Amit Sharma (Migration)

Amit Sharma (Migration) [2020] AATA 2511 (25 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Amit Sharma
CASE NUMBER:  1604831
DIBP REFERENCE(S):  OPF2014/4173 OPF2016/2574 OPF2016/2666 OPF2016/2686 OPF2016/2687
MEMBER:Cathrine Burnett-Wake
DATE:25 May 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision under review.

Statement made on 25 May 2020 at 2:16pm
CATCHWORDS
MIGRATION – cancellation – standard business sponsor - Failure to satisfy sponsorship obligation on five grounds - equivalent terms and conditions of employment- provide information to Immigration when certain events occur – ensure primary sponsored person works or participates in nominated occupation, Program or activity – not to recover, transfer or take actions that would result in another person paying for certain costs – Provision of false or misleading information – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 140M, 375A
Migration Regulations 1994, Schedule 2, rr 2.79, 2.84, 2.86, 2.87, 2.89, 2.90
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to take an action under s.140M of the Migration Act 1958 (the Act) in relation to the applicant’s sponsorship.
The applicant, Mr Amit Sharma, was approved as a standard business sponsor on 29 June 2012 in his capacity as a sole trader operating a Hair and Beauty Salon. On 18 March 2016, the delegate decided to take barring action under s.140M for 60 months on the basis that the sponsor failed to satisfy r.2.89, ‘Failure to satisfy sponsorship obligation’, on five grounds, being:
- Regulation 2.79 Obligation to ensure equivalent terms and conditions of employment;
- Regulation 2.84 Obligation to provide information to Immigration when certain events occur;
- Regulation 2.86 Obligation to ensure primary sponsored person works or participates in nominated occupation, Program or activity;
- Regulation 2.87 Obligation not to recover, transfer or take actions that would result in another person paying for certain costs; and
- Regulation 2.90 Provision of false or misleading information.
Mr Sharma appeared before the Tribunal on 30 August 2019 to give evidence and present arguments.
Mr Sharma was represented in relation to the review by his registered migration agent. The representative attended the hearing.
For the following reasons, the Tribunal has decided to affirm the decision under review.
CONSIDERATION OF CLAIMS AND EVIDENCE
Sections 140K, 140L and 140M of the Act provide for the imposition of sanctions on approved sponsors in certain circumstances.
Under s.140M, if prescribed circumstances exist, the Minister (and the Tribunal on review) may take one or more of the following actions:
·cancelling the sponsorship approval in relation to a class to which the sponsor belongs;
·cancelling the sponsorship approval for all classes to which the sponsor belongs;
·barring the sponsor for a specified period from sponsoring more people under the terms of any existing approval; and
·barring the sponsor for a specified period from making future applications for sponsorship approval in relation to one or more classes of sponsor.
For these purposes, the circumstances are prescribed in r.2.89 - r.2.94B and include circumstances in which the Minister, or Tribunal on review, is satisfied there has been: a failure to satisfy a sponsorship obligation; provision of false or misleading information; sponsorship application or variation criteria no longer met; a contravention of the law; unapproved changes to a program; a failure to pay additional security; a failure to comply with certain terms of an agreement; or a failure to pay medical and hospital expenses.
Where a prescribed circumstance has been found to exist, the regulations prescribe criteria that must be taken into account when determining what action, if any, to take: r.2.89 – r.2.94B. These criteria, as they relevantly apply to the circumstances of this case are set out in the attachment to this decision.
The Department made the following findings in its decision; reproduced as follows:
Regulation 2.79 Obligation to ensure equivalent terms and conditions of employment
In its NOITTA response the sponsor acknowledged its failure to ensure its sponsored workers received the market salary rate and provided payslips and bank statements to demonstrate it had increased the salaries of three sponsored persons in line with the established market salary rate. In addition, the sponsor provided copies of cheques issued to the sponsored persons to rectify the identified underpayments. As such, I remain satisfied the failures existed.
Regulation 2.84 Obligation to provide information to Immigration when certain events occur
In its NOITTA response the sponsor confirmed that it did not notify the Department of the change in duties of four sponsored persons within the specified time frame. As such, I remain satisfied the failures existed.
Regulation 2.86 Obligation to ensure primary sponsored person works or participates in nominated occupation, program or activity
In its NOITTA response the sponsor confirmed its four sponsored persons had performed duties outside of their approved nominated occupation of hairdresser. As such, I remain satisfied the failures existed.
Regulation 2.87 Obligation not to recover, transfer or take actions that would result in another person paying for certain costs
In both NOITTA responses, the sponsor confirmed Ms Bhupinder Kaur paid the nomination fee and associated migration agent fees on 19 August 2013. However, the sponsor stated it reimbursed Ms Kaur $3630 in cash on 24 August 2013 and provided a receipt, which it claimed was signed by Ms Kaur. The receipt also stated the sponsor, Mr Amit Sharma, was unable to attend the migration agent's office himself on 19 August 2013 to pay the above fees due to ill health.
Ms Kaur has stated she did not receive the claimed reimbursement and that she did not sign the receipt. An examination of the document by the Department concluded that the signature appearing on the receipt was a simulation. As such I place no weight on the receipt as a record of reimbursement of costs, including migration agent costs, associated with Ms Kaur’s nomination.
In addition to the receipt, the sponsor provided a copy of its Business Activity Statement (BAS) for the period 1 July 2013 to September 2013 and stated the fees were claimed under G11 Non-capital purchases for that period. Given the Migration Agent's invoice was made out to Ms Kaur, not the sponsor; and that no breakdown of the non-capital purchase total has been provided, I place little weight on the sponsor's claim.
Having considered the sponsor's response to both NOITTAs, and the information obtained during the monitoring process, I remain satisfied that the sponsor failed its obligation under Regulation 2.87(1A)(a) as it took action that resulted in the transfer to another person, in this case sponsored person Bhupinder Kaur, of costs, including migration agent costs associated with Amit Sharma being an approved sponsor.
Regulation 2.90 Provision of false or misleading Information
In response to the second NOITTA, the sponsor provided a Statutory Declaration denying the preliminary finding that Ms Kaur's signature appears to be most probably a forgery. The sponsor stated that Ms Kaur did sign the receipt and that he was not aware that the signature "... was not according to her passport or her original signatures..."
On 6 July 2015 during an interview at the Departments office, Ms Kaur confirmed that she had not sighted nor signed the receipt for reimbursement that the sponsor provided in response to Regulation 2,87.
On 14 August 2015, the Document Integrity Section of the Department provided its final report for the examination of the receipt the sponsor purported to be signed by Ms Kaur as evidence of reimbursement. The report concluded the questioned signature of Bhupinder Kaur is a simulation. A simulation of a signature is an attempt to copy or reproduce a signature.
In this instance I place great weight on the statements made by Ms Kaur, and the finding of the Document Integrity Section, and I remain satisfied that the sponsor provided the Department with a false document which constitutes the provision of false information.
The hearing
Section 375A Certificate
At the commencement of the hearing the Tribunal advised Mr Sharma 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. The Tribunal provided a copy of the certificate to Mr Sharma at hearing.
The Tribunal explained to Mr Sharma that it had taken the view that it is an invalid certificate as the non-disclosure reasons were not clearly specified in the certificate with enough detail to identify the claimed harm to the nation or public service and or an individual. The Tribunal outlined that the material the certificate covered related to information of third parties and included payslips and bank statements. The Tribunal noted the third parties were his former 457 workers, and that it appeared he had provided the material as part of the original business monitoring unit audit. Additionally, the certificate covered the report and investigation of the Document Integrity Section of the Department as detailed in the decision record.
The Tribunal asked Mr Sharma 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.
The Tribunal outlined that the applicant was open to access the documents on file including the documents covered by the certificate pursuant to a s.362A request and that the Tribunal would release the documents in accordance with privacy principles.
Mr Sharma’s evidence
Mr Sharma gave evidence to the Tribunal that he previously operated a Hair and Beauty Salon as a sole trader and was approved as a standard business sponsor, sponsoring individuals under this agreement. Mr Sharma told the Tribunal that the four individuals he sponsored for subclass 457 visas were: Ms Amanjot Kaur, Ms Alka Duggal, Ms Kanwardeep Kaur and Ms Bhupinder Kaur. He told the Tribunal they were all nominated to work as Hairdressers.
Mr Sharma told the Tribunal that on 26 August 2014 the Department conducted a site visit to his salon. He told the Tribunal that after the visit he supplied payroll and employee related documents to the Department. He told the Tribunal that as a result of this visit and subsequent audit the Department found that he had breached several sponsorship obligations. Mr Sharma told the Tribunal that he was also issued with an illegal worker warning for Ms Bhawana Rimal who was present in the salon the day of the site visit as the Department claimed she did not have appropriate work rights.
At hearing the Tribunal discussed each of the obligations the Department found he had breached as a standard business sponsor.
Mr Sharma conceded to the Tribunal that he had breached three of the obligations, however, he disputes the illegal worker warning he was issued as well as the finding that his employee Ms Bhupinder Kaur paid migration agent fees relating to her nomination and that he provided false and misleading information.
Mr Sharma told the Tribunal that he was of the belief that Ms Bhawana Rimal did have work rights and she was not an illegal worker. He told the Tribunal that he checked the VEVO system before she commenced employment and that he recalls she was on a bridging visa awaiting the outcome of her partner visa which indicated she had work rights. The Tribunal told Mr Sharma that it noted his explanation, however, would not be making any findings or drawing any inference about the illegal worker warning, as it did not form part of the Department’s decision to bar him as a standard business sponsor nor was it relevant to the review.
Mr Sharma conceded that he breached r.2.79 ‘Obligation to ensure equivalent terms and conditions of employment.’ He explained to the Tribunal that he had underpaid his 457 workers; however, this was an oversight on his behalf that he rectified once the Department issued him with a notice of intention to take action (NOITTA) following an audit of his documents. Mr Sharma explained that the reason he was underpaying his workers is because he did not raise their salaries in line with the increase of the Temporary Skilled Migration Income Threshold (TSMIT) that occurred in 2013. Mr Sharma claims he was unaware the TSMIT had been increased and he was required to pay his employees more to ensure they were paid at least the TSMIT. Mr Sharma told the Tribunal that following the NOITTA he back paid his 457 workers and then set up online banking payments to ensure they were paid the correct amount.
Mr Sharma conceded that he breached r.2.84 ‘Obligation to provide information to Immigration when certain events occur.’ He explained that he failed to inform the Department that his 457 workers duties had changed and that they were also undertaking beauty therapy work, such as threading, waxing and other beauty services. Mr Sharma outlined he did not realise he had to inform the Department of this. Mr Sharma expressed regret and that he from that point ensured he kept the Department up to date.
Mr Sharma 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 his 457 workers were providing beauty therapy services not just working as hairdressers. He explained that to rectify this he stopped his 457 workers from undertaking beauty therapy work. Mr Sharma claimed that he attempted to employ an individual to exclusively perform beauty therapy work, however, was not successful in finding someone suitable, so ceased all beauty therapy services in his salon.
Mr Sharma disputed that he had breached r.2.87 ‘Obligation not to recover, transfer or take actions that would result in another person paying for certain costs’ and r.2.90 ‘Provision of false or misleading information.’ Mr Sharma explained that Ms Bhupinder Kaur paid the nomination fee and associated migration agent fees on 19 August 2013. He claims that he was meant to be present at the migration agents office that day, however, he was unwell and could not attend, so in his absence Ms Bhupinder Kaur paid the fees direct to the migration agent. Mr Sharma claims that he reimbursed Ms Bhupinder Kaur on 24 August 2013. He claims that he paid her in cash for the amount of $3630. He claims that he created a receipt to evidence the cash reimbursement that both he and Ms Bhupinder Kaur signed, and he provided a copy to the Department following the site visit and as part of their audit.
Mr Sharma claimed that Ms Bhupinder Kaur lied to the Department when she told them she did not receive the money. Mr Sharma was adamant during his evidence to the Tribunal that he had paid her the $3630 in cash. Mr Sharma also claimed to the Tribunal that the receipt was legitimate and disputes the Department’s finding that the receipt was false and that he provided false information.
Mr Sharma told the Tribunal that because he claimed the $3630 cash payment in his BAS and financials that proves he did pay the money to Ms Bhupinder Kaur.
The Tribunal asked Mr Sharma the source of the claimed $3630 in cash and if there was a record of a withdrawal for the amount, he could show the Tribunal. Mr Sharma explained that at the time he was also operating a retail business that mainly had cash transactions, and he used money from that other business to pay Ms Bhupinder Kaur, so did not have a record of the source of funds to produce to the Tribunal.
The Tribunal discussed with Mr Sharma the difficulty it had with accepting the claims he made regarding the cash payment to Ms Bhupinder Kaur. It explained that as it was a cash payment, there was no physical record, such as would be if the money was paid through an electronic funds transfer. The Tribunal outlined to Mr Sharma that it accepts he reported the payment as an expense in his BAS and financials; however, this was not definitive evidence that $3630 in cash was paid to Ms Bhupinder Kaur. It simply demonstrated that he claimed a cash expense for taxation and financial reporting purposes, however, in the Tribunal’s view claiming an expense on taxes does not prove the related transaction, if paid in cash, occurred.
The Tribunal further discussed with Mr Sharma, that it had evidence before it that it needed to also weigh and consider, as outlined in the decision record, being Ms Bhupinder Kaur made statements to the Department denying she had received reimbursement of $3630 for the nomination and migration agent fees. In addition to her statements was the findings that the Department’s Document Integrity Section provided a report for the examination of the receipt he provided, which concluded the signature of Ms Bhupinder Kaur was a simulation of a signature and was an attempt to copy or reproduce a signature which demonstrated the receipt was a false document.
In response Mr Sharma re-iterated that Ms Bhupinder Kaur was lying and that the receipt was an authentic document that was signed by them both.
The Tribunal further discussed with Mr Sharma that because there was no definitive evidence to support his claim that a cash payment had occurred that it was effectively a ‘he said she said situation’, however the Department’s Document Integrity Section report was not in his favour and undermined his claim. The other issue was the provenance of the cash as he was not able to demonstrate its source or that it existed before his claimed payment to Ms Bhupinder Kaur.
Mr Sharma said that this whole situation had ruined his life and he had to shut down his business as a result of it. He again claimed that Ms Bhupinder Kaur was lying and that he was willing to pay Ms Bhupinder Kaur again if it meant that he would be absolved and would clear his name. He also made a claim that she was lying because if it was a problem, she would have raised it with the Department earlier than she did.
Mr Sharma outlined that he believed that the bar applied by the Department was too harsh and should be removed or reduced.
Does a circumstance for the taking of an action exist?
Failure to satisfy a sponsorship obligation: r.2.89
The Minister may take one or more of the actions in s.140M if satisfied the sponsor has failed to satisfy a sponsorship obligation referred to in Division 2.19 of the Regulations: r.2.89(2).
Mr Sharma conceded that he failed to satisfy three obligations being:
·Regulation 2.79 Obligation to ensure equivalent terms and conditions of employment;
·Regulation 2.84 Obligation to provide information to Immigration when certain events occur;
·Regulation 2.86 Obligation to ensure primary sponsored person works or participates in nominated occupation, Program or activity.
Under dispute by Mr Sharma however is Regulation 2.87: Obligation not to recover, transfer or take actions that would result in another person paying for certain costs; and Regulation 2.90: Provision of false or misleading information.
The Tribunal has carefully considered the evidence before it and Mr Sharma’s claims, and makes the following findings.
Mr Sharma conceded that Ms Bhupinder Kaur did pay the nomination and migration agent fees on 19 August 2013. He claims the reason this occurred was because he was unable to attend the office of the migration agent that day due to being unwell, so Ms Bhupinder Kaur paid the fees in his absence. Who paid the migration agent on 19 August 2013 for the nomination and migration agent fees is not under dispute. It is clear Ms Bhupinder Kaur paid them.

The fees relating to the nomination application and any associated professional fees were Mr Sharma’s responsibility and he was obliged to pay them himself as part of the sponsorship obligations. Although he may have been unwell and unable to attend the office of the migration agent on 19 August 2013, the Tribunal is of the view he could have made alternative arrangements to pay the fees direct and not rely on Ms Bhupinder Kaur to pay them. One does not need to be present in person to pay fees. Mr Sharma could have made an electronic funds transfer to the migration agent, or if the facilities were available pay by credit card over the phone. There is no evidence that there was any urgency to submit the application on 19 August 2013, so Ms Sharma could have attended the migration agent’s office on a different day, once well again, to pay in person if paying by cash. It is the Tribunal’s view that Mr Sharma’s in action, by allowing Ms Bhupinder Kaur to pay the fees on 19 August 2013, has resulted in a plain reading breach of r.2.87 as the costs relating to the nomination application and the migration agent fees were paid by another person, being Ms Bhupinder Kaur.
This breach however would be somewhat mitigated through reimbursement. Which Mr Sharma claims occurred on 24 August 2013.
Throughout the hearing Mr Sharma claimed that he did reimburse Ms Bhupinder Kaur. He repeatedly told the Tribunal that Ms Bhupinder Kaur was lying about the situation, although he gave no real explanation of why she would lie. Mr Sharma submitted that the receipt he claimed was signed by both parties, was genuine and that the fact he claimed the payment as an expense in his BAS and financial statements was evidence, he did reimburse Ms Bhupinder Kaur.
The Tribunal has considered Mr Sharma’s claims and acknowledges how adamant and impassioned he was in his evidence that he did reimburse Ms Bhupinder Kaur. The Tribunal has also considered the fact that Mr Sharma’s Hair and Beauty Salon closed down several years ago, and his claim he was only pursuing this review, not because he wanted to sponsor any further workers on temporary visas, but because he wanted to clear his name. The Tribunal also acknowledges Mr Sharma’s frank and forthright evidence in readily admitting the breaches of r.2.79, 2.82 and 2.86.
As the Tribunal discussed with Mr Sharma at hearing, there was a lack of supporting evidence to support his claim that he had reimbursed Ms Bhupinder Kaur as the cash payment could not be verified.
Mr Sharma was not able to provide supporting evidence of the source of the claimed cash. Although he stated it came from his ‘other retail business’, he was unable to produce records to that effect for the Tribunal’s consideration. Further, and as the Tribunal discussed with Mr Sharma in the hearing, claiming a cash payment transaction as an expense on BAS and financials does not prove that the cash payment was made, and the named recipient received the cash payment. Unless there is a clear trail of the money, such as evidence of cash withdrawals and deposit records of bank accounts for the exact amount, it is not possible to demonstrate with certainty that a cash payment was made or received. Particularly if there is a dispute, as there is in this case.
The claims put forward by Mr Sharma have not been sufficient to persuade the Tribunal with confidence that Ms Bhupinder Kaur received reimbursement of $3630 on 24 August 2013.
As Ms Bhupinder Kaur has denied she received the money, even if the Tribunal was to take the receipt at face value (the authenticity of which will be discussed in paragraphs [50] to [55]), given her denial and the lack of supporting evidence that reimbursement occured, it cannot be entirely convinced that Mr Sharma did reimburse Ms Buhpinder Kaur.
Mr Sharma made a claim that he would ‘pay Ms Bhupinder Kaur again via bank cheque’ so there is a trail of money, however, this does not remedy, in the Tribunal’s view, the breach that occurred approximately 10-years ago when Ms Bhupinder Kaur paid the nomination and migration agent fees on 13 August 2013. Given the passage of time it also does not mitigate the breach.
The Tribunal finds that Mr Sharma failed to satisfy Regulation 2.87: Obligation not to recover, transfer or take actions that would result in another person paying for certain costs.
The Tribunal finds that Mr Sharma failed to satisfy r.2.79, r.2.84, r.2.86 and 2.87. As such the Tribunal is satisfied that Mr Sharma 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.
False or misleading information: r.2.90
One or more of the actions in s.140M may be taken if the sponsor has provided false or misleading information to Immigration or the Tribunal: r.2.90(2).
Mr Sharma has made claims that he reimbursed Ms Bhupinder Kaur for the amount of $3630 in cash on 24 August 2013, and he himself created a receipt to evidence the transaction between the two, which he claimed he had Ms Bhupinder Kaur both signed.
Ms Bhupinder Kaur denies being reimbursed and denies she signed the receipt. Given Ms Buhpinder Kaur’s denial of signing the receipt, the Department had the receipt reviewed by its Document Integrity Section of the Department.
The Document Integrity Section of the Department produced a report, which concluded the signature of Ms Bhupinder Kaur on the receipt is a simulation of a signature, which is an attempt to copy or reproduce a signature.
Notwithstanding Mr Sharma’s claims the receipt was genuine, the Tribunal has balanced his claim against the claim of Ms Buhpinder Kaur’s that she did not receive reimbursement, nor did she sign the receipt. Ms Buhpinder Kaur’s claim is also independently supported by the report by the Department’s Document Integrity Section of the Department.
Given the circumstances of the case, and that Ms Sharma has not been able to persuade the Tribunal that reimbursement occurred, the Tribunal is lead to form the view that the receipt is not genuine, as such he has provided a false document (information) to the Department regarding his claims of reimbursement.
Accordingly, the Tribunal is satisfied that the prescribed circumstance in r.2.90 exists for the purpose of s.140M of the Act.
Action to be taken
For these reasons, the Tribunal is satisfied that a relevant circumstance for s.140L(1)(a) exists. Accordingly, it is necessary to consider whether one or more of the actions mentioned in s.140M should be taken.
Failure to comply with sponsorship obligation
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
There is no information before the Tribunal which suggests that Mr Sharma has failed to engage with the Department during the monitoring process or that he has not previously been co-operative with the Department.
(b)the number of occasions on which the person has failed to satisfy the sponsorship obligation
Other than the breach of sponsorship obligations in r.2.79, r.2.84, r.2.86, 2.87 and r.2.90 as set out above, there is nothing before Tribunal which indicates that Mr Sharma 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
The Tribunal considers Mr Sharma’s failure to ensure that the 457 visa holders in his employment worked only in the nominated occupation to be significant. The evidence before the Tribunal indicates that they had worked as beauty therapists on a regular basis during the time they held their 457 visas.
Additionally, the Tribunal considers that Mr Sharma’s failure to pay his 457 workers the correct amount in line with TSMIT to be significant. As it appeared that they were underpaid for a period of over 12-months before the issue was rectified, and he only did so because the Department’s audit identified the breach.
The Tribunal considers that Mr Sharma should have informed himself of the sponsorship obligation to ensure that 457 visa holders did not work in an occupation other than that for which they were nominated and that they were paid correctly.
The Tribunal also considers that by allowing Ms Bhupinder Kaur to pay the nomination and migration agents fees Mr Sharma also failed in his obligation by not allowing another person to pay these costs and should have taken all steps to avoid Ms Bhupinder Kaur paying the fees in the first instance. The evidence before the Tribunal is, he did not explore alternative payment options and just allowed her to pay.
(d) the period of time over which the person has been an approved sponsor
The applicant was most recently approved as a standard business sponsor on 29 June 2012 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
The evidence indicates that the 457 visa holders obtained sponsorship from other employers and now have residency.
(f)whether, and the extent to which, the failure to satisfy the sponsorship obligation was intentional, reckless or inadvertent
Mr Sharma’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 Sharma should have ensured that he understood the sponsorship obligations with which he had to comply when he became an approved sponsor, particularly as he had four employees in his employment on 457 visas. This includes, Mr Sharma familiarising himself of the types of tasks involved in carrying out the occupation of Hairdresser and ensuring that the 457 visa holders did not regularly undertake tasks that were inconsistent with that occupation. Additionally, Mr Sharma should have ensured his 457 visa holders were paid the correct amount. As he did not, they suffered an economic disadvantage for an extended period. The Tribunal acknowledges that Mr Sharma back paid the 457 visa holders amounts owed, and rectified payment when informed. 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
The delegate indicated in the decision record that Mr Sharma 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
Mr Sharma back paid his 457 visa holders monies owed and ensured they were paid the correct amount and made claims that following the site visit he prevented them from working as beauty therapists, including no longer offering such services in his salon.
(i)the processes (if any) the person has implemented to ensure future compliance with the sponsorship obligation
Mr Sharma claimed that following the site visit he complied with sponsorship obligations until he ceased operating the salon and closed the business.
(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
Other than the sponsorship obligations in r.2.79, r.2.84, r.2.86, 2.87 and r.2.90, the Tribunal has not made any assessment on whether any of the other sponsorship obligations had been breached.
(k) any other relevant factors
Mr Sharma has since closed the business down.
Provision of false or misleading information
The criteria to be considered where there has been provision of false or misleading information are set out in r.2.90(3) and have been considered as follows.
(a) the purpose for which the information was provided
Mr Sharma provided a receipt to the Department following its audit to support his claim that he reimbursed Ms Bhupinder Kaur the $3630 that she paid to the migration agent on 13 August 2013. Mr Sharma claims he created the receipt on 24 August 2013 the day he reimbursed Ms Bhupinder Kaur and that they both signed it. The Document Integrity Section of the Department deemed that Ms Bhupinder Kaur’s signature that appeared on the receipt was a simulation of a signature, which is an attempt to copy or reproduce a signature.
The Tribunal has found that given Ms Bhupinder Kaur’s testimony to the Department that she did not receive reimbursement, the finding that the receipt was not genuine by the Department’s Integrity Section along with the lack of persuasive evidence that Mr Sharma did reimburse Ms Bhupinder Kaur, that on the balance of evidence the receipt provided to the Department was therefore not genuine and provided in order in an attempt to bolster Mr Sharma’s claims that he did reimburse Ms Bhupinder Kaur.
(b) the past and present conduct of the person in relation to Immigration
The Tribunal notes that Mr Sharma was approved as a standard business sponsor on 29 June 2012. The evidence indicates that Mr Sharma had a migration agent representing him for the sponsorship and nomination applications relating to the 457 workers he employed. The evidence indicates that this is the first time that Mr Sharma had been monitored by the Department and the evidence indicates that he was cooperative with the Department during this process.
(c) the nature of the information
The evidence before the Tribunal indicates that at the time of the Departmental site visit it came to light that Ms Bhupinder Kaur had paid the fees associated with her nomination process to the migration agent. When Mr Sharma was asked about this, he later provided as part of the audit process a receipt. The receipt was provided to support his claim that he reimbursed Ms Bhupinder Kaur the nomination fees she paid to the migration agent.
(d) whether, and the extent to which, the provision of false or misleading information has had a direct or indirect impact on another person
The Tribunal considers that the provision of false or misleading information impacted the Department’s ability to properly assess whether a breach of sponsorship obligations had occurred and the extent of that breach.
(e) whether the information was provided in good faith
The evidence before the Tribunal indicates that the information provided was not given to the Department in good faith. The information provided by Mr Sharma following the site visit and audit to support his claim Ms Bhupinder Kaur was reimbursed was false and misleading.
(f) whether the person notified Immigration immediately upon discovering that the information was false or misleading
It was noted in the decision record that Mr Sharma did not notify the Department that false or misleading information had been provided further, he still denies false and misleading information has been provided.
(g) any other relevant factors.
The evidence before the Tribunal indicates that the provision of false and misleading information undermines the delivery of the temporary business visa program.
Overall considerations
Having regard to all the relevant circumstances, the Tribunal considers that the Department’s decision to take barring action against Mr Sharma as a standard business sponsor was an appropriate action to take. For this reason, the Tribunal has decided to affirm the Department’s decision.
As more than four years have passed since the sponsorship approval was cancelled, the Tribunal decided not to take any other action against the applicant.
DECISION
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.
…

[2020] AATA 2511

25 May 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies