CHEE TAYEB PTY LTD (Migration)

CHEE TAYEB PTY LTD (Migration) [2023] AATA 2614 (3 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  CHEE TAYEB PTY LTD
CASE NUMBER:  2108516
HOME AFFAIRS REFERENCE(S):          OPF2019/15071
MEMBER:P. Maishman
DATE:3 August 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision under review.

Statement made on 03 August 2023 at 1:56pm
CATCHWORDS
MIGRATION – sponsorship cancellation or bar – providing false or misleading information – contravening the law – ensuring equivalent terms and conditions of employment – underpayment of salary – claims of additional cash payments – sponsored person working in the nominated occupation of Cook – extended additional duties – Liquor Infringement Notice and penalties – decision under review affirmed
LEGISLATION
Liquor Control Act 1988 (WA), s 100
Migration Act 1958, s 140
Migration Regulations 1994, rr 2.57, 2.79, 2.86, 2.89-2.94
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
1.This is an application for review of a decision made by a delegate of the Minister for Home Affairs to take an action under s 140M of the Migration Act 1958 (Cth) (the Act) in relation to the applicant’s sponsorship.

The applicant was approved as a standard business sponsor on 1 September 2016 and 23 May 2018. On 14 June 2021, the delegate decided to bar the applicant from sponsoring more people under the terms of its approved standard business sponsorship under s 140M on the basis that it failed to satisfy its sponsorship obligations; provided false or misleading information; and contravened the law.
On 8 March 2023 the Tribunal wrote to Mr Jonathan Gerges (Mr Gerges), the applicant’s authorised contact person, advising that it had considered all the material before it relating to the application but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 30 March 2023.
The Tribunal rescheduled that hearing at Mr Gerges’ request and on 29 March 2023 invited the applicant to attend a hearing on 20 April 2023. On 17 April 2023 the applicant advised the Tribunal that it did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable it to appear before it.
This matter has therefore been determined on the evidence available to the Tribunal.
6.For the following reasons, the Tribunal has decided to affirm the decision under review.
CONSIDERATION OF CLAIMS AND EVIDENCE
7.The Tribunal had before it a copy of the Departments file. Documents on the Departments file shows Australian Border Force (ABF) commenced monitoring the applicant’s compliance with its sponsorship obligations on 16 December 2019. On 24 March 2020 the delegate required the applicant to provide records and information to which the applicant responded on 21 and 23 April 2020. The ABF issued a notice of intention to take action (NOITTA) on 8 October 2020 to which the applicant responded with written submissions and various documents on 20 October 2020.
8.The applicant gave the Tribunal a copy of the delegate’s decision record with its application for review. The applicant provided written submissions and documents on 26 July 2022.
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?
13.Jonathan Gerges (Mr Gerges) is the owner director of the applicant. The applicant sponsors and employs Mr Gerges’s brother Joseph Gerges (Joseph) in the nominated position of Cook (ANZSCO 351411) as the holder of a Subclass 482 visa. The applicant sponsors and employs Pierre Haddad (Pierre), stepfather of Mr Gerges and Joseph Gerges, in the nominated position of Restaurant Manager (ANZSCO 141111) as a Subclass 457 visa holder.
14.As a result of monitoring the delegate formed the view that the applicant potentially failed to satisfy its sponsorship obligations: reg 2.89; to have provided false and misleading information: reg 2.90; to no longer meet the sponsorship criteria: reg 2.91; and to have contravened the law: reg 2.92. The delegate sent the applicant a notice of intention to take action (NOITTA) on 8 October 2020. On 20 October 2020 the Department received the applicant’s response to the NOITTA.
15.In the present case, the delegate found that the applicant failed to satisfy sponsorship obligations; gave false or misleading information; and contravened the law.
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 the applicant breached its reg 2.89 sponsorship obligations to ensure equivalent terms and conditions of employment in respect of salary payments to Pierre, a Subclass 457 visa holder: reg 2.79; and to ensure Joseph works or participates in the nominated occupation, program or activity: reg 2.86.
Obligation to ensure equivalent terms and conditions of employment: reg 2.79.
The applicant’s offer of employment with Pierre dated 17 May 2019 provides that the applicant will pay Pierre a salary of $65,000 per annum plus superannuation.
The delegate observes that during the assessed period from 14 October 2019 to 9 March 2020 the applicant paid Pierre approximately $22,949.30 nett salary to his account. The payment accords with the terms and conditions detailed in Pierre’s employment contract. The delegate is concerned that Pierre repaid amounts totalling $17,324 to the applicant which the delegate says represents an underpayment of salary to Pierre.
The applicant submits it did not underpay Pierre. The applicant says Joseph acted on its behalf to return the salary amounts to Pierre via Western Union transfers to Pierre’s wife Suzanna Farah; Joseph; and Joseph’s girlfriend Ghazal Kawar. The applicant claims Joseph also withdrew cash which he handed to Suzanna. The applicant claims Joseph has transferred the full amount received from Pierre by virtue of the payments to Suzanna.
The Tribunal acknowledges the delegate’s concern about the plausibility of the applicant’s explanation of why the arrangement is complicated. Notwithstanding family connections the applicant’s method of accounting is prone to suspicion. While the Tribunal is concerned that Pierre was unable to come to a simpler transparent solution to use his money overseas than to return his salary payments to his employer to be forwarded in random amounts to a third party (Joseph) to transfer to Pierre’s wife, the Tribunal is satisfied Pierre received the salary amounts and it was his prerogative how his salary was then distributed.
The Tribunal has considered the evidence. Payroll records support that the salary amounts paid to Pierre, the primary sponsored person, by the applicant accord with the terms and conditions of Pierre’s employment contract and are not less than the annual learnings indicated when the nomination was approved.
The Tribunal is satisfied Pierre’s earnings are not less than the earnings an Australian citizen or an Australian permanent resident would receive for performing equivalent work in the same workplace.
Obligation to ensure primary sponsored person works or participates in nominated occupation, program or activity: reg 2.86.
24.The applicant nominated the occupation of Cook (ANZSCO 351411) and nominated Joseph Gerges has the primary sponsored person to participate in that occupation. On 21 October 2020 Joseph provided a signed letter advising he was granted a Subclass 482 visa on 29 November 2019 and was employed by the applicant as a cook. Joseph acknowledged he operated a few functions over and above his normal duties of a cook. These were undertaken as favours to his elder brother Mr Gerges who works as a FIFO worker, and during Mr Gerges’s spouses first pregnancy. Joseph denies the additional duties are recurring on a regular basis.
25.Joseph’s account statements show various non-wage deposits from the applicant in addition to his salary. The applicant has annotated the additional deposits with labels such as ‘insurance’, ‘credit’, ‘credit to account’, ‘water system’, and ‘lawyer fees’. The delegate notes that between October 2019 and March 2020 more than $40,000 in non-wage transactions from the applicant to Joseph.
26.Mr Gerges provided a signed letter dated 21 October 2020 confirming Joseph is employed as a cook and was requested to undertake certain confidential clerical work while Mr Gerges was absent on FIFO duties and when his pregnant wife needed his attention; and when the restaurant manager (Pierre) is unavailable. Any duties undertaken by Joseph were by way of a ‘favour’.
27.The applicant submits there is no official rule or sponsorship obligation that a brother cannot ask a favour from another brother. Mr Gerges claims he is available as the manager for two out of three weeks due to his FIFO work. Mr Gerges acknowledges Pierre (nominated as Restaurant Manager) spent 160 days off-shore in the 2019 calendar year. Mr Gerges provided an updated submission on 18 July 2022 confirming he works one week on and one week off. Mr Gerges claims he is capable of managing his business and undertaking his paid FIFO employment.
28.The Tribunal finds Joseph, the person sponsored to the nominated position of Cook, was undertaking additional managerial duties that exceed simply helping out during a family members absence. Significant amounts of non-salary funds were deposited by the applicant into Joseph’s personal account between October 2019 and March 2020 with various annotations the Tribunal finds are not related to the occupation of Cook but more likely related to the duties of a manager. The deposits from the applicant to Joseph extended beyond the period Pierre, the nominated Restaurant Manager, was absent from the Australia and after Joseph was granted the Subclass 482 visa.
29.The Tribunal finds the applicant failed to ensure Joseph, the holder of a Subclass 482 visa and the primary sponsored person, worked as a cook and did not work in an occupation for which a related nomination was not approved as required by reg 2.86.
30.Accordingly, the Tribunal is 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).
32.On 24 March 2020 the Department sent the applicant a written notice requesting records and information. Item 5 of the request sought the applicant to advise if it, or a director, has been found by a Court or competent authority to have contravened a Commonwealth, State or Territory Law.
33.Mr Gerges, on behalf of the applicant provided a written response on 31 March 2020. In response to the requested Item 5 Mr Gerges wrote:
Chee Tayeb Pty Ltd. has not been issued with any adverse comments by the Australian Tax Office, WA government agency i.e. Liquor Licensing Authority or the local council. I can confirm that has not been issued to us any court action, as of this date.
34.The Department identified transactions in the applicant’s bank account statements indicating it had paid an infringement notice. The Department requested information about that infringement. In response the applicant produced a copy of a Liquor Infringement Notice issued by the Western Australia Department of Racing, Gambling and Liquor (DORGL) on 10 October 2019. The infringement notice identifies the applicant was penalised $1000 for breaching the Liquor Control Act 1988 by failing to ensure an approved manager is present at its licensed premises on 27 September 2019.
35.The Tribunal is satisfied the infringement notice was issued by a competent authority because the applicant was found by a competent authority to have contravened a State law.
36.The applicant gave misleading information when it claimed it had not been issued when with any adverse comments or any court action.
37.Accordingly, the Tribunal is satisfied that the prescribed circumstance in reg 2.90 exists for the purpose of s 140M of the Act.
Contravention of law by sponsor: reg 2.92(2)
The Minister may take one or more of the actions in s 140M if the sponsor has been found by a court or competent authority to have contravened a Commonwealth, State or Territory law: reg 2.92(2). The term ‘‘competent authority’’ is defined for these purposes in reg 2.57 and means a Department or regulatory authority that administers or enforces a law that is alleged to have been contravened.
39.A Liquor Infringement Notice issued by the Western Australian Department of Racing, Gambling and Liquor (DORGL) on 10 October 2019 identifies the applicant was penalised $1000 for breaching s 100(2)(a) of the Liquor Control Act 1988 by failing to ensure an approved manager was present at its licensed premises on 27 September 2019.
40.The Tribunal finds the applicant has been found by DORGL, a competent authority to have contravened the Liquor Control Act, a Western Australian state law.
41.Accordingly, the Tribunal is satisfied that the prescribed circumstance in reg 2.92(2) 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.
In considering what action to take, the Tribunal has had regard to the prescribed criteria, as extracted in the attachment to this decision.
Reg 2.89 Failure to comply with sponsorship obligation
The criteria to be considered where there is a failure to comply with a sponsorship obligation are set out in reg 2.89(3).
a. the past and present conduct of the person in relation to Immigration.
The applicant has not previously been monitored. There is no information before the Tribunal which suggests that the applicant has failed to engage with the Department during the monitoring process, or that they have not previously been cooperative with the Department.
b.the number of occasions on which the person has failed to satisfy the sponsorship obligation.
Other than the breaches identified in this decision there is nothing before the Tribunal which indicates that the applicant has failed to satisfy sponsorship obligations on other occasions.
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 does not accept the applicant’s submissions that Joseph, the holder of a Subclass 482 visa and nominated to the occupation of Cook, was simply helping out as a family member. The applicant transferred a significant amount of money into Joseph’s personal bank account beyond the salary amounts he was contracted to receive. The annotations to those transfers indicate Joseph was involved in legal and insurance matters which are not part of his agreed duties as a Cook. Although the applicant minimises the action, it is clear Mr Gerges is not available to be a full-time manager for the applicant because of his FIFO work.
The Tribunal considers the applicant’s failure to ensure that Joseph, the holder of a Subclass 482 visa worked only in the nomination occupation of Cook to be significant.
d.The period of time over which the person has been an approved sponsor
The applicant was first approved as a standard business sponsor on 1 September 2016 and was reapproved on 23 May 2018.
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 applicant’s failure to satisfy this sponsorship obligation may result in Joseph being considered to have worked outside of his nomination occupation which would be a breach of the conditions placed on his Subclass 482 visa. Such a breach may result in Joseph’s these are being cancelled. Further Pierre’s extended absences from the nominated occupation of Restaurant Manager and the capacity of Joseph to fulfil the tasks in his absence suggests there may not a genuine need for the restaurant/café manager position to be filled by Pierre, which could result in his Subclass 457 visa being cancelled.
f.whether, and the extent to which, the failure to satisfy the sponsorship obligation was intentional, reckless or inadvertent.
The applicant submits the failure to satisfy the sponsorship obligation occurred because it was simply a person helping out his brother. The onus is on the applicant to understand its sponsorship obligations with which it has to comply to become an approved sponsor. The Tribunal considers the failure to satisfy the sponsorship obligation was reckless.
g.whether, and the extent to which, the person has cooperated with Immigration, including whether the person informed Immigration of the failure.
There is no indication that the applicant has not cooperated with Immigration during the monitoring process. The applicant’s failure to comply with its sponsorship obligations was discovered following the Department’s analysis of the applicant’s account statements.
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.
The applicant does not acknowledge it has failed in its sponsorship obligation by allowing Joseph to undertake duties in an occupation other than that approved at nomination. There is no indication the applicant has taken any steps to rectify its failure to satisfy the sponsorship obligation.
i.the processes (if any) the person has implemented to ensure future compliance with the sponsorship obligation.
There is no indication before the Tribunal the applicant has implemented any processes to ensure future compliance with its sponsorship obligations.
j.the number of other sponsorship obligations that the person has failed to satisfy, and the number of occasions on which the person has failed to satisfy other sponsorship obligations.

The delegate has identified no other sponsorship obligation failures.
k.any other relevant factors.
The applicant has been approved sponsor since 2016. Reminders of the sponsorship obligations are provided with each of the two sponsorship applications it has made.
Reg 2.90 Provision of false or misleading information
The criteria to be considered where the applicant has provided false or misleading information are set out in reg 2.90(3).
a.the purpose for which the information was provided.
The false information was given to the Department in response to the Department’s formal written request for information.
b.the past and present conduct of the person in relation to Immigration.
The applicant has not previously been monitored. There is no information before the Tribunal which suggests that the applicant has failed to engage with the Department during the monitoring process, or that they have not previously been cooperative with the Department.
c.the nature of the information.
The applicant claimed:
Chee Tayeb Pty Ltd. has not been issued with any adverse comments by the Australian Tax Office, WA government agency i.e. Liquor Licensing Authority or the local council. I can confirm that has not been issued to us any court action, as of this date.
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 applicant’s provision false information has not had a direct or indirect impact on another person.
e.whether the information was provided in good faith.
The applicant claims it viewed the offence is a minor offence similar to a road traffic fence rather than a violation of the Migration rules. DORGL did not issue any warning or caution that the offence was serious enough to warrant the revocation of the applicant’s liquor licence. The applicant claims DORGL did not make any adverse comment of illegal practices when issuing infringement notice. The applicant says its failure to advise was a simple error.
The Tribunal considers the issue of an infringement notice by an appropriate authority is sufficient warning or caution that an offence is serious. The applicant does not acknowledge the infringement notice is anything more than a fine for a minor issue. The Tribunal is not satisfied the information was provided in good faith.
f.whether the person notified Immigration immediately upon discovering that the information was false or misleading.
The Department identified the applicant had potentially provided false information by analysing the applicant’s bank account statements provided as a result of a formal written request.
g.any other relevant factors.
65.The Tribunal did not take into account other relevant factors.
2.92       Contravention of law
66.The criteria to be considered when there has been a contravention of the law are contained in reg 2.92(3)
a.    the past and present conduct of the person.
67.The applicant has not previously been monitored. There is no information before the Tribunal which suggests that the applicant has failed to engage with the Department during the monitoring process, or that they have not previously been cooperative with the Department.
a.    the nature of the law that the person has contravened.
68.The applicant was issued an infringement notice for contravening s 100(2)(a) of the Liquor Control Act 1988 by failing to ensure an approved manager was present at its licensed premises on 27 September 2019. The Liquor Control Act 1988 is Western Australian law administered by the Department of Racing, Gaming and Liquor for the oversight of the responsible service of alcohol in licensed establishments.
c.     the gravity of the unlawful activity.
69.The Tribunal does not consider the failure of the applicant to have an approved manager present while serving alcohol at its licensed premises, as required by its liquor licence, to be insignificant or minor. The contravention however does not involve Migration law.
d.    any other relevant factors.
70.The Tribunal did not take into account other relevant factors.
71.Considering the totality of the circumstances and having regard to the prescribed criteria the Tribunal finds that the action mentioned in s 140M(1)(c) to bar the applicant from sponsoring more people under the terms of its approved standard business sponsorship from 14 June 2021 until 13 June 2022 should be taken.
DECISION
72.The Tribunal affirms the decision under review.
P. Maishman
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.
…
2.92   Contravention of law
…
(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 circumstances mentioned in subregulation (2) are:
(a)    the past and present conduct of the person; and
(b)    the nature of the law that the person has contravened; and
(c)     the gravity of the unlawful activity; and
(d)    any other relevant factors.
…

[2023] AATA 2614

3 August 2023

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

Natural Justice

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