5 Spice Indian Cuisine Pty Ltd (Migration) - [2023] AATA 2617

5 Spice Indian Cuisine Pty Ltd (Migration) [2023] AATA 2617 (24 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  5 Spice Indian Cuisine Pty Ltd
REPRESENTATIVE:  Mr Ireneusz Lasocki (MARN: 0102034)
CASE NUMBER:  2008956
HOME AFFAIRS REFERENCE(S):          OPF2019/12563
MEMBER:Kate Millar
DATE:24 July 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision under review.

Statement made on 24 July 2023 at 4:26pm

CATCHWORDS
MIGRATION – sponsorship cancellation or bar – equivalent terms and conditions of employment – ensuring equivalent terms and conditions of employment – period of unpaid leave overseas approved – extended Leave Without Pay period for personal reasons – annual guaranteed earnings not paid – decision under review affirmed
LEGISLATION
Fair Work Act 2009
Migration Act 1958, s 140
Migration Regulations 1994, rr 2.57, 2.72, 2.79, 2.82, 2.89-2.94

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The, 5 Spice Indian Cuisine Pty Ltd (‘5 Spice’) operates an Indian restaurant and was approved as a standard business sponsor on 18 November 2016.
5 Spice employed Mr Praveen Reddy Padamari as a chef. In April 2018, the Director of 5 Spice, Mr Umamaheshwar Chada, approved leave for Mr Padamari for approximately three and a half months.
As a result, a delegate of the Minister found that 5 Spice had breached its obligation to ensure equivalent terms and conditions of employment. This was because the unpaid leave resulted in Mr Padamari being paid less than the guaranteed annual earnings of $58,500 per year specified in the nomination of his position.
On 7 May 2020, the delegate decided to bar 5 Spice from sponsoring more people under the terms of the approved standard business sponsorship for a period six months under s 140M of the Migration Act 1958 (the Act) on the basis that 5 Spice had failed to satisfy the obligation to ensure that equivalent terms and conditions of employment were provided to a sponsored person as would be provided to an Australian citizen or permanent resident.
An application to the Minster to waive the bar under s.140O of the Act was unsuccessful.
5 Spice has applied for review of a decision by to take an action under s 140M of the Migration Act 1958 (Cth) (the Act) in relation to its’ sponsorship.
Mr Umamaheshwar Chada, the Director of 5 Spice, was given leave to appear by telephone as he was overseas at the time of the hearing. He appeared before the Tribunal on 8 March 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Padamari. Following the provision of further information from 5 Spice about Mr Padamari’s income in the 2019/2020 financial year, the hearing was resumed on 24 July 2023 (following deferrals at the request of 5 Spice) to allow an opportunity to respond to the effect of this information on an assessment of whether Mr Padamari’s earning were less in that year than those specified in the nomination. 5 Spice was represented in relation to the review.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 5 Spice Indian Cuisine Pty Ltd (Migration)

Details

AGLC: 5 Spice Indian Cuisine Pty Ltd (Migration) [2023] AATA 2617
Case: [2023] AATA 2617
Decision Date: 24 July 2023

CaseChat Overview and Summary

This matter concerned an application by 5 Spice Indian Cuisine Pty Ltd for review of a decision to bar the company from sponsoring further individuals for a period of six months. The dispute arose from the company allowing an employee, Mr. Padamari, to take an extended period of unpaid leave, which the delegate determined constituted a failure to satisfy sponsorship obligations under the Migration Regulations 1994. The company sought review of this decision, arguing that the leave was granted for compassionate reasons and that Mr. Padamari had since obtained permanent residency. The review was heard by Senior Member Kate Millar.

The primary legal issue before the Tribunal was whether 5 Spice Indian Cuisine Pty Ltd had failed to satisfy its sponsorship obligation under regulation 2.79(3) of the Migration Regulations 1994 by allowing Mr. Padamari to take an extended period of unpaid leave. This obligation required that the terms and conditions of employment provided to the sponsored person be no less favourable than those provided to an Australian citizen or permanent resident performing equivalent work. The Tribunal was also required to consider the prescribed criteria under regulation 2.89 when determining what action, if any, should be taken in response to a failure to satisfy a sponsorship obligation.

The Tribunal reasoned that while the employer may have reluctantly agreed to the extended unpaid leave at the employee's request and perhaps out of compassion, such a lengthy period of unpaid leave undermined the purpose of the visa program, which is to fill temporary skills shortages. The Tribunal noted that the National Employment Standards do not provide for unpaid leave for the purposes of attending an engagement or for caring for an uncle in these circumstances. Despite acknowledging that 5 Spice had since been monitored by the Fair Work Commission without adverse findings and that Mr. Padamari had been granted a permanent visa, the Tribunal found that the action of allowing extended unpaid leave was inconsistent with the responsibilities of a sponsor.

Ultimately, the Tribunal affirmed the delegate's decision, imposing a bar on 5 Spice Indian Cuisine Pty Ltd from sponsoring more people under the terms of its approved standard business sponsorship for a period of six months. The Tribunal considered this a short period that did not affect Mr. Padamari's subsequent visa grant but served as a consequence for the sponsor's failure to meet its obligations.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

A copy of this certificate was provided to the applicant, through its representative, prior to the hearing and the applicant was invited to comment on the validity of the certificate. BACKGROUND This matter has come before the Tribunal because Mr Padamari was given permission to take over 3 months of leave, most of it unpaid. 5 Spice provided the original request from Mr Padamari which states he planned to go on vacation to India from 14 May to 14 August 2019 for his marriage proposal and “other personal works”. A letter from Mr Chada approves this leave on condition that he returns strictly on the specified date as they are a small business and will struggle to provide a replacement. The approval states two weeks of the leave is paid in accordance with Mr Padamari’s entitlement, and the remaining is unpaid leave. On 3 August 2019, Mr Padamari sent an email requesting an extension of his leave. Mr Chada replied that his leave cannot be extended. Mr Padamari replies that “the work is not done from my end due to the sudden accident of my uncle (met with electric shock).” Mr Padamari says he will make sure his date of travel is 24 August 2019. Mr Padamari returned to work on 28 August 2019. His total leave was from 14 May 2019 to 28 August 2019. The delegate decided to bar the sponsor from sponsoring more people under the terms of approved standard business sponsorship for a period of 6 months. Since then, Mr Padamari has applied for and had been granted a permanent Subclass 187 visa. This indicates that it was considered reasonable to disregard adverse information as a result of the bar. 5 Spice want the decision reviewed despite the bar having expired and the grant of Mr Padamari’s visa as it remains as potential adverse information for future nominations. 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. Section 140L sets out that the Regulations may prescribe circumstances in which a sponsor may be barred, or the sponsor’s approval cancelled. For the purposes of s. 140L. r.2.89 of the Migration Regulations 1994 (the Regulations) states that a circumstance is that a person has failed to satisfy a sponsorship obligation in Division 2.19. The circumstances are prescribed in regs 2.89–2.94B and include the circumstance relied on by the delegate, which is that the Minister, or Tribunal on review, is satisfied there has been a failure to satisfy a sponsorship obligation.

Evidence

Evidence Before The Court

5 Spice want the decision reviewed despite the bar having expired and the grant of Mr Padamari’s visa as it remains as potential adverse information for future nominations. 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. Section 140L sets out that the Regulations may prescribe circumstances in which a sponsor may be barred, or the sponsor’s approval cancelled. For the purposes of s. 140L. r.2.89 of the Migration Regulations 1994 (the Regulations) states that a circumstance is that a person has failed to satisfy a sponsorship obligation in Division 2.19. The circumstances are prescribed in regs 2.89–2.94B and include the circumstance relied on by the delegate, which is that the Minister, or Tribunal on review, is satisfied there has been a failure to satisfy a sponsorship obligation. In this case, the sponsorship obligation the delegate found that 5 Spice did not meet is the obligation in 2.79(3). Where a prescribed circumstance has been found to exist, the regulations prescribe criteria that must be considered when determining what action, if any, to take: regs 2.89–2.94B. These criteria, as they relevantly apply to the circumstances of this case are set out in the attachment to this decision.Does a circumstance for the taking of an action exist? In the present case, the delegate found that 5 Spice failed to satisfy a sponsorship obligation.Failure to satisfy a sponsorship obligation: reg 2.89 The Minister may take one or more of the actions in s 140M if satisfied the sponsor has failed to satisfy a sponsorship obligation referred to in Division 2.19 of the Regulations: reg 2.89(2). The sponsorship obligation in question is the obligation in r.2.79(3). This applies to a person who is a sponsor of the primary sponsored person if the primary sponsored person holds a Subclass 457 or a Subclass 482 visa. Ms Padamari held a Subclass 457 visa, and the application for approval of the nomination was made 13 January 2018. The obligation in r.2.79(3) that applies to nominations made before 18 March 2018 is thatthe terms and conditions of employment provided to the primary sponsored person are:(iii) no less favourable than the terms and conditions of employment that the Minister was satisfied, under paragraph 2.72(10)(c) (as in force before 18 March 2018), were no less favourable than the terms and conditions of employment that are provided, or would be provided, to an Australian citizen or an Australian permanent resident; and(iv) no less favourable than the terms and conditions of employment that the person provides, or would provide, to an Australian citizen or an Australian permanent resident to perform equivalent work in the person's workplace at the same location; or

Decision

Reasons for decision

This is a very short period to be barred and has not affected the subsequent grant of the visa to Mr Padamari, however does acknowledge that the action taken by 5 Spice in allowing extended unpaid leave is not consistent with the responsibilities of being the sponsor of a Subclass 457 visa holder. DECISION The Tribunal affirms the decision under review.Kate MillarSenior MemberATTACHMENT – Extract from the Migration Regulations 19942.89 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.…

Ratio Decidendi

Legal Principle Established

As noted in the decision record, the Department identified the breach while monitoring Spice, however 5 Spice was co-operative in proving information to the monitoring. (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 5 Spice has since been monitored by the Fair Work Commission without any adverse findings, and Mr Padamari has been granted a Subclass 187 visa. The Tribunal accepts this shows there have not been any further breaches and action was taken to rectify the beach. (i)the processes (if any) the person has implemented to ensure future compliance with the sponsorship obligation Mr Chada says that when we became aware that granting this leave was not permissible, he has not granted any other unpaid leave. (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 It has not been established that 5 Spice has failed to satisfy any other sponsorship obligations. (k) any other relevant factors 5 Spice submitted that it was complying with its obligations as an employer is providing leave without pay. It was submitted that Mr Padamari received unpaid leave for his marriage ceremony overseas, and this ws a compelling and compassionate reason for the leave. 5 Spice was asked to provide any information which supported that granting leave in these circumstances is a required under Australian laws. None of the information provided shows that this is a requirement of an employer. Mr Padamari wanted leave for the purposes of his engagement. He extended his leave slightly and said this was due to the illness of his uncle. The National Employment Standards do not provide for unpaid leave to arrange and attend his engagement and does not provide for paid or unpaid carers leave where his uncle is not a member of his household. CONCLUSION While the Tribunal acknowledges that the employer reluctantly agreed to a long period of unpaid leave at the requested of Mr Padamari and may have considered it was required to do so, long periods of unpaid leave undermine the purposes of granting a visa to fill temporary skills shortages. It is contrary to the obligations of a sponsor, and it is the responsibility of the sponsor to be aware of these obligations. Considering the totality of the circumstances, and having regard to the prescribed criteria, the Tribunal finds that the action mentioned in s 140M(1)(c) should be taken to impose a bar on 5 Spice from sponsoring more people under the terms of the approved standard business sponsorship for a period of 6 months. This is a very short period to be barred and has not affected the subsequent grant of the visa to Mr Padamari, however does acknowledge that the action taken by 5 Spice in allowing extended unpaid leave is not consistent with the responsibilities of being the sponsor of a Subclass 457 visa holder. DECISION