now familiar with the requirements of reg 2.86 moving forward.

23. The Tribunal notes that it has found only one sponsorship obligation, reg 2.86, to have been breached by the applicant. However, the Tribunal finds that it was breached on multiple occasions, as was convenient to Mr [Alias 1] and Mr [E]. Considering the circumstances holistically and having regard to the prescribed criteria, the Tribunal finds that the following actions are warranted. Cancellation of the approval of the applicant’s standard business sponsorship granted on 8 January 2016, pursuant to s 140M(1)(a) of the Act. Additionally, the applicant is to be barred from making applications for approval as a standard business sponsor and temporary activities sponsor from 6 August 2020 until 6 February 2023, a period of two and a half years, pursuant to s 140M(1)(d) of the Act.

24. Therefore, the sanctions imposed by the delegate are to remain unaltered and the primary decision is affirmed. The Tribunal notes, for completeness, that the period of the bar has now elapsed.  

    DECISION

    108.The Tribunal affirms the decision under review.

    K. Chapman
    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.

    …