Amardeep Singh Johal (Migration)

[2021] AATA 4394

Amardeep Singh Johal (Migration) [2021] AATA 4394 (5 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Amardeep Singh Johal

CASE NUMBER:  1934607

HOME AFFAIRS REFERENCE(S):          OPF2019/12315

MEMBER:Cathrine Burnett-Wake

DATE:5 November 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 05 November 2021 at 11:08am

CATCHWORDS
MIGRATION – action in relation to sponsorship – cancellation as standard business sponsor and 12-month bar from re-applying – failure to satisfy obligation that sponsored person works in nomination occupation – hairdresser performing tasks of beautician – portion of time spent on those tasks – application for permanent residency refused because of nomination refusal – failure to satisfy obligation reckless and significant and action by department appropriate – bar period now expired – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140L(1)(a), 140M, 375A
Migration Regulations 1994 (Cth), rr 2.86(2), 2.89(3)

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 to take an action under s 140M of the Migration Act 1958 (the Act) in relation to the applicant’s sponsorship.

2. The applicant was approved as standard business sponsor on 17 June 2017. On 19 November 2019, the delegate decided to cancel the approval as a standard business sponsor and bar the applicant for 12 months from making applications for approval as a standard business sponsor and temporary activities sponsor under s 140M on the basis that the sponsor failed to satisfy r.2.89, ‘Failure to satisfy sponsorship obligation’, on one ground, being:

   • Regulation 2.86 Obligation to ensure primary sponsored person works or participates in nominated occupation, Program or activity.

3. The applicant appeared before the Tribunal on 11 October 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Tejalben Sachinkumar Patel. 

4. The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

7. 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.

8. 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.

9. 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 case are set out in the attachment to this decision.

   Does a circumstance for the taking of an action exist?

10. The Department made the following findings in its decision; reproduced as follows:

    Assessment and findings

    Regulation 2.89 Failure to satisfy sponsorship obligation

    Regulation 2.86 Obligation to ensure primary sponsored person works or participates in
    nominated occupation, program or activity

    In relation to this regulation, the sponsor stated in response to the NOITTA that Tejalben
    Sachinkumar Patel (the sponsored worker) does not work as a beautician but is a
    hairdresser that ‘sometimes’ had to perform general waxing duties. The sponsor
    expands on these points which can be summarised as follows:

    ·The sponsored worker does not have a dedicated column in the appointment register, as ‘old’ hairdressers have a strong client base and these columns are only used if a specific hairdresser has been requested;

    ·Denies claiming that the sponsored worker ‘predominantly’ does beautician work and that she predominantly works as a hairdresser who performed threading and general waxing duties only occasionally on those clients that ‘insisted’;

    ·The sponsor contends that because a hairdresser’s duties include hair removal such as shaving and trimming facial hair then duties such as waxing and threading should be considered acceptable;

    ·The sponsor argues that a beautician’s salary is less than that of a hairdresser and it therefore makes no sense to pay the sponsored worker the higher wage of a hairdresser when they ‘could have hired a beautician’ for lower pay;

    The sponsor provided the following in support of above:

    ·a list of hairdressing duties allegedly undertaken by the sponsored worker which largely correlate with the last point of the ANZSCO except, which includes‘Removing hair on upper lips, eyebrows and chin by threading or waxing;

    ·Open source extracts taken from website Payscale of the average Australiansalary for both a beautician and a hairdresser;

    ·Payslips for the sponsored worker along with a PAYG payment summary for yearending 30 June 2018;

    ·Tax assessment and PAYG payment summary for year ending 30 June 2019;

    I have noted the sponsor’s response to the NOITTA and the other evidence gathered
    during monitoring and consider that the sponsored worker is performing duties more
    aligned with a beauty therapist.

    The sponsor claims that any beauty therapist work undertaken by the sponsored worker
    was incidental to her hairdressing duties. This claim is in direct conflict with information
    obtained during the site interview undertaken on 23 October 2019 from owner and sole
    trader Amardeep Singh Johal. The audio recording of the interview confirms the
    following responses with respect to the sponsored worker’s duties:

    ·“Waxing in a week maybe 15-20 times. Sometimes a full body wax too.”

    ·When asked if all employees undertakes waxing Amardeep Singh Johal stated “No not everybody can do the waxing….Teja do it… She is the only one. She do make-up and waxing.”

    ·When asked by ABF to put a percentage on her cutting hair her and waxing and which takes up most of the sponsored worker’s time, Amardeep Singh Johal responded “‘waxing”.

    I remain satisfied after reviewing this audio recording that the owner provides
    unambiguous testimony that the sponsored worker undertakes duties which are more
    aligned with that of a beauty therapist. I am also satisfied, based on this testimony that
    these duties can in no way be considered ‘incidental’ to her nominated position as a
    hairdresser.

    With respect to the appointment book, the sponsor has provided slightly differing
    versions of how this book is used. During interview, Amardeep Singh Johal claimed that
    ‘walk-ins’ are not recorded in the book at all and that only appointments are recorded.

    The sponsor’s most recent explanation is that a record is made only when a client
    requests a particular hairdresser otherwise details ‘do not get logged in’. I find this
    explanation to be highly questionable at best and simply false and self-serving at worst. It
    beggars belief that the sponsor would take an appointment from a client and/or provide a
    service and accept payment for such a service without making a record of any kind.

    There are numerous references in the book for clients identified as ‘man’, ‘boy’, ‘lady’
    followed by ‘WI’, which suggests walk-ins are indeed recorded and it is evident from such
    entries that not a single entry has been credited to the sponsored worker. In fact only one
    job could be attributed to the sponsored worker which references ‘u/arms’ and ‘Brazilian’.

    The sponsor claims that some of the older hairdressers have a strong client base and the
    columns are only used when clients request a particular hairdresser. I again find this
    explanation far from convincing given the sponsored worker has been working for the
    sponsor as a qualified hairdresser for more than 2 years. It would be expected that a
    fully qualified hairdresser working full-time would have received a hairdressing
    appointment during this period.

    I find this register and its inability to demonstrate hairdressing work conducted by the
    sponsored worker to be compelling.

    The sponsor’s contention that shaving and trimming moustaches and beards correlates
    to the waxing and threading duties of a beauty therapist has no merit. A hairdresser and
    a beauty therapist are different occupations and I have given no weight to this claim.

    Similarly the sponsor’s claim that it ‘could have hired a beautician’ and not paid the
    higher salary of a hairdresser is given no weight. The sponsor’s efforts to point out it
    would be illogical to pay a beauty therapist a hairdressers wages is an irrelevant

    consideration when assessing whether a breach has occurred.

    Taking into consideration all information before me I am satisfied the sponsor has failed
    to ensure its sponsored worker – Tejalben Sachinkumar Patel works in her nominated

    occupation (as a hairdresser) and that this constitutes a failure of Regulation 2.86 (2).

    The hearing

    Section 375A Certificate

11. At the commencement of the hearing the Tribunal advised Mr Johal that the Department file relating to his review contained a Certificate relating to Notification Regarding Disclosure of Certain Information to the Administrative Appeals Tribunal Under s.375A of the Act.

12. The Tribunal explained to Mr Johal that it had taken the view that the certificate was valid. However, the information contained behind the certificate related to internal investigation reports made by the Department and that the information in them was already detailed in the decision record and it would not be relying on information protected by the certificate in making its decision.

13. The Tribunal asked Mr Johal and his representative if they would like to make any submissions concerning the certificate, including but not limited to its validity. The applicant and representative outlined they had no comments regarding the certificate.

    Mr Johal’s evidence

14. At hearing Mr Johal conceded that he breached r. 2.86 ‘Obligation to ensure primary sponsored person works or participates in nominated occupation, Program or activity.’ He explained that Ms Patel had provided beauty therapy services, such as waxing and threading, not just working as a hairdresser. He claimed that initially he thought this was permissible because it was only a small portion of her time and he lacked knowledge about the requirements. He maintained that they were ancillary services and she only performed such services when clients asked her to do so.  He explained that following the Department’s NOITTA all beauty therapy services ceased as he now understands that they are not duties allowed as per the occupation of Hairdresser.

15. Mr Johal told the Tribunal that Ms Patel was a valued employee and an excellent hairdresser. Further, that it is difficult to find employees in a regional area. Mr Johal told the Tribunal that if Ms Patel cannot continue in her employment it would have an adverse impact on his business.

    Ms Patel’s evidence

16. At hearing Ms Patel conceded that she had undertaken beauty therapy services such as waxing and threading. She claimed however, that she only did this occasionally, that it did not form much of her work and she only undertook such services when a client asked her to do so. Ms Patel explained to the Tribunal that she had a large multicultural client base, and some of the women whose hair she worked on were religious. She said that these women over time had built a trusting relationship with her and felt comfortable with her, so had asked her to assist them with their other beauty needs such as waxing and threading. Ms Patel said she was happy to oblige and did not realise that she was doing something she should not have been as she saw herself as a Hairdresser and only provided other services occasionally. Ms Patel said that following the Department’s NOITTA the salon had ceased all other services, and she only strictly performs hairdressing services and if clients ask for other services, she declines.

    Failure to satisfy a sponsorship obligation: reg 2.89

17. 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).

18. Mr Johal conceded that he failed to satisfy the obligation:

    ·Regulation 2.86 Obligation to ensure primary sponsored person works or participates in nominated occupation, Program or activity.

19. Ms Patel’s evidence to the Tribunal confirmed that she did undertake duties outside of her nominated occupation.

20. There is no dispute between parties regarding the breach. Mr Johal and Ms Patel both confirmed it occurred.

21. The Tribunal finds that Mr Johal failed to satisfy r.2.86. As such the Tribunal is satisfied that Mr Johal was in breach of his sponsorship obligations and that the prescribed circumstance in r.2.89 exists for the purpose of s.140M of the Act.

    Action to be taken

22. For these reasons, the Tribunal is satisfied that a relevant circumstance for s.140L(1)(a) exists. Accordingly, it is necessary to consider whether one or more of the actions mentioned in s.140M should be taken.

    Failure to comply with sponsorship obligation

23. The criteria to be considered where there is a failure to comply with sponsorship obligation are set out in r.2.89(3) and have been considered as follows.

    (a)     the past and present conduct of the person in relation to Immigration

24. There is no information before the Tribunal which suggests that Mr Johal has failed to engage with the Department during the monitoring process or that he has not previously been co-operative with the Department. Mr Johal was frank and forthright in his evidence to the Tribunal regarding the breach.

    (b)the number of occasions on which the person has failed to satisfy the sponsorship obligation

25. Other than the breach of sponsorship obligations in r.2.86 as set out above, there is nothing before the Tribunal which indicates that Mr Johal has failed to satisfy sponsorship obligations on any other occasion.

    (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

26. The Tribunal considers Mr Johal’s failure to ensure that Ms Patel worked only in the nominated occupation to be significant. The evidence before the Tribunal indicates that Ms Patel did work as a beauty therapist during the time she held her 457 visa when her nominated occupation was that of Hairdresser.

27. The Tribunal considers that Mr Johal should have informed himself of the sponsorship obligation to ensure that Ms Patel did not work in an occupation other than that for which she was nominated.

    (d)     the period of time over which the person has been an approved sponsor

28. The applicant was most recently approved as a standard business sponsor on 17 June 2017 for 3 years.

    (e)whether, and the extent to which, the failure to satisfy the sponsorship obligation has had a direct or indirect impact on another person

29. The evidence indicates that Ms Patel has been impacted. Her permanent residency has been refused based on Mr Johal’s nomination of her being refused because of this sponsorship cancellation and bar. The sponsorship bar of 12 months has now expired. Although the sponsorship obligation breach would be considered ‘adverse information’ that could impact Ms Patel’s nomination and visa review, it is a consideration of the future decision maker regarding whether it would be reasonable to disregard it. Mr Johal would have a future opportunity to make submissions in that regard on those separate applications.

    (f)whether, and the extent to which, the failure to satisfy the sponsorship obligation was intentional, reckless or inadvertent

30. Mr Johal’s claim is his failure to comply with the sponsorship obligations was due to lack of knowledge and not intentional. The Tribunal gives limited weight to this evidence because the Tribunal considers that Mr Johal should have ensured that he understood the sponsorship obligations with which he had to comply when he became an approved sponsor. This includes, Mr Johal familiarising himself of the types of tasks involved in carrying out the occupation of Hairdresser and ensuring that the 457-visa holder did not regularly undertake tasks that were inconsistent with that occupation. The Tribunal acknowledges that Mr Johal has ceased all beauty services in his salon. However, he only made such changes following the Department’s audit. While the Tribunal is prepared to accept that the failure to satisfy the sponsorship obligations was not intentional, it nevertheless considers that it was reckless.

    (g)whether, and the extent to which, the person has cooperated with Immigration, including whether the person informed Immigration of the failure

31. The delegate indicated in the decision record that Mr Johal had cooperated with the Departmental site visit interview and the request to provide documents.

    (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

32. Mr Johal made claims that following the site visit he ceased offering beauty therapy services in his salon.

    (i)the processes (if any) the person has implemented to ensure future compliance with the sponsorship obligation

    Mr Johal claims that following the site visit he complied with sponsorship obligations.

    (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

33. Other than the sponsorship obligations in r.2.86, the Tribunal has not made any assessment on whether any of the other sponsorship obligations had been breached.

    (k)     any other relevant factors

34. Mr Johal has submitted that it is very difficult to find skilled workers and Ms Patel is a valued employee. She has a very big client base and is a very good hairdresser. He claimed his business would be adversely impacted if Ms Patel could not continue in her employment.

    Overall considerations

35. Having regard to all the relevant circumstances, the Tribunal considers that the Department’s decision to take against Mr Johal as a standard business sponsor was an appropriate action to take. For this reason, the Tribunal has decided to affirm the Department’s decision.

36. As more than two years have passed since the action was taken and as the 12-month bar period has now passed, the Tribunal decided not to take any other action against the applicant.

    DECISION

37. The Tribunal affirms the decision under review.

    Cathrine Burnett-Wake
    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.

    …

    2.90   Provision of false or misleading information

    …

    (3) For paragraph 140L(1)(b) of the Act, the criteria that the Minister must take into account in determining what action (if any) to take under section 140M of the Act in relation to the circumstance mentioned in subregulation (2) are:

    (a)    the purpose for which the information was provided; and

    (b)    the past and present conduct of the person in relation to Immigration; and

    (c)     the nature of the information; and

    (d)    whether, and the extent to which, the provision of false or misleading information has had a direct or indirect impact on another person; and

    (e)     whether the information was provided in good faith; and

    (f)     whether the person notified Immigration immediately upon discovering that the information was false or misleading; and

    (g)     any other relevant factors.

    …