Cyber Power Pty Ltd (Migration)

[2023] AATA 3483

Cyber Power Pty Ltd (Migration) [2023] AATA 3483 (6 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Cyber Power Pty Ltd

REPRESENTATIVE:  Mr Rick Gunn

CASE NUMBER:  2204481

HOME AFFAIRS REFERENCE(S):          OPF2020/14056

MEMBER:P. Maishman

DATE:6 October 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision under review.

Statement made on 06 October 2023 at 3:09pm

CATCHWORDS

MIGRATION – sponsorship bar – standard business sponsor – failed to satisfy sponsorship obligations, provided false or misleading information and no longer met sponsorship criteria – one employee paid less than contracted salary – COVID restrictions and flexible work hours – unpaid leave for training and because annual leave not yet accrued – skills, qualifications and employment background necessary for position – regular unpaid leave inconsistent with claim to require full-time employee – no notification of appointment of new director – employee not working in nominated occupation – workplace licence not required for position – no action by licencing authority – intra-corporate transfer of employee to company deregistered at the time – adverse information about person associated with applicant – director’s wife the director of an insolvent company – intentional, reckless and severe failure of obligations with direct and significant impact on workers – other sponsorship obligation failures identified by delegate – underpayment claimed to have been rectified – flexible hours policy removed – company registration reinstated and false information provided inadvertently – bar period now passed – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 140L(1)(a), 140M, 375A

Migration Regulations 1994 (Cth), rr 1.13A, 1.13B, 2.59(g), 2.79(3)(b), 2.84(3)(e), (6), 2.86, 2.89(3), 2.90(2), 2.91(2)

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.

1. The applicant was approved as a standard business sponsor on 29 March 2019. On 14 March 2022, the delegate decided to bar the applicant from sponsoring more people under the terms of the approved standard business sponsorship until 13 March 2023 under s 140M on the basis that it failed to satisfy its sponsorship obligations; provided false or misleading information; and no longer met the sponsorship criteria.

2. Mr Shibu John Lawrence John, as the applicant’s previous Director, appeared before the Tribunal on 10 February 2023 to give evidence and present arguments. The Tribunal held a combined hearing with the applicant’s associated business Cyber Computer Recycling & Disposal Pty Ltd  of which Mr Lawrence John described himself as the current Director and has an application before the Tribunal for similar issues (AAT No. 2207164). The applicant’s representative confirmed Mr Lawrence John was authorised to speak on behalf of both enterprises. The Tribunal also received oral evidence from Mr Feros Padinjakkara Pappachan, Mr Cinto Varghese and Sudhin Kuniyil.

3. The applicant was represented in relation to the review.

   5.For the following reasons, the Tribunal has decided to affirm the decision under review.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The Tribunal had before it a copy of the Departments file. Attached to the file are non-disclosure certificates issued pursuant to s 375A of the Act dated 11 April 2022 and 27 October 2022. Documents on the Departments file shows Australian Border Force (ABF) commenced monitoring the applicant’s compliance with its sponsorship obligations on 23 November 2020. On 18 January 2021 and 15 February 2021, the delegate required the applicant to provide records and information to which the applicant responded on 30 January 2021 and 27 February 2021. The ABF issued the applicant a notice of intention to take action (NOITTA) on 24 August 2021 and the applicant responded with written submissions and various documents on 4 October 2021.

5. 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 28 March 2022, 7 April 2022, and 3 February 2023.

   Non-Disclosure Certificates – s 375A

6. The Tribunal sent the applicant a copy of the non-disclosure certificates on 2 November 2022 and invited the applicant to comment on its validity. The applicant submitted the certificates contain insufficient information of what the documents relate to establish that would support a determination that the release of the information is against the public interest.

   9.The Tribunal considered the validity of the certificate. The certificate claims release of identified documents is contrary to the public interest because it would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would be likely to prejudice the effectiveness of those methods. The certificates are signed and dated by a delegate.

7. The Tribunal observes the documents relate to the Department’s methods of investigation. 

8. The Tribunal is satisfied however that the documents identified in the certificate would, if they were released, 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 is satisfied the certificates are valid.

9. The Tribunal does not have the discretion to release documents protected by a nondisclosure certificate issued pursuant to s 375A of the Act. The Tribunal explained to the applicant it does however have an obligation to ensure it is aware of any adverse information the Tribunal would rely on to make its decision and to give them an opportunity to comment on that information.

10. The Tribunal is satisfied the information in the documents protected by the nondisclosure certificate is disclosed in the delegate’s decision record which the applicant gave the Tribunal with her application for review.

    Legislation

11. Certificates under Sections 140K, 140L and 140M of the Act provide for the imposition of sanctions on approved sponsors in certain circumstances.

12. 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.

13. For these purposes, the circumstances are prescribed in regs 2.89 to 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.

14. 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?

    18.In the present case, the delegate found the applicant failed to satisfy its sponsorship obligations; provided false or misleading information; and no longer met the sponsorship criteria.

    Failure to satisfy a sponsorship obligation: reg 2.89

15. 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).

    Obligation to ensure equivalent terms and conditions of employment: reg 2.79.

16. The delegate found the applicant paid its sponsored employee, Feros Padinjakkara Pappachan, less salary than the nominated and contracted annual salary: reg 2.79(3)(b).  

17. The Department’s file contains a signed copy of the applicant’s employment contract with Mr Padinjakkara Pappachan signed on 22 July 2019. The contract details Mr Padinjakkara Pappachan’s terms and conditions of employment to include annual gross salary of $55,000 per annum; ordinary hours of work of 38 hours per week between Monday to Friday; and that his employment would commence five business days after his arrival in Australia with a valid work permit. Mr Padinjakkara Pappachan was the holder of a Subclass 482 visa from 7 June 2019 to 7 June 2022. Payslips and employment records indicate Mr Padinjakkara Pappachan commenced casual employment on 19 August 2019. In the year ending 30 June 2020 Mr Padinjakkara Pappachan received gross salary of $29,645.   

18. Mr Joe Thomas, in his capacity as a director of the applicant, responded to the NOITTA dated 15 February 2021 in writing on 25 February 2021. Mr Thomas confirmed the working hours of Mr Feros were reduced from 38 hours to 15 hours per week from 9 April 2020 due to coronavirus pandemic lockdowns. Mr Thomas states “it is very evident that the reduced hours were in effect for two months only.” On 12 November 2021 Mr Thomas submitted a claim for ministerial intervention and reiterated the applicant amended Mr Padinjakkara Pappachan’s working hours in line with government policy during Covid-19. Mr Thomas says Mr Padinjakkara Pappachan was employed in accordance with the applicant’s flexible work policy which provides for him to work variable hours averaging 38 hours.

19. The applicant’s then registered migration agent subsequently submitted on 4 October 2021 Mr Thomas’s contention on 25 February 2021 that Mr Padinjakkara Pappachan was subject to working hours reduced from 38 to 15 for only two months was a miscommunication. The applicant’s agent submits the comment was meant to convey a temporary reduction to 15 hours was for two months only, then increased to between 15 to 38 hours depending on workload. The submission alludes to a flexible working hours policy providing for excess hours worked to be taken as time off in lieu. At hearing Mr Padinjakkara Pappachan confirmed the applicant’s contention he undertook unpaid training from 25 August to 9 September 2019 to obtain relevant safety-related licenses and took time off December 2019 to organise his family to travel.

20. The applicant gave the Tribunal a submission from APTE Accounting, an organisation contracted to provide payroll services to the applicant, dated 23 March 2022. APTE accounting provided the following summary of Mr Padinjakkara Pappachan’s timesheet:  

Date	Pay	Hours	Annual Leave Accrued	Reason
19/08/2019  - 25/08/2019	1057.54	38	0	Casual Employment (No paperwork/hours provided)- Good gesture payment for new employee during induction period
26/08/2019  - 08/09/2019	0	0	0	Approved Unpaid leave(76 hrs) - Unvailability of accrued Annual Leave
09/09/2019  - 15/09/2019	1057.54	38	2.9231
16/09/2019  - 22/09/2019	836	30	5.2338	Approved Unpaid leave (7.96 hrs)- Unavailability of accrued Annual Leave
23/09/2019  - 29/09/2019	1057.54	38	8.1569
30/09/2019  - 06/10/2019	1057.54	38	11.08
07/10/2019  - 13/10/2019	1057.54	38	14.0031
14/10/2019  - 20/10/2019	1057.54	38	16.9262
21/10/2019  - 27/10/2019	834.9	30	19.2339	Approved Unpaid leave(8 hrs)- Employee requested unpaid leave to accrue Annual Leave at a later date reflected below(18/11/19 to 01/12/19)
25/10/2019- 03/11/2019	0	0	19.2339	Approved Unpaid leave(38 hrs) - Unavailability of accrued Annual Leave
04/11/2019  - 10/11/2019	1,269.05	45.6	22.7416
11/11/2019  - 17/11/2019	1057.54	38	25.6647
18/11/2019  - 24/11/2019	1057.54	38	-9.4122	Approved Annual Leave approved to bring family from India
25/11/2019  - 01/12/2019	1057.54	-44.4891
02/12/2019- 15/12/2019	0	0	-44.4891	Approved Unpaid leave (76 hrs.) - Unavailability of accrued Annual Leave
16/12/2019  - 22/12/2019	1057.54	38	-41.566
23/12/2019  - 29/12/2019	846.03	30.4	-39.2275	Approved Unpaid leave (7.6 hrs.) - Unavailability of accrued Annual Leave
30/12/2019  - 05/01/2020	423.02	15.2	-38.0583	Approved Unpaid leave (22.8 hrs.) - Unavailability of accrued Annual Leave
06/01/2020  - 12/01/2020	846.03	30.4	-35.7198	Approved Unpaid leave (7.6 hrs.) - Unavailability of accrued Annual Leave
07/01/2020	2000	0	Goodwill Payment for Family Support
13/01/2020  - 19/01/2020	1057.54	38	-32.7967
20/01/2020  - 26/01/2020	423.02	15.2	-31.6275	Approved Unpaid leave (22.8 hrs.) - Unavailability of accrued Annual Leave
27/01/2020  - 02/02/2020	1057.54	38	-28.7044
03/02/2020  - 09/02/2020	634.52	22.8	-26.9506	Approved Unpaid leave (15.2 hrs.) - Unavailability of accrued Annual Leave
10/02/2020  - 16/02/2020	846.03	30.4	-24.6121	Approved Unpaid leave (7.6 hrs.) - Unavailability of accrued Annual Leave
17/02/2020  - 23/02/2020	846.03	30.4	-22.2736	Approved Unpaid leave (7.6 hrs.) - Unavailability of accrued Annual Leave
24/02/2020  - 01/03/2020	634.52	22.8	-20.5198	Approved Unpaid leave (15.2 hrs.) - Unavailability of accrued Annual Leave
02/03/2020  - 08/03/2020	634.52	22.8	-18.766	Approved Unpaid leave (15.2 hrs.) - Unavailability of accrued Annual Leave
09/03/2020  - 15/03/2020	1057.54	38	-15.8429
16/03/2020  - 22/03/2020	423.02	15.2	-14.6737	Approved Unpaid leave (22.8 hrs.) - Unavailability of accrued Annual Leave
23/03/2020  - 29/03/2020	634.52	22.8	-12.9199	Approved Unpaid leave (15.2 hrs.) - Unavailability of accrued Annual Leave
30/03/2020  - 05/04/2020	0	0	-12.9199	Approved Unpaid leave (38 hrs.) - Unavailability of accrued Annual Leave

1. The Tribunal observes the table covers a 33 week period which equates to 1254 salary hours (i.e. 33 wks x 38 hrs).  The ‘hours’ column indicates the applicant claimed/was paid 820 work hours in that period. The period covered concludes prior to the applicant advising Mr Padinjakkara Pappachan in writing on 9 April 2020 his hours were being reduced in line with government policy.

2. The applicant’s representative submitted on 3 February 2023 Mr Padinjakkara Pappachan was scheduled to commence work on 22 July 2019 as an Award and Agreement Free employee and so his conditions did not attract an overtime loading and his hours can be averaged. It is submitted Mr Padinjakkara Pappachan did not commence employment until 19 August 2019 because of the late submission of paperwork. Mr Padinjakkara Pappachan took unpaid leave from 25 August 2019 to 9 September 2019 and during December 2019 to relocate his family from India to Australia.

3. Mr Padinjakkara Pappachan gave oral evidence that if he does not work he does not get paid. He told the Tribunal his hours balance out over time.

4. Mr Padinjakkara Pappachan’s contract of employment with the applicant stipulates he will work 38 hours per week in return for a salary of $55,000 per annum. Clause 8.3 of the contract suggests the contracted salary precludes a number of legal entitlements including, relevantly, a requirement to pay a minimum hourly rate for each hour worked.  

5. The Tribunal attributes no weight to the statements of Mr Joe Thomas that Mr Padinjakkara Pappachan’s worked reduced hours for only two months during the 2020 financial year because of COVID-19. The Tribunal does not accept Mr Thomas’s submission the applicant provided a flexible hour’s policy. It is clear from the evidence Mr Padinjakkara Pappachan was not employed or reimbursed for 38 hours per week in accordance with the terms of his contract from the time he commenced employment, nor did his hours ‘balance out’ over the 33 week period. Mr Lawrence John told the Tribunal they select employees based on their resume, but the standards are not up to Australian standard so they require additional training.  

6. It is of concern to the Tribunal Mr Padinjakkara Pappachan required unpaid leave to undertake training a week after commencing the position. The general criteria for the grant of temporary skills shortage visas, as applicable to Mr Padinjakkara Pappachan, require that he has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.

7. The Tribunal does not accept the submission the applicant continuously granted unpaid leave on Mr Padinjakkara Pappachan’s request, aside from his request for leave to arrange his family to immigrate. The applicant’s nomination of the occupation was made on the basis that it had a genuine need to engage a person in a full time position. The applicant’s submission that Mr Padinjakkara Pappachan was regularly allowed unpaid is inconsistent with its claim to require a full time employee to fill the position.    

8. The applicant reimbursed Mr Padinjakkara Pappachan for 820 hours in the 33 week period from 19 August 2019 to 5 April 2020. Accepting unpaid leave periods totalling 6 weeks from 26 August 2019 to 8 September 2019 and the month of December 2019 the applicant should have reimbursed Mr Padinjakkara Pappachan for 1026 hours (27 weeks x 38 hrs).

9. The Tribunal finds the applicant has not ensured Mr Padinjakkara Pappachan’s annual earnings are not less than the annual earnings indicated when the nomination was approved as required by reg 2.79(3)(b).  

   Obligation to provide information to Immigration when certain events occur: reg 2.84.

10. The delegate found the applicant failed to provide relevant information to Immigration about the appointment of Mr Joe Thomas as a director: reg 2.84(3)(e).

11. Regulations 2.84(3)(e) and 2.84(6) require that the applicant must notify Immigration within 28 days if a new director is appointed.   

12. ASIC records indicate Mr Joe Thomas was appointed director of the applicant on 11 December 2020. There is nothing before the Tribunal to suggest the applicant advised Immigration of Mr Thomas’ appointment as a director within 28 days.

13. The applicant does not dispute it failed to notify Immigration within 28 days from when Mr Joe Thomas was appointed as director.

14. The Tribunal finds Mr Joe Thomas was appointed as a director of the applicant on 11 December 2020. The applicant did not meet its obligation to provide information about his appointment has director to Immigration within 28 days as required.  

    Obligation to ensure primary sponsored person works or participates in nominated occupation, program or activity: reg 2.86

15. The delegate formed the view the tasks of the nominated occupation, Electrical Engineering Technician (ANZSCO 312312), required the applicant’s sponsored employee, Feros Padinjakkara Pappachan, to possess an appropriate electrical licence. Mr Padinjakkara Pappachan does not hold an electrical licence and the delegate found he could not be undertaking the stated duties at the skill level listed so he could not fulfil his nominated role. The delegate found the applicant failed to ensure the sponsored person worked in the nominated occupation: reg 2.86.

1. The applicant’s advertising material for the position does not specify any formal qualifications are required. The Tribunal acknowledges the delegates concern the applicant presented amended tasks when obtaining advice from the Department of Mines, Industry, Regulation and Safety (DMIRS) which is responsible for administration of licencing requirements, however DMIRS advice is that no licence is required to work on unpowered circuits.

2. The applicant submits Mr Padinjakkara Pappachan plans and oversees the circuits but does not work on live circuits. Mr Padinjakkara Pappachan oversees qualified electricians who undertake any work on live circuits.      

3. The Tribunal observes the applicant has not indicated the position requires a licenced electrician. There is no evidence before the Tribunal that any action has been taken by the licencing authority for work being performed by an unlicenced operator, when a licence is required. The Tribunal attributes weight to the applicant’s claim that Mr Padinjakkara Pappachan does not work on live circuits so does not require a licence.

4. The Tribunal is not satisfied the applicant has failed its obligation to ensure the sponsored person worked in the nominated occupation only.

5. In summary, the Tribunal finds the applicant failed its sponsorship obligations prescribed in reg 2.79 and reg 2.84.    

6. 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

7. 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).

8. The delegate says the applicant provided false or misleading information when it declared on its 19 February 2021 nomination application that its nominee was presently working for Ausiris Energy Pty Ltd. Mr Joe Thomas as director of both Ausiris Energy Pty Ltd and Cyber Energy Pty Ltd provided a letter dated 18 February 2021 authorising the intra-corporate transfer of the nominee. Copies of the ASIC business registration extract provided with Mr Thomas’s letter show that Ausiris Energy Pty Ltd was deregistered on 30 August 2020.

9. On 4 October 2021, the applicant submitted it did not know of the deregistration of Ausiris Energy Pty Ltd until 5 March 2021 at which time it took steps to reinstate the registration. The Tribunal acknowledges the ASIC registration was reinstated as though it had not lapsed.  

10. The applicant does not dispute that Ausiris Energy Pty Ltd was deregistered on 30 August 2020 and Mr Thomas’ representation as the Director of Ausiris Energy Pty Ltd in February 2021 was at that time incorrect.  

11. The Tribunal finds the applicant provided false or misleading information contrary to the requirements in reg 2.90.

    51.Accordingly, the Tribunal is satisfied that the prescribed circumstance in reg 2.90 exists for the purpose of s 140M of the Act.

    Criteria no longer met: reg 2.91

12. The Minister may take one or more of the actions in s 140M if the sponsor no longer satisfies the prescribed criteria for approval of the sponsorship or for variation of the terms of the sponsorship: reg 2.91(2).

    53.The prescribed criteria that must be satisfied for a standard business sponsor application to be approved is contained in reg 2.59. Relevantly, reg 2.59(g) requires that either there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard that information. The terms ‘adverse information’ and ‘associated with’ have the meanings given in regs 1.13A and 1.13B.

    54.The applicant applied for approval as a Standard Business Sponsor on 26 March 2019. The application was approved on 29 March 2019. ASIC records show Mr Shibu John Lawrence John was a director of the applicant between 19 June 2018 to 31 December 2020. Mr Lawrence John’s wife, Jomol Shibu, was the director of ITS IT Australia Pty Ltd from 16 December 2014 until it was placed in liquidation on 27 March 2019 and when it was deregistered on 16 December 2021. On 13 February 2022, the applicant notified the Department of incorrect information and provided the correct information. The Tribunal further notes Jomol Shibu is included on the applicant’s reporting structure as the ‘admin head.’

    55.Jomol Shibu is the spouse or de facto partner of Mr Lawrence John and they are two persons associated with each other as described in reg 1.13B. The action of ITS IT Australia Pty Ltd going into liquidation (insolvency) is adverse information as described in reg 1.13A.      

    56.The applicant submits it is reasonable to disregard the adverse information involving Jomol Shibu and ITS IT Australia Pty Ltd. The applicant submits Jomol Shibu was removed as the director of ITS IT Australia Pty Ltd and Mr  Shiju Mathews, as de facto director, subsequently fraudulently applied for credit on behalf of the company which was not paid back and ITS IT Australia Pty Ltd was placed in the hands of liquidators. The applicant submits that at the time of the delegate’s decision ITS IT Australia Pty Ltd was registered without any adverse information or sanctions on Jomol Shibu. Mr Lawrence John told the Tribunal Jomol Shibu was not a Director and did not cause ITS IT Australia to go into liquidation. The applicant provided documents showing Jomol Shibu commenced proceedings in the District Court of Western Australia around 24 February 2022. 

    57.The Tribunal observes Jomol Shibu is recorded as the sole Director of ITS IT Australia Pty Ltd from 20 August 2018 when Babbin Susan Mathews ceased being a Director. Notwithstanding the email purporting to dismiss her, there appears to have been no action taken to formally remove Jomol Shibu as a Director of ITS IT Australia Pty Ltd and on the applicant’s submission Jomol Shibu became aware she continued to be the Director of ITS IT Australia Pty Ltd on or about 21 September 2018. Jomol Shibu’s lawyers wrote to ASIC on 22 February 2019 claiming Jomol Shibu resigned as a director of ITS IT Australia Pty Ltd but was unable to effect that that change because she was the sole director; that the company without her knowledge had entered into credit facility agreements since July 2018; the company ceased trading on or around 8 April 2018; the company is insolvent; and a winding up application had commenced against the company on 17 January 2019 which was to be heard on 27 February 2019. The Tribunal acknowledges Jomol Shibu commenced Court action in February 2022.

    58.The Tribunal finds that Jomol Shibu was the Director of ITS IT Australia Pty Ltd when it was insolvent. The Tribunal finds after the nomination application was lodged and before it was determined there was adverse information about a person associated with the applicant about which the Department was not notified until 13 February 2022. The Tribunal is not satisfied that it is reasonable to disregard the adverse information and finds the applicant no longer satisfies the prescribed criteria in reg 2.59(g).   

    59.Accordingly, the Tribunal is satisfied that the prescribed circumstance in reg 2.91 exists for the purpose of s 140M of the Act.

    ACTION TO BE TAKEN

13. 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.

14. In considering what action to take, the Tribunal has had regard to the prescribed criteria that must be taken into account, as extracted in the attachment to this decision.

    Prescribed Criteria – reg 2.89(3)

    The past and present conduct of the person in relation to Immigration.

15. 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.

    The number of occasions on which the person has failed to satisfy the sponsorship obligation.

16. The Tribunal has found the applicant failed to satisfy its obligations under reg 2.79 and reg 2.84.

    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.

17. Relative to the applicant’s failure to meet its reg 2.79 obligations, Mr Padinjakkara Pappachan annual earnings were less than the annual earnings indicated in the nomination application for a period of 27 weeks. The Tribunal considers the failure to pay nominees in accordance with their contract to be a severe failure of the sponsorship obligations.

18. Relative to the applicant’s failure to meet its reg 2.84 obligations, sponsors receive information outlining their obligations in order to be clearly aware of their obligations. The applicant failed to notify the Department of a prescribed event, the appointment of a director, within the prescribed period.

    The period of time over which the person has been an approved sponsor

19. The applicant was first approved as a standard business sponsor on 29 March 2019 for five years.

    Whether, and the extent to which, the failure to satisfy the sponsorship obligation has had a direct or indirect impact on another person.

20. The applicant submits the delegate’s decision has caused it, and it’s sponsored workers, considerable hardship. The applicant claims it relies on skilled migrant labour and is unable to conduct work in respect of a number of contracts including with government organisations. The applicant notes the decision affects visa applications for Feros Padinjakkara Pappachan and Amandeep Kaur which have been or may be refused.

21. The Tribunal acknowledges Feros Padinjakkara Pappachan and his family, and Amandeep Kaur may be directly or indirectly impacted by the refusal of their visa applications. Mr Padinjakkara Pappachan has also been significantly underpaid compared to the conditions outlined in his employment contract. Those outcomes are a result of the applicant’s failure to satisfy its obligations.

22. The applicant’s failure to satisfy its sponsorship obligations has had a direct and significant impact on the migrant skilled workers relying on the applicant’s nominations.

    Whether, and the extent to which, the failures to satisfy the sponsorship obligation was intentional, reckless or inadvertent.   

23. The applicant submits the breach has occurred during the Covid-19 pandemic, and in a time there were Covid related changes to the requirements for temporary skilled workers which were not easy to understand or follow.

24. The Tribunal observes the Covid-19 pandemic had little to no direct impact as far as restricting travel or work of people in Australia prior to March 2020.

25. The applicant’s failure to satisfy its reg 2.79 sponsorship obligation occurred in August 2019 and continued throughout that financial year. The failure was not attributable to the impact of Covid-19 which impacted Australian workforces from around March 2020 and the applicant entered into a reduced hours agreement with Mr Padinjakkara Pappachan on 2 April 2020. The failure was attributable to the applicant failing to pay Mr Feros Padinjakkara Pappachan in accordance with the employment contract the parties entered into on 22 July 2019.     

26. The Tribunal finds the applicant’s failure to satisfy its reg 2.79 sponsorship obligation was intentional.

27. The applicant submits it thought the Change of Director was lodged with ASIC and so in the public domain and not requiring separate notification to Immigration.

28. The sponsorship obligations are written down and provided to sponsors to enable them to conform with its requirements. There is no indication to any sponsor that Immigration will obtain information on a sponsor’s behalf that exempts that sponsor from meeting its obligations. The Tribunal finds the applicant’s failure in relation to reg 2.84 was reckless.

    Whether, and the extent to which, the person has cooperated with Immigration, including whether the person informed Immigration of the failure.

29. 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 documents.

    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.

30. The applicant claims it has taken steps to resolve the issue of underpayment of staff by removing its flexible working policy ensuring staff work a scheduled and fixed 38 hour week. The applicant states it has instructed its administration and accounts staff to ensure any  business changes lodged with ASIC are relayed to Immigration. The applicant claims it has put in place a Sponsorship Obligations Procedure to ensure any sponsorship obligation is met.

    The processes (if any) the person has implemented to ensure future compliance with the sponsorship obligation.

31. The applicant claims it has put in place process to resolve the issue of underpayment of staff by removing its flexible working policy ensuring staff work a scheduled and fixed 38 hour week. The applicant states it has instructed its administration and accounts staff to ensure any  business changes lodged with ASIC are relayed to Immigration. The applicant claims it has put in place a Sponsorship Obligations Procedure to ensure any sponsorship obligation is met.

    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.

32. The delegate has identified two other sponsorship obligation failures: reg 2.90 and 2.91.

    Any other relevant factors.

33. In its response to the Department’s request for records and information the applicant on 21 January 2021 provided, among other documents, a copy of Mr Padinjakkara Pappachan’s payslip for the period 21 December 2020 to 27 December 2020 showing he was paid net $735.03. Mr Padinjakkara Pappachan’s bank account statement was included with the applicant’s response and confirms that amount was deposited into his account on 28 December 2020.

34. The NOITTA issued 24 August 2021 identified Mr Padinjakkara Pappachan appeared to be underpaid $4025.28 in the period 29 June 2020 to 27 December 2020. 

35. The applicant’s response to the NOITTA on 4 October 2021 included the submission:

    Additionally, as a sign of good faith and to show a willingness to rectify the alleged breach, the sponsor has paid Mr Feros the amount of $4025.28, being the difference calculated by the sponsor monitoring unit.

36. The applicant’s 4 October 2021 response included a payslip (Appendix D) indicating that on 28 December 2020 Mr Padinjakkara Pappachan was paid net $2410.33 ($4025.33 – PAYG $1615) for the period 21 December 2020 to 27 December 2020.

37. The delegate was satisfied that pro rata earnings paid to  Mr Padinjakkara Pappachan equated to full-time earnings during the period 1 July 2020 to 31 December 2020.

38. The Tribunal however observes Mr Padinjakkara Pappachan’s bank account statement does not confirm the receipt of $2410.33 on 28 December 2020 as indicated on the payslip provided 4 October 2021.

39. The applicant sent a letter to the Department dated 11 November 2021 that includes a document titled ‘transaction details’ which includes a description of an online withdrawal from the applicant’s Westpac business account in the amount of $2410.33 on 13 October 2021.

40. The Tribunal observes that while the withdrawal amount correlates to the net salary shortfall the applicant indicated on the payslip to have been paid to Mr Padinjakkara Pappachan on 28 December 2020, the withdrawal amount does not include provision for the PAYG liability shown on the payslip. The transaction details do not confirm the amount was paid to Mr Padinjakkara Pappachan.

41. The Tribunal is not satisfied the payslips created by the applicant are a reliable source of information in relation to payments made to Mr Padinjakkara Pappachan. The Tribunal attributes no weight to the applicant’s submission on 4 October 2021 to have made a good faith payment of $4025.28 to Mr Padinjakkara Pappachan. 

    Prescribed criteria - reg 2.90(3)

    The purpose for which the information was provided.

42. The false information was given to the Department on 19 February 2021 to support a nomination application to transfer a nominee from Ausiris Energy Pty Ltd.

    The past and present conduct of the person in relation to Immigration.

43. 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.

    The nature of the information.

    91.The applicant claimed its nominee, Nixon Davis, was working for Ausiris Energy Pty Ltd and Mr Joe Thomas, claiming to be a director of both the applicant and Ausiris Energy Pty Ltd provided a letter dated 18 February 2021 outlining the details of an intra-corporate transfer of Mr Dixon as an employee from Ausiris Energy Pty Ltd to the applicant. Mr Thomas’s representation of himself as a director of Ausiris Energy Pty Ltd was false because the company was no longer registered.

    Whether, and the extent to which, the provision of false or misleading information has had a direct or indirect impact on another person.

44. The applicant’s provision of false information directly affects the nominee Mr Nixon Davis in relation to his application for a visa.

    Whether the information was provided in good faith.

45. The delegate notes the applicant provided copies of the ASIC registration papers for Ausiris Energy Pty Ltd with the nomination application on 19 February 2021 showing the business cease to be registered on 30 August 2020. The applicant has provided correspondence from ASIC confirming the business registration of Ausiris Energy Pty Ltd was reinstated and considered as though Ausiris Energy Pty Ltd had not been deregistered.

46. The Tribunal accepts the false information was provided by the applicant inadvertently and in good faith.

    Whether the person notified Immigration immediately upon discovering that the information was false or misleading.

47. The Department identified the applicant had provided false information during its monitoring project. 

    Any other relevant factors.

48. The Tribunal observes the delegates comments in relation to discrepancies between payslips given to the Department for Mr Padinjakkara Pappachan suggesting two different payment amounts being made on the 28 December 2020.  

49. The Tribunal further observes the delegates comments that Mr Thomas purported to be a director of Cyber Power Pty Ltd on 7 May 2019 when he signed Jomol Shibu’s employment contract despite ASIC records showing he was not a director between 20 July 2018 and 11 December 2020. 

50. The applicant has made no submissions in relation to the delegates observations. The Tribunal considers these matters to be other relevant factors. 

    Prescribed criteria – reg 2.91(3)

    The nature of the applicable sponsorship criteria that the person no longer meets.

51. The applicant no longer meets the prescribed sponsorship criteria in reg 2.59(g) as there is adverse information in relation to an associated person known to Immigration.

    Whether, and the extent to which, the failure to continue to satisfy the criteria for approval as a work sponsor or family sponsor, or to continue to satisfy the criteria for approval of a variation, has had a direct or indirect impact on another person.

52. The applicant submits the delegate’s decision has caused the applicant and its sponsored workers considerable hardship. The applicant submits the delegate’s decision is causing applications by the applicant to be put on hold unless they are adversely decided, thus causing hardship to the business in conducting its operations. The applicant submits Mr Padinjakkara Pappachan may have his Subclass 186 visa application refused, and Ms Amandeep Kaur was refused her Subclass 186 visa application because of the delegate’s decision.

1. The Tribunal attributes little weight to the applicant’s claims of hardship it has incurred because of the delegate’s decision. The Tribunal finds the delegates decision is the result of the applicant’s failure to meet the sponsorship criteria. The applicant’s failure to meet the criteria has a direct impact on the visa applications of Mr Padinjakkara Pappachan and Ms Amandeep Kaur.

   The reason why the person no longer satisfies the applicable sponsorship criteria, including whether the failure to satisfy the criteria is within the person’s control. 

2. The applicant submits that the sponsorship may not have been refused even if the adverse information had been disclosed. The applicant submits it was not aware the information was required to be disclosed as part of the application. The applicant has now been advised of the requirements and understands the definitions of ‘adverse information’ and the meaning of ‘associated with’ as prescribed.

3. The applicant is responsible for the veracity of the information provided in their application submitted with the Department.  

   The steps (if any) the person has taken to ensure that the person will satisfy the applicable criteria in the future.

4. The applicant has put in place a sponsorship obligations procedure.

   Any other relevant factors.

5. The Tribunal did not take into account other relevant factors.

6. 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 sponsor until 13 March 2023 from sponsoring more people.

   DECISION

   107.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.

   …

   2.91   Application or variation criteria no longer met

   …

   (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 nature of the applicable sponsorship criteria that the person no longer meets; and

   (b)    whether, and the extent to which, the failure to continue to satisfy the criteria for approval as a work sponsor or family sponsor, or to continue to satisfy the criteria for approval of a variation, has had a direct or indirect impact on another person; and

   (c)     the reason why the person no longer satisfies the applicable sponsorship criteria, including whether the failure to satisfy the criteria is within the person’s control; and

   (d)    the steps (if any) the person has taken to ensure that the person will satisfy the applicable criteria in the future; and

   (e)     any other relevant factors.

   …