Hitec Welding Pty Ltd ATF J And M Lewandowski Family Trust (Migration)

Hitec Welding Pty Ltd ATF J And M Lewandowski Family Trust (Migration) [2019] AATA 1915 (27 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Hitec Welding Pty Ltd ATF J And M Lewandowski Family Trust
CASE NUMBER:  1614989
DIBP REFERENCE(S):  OPF2015/4112 OPF2016/3192 OPF2016/989
MEMBER:Bridget Cullen
DATE:27 March 2019
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal varies the decision under review by varying the period of the sponsorship bar under s.140M(2) from five (5) years to three (3) years from the date of the Department’s decision, 2 September 2016.

Statement made on 27 March 2019 at 7:29pm
CATCHWORDS
MIGRATION – cancellation – sponsorship approval – compliance with sponsorship obligations – equivalent terms and conditions to nomination – underpayment of employees – keeping records – failure to produce records within requisite timeframe – not deliberate – ineffective business management – steps taken to mitigate future issues – notify Immigration of certain event – two notification delays – cessation of employment – false or misleading information – double contracting – contravention of law – Fair Work Commission – regulating authority – unfair dismissal decisions – not a contravention of Fair Work Act 2009 – action to be taken – fourth time being monitored by the Department – inability to meet its obligations – decision under review varied
LEGISLATION
Migration Act 1958 (Cth), ss 140L, 140M, 140XF
Migration Regulations 1994 (Cth), rr 1.13A, 2.57, 2.79, 2.83, 2.84, 2.89, 2.90, 2.92
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 an approved standard business sponsor of overseas skilled workers under the Temporary Work (Skilled) (Subclass 457) visa programme on 29 June 2006. The Applicant’s Standard Business Sponsorship ceased on 18 July 2016.
On 2 September 2016, the delegate decided to bar the sponsor from making future applications for approval as a standard business sponsor for five years under s.140M on the basis that they breached several sponsorship obligations, provided false and misleading information to the Department, and had contravened Commonwealth, State or Territory laws.
The hearing was conducted jointly with the review of a related Employer Nomination (subclass 186) Refusal decision made by the Department on 13 October 2016 refusing to allow the Applicant approval to nominate Mr Arvin Hamto Banez (“Mr Banez”) in the Proposed Occupation of Metal Fabricator (ANZSCO 322311). The delegate found the Applicant did not meet r.5.19(3)(g)(ii) (and therefore did not meet r.5.19(3)(g)) because the delegate did not consider it reasonable to disregard adverse information that the Applicant had been sanctioned via the imposition of a 5-year sponsorship ban. The Tribunal also heard the related refusal of the Employer Nomination (subclass 186) visa decision made in relation to Mr Banez on 10 February 2017.
The Applicant appeared before the Tribunal on 2 March 2018 to give evidence and present arguments. The Tribunal received oral evidence from Mr Joe Lewandowski, the Applicant’s director; Mr Peter Stupak, a project manager/electrical engineer employed by the Applicant; Mr Raymond Ting, the Applicant’s accountant; and Mr Banez, the nominee and visa applicant.
The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.
The Applicant was represented in relation to the review by Mr Guy Gilbert, SC, of counsel, who was instructed by the Applicant’s registered migration agent and solicitor, Mr Ricky Bustos of M+K Lawyers. The representatives attended the Tribunal hearing.
For the following reasons, the Tribunal has decided to vary the decision under review by varying the period of the sponsorship bar under s.140M(2) from 5 years to 3 years from the date of the Department’s decision, 2 September 2016.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Applicant has provided the Tribunal with some information about the nature of its business operations. That material indicates that:
HITEC Welding, founded in 1995, is a privately owned and operated Australian Company based in Pinkenba Queensland which has been directly involved in the design, manufacture and installation of High Pressure Piping and Vessels, structural steelwork, FAT and Integrated Factory Acceptance Test (IFAT) of electrical & instrumentation and on-site installation to the Petrochemical, Gas, Chemical, Mining and Minerals Processing and the Coal Seam Gas industries. Hitec also specializes on the design, engineering and drafting of electrical and control panels including MCC (Motor Control Centre), VSD (Variable Speed Drive), UPS & Batteries and RTU (Remote Terminal Units).
The Applicant has sponsored, as part of its workforce, overseas workers for a lengthy period of time. The Applicant was first approved as a standard business sponsor by the Department on 29 June 2006. The Applicant was again approved in 2008, 2010, and 2013. At the time of the Department’s 2 September 2016 decision to impose a 5-year sponsorship bar on the Applicant, there were thirty Temporary Business Entry (subclass 457) visa holders linked to the Applicant, including Mr Banez.
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.
On 26 October 2015, the Department commenced a sponsor monitoring audit of the Applicant. This was the fourth time the Department had conducted a sponsor monitoring audit of the Applicant. The first two audits, conducted in 2009 and 2012, resulted in the Department finding that the Applicant was satisfactorily meeting their sponsorship requirements.
In March of 2015, the Department issued the Applicant with a warning for failings under r.2.89 due to failure to meet r.2.82 – Obligation to keep records; and r.2.84 – Obligation to notify Immigration of certain events.
The Delegate’s decision states that on 16 November 2015, Departmental Inspectors conducted a site visit to the Applicant’s address. The Department attempted to obtain records onsite, however, due to “computer server issues”, could not obtain all records requested. The Departmental Inspectors obtained the records they could, and issued a Commencement of Monitoring Letter, with a due date of 1 December 2015.
A partial response was received by the Department from the Applicant on the 1 December 2015 due date. On 4 December 2015, the Department notified the sponsor that there were specific documents which remained outstanding. On 12 December 2015, the Applicant provided some of the documents outstanding.
The Department then issued, on 22 March 2016, a s.140XF Notice, with a due date of 5 April 2016; a partial response was provided on 30 March 2016. Another s.140XF notice was issued to the Applicant on 5 April 2016, requesting the records still outstanding, with a due date of 12 April 2016. On 13 April 2016, the Applicant provided the Department with a further partial response.
That same day, an email was sent by the Department to the Applicant, advising the Applicant of the specific documents that remained outstanding. These final outstanding documents were eventually provided to the Department by the Applicant on 15 April 2016.
On 19 April 2016, the Department delivered a Notice of Intention to Take Action (NOITTA) to the Applicant, with a due date of 3 May 2016. After two extensions, the Applicant provided its response on the final due date of 12 May 2016. The alleged breaches, and Applicant’s response thereto, are explained in further detail below.
Does a circumstance for the taking of an action exist?
In the present case, the delegate found that circumstances existed to bar the Applicant from making future applications for approval as a standard business sponsor.
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).
The delegate found that the sponsor failed to satisfy three obligations, which were identified as follows:
-r.2.79(3): Obligation to ensure equivalent terms and conditions of employment – Underpayment of three staff in the monitoring period;
-r.2.83: Obligation to provide records and information to the Minister – Failure to provide certain records requested when Departmental Inspectors issued a Commencement of Monitoring Letter; and
-r.2.84: Obligation to provide information to Immigration when certain events occur – The sponsor was alleged to have not notified to the Department of cessation of employment by three employees.
Equivalent terms and conditions to nomination, r.2.79(3)
In relation to the breach of r.2.79(3), The Department alleged that the Applicant underpaid three of its staff, for amounts of $1,823.43, $663.00 and $3,897.60 during the reporting period. Further concerns were raised by the delegate, who believed the Applicant was paying superannuation at the reduced salary for one of the employees.
The Applicant accepted the breach in relation to underpayment of the employees. The Applicant said, in relation to two of the employees, that it had been paying the employees the salary that they had already agreed to. The Applicant admitted that the base salary figures provided to the Department were increased for these two employees, in order to make the nomination application compliant with expected salary levels for Departmental approval. The Applicant stated that it regretted breaching its obligations in relation to these employees.
The Applicant said, in relation to the third employee, that the underpayment was caused by market pressures to reduce costs, and as a consequence of the Applicant not properly understanding its sponsorship obligations until the Department raised its concerns. At the hearing, Mr Lewandowski explained that the company was under enormous financial pressure following its main client requesting a price reduction of between 30-35% of its normal rates for tendering new project work. This evidence was consistent with both the financial documentation provided to the Tribunal by the Applicant, and the evidence of Mr Peter Stupak, a project manager/electrical engineer employed by the Applicant. The Tribunal accepts that the Applicant company has experienced the financial and management challenges that are generally associated with an drop in turnover.
The Tribunal finds that, despite the reasons for the Applicant’s motivation, it has underpaid the three employees as set out in the Delegate’s decision record. This finding is consistent with the Applicant’s own admissions. The Tribunal finds that in consequence of this conduct, the Applicant has breached r.2.79(3).
Obligation to provide records, r.2.83
In relation to the alleged breach of r.2.83, the Department found that the Applicant failed to provide records and information as requested by the Department in the Commencement of Monitoring Letter issued on 16 November 2015, and that multiple items requested in it were not provided by the due date. In the delegate’s decision, concern was expressed that it took issuing multiple s.140XF Notices before the Applicant eventually provided some of the documents and information requested. The Delegate also noted in their decision that the Applicant’s response to the s.140XF Notice was also not received by the Department within the time frame provided.
The Applicant, whilst conceding the factual circumstances set out by the delegate, contended in its response to the NOITTA that there was no deliberate breach of their obligations in responding late, or necessitating that the Department issue multiple s.140XF Notices. The applicant says that it believed all necessary documents had been provided to the Department by 14 December 2015, and that there was no intention to delay or avoid the provision of documentation. The Applicant further contended that if there were delays in providing information, these were technical breaches, stemming from a misunderstanding of the requirements. Mr Raymond Ting, the Applicant’s accountant, gave evidence at the hearing that he was under pressure, and taking advice from a Migration Agent. He explained that the Applicant operated, at that point in time, with minimal administrative staff, and did not have software with the capability of expeditiously collating the information sought by the Department.
The Tribunal notes that this was the fourth time that the Applicant had been monitored by the Department, and therefore should have been aware of the sort of information that the Department might require, particularly given the size of its overseas worker employment pool. The Tribunal accepts that the Applicant did genuinely struggle to comply within the 14-day period of time expected. The Tribunal considers that this struggle is as a result of poor prior planning, and lack of prioritisation of computer upgrades and a desire to reduce administrative costs. The Tribunal does not consider the delay by the Applicant to have been a deliberate effort to obfuscate. The Tribunal accepts the evidence given by Mr Ting that steps have now been taken to try and mitigate future issues.
Ultimately, while the Applicant did produce the records required, it did not do so within the time provided. It is important that the Department is able to timely monitor sponsor activity, and it can only do so effectively if sponsors respond to requests for information. The Tribunal finds that, in failing to produce records within the timeframe provided in the s.140XF Notices, the Applicant has breached r.2.83.
Obligation to notify Immigration of certain events, r.2.84
The Applicant concedes that a breach of r.2.84 occurred when the Applicant did not advise the Department of the cessation of employment of several employees. In response to the Department’s Commencement of Monitoring Letter, the Applicant advised of thirteen events; eleven cessations and two ‘did not commence’ events. Of the events notified, the Delegate determined that only three of the events related to the current period of monitoring, and as such, focussed on these.
The Applicant, in their NOITTA accepted that two of the events did not meet the Department’s requirements to be notified within twenty-eight days. However, they contended that one of the three employees never commenced work, and as such, there was no notifiable event. The Department accepted the Applicant’s submission in respect of this event, and as such, only concerned itself with the two notification delays that related to the most recent monitoring period.
The Applicant submits that, of these employees, the first ceased employment on 8 July 2015, and the Department was notified on 24 August 2015 (approximately 2.5 weeks following the notification due date). The second employee resigned, and the Applicant submits it was distracted by a number of threats and unsubstantiated allegations made by that employee, such that it was distracted and forgot to notify the Department.
In both circumstances, the Applicant admits that it failed to notify Immigration of the cessation of employment within 28 days. The Tribunal accepts that the failures to notify were, as with the failure to provide records in timely fashion, the result of ineffective business management. The Tribunal finds that the Applicant has breached r.2.84.
Having found that the Applicant has breached r.2.79(3); r.2.83; and r.2.84, the Tribunal is satisfied that the prescribed circumstance in r.2.89 exists for the purpose of s.140M of the Act.
False or misleading information: r.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: r.2.90(2).
The Department, in its NOITTA, claimed the Applicant breached this provision by providing false and misleading information to the Department; in the form of engaging in double contracting. This is where the employment contracts of two employees provided to the Department contained higher salaries than the employees were earning, as another contract had been signed on a lower wage.
The Applicant’s response to the NOITTA confirmed that they did provide the false or misleading information to the Department, and claimed it was due to a combination of market pressures and advice received from their former registered migration agent. They said the advice they received was the salaries would need to be increased or the nominations of two of the employees would not be approved.
There was also a breach alleged in the NOITTA that due to the underpayment for one of the employees mentioned in the r.2.79 breach. The employee’s nomination was approved with a salary of $55,328 per annum. However, the underpayments alleged meant that the Applicant was paying the employee at a salary of $47,424.
The Applicant admits that it breached r.2.90. It explains, in both its submissions in response to the NOITTA and before the Tribunal, that it accepts these breaches are serious, and further that a warning will not suffice as a penalty.
Mr Lewandowski explained that he took these actions on the advice of his former Migration Agent. He has now engaged a new Migration Agent, who is also a solicitor, on a retainer basis, and trusts that he is receiving more reputable advice. Mr Lewandowski says that he is now reviewing human resources records on a weekly basis, which he is doing in consultation with a newly hired Human Resources assistant that works a few days per week.
The Applicant has, as a consequence of its own conduct, suffered a corresponding loss of business and therefore a loss of income and profit. The inability of the applicant to engage a stable workforce has resulted in it having to decline to tender for work. The Applicant has historically relied upon overseas trained labour to perform its work. The Applicant explained, through Mr Lewandowski, and Mr Stupak, that the business is set up to perform large size infrastructure projects. Without a secure workforce, the Applicant says that it has only been able to tender for smaller projects, which are not profitable given the costs of set up.
The Tribunal accepts that the Applicant has experienced an economic downturn. The Tribunal does not have sufficient evidence to conclude that this is a result of the problems the Applicant has experienced since it has been unable to sponsor workers. The Tribunal does accept that from the Applicant’s perspective, it is not able to manage its work without the assistance of an overseas trained labour workforce, and that it is genuinely concerned about its viability in the longer term.

Accordingly, the Tribunal is satisfied that the prescribed circumstance in r.2.90 exists for the purpose of s.140M of the Act.
Contravention of law by sponsor: r.2.92(2)
The Minister may take one or more of the actions in s.140M if the sponsor has been found by a court or competent authority to have contravened a Commonwealth, State or Territory law: r.2.92(2). The term ‘‘competent authority’’ is defined for these purposes in r.2.57 and means a Department or regulatory authority that administers or enforces a law that is alleged to have been contravened.
The delegate, in deciding there had been a contravention of law, relied on two unfair dismissal decisions made by the Fair Work Commission (“FWC”), in the matters of:
·Mr Danilo Clarito v Hitec Welding Pty Ltd [2014] FWC 9453 on 24 December 2014, relates to issues of unfair dismissal on the grounds of serious misconduct arising from the employee’s refusal to attend a meeting without a union representative present; and
·Mr Gregorio Garcia v Hitec Welding Pty Ltd [2015] FWC 715 on 2 February 2015, relates to issues of unfair dismissal on the grounds of serious misconduct arising from the employee’s urinating in areas other than the toilet areas of the work site.
Both Mr Clarito and Mr Garcia were Subclass 457 visa holders.
In Clarito v Hitec, the FWC found in favour of the visa holder, and ordered the Applicant to pay Mr Clarito $24,741.00 (less tax) and $2,100.33 superannuation.
In Garcia v Hitec, the FWC found in favour of the visa holder, and ordered the Applicant to pay Mr Garcia $15,558.00 (less tax) and $1,400.22 superannuation.
The Applicant contested this breach in its response to the NOITTA, saying that the Fair Work Commission is not a regulating authority and therefore falls outside of the definition provided by r.2.57. They further argued that the NOITTA failed to specify specific contraventions that occurred.
Regulation 2.92(2) provides that a circumstance in which the Minister may bar or cancel an approval as a sponsor under s.140L(1)(a)(ii) of the Migration Act 1958 is where the Minister is satisfied that the sponsor has been found by a court or a competent authority to have contravened a Commonwealth, State or Territory law (emphasis added).
There is no definition of the term ‘contravened’ in the Act or Regulations, nor is there any specific indication as to what laws are covered by this provision. The Tribunal notes that the Procedural Advice Manual (“PAM”) does not provide any guidance on what is required for a contravention of law, other than a formal finding by the court or competent authority that the person/entity has contravened a law.
For purposes of this review, the Tribunal must consider whether the FWC’s decisions in Clarito v Hitec and Garcia v Hitec, in relation to unfair dismissal, are ‘contraventions of law’ such that r.2.92 is satisfied.
The Tribunal has considered the views expressed by the delegate in the decision record and appreciates that the delegate sought to take what might be called a purposive approach to the issue, favouring a broad view of what constitutes a contravention of law, which might capture actions such as unfair dismissal which intrude upon statutory protections. However, r.2.92(2) concerns the finding made by the court or competent authority, such that it would be necessary to characterise the FWC’s decisions as a finding of a contravention of law. This requires consideration of the unfair dismissal provisions in the Fair Work Act 2009 and the nature of the Commissioner’s decisions.
Fair Work Act 2009 (Cth)
The unfair dismissal provisions are contained in Part 3-2 of the Fair Work Act 2009. The objects of Part 3-2 are set out in s.381. These objects include establishing a framework for dealing with unfair dismissal that balances the needs of business (including small business) and the needs of employees.
Certain persons are protected from unfair dismissal (s.382), and may apply for an order granting a remedy if they have been unfairly dismissed (ss. 390 and 394). The Tribunal has carefully considered all of Part 3-2 of the Fair Work Act 2009, and notes that there is not, anywhere therein, a reference to an unfair dismissal being a ‘contravention’ of law or penalties imposed where a case of unfair dismissal has been established. Instead, Part 3-2 is framed as enabling the FWC to order remedies (reinstatement or compensation), if satisfied that a person has been unfairly dismissed. At this point, the Tribunal also notes that neither decision of the FWC relevant here makes reference to contraventions of law or imposition of penalties.
In order to determine whether the intention of Part 3-2 could be interpreted to imply meaning a contravention of law (as it does not expressly do so), the Tribunal has examined the Fair Work Act 2009 broadly, to consider other parts of the Act for comparison. In this respect, the Tribunal notes that Part 3-1 provides general workplace protections. The objectives of Part 3-1 are set out in s.336 and include protection of defined workplace rights and relief for persons discriminated against or adversely affected as a result of contraventions of the Part 3-1. Broadly, Part 3-1 prohibits the taking of adverse action, such as a dismissal, because of certain defined ‘workplace rights’. Division 8, Subdivision A of the Fair Work Act 2009 is titled ‘Contraventions involving dismissal’. However, s.365 (in Subdivision A) states that the dismissal disputes covered by Subdivision A are only in relation to dismissals in contravention of Part 3-1.
Part 6-4 of the Fair Work Act 2009 also contains unlawful termination laws, and permits applicants to make an unlawful termination application to the FWC if there has been a contravention of s.772 (Employment not to be terminated on certain grounds). More broadly, in contrast to the unfair dismissal provisions, various other provisions in the Act explicitly prohibit contravention of certain provisions. For example, a person cannot contravene:
·a provision of the national employment standards (s.44);
·a term of a modern award (s.45);
·an enterprise agreement (s.50);
·a workplace determination (s.280); or
·a national minimum wage order (s.293).
These provisions are also civil remedy provisions in relation to which Part 4-1 of the Fair Work Act 2009 provides for applications to be made to various courts for contraventions or proposed contraventions.
If the unfair dismissal decisions made in relation to Mr Clarito and Mr Garcia could be considered to have been made under either Part 3-1, or s.772 of the Fair Work Act 2009, the Tribunal would then consider that it would be fair to say they were in relation to a contravention of law. However, this is not the case before the Tribunal here.
Considering the Act as a whole, the Tribunal’s view is that the Commissioner’s findings that Mr Clarito and Mr Garcia were unfairly dismissed does not constitute a finding of a contravention of law. As set out earlier in these reasons, the Fair Work Act 2009 does specify certain laws specific to unlawful termination and general protection dismissals. But, as the unfair dismissal provisions have not been legislated as standards or protections which must not be contravened, it is difficult to characterise the FWC’s decisions as more than an order that Mr Clarito and Mr Garcia were owed a civil remedy.
The Tribunal also notes that if an order is made by the FWC under Part 3-2, s.405 provides that a person must not contravene a term of the order. Section 405 is a civil remedy provision. Section 539 of the Fair Work Act 2009 allows for a former employee to seek orders from the Commission in relation to contraventions of the civil remedy provisions. For example, if the Applicant had not abided by the FWC’s order to pay Mr Clarito and Mr Garcia compensation, they could seek civil remedy in the courts, as the failure to comply with the FWC order would be a contravention of the civil remedy provisions. There is no information before the Tribunal suggesting that the Applicant did not comply with the orders made by the FWC for it to pay Mr Clarito and Mr Garcia compensation.
The Tribunal considers that an interpretation that there has not been a contravention of the Fair Work Act 2009 in the circumstances presented here is not inconsistent with ‘contravention of law’ as it is mentioned in the context of the ‘adverse information’ definition contained in r.1.13A of the Migration Regulations 1994. ‘Adverse information’ is defined in r.1.13A as (relevantly) meaning any adverse information relevant to a person's suitability as a sponsor or nominator which includes contraventions of a law of the Commonwealth. For applications made before 18 March 2018, the breaches of law related to laws including discrimination, immigration, and industrial relations (no laws are specified for applications after this date). Whilst a purposive approach could conceivably include “unfair dismissal” under the industrial relations umbrella, it is not specifically mentioned.
Accordingly, the Tribunal finds that the Applicant has not contravened a law as a consequence of being ordered by the Fair Work Commission to make payments to Mr Clarito and Mr Garcia. Consequently, the Fair Work Commission’s findings in relation to the Applicant’s unfair dismissal of both Subclass 457 visa holders do not satisfy the requirements in r.2.92(2).
Accordingly, the Tribunal is not satisfied that the prescribed circumstance in r.2.92(2) 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.
The Tribunal has set out earlier in these reasons, its view in relation to the Applicant’s evidence about the contraventions. Ultimately, the Tribunal has found that the Applicant contravened:
·r.2.79(3) – Equivalent terms and conditions to nomination;
·r.2.83 – Obligation to provide records;
·r.2.84 – Obligation to notify Immigration of certain events; and
·r.2.90 – Provision of false or misleading information.
While the Tribunal accepts the evidence offered by the Applicant in relation to the contraventions of r.2.79(3); r.2.83; and 2.84 in essence – that it did not intend to mislead the Department, it considers the Applicant’s inability to meet its obligations serious in a cumulative sense.
As the delegate sets out in the decision record, this was the fourth time the Applicant had been monitored by the Department. In 2009 and 2012, the Department recorded a satisfactory outcome following the monitoring. However, on 5 March 2015, the Department recorded a warning, finding r.2.82 and r.2.84 failures. This should have been a shot across the Applicant’s boughs at that point, inspiring it to get its paperwork and computer systems up to speed. The Applicant did not, at that point, make it a priority to ensure that it could readily comply with monitoring. The Department should not be in a position where it has to waste time and resources dragging information out of sponsors through issuing multiple notices. Ultimately, the Applicant did produce the requested information and documents, but it did not do so within the time that it should.
The Applicant has taken some steps to improve these processes. They are, in the Tribunal’s view, fairly minimal, albeit positive steps to improve recordkeeping and human resources generally.
The Tribunal accepts the evidence of Mr Lewandowski that this episode has caused him to see the importance of compliance. The Tribunal accepts that, as a small business owner, it is easy to be distracted by the more hands on aspects of business. The Applicant made admissions in relation to its conduct at an early juncture, in its 12 May 2016 response to the Department’s NOITTA.
The Applicant has provided positive letters of reference from employees, and a high ranking Council official that attest to the Applicant’s generally being a good corporate citizen. The Tribunal notes that the letter from the Council official does not acknowledge awareness of the Applicant’s current circumstances. The Tribunal considers the references to fall within the r.2.89(3)(k) “any other relevant factor” consideration, and whilst the Tribunal is not prepared to place significant weight on the references, acknowledges the positive nature of the information contained therein. The Council official’s letter acknowledges that the Applicant has “provided stable and world class employment opportunities for a diverse range of employees from many cultural backgrounds and interests.”
While the Applicant accepts that it provided false and misleading information in relation to the Department, and took full responsibility for it in response to the NOITTA, the Tribunal considers this to be a very serious matter that required intent on the part of the Applicant. The Applicant blames its former registered migration agent for leading it astray, and says that it was instructed to increase the base salary within the nominations, to ensure the Department approved the nominations. Regardless of whether an agent provided this advice, it should be obvious to a sponsor that providing incorrect information to the Department is not acceptable in any circumstances, regardless of what any migration agent may say. Conduct of this nature compromises the integrity of the programs that permit Australian sponsors to employ foreign nationals to work in Australia.
The Tribunal accepts that it has been more difficult for the Applicant to source workers following the Department’s decision, and that this may have contributed to a reduction in income and profit. The Tribunal accepts the financial records of the Applicant to the extent that they demonstrate a reduction in turnover, but stops short of concluding that this must be as a consequence of the Department’s decision as there is insufficient evidence for the Tribunal to determine that.
Considering the totality of the circumstances, and having regard to the prescribed criteria, the Tribunal finds that under s.140M the Applicant should be barred from making application for approval as a standard business sponsor for a three (3) year period from the date of the Department’s decision on 2 September 2016.
DECISION
The Tribunal varies the decision under review by varying the period of the sponsorship bar under s.140M(2) from five (5) years to three (3) years from the date of the Department’s decision, 2 September 2016.
Bridget Cullen
Member

ATTACHMENT – Extract from the Migration Regulations 1994
2.89   Failure to satisfy sponsorship obligation
…
(3) For paragraph 140L(1)(b) of the Act, the criteria that the Minister must take into account in determining what action (if any) to take under section 140M of the Act in relation to the circumstance mentioned in subregulation (2) are:
(a)     the past and present conduct of the person in relation to Immigration; and
(b)    the number of occasions on which the person has failed to satisfy the sponsorship obligation; and
(c)     the nature and severity of the circumstances relating to the failure to satisfy the sponsorship obligation, including the period of time over which the failure has occurred; and
(d)    the period of time over which the person has been an approved sponsor; and
(e)     whether, and the extent to which, the failure to satisfy the sponsorship obligation has had a direct or indirect impact on another person; and
(f)     whether, and the extent to which, the failure to satisfy the sponsorship obligation was intentional, reckless or inadvertent; and
(g)    whether, and the extent to which, the person has cooperated with Immigration, including whether the person informed Immigration of the failure; and
(h)    the steps (if any) the person has taken to rectify the failure to satisfy the sponsorship obligation, including whether the steps were taken at the request of Immigration or otherwise; and
(i)    the processes (if any) the person has implemented to ensure future compliance with the sponsorship obligation; and
(j)    the number of other sponsorship obligations that the person has failed to satisfy, and the number of occasions on which the person has failed to satisfy other sponsorship obligations; and
(k)     any other relevant factors.
…
2.90   Provision of false or misleading information
…
(3) For paragraph 140L(1)(b) of the Act, the criteria that the Minister must take into account in determining what action (if any) to take under section 140M of the Act in relation to the circumstance mentioned in subregulation (2) are:
(a)     the purpose for which the information was provided; and
(b)    the past and present conduct of the person in relation to Immigration; and
(c)     the nature of the information; and
(d)    whether, and the extent to which, the provision of false or misleading information has had a direct or indirect impact on another person; and
(e)     whether the information was provided in good faith; and
(f)     whether the person notified Immigration immediately upon discovering that the information was false or misleading; and
(g)    any other relevant factors.
…
2.92     Contravention of law
…
(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 circumstances mentioned in subregulation (2) are:
(a)     the past and present conduct of the person; and
(b)    the nature of the law that the person has contravened; and
(c)     the gravity of the unlawful activity; and
(d)    any other relevant factors.
…

[2019] AATA 1915

27 March 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Remedies

Breach