Kapoor Transport Pty Ltd (Migration)

Kapoor Transport Pty Ltd (Migration) [2019] AATA 4334 (26 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Kapoor Transport Pty Ltd
CASE NUMBER:  1710145
DIBP REFERENCE(S):  OPF2017/311
MEMBER:R. Skaros
DATE:26 September 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision under review.
Statement made on 26 September 2019 at 10:58am
CATCHWORDS
MIGRATION – cancellation – Nomination – sponsorship obligations – nominated occupation – misleading information – failed to update change of address – alterations to log book – missing pages – regularly worked as truck driver – failure to comply with obligations – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140L, 140M
Migration Regulations 1994 (Cth), rr 2.84, 2.86, 2.90

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 a standard business sponsor on 18 February 2015 for a period of three years.
On 9 January 2017, the Department commenced an audit of the applicant’s compliance with sponsorship obligations. In response to a request for records and information, the applicant provided various documents, including responses to a questionnaire and an employment contract and pay records for the 457 visa holder, Mr Sukhvir Singh Grewal. Also provided were copies of pages from Mr Grewal’s National Driver Work Diary.
On 9 March 2017, the Department issued a notice of intention to take action (the first notice). The first notice indicated that the delegate had reason to believe, for reasons set out in that notice, that the applicant had failed to satisfy the sponsorship obligations in r.2.84 and r.2.86. The applicant’s former representative provided submissions in response to the first notice, together with supporting documents. After considering the submissions and evidence, on 6 April 2017, the delegate issued another notice of intention to take action (the second notice). The second notice indicated that the delegate had reason to believe, for reasons set out in the notice, that the applicant has provided false or misleading information. On 20 April 2017, the applicant’s former representative provided further submissions in response to the second notice.
On 5 May 2017, the delegate decided to cancel the applicant’s approval as a standard business sponsor under s.140M(1)(a) on the basis of a failure to comply with sponsorship obligations and the provision of false or misleading information.
The applicant’s director, Mr Gaganpreet Singh Kapoor (Mr Kapoor), appeared before the Tribunal on 15 August 2019 to give evidence and present arguments on behalf of the applicant.
The applicant was represented in relation to the review by its registered migration agent. The representative attended the hearing.
The Tribunal notes that the relevant 457 visa holder, Mr Sukhvir Singh Grewal, accompanied Mr Kapoor to the hearing. After taking evidence from Mr Kapoor regarding the various matters, the Tribunal asked Mr Kapoor and the representative if they wanted the Tribunal to take evidence from Mr Grewal, to which Mr Kapoor and the representative indicated that it was not necessary given the case involves matters relating to the company and its obligations.
For the following reasons, the Tribunal has decided to affirm the decision under review.
CONSIDERATION OF CLAIMS AND EVIDENCE
Sections 140K, 140L and 140M of the Act provide for the imposition of sanctions on approved sponsors in certain circumstances.
Under s.140M, if prescribed circumstances exist, the Minister (and the tribunal on review) may take one or more of the following actions:
·cancelling the sponsorship approval in relation to a class to which the sponsor belongs;
·cancelling the sponsorship approval for all classes to which the sponsor belongs;
·barring the sponsor for a specified period from sponsoring more people under the terms of any existing approval; and
·barring the sponsor for a specified period from making future applications for sponsorship approval in relation to one or more classes of sponsor.
For these purposes, the circumstances are prescribed in 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.
Does a circumstance for the taking of an action exist?
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).
In the present case, the delegate found that the applicant had failed to satisfy the sponsorship obligations in r. 2.84 and r. 2.86. The Tribunal has assessed each of these obligations in turn.
The obligation in r.2.84 requires the applicant to notify the Department about certain events, including a change to the information previously provided to the Department about their change of address and contact details. The applicant is required to notify the Department of this change within the prescribed period of 28 days from the change occurring and to notify the Department in the manner prescribed by the Minister.
During the monitoring audit, the applicant provided information to the Department indicating that the applicant’s business address had changed on 1 September 2015 from Wentworthville NSW to Bargo in NSW.
In response to the first notice, Mr Kapoor confirmed that they did not notify the Department of the applicant’s change of address until 23 January 2017, which was after monitoring had commenced.
When the obligation in r.2.84 was discussed with Mr Kapoor at the hearing, he stated that he was not aware that he had to notify the Department of the change of address. The Tribunal noted that he would have had to notify other authorities of his change of address, to which he confirmed that he had notified the Roads and Maritime Services (RMS). Mr Kapoor stated that he thought the Department would have access to their change of address from other authorities. The Tribunal noted that the obligation was on him, as the director, to inform the Department of the change of address, to which Mr Kapoor stated that it was an error he had made.
In this case, the Department did not become aware of the applicant’s change of address until after monitoring had commenced, which was some 22 months after the event. The Tribunal finds on the evidence before it that the applicant has failed to notify the Department of their change of address as required. The applicant has therefore failed to comply with their sponsorship obligation in r. 2.84.
The Tribunal now turns to consider whether the applicant has complied with the sponsorship obligations in r.2.86.
The obligation in r. 2.86(2) requires a sponsor to ensure that sponsored persons do not work in an occupation unless they have been nominated to work in that occupation and the Minister has approved the nomination. The information before the Tribunal which suggests that the applicant has not complied with that obligation is set out in the first notice and in the delegate’s decision record. The information was also referred to in some detail in submissions made to the Department by the applicant’s former representative.
The information indicates that the nomination in respect of Mr Sukhvir Singh Grewal, in the occupation of Transport Company Manager, was approved by the Department on 26 March 2015. Mr Grewal was subsequently granted the Subclass 457 visa on 29 April 2015 in order to occupy that position. The information also indicates that on 9 January 2017 Mr Kapoor was interviewed by a Departmental officer and that during the interview Mr Kapoor stated that Mr Grewal was responsible for the fleet operations of the business and day to day operations. Mr Kapoor is also recorded to have stated that Mr Grewal drives trucks on deliveries once a week, mainly to cover for drivers who do not come into work that day, and that sometimes Mr Grewal drives trucks up to three times a week over the busy Christmas period.
In their response to the Department’s request for records, on 23 January 2017, the applicant had also provided a number of pages from Mr Grewal’s 'National Driver Work Diary Daily Sheet' (the logbook). The logbook, which must be completed by the truck driver, includes information about the driver’s name, licence number, the number plate of the truck, date, day, state/territory and the odometer reading at commencement of the shift, at each rest period and at the end of the shift. The Tribunal also notes that each page of the logbook is numbered consecutively.
The applicant provided nine pages from Mr Grewal’s logbook. While it was difficult to decipher the exact date on each page, as they appear to have been altered, in Mr Kapoor’s written response to the Department, dated 30 March 2017, and in the representative’s submission, it was claimed that dates and hours worked by Mr Grewal were as follows:
No.01: 30/03/2016 — 11 hrs driving; total working hours (includes rest)from 2am to 3pm (13 hrs)
No.02: 09/05/2016 — 10.5 hrs driving; total working hours from 2am to 1:15 pin (11.25 hrs)
No.04: 31/08/2016 — 8.5 hrs driving; total working hours from 2am to 11:15am (9.25 hrs)
No.05: 05/09/2016 — 6.5 hrs driving; total hours working from 3am to 10:30am (7.5 hrs)
No.06: 08/09/2016 — 10 hrs driving; total working hours from 1:45am to 12:45pm (11 hours)
No.10: 10/08/2016 — 7.5 hrs driving; total working hours from 3am to 11:15am (8.25 hrs)
No.11: 11/11/2016— 8.5 hrs driving; total working hours from 3am to 1pm (10 hrs)
No.12: 12/12/2016 — 9.75 hrs driving; total hours working from 2am to 1:15pm (11.25 hrs)
No.13: 16/12/2016 — 8.75 hrs driving; total hours working from 2am to 11:30am (9.5 hours)
The Tribunal notes that the pages numbered 03, 07, 08 and 09 of Mr Grewal’s logbook were not provided to the Department.
In his written statement, Mr Kapoor also indicated that Mr Grewal drove a truck on 14 December 2016, 19 December 2016, 20 December 2016 and 23 December 2016 to take the truck to and from the workshop.
On the applicant’s claims, the first entry presented of Mr Grewal’s logbook is for 30 March 2016 and the last entry presented was for 16 December 2016. The delegate noted in the first notice that this appeared inconsistent with Mr Kapoor’s statement that Mr Grewal drove the trucks up to three times a week during the Christmas period, which is up until the end of the month of December.
In the first notice, the delegate noted the qualifications, tasks and responsibilities as set out in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) for the occupation of Transport Company Manager (149413). The delegate also noted that the occupation of Truck Driver (ANZSCO Code 733111) is not listed as an approved occupation on the list of occupations that can be nominated under the 457 Program.
In response to the delegate’s concern that the applicant did not ensure that Mr Grewal works only in the occupation for which he has been approved by the Department, the applicant provided a number of documents including, a statement from Mr Kapoor dated 30 March 2017, a statement from Mr Grewal, worksheets for Mr Grewal and sample advertisements for Transport Managers indicating that driving is part of that role.
Mr Grewal, in his written statement, stated that his role with the applicant is to look after the day to day operations of the company, which occasionally included driving the trucks to and from the workshop for maintenance, training drivers and as a backup driver for when a scheduled driver calls in sick. Mr Grewal claimed that he has driven the truck only nine days in the preceding calendar year. He referred to his worksheets which he claimed indicate that the majority of the time he oversees the day to day operations of the applicant’s business.
Mr Kapoor, in his written statement, stated that the pages of Mr Grewal’s Logbook that he provided to the Department were from his own records because Mr Grewal had lost his original logbook. He stated that the logbook was first damaged by coffee and then lost. He stated that he is required by law to keep copies for three years. Mr Kapoor stated that if a page of the logbook is damaged or missed, those pages cannot be completed and the driver must use the following page. Mr Kapoor claimed that record No. 03 of the logbook was missed by error and that No. 07, 08 and 09 were damaged by coffee. Mr Kapoor stated that on days where less than 100 km is driven, as occurred on some days in November and December, the logbook does not need to be completed. Mr Kapoor stated that driving up to three days a week in the busy period, being in reference to his oral evidence during the interview with the Department, does not mean that Mr Grewal was driving and making deliveries as a driver. Mr Kapoor claimed that Mr Grewal was not driving a truck each day and sought to explain why Mr Grewal had to drive a truck on each of the nine occasions.
In the accompanying written submissions from the former representative, it was submitted that Mr Grewal had driven trucks on very few occasions, being nine times, from March 2016 to mid-December 2016. It was submitted that, the fact Mr Grewal drove a truck does not mean that he was not working in the nominated occupation of Transport Company Manager. It was submitted that Mr Grewal had been undertaking the majority of tasks associated with the nominated occupation. It was submitted that ANZSCO is a guide and that does not purport to contain a complete list of all of the duties and responsibilities associated with each occupation. It was submitted that having regard to the transport industry, it is notable that driving a truck is part of the accepted role for the nominated occupation, for example, to deliver a truck for maintenance, to train drivers, to recover a vehicle and to fill in for a driver if urgency is required. The representative referred to copies of advertisements which indicate that driving is part of the transport manager role. It was submitted that the sponsor has explained why Mr Grewal’s original logbook cannot be provided and that the loss of the logbook has been reported to the appropriate state authority and a replacement logbook was issued. It was submitted that the sponsor did not breach their obligations in r.2.86.
After considering the responses, the delegate issued the second notice which set out why the delegate formed the view that the applicant had provided false or misleading information to the Department. Copies of the pages from Mr Grewal’s logbook on the Department’s file show that the date on each page of the logbook had been altered. The delegate suspected that the original dates were as follows:
Page no:        Suspected original date:                 Date altered to:
No.01:   30/07/2016   30/03/2016
No.02:   01/08/2016  09/05/2016
No.04:          03/08/2016  31/08/2016
No.05:          04/08/2016   05/09/2016
No.06:          05/08/2016   08/09/2016
No.10:          10/08/2016   10/08/2016
No.11:          11/08/2016   11/11/2016
No.12:          12 Unknown* 2016   12/12/2016
No.13:           13/08/2016   16/12/2016
*the month had been liquid papered out.
In response to the second notice, the Department received a written statement from Mr Kapoor dated 19 April 2017 in which he contended that he had not provided false or misleading information and that all the documents provided are 100% accurate. He stated that liquid paper was used to correct a mistake and that Mr Grewal had made corrections of simple errors by writing over or using white-out. The representative submitted that the records of the logbook were corrected because they are required to be accurate. It was submitted that the mere fact of the corrections is not probative evidence that the applicant has provided information that is false or misleading. It was also submitted that mere suspicion is not sufficient to ground a finding that the applicant has provided information that is false or misleading.
On review, the Tribunal received various documents including activity statements, organisational chart and an accountant’s letter for the applicant evidencing that it operates a viable and expanding transport company. The Tribunal also received copies of the registration documents for the heavy vehicles (trucks) owned by the applicant, evidence of Mr Grewal’s employment with the applicant to date and copies of statements previously provided to the Department.
At the hearing, the Tribunal discussed with Mr Kapoor the requirement for sponsors to comply with their sponsorship obligations, including the requirement in r.2.86. The Tribunal also discussed with Mr Kapoor the information set out in the notices. The Tribunal noted that it had perused the employment contract, a copy of which was provided to the Department, which included an attached list of employee duties and responsibilities, and that it also had regard to the types of tasks involved in carrying out the role of Transport Company Manager as set out in ANZSCO, which the nomination application would have been assessed against prior to its approval on 26 March 2015. The Tribunal further noted that the tasks in the employment contract and those set out in the ANZSCO closely matched but that neither indicated that driving a truck was a task to be performed in the position.
In response to the above concern, Mr Kapoor stated that while he acknowledges there was a breach, it was not deliberate and was done due to lack of knowledge. He stated that Mr Grewal had only driven a truck on about five or six occasions during the Christmas period. He stated that once they found out that driving a truck was not in accordance with the employment contract, they rectified the error. Mr Kapoor stated that on every occasion Mr Grewal drove a truck it was an unavoidable circumstance. Mr Kappor stated that they have now increased the number of casual truck drivers whom they can call upon to assist when required.
The Tribunal put to Mr Kapoor that his evidence that Mr Grewal drove a truck on only five or six occasions is inconsistent with the evidence he gave during the monitoring interview that Mr Grewal had driven a truck about once a week and up to three days a week during the Christmas period. The Tribunal also noted that the logbook provides records that Mr Grewal drove a truck on at least nine occasions. In response to these concerns, Mr Kapoor acknowledged that during the monitoring interview he had stated that Mr Grewal drove a truck once a week and more during the Christmas period.
The Tribunal asked Mr Kapoor about the business’ operations, including the use of the trucks and the number of kilometres they would normally be driven for on any given day. In response, Mr Kapoor stated that they own 12 trucks, most of which are on the road every day, and that they would be driven approximately 200km to 400km a day.
The Tribunal discussed with Mr Kapoor the evidence before it which, in combination, strongly suggests that Mr Grewal had been working as a truck driver more frequently than what had been claimed. Firstly, the Tribunal noted that Mr Grewal had a truck licence and a national driving work diary, which suggests that he may have been required to drive a truck to perform the role, notwithstanding that this task had not been included in the employment contract. Secondly, the Tribunal noted that there were missing pages and altered dates and days in the logbook and that most of the original dates, from what the Tribunal observed for itself, appeared to suggest that it was from a shorter period, most likely between 30 July 2016 and August 2016, and not over the period of 9 months, from March 2016 to December 2016, as claimed. Thirdly, the Tribunal noted that the odometer reading on the trucks with the same number plates also suggested that the nine entries during which Mr Grewal drove the trucks were from a shorter period of about two or three weeks and not over a period of nine months as suggested by the claimed corrected dates.

The Tribunal notes, for example, that the truck with plate number CC36QJ, as noted on page No. 01, was driven by Mr Grewal when it had an odometer reading of 864,224 at the start of a shift and 864,782 at the end of an 11 hours shift. This is a total of 558 km. Page No. 02 of the logbook indicates that Mr Grewal drove the same truck and that the odometer reading at the start of the shift was 865,208 and 865,737 at the end of a 10.5 hours shift. This is a total of 529 km. The difference between the odometer readings at the end of the first shift and the beginning of the second shift is 426 km. Given Mr Kapoor’s evidence that the trucks are driven between 200km and 400km a day, the Tribunal considered it highly likely that the suspected original dates set out in the second notice, being 30/07/2016 for page No. 01 and 01/08/2016 for page No. 02, were likely to be more accurate that the corrected dates of 30/03/2016 for No.01 and 09/05/2016 for page No. 02 of the logbook. This is because the Tribunal considers it is more likely, taking into account all the evidence, that the truck with plate number CC36QJ was driven approximately 1513 km over a three day period, between 30 July 2017 and 1 August 2017, rather than over a 40 day period as suggested by the corrected dates. Similarly, the truck with plate number BZ60KL, which according to logbook pages No. 05, 06, 10, 11, 12 and 13, was driven by Mr Grewal during shifts ranging between 6.5 driving hours and 9.75 driving hours. The odometer reading in the beginning of the shift referred to in page No. 05 was 565,176 and the odometer reading of the shift to which page No. 13 refers is 572,529. This is a total of 7,353 km. If the truck is driven between 200km and 400km a day, then it is likely that this truck was driven over a consecutive period of approximately 18 days to 36 days, and not over three and a half months (100 days) as suggested by the claimed corrected dates.
When the above concerns were discussed with Mr Kapoor at the hearing, he provided the following responses. In relation to Mr Grewal holding a truck licence, he stated that he is not sure when Mr Grewal obtained this and that when Mr Grewal applied for the position he already held a heavy vehicle licence. Mr Kapoor stated that they employed Mr Grewal because he had good knowledge of the transport industry and its operations, was good at dealing with other drivers, solving customer issues and has a good technical mind. While the Tribunal is prepared to accept that Mr Grewal already held a truck licence and had knowledge of the transport industry, the Tribunal considers it likely that Mr Kapoor was seeking an employee who had a truck licence, whom he could rely on if a scheduled driver did not appear for work and to assist with driving trucks during the busy periods as he had indicated during the Departmental interview.
In relation to the missing pages from the logbook, Mr Kapoor stated that if pages are destroyed or damaged, as in this case, then that page is cancelled and does not form part of the company’s records. He stated that there is a legal requirement for him to keep the relevant pages for three years and that the driver has to keep their own record. He stated that the pages he provided to the Department from the logbook were those given to him by Mr Grewal. He also stated that Mr Grewal told him that the other pages had been damaged.
In relation to the altered dates and days on the logbook pages, Mr Kapoor stated that if information is wrong then it must be corrected and that this is what occurred in this case. The Tribunal noted that while it may accept as plausible that one or two of the logbook entries may have needed to be corrected, it did not find credible that all nine entries required the date and the day be corrected. The Tribunal again noted that the sequence of the odometer readings suggested that the original dates, which indicate the months of July and August, to be more accurate than the corrected dates. The Tribunal further noted that given his evidence that the trucks are driven approximately 200km to 400km each day, it appeared more likely that the truck with number plate BZ60KL being driven by Mr Grewal, as indicated in the logbook, was driven about 5000 km over a period of 10 days, as suggested by the original dates, and not over three months as suggested by the corrected dates. In response, Mr Kapoor stated that he has trucks that are driven for only 80km a day. The Tribunal noted that the logbook indicates that Mr Grewal had driven the truck approximately eight to ten hours on each occasion, which would result in him undertaking far more than 80km each day. Mr Kapoor then stated that just because the logbook indicates the driver was driving the truck it does not necessary mean that they were in fact driving and that many things can count as driving, such as filling petrol or cleaning the windows of the truck.
The Tribunal has considered Mr Kapoor’s explanations but does not accept them. On the nine pages provided of Mr Grewal’s logbook, the starting and ending odometer readings suggest that Mr Grewal had driven the truck approximately 500km a day on most of the occasions that he drove the trucks. The Tribunal has formed the view that the nine pages from Mr Grewal’s logbook were likely to be for the period between 30 July 2016 and 13 August 2016 and not from a nine months period as suggested by the corrected dates. The Tribunal considers that Mr Grewal had worked for the applicant as a truck driver far more frequently than claimed and not just on limited occasions due to unavoidable circumstances as submitted by Mr Kapoor.
In relation to the evidence he gave during the Departmental interview that Mr Grewal drove trucks once a week and up to three times a week during the busy periods, Mr Kapoor explained that during the phone call he provided truthful information. He stated that the transport industry is a difficult one to operate in and that Mr Grewal had to sometimes drive trucks so they can satisfy customer requirements. He stated that they have to comply with a lot of laws and he has to ensure that truck drivers are safe and comply with all the delivery times. He stated that the image of the company and its reliability is important to them and that they take customer satisfaction very seriously. He stated that they have doubled in size and that the breach occurred due to lack of knowledge about their obligations.
In light of Mr Kapoor’s admission that the evidence he gave during the Departmental interview about Mr Grewal’s employment was truthful, that is, that Mr Grewal drove trucks one day a week and up to three days during the Christmas period, together with other evidence before the Tribunal, as discussed above, the Tribunal has formed the view that Mr Grewal regularly worked as a truck driver during his employment with the applicant as the holder of a Subclass 457 visa. The Tribunal does not accept that Mr Grewal drove trucks for the applicant on only a few occasions as initially claimed.
Mr Grewal was nominated for a position in the occupation of Transport Company Manager. The tasks associated with carrying out that occupation include organising and controlling the operations of enterprises that operate fleets of vehicles to transport goods and passengers. While the Tribunal is prepared to accept that Mr Grewal undertook some duties that were consistent with that occupation, as indicated by the worksheets provided, the Tribunal has also formed the view that the applicant regularly relied on Mr Grewal to drive trucks so that they could meet delivery times and satisfy customer expectations.
The Tribunal does not consider the task of driving trucks to transport goods for the applicant to be consistent with the occupation for which Mr Grewal was nominated. Mr Grewal was nominated to work in the occupation of Transport Company Manager for the applicant and not as a truck driver. The applicant was under obligation to ensure that Mr Grewal did not undertake work in an occupation other than the nominated occupation. Given the Tribunal’s finding that Mr Grewal regularly worked as a truck driver, the Tribunal accordingly finds that the applicant has failed to comply with their obligation.
For the above reasons, the Tribunal finds that the applicant did not ensure that sponsored persons did not work in an occupation other than that for which they have an approved nomination. The applicant has therefore breached their sponsorship obligation in r. 2.86.
Accordingly, 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).
In determining whether the applicant has provided false or misleading information to the Department, or Tribunal on review, the Tribunal has had regard to the evidence before it as follows.
The Tribunal discussed with Mr Kapoor the information before it, as set out in the second notice, suggesting that false or misleading information had been provided to the Department because not all of the pages of Mr Grewal’s logbook were given to the Department and because the date and day on the pages that were provided appear to have been altered. The Tribunal noted that the original dates appear to suggest that the logbook records were from a period of a few weeks and not for the nine months from March 2016 to December 2016 as claimed in the written submissions.
In response, Mr Kapoor stated that it is his understanding that errors can be corrected by rewriting over the incorrect information. He also stated that the logbook records were those given to him by Mr Grewal which he has to keep as part of his record keeping obligations.
Having observed copies of Mr Grewal’s logbook for itself, the Tribunal formed the view that the dates and days on the pages have been altered and that the original dates on many of the pages, from No.02 to No.13, were records from dates in August 2016 and not for the dates claimed in the submissions. The Tribunal considers that the odometer readings recorded on the each of pages, which is discussed in some detail above, supports the Tribunal’s view. On this basis, the Tribunal is satisfied that false or misleading information was provided to the Department during the monitoring audit.
It is not necessary to determine who altered the dates on the pages of Mr Grewal’s driver diary. These records were provided to the Department by the applicant during the monitoring audit. As the Tribunal is satisfied that these documents are false or misleading, it follows that the applicant has provided information that is false or misleading to the Department.
Accordingly, the Tribunal is satisfied that the prescribed circumstance in r.2.90 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.
Failure to comply with sponsorship obligation
The criteria to be considered where there is failure to comply with sponsorship obligation are set out in r.2.89(3) and have been considered as follows.
(a) the past and present conduct of the person in relation to Immigration
There is no information before the Tribunal which suggests that the applicant has failed to engage with the Department during the monitoring process or that they have not previously been co-operative with the Department.
(b)the number of occasions on which the person has failed to satisfy the sponsorship obligation
Other than the breach of sponsorship obligations in r.2.84 and r.2.86, as set out above, there is nothing before Tribunal which indicates that the applicant has failed to satisfy sponsorship obligations on any other occasion.
(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
The failure to notify the Department of the change of address may be considered minor, however, the Tribunal considers the applicant’s failure to ensure that Mr Grewal worked only in the nominated occupation to be significant. The evidence before the Tribunal indicates that Mr Grewal had worked for the applicant as a truck driver on a regular basis during the time he held a 457 visa.
At the hearing, Mr Kapoor stated that this was due to his lack of knowledge and due to unavoidable circumstances. Mr Kapoor stated that they relied on Mr Grewal to drive trucks to bring other drivers back safely and to meet customer demands. The Tribunal considers that Mr Kapoor should have informed himself of the sponsorship obligation to ensure that Mr Grewal did not work in an occupation other than that for which he was nominated and should have made other arrangements when he needed a truck driver rather than to rely on Mr Grewal.
(d) the period of time over which the person has been an approved sponsor
The applicant was most recently approved as a standard business sponsor on 18 February 2015 for three years.
(e)whether, and the extent to which, the failure to satisfy the sponsorship obligation has had a direct or indirect impact on another person
The Tribunal considers the applicant’s failure to satisfy r.2.86 had an impact on Mr Grewal in that he would have been in breach of the mandatory condition imposed on his Subclass 457 visa, that being, that he work only in the occupation for which he was nominated. This breach could have led to the cancellation of Mr Grewal’s Subclass 457 visa. However, as informed by the representative at the hearing, Mr Grewal’s Subclass 457 visa ceased and the Department did not pursue cancellation.
(f)whether, and the extent to which, the failure to satisfy the sponsorship obligation was intentional, reckless or inadvertent
It was submitted that the applicant’s failure to comply with the sponsorship obligations was due to lack of knowledge, unavoidable circumstances and not intentional. The Tribunal gives limited weight to these submissions, because the Tribunal considers that Mr Kapoor should have ensured that he understood the sponsorship obligations with which the applicant had to comply when it became an approved sponsor. This includes, Mr Kapoor familiarising himself of the types of tasks involved in carrying out the occupation of Transport Company Manager and ensuring that Mr Grewal did not regularly undertake tasks that were inconsistent with that occupation. While the Tribunal is prepared to accept that the failure to satisfy the sponsorship obligations was not intentional, it nevertheless considers that it was reckless.
(g)whether, and the extent to which, the person has cooperated with Immigration, including whether the person informed Immigration of the failure
The delegate indicated in the decision record that the applicant had cooperated with the Department.
(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
At the hearing, Mr Kapoor gave evidence that as soon as he found out they were in breach he corrected the situation by increasing the pool of casual drivers so that they did not have to rely on Mr Grewal to drive trucks. The Tribunal accepts that the applicant has taken steps to rectify the breach.
(i)the processes (if any) the person has implemented to ensure future compliance with the sponsorship obligation
Mr Kapoor stated that he is now aware of the sponsorship obligations and will comply with them.
(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
Other than the sponsorship obligations in r.2.84 and r.2.86, the Tribunal has not made any assessment on whether any of the other sponsorship obligations had been breached.
(k) any other relevant factors
Mr Kapoor did not have anything further to say regarding the applicant’s failure to satisfy sponsorship obligations.
Provision of false or misleading information
The criteria to be considered where there has been provision of false or misleading information are set out in r.2.90(3) and have been considered as follows.
(a) the purpose for which the information was provided
The Tribunal has found that the information contained in the pages of Mr Grewal’s logbook, which were provided to the Department, contained information that was false or misleading. The Tribunal considers that the dates on the logbook were altered so that it would appear that Mr Grewal drove trucks for the applicant on a limited number of occasions, nine times, over a nine months period, and not nine times in the period between July and August of 2016. Mr Kapoor claims that the records were not altered by him that he had simply provided the records he had to the Department
(b) the past and present conduct of the person in relation to Immigration
It was initially claimed that the dates and days on the logbook were incorrect and that for this reason they had to be changed and liquid-papered to reflect the correct dates. When the Tribunal raised the concern with Mr Kapoor that his dealings with the Department regarding the logbook records were less than honest, Mr Kapoor stated that he had provided honest information during the Departmental interview about the number of times Mr Grewal drove trucks. The Tribunal considers that Mr Kapoor’s evidence during the Departmental interview regarding how often Mr Grewal drove trucks was much closer to the truth than that subsequently claimed in the written submissions. Notwithstanding Mr Kapoor’s claim that he had not altered the information in the logbook, the Tribunal considers it his obligation to ensure that the information that was provided to Department was not false or misleading.
(c) the nature of the information
As discussed in some detail above, the information in issue relates to the records of Mr Grewal’s logbook which record the dates, days, hours and number of kilometres he drove a truck. This information was relevant to determining whether the applicant had complied with its sponsorship obligations regarding the type of work being undertaken by Mr Grewal during his employment with the applicant.
(d) 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 the provision of false or misleading information impacted the Department’s ability to properly assess whether a breach of sponsorship obligations had occurred and the extent of that breach.
(e) whether the information was provided in good faith
In response to the Tribunal’s concern that the information was not provided in good faith, Mr Kapoor stated that he had no knowledge that the pages were altered and that he believed it had been corrected to reflect the correct dates. The Tribunal has some difficulty accepting these claims, because Mr Kapoor went to great lengths to explain in his written statement the reasons why Mr Grewal drove trucks on the few occasions claimed. The Tribunal considers that Mr Kapoor likely knew that the information on the logbook pages were not correct.
(f) whether the person notified Immigration immediately upon discovering that the information was false or misleading
It was noted in the decision record that the applicant did not notify the Department that false or misleading information had been provided during the monitoring audit.
(g) any other relevant factors.

Mr Kapoor was concerned that the outcome of this review would have an adverse effect on Mr Grewal’s application for residence. The Tribunal acknowledges that its findings that the applicant has breached their sponsorship obligations would be considered adverse information and could adversely affect nominations made by the applicant, as well as any related visa applications made by Mr Grewal. The Tribunal notes however that the requirement that there be no adverse information known to Immigration about the sponsor and/or nominator is usually accompanied by an alternative criterion against which the decision maker can consider whether it is reasonable to disregard the adverse information. The Tribunal considers the assessment of the requirements relating to Mr Grewal’s application for residence to be a matter for the decision maker in that case and the Tribunal makes no further comments in that regard.
Overall considerations
While a number of the above considerations are in favour of the applicant, for example their cooperation with the Department during the monitoring process, including Mr Kapoor participating in an interview, and taking steps to rectify the breach by increasing the pool of casual truck drivers so they did not have to rely on the 457 visa holder, there were also other circumstances that are not so favourable. The Tribunal considers that the applicant’s failure to comply with their sponsorship obligations was due to the inattentiveness of Mr Kapoor who, in the Tribunal’s view, made limited effort to inform himself of the sponsorship obligations and to ensure they were being complied with. These circumstances, together with the provision of information intended to mislead the Department about frequency of Mr Grewal working as a truck driver, weigh against the applicant.
Having regard to all the relevant circumstances, the Tribunal considers that the Department’s decision to cancel the applicant’s approval as standard business sponsor was an appropriate action to take. For this reason, the Tribunal has decided to affirm the Department’s decision.
As more than two years have passed since the sponsorship approval was cancelled, the Tribunal decided not to take any other action against the applicant.
DECISION
The Tribunal affirms the decision under review.
R. Skaros
Senior Member

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

[2019] AATA 4334

26 September 2019

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