Border Solutions Pty Ltd ATF Atwal Family Trust (Migration)

Border Solutions Pty Ltd ATF Atwal Family Trust (Migration) [2020] AATA 45 (7 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Border Solutions Pty Ltd ATF Atwal Family Trust
CASE NUMBER:  1714033
DIBP REFERENCE(S):  OPF2017/9001 OPF2017/967
MEMBER:Karen Synon
DATE:7 January 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal varies the decision under review by varying the period of the bar to 12 months from the date of the delegate’s decision. This means the bar ended on 13 June 2018.

Statement made on 07 January 2020 at 1:58pm
CATCHWORDS
MIGRATION – cancellation – Nomination – sponsorship obligations – bar on sponsorship – no longer intends to sponsor – now hires Australian citizens – lack of employment understanding – wants to clear name – Tribunal varies decision

LEGISLATION
Migration Act 1958 (Cth), ss 140M, 359A, 375A
Migration Regulations 1994 (Cth), rr 2.86, 2.87, 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 was approved as a standard business sponsor on 3 February 2016. On 13 June 2017, the delegate decided to cancel the sponsorship and impose a 3 year bar, under s.140M, on the basis that sponsorship obligations r.2.86, r.2.87C and r.2.90 of the Migration Regulations 1994 (‘the Regulations’) were breached.
Background
On 30 January 2017 the sponsor was advised, via letter, that the (then) Department of Immigration had commenced monitoring the business and requested records and information. In particular records in relation to the two 457 visa holders, Harbax Bhullar and Vaishali Maini were requested.
On 3 March 2017 an unannounced site visit to the business premises in Craigieburn was conducted.
On 13 April 2017, a delegate of the Minister for Immigration issued a Notice of Intention to Take Action (NOITA) to the applicant. The NOITA set out the details of the circumstances in relation to which action was being considered and provided the applicant with the opportunity to respond or comment. The issues were identified as:
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.
· Regulation 2.87C – Obligation not to engage in discriminatory recruitment practices.
Regulation 2.90 – Provision of false or misleading information.
On 5 May 2017 the review applicant provided a submission in response to the NOITA.
On 13 June 2017, the delegate decided to cancel the standard business sponsorship of, Border Solutions Pty Ltd ATF Atwal Family Trust (‘Border Solutions’) and impose a bar of three years, with immediate effect, from sponsoring more people for Temporary Work (Skilled) (Subclass 457) visas. In doing so the delegate found the sponsor failed to satisfy its sponsorship obligations in respect of r.2.86(2) and r.2.87C and that it also breached r.2.90 in providing false or misleading information.
The applicant applied for review of the primary decision on 30 June 2017 and provided a copy of the Department’s decision to the Tribunal.
Mr Akash Atwal, on behalf of the review applicant, Border Solutions, appeared before the Tribunal on 18 October 2019 to give evidence and present arguments. Mr Atwal had proposed a witness but, at the conclusion of the hearing, agreed his evidence would not add anything to what had been discussed.
The applicant was represented in relation to the review by its registered migration agent until 11 October 2019. She did not attend the hearing.
At the commencement of the hearing Mr Atwal said he did not want to sponsor any more people in the future. Originally he was doing everything in the company and he needed some administrative support to run the business. The business is now located at a new premises in Legacy Road, Epping. The business is now poised to commence operations in Sydney with Mr Atwal currently looking for suitable sites.
Section 375A certificate
During the hearing the Tribunal explained that the Department sometimes puts a certificate on information on its files and it had placed a s.375A certificate dated 2 August 2017, after the primary decision was made, to some information the Tribunal needed to inform the applicant about. It advised that the purpose of these certificates was to protect certain information or process from being disclosed to people other than to the AAT. It provided the applicant with a copy of the certificate at the hearing and advised it had determined it was validly issued in respect of Department folios 10-20 and 110-116 but not validly issued in respect of all the other folios it seeks to prevent being disclosed. This is because, in respect of these other folios, the certificate does not specify a reason that could form the basis for a claim to public interest immunity. The Tribunal advised the applicant that he could make a submission about whether he agreed or disagreed with the Tribunal’s assessment about the validity of the certificate. Mr Atwal declined to make any submissions either at or following the hearing.
Information under s.359AA
The Tribunal advised that in balancing its obligations under s.375A with its obligations under s.359AA of the Act, it had information it considers would, subject to any comments or response he makes, be the reason, or part of the reason, for affirming the decision under review. The particulars are:
- The department file contains a statement made to it by one of the 457 visa holders who was approved to occupy the nominated position of Company Transport Manager. This person states:
oHe/she never worked as a Company Transport Manager
oHe/she only worked [in another capacity] and worked 6 days a week sometimes for 12 to 15 hours per day.
oHe/she received $850 for 5 days work... In the 4^th week of each month he/she received no payments as this would cover the tax.
oAfter the visit from Australian Border Force in March 2017, the Director Sunny instructed this person that if anyone from Immigration shroud ask to say their job responsibilities were as per the visa application “like looking after a couple of clients” and that on the day of the visit the investigators were told this person was “on the road” checking someone performance.
oAt another time this person was asked to write, by another staff person, that she/he had been loaned $5,000. This statement was false.
The Tribunal advised that this information is relevant to the Tribunal’s review because r.2.86 requires a sponsor to ensure primary sponsored persons only works or participates in the nominated occupation, program or activity; and r.2.90 regarding the provision of false or misleading information. In this regard the Tribunal noted that the applicant provided to the Department a letter (undated) titled ‘Loan Contract’ wherein one of his former 457 visa holders stated that she/he had received $5,000 in cash as an advance salary in the form of a ‘settlement loan’.
The applicant elected to respond immediately saying that once the decision was made, the two employees left the same day and they have not spoken to him since. They were upset because they were given a role to do. Mr Atwal said he does not know why they would give such a statement. He believes Mr Bhuller has gone back to India but Ms Maini still lives here. He repeated that he did not attend the hearing to get the bar removed because he does not want to sponsor any more people but wants to clear his name. He did not intend to break any rules or or make anyone do anything they did not want to do.
For the following reasons, the Tribunal has decided to vary the decision under review by varying the period of the bar to 12 months from the date of the delegate’s decision.
CONSIDERATION OF CLAIMS AND EVIDENCE
Sections 140K, 140L and 140M of the Act provide for the imposition of sanctions on approved sponsors in certain circumstances.
Under s.140M, if prescribed circumstances exist, the Minister (and the Tribunal on review) may take one or more of the following actions:
·cancel the sponsorship approval in relation to a class to which the sponsor belongs;
·cancel the sponsorship approval for all classes to which the sponsor belongs;
·bar the sponsor for a specified period from sponsoring more people under the terms of any existing approval; and
·bar the sponsor for a specified period from making future applications for sponsorship approval in relation to one or more classes of sponsor.
For these purposes, the circumstances are prescribed in r.2.89 - r.2.94B and include circumstances in which the Minister, or Tribunal on review, is satisfied there has been: a failure to satisfy a sponsorship obligation; provision of false or misleading information; sponsorship application or variation criteria no longer met; a contravention of the law; unapproved changes to a program; a failure to pay additional security; a failure to comply with certain terms of an agreement; or a failure to pay medical and hospital expenses.
Where a prescribed circumstance has been found to exist, the regulations prescribe criteria that must be taken into account when determining what action, if any, to take: r.2.89 – r.2.94B. These criteria, as they relevantly apply to the circumstances of this case are set out in the attachment to this decision.
Does a circumstance for the taking of an action exist?
Failure to satisfy a sponsorship obligation
(i)Regulation 2.86 – Obligation to ensure primary sponsored person works or participates in nominated occupation, program or activity
During the hearing Mr Atwal said he hired the two 457 employees as he needed administrative and business help because, at the time he was doing everything himself and the business would suffer if he did not get support. He had known both people for years and employed them because he wanted people who were trustworthy and would not disclose their transport rates and costings to competitors. Mr Atwal agrees that Ms Maini was also doing administration and bookkeeping and, while he believes she was working as a transport manager and was employed as such, he acknowledges that her duties were probably more that of a transport despatch clerk. At the time his knowledge was limited coming from the background of a driver himself. Ms Maini is his sister-in-law.
Mr Atwal said Mr Bhuller was working as a company transport manager and was not working as a driver on a full time basis; he would rarely work as a driver. However he would be responsible for deliveries for new customers and, after the contract was established, would put a driver in. However Mr Atwal acknowledges that some 30-40% of the time Mr Bhuller would be performing the duties of a company transport manager because he was a slow learner and needed a lot of direction. He said he does not know why the Department considers them transport clerks because they were managing both administration and transport duties although he was authorising acquisitions.
When Mr Bhuller’s and Ms Maini’s visas were cancelled Mr Atwal hired two Australian citizens to fulfil the roles. One, Belinda, is employed as a Training and Compliance Coordinator at $65,000 a year. She has been with the business for over one year now. He also employed Peter as an Operations Manager on $78,000 a year plus super and incentives. He is no longer in contact with Mr Bhullar or Ms Maini. He employs nine Australian citizens as direct employees and has stopped hiring students and now does VEVO checks on all prospective employees.
The Tribunal acknowledges Mr Atwal’s candid and honest evidence however it observes that his relative business management inexperience and reliance on his former representative’s nominated occupations resulted in him fitting these two people he believed he could trust with sensitive business information into rather rigid roles for which they were not, prima facie qualified or experienced. While it is not unusual for small family run businesses to employ people they trust who are known to them, under the 457 programme there is a rigorous labour market testing obligation designed to ensure that the best qualified people are employed. While the Tribunal accepts that both of the 457 employees were performing some of the tasks of Company Transport Managers it is clear they were not performing the full breadth of tasks as described in the ANZSCO dictionary.
For this reason the Tribunal finds that there was a breach of the obligation contained in 2.86 of the Regulations.
(ii)Regulation 2.87C – Obligation not to engage in discriminatory recruitment practices
During the hearing Mr Atwal readily conceded that he employed Mr Bhuller and Ms Maini because they were known to him and he trusted them. He does not remember if he advertised for these roles but has learnt from this and now advertises all employment positions on Seek.com. He had known Mr Bhuller for 10 years from when they studied together and Ms Maini is his sister-in-law. He agreed that neither person had experience in the roles of Company Transport Manager but he thought he could teach them in the same way he had learned; step-by-step. Mr Atwal said he never told the Department he did not trust Australians. Mr Atwal agreed he did not test the Australian labour market because he wanted people he could trust.
For this reason the Tribunal finds that there was a breach of the contained in 2.87C of the Regulations.
Provision of False or Misleading Information - Regulation 2.90
The Department approved two positions of Company Transport Manager on the basis that the business was planning to operate two sites: one for larger and one for smaller vehicles and needed one Company Transport Manager for each site. However when the investigators visited the business premises there was only one site and, on this basis, the Department found that false misleading information had been given in respect of the applications. Mr Atwal gave evidence that originally he was planning to have separate sites for different fleets and consequently had two businesses incorporated. This was always his intention but, due to lease issues, this did not eventuate. He has now changed his plan to have everything under one umbrella. The Tribunal accepts Mr Atwal’s evidence that this was his clear intention at the time the nominations were lodged and was not false or misleading information but rather a change in business circumstances. The Tribunal is therefore not persuaded that this change of circumstance constitutes the provision of false or misleading information.
However the other issue is that raised with the applicant under s.359AA regarding the document provided to the Department[1] titled Loan Contract, on the company letterhead, which one of his employees had subsequently stated was a false document and that this person was directed to sign this letter. When invited to comment Mr Atwal responded that if the informer was Mr Bhuller then he had lent him $5000 for rent and/or bond on a property because he did not have enough money. He also gave cash to Ms Maini for various items. He believes he may have evidence of these payments in his bank account records. However Mr Atwal emphasised the difficult and unpleasant way in which both employees left the business premises on the same day the cancellation was notified and that they are both angry and resentful towards him. He said neither person has spoken to him since that day, including his sister-in-law. He spoke of the pain and discomfort this is causing his family and extended family. In this case the Tribunal has determined to place no weight on this ‘dob-in’ letter. Dob-in letters can be unreliable and motivated by a range of factors other than the truth and the Tribunal does not have the opportunity to adequately test this evidence.
[1] At folio 26.
For these reasons the Tribunal is not satisfied that there was a breach of the obligation contained in 2.90 of the Regulations.
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.
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).
In considering what action to take, the Tribunal has had regard to the prescribed criteria, as extracted in the attachment to this decision. The criteria to be considered where there is failure to comply with sponsorship obligation, are set out in r.2.89(3).
The Tribunal has considered the past and present conduct of the review applicant and notes that the applicant had not previously been monitored by the Department. It found Mr Atwal to be candid, honest and credible. While all of the issues raised by the Department in the NOITTA were vigorously contested at the primary stage, the applicant ceased his representation when appearing before the Tribunal and readily admitted his earlier lack of experience in employment matters and also in understanding the Department’s classification of occupations and sponsorship obligations. In this respect the Tribunal was satisfied that the applicant’s present conduct in wanting to appear before it to explain his situation to be commendable. The Tribunal also found his admissions, that he did not survey the Australian labour market but rather chose to employ both a friend and his sister-in-law because he trusted them as people, to be honest. The Tribunal also notes Mr Atwal’s admission that Mr Bhuller only worked 30-40% as company transport manger saying he did had not have the knowledge and experience. The Tribunal accepts Mt Atwal only attended the hearing to clear his name and did not want his representative to be present because he wanted to talk honestly.
The Tribunal has also considered the number of occasions on which the applicant failed the sponsorship obligation to ensure that the primary sponsored persons (Mr Bhuller and Ms Maini) did not work in different occupations to those nominated and finds that the sponsor did continue to breach this obligation until the time that the standard business sponsorship ceased and the employees left the business. The Tribunal notes that there is no additional information before it that the other sponsorship obligations have been reviewed or assessed.
The Tribunal has considered the nature and severity of the circumstances relating to the failure to satisfy the sponsorship obligation. It finds that the failure to ensure that Mr Bhuller and Ms Maini, the primary sponsored people, did not work in an occupation different to that nominated is of a serious nature which undermines the integrity of the 457 visa programme. The Tribunal finds this failure continued from the time of their employment until the cancellation of the standard business sponsorship. While the Tribunal accepts that Mr Atwal, the owner of the business, had a clear idea in his head of the tasks he needed these employees to fill, these tasks did not align adequately with those tasks listed in ANZSCO for a Company Transport Manager. The Tribunal accepts however that it was his former representative’s suggestion of these occupations as the most appropriate roles that led to these nomination applications. Despite this it was the applicant’s responsibility to ensure he educated himself about the requirements of 457 programme and the necessity of the duties the 457 visa holders performed to equate with those in the position specifications which had been submitted to the Department.

The Tribunal has considered the period of time over which the person has been an approved sponsor noting that the standard business sponsorship was approved on 3 February 2016 and cancelled on 13 June 2017. Recognising that the standard business sponsorship was in force for a relatively short time and the business was new at the time of approval, this weighs in the applicant’s favour.
In considering the the extent to which the failure to satisfy the sponsorship obligation has had a direct or indirect impact on another person, the Tribunal finds that the failure to ensure that Mr Bhuller and Ms Maini worked in the nominated occupations of Company Transport Managers has had a direct impact on both these people who consequently were without employment and sponsorship. According to Mr Atwal’s evidence it has also had a direct and deleterious impact on his family due to the breakdown that resulted with his wife’s sister (Ms Maini), his parents-in-law and the wider family. The sponsorship failure has also had an indirect impact on other qualified people who might have been employed in these positions and been able to perform the higher level range of duties and tasks than Mr Bhuller and Ms Maini were performing. Further, a person with lesser skills, who is an Australian citizen or permanent resident, may have been employed to perform the tasks which the lower level tasks that Mr Bhuller and Ms Maini were performing.
The Tribunal has considered whether and the extent to which the failure to satisfy the sponsorship obligation was intentional, reckless or inadvertent and has formed the view that the breaches were inadvertent and arose primarily out of Mr Atwal’s lack of experience in employment matters and Department expectations in which he readily admitted lacking experience and knowledge. He agreed that he had not fully understand the ANZSCO tasks of a Company Transport Manager and, while he had a clear idea in his mind of what tasks he wanted these roles to fulfil, this did not necessarily accord with the duties outlined in the ANZSCO dictionary definition.
The Tribunal has considered whether and the extent to which the applicant has cooperated with Immigration including if the person informed Immigration of the failure. The Tribunal notes that the failure of this sponsorship obligation was detected upon commencement of monitoring and therefore the applicant did not inform Immigration of the failure.
The Tribunal has also considered the steps 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 Tribunal is satisfied that the sponsor has made considered attempts to rectify the situation and has put in place detailed employment policies and procedures to ensure that all employees are performing their stated duties. This has been approached in a systematic way under the advisement of external consultants to streamline and improve the businesses operations. While Mr Atwal has stated that he no longer intends to sponsor anyone the Tribunal is satisfied that should he change his mind, the business is now operating at a level of professionalism and with detailed record-keeping such that future sponsorship obligations would be monitored and complied with.
Finally, the Tribunal has also considered any other relevant factors. In this respect the Tribunal notes that the sponsoring business was, at the time, a relatively new business which had grown from a one-man operation commenced by Mr Atwal, to a medium-sized transport company. At the time Mr Atwal chose to employ people he knew in roles suggested to him by his former representative. In retrospect he readily admits this was a mistake and now advertises all positions on Seek.com and employs predominantly well-qualified Australian citizens and permanent residents who have experience in their relevant fields. While this process of having the standard sponsorship cancelled has been a difficult and personally challenging one for Mr Atwal, it has led to an immediate and thorough internal reorganisation which appears to have resulted in a more efficient, streamlined business.
Considering the totality of the circumstances, and having regard to the prescribed criteria, the Tribunal finds that the action mentioned in s.140M(1)(a) to cancel the approval of the sponsors as a standard business sponsor is correct however, in considering the applicant’s contrition and, at the time, relative inexperience in both business and employment matters and the steps taken to ensure future employment compliance, the Tribunal finds that the period of the bar for approval as a standard business sponsor should varied from three years to 12 months from the date of the delegate’s decision. The bar therefore ended on 13 June 2018.
DECISION
The Tribunal varies the decision under review by varying the period of the bar to 12 months from the date of the delegate’s decision. This means the bar ended 13 June 2018.

Karen Synon
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.
…

[2020] AATA 45

7 January 2020

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