GOODFARMERS PTY LTD (Migration)

GOODFARMERS PTY LTD (Migration) [2019] AATA 5567 (10 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Goodfarmers Pty Ltd
CASE NUMBER:  1703379
DIBP REFERENCE(S):  OPF2015/3897
MEMBER:C. Packer
DATE:10 December 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision under review.

Statement made on 10 December 2019 at 6:18pm

CATCHWORDS
MIGRATION – standard business sponsor – barred from making applications for approval as for five years – no substantive response to tribunal’s s 359 letter – underpayment of wages to subclass 457 visa holder – rectification of wages after department’s monitoring – late and incomplete supply of records to department – prescribed criteria for action to be taken – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 140L(1)(a), 140M, 359, 359C, 360(3), 363A

Migration Regulations 1994 (Cth), rr 2.72(10)(c), 2.72(10)(cc), 2.79(3)(a)(iii), (iv), 2.83, 2.89(2)

CASE
Hasran v MIAC [2010] FCAFC 40

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 16 January 2015 for one year. Also on 16 January 2015 a nomination of an occupation of Program or Project Administrator was approved. On 7 February 2017 the delegate decided pursuant to s.140M to bar the sponsor for five years from making future applications for approval as a standard business sponsor.
On 7 November 2019 the Tribunal wrote to the applicant pursuant to s.359 of the Act, inviting the applicant to comment on or respond to information in writing. The invitation was sent to the last address provided in connection with the review and advised that, if the comments or response was not received within the time period allowed, the Tribunal may make a decision on the review without taking any further action to obtain its views on the information, and the review applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
On 20 November 2019 the applicant’s representative sought further time to respond and requested an extension of time of three weeks.
On 21 November 2019 the Tribunal advised the applicant that the request for an extension of time had been carefully considered, and the Tribunal had decided to grant an extension of time to 5 December 2019. The invitation was sent to the last address provided in connection with the review and advised that, if the comments or response was not received by 5 December 2019 the Tribunal may make a decision on the review without taking further steps to obtain its views on the information, and the review applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The applicant was next invited to a hearing scheduled for 10 December 2019.
The applicant did not provide any comments or response within the period allowed. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.
Accordingly, on 9 December 2019 the Tribunal cancelled the scheduled hearing, and advised the applicant that the Tribunal would now proceed to a decision.
The applicant was represented in relation to the review by its registered migration agent.
For the following reasons, the Tribunal has decided to affirm the decision under review.

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?

In the present case, the delegate found that the sponsor had failed to satisfy the sponsorship obligation to ensure equivalent terms and conditions of employment (r.2.79). The delegate found that the 457 visa holder had been underpaid wages, and the sponsor’s subsequent rectification of the underpayments to the 457 visa holder did not mitigate that the underpayments occurred and were not rectified until the Department brought them to the sponsor’s attention.
The delegate also found that the sponsor had failed to satisfy the sponsorship obligation to provide records and information to the Minister (r.2.83). The delegate found that the sponsor, in response to a ‘Notice requesting records and/or information’ letter dated 23 November 2015 (the delegate refers to this as a Commencement of Monitoring Letter (COML)), only provided a partial response within the time period allowed and a final response about four months later. The delegate found that although later provided, the information had not been provided within the required time frame.
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).

Regulation 2.79 - Obligation to ensure equivalent terms and conditions of employment

Under r.2.79 certain current and former approved sponsors have an obligation to ensure that the terms and conditions of employment provided to sponsored persons are no less favourable than the terms and conditions of employment provided or would be provided to an Australian citizen or permanent resident to perform equivalent work in the same workplace and location. As in this case, for a current or former standard business sponsor of a primary sponsored person who holds or last held a Subclass 457 identified in a nomination made before 18 March 2018, the obligation is to ensure that:
·the terms and conditions of employment provided to the primary sponsored person are no less favourable than those based on which the nomination was approved; (r.2.79(3)(a)(iii)) and
·the terms and conditions of employment provided to the primary sponsored person are no less favourable than the terms and conditions of employment that the sponsor provides, or would provide, to an Australian citizen/permanent resident to perform equivalent work in the person’s workplace at the same location. (r.2.79(3)(a)(iv))
For the purpose of these obligations, a set of terms and conditions of employment for a person (the first set) is defined as being ‘less favourable’ than another set if: the ‘earnings’ provided for in the first set are less than the earnings provided for in the other set; and there is no substantial contrary evidence that the first set is not ‘less favourable’ than the other set.
’Earnings’ is defined as including wages, amounts applied or dealt with in any way on the person’s behalf or as they direct, and the agreed money value of non-monetary benefits. It does not include payments the amount of which cannot be determined in advance, reimbursements or certain contributions to a superannuation fund.

The nomination

On 16 January 2015 the applicant was approved as a standard business sponsor for one year, and a nomination of an occupation of Program or Project Administrator was approved.
Regulation 2.72(10)(c) required that the terms and conditions of proposed employment be ‘no less favourable’ than those provided to an Australian citizen/permanent resident for performing equivalent work at the same location. Regulation 2.72(10)(cc) required that the ‘base rate of pay’ in those terms and conditions be greater than a specified temporary skilled migration income threshold. At that time, Instrument IMMI 13/028 specified that for the purposes of r.2.72(10)(cc) the temporary skilled migration income threshold was $53,900. The sponsor had also provided evidence to the Department that showed the market salary rate (MSR) for a Program or Project Administrator was between $52,000 and $55,000.
The terms and conditions of employment provided to the 457 visa holder on which the nomination was approved, are shown in the Employee Agreement signed 8 August 2014. The employment was to commence four weeks ‘after nomination grant of 457 visa as a Manager (Project Administrator)’. The minimum annual gross salary was stated to be $55,000 exclusive of superannuation, based on a full-time of 38 hours per week, and “6.2 Wages shall be paid fortnightly by electronic funds transfer into a bank nominated by the employee.” The nomination of an occupation was approved as the employment contract showed the 457 visa applicant was to be paid more than the temporary skilled migration income threshold, and at the top of the market salary rate for a Program or Project Administrator.

The Department’s monitoring

The Department’s Recommendation Report dated 3 February 2017 shows that Goodfarmers Pty Ltd is a labour hire company located in Mildura, Victoria. The report discussed an unresolved standard business sponsorship application that stated in part: “…the business is extending rapidly the business needs a few key workers to do together. And as almost of Working Holiday makers are from South Korea the business needs managers with Korean background.” The sponsor indicated at that time that they employed two Australian employees, one overseas student, and 55 foreign workers. The foreign workers/visa holders worked on farms (usually citrus) and were housed in a Mildura motel owned by the sponsor.
On 1 October 2015 the Department conducted a site visit to Mildura. The Department’s Recommendation Report dated 3 February 2017 shows that the 457 visa holder Mr Roh was interviewed. The officer conducted the interview in the usual course of business and notes of the interview and investigation were taken, and the Tribunal accepts their accuracy:
Officers then spoke to visa holder, Sangyub ROH ('Jeff') …. His approved position is Program/Project Administrator. He stated he is the General Manager of the hotel and his duties are to process salaries, source and provide equipment for workers, check clients' needs, quality of work, outcomes being achieved and training with transfer of skills.
He has an office that Officers were taken to, photos taken. Mr Roh explained that he undertakes the role of paying of all employees, including himself. These Wages are paid weekly from the business account in to workers bank accounts. He states he receives approximately $860 net per week. He has not received a payslip since June 2015, approximately four months. He states there are no deductions taken from his pay.
He stated that before working for the sponsor he worked in Cairns at Oz Connection. They are a labour hire intermediary (LHI) and education agent. He left there after approximately 18 months as the business went bankrupt and had to find a new sponsor.
Officers viewed Mr Roh's bank account online on his phone and queried why $860 went in to his account and then went out again? Mr Roh explained that he didn't get paid one week but then got paid double the next week. Officers pointed out an anomaly with the salary transactions. On 22/09/2015 $860 in wages went in to Mr Roh's account, however there was not a withdrawal/transfer from the business account on or around that same day. Mr Roh could not explain this.
He did say that he knows DIBP are very strict on payment of TZ417 visa holders so they always make sure they are paid. He said there was an issue with one of their clients where they did not pay an outstanding account, approximately $30,000, so he and Matt decided they wouldn't pay themselves and pay the visa holders. Officers informed him that all visa holders are to be paid as agreed in their contract and/or agreement.
Departmental notes show the Department commenced monitoring the sponsor when the sponsor was sent a ‘Notice requesting records and/or information’ letter dated 23 November 2015. The delegate’s decision refers to the monitoring period being between 16 January and 19 November 2015, with the sole 457 visa holder Mr Roh. The Notice requested documents including at point 5:
a)    A record of the money paid to the primary sponsored person for the period 16/1/2015 to 19/11/2015, showing gross and net salary/wages, details of any deductions made and a record of hours worked - for example pay slips, salary advice etc.
b)    Provide third party verifiable records of the monies (wages) paid to the sponsored persons for the period 16/1/2015 to 19/11/2015 - for example bank statements, EFT transfer details, receipts, cheque stubs etc.
c)     A record of the money applied or dealt with in any way on the primary sponsored person's behalf for the period 16/1/2015 to 19/11/2015.
d)    A record of the non-monetary benefits provided to the primary sponsored person for the period 16/1/2015 to 19/11/2015.
The sponsor advised that the 457 visa holder Mr Roh in fact commenced work on 16 February 2015. On 8 December 2015 the sponsor provided documents in response to the Department’s Notice:[1]
·Employment contract; Position description
·Payslips for the period 16 February to 6 November 2015, numbered 1 to 30- these showed the wage was to be paid weekly
·Mr Roh’s bank statements from 19 December 2014 to 19 October 2015
·Evidence of the market salary rate
[1] As listed in the sponsor’s letter of 8 March 2016
However, the documents did not fully address the Notice’s request:
·The sponsor provided payslips to evidence “a record of the money paid to the primary sponsored person for the period 16/1/2015 to 19/11/2015”. However, the payslips only concerned the work period up to 6 November 2015, and not to 19 November 2015.
·The sponsor provided Mr Roh’s bank statements to evidence “third party verifiable records of the monies (wages) paid to the sponsored persons for the period 16/1/2015 to 19/11/2015”. However, the bank statements only concerned the period up to 19 October 2015, and not to 19 November 2015.
On 25 February 2016 the Department invited the sponsor to provide the documents and information not yet provided.
Then on 10 March 2016 the Department received the sponsor’s submission dated 8 March 2016 and additional documents including:
·The company bank statements from 2 January to 2 November 2015. The sponsor provided company bank statements to evidence “a record of the money paid to the primary sponsored person for the period 16/1/2015 to 19/11/2015”. However, the payslips only concerned the work period up to 2 November 2015, and not to 19 November 2015.
·An undated letter from the sponsor’s bookkeeper acknowledging that payslips for the two week period from 12 to 23 October 2015 had been ‘wrongly generated’. The sponsor asked that the two payslips be disregarded.
·A bank receipt dated 7 March 2016 showing “outstanding 10w wages” of $8,600 had been paid to Mr Roh.
The underpayment of Mr Roh’s wages in 2015 was explained in the sponsor’s letter dated 8 March 2016 as follows:
As per our conversation over the phone, our Project Administrator Mr Sangyub Roh had several times of late payment of wages. This was due to the company not being able to receive service fees from one of our cooperating farms which is equal to approximately AUD18, 850. The farm we provide services for went under receivership due to management difficulties.
When we had initially found out about the receivership process of the farm, we did not have the sufficient cash flow paying the workers' wages. Upon a long discussion with Sangyub, we have agreed on paying off our farm workers first with my personal assets and when the company has a sound cash flow, rectify Sangyub's outstanding wages. The company is operating in positive cash flow now. On 7th March 2016, the company have paid Sangyub $8,600 for the outstanding wages. Please find the attached receipt.
We have spoken to Fairwork to check whether there would be any adverse information about the company for not paying the worker on time. However, they advised that as long as the company had paid off in a lump sum, there would not be any breach of Fairwork Act. This was a result of a 'once-off' unexpected turn of an event which should not happen again. We have prepared ourselves with the help of our financial advisor as well as additional insurance to cover such a short fall.
On 17 January 2017 a Notice of Intention to Take Action (NOITTA) was issued to the sponsor. The NOITTA stated in part that the Department’s review of the payslips and sponsor’s records for the monitoring period of February to November 2015 showed there had been a significant underpayment of $9,460 to Mr Roh. The NOITTA indicated this underpayment was comprised of eleven weekly missed salary payments, and while the sponsor had attempted to rectify the underpayment by payment to Mr Roh on 7 March 2016 of $8,600, another week of salary of $860 remained unpaid.
The Department’s calculations, based on the payslips and Mr Roh’s bank statements provided by the sponsor, showed weekly wages of $860 had not been paid in 2015 on: 9 March; 20 April; 11 May; 6 July; 24 and 31 August; 12 October; 2 and 9 November. As well, the sponsor had advised that payslips for the two week period from 12 to 23 October 2015 had been ‘wrongly generated’ as the wage had not been paid for those two weeks.
In response to the NOITTA letter, on 31 January and 1 February 2017 the sponsor subsequently provided payslips numbered 30 (which showed Mr Roh’s wages had been changed to reflect the two payslips the sponsor claimed had been issued in error) and numbers 31 and 32. As well, Mr Roh’s bank statements- these showed he had been paid his wage (for 2-6 November) on 12 November 2015 as earlier claimed; and paid for the week of 9-13 November on 20 November, and for the week of 16-20 November on 27 November. A submission dated 31 January 2017 submitted in relation to r.2.79 stated:
Regulation 2.79 - Obligation to ensure equivalent terms and conditions of employment
The sponsor and the 457 visa worker Mr Sangyub Roh believed the outstanding wage to be total of 10 weeks which equals to net payment of $8600. Hence, he had rectified the outstanding amount as soon as he was made aware of the shortfall. However, after receiving NOITTA from the Department and recalculating the outstanding wage, he had acknowledged the (then still) unpaid wage of $860 and rectified it again on 30 January 2017. Please find the attached payment receipt. This was a genuine administrative error where the director and the visa holder did not realise the unpaid outstanding wage. Since they were made aware of the mistake (in March 2016) all wages have been paid correctly and in a timely manner.

The Tribunal’s consideration of the 457 visa holder’s wages

The sponsor states that the applicant had been employed full-time from Monday 16 February 2015 and he had been employed throughout the monitoring period. While the Department requested information about wages paid to Mr Roh up to 19 November 2015, the sponsor did not provide documents or information concerning the weeks of 9-13 and 16-20 November 2015 until January 2017. In particular, the payslip of 2 to 6 November 2015 numbered “30” stated the wage had been paid on 12 November 2015, however, the sponsor did not provide evidence of this payment until much later in January 2017.
Based on the material before the Tribunal, the visa holder Mr Roh had been employed full-time from 16 February 2015 and throughout the monitoring period up to 20 November 2015 comprising 40 weeks.
The payslips show that Mr Roh’s wage was calculated weekly and comprised payments of $860 paid electronically into Mr Roh’s bank account. The 32 payslips, together with the sponsor’s advice that two payslips were in error as no wage had in fact been paid, and Mr Roh’s bank statements, show that the wage had been paid haphazardly, and in 30 payments.
Based on the material before the Tribunal, during Mr Roh’s employment in the period of 40 weeks in 2015, Mr Roh had not been paid for the following weeks:
·16-20 March
·13-17 April
·11-15 May
·29 June to 3 July
·17-21 August
·24-28 August
·5-9 October
·12-16 October
·19-23 October
·26-30 October
While the Department calculated a further week’s wages had been unpaid, the Tribunal notes the Department had identified the week of 2-6 November. However, the evidence later provided by the sponsor confirms that Mr Roh was in fact paid (for 2-6 November) on 12 November 2015 as claimed.
The Tribunal finds, therefore, that during the monitoring period the underpayment of Mr Roh’s wages comprised 10 weeks wages amounting to $8,600 net. The Tribunal considers for the foregoing reasons that a further $860 identified by the Department had not in fact been underpaid. The submission dated 31 January 2017 advised the remaining $860 underpayment had been rectified on 30 January 2017, however, as discussed the Tribunal does not consider there had been such an underpayment.
The Department commenced monitoring the sponsor when the sponsor was sent a ‘Notice requesting records and/or information’ letter dated 23 November 2015. However, the sponsor only paid Mr Roh for the 10 unpaid weeks, on 7 March 2016, over three months later. The Tribunal has carefully considered the reasons given for the underpayment of wages throughout 2015, however, the reasons given do not negate the obligation on the sponsor to ensure that the visa holder was paid his wage in compliance with the terms and conditions of employment on which the nomination was approved, and that would be provided to an Australian citizen/permanent resident to perform equivalent work in the person’s workplace at the same location.
The Tribunal accepts that the sponsor paid Mr Roh’s wage, accrued from 16 February to 20 November 2015, in full by 7 March 2016. However, the Tribunal notes that: the final payment of accrued wages occurred almost 12 months after the first unpaid week of wages occurred and several months after the Department sent a ‘Notice requesting records and/or information’ letter dated 23 November 2015; the full payment ostensibly occurred in response to the Department’s monitoring; and the unpaid wages accrued in March, April, May, July, August, and then almost all of October 2015, and so the underpayments occurred regularly throughout 2015.
In sum, and in light of the foregoing discussion, the Tribunal finds that the sponsor’s underpayment to the visa holder Mr Roh of 10 weeks wages was a breach of the sponsor’s obligation to ensure that:
·the terms and conditions of employment provided to the primary sponsored person are no less favourable than those based on which the nomination was approved; (r.2.79(3)(a)(iii)) and
·the terms and conditions of employment provided to the primary sponsored person are no less favourable than the terms and conditions of employment that the sponsor provides, or would provide, to an Australian citizen/permanent resident to perform equivalent work in the person’s workplace at the same location. (r.2.79(3)(a)(iv))
The Tribunal finds the sponsor failed to satisfy the sponsorship obligation in r.2.79.

Regulation 2.83 - Obligation to provide records and information to the Minister

Under this obligation, a sponsor must, on request and in the manner and timeframe requested by the Minister, provide records required to be kept by law or by the obligation to keep records in r.2.82, and which relate to the administration of the sponsorship provisions of the Act, or the administration of a work agreement.
The Department sent the ‘Notice requesting records and/or information’ letter dated 23 November 2015. The Notice referred to r.2.83 and was a formal request for records and/or information using a method mentioned in s.494B, and the specified date for compliance was within 14 calendar days from the day the sponsor was deemed to have received the Notice. The Tribunal finds the Notice complied with r.2.83(3).
In light of the foregoing discussion, the Tribunal finds the sponsor only provided a partial response to the Notice within the time period allowed. The documents provided did not fully address the Notice’s request:
·The payslips only concerned the work period up to 6 November 2015, and not to 19 November 2015.
·The sponsor provided Mr Roh’s bank statements to evidence “third party verifiable records of the monies (wages) paid to the sponsored persons for the period 16/1/2015 to 19/11/2015”, but the bank statements only concerned the period up to 19 October 2015, and not to 19 November 2015.
Then some months later on 10 March 2016 the Department received the sponsor’s submission dated 8 March 2016 and additional documents including:
·The company bank statements from 2 January to 2 November 2015. However, the payslips only concerned the work period up to 2 November 2015, and not to 19 November 2015.
·An undated letter from the sponsor’s bookkeeper acknowledging that payslips for the two week period from 12 to 23 October 2015 had been ‘wrongly generated’. The sponsor asked that the two payslips be disregarded.
The sponsor subsequently provided payslips numbered 30 (which showed Mr Roh’s wages had been changed to reflect the two payslips the sponsor claimed had been issued in error) and numbers 31 and 32. As well, Mr Roh’s bank statements- these showed he had been paid his wage (for 2-6 November) on 12 November 2015 as earlier claimed; and paid for the week of 9-13 November on 20 November, and for the week of 16-20 November on 27 November. Nonetheless, this information had only been provided on 31 January and 1 February 2017 in response to the NOITTA letter- over a year after the ‘Notice requesting records and/or information’ letter dated 23 November 2015.
In sum, the Tribunal finds the sponsor failed to meet their obligation to provide records required to be kept by law or by the obligation to keep records in r.2.82, and which relate to the administration of the sponsorship provisions of the Act. The Tribunal finds the sponsor failed to satisfy the sponsorship obligation in r.2.83.
Accordingly, the Tribunal is satisfied that the prescribed circumstance in r.2.89 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.
(a) the past and present conduct of the person in relation to Immigration;
The Tribunal’s foregoing discussion and findings show the sponsor’s past and present conduct in relation to Immigration. The sponsor ostensibly attempted to rectify the underpayments, and sought to provide the requested records and information to the Department, however, this was done tardily and in an ostensibly haphazard and careless way.
(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;
In respect of the ‘Obligation to ensure equivalent terms and conditions of employment’, the Tribunal accepts that the sponsor paid Mr Roh’s wage, accrued from 16 February to 20 November 2015, in full by 7 March 2016. However, the Tribunal notes that: the final payment of accrued wages occurred almost 12 months after the first unpaid week of wages occurred and several months after the Department sent a ‘Notice requesting records and/or information’ letter dated 23 November 2015; the full payment ostensibly occurred in response to the Department’s monitoring; and the unpaid wages accrued in March, April, May, July, August, and then almost all of October 2015, and so the underpayments occurred regularly throughout 2015.
In respect of the ‘Obligation to provide records and information to the Minister’, the sponsor subsequently provided payslips numbered 30 (which showed Mr Roh’s wages had been changed to reflect the two payslips the sponsor claimed had been issued in error) and numbers 31 and 32. As well, Mr Roh’s bank statements- these showed he had been paid his wage (for 2-6 November) on 12 November 2015 as earlier claimed; and paid for the week of 9-13 November on 20 November, and for the week of 16-20 November on 27 November. Nonetheless, this information had only been provided on 31 January and 1 February 2017 in response to the NOITTA letter- over a year after the ‘Notice requesting records and/or information’ letter dated 23 November 2015.
The Tribunal finds the first obligation (r.2.79) had been breached multiple times, and throughout 2015, and then the second obligation (r.2.83) had been breached over the course of a year as information had only been provided on 31 January and 1 February 2017 - over a year after the ‘Notice requesting records and/or information’ letter dated 23 November 2015. The Tribunal finds the breaches had been ongoing until the Department commenced monitoring, and the breaches were serious.
(d) the period of time over which the person has been an approved sponsor;
On 16 January 2015 the applicant was approved as a standard business sponsor for one year, and a nomination of an occupation of Program or Project Administrator was approved. Despite the short period in which the applicant had been a sponsor, two obligations were significantly breached, and they were breached over several months.
(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 failure to satisfy the sponsorship obligation has had a direct impact on the visa holder, who at the time held a 457 visa.
(f) whether, and the extent to which, the failure to satisfy the sponsorship obligation was intentional, reckless or inadvertent;
The Tribunal’s foregoing discussion and findings show the sponsor’s breach of the ‘Obligation to ensure equivalent terms and conditions of employment’, was intentional and ongoing. The sponsor’s breach of the ‘Obligation to provide records and information to the Minister’, was reckless.
(g) whether, and the extent to which, the person has cooperated with Immigration, including whether the person informed Immigration of the failure;
The delegate indicated the sponsor and employees had been cooperative, open and honest at the time of the site visit. The sponsor identified and rectified the visa holder’s underpayments but only after the Department’s site visit and the ‘Notice requesting records and/or information’ letter dated 23 November 2015.
(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 delegate advised that the sponsor had given assurances that all employees were being appropriately paid. The visa holder had been fully paid after a long delay, and the Department had eventually been provided with the requested records and information.
(i) the processes (if any) the person has implemented to ensure future compliance with the sponsorship obligation;
The delegate advised that the sponsor had given assurances that employees were now being paid weekly.
(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 sponsor had only been monitored once.
(k) any other relevant factors;
The Tribunal’s letter dated 7 November 2019 also advised in ‘Background’ that:
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 letter.
However, the applicant despite being given the opportunity, did not address the criteria in r.2.89.

Conclusion

Considering the totality of the circumstances, and having regard to the prescribed criteria the Tribunal finds that the action mentioned in s.140M(1)(d) to bar the sponsor for five years from making future applications for approval as a work sponsor, should be taken. The commencement of the bar is effective from the date of the Department’s notice of 7 February 2017.

DECISION

The Tribunal affirms the decision under review.

C. Packer
Member

ATTACHMENT – Extract from the Migration Regulations 1994

2.89 Failure to satisfy sponsorship obligation

…

For paragraph 140L(1)(b) of the Act, the criteria that the Minister must take into account in determining what action (if any) to take under section 140M of the Act in relation to the circumstance mentioned in subregulation (2) are:

(a)    the past and present conduct of the person in relation to Immigration; and
(b)    the number of occasions on which the person has failed to satisfy the sponsorship obligation; and
(c)     the nature and severity of the circumstances relating to the failure to satisfy the sponsorship obligation, including the period of time over which the failure has occurred; and
(d)    the period of time over which the person has been an approved sponsor; and
(e)     whether, and the extent to which, the failure to satisfy the sponsorship obligation has had a direct or indirect impact on another person; and
(f)     whether, and the extent to which, the failure to satisfy the sponsorship obligation was intentional, reckless or inadvertent; and
(g)     whether, and the extent to which, the person has cooperated with Immigration, including whether the person informed Immigration of the failure; and
(h)    the steps (if any) the person has taken to rectify the failure to satisfy the sponsorship obligation, including whether the steps were taken at the request of Immigration or otherwise; and
(i)    the processes (if any) the person has implemented to ensure future compliance with the sponsorship obligation; and
(j)     the number of other sponsorship obligations that the person has failed to satisfy, and the number of occasions on which the person has failed to satisfy other sponsorship obligations; and
(k)    any other relevant factors.

…

[2019] AATA 5567

10 December 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Breach

Statutory Construction

Natural Justice

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