Growers Pots Pty Ltd (Migration) - [2024] AATA 947

Growers Pots Pty Ltd (Migration) [2024] AATA 947 (23 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Growers Pots Pty Ltd
REPRESENTATIVE:  Mrs Madhu Warnakulasuriya
CASE NUMBER:  2310214
HOME AFFAIRS REFERENCE(S):          OPF2023/2050
MEMBER:R. Skaros
DATE:23 April 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision to bar the applicant for a period of 12 months (from the date of the delegate’s decision) from sponsoring more people under the terms of the existing approval.

Statement made on 23 April 2024 at 6:40pm
CATCHWORDS
MIGRATION – action in relation to sponsorship – standard business sponsor – failure to satisfy sponsorship obligation and provision of false or misleading information – obligation to keep specified records – sponsored worker’s record of hours worked and money paid not kept or provided – worker took annual leave in excess of accrued entitlement and payslips do not account for this – correctly paid – insufficient evidence to substantiate adverse information – failure reckless but for relatively short period – 5-year sponsorship bar disproportional – 12-month bar substituted – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 140L(1)(a), 140M, 359AA, 375A
Migration Regulations 1994 (Cth), rr 1.13A, 2.79, 2.82(3)(e), 2.83, 2.89(2), (3), 2.90(2)
Fair Work Act 2009 (Cth), s 535(1)
CASE
Sri Guru Gobind Singh Transport Pty Ltd v MICMSMA [2022] FCA 118
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
1.This is an application for review of a decision made by a delegate of the Minister for Home Affairs to take an action under s 140M of the Migration Act 1958 (Cth) (the Act) in relation to the applicant’s sponsorship.

The applicant was approved as standard business sponsor on 25 August 2022. On 21 June 2023, the delegate decided to cancel the applicant’s approval as a sponsor under s 140M of the Act on the basis of a failure to comply with a sponsorship obligation and the provision of false or misleading information to Immigration.
The applicant’s director, Ms Renny Ouseph, appeared before the Tribunal on 16 April 2024 to give evidence and present arguments on behalf of the applicant. The Tribunal also received oral evidence from the Manager of the applicant’s business, Mr Antony Anjel.
The applicant was represented in relation to the review. The representative attended the hearing.
The Department’s file contained a non-disclosure certificate issued under s 375A of the Act. The certificate, which was dated and signed by a delegate of the Minister, indicated that disclosure of the subject documents would be contrary to public interest because they contain information which would 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. A copy of the certificate was provided to the applicant (via their representative) prior to the hearing.
At the hearing, the Tribunal discussed with Ms Ouseph the nature of the documents covered by the certificate. It noted that most of the documents related to operational matters and were not relevant to issues that the Tribunal must determine. It noted, however, that there was adverse information on one of the documents which would be disclosed to her using the procedure in s 359AA. The information related to allegations received by the Department that someone in the applicant’s business had received money for visa sponsorship. Ms Ouseph strongly denied the allegations and the Tribunal has considered her response further below.
As to the validity of the certificate, no comments were made about the validity (or otherwise) of the certificate. The Tribunal has considered this issue for itself and is satisfied that the certificate is valid as it provides a valid public interest reason for non-disclosure of the information contained in the subject documents. In any event, the information in the documents which were relevant to the issues in the review was disclosed to Ms Ouseph and she was given an opportunity to comment upon it.
8.For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision to bar the applicant for a period of 12 months from the date of the delegate’s decision from sponsoring more people under the terms of the existing approval.
CONSIDERATION OF CLAIMS AND EVIDENCE
Sections 140K, 140L and 140M of the Act provide for the imposition of sanctions on approved sponsors in certain circumstances.
Under s 140M, if prescribed circumstances exist, the Minister (and the tribunal on review) may take one or more of the following actions:
·cancelling the sponsorship approval in relation to a class to which the sponsor belongs;
·cancelling the sponsorship approval for all classes to which the sponsor belongs;
·barring the sponsor for a specified period from sponsoring more people under the terms of any existing approval; and
·barring the sponsor for a specified period from making future applications for sponsorship approval in relation to one or more classes of sponsor.
For these purposes, the circumstances are prescribed in regs 2.89–2.94B and include circumstances in which the Minister, or tribunal on review, is satisfied there has been: a failure to satisfy a sponsorship obligation; provision of false or misleading information; sponsorship application or variation criteria no longer met; a contravention of the law; unapproved changes to a program; a failure to pay additional security; a failure to comply with certain terms of an agreement; or a failure to pay medical and hospital expenses.
Where a prescribed circumstance has been found to exist, the regulations prescribe criteria that must be taken into account when determining what action, if any, to take: regs 2.89–2.94B. These criteria, as they relevantly apply to the circumstances of this case are set out in the attachment to this decision.
Does a circumstance for the taking of an action exist?
13.In the present case, the delegate found that the applicant failed to satisfy a sponsorship obligation and had provided false or misleading information to Immigration.
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). Action may also be taken if the sponsor has provided false or misleading information to Immigration or the Tribunal.
Background
15.The applicant operates a plastics manufacturing business in Dandenong, Victoria. They manufacture trays for the mining industry and planting pots for various retail outlets. The business was purchased by the applicant in 2020. Mrs Ouseph is the applicant’s sole director and shareholder. At the hearing, Ms Ouseph informed the Tribunal that she has limited involvement in the day-to-day operations of the business as she works in the health sector. She said the day-to-day operations were overseen by the Manager, Mr Anjel. In giving her evidence, Ms Ouseph was at times assisted by Mr Anjel. Ms Ouseph gave evidence that applicant currently employs 10 people: 8 machine operators, one forklift driver and the Manager (Mr Anjel). The revenue in the most recent financial year was $2 million.
16.The applicant was approved as a standard business sponsor on 25 August 2022 for a period of five years. During that approval they successfully nominated Mr Ratheesh Kumar Kaniyan Kandy for a position in the occupation of Production or Plant Engineer. The base salary indicated in the approved nomination was $75,000. Mr Kandy was granted the associated Subclass 482 visa on 3 December 2022.
17.In February 2023, the Department commenced monitoring the applicant. On 16 March 2023, Australian Border Force (ABF) officers visited the applicant’s business premises in Dandenong. Mr Kandy was not present during the site visit. ABF officers interviewed the Manager, Mr Anjel. The officers asked Mr Anjel about the operations of the business, the employment of Mr Kandy, the tasks undertaken by Mr Kandy in the position and the records kept by the business relating to his employment. A record of the interview indicates that Mr Anjel told officers that Mr Kandy was not at work because he had a day off. He said Mr Kandy had been working for them for about two months. He said the workers, some of whom are on day shift and others on afternoon shift, had clock cards, however, Mr Kandy did not have a clock card because he always works his usual hours. He said Mr Kandy works from 9:00 am to about 4:00pm or 4:30 pm from Monday to Friday. He said he did not keep any timesheets or leave records for Mr Kandy and there was no formal recording of leave requests, leave taken or sick leave. He said he remembers the leave taken because he has a good memory.
18.In relation to the tasks undertaken by Mr Kandy in the course of his employment, the officers compared the tasks set out in the position description, which was provided with the nomination application, to those described by Mr Anjel. The position was described as involving the following tasks:
·Design, develop and integrate new and custom product designs into the product line.
·Manage and improve factory plant layout and manufacturing process by working collaboratively with production team.
·Create 3D models and manufacturing drawings using Solid Edge, and translate drawings into production flow and alter plans as per requirements.
·Engage in design and development and operation of industrial processes and techniques for production.
·Configure plants including sources and equipment for the plant to suit the product range and process technologies involved.
·Specify, select and install plant machinery and production systems and manage machinery and equipment.
·Manage all engineering and production activities in the plant and keep track of plant maintenance.
·Disaggregate production plan by splitting production plan daily, weekly and monthly with clear objectives and targets. Keep up with innovations in industrial manufacturing by implementing latest products and knowledge of current regulations regarding engineering principles, company standards and safety compliance.
·Employ Good Manufacturing Practices (GMP) and mitigate waste of resources.
19.The Tribunal has listened to the audio of the interview conducted by ABF officers with Mr Anjel and considers Mr Anjel’s account of the tasks performed by Mr Kandy in the position to be generally consistent with those set out in the position description. This is consistent with the observation of the ABF officers who interviewed Mr Kandy. The Tribunal notes that departmental records also indicate that ABF officers conducted a phone interview with Mr Kandy. The Tribunal has no audio record of that interview, however, given it was favourable to the applicant, in that ABF officers had concluded that there were no issues of concern with Mr Kandy’s employment, the Tribunal did not consider it necessary to pursue the Department for a record of that interview.
Request for information
On 16 March 2023, the Department wrote to the applicant pursuant to reg 2.83 requesting records and information, which relevantly included information relating to the employment of Mr Kandy for the period from 3 December 2022 to 17 March 2023. In response to the request, the applicant provided various documents which relevantly included the following:
·Contract of employment for Mr Kandy.
·Spreadsheet of daily tasks completed by Mr Kandy at the plant.
·Advertisements for the position of Production Engineer in the Melbourne region as evidence that Mr Kandy was being paid the market salary rate.
·Monthly payslips for the period from 16 January 2023 to 16 March 2023, together with EFT records indicating transfer of salary payments to Mr Kandy.
21.In the accompanying submission, Ms Ouseph said that Mr Kandy commenced working in the business on 5 December 2022, which was his induction day, after which he was granted 10 days of unpaid annual leave for the period from 6 December 2022 to 15 January 2023. She said Mr Kandy was also granted 10 days of paid annual leave (in advance) for the period from 16 January 2023 to 26 January 2023 as he wanted to visit his ailing parents in India before commencing continuous employment with them. She said Mr Kandy had also taken one day of paid leave on 16 March 2023.
22.Ms Ouseph also said that Mr Kandy is the only senior professional employed in the business and that he looks after the production side of the business. He works from 9:00 AM to 5:00 PM, from Monday to Friday, with no split shifts. He is the key employee in the business. She said the records of hours worked by him each week were not maintained for the period from 16 January 2023 to 17 March 2023, however, following the recent inspection by ABF officers, they are now aware of the importance of keeping the record of hours and the business now maintains a punch time-card for Mr Kandy’s attendance.
23.In relation to the employment of Mr Kandy, it was submitted that the applicant advertised the position with Seek, Adzuna and Workforce Australia, and that they had paid all the costs associated with the recruitment and nomination of the sponsored person. It was indicated that the relevant invoices/receipt of payments were attached, however, the delegate noted that they were not so attached.
Notice of Intention to take Action (NOITTA)
24.On 15 May 2023, the Department issued the applicant with a NOITTA setting out information in relation to which action was being considered. Relevantly, the Department set out their concerns regarding the applicant’s compliance with the obligations in regs 2.82 and 2.83. The Department also considered that the applicant had provided false or misleading information.
25.In relation to the obligation in reg 2.82 to keep records, the following was stated:
On 16 March 2023, ABF Officers conducted a site visit to your business premises and conducted an interview with business manager Antony Anjel. During the interview, Antony stated that he did not keep a time sheet or leave records for sponsored person Ratheesh Kumar Kanyiyan Kandy, that there is no formal recording of leave requests or sick leave. Antony stated that these details are not written down as he ‘keeps it on his memory’.
On 17 March 2023, a ‘Notice requesting documentation and/or information’ (Notice) was sent to you requesting that you provide the records set out in Regulation 2.83(3). The Notice requested that you provide a record of hours worked each week by Ratheesh Kumar Kanyiyan Kandy, including details of split shifts.
In your response to the Notice, received 3 April 2023, you admit that record of hours
worked by Ratheesh Kumar Kanyiyan Kandy, including split shifts, were not kept during the period 16 January 2023 to 17 March 2023.
Based on this information, the delegate has reason to believe that you have failed to satisfy the obligation set out in Regulation 2.82.
26.In relation to the obligation in reg 2.83 to provide records and information to the Minister, the following was stated:
In the Notice, you were requested to provide records that are required to be kept under Regulation 2.82 or a Commonwealth, State or Territory law, or records or information relevant to the administration of Division 3A of Part 2 of the Act.
Instance 1: The Notice requested records of money paid to your primary sponsored person, during the period 3 December 2022 to 17 March 2023. In response to the Notice, you provided two payslips for the period 16 January 2023 to 16 February 2023 (pay date of 17 February 2023), and 17 February 2023 to 16 March 2023 (pay date of 17 March 2023). You also provided copies of ANZ banking records to demonstrate salary payments made to the visa holder in February, March and April 2023.
In your response to the Notice, you provided a statement in which you claim that Ratheesh Kumar Kanyiyan Kandy worked on the 5 December 2022 (for his induction). You state that Ratheesh Kumar Kanyiyan Kandy then took unpaid leave from 6 December 2022 to 15 January 2023, and paid annual leave from 16 January 2023 to 26 January 2023, and again on 16 March 2023.
In your response to the Notice, you failed to provide evidence of a record of money paid to Ratheesh Kumar Kanyiyan Kandy for work completed on 5 December 2022.
Instance 2: The Notice also requested evidence of who paid for the migration costs associated with visa nomination/applications. In your response to the Notice, you stated that a copy of the Registered Migration Agent’s tax invoice/payment receipt was attached, however this was never provided.
Based on this information, the delegate has reason to believe that you have failed to satisfy the obligation set out in Regulation 2.83.
27.In relation to the provision of false or misleading information, the following was stated:
In your response to the Notice, you provided copies of payslips for Ratheesh Kumar Kaniyan Kandy. The payslips were for the following periods:
Payslip 1: 16 January 2023 to 16 February 2023, with a pay date of 17 February 2023.
Payslip 2: 17 February 2023 to 16 March 2023, with a pay date of 17 March 2023.
In your response, you claim that Ratheesh Kumar Kanyiyan Kandy was absent, on paid annual leave from 16 January 2023 to 26 January 2023, and again on 16 March 2023.
Payslip 1 shows a total annual leave accrual of 12.28 hours for that period, with year to date (YTD) also at 12.28.
Payslip 2 shows an annual leave accrual of 12.28 hours for that period, with (YTD) of 24.56 hours.
Neither payslip records a reduction in the YTD accrual of annual leave, to accommodate the paid annual leave which you claim Ratheesh Kumar Kanyiyan Kandy has taken.
In your response to the Notice, you claim that Ratheesh Kumar Kanyiyan Kandy
commenced employment on 5 December 2023. That he worked one day, then took leave without pay from 6 December 2022 to 15 January 2023. Based on the payslips you have provided, Ratheesh Kumar Kanyiyan Kandy would have only had accrued approximately 16.28 hours annual leave, from his date of commencement up to up the first day of his paid annual leave, on 16 January 2023. You state, however, that Ratheesh Kumar Kaniyan Kandy has taken a total of 10 days of annual leave since 16 January 2023, equating to approximately 76 hours in annual leave.
Based on the above, the payslips provided by you contain false information and the
delegate has reason to believe that you have failed to satisfy the circumstance under Regulation 2.90.
Response to the NOITTA
28.In submissions to the Department, Ms Ouseph explained that Mr Kandy had attended the induction on 5 December 2022 for only two hours, during which he received a call from his wife regarding their daughter who was in severe pain. She said Mr Kandy’s daughter, the day prior (on 4 December 2022), had been admitted to hospital for severe abdominal pains and was undergoing treatment. Evidence of the hospital admission, medical examinations and payment of medical fees were provided to substantiate Mr Kandy’s circumstances. It was submitted that Mr Kandy had not completed much of the induction and was not paid for that day. It was also stated that Mr Kandy wanted to be with his daughter for a few days.
29.Ms Ouseph stated that Mr Kandy had always been correctly paid. She provided copies of the applicant’s bank account statements which showed that Mr Kandy had received his regular salary each month in February, March and April. She said the business pays Mr Kandy the nominated salary. She said the business only had three employees and that the production workers were sub-contractors. She said the business does not have an in-house accountant and that the accounting work was outsourced. She noted that the payslips were generated by their outsourced accountant. She said they notified the accountant of the errors noted by the Department, and he has accepted the errors and agreed to rectify the same.
30.In relation to the leave taken by Mr Kandy, Ms Ouseph said that Mr Kandy wanted to take his child overseas for medical investigation. She said they agreed to grant him paid annual leave in advance given his compassionate circumstances.
31.It was submitted that any errors made were unintentional and they have not tried to mislead the Department in any way. It was an inadvertent mistake on the part of their outsourced accountant, and they have taken all necessary steps to rectify the errors on the payslips. It was submitted that if their sponsorship is cancelled, it is their understanding that Mr Kandy will not be allowed to work in their business, and this would lead to the closure of the plant.
32.Ms Ouseph also provided copies of the tax invoices/payment receipts and bank records confirming the applicant’s payments of the costs associated with the recruitment and nomination of Mr Kandy.
33.On review, the Tribunal received copies of the payslips provided to the Department for Mr Kandy, as well as additional pay slips for the period from 17 April 2023 to 16 May 2023 and from 15 May 2023 to 14 June 2023. In submissions to the Tribunal, Ms Ouseph stated that as Mr Kandy did not complete any work on 5 December 2022, he was not paid and therefore no records could be provided to the Minister. As to the records relating to the leave taken, it was submitted that there were no formal requests made by Mr Kandy, as it was in an emergency, and the leave was made verbally. She stated that as the leave was requested at the beginning of employment, they agreed to grant it, and it was for compassionate reasons. It was contended that they had provided evidence of all the records kept by them. It was submitted that they had not provided any false or misleading documents and that the payslips provided were accurate and the corresponding bank records confirm the transfer of the correct salary payments.
Considerations
34.In determining whether there has been a breach of sponsorship obligations and provision of false or misleading information as set out in the NOITTA, the Tribunal has considered the relevant evidence before it as follows.
35.The obligation in reg 2.82 requires an approved standard business sponsor to keep specified records to demonstrate compliance with sponsorship obligations. Certain records must be maintained in a manner capable of being verified by an independent person.
36.The types of records that must be kept in compliance with the obligation in reg 2.82 include the following:
·a record of any request for payment of return travel cost, including when the request was received and how the sponsor complied with that request: reg 2.82(3)(a).
·a record of any notification provided to the Department of an event specified in reg 2.84, including the method by which the notification was provided and the address to which it was provided: reg 2.82(3)(b).
·a record of tasks performed by the primary sponsored person and the location at which the tasks were performed: regs 2.82(3)(c) and 2.82(3)(d).
·a record of money paid to the primary sponsored person: reg 2.82(3)(e)(i).
·a record of the money applied or dealt with in any way on the primary sponsored person's behalf, or as the primary sponsored person directed: reg 2.82(3)(e)(ii).
·a record of the non-monetary benefits provided to the primary sponsored person, including the agreed value and the time at which, or the period over which, those benefits were provided: reg 2.82(3)(e)(iii).
·a record of terms and conditions of employment of equivalent Australian workers within the workplace, including the period over which the terms and conditions applied: reg 2.82(3)(e)(iv).
37.Regulation 2.83 relevantly requires an approved standard business sponsor to provide to the Minister records or information, if requested by a written notice in the manner specified, that are required to be kept under a law of the Commonwealth, State or Territory, or records required to be kept under reg 2.82.
38.In this case, the delegate found that the applicant had failed to comply with the obligation in reg 2.82 because they could not explain the failure to keep a record of leave taken by Mr Kandy or the overtime hours worked by him for the period from 16 January 2023 to 17 March 2023. In relation to the obligation in reg 2.83, the delegate, after setting out the concerns regarding the claimed paid and unpaid leave taken by Mr Kandy, decided not to pursue this ground or make any conclusive findings about whether the applicant had or had not breached that obligation.
39.At the hearing, the Tribunal explained to the applicant that the sponsorship obligations in regs 2.82 and 2.83 were relevant to its considerations. In this case, the facts pertaining to Mr Kandy’s employment, including the days worked and the leave taken by him are relevant to both the obligation to keep records and the provision of records to the Department.
40.There is no evidence before the Tribunal that Mr Kandy had worked overtime during his employment with the applicant. The record of interview with Mr Anjel indicates that Mr Kandy worked Monday to Friday from 9:00AM until about 4:30PM. In her submissions to the Department, Ms Ouseph said that Mr Kandy worked Monday to Friday from 9:00AM until about 5:00PM. In the circumstances, the Tribunal does not consider that the applicant had failed to keep a record of the overtime as none appear to have been worked.
41.In relation to the leave taken by Mr Kandy during his employment, the evidence before the Tribunal indicates that the applicant did not keep accurate records of the leave taken. Nor did the applicant keep a record of Mr Kandy’s attendance for the induction, even if it was not for a full day. Mr Kandy was also not paid (or part-paid) for the day of the induction. Ms Ouseph was initially of the understanding that because Mr Kandy had not undertaken any work on the day of the induction that there was no requirement to pay him, however, at the hearing she conceded that Mr Kandy should have been paid for the day of the induction.
42.The Tribunal acknowledges that the applicant kept records of money paid to Mr Kandy. The records included the monthly payslips and the corresponding fund transfers which indicated that the net salary had been transferred to Mr Kandy’s bank account. The payslips, however, suggest that the money paid to Mr Kandy each month was in respect of his net monthly salary. The payslips do not record (nor account for) the annual leave claimed to have been taken by Mr Kandy. The payslips for the period from January 2023 until June 2023 indicate that Mr Kandy continued to accrue annual leave at the rate of 12.28 hours each month. By 14 June 2023, Mr Kandy had accrued 61.40 hours of annual leave. This appears inconsistent with the applicant’s evidence that Mr Kandy had been given 10 days paid annual leave (in advance) from 16 January 2023 to 26 January 2023 and was on leave on 16 March 2023.
43.When the above concerns were discussed with Ms Ouseph and Mr Anjel at the hearing, they indicated that Mr Kandy had been paid out all his entitlements, including all his annual leave on his final pay. The evidence before the Tribunal, however, does not verify this assertion. The most recent payslip provided to the Tribunal was for the period from 15 May 2023 to 14 June 2023, which had a payment date of 14 June 2023, indicated a total annual leave accrual of 61.40 hours. Without an accurate record of the leave taken by Mr Kandy, it is difficult to ascertain whether Mr Kandy’s leave entitlements have been properly paid.
44.The Tribunal also notes that the most recent payslip provided to the Tribunal, which was for the period from 15 May 2023 to 14 June 2023, appears to overlap with the period noted on the previous payslip, which was from 17 April 2023 to 16 May 2023. Two days, being 15 May 2023 and 16 May 2023, appear to have been counted on both payslips.
45.At the hearing, Mr Anjel expressed the view that Mr Kandy had been paid his agreed nominated salary in each month and as such the applicant had complied with their obligations towards Mr Kandy. The Tribunal considers this to be a simplistic understanding of the applicant’s obligations, both as an Australian employer and as an approved standard business sponsor. As explained to Ms Ouseph and Mr Anjel at the hearing, the keeping of accurate records is not only required under industrial relations laws, as discussed below, it is also critical in ascertaining whether the applicant, as an approved sponsor, has complied with their obligations to provide equivalent terms and conditions of employment to their sponsored worker, as required by the obligation in reg 2.79.
46.Section 535(1) of the Fair Work Act (2009) imposes an obligation on employers to keep records of the kind prescribed by the regulations. Relevantly, reg 3.36 of the Fair Work Regulations 2009 requires employers to keep, in relation to employees who are entitled to leave, as applicable in this case, a record that sets out any leave that the employee takes and the balance (if any) of the employee’s entitlement to that leave from time to time.
47.The applicant indicated, at different times, that they agreed to give Mr Kandy leave for compassionate reasons, unpaid leave and paid leave in advance. The concern for the Tribunal is not that the leave was requested and/or granted, but that the applicant had not kept records of the leave taken by Mr Kandy. The payslips provided to the Department and the Tribunal do not distinguish between the amount paid to Mr Kandy for ordinary hours worked and the amount paid for leave taken, either in advance or as accrued.
48.Keeping accurate records of how money is applied on behalf of an employee enables the Department to ascertain whether an approved sponsor has complied with their obligation in reg 2.79 to ensure that the sponsored person’s employment conditions are not less favourable that those that would apply to an equivalent Australian worker.
49.The evidence that the leave requests were made verbally in an emergency and that Mr Anjel had kept in his memory the days on which Mr Kandy took leave does not assist the applicant in this case, this is because the obligation in reg 2.82 requires the applicant to keep a ‘record’ which is capable of being verified by an independent person.
50.Having considered the evidence before it, the Tribunal finds that the applicant had failed to comply with their obligation in reg 2.82(3)(e) to keep records of the money applied or dealt with on behalf of the primary sponsored person.
51.Further, as indicated above, the applicant was required under the Fair Work Act 2009 to keep records pertaining to any leave taken by an employee and the balance of that leave. Having failed to keep those records, the applicant had also failed to provide the same when requested to do so by the Department in its request for records and/or information issued on 17 March 2023.
52.Having failed to provide records to the Department which were required to be kept under Commonwealth law (namely the Fair Work Act 2009) and required to be kept by reg 2.82(3)(e), the applicant had consequently failed to comply with their obligation in reg 2.83 to provide the information and/or documents to the Minister as requested. For these reasons, the Tribunal also finds that the applicant has failed to comply with the obligation in reg 2.83.
53.Given the above, the Tribunal finds that the applicant has failed to satisfy their sponsorship obligations in regs 2.82 and 2.83. Accordingly, the Tribunal is satisfied that the prescribed circumstance in reg 2.89 exists for the purpose of s 140M of the Act.
False or misleading information: reg 2.90

One or more of the actions in s 140M may be taken if the sponsor has provided false or misleading information to Immigration or the Tribunal: reg 2.90(2).
What constitutes false or misleading information for the purposes of reg 2.90 is not defined in the Act or Regulations. In Sri Guru Gobind Singh Transport Pty Ltd,[1] it was held that there is no specific requirement in reg 2.90 that the information be false or misleading ‘in a material particular’, which is a phrase used (and defined) in other parts of the Regulations.[2] The absence of the phrase ‘in a material particular’ from reg 2.90 indicates that a circumstance to take action under s 140M of the Act arises if it is established that false or misleading information has been provided. The issue of materiality is one which can be taken into account as part of the prescribed circumstances in reg 2.90(3) when considering what action (if any) to take .[3]
[1] Sri Guru Gobind Singh Transport Pty Ltd v MICMSMA [2022] FCA 118
[2] As in Public Interest Criterion 4020.
[3] Sri Guru Gobind Singh Transport Pty Ltd v MICMSMA [2022] FCA 118 at [63].
In determining whether the applicant has provided false or misleading information, the Tribunal has had regard to the nature of the information provided and whether it is “not true or correct, erroneous”[4] or “leads or guides wrongly”.[5] The Tribunal considers that the information contained in the payslips to be objectively false or misleading in that it does not account for the paid annual leave claimed to have been taken by Mr Kandy from 16 January 2023 and 26 January 2023, and on 16 March 2023. The payslips provided to the Department and the Tribunal indicated that Mr Kandy continued to accrue annual leave entitlements of 12.28 hours each month. The payslip provided for the pay period ended 14 June 2023 indicates that Mr Kandy had accrued a total of 61.40 hours of annual leave. No adjustments or corrections appear to have been made to any of the payslips to reflect the annual leave taken.
[4] Macquarie English dictionary (online).
[5] Ibid
In submissions to the Department, the applicant contended that the incorrect information was due to errors made by their outsourced accountant and that steps would be taken to rectify the payslips. As noted above, the additional payslips provided to the Tribunal did not reflect any corrections or adjustments to the annual leave taken by Mr Kandy. At the hearing, Ms Ouseph acknowledged that the payslips were inaccurate and said they were still learning how to do it. Mr Anjel also remarked that the payslips reflected the wages received by Mr Kandy, which was in accordance with the nominated salary, and that his entitlement to annual leave had been paid.
The Tribunal acknowledges that the applicant paid Mr Kandy his monthly wages, which equivalent to that which was indicated in the approved nomination, however, this does not overcome the circumstance that the payslips for Mr Kandy contained false or misleading information regarding his annual leave balance. The Tribunal has, however, had regard to the submissions made by the applicant as to why the payslips contained inaccurate (false) information further below in its considerations under reg 2.90(3).
On the evidence before it, the Tribunal is satisfied that the applicant has provided false or misleading information to the Department and to the Tribunal. Accordingly, the Tribunal is satisfied that the prescribed circumstance in reg 2.90 exists for the purpose of s 140M of the Act.
For completeness, the Tribunal makes the following remarks regarding the information on the Department’s file, which was the subject of a non-disclosure certificate, alleging that Mr Kandy had paid money to someone in the applicant’s business to be sponsored for a visa and that he was not working for the company. As noted above, this information was disclosed to Ms Ouseph in accordance with the procedure in s 359AA of the Act as it was relevant to whether false or misleading information may have been provided for the purpose of securing Mr Kandy a visa. In commenting on this information, Ms Ouseph strongly denied the allegations. When asked if it was possible someone else in the business may have engaged in such conduct, Ms Ouseph again strenuously denied that this could have occurred. She said she works in public health as a heath clinician and would not engage in such dishonest conduct. Ms Ouseph stated that Mr Kandy had been selected as the most suitable person after they advertised the position as the business needed a production manager. She said they sponsored Mr Kandy because they could not get a suitable person from within the Australian labour market. Ms Ouseph suggested that the allegations may have come from a disgruntled or jealous person or one of the employees.
There is insufficient evidence before the Tribunal to substantiate the allegations that the applicant, or a person associated with their business, had been involved in a payment for visa arrangement or that Mr Kandy was not working for the applicant. Ms Ouseph adamantly denied the allegations. She also provided details of the process leading up to the employment of Mr Kandy, and both she and Mr Anjel provided details about the tasks Mr Kandy performed during his employment with the applicant’s business. Furthermore, ABF officers who attended the applicant’s business premises indicated they had no issue with the tasks being performed by Mr Kandy. This suggests the officers were satisfied that Mr Kandy was working in the applicant’s business. This appears contrary to the allegations which, in part, state that Mr Kandy was not working for the applicant. Without further details or particulars, the veracity of the allegations cannot be established. In the circumstances, the Tribunal gives no weight to the allegations in its considerations.
Conclusion
For the above reasons, the Tribunal is satisfied that relevant circumstances for s 140L(1)(a) exist. Accordingly, it is necessary to consider whether one or more of the actions mentioned in s 140M should be taken.
Action to 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.
In relation to the failure to satisfy a sponsorship obligation, the Tribunal has had regard to the circumstances in reg 2.89(3) as follows.
65.The past and present conduct of the sponsor in relation to Immigration; the delegate noted that the applicant had cooperated with the Department by responding to their most recent request for records and/or information within the specified timeframes. It was also noted that the applicant had not been previously monitored and there have been no previous findings of non-compliance with sponsorship obligations.
66.The number of occasions on which the sponsor has failed to satisfy the sponsorship obligation; as found above, the applicant has failed to comply with the sponsorship obligations in regs 2.82 and 2.83. The non-compliance occurred on one occasion and arose from the failure to keep (and provide) the proper records.
67.The nature and severity of the circumstances relating to the failure to satisfy the sponsorship obligation, including the period of time over which the failure has occurred; the failure to keep (and provide) records relating to paid leave is serious as it relates to the entitlements of an employee. The failure occurred from February 2023 to June 2023, a period of four months, which the Tribunal considers to be a relatively short period of time.
68.The period of time over which the sponsor has been an approved sponsor; the applicant was approved as a sponsor on 25 August 2022 for a period of five years.
69.Whether, and the extent to which, the failure to satisfy the sponsorship obligation has had a direct or indirect impact on another person; The Tribunal considers that the failure to keep (and provide) the proper records had an impact on Mr Kandy and on the Department. In relation to Mr Kandy, while he may have received his nominated wages each month, he was also entitled to have an accurate record of his annual leave balance, as this may have impacted the payment made to him in his final pay. The failure to keep the required records and to provide them to the Department also had an impact on the Department’s ability to assess the applicant’s compliance with their obligation in reg 2.79 to ensure that Mr Kandy’s employment conditions were not less than those that would have been provided to an equivalent Australian worker. Ms Ouseph gave evidence at the hearing that, since the cancellation of their sponsorship approval by the Department, Mr Kandy ceased working for them. Ms Ouseph said she regrets what occurred to Mr Kandy as their errors in not keeping accurate records had led to him not being able to maintain his employment with them. It appears that the applicant’s failure to satisfy their sponsorship obligations also had a direct impact on Mr Kandy’s ability to maintain his employment with them.
70.Whether, and the extent to which, the failure to satisfy the sponsorship obligation was intentional, reckless or inadvertent; Ms Ouseph acknowledged that there were errors in maintaining accurate records, but she submitted that this was inadvertent. It was also submitted that the errors were made by the outsourced accountant. The Tribunal considers that the applicant has been reckless in complying with their record keeping obligations. Mr Anjel’s evidence was that he kept (in his memory) a record of the leave taken by Mr Kandy. However, this information does not appear to have been passed on to the outsourced accountant (or the person who prepared the payslips) because no verifiable records were kept of the paid annual leave taken by Mr Kandel or the number hours he attended the induction, on 5 December 2022, for which Ms Ouseph indicated he should have been paid.
71.Whether, and the extent to which, the person has cooperated with Immigration, including whether the person informed Immigration of the failure; the Tribunal is satisfied on the evidence before it that the applicant has been cooperative with the Department throughout the monitoring process. The applicant did not inform the Department of the failure to comply with their sponsorship obligations. They seem to have been oblivious to the failure until it was identified by the Department.
72.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; no steps appear to have been taken to rectify the failure, though the applicant’s director has indicated that they will improve their processes in future.
73.The processes (if any) the person has implemented to ensure future compliance with the sponsorship obligation; At the hearing, Ms Ouseph said she will inform herself of the requirements and will take more care, and responsibility, in future to ensure records are accurate.
74.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 Tribunal is not aware of any other sponsorship obligations that the applicant has failed to comply with.
75.Any other relevant factors: The representative submitted that the applicant has accepted the errors made regarding the payslips and they understand the seriousness of the breach and the importance of complying with their sponsorship obligations. The representative submitted that cancellation of the sponsorship approval would cause hardship and requested the Tribunal to consider an alternative action, such as a bar.
76.In relation to the provision of false or misleading information, the Tribunal has had regard to the circumstances in reg 2.90(3) as follows.
77.The purpose for which the information was provided; the information (being the payslips for Mr Kandy) was provided to the Department in response to a request for information made under reg 2.83.
78.The past and present conduct of the sponsor in relation to Immigration; the applicant was cooperative with the Department throughout the monitoring process and there is no evidence before the Tribunal which suggests that their past conduct in relation to Immigration is of concern.
79.The nature of the information; the information related to the annual leave entitlements for Mr Kandy. The payslips failed to accurately record the leave taken by Mr Kandy in each pay period and the balance of that leave.
80.Whether, and the extent to which, the provision of false or misleading information has had a direct or indirect impact on another person; for the reasons discussed above, the Tribunal considers that the provision of the false or misleading information regarding the leave taken by Mr Kandy and the balance of that leave had a direct impact on Mr Kandy and on the Department.
81.Whether the information was provided in good faith; the Tribunal is prepared to accept that the false or misleading information contained in the payslips was not provided with an intention to deceive the Department or the Tribunal. The false or misleading information contained in the documents appears to have arisen as a result of the applicant’s carelessness as to their obligations to ensure they kept accurate records of their employee’s annual leave entitlements.
82.Whether the sponsor notified Immigration immediately upon discovering that the information was false or misleading; the applicant did not notify the Department of the false or misleading information. They appear to have only appreciated that the information was false or misleading after it was brought to their attention (and explained to them) by the Tribunal.
83.Any other relevant factors; the representative submitted that the applicant is now aware of their obligation, they acknowledge their mistake and have undertaken to ensure they keep accurate records in future.
Conclusion
The applicant was approved on 25 August 2022 for a period of five years, meaning the applicant’s approval was in effect until 25 August 2027. The Department cancelled the applicant’s approval within the first year. A decision to cancel the applicant’s sponsorship approval constitutes ‘adverse information’ under reg 1.13A. Departmental policy indicates that, in relation to any future applications for approval as a sponsor or for approval of a nomination, it is unlikely to be reasonable to disregard adverse information in circumstances where an applicant has had the sponsorship approval cancelled by the ABF in the preceding five years.[6] This effectively means that the applicant is unlikely to be approved as a sponsor or have a nomination approved by the Department until after 21 June 2028, being five years from the date of the sponsorship cancellation. The Tribunal considers the adverse consequences of cancelling the applicant’s approval as a sponsor to be disproportional to the findings made by the Tribunal regarding the applicant’s the non-compliance with sponsorship obligations and the provision of false or misleading information, which arose from the same failure of the applicant to maintain proper records.
[6] Policy – Migration Regulations – Divisions – Adverse information – Regulation 1.13A and 1.13B, 3.4.2.3 Circumstances in which it is unlikely to be reasonable to disregard adverse information.
There is no evidence before the Tribunal which suggests that the applicant had underpaid or exploited Mr Kandy. There is also no evidence which suggests that the applicant has been found to be breach of employment laws. While there were allegations about the employment of the sponsored person being a payment for visa sponsorship arrangement, there was no credible evidence before the Tribunal to substantiate the allegations.
Having regard to all the circumstances, as discussed above, the Tribunal considers a bar of a period of 12 months to be more commensurate with the nature of the applicant’s failure to comply with their sponsorship obligations in regs 2.82 and 2.83 and the consequent false or misleading information provided to the Department and/or the Tribunal.
Accordingly, the Tribunal sets aside the Department’s decision to cancel the applicant’s approval as standard business sponsor and substitutes a decision to bar the applicant from sponsoring more people under the current approval for a period of 12 months from the date of the delegate’s decision.
DECISION
88.The Tribunal sets aside the decision under review and substitutes a decision to bar the applicant for a period of 12 months (from the date of the delegate’s decision) from sponsoring more people under the terms of the existing approval.
R. Skaros
Senior 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.
…