Jadoon Group Pty Ltd (Migration)

[2022] AATA 5173

Jadoon Group Pty Ltd (Migration) [2022] AATA 5173 (14 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Jadoon Group Pty Ltd

REPRESENTATIVE:  Ms Carina Ford (MARN: 9802862)

CASE NUMBER:  2116096

HOME AFFAIRS REFERENCE(S):          OPF2021/5043

MEMBER:Mary Sheargold

DATE:14 July 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to take one or more of the actions specified in s 140M of the Migration Act 1958.

Statement made on 14 July 2022 at 3:38pm

CATCHWORDS
MIGRATION – cancellation – standard business sponsorship approval – compliance with sponsorship obligations – ensure sponsored person work in nominated occupation – Motor Mechanic – Departmental site visit – not present at the workshop premises – payment receipt for medical appointment – prescription for medication – documentary evidence – false or misleading information – job sheets and time sheets – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 140L, 140M

Migration Regulations 1994 (Cth), rr 2.86, 2.89, 2.90

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Jadoon Group Pty Ltd is owned and operated by Mr Noman Khan.  It operates a thriving motor mechanic business based in Coburg, Victoria.  Mr Khan employs a combination of local and foreign workers in his business, including Mr Assad Mehmood, who has held a Subclass 457 visa sponsored by Jadoon Group since August 2018. Jadoon Group was most recently approved as a standard business sponsor on 23 March 2020.

2. In April 2021, officers from Australian Border Force (ABF) attended the business premises at Sydney Road, Coburg as part of a monitoring operation.  Mr Mehmood was not at the workplace at the time.  Mr Khan’s explanation of Mr Mehmood’s whereabouts differed from that given by the company’s administrator and by another mechanic employed within the business.  ABF officers interviewed Mr Khan and invited him to provide further supporting documents relating to Mr Mehmood’s employment with Jadoon Group Pty Ltd.  There is no evidence that the ABF officers attempted to contact Mr Mehmood directly.

3. The ABF officers were not satisfied with the further evidence Mr Khan provided and issued a Notice of Intention To Take Action under s 140M of the Migration Act 1958 (Cth) (the Act) in relation to Jadoon Group’s sponsorship. Being unsatisfied with Mr Khan’s response to the NOITTA, the delegate concluded that Mr Mehmood was not working as a mechanic at Jadoon Group, and also found that Mr Khan had falsified both job sheets and time sheets provided to the ABF.

4. On that basis, on 18 October 2021, the delegate decided to cancel Jadoon Group’s standard business sponsorship approval and decided to bar Jadoon Group from sponsoring temporary visa holders for 2 years.  Mr Khan has appealed this decision to the Tribunal, and at a hearing before me held today, he and his representatives have argued that Mr Mehmood has been working for the applicant since at least January 2017, and that the delegate did not have a sufficient evidentiary basis to conclude that Mr Mehmood was not working as a mechanic within the business.  Mr Khan refutes the allegation that he provided false or misleading information to ABF.  He seeks a reversal of the delegate’s decision.

5. I am tasked to determine whether, based on the evidence available to me at review, it can be established that Jadoon Group breached the specific sponsorship obligations identified by the delegate, and if so, to determine the appropriate penalty.  For the reasons I set out below, I have concluded that the case against Jadoon Group for breaching its sponsorship obligation (per r.2.89) set out in r. 2.86, and for providing false or misleading information as prohibited by r.2.90 of the Regulations is not made out, and I have decided to substitute a decision not to cancel Jadoon Group’s standard business sponsorship approval and not to bar Jadoon Group from sponsoring further temporary workers for 2 years.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. I note that the delegate issued a non-disclosure certificate pursuant to s.375A of the Act over certain documents in the Departmental file, including a recommendation report, a standard tactical plan, and a risk assessment form.  The delegate issued this certificate on the basis that disclosure of any of these documents 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.”  The Tribunal wrote to Jadoon Group on 27 May 2022 inviting comments in relation to the validity of that non-disclosure certificate.

7. On 10 June 2022, Jadoon Group’s legal representatives provided detailed submissions outlining the reasons they believed the non-disclosure certificate was invalid.  I have reviewed those submissions carefully, but respectfully disagree with them.  The submissions, in summary, promulgate assumptions that the types of documents described cover off standard processes for ABF that are widely known, and that are already within the public knowledge, and so there is no basis to claim that it is not in the public interest to disclose them. 

8. While I accept that the documents referred to in the certificate are likely based on standard templates used by ABF, the specific details set out in relation to the investigation of Jadoon Group do, in my opinion, disclose lawful methods utilised by ABF to prevent, detect and investigate breaches or evasions of the law, and I am satisfied that doing so would, or would be likely to, prejudice the effectiveness of those methods.  In my view, the delegate has made the case to protect those documents and the certificate is acceptable in form.  Therefore, I find the certificate to be valid.  The documents protected by the certificate have not been provided to the applicant.

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

10. 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.

11. 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.

12. 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. As outlined above, the delegate concluded that Jadoon Group failed to satisfy a sponsorship obligation, being the obligation to ensure that a sponsored worker works in their nominated position.  The delegate also found that Jadoon Group had provided false or misleading information to the Department as part of its investigations relating to the alleged breaches of sponsorship obligations.

    Failure to satisfy a sponsorship obligation: reg 2.89

14. 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).

15. Jadoon Group was found to have breached the obligation set out in reg 2.86 of the Regulations, being the obligation to ensure that a sponsored worker works in their nominated occupation.  In concluding that Jadoon Group failed to ensure Mr Mehmood worked as a Motor Mechanic, the delegate relied very heavily on the fact that Mr Mehmood was not present at the workshop premises in Sydney Road, Coburg, when the ABF officers conducted their site visit, as well as the fact that during that interview, Mr Khan could not provide the physical records of work performed by Mr Mehmood.

16. After the visit, the delegate wrote to Mr Khan asking for further information to be provided, including copies of job sheets and time sheets demonstrating that Mr Mehmood did in fact work as a Motor Mechanic with Jadoon Group.  The delegate relied on Mr Khan’s conflicting evidence given at the site visit, being that time sheets and job sheets were not kept, and the actual documents provided on request, to conclude that the time sheets had been falsified and accordingly, it was not plausible that Mr Mehmood worked at Jadoon Group.

17. The delegate also gave significant weight to the fact that Mr Khan and 2 Jadoon Group staff gave entirely different explanations for Mr Mehmood’s whereabouts during the site visit.  Mr Khan told the officers that Mr Mehmood had left for the day as he was unwell.  The office administrator told the officers that Mr Mehmood had left to deliver a part for another job.  Another mechanic in the business told the officers that Mr Mehmood was working offsite. The delegate did not accept Mr Khan’s explanation that if a staff member needs to leave work due to illness, they notify Mr Khan, who preserves the confidentiality of that employee’s circumstances. 

18. The delegate did not accept Mr Khan’s explanation that the administrator’s version of where Mr Mehmood was at the time of the ABF site visit was actually consistent with Mr Khan’s explanation on the spot, because in fact the administrator had asked Mr Mehmood to deliver a part when he notified him that he intended to leave the workshop premises, and Mr Mehmood agreed to do so.  Whilst I appreciate it is unusual for 3 people to describe 3 different scenarios as to why Mr Mehmood was not at the workshop at the time of the site visit, to my mind this is more likely to demonstrate that Mr Mehmood was actually working for Jadoon Group: if Mr Khan had sponsored Mr Mehmood under false pretences, presumably staff would have been instructed to give a uniform response to any enquiry as to his whereabouts in the event of a visit from government officials.

19. I am troubled by the delegate’s refusal to give weight to the payment receipt from Mr Mehmood’s medical appointment and copy of his prescription for antibiotics on the basis that they are not medical certificates attesting to Mr Mehmood’s unfitness for work on that day in April 2021.  While I agree that a receipt and prescription are circumstantial evidence at best, if I am to make a finding of fact in relation to Mr Mehmood’s health on that date, based on those two pieces of circumstantial evidence, it is reasonable to draw an inference that he was unwell and unfit for work.  This is especially so in the context of this absence occurring immediately prior to the second significant wave of Covid-19 in Victoria in 2021.  Mr Khan’s evidence at the hearing was that he was not prepared to take any chances with staff displaying any symptoms that may be attributable to a Covid-19 infection and that he was happy to provide sick leave in those circumstances, even if a medical certificate was not provided.

20. I am also concerned that no further efforts were made by the ABF to make subsequent visits to check if Mr Mehmood was working in his nominated occupation.  The one and only site visit occurred almost 6 months to the day before the delegate’s decision.  As cited above, metropolitan Melbourne was subject to a protracted period of lockdown between the time of that visit and the time of the delegate’s decision.  However, both Jadoon Group and ABF were organisations with employees deemed essential workers and a further visit could have been coordinated.  At the very least, the ABF could have conducted an interview with Mr Mehmood by telephone.  Mr Khan’s clear contention is that Mr Mehmood would have been happy to be interviewed by the officers and that they would have welcomed a further visit from the officers to demonstrate the bona fide nature of Mr Mehmood’s employment.

21. Mr Khan was at times very emotional in speaking about Mr Mehmood.  Mr Khan told me that Mr Mehmood is his best, most senior employee and his longest serving employee.  It is clear to me that Mr Khan holds Mr Mehmood in high regard and that he is personally affected by the impact these proceedings have had on Mr Mehmood and his family.  At the hearing, I asked Mr Khan to describe his feelings and behaviour at the time the officers attended his workshop, as it appeared to me that Mr Khan was exhibiting a character far different from that shown to the ABF officers.  Mr Khan acknowledged that he was very tense, worried, and likely defensive and possibly aggressive towards the officers at the time of the visit.  He told me that he felt he had done everything correctly in respect of Mr Mehmood and his other sponsored workers.

22. I accept that Mr Khan was in an emotional state during the site visit, and that this may have led to some of the incredulity in responses given to the officers.  For example, the delegate focuses on the fact that Mr Khan said he did not keep job sheets for every job because he could remember every detail about every vehicle that had been worked on.  Mr Khan told me that he does not have that memory capacity and in his view, his words to the officers were taken out of context.  Given the high stakes for Mr Mehmood, I am prepared to give Mr Khan the benefit of the doubt and give greater weight to the documentary evidence he was able to provide to ABF on request than I am to his emotional statements given in a surprise monitoring visit.

23. At review, I have been furnished with extensive photographs of Mr Mehmood appearing to perform motor mechanic work at the Sydney Road workshop, and I have seen many photos of Mr Mehmood posing with other Jadoon Group staff members.  While I do not give much weight to these photographs in terms of proof that Mr Mehmood is a skilled motor mechanic, I do give weight to the fact that the applicant can provide multiple examples of Mr Mehmood being in the workplace at various points in time over a 4-5 year period.  To me, this makes it more probable than not that Mr Mehmood works in his nominated occupation with Jadoon Group.

24. I have also been given the benefit of reviewing time sheets, including records from the applicant’s thumb print time recording technology that was introduced just days after the ABF site visit, job sheets, a copy of Jadoon Group’s contract with the Royal Automobile Club of Victoria, tax documents for Mr Mehmood, and a detailed, signed statement from Mr Khan attesting to the genuineness of Mr Mehmood’s employment as a motor mechanic.  I give significant weight to this body of documentary evidence, and in my view, this documentary evidence outweighs any negative inference I could draw when considering the statements Mr Khan and his staff made to ABF officers during their site visit.

25. On balance, it appears to me more probable than not that Mr Mehmood works as a motor mechanic with Jadoon Group.  In the absence of any demonstrative evidence to the contrary, I find that there is no reasonable basis to say that Jadoon Group has not met its obligations under r.2.86 in respect of Mr Mehmood.

26. Accordingly, I am not 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

27. 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).

28. The delegate contends that the job sheets and time sheets provided to the ABF when they requested further evidence after the site visit were falsified by Mr Khan.  This is because Mr Khan’s spontaneous oral evidence given during the site visit was that job sheets were not kept for the types of jobs Mr Mehmood worked on, and that old timesheets had been thrown away because a new thumbprint technology for managing employees’ work hours was being introduced imminently.

29. Mr Khan contended in his response to the NOITTA that he told the officers the workshop was undergoing renovations and that documents were stored offsite.  This is reflected in the delegate’s decision.  At the hearing, Mr Khan told me that it was obvious the workshop was in the middle of renovations when the officers conducted the site visit.  He has provided photographs of the workshop at various stages of the renovation process.

30. At the hearing, Mr Khan explained to me that he does not require Mr Mehmood to complete job sheets himself, and that the administrator manages this at the completion of jobs, and that records of all works performed are set out in customer invoices.  Mr Khan contends that the officers took his statements relating to the keeping of job sheets during the site visit out of context.  He is adamant that he advised the officers that records were being stored offsite due to the renovations.

31. I accept that it does appear convenient that Mr Khan could produce all the records requested by ABF when they followed up with him in writing given the delegate’s contention that he told the officers no such records existed anymore.  However, at review, Mr Khan has been able to provide additional evidence to demonstrate to me that the job sheets were stored offsite, and he explained in explicit detail the process his office administrator used to monitor the working hours for each employee.  Mr Khan explained to me that the administrator would record each employee’s start and finish time, then when preparing the payroll each Tuesday, he would invite the staff members to the office, ask them to review his summary of the hours worked, resolve any changes needed and ensure the staff member signed off on it.  This is reflected in the documentary evidence provided.

32. It is worth noting that Mr Khan has acquired his skills in English as an additional language and that he migrated to Australia himself as a young adult.  I am prepared to give weight to the potential for a degree of miscommunication between the ABF officers and Mr Khan due to this fact.  For example, it is foreseeable that Mr Khan could have made comments to the effect that certain documents were not available meaning they were not on site, not that they never existed or that they had been destroyed.  It would have been an enormous task for Mr Khan and/or any of his staff to manufacture the volume of data provided to ABF in response to the Notice Requesting Records and/or Information. 

33. On balance, having had the benefit of questioning Mr Khan regarding the business’s practices with respect to the maintenance of job sheets and time sheets, I am satisfied that the evidence provided to ABF in response to the Notice Requesting Records and/or Information is more likely than not to have been genuine evidence. Accordingly, I am not satisfied that the prescribed circumstance in reg 2.90 exists for the purpose of s 140M of the Act.

    Action to be taken

34. As the Tribunal finds that none of the circumstances for s 140L(1)(a) exist, it follows that the power to take an action under s 140M does not arise.

    DECISION

35. The Tribunal sets aside the decision under review and substitutes a decision not to take one or more of the actions specified in s 140M of the Migration Act 1958.

    Mary Sheargold
    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.

    …