Inspection Services Queensland Pty Ltd (Migration)

[2023] AATA 3991

Inspection Services Queensland Pty Ltd (Migration) [2023] AATA 3991 (20 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Inspection Services Queensland Pty Ltd

REPRESENTATIVE:  Mr Chris Mossman

CASE NUMBER:  2206963

HOME AFFAIRS REFERENCE(S):          OPF2021/3458

MEMBER:K. Chapman

DATE:20 November 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision under review.

Statement made on 20 November 2023 at 4:14pm  

CATCHWORDS

MIGRATION – action in relation to standard business sponsorship – sponsorship bar – equivalent terms and conditions, provision of information in specified circumstances, ensuring sponsored person works in nominated occupation and provision of false or misleading information – underpayment rectified – cessation of employment and change of work duties not notified – sponsorship bar of associated company not declared – certain matters conceded in response to department’s notice – submission of no, minor or inadvertent breaches or mitigating circumstances – no response to invitation to comment and loss of entitlement to hearing – bar period now ceased – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 140L(1)(a), 140M(1)(c), 359(2), 359A, 359C(2), 360(3), 363A, 375A

Migration Regulations 1994 (Cth), rr 2.79, 2.84(3)(a), (aa), 2.86, 2.89(2), 2.90(2)

CASES

Hasran v MIAC [2010] FCAFC 40

Huo v MIMA [2002] FCA 617

Manna v MIAC [2012] FMCA 28

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, on 26 April 2022, to take an action under s 140M of the Migration Act 1958 (Cth) (‘the Act’) in relation to the applicant’s standard business sponsorship.

2.The applicant, Inspection Services Queensland Pty Ltd, was approved as a standard business sponsor by the Department of Home Affairs (‘the Department’). Following a period of sponsorship monitoring, that included a site visit, the Department issued the applicant with a Notice of Intention to Take Action (NOITTA) on 28 January 2022.

3.The Department alleged that the applicant breached various sponsorship obligations and provided false and misleading information in its standard business sponsorship application. Such obligations included reg 2.79 (to ensure equivalent terms and conditions of employment for a sponsored person), reg 2.84 (to provide information to Immigration when certain events occur), reg 2.86 (to ensure a sponsored person works in the nominated occupation) and reg 2.90 (the obligation not to provide false or misleading information).

4.The applicant provided a response to the NOITTA, conceding some matters and contesting others. On 26 April 2022, the delegate at the Department decided to act, pursuant to s 140M of the Act, barring the applicant from sponsoring more people under the terms of the approved standard business sponsorship until 24 October 2023. On 13 May 2022, the applicant applied to the Tribunal for review of the decision to take action under s 140M of the Act, providing a copy of that decision with their application for review.

5.On 24 August 2023, the Tribunal provided to the applicant a copy of a non-disclosure certificate, pursuant to s 375A of the Act, issued by the Department on 26 May 2022. The Tribunal invited comment upon the validity of this certificate. Further, on same date and pursuant to s 359(2) of the Act, the applicant was invited to provide information outlining why a sponsorship bar should not be imposed.

1. On 7 September 2023, the applicant, through their solicitor (‘the representative’), responded to the Tribunal’s invitation of 24 August 2023 with written submissions. In summary, such submissions contend that the applicant made only minor breaches of regs 2.79 and 2.84, did not breach reg 2.86 and whilst breaching reg 2.90 there were mitigating circumstances involved. The Tribunal has duly considered this material. For completeness, the Tribunal notes that the applicant did not comment upon the validity of the non-disclosure certificate issued pursuant to s 375A of the Act.

2. The Tribunal notes that the non-disclosure certificate, issued pursuant to s 375A of the Act, cites two public interest grounds for preventing disclosure of the material under its cover. It indicates that it would be contrary to the public interest to release certain material as this 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.’ Additionally, it indicates that certain material should not be released as it would ‘disclose, or enable a person to ascertain the existence or identity of, a confidential source of information.’ Following careful consideration, the Tribunal considers that public interest grounds are properly stated in the non-disclosure certificate. Accordingly, the Tribunal finds that the certificate is valid and therefore only ‘the gist’ of the material under its cover may be released to the applicant.

3. On 15 September 2023, the Tribunal wrote to the applicant through the representative, pursuant to s 359A of the Act, inviting them to comment on or respond to the following information:

   ·The Departmental file OPF2021/3458 contains certain material gathered by the Australian Border Force in relation to an investigation of the Applicant regarding Sponsorship Obligations. The Tribunal notes that this material is subject to a certificate pursuant to s 375A of the Act dated 26 May 2022 (a copy of this certificate was sent to you by us on 24 August 2023). The ‘gist’ of the material contained under cover of the certificate is as follows:

   oThe Australian Border Force Operational Risk Assessment, Operational Risk Assessment Summary, Interview Plan, Official Notes, Interview Recordings, Post Site Visit/Interview Report and Sponsor Monitoring Recommendation Report pertaining to the Site Visit that was conducted on 14 September 2021 at 87 Main Beach Road Pinkenba Queensland 4008;

   oInternal Departmental email correspondence regarding investigations into the Applicant and associated businesses, including operational considerations;

   oAllegations concerning underpayment of sponsored workers, workers not performing their nominated occupations and payment for sponsorship; and

   oDepartmental correspondence requesting relevant material in relation to sponsor monitoring and material received by them including pay records, employment related documents, bank records and photographs.

4. The Tribunal’s invitation of 15 September 2023 outlined that the above information is relevant to the review, as it tends to suggest that Inspection Services Queensland Pty Ltd breached the provisions contained in Regulations 2.79, 2.84, 2.86 and 2.90, as particularised in the primary decision. It further indicated that if the Tribunal relies on this information in making its decision, it may affirm the decision under review or vary the decision to increase the sponsorship sanction.

5. The Tribunal is satisfied that its invitation of 15 September 2023 was properly sent to the email address of the representative. The specified due date for response to the invitation was 29 September 2023. At the time of this decision, no response to the invitation has been received by the Tribunal.

6. Where an applicant is invited to respond to information in accordance with s 359A of the Act, and fails to do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action, according to s 359C(2) of the Act. In these circumstances, the applicant is not entitled to appear before the Tribunal in accordance with s 360(3) of the Act. Of note, the effect of s 363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit them to appear before it, as outlined in the Full Federal Court matter of Hasran v MIAC [2010] FCAFC 40.

7. The Tribunal has carefully considered whether to afford additional time to the applicant to respond to the information raised in the s 359A invitation, or to provide further material in support of their application for review. In doing so, it has paid careful regard to the guidance in the decisions of Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28, where the Courts held that the Tribunal is not required to indefinitely defer its decision-making process.

8. The Tribunal has taken into account that the applicant has been aware since around 26 April 2022 of the reasons for the sponsorship sanction being imposed and also that the implications of not responding to the information raised in the invitation from the Tribunal of 15 September 2023 were set out in that correspondence. Additionally, the Tribunal notes that the applicant is represented by a solicitor.

9. In these circumstances, the Tribunal considers that the applicant has had sufficient time in which to respond to the information raised in the s 359A invitation and to address the central issues arising in the application for review. On balance, the Tribunal considers it appropriate to make its decision on the review without taking any further action to obtain a response to its invitation. Accordingly, the Tribunal has made its decision on this review application having due regard to the documentary material before it.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

12. Under s 140M, if prescribed circumstances exist, the Minister (and the Tribunal on review) may take one or more of the following actions:

    ·cancelling the sponsorship approval in relation to a class to which the sponsor belongs;

    ·cancelling the sponsorship approval for all classes to which the sponsor belongs;

    ·barring the sponsor for a specified period from sponsoring more people under the terms of any existing approval; and

    ·barring the sponsor for a specified period from making future applications for sponsorship approval in relation to one or more classes of sponsor.

13. For these purposes, the circumstances are prescribed in regs 2.89–2.94B and include circumstances in which the Minister, or Tribunal on review, is satisfied there has been: a failure to satisfy a sponsorship obligation; provision of false or misleading information; sponsorship application or variation criteria no longer met; a contravention of the law; unapproved changes to a program; a failure to pay additional security; a failure to comply with certain terms of an agreement; or a failure to pay medical and hospital expenses.

14. Where a prescribed circumstance has been found to exist, the regulations prescribe criteria that must be taken into account when determining what action, if any, to take: regs 2.89–2.94B. These criteria, as they relevantly apply to the circumstances of this case are set out in the attachment to this decision.

    Does a circumstance for the taking of an action exist?

    20.In the present matter, the delegate found that the applicant contravened several provisions. The first was the obligation contained in reg 2.79, to ensure equivalent terms and conditions of employment for a sponsored person. According to the delegate, the applicant underpaid a sponsored person (Mr Radnia) the amount of $446.88. The delegate also noted that the applicant subsequently paid him the sum of $800 to correct this underpayment (with interest).

    21.The obligation contained in reg 2.84(3)(a), to advise Immigration when a sponsored person ceased employment, was also found to have been breached by the applicant. This pertained to the applicant not advising of the cessation of employment of a sponsored person (Mr Ngayos) in March 2020, until sixty six days after this event. The obligation in reg 2.84(3)(aa), to advise Immigration when a sponsored person changed their work duties, was also found to have been breached. This related to a sponsored person (Mr Radnia) changing work duties in connection with a proposed transition from a Subclass 457 visa to a Subclass 186 visa.

    22.Additionally, the delegate found the applicant breached reg 2.86, the obligation to ensure a sponsored person works in the nominated occupation. Specifically, the delegate determined that a sponsored person (Mr Cabudlan) was employed as a Welder (First Class) but performed additional duties, such as landscaping, cleaning and housekeeping, from 29 May 2019 to 26 January 2020. Such duties were apparently performed at the house owned by the father of the director of the applicant company.

    23.Further, the delegate found that the applicant provided false or misleading information contrary to reg 2.90. In particular, the delegate determined that the applicant incorrectly answered two questions in its application to become a standard business sponsor. The questions pertained to a declaration of there being no adverse information in relation to a person associated with the applicant and having provided complete and correct information in that application. The delegate cited that Hitec Welding Pty Ltd had a five year sponsorship bar imposed on 2 September 2016 and that the director of this company is the father of the director of the applicant company.

    Failure to satisfy a sponsorship obligation: reg 2.89

15. The Minister may take one or more of the actions in s 140M if satisfied the sponsor has failed to satisfy a sponsorship obligation referred to in Division 2.19 of the Regulations: reg 2.89(2). Upon de novo review, the Tribunal may exercise all relevant powers available to the delegate.

    25.The Tribunal notes that the applicant conceded in writing to having breached reg 2.79, the obligation to ensure equivalent terms and conditions of employment for a sponsored person, in the manner particularised by the delegate. Further, the Tribunal notes the applicant contends this breach was not deliberate and that it paid the sponsored person $800 to rectify a wage underpayment, with interest. Accordingly, the Tribunal finds the applicant breached reg 2.79.

    26.The applicant conceded in writing to having breached reg 2.84(3)(a), the obligation to advise Immigration when a sponsored person ceased employment, by not notifying the cessation of employment of a sponsored person (Mr Ngayos) for a period of sixty six days. Further, the applicant agreed in writing that the work duties of a sponsored person (Mr Radnia) were changed, thus breaching the obligation in reg 2.84(3)(aa), to advise Immigration when a sponsored person changed their work duties. Regarding both breaches, the applicant contended that they were inadvertent, the product of specific circumstances and relatively minor in scope. Therefore, the Tribunal finds the applicant breached reg 2.84 on two occasions as particularised in the primary decision.

    27.The applicant denied in writing that it breached the obligation in reg 2.86, to ensure a sponsored person (Mr Cabudlan) works in the nominated occupation. The applicant submitted to the Department that Mr Cabudlan made false allegations in the media regarding being made to perform landscaping, cleaning and housekeeping duties for the father of its director. However, the evidence collected by the Department indicates that Mr Cabudlan did perform duties outside of the nominated occupation of Welder (First Class) at the home of the father of the director of the applicant. Such material includes photographs and interview records under cover of the s 375A non-disclosure certificate. Following careful consideration of the evidence, the Tribunal is satisfied that Mr Cabudlan did perform duties outside of the nominated occupation of Welder (First Class) between 29 May 2019 to 26 January 2020 as particularised by the delegate. Accordingly, the Tribunal finds that the applicant breached reg 2.86.

    28.Therefore, 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

16. 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).

    30.The applicant conceded in writing to having breached reg 2.90 by incorrectly answering two questions in its application to become a standard business sponsor. However, the applicant contended that its breaches were inadvertent because it did not then appreciate that Hitec Welding Pty Ltd was a person associated with it. As previously outlined, the questions in the application pertained to a declaration of there being no adverse information in relation to a person associated with the applicant and having provided complete and correct information in that application. As noted by the delegate, Hitec Welding Pty Ltd had a five year sponsorship bar imposed on 2 September 2016 and the director of this company is the father of the director of the applicant company. Therefore, the Tribunal finds the applicant breached reg 2.90 on two occasions, as particularised in the primary decision.

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

    Action to be taken

17. For the reasons outlined, the Tribunal is satisfied that relevant circumstances for s 140L(1)(a) of the Act exist. 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, if any, the Tribunal has had regard to the prescribed criteria, as extracted in the attachment to this decision.

18. Regarding the breaches of regs 2.79, 2.84(3)(a), 2.84(3)(aa) and 2.86, the Tribunal has carefully considered all relevant matters. The Tribunal has paid careful regard to ‘the past and present conduct of the applicant in relation to Immigration.’ It is apparent that the applicant cooperated with the Department’s investigation in large measure and conceded certain matters in its response to the NOITTA. The applicant also advised the Department that any breaches were unintentional.

19. Having regard to ‘the number of occasions on which the applicant has failed to satisfy the sponsorship obligation’ in regs 2.79, 2.84(3)(a) and 2.84(3)(aa), the Tribunal is satisfied that these obligations were breached on limited occasions only. However, regarding the breach of reg 2.86, the Tribunal is satisfied that the applicant permitted Mr Cabudlan to perform duties outside of the nominated occupation of Welder (First Class), between 29 May 2019 and 26 January 2020. This is a significant breach.

20. The Tribunal has also carefully considered ‘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.’ Given the matters previously outlined, the Tribunal forms the view that the breaches of regs 2.79, 2.84(3)(a) and 2.84(3)(aa) were relatively minor in gravity. However, the Tribunal finds that the applicant’s breach of reg 2.86 is of greater severity, given it allowed Mr Cabudlan to work outside of his nominated occupation for a significant period of time.

21. The Tribunal has carefully considered ‘the period of time over which the applicant has been an approved sponsor’. The Tribunal notes the applicant was previously approved as a standard business sponsor. The Tribunal considers the applicant held the status of an approved standard business sponsor for a reasonable period.

22. The Tribunal has carefully considered ‘whether, and the extent to which, the failure to satisfy the sponsorship obligation in regs 2.79, 2.84(3)(a), 2.84(3)(aa) and 2.86 has had a direct or indirect impact on another person.’ The Tribunal considers that the impact upon the relevant sponsored persons pertaining to the first three breaches was relatively minor. However, the impact upon Mr Cabdulan was of higher gravity, given the nature of the duties he performed outside of his nominated occupation, in breach of reg 2.86.

1. The Tribunal has carefully considered ‘whether, and the extent to which, the failure to satisfy the sponsorship obligation was intentional, reckless or inadvertent.’ The Tribunal is satisfied that the breaches of regs 2.79, 2.84(3)(a) and 2.84(3)(aa) were inadvertent. However, the Tribunal is satisfied that the breach of reg 2.86 was reckless, given the degree of departure from the duties of the nominated occupation engaged in by Mr Cabdulan.

2. The Tribunal has carefully considered ‘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 that the applicant cooperated with Immigration regarding the breaches of regs 2.79, 2.84(3)(a) and 2.84(3)(aa). However, the Tribunal is not satisfied that the applicant cooperated fully with Immigration regarding the reg 2.86 breach.  

3. The Tribunal has carefully considered ‘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 Tribunal accepts that the applicant has attempted to rectify the breaches of regs 2.79, 2.84(3)(a) and 2.84(3)(aa) by, respectively, repaying underpaid wages and making the necessary notifications of changes in circumstances. There is no evidence the applicant has attempted to rectify its breach of reg 2.86, given it has not acknowledged such breach.

4. The Tribunal has carefully considered ‘the processes (if any) the person has implemented to ensure future compliance with the sponsorship obligation.’ The Tribunal accepts that the applicant offered not to engage any further temporary visa holders.

5. The Tribunal has carefully considered ‘the number of other sponsorship obligations that the applicant has failed to satisfy, and the number of occasions on which the applicant has failed to satisfy other sponsorship obligations.’ The Tribunal is satisfied the applicant has not breached sponsorship obligations other than regs 2.79, 2.84(3)(a), 2.84(3)(aa) and 2.86, as outlined.

6. The Tribunal has carefully considered ‘any other relevant factors.’ It is accepted by the Tribunal that the applicant inadvertently breached regs 2.79, 2.84(3)(a) and 2.84(3)(aa), as it did not engage professional advice regarding its compliance obligations. The Tribunal is further satisfied that the applicant is currently well aware of the requirements of regs 2.79, 2.84(3)(a), 2.84(3)(aa) and 2.86 moving forward.

7. Regarding the breaches of reg 2.90 by the applicant, in providing false and misleading information to the Department in its application for standard business sponsorship, the Tribunal has carefully considered all relevant matters. The Tribunal has paid careful regard to ‘the purpose for which the information was provided.’ The Tribunal is satisfied that there was no improper purpose in the applicant failing to declare its association with Hitec Welding Pty Ltd.

8. The Tribunal has paid careful regard to ‘the past and present conduct of the applicant in relation to Immigration.’ It is apparent that the applicant cooperated with Immigration and conceded that it made the two relevant errors in its application for standard business sponsorship.

9. The Tribunal has carefully considered ‘the nature of the information’. Such information incorrectly conveyed the impression there was no association between the applicant and Hitec Welding Pty Ltd. The Tribunal accepts this impression was created inadvertently by the applicant.  

10. The Tribunal has carefully considered ‘whether, and the extent to which, the provision of false or misleading information has had a direct or indirect impact on another person’. The Tribunal considers that there has been no such impact on another person.

11. The Tribunal has carefully considered ‘whether the information was provided in good faith.’ Having regard to the manner in which the information was provided, the Tribunal is satisfied that it was provided in good faith, although it was incorrect.   

12. The Tribunal has carefully considered ‘whether the person notified Immigration immediately upon discovering that the information was false or misleading.’ The Tribunal considers that the applicant took the opportunity to correct the false or misleading information in its response to the NOITTA.

13. The Tribunal has carefully considered ‘any other relevant factors’ in relation to the provision of false and misleading information. The Tribunal accepts that the incorrect information was provided in error, rather than being a deliberate attempt to deceive the Department.

    CONCLUSION

14. The Tribunal notes that it has found four sponsorship obligations to have been breached by the applicant (regs 2.79, 2.84(3)(a), 2.84(3)(aa) and 2.86). The most serious breach pertains to reg 2.86, as outlined above. Further, the Tribunal has found that reg 2.90 has been breached on two occasions. Considering the circumstances holistically and having regard to the prescribed criteria, the Tribunal finds that the following action is warranted.

15. The applicant is barred from sponsoring more people under the terms of its most recent approved standard business sponsorship, until 24 October 2023, pursuant to s 140M(1)(c) of the Act. Therefore, the sanction imposed by the delegate will be affirmed. For completeness, the Tribunal notes that this bar has now expired at the time of this decision.

    DECISION

    53.The Tribunal affirms the decision under review.

    K. Chapman
    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.

    …