Jerome Mobile Engineers Pty Ltd (Migration)

[2022] AATA 2670

Jerome Mobile Engineers Pty Ltd (Migration) [2022] AATA 2670 (26 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Jerome Mobile Engineers Pty Ltd

REPRESENTATIVE:  Ms Carina Ford (MARN: 9802862)

CASE NUMBER:  2006546

HOME AFFAIRS REFERENCE(S):          OPF2019/13704

MEMBER:Mary Sheargold

DATE:26 May 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 26 May 2022 at 5:25pm

CATCHWORDS
MIGRATION – cancellation – standard business sponsorship approval cancelled –JME had breached its sponsorship obligation – 5 years bar –– power to take an action under s 140M does not arise – Mr Gill has worked in his nominated skilled occupation of Motor Mechanic –– decision under review set aside

LEGISLATION
Migration Act 1958, ss 140M, 375A
Migration Regulations 1994, rr 2.86, 2.89

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Godfrey Fernandez established Jerome Mobile Engineering Pty Ltd (JME) over 35 years ago.  A chartered engineer by profession, he saw an opportunity to establish himself in the automotive sector in Melbourne in the early 1980s, and opened his first mobile mechanic business with a workshop based in Dandenong.  He has sponsored many foreign workers over this period, assisting the majority to achieve permanent residency and then assisting them in establishing their own businesses around Victoria and all of Australia.

2. In 2019, Australian Border Force (ABF) began investigating Mr Fernandez in relation to his alleged involvement in arranging marriages for migration outcomes in the Indian community.  ABF then decided to investigate the veracity of the employment of temporary visa holders working within his automotive businesses.  On 5 December 2019, ABF officers attended JME’s Dandenong workshop looking for the last remaining sponsored worker, Mr Jasmohan Singh Gill.  It was 3:00pm and Mr Gill was not there. Nor was Mr Fernandez.  Mr Fernandez’s son, Christopher, was at the office, and he called his father asking him to return.  The ABF officers interviewed Mr Godfrey Fernandez who arrived at 3:12pm, and they departed around 4:00pm.  They then called Mr Gill, who advised them he had gone home early because he was not feeling well.  Mr Gill’s evidence at the hearing contradicts the written notes that ABF officers made during discussions with Mr Fernandez that afternoon.

3. Prior to attending JME’s workshop on 5 December 2019, ABF had conducted raids on both Mr Fernandez’s private residence and his business premises.  They seized documents and a set top box featuring CCTV footage of part of the Dandenong workshop.  On 11 September 2019, ABF had attended the Dandenong workshop and identified Mr Harmanpreet Singh, allegedly an employee of JME.  Mr Singh was asked to open his wallet and officers discovered he was carrying $1,300 in cash.  Mr Singh accompanied the ABF officers to their Docklands headquarters and signed a statement indicating that he had been paying Mr Fernandez for visa sponsorship as a mechanic whilst he actually worked as a cleaner for another company.  Bank records for JME’s related entity, Christy Motors Pty Ltd, seized by the ABF, show repeated instances of large cash deposits at multiple sites, followed a day or two later by salary payments to JME’s sponsored workers.

4. Relying on inferences drawn from the evidence gathered in their investigation, ABF issued a Notice of Intention To Take Action (NOITTA) against JME in January 2020.  The NOITTA was issued on the basis that JME had breached its sponsorship obligation to ensure Mr Gill was working in his nominated occupation of Motor Mechanic (General), ANZSCO 321211.  The delegate had formed the view that Mr Gill was not working in his nominated occupation.  Mr Fernandez responded to the NOITTA and provided some evidence refuting the allegation, but ultimately, a decision was made to cancel JME’s standard business sponsorship approval in March 2020, along with a decision to bar JME from applying for further approval as a standard business sponsor for 5 years.

5. I am tasked with determining whether JME breached its sponsorship obligation under r.2.86 of the Migration Regulations 1994 (Cth) (the Regulations) based on the evidence available to me, and if I am satisfied that the obligation was breached, I must determine what (if any) action to take under s.140M(1) of the Migration Act 1958 (Cth). Mr Fernandez appeared before the Tribunal on 5 May 2022, and Mr Gill attended to give evidence as a witness. Mr Rick Gunn represented JME at the hearing. For the reasons outlined below, I am satisfied that there is not sufficient evidence before me to reach a finding that JME breached r.2.86 in relation to Mr Gill’s employment as a motor mechanic within its business.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

7. 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.

8. 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.

9. 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.

   Non-disclosure certificate issued pursuant to s.375A of the Act

10. The ABF conducted a thorough investigation into Mr Fernandez and JME in 2019.  As such, in accordance with the requirements set out in s.375A of the Act, the Department has placed a non-disclosure certificate over certain folios in its file.  Those folios are TRIM reference numbers OPD2019/527496, OPD2019/527569, and OPD2020/13711.  The Department states that these documents must be protected under s.375A of the Act because “disclosure would be likely to prejudice the ongoing effectiveness of lawful methods for preventing, detecting and investigating breaches or evasions of the law”.

11. The Tribunal wrote to JME on 7 March 2022, inviting comments on the validity of the non-disclosure certificate to be made in writing by 21 March 2022.  On 21 March 2022, the Tribunal received a response from Ms Ford’s office, enclosing detailed submissions regarding the documents the subject of the certificate and why the certificate should be considered invalid.

12. Ms Ford’s office argues that the reasons provided to attempt to invoke the intended ambit of s.375A are not sufficiently articulated, and they do not establish that the public interest in not disclosing the information outweighs the ability of JME to present its case to the Tribunal.  Curiously, it is plain from reading these submissions that both Ms Ford’s office and Mr Fernandez are fully aware of the contents of the documents that are to be protected by the certificate.  The fact that Mr Fernandez and his lawyers are already aware of the information that the certificate seeks to protect does make the exercise of determining the validity of this certificate moot. 

13. However, I am required to make findings in respect of the certificate, and so I have considered all of the submissions received alongside the rationale expressed in the certificate itself.  In my view, it is difficult for the Department to better articulate its reasoning for seeking to protect certain documents without divulging their contents.  I am satisfied that the certificate as currently presented discharges the Department’s obligations set out in ss.375A(1)(a) and (b) of the Act, and as such, I find the certificate to be valid.

    Does a circumstance for the taking of an action exist?

    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. This includes r.2.86, the obligation to ensure that a primary sponsored person works or participates in their nominated skilled occupation, program or activity. The delegate found that the applicant failed to ensure that one of its sponsored workers, Jasmohan Singh Gill, worked in his nominated skilled occupation of Motor Mechanic (General), ANZSCO 321211.

16. ABF conducted surveillance over JME in August and September 2019.  ABF attended the premises again on 11 September 2019, and the last recorded visit occurred on 5 December 2019.  The ABF records on the Departmental file indicate that the ABF had concluded that the premises were rarely frequented.  Indeed, Mr Gill was not sighted by officers during any of their visits.  This understandably rings alarm bells.

17. However, ABF appears to have overlooked one significant fact: Mr Fernandez operates a mobile mechanic business.  At the hearing, Mr Fernandez and Mr Gill gave detailed evidence regarding the day-to-day operations of the mobile repair business.  Mr Gill explained that he is directed by Mr Fernandez as to where he will work on any given day, and that he is often accompanied by a handyman who assists him as necessary.

18. Mr Fernandez explained that his business is authorised by Vicroads to conduct roadworthy assessments of, and provide roadworthy certifications for, vehicles, and that the business has serviced thousands of vehicles since it commenced operations.  Mr Fernandez explained that the related entity Christy Motors Pty Ltd also engages in this mobile servicing work, and that employees are shared between the 2 companies.  Mr Fernandez told the Tribunal that JME is a licenced motor car trader (LMCT) and as such, is held to the highest standard of record keeping by both Vicroads and Victoria Police.  Mr Fernandez explained in detail the consequences of his business paperwork being deficient in any way, including major on the spot fines issued by these local authorities, and gave examples of instances where this had occurred in the past.

19. The Tribunal appreciates that ABF put together a collection of circumstantial evidence to create a fact scenario in which JME and Christy Motors are not legitimate businesses and that they exist as a mechanism for assisting foreign workers to remain in Australia through a rehearsed and coordinated system of payment for sponsorship and for visas.

20. The evidence before ABF and before the Tribunal, including the lack of physical business activity at the registered business address, the lack of completed punch cards for staff, the difficulty with locating job cards, the fact that Mr Gill was not sighted on any occasion that ABF attended, the fact that former workers arrived at the premises with large sums of cash, and the obvious deposits of large sums of money into both businesses’ bank accounts that are almost immediately followed by wage distribution, collectively lends itself to a conclusion that there is a major fraud occurring within this business.

21. Yet this circumstantial evidence is not sufficient to prove that Mr Gill was not working in his nominated skilled occupation of Motor Mechanic (General).  On speaking with Mr Gill, it is plain that he is a simple man with a genuine passion for motor vehicle repairs, and I am satisfied with his explanations for his absences from the Dandenong workshop at certain times.

22. For instance, at the hearing, Mr Gill admitted that he had left work on 5 December 2019 very upset and eager to seek legal advice regarding his visa status, as the rumours amongst the employees regarding the ABF investigation had scared him.  He described physical symptoms that would routinely be linked to feelings of depression and anxiety, such as headaches and fatigue.  The evidence given by Mr Gill and Mr Fernandez to ABF investigators on 5 December 2019 was at best clumsy and at worst fabricated. 

23. However, having had the opportunity to speak with both Mr Gill and Mr Fernandez myself, I am prepared to give Mr Gill the benefit of the doubt and accept that he was genuinely making himself sick regarding his visa status in light of the ABF investigation, and that he did leave work early on 5 December 2019 to seek migration advice, then felt too ill to return.  It is plain to me that he was not entirely honest with Mr Fernandez when explaining why he needed to leave work early on 5 December 2019, and that he was apprehensive in speaking with the ABF officers. It is also plain that he regrets not being truthful immediately.

24. Further, Mr Fernandez was able to give explicit and extensive detailed evidence regarding alleged errors made by ABF in terms of the CCTV footage seized when the business premises were raided, and of ABF’s dismissal of offers for additional footage from the cameras around the rest of the workshop.  Mr Fernandez was able to demonstrate that completed job cards were in fact available for inspection, and that his books were routinely scrutinised by Victorian government authorities including Vicroads and Victoria Police.

25. Mr Gill was able to provide detailed evidence regarding his usual work locations, being car dealerships in the outer suburbs of Melbourne, and to describe the types of work he completed on a daily basis.  Mr Fernandez gave candid evidence regarding his decision to subcontract out his employees to local car dealerships to provide on-site servicing as he was able to cream a significant margin from the hourly rate paid to his staff as compared with the amounts for which he invoiced the dealerships.

26. Put simply, while there were plenty of question marks over certain aspects of the management of the business on a day-to-day basis, the evidence given to me at review was sufficient to rebut the conclusions reached by the ABF investigators and by the delegate who made the primary decision insofar as breaches of r.2.86 in relation to Mr Gill’s employment are concerned. The evidence available to me at review, as detailed above, demonstrates that in all likelihood Mr Gill has worked in his nominated skilled occupation of Motor Mechanic, performing the tasks expected of a Motor Mechanic, and that Mr Fernandez has ensured this has occurred.

27. While it is open to the Department to identify and interrogate further potential breaches of other sponsorship obligations, I have no option but to conclude that, based on all the evidence I have reviewed, the circumstance for taking an action under s.140M of the Act, being a breach of the sponsorship obligation under r.2.86, does not arise.

28. Accordingly, the Tribunal is not satisfied that the prescribed circumstance in reg 2.89 exists for the purpose of s 140M of the Act.

    Action to be taken

29. As I have found that none of the circumstances for s 140L(1)(a) exists, it follows that the power to take an action under s 140M does not arise.

    DECISION

30. 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.

    …