Doaba Transport Pty Ltd (Migration) - [2019] AATA 4491

Doaba Transport Pty Ltd (Migration) [2019] AATA 4491 (29 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Doaba Transport Pty Ltd
CASE NUMBER:  1711042
DIBP REFERENCE(S):  OPF2016/6909 OPF2017/5276 OPF2017/5280 OPF2017/5281
MEMBER:Sheridan Lee
DATE:29 August 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to take any of the actions specified in s.140M of the Migration Act 1958.

Statement made on 29 August 2019 at 11:17am
CATCHWORDS
MIGRATION – cancellation – sponsorship approval – compliance with sponsorship obligations – ensure sponsored person work in nominated occupation – Fleet Manager – Departmental site visit – interview by ABF officers – significant amount of administrative duties – relatively small transport company – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 140M, 360
Migration Regulations 1994 (Cth), rr 2.86, 2.89
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to take an action under s.140M of the Migration Act 1958 (the Act) in relation to the applicant’s sponsorship.
The applicant was approved as a standard business sponsor on 2 September 2014. On 16 December 2016, the Australian Border Force (ABF) Sponsor Monitoring Unit commenced a monitoring audit to ascertain the applicant’s compliance with their sponsorship obligations. Following the audit, ABF issued the applicant a Notice of Intention to Take Action (the Notice). In response to the Notice, the applicant provided submissions and supporting documents which the Tribunal has had regard to further below.
On 23 May 2017, the delegate found that there was a failure by the applicant to satisfy the sponsorship obligation in r.2.86 of the Migration Regulations 1994 (the Regulations), which requires the applicant to ensure that the primary sponsored person works in the nominated occupation. The delegate decided to cancel the approval as a sponsor and bar the applicant from making future applications for approval as a sponsor for 24 months under s.140M.
The applicant provided a copy of the delegate’s decision record to the Tribunal with the application for review.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision not to take any of the actions specified in s.140M. In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to section 360(2)(a) of the Act.
Non-disclosure certificates
On 1 June 2017, a delegate of the Minister issued a non-disclosure certificate under s.376 of the Act. The certificate sought to restrict the disclosure of the audio recording of the telephone interview undertaken with the Subclass 457 visa holder, Mr Harpreet Singh, on the basis that the information was provided to an officer of the Department in confidence. The Tribunal has reviewed the audio and the detailed notes of the interview and found no evidence that any information was provided by Mr Singh in confidence. Further, no undertaking was provided by the delegate to keep the information confidential. For this reason, the Tribunal considers that the certificate is invalid.
On 2 June 2017, a delegate of the Minister issued a non-disclosure certificate under s.376 of the Act in respect of the written notes of the same telephone interview. As noted above, the notes do not record any request for the information to remain confidential or an undertaking to keep the information confidential. For this reason, the Tribunal considers that the certificate is invalid.
The delegate issued a third certificate under s.375A of the Act. The certificate was issued on 2 June 2017 in respect of folios 1 to 43 and 46 to 60 of file OPF2016/6909 and folios 1 to 17, 112 to 115 and 121 to 130 of OPF2017/5281 on the basis that the release would be contrary to the public interest. Specifically, the Department has sought to restrict the disclosure of a ‘Recommendation Report’, site visit plans, an internal referral for the cancellation of a Subclass 457 visa and case notes. The Tribunal considers that the certificate is valid on the basis that disclosure of the documents or information would be contrary to the public interest as it may reveal investigation methodology.
The Tribunal did not consider the information covered by the valid certificate to be adverse to the applicant and notes that much of the information was referred to in the delegate’s decision record. For this reason, it was not necessary to put the information to the applicant for comment or response.
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 r.2.89 - r.2.94B and include circumstances in which the Minister, or tribunal on review, is satisfied there has been: a failure to satisfy a sponsorship obligation; provision of false or misleading information; sponsorship application or variation criteria no longer met; a contravention of the law; unapproved changes to a program; a failure to pay additional security; a failure to comply with certain terms of an agreement; or a failure to pay medical and hospital expenses.
Where a prescribed circumstance has been found to exist, the regulations prescribe criteria that must be taken into account when determining what action, if any, to take: r.2.89 – r.2.94B. These criteria, as they relevantly apply to the circumstances of this case are set out in the attachment to this decision.
Does a circumstance for the taking of an action exist?
Failure to satisfy a sponsorship obligation: r.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: r.2.89(2). In the present case, the delegate found that the applicant failed to ensure that the primary sponsored person worked in the nominated occupation: r.2.86(2).
The applicant operates a small transport company that fulfils contracts for the delivery of mattresses, foam and carpet from third party companies to the direct customers of those companies. The applicant was approved as a standard business sponsor on 2 September 2014 for a period of three years. The applicant also had a nomination approved in respect of Mr Singh for the occupation of Fleet Manager.
ABF officers conducted site visits to the registered business address for Doaba Transport Pty Ltd on 2 February and 16 March 2017. The first site visit was undertaken while Mr Singh was absent on annual leave. During the second site visit, the officers made observations of the workplace and conducted in-person interviews. In addition to the site visits, on 28 February 2017, telephone interviews were undertaken with Director, Mr Ajaypal Rathore on behalf of Doaba Transport and Mr Singh.
On 7 April 2017, the delegate issued a Notice of Intention to Take Action (NOITTA). The NOITTA outlined that after consideration of the information obtained through the site visits and interviews, the delegate felt Mr Singh was not performing duties consistent with a managerial level position and was concerned that there was insufficient work to sustain a full-time position.
The applicant provided a response to the NOITT through its representative on 21 April 2017. Evidence included with the response and provided to the Department during the audit was:
·PAYG payment summaries for Harpreet Singh for the years ending 30 June 2015 and 2016
·notices of assessment issued by the Australia Taxation Office (ATO) to Harpreet Sing for the years ending 30 June 2015 and 2016
·payslips for Harpreet Singh for 15 September 2014 to 27 February 2017 and 1 January 2016 to 31 December 2016
·Commonwealth Bank statements for an account in the name of Harpreet Singh for the period 1 December 2016 to 31 December 2016 showing weekly payments of $842.46 from Doaba Transport
·ANZ bank statements in the name of Doaba Transport for the period of 1 December to 31 December 2016 showing transfers to Harpreet Singh
·a statutory declaration from Gurpreet Kaur, Director of Doaba Transport, dated 20 April 2017
·a statutory declaration from Mr Singh, dated 20 April 2017
·statutory declarations from truck drivers, Sajan Shahi and Sanjiv Kumar, dated 20 and 21 April 2017 respectively
·a statement from Mr Ajaypal Rathore, dated 17 February 2017
·sub-contractor’s agreement between National Fleet Services Pty Ltd and Doaba Transport dated 28 February 2014 for the ‘Sleepmaker permanent run’
·terms of engagement between Tranzworks Pty Ltd and Doaba Transport, dated 12 August 2016
·driver delivery records (‘trip sheets’) from 1 to 31 December 2016 for Harry Togar, ‘Ray’, and Aaupal Rathere
·receipts for fuel and truck repairs
·emails between Mr Singh and external stakeholders, drivers and the company director
·Letter from the Adrian Pannella, Transport Manager at Kings Transport Pty Ltd, dated 10 February 2017
·evidence of compliance with other sponsorship obligations
In addition to the evidence provided to the Department, the applicant has supplied the Tribunal with company financial reports for the years ending 30 June 2015, 2016 and 2017. The company financials demonstrate that the business has been profitable in each financial year and can support the full-time position.
The applicant has provided significant evidence to demonstrate that Mr Singh has been engaged and paid as a full-time Fleet Manager. Bank statements, taxation documents, payslips and company financials all show that Mr Singh has been paid in accordance with his contract of employment.
During the telephone interview undertaken with Mr Singh on 28 February 2016, he gave evidence that he starts work at 8:30 am by calling all four drivers to confirm their routes. He then checks the service logs, job sheets, fuel receipts and Citylink bills and takes any necessary action, such as booking the vehicles for services. Mr Singh also outlined that he conducts random breath testing of the drivers and facilitates drug testing through a pathology lab. He provided a comprehensive overview of the staffing arrangements. Mr Singh’s oral evidence was supported by the provision of emails between himself and business partners, emails between himself and St John of God Pathology, receipts for fuel and truck repairs.
While the subsequent statutory declaration provided by Mr Singh provides a summary of additional tasks than those outlined during the telephone interview, the Tribunal does not consider the evidence inconsistent. Rather, it provides further details than what was covered during the 30 minute call.
The letter from Kings Transport ‘confirms that Mr Harpreet Singh is the Fleet Manager of Doaba Transport Pty Ltd. Mr Singh is contacted for vehicle bookings, confirmation of delivery routes and driver availability for the Kings Transport contractual obligations’. Further, sworn statements from other employees and the company director support the applicant’s contention that Mr Singh has been working in the nominated occupation. There is no evidence before the Tribunal to indicate that Mr Singh is performing any role for which he was not nominated.
The Tribunal acknowledges that the position of Fleet Manager within a relatively small transport company would involve a significant amount of administrative duties. Nevertheless, Mr Singh is still responsible for managing the fleet and the Tribunal is satisfied that he has been performing the majority of duties stipulated in the occupational dictionary for the occupation for which he was nominated. The Tribunal notes that evidence demonstrating the size and turnover of the business was available to the Department when the sponsorship approval was provided. Evidence provided by the applicant demonstrates that the business has grown since that time, indicating that the scope of Mr Singh’s position would have similarly grown.
Accordingly, the Tribunal is not satisfied that the prescribed circumstance in r.2.89 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 any of the actions specified in s.140M of the Migration Act 1958.
Sheridan Lee
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.
…