City Taxi Care Pty Ltd (Migration)
[2021] AATA 3105
•6 July 2021
City Taxi Care Pty Ltd (Migration) [2021] AATA 3105 (6 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: City Taxi Care Pty Ltd
CASE NUMBER: 1826906
HOME AFFAIRS REFERENCE(S): OPF2017/16645 OPF2018/11881 OPF2018/11883 OPF2018/11884 OPF2018/11886 OPF2018/11887
MEMBER:Cathrine Burnett-Wake
DATE:6 July 2021
PLACE OF DECISION: Melbourne
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.
Statement made on 6 July 2021 at 10:40am
CATCHWORDS
MIGRATION – cancellation of the sponsorship – sponsorship bar – primary sponsored person does not work in the nominated occupation -visa holder had not been working for the business – allegations have not been reasonably established – applicant has substantially complied with r.2.86 –decision under review set asideLEGISLATION
Migration Act 1958, s 140M
Migration Regulations 1994, rr 2.79, 2.86, 2.89, 2.90CASES
Briginshaw v Briginshaw [1938] 60 CLR 336STATEMENT 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 (the Act) in relation to the applicant’s sponsorship.
The applicant has been approved three times as a standard business sponsor. The applicant was first approved on 16 May 2012, with two more subsequent approvals. The second was on 16 June 2015 and the third and last approval was on 16 May 2018.
On 28 August 2018, the delegate decided to cancel the standard business sponsorship approval and impose a 4-year bar under s140M on the basis that the applicant failed to meet r.2.89 of the Migration Regulations 1994 (the Regulations), ‘Failure to satisfy sponsorship obligation’, because of the Department’s findings that the applicant had failed to satisfy r.2.86 Obligation to ensure primary sponsored person works or participates in nominated occupation, program or activity and r.2.90 Provision of false or misleading information.
The Notice of Decision also discusses a possible breach of r.2.79, ‘Obligation to ensure equivalent terms and conditions of employment.’ However, no action was taken by the Department on this point and they did not pursue or make a finding on it as a failure of sponsorship obligations by the applicant as per r.2.89. As such, the Tribunal is not addressing this in its findings or decision.
Mr Harpreet Grewal, Director and sole shareholder of City Taxi Care Pty Ltd, appeared before the Tribunal on 7 April 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Rinku Rinku, Mr Anil Kumar, Mr Bajinda Singh, Ms Shivani Chawla and Mr Verma Vinay, all employees, or former employees of the applicant.
The applicant was represented in relation to the review by its lawyer Mr John Kotsifas. The representative attended the Tribunal hearing.
Mr Grewal stated at hearing that the reason for lodging the review application regarding the sponsorship cancellation and bar was twofold. Firstly, because he did not believe he had done anything wrong and had acted lawfully at all times and the Department had made its decision based on one disgruntled employee’s statements and not conducted a proper investigation and secondly, because there were pending visa applications for dedicated employees: Ms Chawla, Mr Rinku and Mr Kumar and the sponsorship cancellation and bar could be considered adverse information impacting their applications.
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.
Evidence of Mr Grewal at hearing
Mr Grewal gave evidence to the Tribunal that his business was first established in 2008 and operated as a sole trader until the business structure changed and City Taxi Care Pty Ltd was incorporated in 2011. At the time of incorporation, the business was operating out of a property in Brunswick with a fleet of 10 taxis, 12 drivers and 2 mechanics. Not only did the business operate a fleet of its own taxis, it also operated a workshop for the maintenance and repair of taxis. In addition to servicing and repairing its own taxis, the vehicle repair and maintenance service component of the business was also external facing and specialised in providing services to other taxi companies operating in the Melbourne metropolitan area.
Mr Grewal gave evidence to the Tribunal that after incorporation, the business experienced rapid growth. In 2012, he had built the fleet to 25 taxis and 4 mechanics. In 2013, the fleet was at 35 with 5 mechanics in addition to office staff managing taxi rosters, administration, and accounts. By 2014 he had more than 50 vehicles in his fleet and had 4 individuals on 457 visas supporting his business.
Mr Grewal gave evidence that because of the growth of his business the premises in Brunswick was too small to operate from. As such, he opened a panel repair business specialising in the repair of taxis operating out of an industrial unit in Tullamarine. For a time, all mechanical work was conducted in Brunswick and the panel work was conducted through the related company operating in Tullamarine.
Mr Grewal outlined that in 2017 an industrial unit adjacent to his panel repair company became available. As the Brunswick property was not sufficient for his needs, he decided to sell the Brunswick property and move the mechanical repair business to Tullamarine. However, the unit that they had agreed to lease caught fire prior to them moving in and when they took over the lease in October 2017 there were ongoing electrical faults within the workshop because of the fire. Mr Grewal told the Tribunal that it took until May 2018 to be fully resolved. Mr Grewal outlined that during the October 2017 to May 2018 period they were operating between the two premises as they could not fully transition until the electrical faults were fully rectified. Mr Grewal explained that the power would short circuit and could not drive the larger equipment they had, such as the vehicle hoist. They could however undertake smaller routine maintenance and repairs which did not require vehicles to be lifted.
Mr Grewal outlined to the Tribunal that on 29 November 2017 the Department conducted a site visit at the Brunswick location and asked questions relating to several of his staff members including Ms Chawla, Mr Verma, Mr Kumar, Mr Rinku and Mr Singh. He summarised to the Tribunal that these questions pertained to the duties, salaries and hours they were working. Several of these employees were not present at the Brunswick premises, but were working in Tullamarine. Mr Grewal invited the Department officers to accompany him to the Tullamarine site to verify his statements about their working location, however, they declined. Mr Grewal told the Tribunal a further site visit was undertaken on 23 January 2018 at both the Tullamarine and Brunswick workshops.
Mr Grewal explained that on 29 November 2017 he was aware that the Department officers spoke to Mr Amit Sharma, an employee of his at the time, and that Mr Sharma alleged that Ms Chawla worked for the company but undertook work associated with payrolls and accounts and not as a motor mechanic, and that further allegations were made that Mr Kumar and Mr Singh were not working as motor mechanics.
Mr Grewal told the Tribunal he was extremely upset that this whole cancellation was based on allegations of one person that were not substantiated with any evidence and that the allegations had been disputed by numerous people, yet the Department had chosen to take one person’s claims over multiple other people’s.
Mr Grewal told the Tribunal that Mr Sharma was a difficult employee and caused lots of tension in the workshop. Mr Grewal told the Tribunal that Mr Amit did not like taking directions, and that his attitude towards Ms Chawla who was his superior caused a lot of strain within the working environment. Mr Grewal also told the Tribunal that he was aware Mr Sharma would also pick fights and argue with other employees as there had been complaints about his behaviour. Mr Grewal told the Tribunal that he was aware Mr Sharma was also upset as he had not been given promotions within the business when others had and would get angry when complaints against him were raised or if his behaviour was brought into question. Mr Grewal told the Tribunal that Mr Sharma left the business and things improved greatly after his departure.
Mr Grewal told the Tribunal that he had reviewed the notes on the Department’s file pertaining to the site visit and reiterated that the information given by Mr Sharma was incorrect and that he had proven this. Mr Grewal highlighted that information Mr Sharma gave about employees, in particular claims that Numan, Adnan and Shakeeb were current motor mechanics was not accurate, as they had all left his employment earlier in 2017 and that they had been employed as taxi drivers. Mr Grewal told the Tribunal that he had given documentary evidence already to the Department that they were working as taxi drivers which further proves Mr Sharma’s verbal claims were untrue.
Mr Grewal told the Tribunal that Mr Singh and Ms Chawal had also successfully gone through the Trades Recognition Australia Job Ready Skills Assessment Program as Motor Mechanics through employment at his business, which he stated further demonstrates that they were working as Motor Mechanics and have the necessary skills, as assessors from the government watched them in person and assessed them on their competencies.
Mr Grewal told the Tribunal that although his business had been impacted by COVID, he had been able to survive with the assistance of job keeper and that this year things were picking up again and he expected that with time business would return to pre-pandemic levels and he was committed to supporting the visa applicants as they were valuable employees and it was very difficult to find good, reliable workers with appropriate skills.
In addition to Mr Grewal’s evidence, the Tribunal also took sworn evidence from Mr Rinku, Mr Kumar, Mr Singh, Ms Chawla and Mr Vinay. All evidence was taken in isolation, and the witnesses did not hear evidence which came before them. The verbal evidence provided by each witness was consistent with that of Mr Grewal, each other, and the supporting written evidence. In summary, each witness spoke about their roles within the business, and disputed Mr Sharma’s claims.
Does a circumstance for the taking of an action exist?
In the present case, the delegate found that Ms Shivani Chawla was not working as a motor mechanic which was her nominated position as the holder of a subclass 457 visa. The delegate also found Mr Anil Kumar and Mr Barjinder Singh were not working as motor mechanics. The findings of the delegate were based on verbal claims of Mr Sharma from a conversation that occurred on 29 November 2017 between Mr Sharma, who worked as a motor mechanic at the Brunswick site, and Department officers that visited the site on that day.
Mr Grewal, along with all 5 of the employees named in the Department’s decision record; Ms Chawla, Mr Verma, Mr Kumar, Mr Rinku and Mr Singh have provided written statements and verbal evidence under oath that they all worked as full time motor mechanics and that the allegations made by Mr Sharma are not true.
Mr Grewal maintains that the information Mr Sharma gave to the Department is not correct. All five employees maintain that all of them worked as motor mechanics with the employer.
The Tribunal has before it evidence provided by the applicant in the form of PAYGs, bank statements showing salary deposits, ATO tax assessment notices, contracts of employment and other employment records for Ms Chawla, Mr Kumar and Mr Singh. These records reflect they were employed as motor mechanics.
Mr John Kotsifas, the lawyer representing the applicant, provided written submissions. He made the following arguments for the Tribunal’s consideration:
In migration matters before the Tribunal a person who bears a burden of proof may meet it by producing to the Tribunal evidence and other material that is relevant and probative and that satisfies it of the existence or non-existence of relevant factual issues on the balance of probabilities rather than simply on the basis of possibilities.
In Briginshaw v Briginshaw {1938} 60 CLR 336 the High Court of Australia, held that in cases involving the civil standard of proof, where grave and serious allegations have been made, a court cannot come to a 'reasonable satisfaction' that the allegation has been established on the balance of probabilities unless the decision maker 1ee/s an actual persuasion', feels 'comfortably satisfied' and is not 'oppressed by reasonable doubt'.
It is submitted that the civil standard of proof applies in this case and the tribunal only needs to be satisfied on the balance of probabilities that the three employees in question worked as motor mechanics for the employer.
The tribunal should be troubled by the information Sumit Sharma provided to the department officers that Numan, Adnan and Shakeeb worked with him a motor mechanics when there is evidence before the tribunal to suggest otherwise. For this reason, it is submitted that the tribunal should give little weight to the allegations of Sumit Sharma as it cannot be satisfied on the balance of probabilities that Shivani Chawla, Anil Kumar and Barjinder Singh did not work in their nominated occupations of motor mechanics. The tribunal can comfortably come to this conclusion having balanced the weight of evidence given by each of the witnesses as opposed to the departmental notes of its conversation with Amit Sharma on 29 November 2017.
Failure to satisfy a sponsorship obligation: r.2.89
The Minister may take one or more of the actions in s.140M if satisfied the sponsor has failed to comply with a sponsorship obligation referred to in Division 2.19 of the Regulations: r.2.89(2).
The Tribunal has considered the circumstances in which the Department formed its conclusions, which was from the interview with Mr Sharma on 29 November 2017.
The Tribunal has formed a different view to that of the Department. The Tribunal has had the opportunity to obtain evidence not available to the Department at the time of making its decision. The Tribunal also had the opportunity to question Mr Grewal about his business operations and hear evidence from Ms Chawla, Mr Kumar and Mr Singh regarding their employment as well as supplementary evidence from Mr Rinku and Mr Vinay.
The Tribunal found the verbal evidence from Mr Grewal and the other witnesses to be consistent and credible.
The Tribunal is satisfied that the narrative put forward by the applicant regarding his gradual change of business location from Brunswick to Tullamarine and the issues with the electrical wiring is consistent and supported by documentary evidence and verbal evidence from witnesses.
The Tribunal also notes the positive Job Ready Skills Assessments in the occupation of Motor Mechanic provided for both Ms Chawla and Mr Barjinder. These skill assessments support that Ms Chawla and Mr Barjinder were working as Motor Mechanics with City Taxi Care Pty Ltd.
The Tribunal, also relevantly notes the submissions put forward by John Kotsifas, and the reference to Briginshaw v Briginshaw {1938} 60 CLR 336.
The Tribunal is of the view that the allegations made by Mr Amit Sharma have not been reasonably established as per the principals in Briginshaw v Briginshaw {1938} 60 CLR 336.
In reaching its findings the Tribunal gives more weight and relies on the documentary evidence provided by the applicant: including payslips, employment contracts, bank statements and the skills assessments. In addition to the documentary evidence, the Tribunal also gives more weight to the verbal evidence provided at hearing from Mr Grewal and other witnesses.
The Tribunal is satisfied in this instance that the applicant has substantially complied with r.2.86 Obligation to ensure primary sponsored person works or participates in nominated occupation, program or activity, and that Ms Shivani Chawla, Mr Anil Kumar and Barjinder Singh were all working as Motor Mechanics.
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).
Given the Tribunal’s findings in regard to r.2.86, the Tribunal also finds that there was no breach of Regulation 2.90 -Provision of False or Misleading Information, as the Departments’ findings of the breach under this regulation was on the basis of them not accepting the evidence of Mr Grewal, which the Tribunal has accepted.
Accordingly, the Tribunal is not satisfied that the prescribed circumstance in reg 2.90 exists for the purpose of s 140M of the Act.
In conclusion, the Tribunal is not satisfied that the prescribed circumstance in r.2.89 or reg 2.90 exists for the purpose of s.140M of the Act.
Action to be taken
As the Tribunal finds that none of the circumstances for s.140L(1)(a) exist, it follows that the power to take an action under s.140M does not arise.
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.
Cathrine Burnett-Wake
MemberATTACHMENT – 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.
…
Key Legal Topics
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Immigration
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Administrative Law
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Statutory Interpretation
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Judicial Review
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Procedural Fairness
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