Catalpa Resources Pty Ltd (Migration)

Catalpa Resources Pty Ltd (Migration) [2023] AATA 2705 (20 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Catalpa Resources Pty Ltd
REPRESENTATIVE:  Mr Daniel Mattheus Estrin
CASE NUMBER:  2305884
HOME AFFAIRS REFERENCE(S):          OPF2022/6269
MEMBER:Susan Hoffman
DATE:20 July 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to take one or more of the actions specified in s 140M of the Migration Act 1958 (Cth).

Statement made on 20 July 2023 at 1:48pm

CATCHWORDS
MIGRATION – cancellation – sponsorship cancellation – 1 year bar – applicant had failed to satisfy sponsorship obligations – false or misleading information – genuine mistake arising from confusion between employees with the same family name – a superseded contract was provided – none of the actions under s 140M should be taken – decision under review set aside

LEGISLATION
Migration Act 1958, ss 140M, 375A
Migration Regulations 1994, rr 2.101, 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 Home Affairs to take an action under s 140M of the Migration Act 1958 (Cth) (the Act) in relation to the applicant’s sponsorship.
The applicant was first approved as a standard business sponsor on 23 August 2013. On 21 April 2023, the delegate decided to bar the applicant from sponsoring more people from the date of the decision until 21 April 2024 under s 140M on the basis that the applicant had failed to satisfy sponsorship obligations and had provided false or misleading information.
On 27 April 2023, the applicant lodged their application for review by the AAT. In a submission dated 9 June 2023, the applicant requested that the review be prioritised. The request was granted.
The submission dated 9 June 2023 focused on why the review should be prioritised. Some of the content of that submission is also relevant to the review more broadly and has been taken into account accordingly.
A further submission was made on 30 June 2023.
Mr Bartholomew O’Neill for the applicant appeared before the Tribunal on 4 July 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Raman Samardi who was present for the entirety of the hearing.
The applicant was represented in relation to the review.
A post hearing submission was made, dated 6 July 2023.
The applicant had also applied to the Minister for the bar to be waived in accordance with criteria set out in reg 2.101 of the Migration Regulations 1994 (the Regulations). The bar was waived with a date of effect of 3 July 2023

Non-disclosure certificate issued to pursuant to s 375A of the Act

At the hearing the Tribunal informed Mr O’Neill that a delegate of the Minister had issued a non-disclosure certificate in relation to documents in departmental file, on the basis that disclosure would be contrary to the public interest because disclosure would:
Disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods.
The Tribunal formed the view that the certificate was valid. It notes that some of the information included in the documents covered by the certificate was included elsewhere in departmental file. The other information (ie: that not found elsewhere in the documents) is not relevant to this review in that it has no impact on the Tribunal’s decision, positively or negatively.
The Tribunal informed Mr O’Neill that it found the non-disclosure order to be valid and that some of the information included in the documents covered by the certificate was included elsewhere in departmental file; and that the information that was not included elsewhere is not relevant to this review in that it has no impact on the Tribunal’s decision.
His representative responded by saying that was fine and no submissions were needed regarding the non-disclosure certificate.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision not to take one or more of the actions specified in s 140M.

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 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.
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?

Background

Australian Border Force (ABF) notified the applicant on 24 May 2022 that Catalpa Resources Pty Ltd (Catalpa Resources) had been selected for the purpose of monitoring sponsors. The applicant responded by providing information as requested including a list of all visa holders.
Further information was requested by ABF on 5 July 2022, and the applicant responded on 12 and 20 July 2022.
ABF requested further information again on 9 August 2022, to which the applicant responded on 16 August 2022.
ABF issued a Notice of Intention to Take Action (NOITTA) dated 16 September 2022. This recorded nine possible failures to satisfy workplace obligations and two possible instances of providing false or misleading information. The 11 possible failures/instances involved six employees, two of whom shared the same family name.
The applicant responded on 21 October 2022 via their-then representative, Business Law WA. That was followed by requests by the delegate for further information from the applicant which was duly provided. The delegate also interviewed an employee, Mr Ultan Gerard Doherty, for about 20 minutes on 6 February 2023 by telephone.
On 21 April 2023 the delegate issued her decision which was to bar the applicant from sponsoring more people from 21 April 2023 to 21 April 2024. The decision statement recorded that she found one failure to satisfy workplace obligations (reg. 2.89) and two instances of providing false or misleading information (reg. 2.90). The one failure and two instances involved three employees.
The applicant disagreed with the decision of the delegate.
As recorded earlier, the bar was waived, effective 3 July 2023. The period of the sponsorship bar under review by the Tribunal therefore runs from 21 April 2023 to 2 July 2023.
In his decision made 3 July 2023 to waive the bar, the delegate recorded the following information provided by the applicant to ABF:[1]
… if the sponsorship bar is not waived, the entire Catalpa Group of Companies, including Catalpa Energy Pty Ltd will be affected, with the following consequences;
a.Delays to $500 million worth of government-backed projects;
b.Impacts on government renewable infrastructure projects;
c.Setback for the National Strategy of Ecologically Sustainable Development; and
d.Delays to AUKUS/defence projects.
[1] To be clear, the delegate who decided the bar should be waived was a different delegate to the one who imposed it.
The delegate recorded that the submission detailed that the 12-month sponsorship bar imposed on Catalpa would make it extremely difficult, if not impossible, for the Catalpa Group to retain the skilled electrical linesworkers they so desperately need to fulfill major contractual obligations across Australia; and that this will ultimately impact the group’s ability to remain competitive and viable in the long term and poses a serious risk of bankruptcy.
The delegate also recorded that Catalpa’s submission provided a detailed understanding of the Catalpa Group and highlighted that it plays a key role in delivering the renewable energy capabilities needed to transform Australia’s energy system and realise the Albanese’s government’s net zero emission targets. The delegate included the following in his decision:
The Catalpa Group is a leading player in the fast-growing roll-out of electricity transmission lines across Australia to improve the critical supply of reliable power to Australian communities. The Catalpa Group’s construction arm provides integrated construction services across some of Australia’s largest regional civil and concrete projects…
Due to both the sponsorship bar and the adverse information against associated entities, you stated that the Group is unable to renew almost 50 X Subclass 482 visas for existing employees (whose visas will expire within the coming weeks).
You advise that due to ongoing contractual obligations, Catalpa Energy was in the process of recruiting an additional 110 X electrical linesworkers to urgently fill the critical skills shortage in Australia. It was detailed that 30 linesworkers are required immediately and a further 80 are needed by October.
The delegate’s bar waiver decision set out details of a number of multi-million-dollar projects that require skilled workers, and the expectation that a significant number of these workers would need to be sponsored.
As ABF is aware of the arguments made by Catalpa regarding the impact of the bar on its business operations, the Tribunal will not record all that detail here.
While lifting the bar from 3 July 2023 was welcomed by Catalpa, the applicant submitted that having a bar imposed, even for the relatively short period from 21 April 2023 to 3 July 2023, means that adverse information is associated with Catalpa Resources and other members of the Catalpa Group which could affect their ability to sponsor employees in the future.

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 delegate found that there was a failure to meet the criteria in reg 2.79(3)(b)(ii) in respect of Mr Paul Martin Harrington to do with his rate of pay. The nomination application for him was lodged on 2 December 2020. Reg 2.79(3)(b)(ii) in place at that time read as follows (emphasis added):
(b)  if the person is mentioned in paragraph (1)(a) and the nomination by the person of an occupation in which the primary sponsored person is identified was made on or after 18 March 2018:
(i)  the primary sponsored person's annual earnings in relation to the occupation are not less than the annual earnings the person indicated, at the time the nomination was approved, would be provided to the primary sponsored person for the occupation; and
(ii)  the primary sponsored person's earnings in relation to the occupation are not less than the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work in the same workplace at the same location; and
(iii)  the employment conditions (other than in relation to earnings) that apply to the primary sponsored person are no less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or
Mr Harrington was employed by the applicant as a carpenter. Based on information provided by the applicant, the delegate compared Mr Harrington’s pay with that of an Australian equivalent worker, Mr Lee Elliott, and found that Mr Harrington was paid $66 an hour for six pay cycles between 1 January 2022 and 1 April 2022, and $70 an hour for one pay cycle, being 22 October 2022 to 4 November 2022 whereas Mr Elliott was paid $72 an hour.
Mr O’Neill said that across the Catalpa group they employed perhaps six carpenters at various locations. He said that in response to queries from ABF, Catalpa’s Human Resources Department was asked to provide pay details of an equivalent worker and they provided details for Mr Elliott who was a supervisor.
The Tribunal notes that an organisational chart was provided to ABF on 18 April 2022 which recorded both Mr Elliott and Mr Harrington as being supervisors.
At the hearing Mr O’Neill said that Mr Elliott was in charge of over 10 people, including Mr Harrington. That was why Mr Elliott was paid more.
Payslips did not record Mr Elliott as having a supervisory role. Mr Samardi’s evidence was that payslips showed a person’s trade, not whether they were in a supervisory role or not; that was reflected by their hourly rate.
At the hearing Mr Samardi showed the Tribunal emails on his phone attached to which were certificates stating that Mr Elliott had undergone training to be a supervisor. These were dated December 2021. That was before the monitoring commenced in May 2022.
After the hearing, various records were submitted, one of which recorded that Mr Elliott was a senior supervisor.
Mr Joe Blundell, a construction manager at UGL Pty Ltd, provided a letter dated 4 July 2023 in which he stated that Mr Elliott worked on the Mesa J Project as a senior supervisor from January 2022 until early June 2022. He wrote that Mr Elliott managed a team of over 10 people during this period, and that Mr Harrington worked on the same project as a member of Mr Elliott’s team, reporting directly to him.
In the bar waiver decision, UGL is named as a main contractor on a number of projects with which the applicant is involved, some which were described as current and others as upcoming. Three projects were valued at more than $78 million each. Based on its website, UGL is an engineering company with its head office in Sydney.[2] It is part of the CIMIC group of companies. The Tribunal is satisfied that Catalpa is independent of UGL and CIMIC, in that it is not part of the CIMIC group of companies.
[2] The homepage can be found at
On that basis, the Tribunal is satisfied that the letter from UGL can be relied upon.
The Tribunal notes that Mr Elliott’s date of birth is 13 July 1981, making him 38 years old, whereas Mr Harrington’s date of birth is 20 September 1992, making him 30 years old. The disparity in their ages, while hardly conclusive, does suggest that Mr Elliott would be the more experienced between him and Mr Harrington.
As Mr Elliott was employed as a senior supervisor and Mr Harrington reported to him, the Tribunal is satisfied that comparing Mr Harrington’s pay with Mr Elliott’s pay does not assist in ascertaining whether reg 2.79(3)(b)(ii) is met.
Departmental policy sets out that in cases where there is not an equivalent worker, then sponsors should provide information which demonstrates what the current earnings of an equivalent Australian worker would be at time of monitoring.[3] And that sponsors should use the guidance in the instrument that is referenced in sub-regulations 2.72(15) and 2.72(17) to calculate the current earnings the primary sponsored person should be receiving.
[3] See Div2.11-Div2.23 Sponsorship compliance framework: Sponsorship obligations, then 3.6.8. Assessing earnings in comparison to what an equivalent Australian worker would earn accessible at >
The instrument so referenced is Migration (IMMI 18/033: Specification of Income Threshold and Annual Earnings and Methodology of Annual Market Salary Rate) Instrument 2018 (IMMI 18/033). It sets out the method for determining the annual market salary rate where there is not an Australian worker performing equivalent work, as follows:
8   Method of determining the annual market salary rate where there is not an Australian worker performing equivalent work
For the purposes of subregulation 2.72(17) of the Regulations, and where section 7 of this instrument does not apply and:[4]
(a)    wherethere is a fair work instrument, state industrial instrument or transitional instrument applicable to a nominated occupation, the annual market salary rate for a nominated occupation, or an occupation in relation to which a position is nominated under regulation 5.19 of the Regulations, is the annual earnings of an equivalent Australian worker specified in those instruments.
(b)    Where there is no fair work instrument, state industrial instrument or transitional instrument applicable to a nominated occupation, the annual market salary rate for a nominated occupation or an occupation in relation to which a position is nominated under regulation 5.19 of the Regulations, is the annual earnings that would apply to an equivalent Australian worker, which must be determined by reference to relevant information.
[4] Section 7 of the instrument applies where there is an Australian worker performing equivalent work.
In her decision of 21 April 2023, the delegate referred to the relevant industrial instrument which was the Catalpa Management Resources Pty Ltd Enterprise Agreement 2021 (CMR EA 2021), and that this required Mr Harrington to be paid no less than $24.76 an hour. The delegate noted that Mr Harrington’s hourly rates of $66 and $70 were well above $24.76 an hour.
As Mr Harrington was paid either $66 an hour or $70 an hour during the periods which were checked by the delegate, in light of departmental policy and the minimum amount specified in the CMR EA 2021, the Tribunal is satisfied that Mr Harrington’s earnings were not less than the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work in the same workplace at the same location.
For the reasons just set out, the Tribunal is satisfied that the applicant did not breach reg 2.79(3)(b)(ii).
Accordingly, the Tribunal is not satisfied that the prescribed circumstance in reg 2.89 exists for the purpose of s 140M of the Act.

False or misleading information: reg 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: reg 2.90(2).
The delegate found that false or misleading information had been provided to ABF in respect of Mr Paul Thomas O’Reilly (Mr PT O’Reilly) and Mr Brian Dennis McDaid.
The Tribunal notes that are two O’Reillys – Stephen Daniel and Paul Thomas.

Mr PT O’Reilly

The delegate found that the applicant had provided false or misleading information to the AAT in May 2022 about Mr PT O’Reilly and that this false or misleading information was quoted in an AAT decision made on 27 May 2022, following a hearing held on the same date.
The AAT decision of 27 May 2022 set aside a departmental decision to not approve a nomination application lodged by Catalpa in respect of Mr O’Reilly. The effect of the AAT’s decision was that the nomination was approved.
That was followed soon after by an AAT decision dated 30 May 2022 which remitted Mr O’Reilly’s application for a subclass 482 visa back to ABF for reconsideration. To be clear, Mr O’Reilly’s visa application was not granted as a result of the AAT decision of 30 May 2022. At that time, it was undetermined.

The NOITTA was dated 16 September 2022. In it, the delegate referred to an employment contract dated 7 November 2019, according to which Mr PT O’Reilly was the sole director of Reilly Construction Pty Ltd. According to the delegate, this directorship did not end until 7 September 2020 when the company was deregistered.
The delegate also referred to an organisational chart provided by the applicant in April 2021 in relation to a nomination application for another employee. In this chart, Mr PT O’Reilly was recorded as being employed on a casual basis.
The delegate’s position was that the applicant told the AAT that Mr O’Reilly was employed as a full-time carpenter when in fact he was engaged as an independent contractor on a ‘casual contracting role’, thereby providing false or misleading information to the AAT.
In the decision made on 21 April 2023 to impose the bar, the delegate recorded that the purpose for which the information (that Mr O’Reilly was a full-time employee) was provided, was to receive a favourable decision by the AAT.
It was submitted that Mr O’Reilly’s then current status – whether on the payroll or paid as an independent contractor – was immaterial in relation to the approval of the nomination application in respect of Mr O’Reilly as the focus of the AAT decision of 27 May 2022 was forward-looking: what would Mr O’Reilly’s pay and conditions be once his visa was granted.
The Tribunal is of the view that although Mr O’Reilly’s status (on the payroll or paid as an independent contractor) at the time of the AAT review was a relevant consideration, it would be one of many factors and not decisive of itself. The Tribunal does not accept that a potential sponsor would necessarily benefit from claiming the person they want to sponsor was an employee rather than an independent contractor.
The delegate also highlighted the fact that Mr O’Reilly was described in an organisational chart as being employed on a casual basis.
The ABF file includes a payslip for Mr O’Reilly for the period 23 November 2019 to 6 December 2019. He was paid for 87.25 hours for that fortnight so clearly was working full-time at that time, and was paid as an employee and not as a contractor. Payroll records show that Mr O’Reilly benefited from employee benefits such as superannuation and health cover.
The Tribunal observes that a person can be employed on a casual basis as either a full-time or part-time employee. A person may work full-time hours as either a casual worker or a permanent employee.
The Tribunal also observes that there is nothing preventing a person being an employee (ie, on the payroll and subject to PAYG tax) and also being registered as a director of company.
The Tribunal does not accept that the applicant gave false or misleading information to the AAT at the hearing held on 27 May 2022.
However, the Tribunal observed that the response dated 21 October 2022 to the NOITTA did include false information at paragraphs 89 and 90, as follows:
Paul O’Reilly was paid by Catalpa as an independent contractor through his ABN, until he became a full-time employee after approval of his visa.
To the best of Catalpa’s knowledge and belief, Paul O’Reilly since his 482 visa was approved was never engaged by anyone other than Catalpa, whether through an ABN or direct.
The Tribunal drew the applicant’s attention to this anomaly. Mr O’Neill was adamant that Mr O’Reilly has not yet been granted a subclass 482 visa. Based on evidence given at the hearing, it appears that the then-representative made a mistake.
Further, according to Catalpa’s payroll, Mr PT O’Reilly was paid as a casual employee, paid via the payroll and was not paid as a subcontractor. That is, payments were not made to his company.
The Tribunal considered whether the information given in the response dated 21 October 2022 was false or misleading information, as contemplated by reg 2.90.
The submission of 30 June 2023 claimed that, referring to Triveldi and Public Criteria Criterion (PIC) 4020, what was required to reach the standard of false and misleading, was “an element of fraud or deception by some person”.[5] The exact quote is “it should be accepted that an element of fraud or deception is necessary in order to attract the operation of PIC 4020.” The Tribunal is of the view that attracting the operation of PIC 42020 is different to something being found to be false and misleading.
[5] Trivedi v MIBP [2014] FCAFC 42
There is no definition in the Act or Regulations as to what constitutes false and/or misleading for the purpose of reg 2.90. The Tribunal is satisfied that the terms should be used in their literal sense.[6] The Macquarie Dictionary defines ‘false’ as meaning (amongst other things) not true or correct, erroneous; and ‘misleading’ as to lead or guide wrongly; lead astray.
[6] See Sri Guru Singh Transport Pty Ltd v MICMSMA [2022] FCA 118
Further, the false and misleading information is required to be considered against reg 2.90(3) as set out in part below, which provides for an assessment of the said information, including whether it was provided in good faith.
The Tribunal is satisfied that the applicant did give incorrect information to ABF regarding Mr PT O’Reilly’s visa approval and that he had been paid as an independent contractor. The applicant therefore gave false or misleading information to ABF. The Tribunal then considered this information against reg 2.90(3) as below.[7]
[7] Reg 2.90(3) is set out in full as an attachment to this Statement.
(a) the purpose for which the information was provided; and
This information was provided to ABF in response to questions from ABF about giving false or misleading information to the AAT.
(b) the past and present conduct of the person in relation to Immigration; and
The delegate noted that the applicant had been monitored previously and it was finalised as unsatisfactory in August 2019 due to a breach of regulation 2.87 (obligation not to recover, transfer or take actions that would result in another person paying for certain costs). The delegate at that time decided not to impose a formal sanction but to counsel the applicant.
(c) the nature of the information; and
The information was given to refute an allegation of false or misleading information and was, of itself, incorrect.
(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
The provision of this information has not affected Mr O’Reilly or any other person or entity financially with regard to pay. Its impact may have created some confusion for the applicant and the delegate. If there has been an impact on another person, the Tribunal considers that impact to be minor.
(e) whether the information was provided in good faith; and
The Tribunal is of the view that this information was provided in good faith. It considers that informing ABF that a person’s application for a subclass 482 had been approved, when it had not been approved, could only have been a mistake as this is a matter of fact that is simple for ABF to check.
The Tribunal notes that in answer to a NOITTA question about a Mr Stephen O’Reilly, it was stated that he was paid by Catalpa as an independent contractor through his ABN until he became a full-time employee after approval of his visa. This is almost identical to the response given in respect of Mr PT O’Reilly. The Tribunal observes that most, if not all, of the questions from ABF about a Mr O’Reilly before the NOITTA was issued were to do with Stephen and not PT O’Reilly. The Tribunal considers it possible that when responding to the NOITTA, there was some confusion between the two O’Reillys.
In other words, the applicant provided a response to the NOITTA that was correct for Mr Stephen O’Reilly but was incorrect in relation to Mr PT O’Reilly.
(f) whether the person notified Immigration immediately upon discovering that the information was false or misleading; and
Following the response to the NOITTA, the delegate requested further information by letter dated 3 November 2022, including information about Mr Paul O’Reilly.
By letter dated 11 November 2022, the applicant advised that Mr O’Reilly had not commenced as a full-time employee as his visa had not yet been approved.
The Tribunal observes that this does not necessarily mean that Mr O’Reilly was not working full-time hours, merely that he was not classified or paid as a full-time employee. He was classified as a casual worker. A full-time employee would attract leave entitlements whereas a casual employee would not.
The Tribunal formed the view at the hearing that the false information identified by the Tribunal had not been noticed by the applicant up to that point.
(g) any other relevant factors.
The Tribunal is strongly of the view that this was a genuine mistake arising from confusion between employees with the same family name, and there was no intent on the part of the applicant to deceive.
Clearly there is no benefit to the applicant to claim in October 2022 that Mr O’Reilly had been granted a subclass 482 visa when that was not the case then or now. This was something simple for ABF to check.
The Tribunal observes that the applicant has cooperated with ABF by responding to requests for information and explanations in timely fashion.
According to the pre-hearing submission dated 30 June 2023, the applicant has employed an in-house registered migration agent, Mr Anthony Coates, to assist with visa applications. It was claimed that this “significantly increases oversight as to compliance matters and reduces the risk of future administrative errors”. The Tribunal considers this to be a reasonable claim.
Also relevant is the information about the Catalpa group set out at paragraphs 26 to 32.

The applicant’s position in relation to many employees is that generally, before the visa application was granted, the employee was employed on a casual basis. Once the visa was granted, the employee was employed as a fulltime permanent employee.
For reasons already given, the Tribunal does not accept that the applicant provided false or misleading information to the AAT in May 2022. However, it is satisfied that the applicant provided false information to ABF in the NOITTA response dated 21 October 2022. There was nothing to be gained by doing so and the Tribunal is strongly of the view this was a genuine error.

Mr Brian Dennis McDaid

The issues identified by the delegate concerning Mr McDaid were to do with employment contracts. The delegate noted the following:
·     Two nomination applications were submitted to the Department for Mr McDaid.
o   One was lodged on 29 May 2020 and was refused on 4 February 2021
o   The second was lodged on 15 April 2021 and was approved on 22 April 2021.
·     Three letters of offer/workplace agreements were submitted during the nomination processes and during ABF’s monitoring of the applicant as follows:
o   Letter A       Letter of offer/workplace agreement dated and signed 1 April 2020. This recorded Mr McDaid’s address as 22 Mayfair Street Nollamara WA 6061 and that this was a 36-month fixed term contract where the employment type was casual.
o   Letter B       Letter of offer/workplace agreement dated and signed on 1 April 2020. This was submitted to the ABF on 6 June 2022. It gave Mr McDaid’s address as 10C Mayfair Street and recorded that it was a 12-month fixed term contract.
o   Letter C   Letter of offer/workplace agreement dated 29 March 2020 and signed as 29 March 2021. Mr McDaid’s address is recorded as 22 Mayfair Street and the employment type was full time.
The discrepancies identified by the delegate were as follows:

Letters A and B were both dated and signed 1 April 2020 but were submitted at different times to ABF. Each recorded a different address for Mr McDaid and different lengths of the contract (36 months and 12 months).
According to Letter A, his address was 22 Mayfair Street, Nollamara on 1 April 2020 and according to Letter B, his address was 10C Mayfair Street, Nollamara on the same date.
In the Letter C offer/workplace agreement a page (supposedly page 2) was missing. That page contains a signature and date. In place of the missing page there was a sheet of paper of a different colour, no page number, with Mr McDaid’s signature and dated 29 March 2021 even though the first page was dated 29 March 2020.

The delegate wrote “Departmental records show Mr McDaid’s address changed from 22 Mayfair Street Nollamara WA 6061 to 10C Mayfair Street Nollamara 6061 on 15 April 2021.”
The reference to this in the departmental file clarifies that the reference to “15 April 2021” was not the date when the change of address occurred but when the Department learnt of the new address, which was via the nomination application, lodged on 15 April 2021.
Before analysing the inconsistencies in detail, the Tribunal notes evidence given at hearing and in the post-hearing submission which together indicate that when a new letter of offer/workplace agreement was being drawn up for an employee, the practice was to use the most recent one as a template. Various fields would need to be changed, including the date, the person’s address, the hourly rate, location of work and their supervisor.
It seems that mistakes were made, such as not recording the correct date. If changes were made to a template to produce a contract and the contract was superseded within a couple of days by an updated one, superseded versions were accessible years later, rather than being discarded.
The Tribunal is satisfied that mistakes of this nature were made, not because of an intent to mislead, but perhaps explained by lack of attention to detail and less than meticulous record-keeping.
The Tribunal will now return to the inconsistencies identified by the delegate.
The delegate recorded that the applicant claimed in relation to Letter C that 29 March 2020 appearing on the first page was an inadvertent typo; it should have read 29 March 2021 which was the same date that it was signed.
The delegate wrote that Letter C offered better terms and conditions than Letter B. The applicant’s position is that Letter B was a letter of offer/workplace agreement from April 2020 and Letter C was a letter of offer/workplace agreement from March 2021. The delegate did not accept this.
The delegate was of the view that the letter with the better terms and conditions (letter C) was provided to ABF to support the nomination application while the second letter (letter B) was given to Mr McDaid.
The applicant refuted this claim, on the basis that the Letter B offer was related to the nomination application lodged in May 2020 and the Letter C offer related to the nomination application lodged in April 2021.
The Tribunal observes that Letters A and B name Mr Alan Garvey as the supervisor, the location of work as being at West Angelas Mine Site and the hourly rate as $45. Letter C names Mr Barry O’Neill as the supervisor, the location of work as being at the FMG minesite and various other Pilbara locations, and the hourly rate as $55.
As suggested by evidence given when comparing Letter A to Letter B, set out below, it is possible that the 2020 letter/contract was used as a template for the 2021 letter/contract but whoever prepared the letter/contract, failed to update the date properly.
In light of the detailed information recorded in the letters, the Tribunal considers this to be the most reasonable and likely explanation: that the contract from the previous year was used as a template. Other fields were changed but changing the year to 2021 was overlooked.
With regard to page 2 of Letter C being missing and apparently replaced with a page that was of a different colour, at the hearing this was explained as follows.
The contract was emailed to Mr McDaid to sign when he was in a remote location without access to a scanner. Having printed and signed the signature page, he used his phone to photograph it and emailed just that page. The Tribunal observes that the copy of this page in the departmental file is consistent with the appearance of a page that was photographed by a phone, rather than a scanned page. The top of the page is not perfectly square. There is a gap at the top left which indicates the page was photographed when it was on a desk.
As noted, the delegate observed that the signed page was not numbered. The Tribunal considers it highly likely that when he photographed the signature page, Mr McDaid did not capture the page number which (based on other pages of the contract) was printed on the bottom right of the page and out of shot.
The Tribunal is satisfied that there is nothing of concern arising from the appearance of page 2 of Letter C.
Following the hearing, a further submission was received that set out what was described as the most likely explanation for the two employment contracts dated 1 April 2020 (letter A and letter B) recording 36 months and 12 months respectively, as follows. The Tribunal notes that supporting documents were also submitted.
·     On 20 March 2020, Mr McDaid’s sister, Kelly, sent a copy of Mr McDaid’s original 2018 employment contract to the-then migration agent, Mr Aaron Chan.
·     Mr Chan responded on the same day:
That’s great, thanks for following up on this Kelly [smiling emoji]
All the terms and conditions of employment read well, and can be duplicated to Catalpa’s subsequent contract specifically for the purposes of the 482 visa, with the dates revised.
I’ll touch base with Catalpa’s HR once they’re free to confirm whether the salary rate will remain the same as is.
·     Following several contract amendments, a contract for Mr McDaid was executed. He was to be offered a 12-month contract to coincide with a 12-month nomination.
·     This contract was sent to Mr Chan on 19 May 2020.
·     Mr Chan then prepared a draft nomination application using letter B, which recorded Mr McDaid’s new address of 10C Mayfair Street Nollamara and a 12-month employment period.
·     On 24 May 2020, Mr Chan wrote to the applicant and Mr McDaid via email (other people were copied in too) to confirm the length of the sponsorship: should it be for 12 months or four years. Mr Chan requested confirmation as to the parties’ intention regarding the duration of the sponsorship.
·     On 26 May 2020 there was an email response on behalf of the applicant to Mr Chan confirming a one-year sponsorship nomination.
·     There must have been a change of view on that point within the next three days. When the nomination application was lodged with ABF on 29 May 2020, it recorded that the proposed period of employment of the nominee was up to three years.
·     It is likely that in drawing up a second contract for three years, the original one from 2018 was again used as a template, but amending Mr McDaid’s address was overlooked. When signing this contract, it seems that he did not notice the address was wrong.
·     When the applicant was first requested on or about 22 May 2022 to provide information in relation to monitoring by the ABF, the-then migration agent mistakenly provided the letter B which was still on file. However, that had been superseded by letter A.
It was submitted that letter B should be regarded as a draft as it was superseded by letter A.
The Tribunal accepts the explanation just set out on the basis that is plausible and explains why the wrong document was provided to ABF in response to their letter dated 22 May 2022.
The Tribunal then considered whether false or misleading information was provided to ABF.
The letter dated 22 May 2022 requested certain information for sponsored persons, including “A copy of the signed employment contract between the sponsor and primary sponsored persons.” There is then a note. “If the primary sponsored person(s) has been issued with a more than one employment contract, please provide the current employment contract”.
The applicant responded by providing a signed employment contract, being the letter of offer B which was for 12 months. The applicant failed at that time to provide Letter A which superseded Letter B.

The failure to provide a document does not mean that the applicant provided false or misleading information. However, the applicant was requested to provide the current employment contract and provided a non-current one as if it was the-then current employment contract. On a literal reading of the meaning of “providing false information”, the Tribunal finds that the applicant did provide false information as a superseded contract was provided as if it was the-then current one.
The Tribunal then considered this information against reg 2.90(3).
(a) the purpose for which the information was provided; and
This information was provided to ABF in response to questions from ABF as part of its monitoring of the applicant.
(b) the past and present conduct of the person in relation to Immigration; and
As recorded earlier, the delegate noted that the applicant had been monitored previously and it was finalised as unsatisfactory in August 2019 due to a breach of regulation 2.87 (obligation not to recover, transfer or take actions that would result in another person paying for certain costs). The delegate at that time decided not to impose a formal sanction but to counsel the applicant.
(c) the nature of the information; and
The information provided was an employment contract that had been superseded, whereas ABF requested a current contract.
(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
The provision of this information has not affected Mr McDaid or any other person or entity financially with regard to pay. The primary impact has been upon the applicant, as the false information was part of the reason a sponsorship bar was imposed.
(e) whether the information was provided in good faith; and
The Tribunal is of the view that this information was provided in good faith. It notes, based on the post-hearing submission, that it was provided by the migration agent from their records. There was nothing to be gained by providing a superseded contract as opposed to a current one.
The Tribunal is satisfied that there was simply a mistake made with paperwork and there was no intent to mislead or deceive.
(f) whether the person notified Immigration immediately upon discovering that the information was false or misleading; and
The Tribunal formed the view at the hearing that the issue raised in the NOITTA about the conflicting information between letters A and B had not been fully understood. This was why no explanation was given in the response to the NOITTA.
The Tribunal observes that parts of the NOITTA were a little difficult to follow and on that basis, it is understandable that this was overlooked.
(g) any other relevant factors.
The Tribunal is strongly of the view that the provision of false information – a superseded contract rather than a current one – was simply an administrative mistake.
There is no benefit to the applicant to submit, in October 2022, a contract dated 1 April 2020 which recorded that Mr McDaid’s period of employment was for one year rather than three years.
The Tribunal understood from evidence given at the hearing that Mr McDaid is still employed by the applicant.
As noted earlier, the applicant has cooperated with ABF by responding to requests for information and explanations in timely fashion.
Also as noted above, the applicant has now employed an in-house registered migration agent, Mr Anthony Coates, to assist with visa applications. It was claimed that this “significantly increases oversight as to compliance matters and reduces the risk of future administrative errors”. The Tribunal considers this to be a reasonable claim.
Also relevant is the information about the Catalpa group set out at paragraphs 26 to 32.
In light of the foregoing, the Tribunal is satisfied that the prescribed circumstance in reg 2.90 exists for the purpose of s 140M of the Act.

Action to be taken

The Tribunal has found that the applicant provided false or misleading information to ABF on two occasions, in its response to the NOITTA. The first concerned Mr PT O’Reilly and the second, Mr McDaid.
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.
In considering what action to take, the Tribunal has had regard to the prescribed criteria, as extracted in the attachment to this decision. The Tribunal has addressed these separately for each of the two instances of providing false or misleading information.
The Tribunal has found in both instances that the false information was provided in error and with no intent to mislead the ABF. The false information was provided in good faith. The Tribunal is unable to discern how either of the instances of false information benefited, or could benefit, the applicant. The Tribunal considers them to be relatively minor transgressions. There was no indication that the applicant sought to exploit its overseas workers.
The Tribunal has described the Catalpa group and the large projects with which it is involved and how these would potentially be impacted by a sponsorship bar, even one that has now finished as the result of the waiver decision.
The Tribunal is of the view that the potential impact of the applicant having adverse information recorded against them if the sponsorship bar that ended on 3 July 2023 was left in place would be disproportionate, in light of the following:
·     The two instances of providing false information found by this Tribunal are not of a serious nature and were genuine mistakes with no intent to deceive.
·     The scale of the Catalpa Group’s operations.
·     The number of overseas employees sponsored by Catalpa. It is anticipated there are 50 overseas workers whose visas will expire in the next few weeks and more than 100 workers are urgently needed to fill the skills shortage over the next few months.
·     If adverse information was recorded against the applicant, it would need to be addressed in each of sponsorship applications/renewals and may result in some not being approved that would otherwise be approved.
Further, the Tribunal notes the cost to the applicant in terms of time, money and stress of responding to the NOITTA and the decision to impose a bar, and then applying to the Minister for a waiver, lodging an application for review by the AAT and lodging a request for the AAT review to be given priority. A salutary experience to which the applicant has responded by employing an in-house registered migration agent to reduce the risk of future administrative errors.
Considering the totality of the circumstances, and having regard to the prescribed criteria the Tribunal finds that none of the actions under s 140M should be taken.

DECISION

The Tribunal sets aside the decision under review and substitutes a decision not to take one or more of the actions specified in s 140M of the Migration Act 1958 (Cth).

Susan Hoffman
Member

ATTACHMENT – Extract from the Migration Regulations 1994
2.89   Failure to satisfy sponsorship obligation
…
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
…
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.
…
2.79 Obligation to ensure equivalent terms and conditions of employment - Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa
…
The person must ensure that:
(a)    if:
(i)  the person is mentioned in paragraph (1)(a); and
(ii)  the nomination by the person of an occupation in which the primary sponsored person is identified was made before 18 March 2018;
the 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
(b)    if the person is mentioned in paragraph (1)(a) and the nomination by the person of an occupation in which the primary sponsored person is identified was made on or after 18 March 2018:
(i)  the primary sponsored person's annual earnings in relation to the occupation are not less than the annual earnings the person indicated, at the time the nomination was approved, would be provided to the primary sponsored person for the occupation; and
(ii)  the primary sponsored person's earnings in relation to the occupation are not less than the earnings an Australian citizen or an Australian permanent resident earns or would earn for performing equivalent work in the same workplace at the same location; and
(iii)  the employment conditions (other than in relation to earnings) that apply to the primary sponsored person are no less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location; or
(e)    if the person is mentioned in paragraph (1)(b), the terms and conditions of employment provided to the primary sponsored person are no less favourable than the terms and conditions of employment set out in the work agreement.
Note:    The terms and conditions of a work agreement may refer to a minimum salary level specified in an instrument in writing.
…

[2023] AATA 2705

20 July 2023

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