Katunga Fresh Trading Pty Ltd (Migration)

[2022] AATA 2006

Katunga Fresh Trading Pty Ltd (Migration) [2022] AATA 2006 (28 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Katunga Fresh Trading Pty Ltd

REPRESENTATIVE:  Mr Mark Edward Northam (MARN: 1175508)

CASE NUMBER:  2114580

HOME AFFAIRS REFERENCE(S):          OPF2020/6855

MEMBER:Mary Sheargold

DATE:28 April 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal varies the decision under review by reducing the period of the sponsorship bar imposed under s.140M(1)(c) of the Act from 24 months to 3 months.

Statement made on 28 April 2022 at 4:55pm

CATCHWORDS
MIGRATION – reducing the period of the sponsorship bar imposed under s.140M(1)(c) of the Act – Katunga Fresh had breached several of its sponsorship obligations over an extended period – standard business sponsorship approval had already expired – Katunga Fresh did provide false or misleading information to the Department – clear and genuine contrition for their mistakes – decision under review varied

LEGISLATION
Migration Act 1958, ss 140M, 359, 375A
Migration Regulations 1994, rr 2.59, 2.79, 2.83, 2.87, 2.90

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Peter van den Goor dreamed of a new life in Australia and enjoyed researching Australian farming properties online.  An experienced hydroponic tomato farmer, he took a chance on a property he identified in Katunga, Victoria, in 2002.  Together with his wife Marian, they sold their farm business in the Netherlands, packed their bags, flew halfway around the world, and started a new life in Katunga.  By 2020, their Australian-based hydroponic farm business, Katunga Fresh Trading Pty Ltd, had expanded from a single hectare and glasshouse to 20 hectares of hydroponic tomato crops producing tonnes of tomatoes that generate a turnover greater than $30,000,000 per annum.  It is a bustling enterprise with 150 employees comprised of a combination of Australian and foreign workers.

2. Peter and Marian van den Goor are well liked and well respected in the Katunga area and in the Victorian farming community generally.  They are known to be generous hosts and they relate to their employees as an extension of their family.  However, a 2020 investigation by Australian Border Force revealed irregularities with pay and conditions for some of their workers holding Subclass 482 visas.  The investigation also determined that some workers employed in the Temporary Skills Shortage visa scheme were not actually working in the specific role that they had been sponsored for and approved to work in. 

3. Additionally, Katunga Fresh failed to provide records when requested, and allegedly provided false or misleading information to the Department relating to pay deductions and the job descriptions for 5 of its Subclass 482 visa holders.  On 29 September 2021, a delegate of the Minister for Home Affairs imposed a bar of 24 months preventing Kantunga Fresh from sponsoring more people under the terms of its approved standard business sponsorship.  The Covid-19 pandemic has heightened the skilled labour shortage in the agricultural sector in Australia, and for this reason, the delegate decided not to cancel Katunga Fresh’s standard business sponsorship approval.

4. I am tasked with determining whether Katunga Fresh breached its sponsorship obligations, and if so, to determine what action (if any) to take.  Mr and Mrs van den Goor do not dispute that Katunga Fresh made mistakes regarding public holiday pay and in recouping the costs associated with nomination and sponsorship of visas from the temporary visa holders as found by the delegate.  They do dispute that they classified their employees incorrectly.  Ultimately, they accept that they have made noteworthy mistakes in their past practices and accept that a penalty is appropriate in the circumstances. 

5. Mr and Mrs van den Goor’s principal concern at review is the duration of the sponsorship bar imposed by the delegate.  Letters of support attesting to the importance of Katunga Fresh to the local community have been provided from businesses that work with Katunga Fresh as well as from community leaders.  In weighing up the factors I must consider in determining the length of the sponsorship bar imposed, and the specific legal provisions that are relevant in this case, I have decided that a bar of 3 months is the only appropriate penalty for the breaches of sponsorship obligations that I have identified. My reasons for varying the sponsorship bar imposed by the delegate are set out below.

   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.  Katunga Fresh was approved as a standard business sponsor on 5 January 2017.  That sponsorship approval expired on 5 January 2022.  On 29 September 2021, the delegate decided bar Katunga Fresh for a period of 24 months from sponsoring any further workers under the terms of its approved standard business sponsorship, as provided for in s 140M(1)(c).  This penalty was imposed on the basis that Katunga Fresh had breached several of its sponsorship obligations over an extended period. 

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 apply to the circumstances of this case, are set out in the attachment to this decision.

10. The delegate imposed a bar on sponsoring further workers under the terms of the approved standard business sponsorship agreement for 24 months when that agreement had little more than 3 months to run.  The delegate did not decide to bar Katunga Fresh under s.140M(1)(d) of the Act, which would have prevented it from applying for further approval as a standard business sponsor for a set period of time, and the delegate gave explicit reasoning as to why the standard business sponsorship approval was not being cancelled.  I have concluded that the only appropriate decision I can make is to vary the delegate’s decision by reducing the duration of the sponsorship ban to align with the actual period of validity of Katunga Fresh’s standard business sponsorship approval.

11. Mr and Mrs van den Goor appeared before the Tribunal on 21 April 2022 along with their representative Mr Mark Northam, and Mr Nicholas Poynder of counsel.  They brought with them witnesses Mr Michael Tran from E.E. Muir, Mr Leigh Rankin from Rankin Trans, Mr Craig Dugan from Optimal Energy, and Mr John Beitzel from Murray Valley Rural and Plumbing.  Cr Libro Mustica from Moira Shire Council was available to present evidence by telephone, but I did not consider his evidence necessary given the body of the evidence already available to me.

12. Prior to the hearing, the Tribunal wrote to Katunga Fresh inviting it to comment on the validity of a non-disclosure certificate issued by the Department in respect of certain documents on its file.  That certificate was issued pursuant to s.375A of the Act, and so the Tribunal is precluded from sharing the documents on the Department’s file subject to that certificate if the certificate is found to be valid.  The certificate states that the documents subject to it must not be disclosed because they would “disclose lawful methods for preventing, detecting and investigating breaches or evasions of law which would or be likely to prejudice the effectiveness of those methods.”  In my view, the certificate is valid because it articulates the specific documents protected and why the information within them warrants non-disclosure.  It is duly signed and dated. 

13. Mr Northam responded to the Tribunal’s letter arguing that the delegate’s reasoning for seeking non-disclosure over those documents was so broad as to be the subject of overreach because the lawful methods of collecting information that the Department seeks to protect are “obvious and nothing out of the ordinary.”  He stated that it is the applicant’s contention that the certificate is likely to be invalid, and requested the Tribunal enunciate the substance of the information in the documents protected by the certificate.  The Tribunal wrote to the applicant again explaining that the documents protected were simply the Department’s working notes and that all the salient points within those documents had been enunciated in the Notice of Intention To Take Action sent to the applicant in April 2021.  The Tribunal’s letter stated that because of this, no obligation arose for the Tribunal under either s.359A or s.359AA of the Act.  No further comments were received in relation to the validity of the certificate.

14. I have considered Mr Northam’s submissions and I accept that the “lawful methods” mentioned in the certificate are indeed obvious and nothing out of the ordinary.  However, in my view, the obviousness of the Department’s methods to the experienced practitioner is not sufficient reason to deny that the delegate has made the case necessary to protect the documents under s.375A and as such, I find the certificate to be valid.

15. Mr Northam made significant submissions to the Tribunal in February 2022 requesting an expedited hearing due to the impact the sponsorship ban would have on Katunga Fresh if the matter was not dealt with swiftly.  He provided the Tribunal with 35 separate reference letters, from:

    ·The Hon. Damian Drum MP, Federal Member for Nicholls;

    ·Suzanna Sheed MLA, State Member for Shepparton District;

    ·Cr Rob Priestly, Greater Shepparton City Council (writing in his personal capacity and not in his role as a councillor);

    ·Mr Austin Ley, Manager of Economic Development, Moira Shire Council;

    ·Mr Glenn Brewster, accountant for Katunga Fresh;

    ·Leigh Rankin, Rankin Trans;

    ·John Beitzel, Murray Valley Rural & Plumbing;

    ·Craig Duncan, CEO, Optimal Group Australia;

    ·Ben Stanaway, Stanalec;

    ·Rebecca Newbery, Newbery Earth Moving Pty Ltd;

    ·John Simonetta, Chief Commercial Officer, Perfection Fresh Australia;

    ·James Muir, E.E. Muir & Sons Pty Ltd;

    ·GS Fraser, CEO, Protected Cropping Australia Ltd;

    ·Carl van Loon, CEO, Powerplants Australia Pty Ltd;

    ·Travis Price, Mawsons Concrete & Quarries;

    ·Steven Thomas, AGnVET Management Services Pty Ltd;

    ·Damian Pederick, Remax Doors;

    ·Matthew Van der Burg, Elders Shepparton;

    ·Liana Stanyer, Stanyer Engineering;

    ·Australasian Agriculture Equities;

    ·Michael Davies, CVGT Australia;

    ·Graeme Raper, CEO, Exfoliators;

    ·Adam Pokorzynski, Director, P.R.E Solutions;

    ·David Sobevski, Managing Director, Brinkman Australia;

    ·Darren Smith, Numurkah Tyrepower;

    ·Gary Bordignon, Director, G.D. & M.A. Bordignon Diesel Mechanical Repairs;

    ·Serge van Hatterm and Michael Dicker, Katunga Fresh employees;

    ·Phil Monichino, P&M Building and Pumping;

    ·John Elford, President, Hydroponic Farmers Federation Inc;

    ·Stephen Holmes, Holmes Tilt Truck & Bus Hire;

    ·Brendan Drage, LTS Equipment;

    ·Mark Langham, Hogan Excavation / Poly Irrigation;

    ·Braden Reghenzani, BR Excavations;

    ·Andrew J. McKeown, Wikid Interiors; and

    ·Shaun Wheeler, Wheelers Automotive Electrical.

16. These letters all attest to the importance of Katunga Fresh in the local community, and variously attempt to vouch for Mr and Mrs van den Goor.  They argue that it would be devastating for the local community if Katunga Fresh was barred from sponsoring workers for 24 months, and if the Tribunal took too long to hear the application.  Nowhere in these submissions, though, did Mr Northam address the fact that Katunga Fresh’s standard business sponsorship approval had already expired, nor did he mention any intention for Katunga Fresh to apply for a new sponsorship approval.  In any case, the Tribunal granted the request for the matter to be expedited and so it was listed for hearing before me on 21 April 2022.

17. At the hearing, neither Mr Northam nor Mr Poynder highlighted the potential futility of this review given the delegate only barred Katunga Fresh under s.140M(1)(c) of the Act and not also under s.140M(1)(d).  Perhaps it is the case that Mr and Mrs van den Goor, Mr Northam and Mr Poynder all failed to identify, as did I at the time of the hearing, that in fact Katunga Fresh’s 2017 standard business sponsorship approval had already expired, and by logical extension, the 24 month bar imposed under s.140M(1)(c) is now impotent.

18. During the hearing, Mr Poynder stated that Mr and Mrs van den Goor did not seek to contest the delegate’s findings regarding Katunga Fresh’s breaches of its sponsorship obligations identified in the primary decision.  Rather, they simply sought a reduction in the duration of the bar imposed by the delegate given the potentially devastating impact a prolonged bar would have on their business.  However, Mr van den Goor emphasised his view that he disagreed with the delegate’s findings in relation to at least some of the breaches of sponsorship obligations identified. 

19. At review, I have examined the evidence available to me regarding each of the breached sponsorship obligations the delegate identified, and I make findings in relation to those.  It is in light of those findings that I do not seek to vary the delegate’s decision by imposing a harsher penalty under s.140M(1) of the Act, despite it being open to me to do so.  At the hearing, I agreed with Mr Poynder that a reduction in duration of the sponsorship bar to 6 months would be appropriate in the circumstances.  However, at the time I am writing this decision, and having reflected carefully on the terms of Katunga Fresh’s standard business sponsorship approval, I have concluded it is only appropriate that I decide to vary the sponsorship bar down to 3 months.  It would be incorrect for the Tribunal to decide to impose a sponsorship bar under s.140M(1)(c) of the Act for a period any longer than that during which the applicant’s standard business sponsorship approval was in effect.

20. I will firstly consider whether circumstances for taking action under s.140M of the Act exist, then will weigh up the relevant considerations regarding the appropriate penalty for any identified circumstances.  In doing so, I emphasise the fact that ultimately, my decision is to impose the maximum duration of a practicably enforceable bar given the expiration of Katunga Fresh’s standard business sponsorship approval on 5 January 2022.

    Does a circumstance for the taking of an action exist?

21. The delegate identified 2 circumstances for the taking of an action in relation to Katunga Fresh: first, the failure to satisfy its sponsorship obligations as set out in r.2.89, and second, the provision of false or misleading information as set out in r.2.90.

    Failure to satisfy a sponsorship obligation: reg 2.89

22. 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).  The delegate found that Katunga Fresh breached 5 separate sponsorship obligations:

    ·r.2.79: to ensure equivalent terms and conditions of employment;

    ·r.2.82: to keep records;

    ·r.2.83: to provide records and information to the Minister;

    ·r.2.86: to ensure primary sponsored person works or participates in nominated occupation, program or activity; and

    ·r.2.87: not to recover, transfer or take actions that would result in another person paying for certain costs.

23. The delegate identified multiple breaches of each of these obligations.  At review, Mr and Mrs van den Goor admitted that they breached rr.2.79 and 2.87 by failing to provide certain public holiday pay and by recovering the costs associated with the sponsorship and nomination of some of its temporary visa holders.  They also accept that they failed to keep certain records relevant to those identified breaches, and consequently failed to provide such records and information to ABF when requested.  However, they contend that they did always ensure that each primary sponsored person identified in ABF’s investigation worked in their nominated skilled occupation.  Consequently, this has the effect of the applicant challenging the delegate’s finding in relation to false or misleading information in respect of the alleged breaches of that obligation, and this is discussed under the relevant heading below.

    Regulation 2.79: Obligation to ensure equivalent terms and conditions of employment

24. Mrs van den Goor has full responsibility for the administration of all aspects of Katunga Fresh’s business.  At the hearing, she told me that she had not appreciated the requirement to pay some of the Subclass 482 visa holders for public holidays if they were not required to work on that day.  However, the Horticulture Award 2020 (MA000028) at clause 27.1 states that public holidays are provided for in the National Employment Standards, and consequently, Katunga Fresh is obliged to pay staff who would ordinarily have worked on the day on which a public holiday fell.  Further, if they were required to work on that day anyway, they would be entitled to an hourly rate of 200% of their ordinary hourly rate.

25. Mr and Mrs van den Goor admit that they did not fully comply with this obligation because they did not make the appropriate payments in relation to public holidays for their Subclass 482 visa holders on the 13 occasions identified by the delegate.  The evidence before me is that Mr and Mrs van den Goor took all necessary steps to back-pay staff who had not been paid for public holidays on Christmas Day and Boxing Day in 2020, and New Year’s Day and Australia Day in 2021.  I accept the payslips provided to the Department as sufficient evidence to demonstrate that such payments were made.  I accept that Mr and Mrs van den Goor were not malicious in their actions.  However, in my view, the back pay does not nullify the breach of the obligation to ensure equivalent terms and conditions of employment, because it is clear that Mr and Mrs van den Goor were not complying with the requirements of the Award in relation to their temporary visa holders prior to the ABF investigation.  Therefore, Katunga Fresh has failed to satisfy the sponsorship obligation set out in r.2.79 on 13 occasions.

    Regulation 2.82: Obligation to keep records

26. Katunga Fresh has sponsored 23 workers on temporary skills shortage visas, and has deducted weekly payments from each of their salaries to cover the costs associated with their visas and sponsorship.  Regulation 2.82 requires current and former approved standard business sponsors to keep specified records in a reproducible format to demonstrate compliance with sponsorship obligations.  Specifically, r.2.82(3)(e)(ii) requires standard business sponsors to keep records of money applied or dealt with in any way on the primary sponsored person’s behalf or as the primary sponsored person directed. 

1. The evidence before me, including Katunga Fresh’s response to the ABF’s notices requesting records and information in September 2020 and March 2021, shows that Katunga Fresh did not have a formalised written agreement with the 13 Subclass 482 visa holders from whom regular weekly payments of $80 after tax were deducted to help cover the costs associated with their visas.  Mr and Mrs van den Goor admit they did not enter into formal written agreements with those 13 employees until the time ABF commenced its investigations.  Because of this, I am satisfied that Katunga Fresh failed to satisfy the sponsorship obligation set out in r.2.82 on 13 occasions.

   Regulation 2.83: Obligation to provide records and information to the Minister

2. ABF sent Katunga Fresh 2 notices requesting records and information, obliging Katunga Fresh to provide such records in the timeframe requested.  The records must be those that Katunga Fresh was obliged to keep under r.2.82.  Given Katunga Fresh failed to keep records as required under r.2.82 relating to payroll deductions for visa costs, it was unable to provide ABF with the type of records sought. 

3. Katunga Fresh used its best endeavours by providing copies of bank statements for the sponsored workers, including evidence of back-pay where excessive amounts were deducted from certain employees.  However, ABF did not accept those personal bank statements belonging to the visa holders as ‘records’ for the purposes of rr.2.82 and 2.83.  I agree with the delegate and I find that Katunga Fresh could only discharge its obligation under r.2.83 by providing its own records, that it should have kept, in relation to these payroll deductions.  Katunga Fresh has not provided the appropriate records to the Minister (via ABF) because those records do not exist.  Therefore, I am satisfied that Katunga Fresh failed to satisfy r.2.83 on 2 occasions, being September 2020 and March 2021 when ABF requested records and information.

   Regulation 2.86: Obligation to ensure primary sponsored person works or participates in nominated occupation, program or activity

4. It is critical to the integrity of the Temporary Skills Shortage visa program that approved sponsors ensure their primary sponsored workers are actually working in their nominated occupation.  8 of Katunga Fresh’s 13 Subclass 482 visa holders have the nominated occupation of Agricultural Technician (ANZSCO 311111), and the remaining 5 have the nominated occupation of Vegetable Grower (ANZSCO 121221). 

5. At the hearing, Mr van den Goor strongly objected to the delegate’s characterisations of the 13 Subclass 482 visa holders’ evidence given to ABF as a result of its monitoring and investigation.  Mr and Mrs van den Goor argued that each of the Subclass 482 visa holders speaks English as an additional language, and that they were taken to be interviewed alone in intimidating circumstances.  ABF did not interview Mr and Mrs van den Goor regarding the tasks routinely performed by these workers on a daily basis.  The delegate appears to have relied on the visa holders’ evidence to reach their conclusions.

6. Mr van den Goor told me that each of these Subclass 482 visa holders is highly skilled and qualified for their nominated occupation.  They have obtained relevant degrees in horticultural studies in the Philippines.  He told me that each of the 13 Subclass 482 visa holders works in a managerial role, with 10 to 15 direct reports each, and sole responsibility for certain duties in their designated sheds.

7. I accept that the sponsored workers will not be expected to perform every task of their nominated occupation set out in the relevant ANZSCO descriptor, but rather they should be performing a majority of those tasks.  I will consider the ANZSCO descriptor for each nominated occupation, along with the evidence available to me in respect of each visa holder.

   Agricultural Technician (ANZSCO 311111)

8. A person working in the role of Agricultural Technician would be expected to perform the majority of the duties listed below:

   ·     examining topographical, physical and soil characteristics of farmland to determine its most effective use and identify nutrient deficiencies;

   ·     assisting in developing new methods of planting, fertilising, harvesting and processing crops to achieve optimum land usage;

   ·     identifying pathogenic micro-organisms and insects, parasites, fungi and weeds harmful to crops and livestock, and assisting in devising methods of control;

   ·     analysing produce to set and maintain standards of quality;

   ·     inspecting livestock to gauge the effectiveness of feed formulae;

   ·     assisting in controlled breeding experiments to develop improved crop and livestock strains;

   ·     arranging the supply of drugs, vaccines and other chemicals to Farmers and Farm Managers, and giving advice on their use;

   ·     collecting and collating data for research;

   ·     planning slaughtering, harvesting and other aspects of production processes; and

   ·     may advise producers on farming techniques and management.

9. Approximately half these tasks and duties are relevant only to Agricultural Technicians working with livestock.  Of the remaining tasks, the 8 visa holders employed in the nominated occupation of Agricultural Technician provided consistent evidence to ABF officers stating that they engage in winding plants, plant clearing, pruning vines, repairs to glasshouses when needed, and assisting with picking duties when needed.

10. Katunga Fresh provided detailed evidence in response to the NOITTA, providing photographs and job descriptions specific to each of the employees.  I have reviewed that evidence, and note that the Agricultural Technicians’ roles are described by Katunga Fresh as including duties such as:

    ·crop quality control;

    ·assisting in spraying

    ·crop registration and collecting data;

    ·operating roof washing equipment;

    ·water testing;

    ·pest and disease control;

    ·checking climate settings;

    ·collecting and reviewing data for research;

    ·making suggestions to adjust climate settings;

    ·mixing fertiliser;

    ·assisting in improvements of planting, fertilising and harvest methods.

11. Detailed descriptions with slightly altered wording are provided for all 8 workers with photographic evidence accompanying each visa holder’s job description. Mr van den Goor’s evidence to the Tribunal is that each of these workers is highly skilled and is undertaking all the tasks they describe on a daily basis.  Mr and Mrs van den Goor contend their employees were scared during their interviews, providing one-word answers to questions due to their limited capacity to understand English, and with only one worker requesting the assistance of an interpreter. 

12. The delegate preferred the evidence of the visa holders over the evidence given by Katunga Fresh because it was consistent, and spontaneously delivered without the opportunity for coaching.  The delegate concluded it was implausible that all the Subclass 482 visa holders would characterise their daily tasks so inaccurately.  However, I prefer the evidence given by Katunga Fresh in response to the NOITTA and the evidence given by Mr and Mrs van den Goor at the hearing.  I prefer that evidence because in my view, the visa holders were likely to have been highly stressed during their interviews, their English is accepted to be very limited, and the photographic evidence provided by Katunga Fresh contradicts the descriptions the workers gave to the ABF officers interviewing them. 

13. I appreciate that the photographs may have been staged.  However, when I couple the photographic evidence, the individual job descriptions for each sponsored worker (noting they do not marry directly with the ANZSCO descriptor but in my view are sufficiently similar to that descriptor), and Mr and Mrs van den Goor’s oral evidence, I am satisfied that the 8 workers sponsored in the nominated occupation of Agricultural Technician are largely performing the duties expected of an Agricultural Technician on a daily basis, and so I find that Katunga Fresh has satisfied its obligation under r.2.86 on 8 occasions.

    Vegetable Grower (ANZSCO 121221)

14. A person working in the role of Vegetable Grower would be expected to perform the majority of the duties listed below:

    ·planting trees, seeds, seedlings, roots, bulbs, vines and other plants using hand tools and farm machines;

    ·building trellises for climbing vegetables and vines;

    ·operating farm machines to cultivate, fertilise, spray and harvest fruit, nuts, grains and vegetables;

    ·spraying trees, vines and other plants with chemicals to control weed growth, insects, fungus growth and diseases;

    ·thinning, weeding and hoeing row crops, and pruning trees and vines;

    ·irrigating land for crop growth;

    ·selecting and picking fruit, nuts, grains, vegetables and mushrooms according to size and ripeness, and discarding rotting and over-ripened produce;

    ·grading, sorting, bunching and packing produce into containers; and

    ·loading filled fruit, nut, grain and vegetable containers onto trucks.

15. The 5 Subclass 482 visa holders employed as Vegetable Growers gave consistent evidence to ABF officers interviewing them stating that they primarily complete tasks such as winding and picking, as well as cleaning and sometimes packing produce.  The NOITTA notes that at the time the nominations for these positions were approved, the nominated occupation of Vegetable Grower was subject to an occupational caveat, excluding roles that were predominantly responsible for the lower-level tasks set out in the ANZSCO descriptor.  Katunga Fresh, at the time of nomination approval, had advised the Department that these workers had managerial responsibilities overseeing and coordinating farming operations. 

16. In response to the NOITTA, Katunga Fresh provided its personalised list of duties and photographic evidence for the 5 Vegetable Growers.  Their tasks are described as:

    ·checking the quality of produce;

    ·checking the quality of picking and giving instructions to picking staff;

    ·packing and grading tomatoes;

    ·fixing any malfunctions associated with the packing line;

    ·getting produce ready for dispatch;

    ·reviewing orders;

    ·assisting in picking and crop work;

    ·planting new seedlings;

    ·winding, pruning and taking away shoots; and

    ·assisting in the beginning of new crops.

17. In my view, Katunga Fresh’s descriptions of its Vegetable Workers skirt a fine line towards the lower-level tasks expected of a Vegetable Grower.  However, each sponsored worker is identified as a crop work supervisor for their designated space, and while they do perform lower-level tasks such as picking and packing, they complete these tasks in a supervisory capacity, and they each have responsibilities for training workers performing lower-level roles.

18. The delegate preferred the evidence of the visa holders over the evidence given by Katunga Fresh because it was consistent, and spontaneously delivered without the opportunity for coaching.  The delegate concluded it was implausible that all the Subclass 482 visa holders would characterise their daily tasks so inaccurately.  However, I prefer the evidence given by Katunga Fresh in response to the NOITTA and the evidence given by Mr and Mrs van den Goor at the hearing.  I prefer that evidence because in my view, the visa holders were likely to have been highly stressed during their interviews, their English is accepted to be very limited, and the photographic evidence provided by Katunga Fresh contradicts the descriptions the workers gave to the ABF officers interviewing them. 

19. I appreciate that the photographs may have been staged.  However, when I couple the photographic evidence, the individual job descriptions for each sponsored worker (noting they do not marry directly with the ANZSCO descriptor but in my view are sufficiently similar to that descriptor), and Mr and Mrs van den Goor’s oral evidence, I am satisfied that the 5 workers sponsored in the nominated occupation of Vegetable Grower are largely performing the duties expected of a Vegetable Grower on a daily basis, and that they have sufficient managerial responsibilities so as to place their roles outside the exclusionary caveat, and so I find that Katunga Fresh has satisfied its obligation under r.2.86 on 5 occasions.

    Regulation 2.87: Obligation not to recover, transfer or take actions that would result in another person paying for certain costs

20. Sponsors must not recover, or seek to recover, some or all of the costs associated with becoming or being an approved sponsor, or costs that relate specifically to the recruitment of a non-citizen for the purposes of a nomination.  The evidence before me makes plain that Katunga Fresh consistently deducted a weekly payment of $80 from each temporary visa holder to offset the costs of their visas; upfront costs that Katunga Fresh had outlaid.  Mrs van den Goor’s evidence to me is that Katunga Fresh paid all the migration agent fees relating to visas, nominations, and sponsorship, and that these were always invoiced by the migration agent altogether.  Mrs van den Goor told me that she had formulated $80 as an appropriate weekly deduction to offset those costs.  Both Mr and Mrs van den Goor indicated it never occurred to them that it may not be legal to recover the costs of sponsorship and nomination.

21. At the hearing, I put it to Mr and Mrs van den Goor that their business was of such a size and scope that perhaps expecting any contribution from the visa holders towards the cost of their visa may have been unreasonable.  Mr van den Goor noted that there is no reason they would not be able to absorb all these costs, and they both indicated their regret for breaching this sponsorship obligation.  They told me that neither their accountant nor lawyer ever questioned the payroll deductions for these fees, and they had assumed they were entitled to recover the costs.  It is clear that Mr and Mrs van den Goor are remorseful for their actions and I am satisfied it will not continue in the future.  However, I am satisfied that, based on the evidence before me, Katunga Fresh failed to satisfy its obligation under r.2.87 on 11 occasions by recouping the costs associated with becoming or being an approved sponsor from 11 of its Subclass 482 visa holder employees.

22. Accordingly, 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

23. 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).

24. The delegate found that Katunga Fresh provided false or misleading information to the Department in 2 circumstances for a total of 6 occasions:

    ·the response to ABF’s September 2020 request for records and information, where Katunga Fresh advised ABF that the $80 weekly payroll deductions for 3 of its employees related to accommodation expenses (1 occasion); and

    ·in stating that, at the time each of the 5 Vegetable Growers was nominated, they would be working in a management level position (5 occasions).

25. I have already made findings relating to the Vegetable Workers in relation to the obligation under r.2.86, and I refer to those findings to conclude that Katunga Fresh did not provide false or misleading information to the Department on the 5 occasions it nominated a Vegetable Grower when it was a caveated occupation.

26. In relation to the statements regarding the payroll deductions in September/October 2020, I note that the agent who previously represented Katunga Fresh responded to that notice on Katunga Fresh’s behalf.  Mr and Mrs van den Goor contend that the agent drew these conclusions and advised the Department accordingly.  However, at the hearing, it was clear that even Mr van den Goor was confused by the direct payroll deductions of $80 per week relating to visa and sponsorship costs, and the $120 cash payment they collected from each worker each week to cover the costs of their on-site accommodation.

27. In my view, there was no malice on the part of Mr and Mrs van den Goor when ABF was advised that the $80 payments related to accommodation expenses.  I am prepared to give the benefit of the doubt and accept that there were communication breakdowns between the van den Goors and their former migration agent leading to the incorrect information being provided.  However, it is clear that this information, provided to the Department on Katunga Fresh’s behalf, was both false and misleading. For that reason, I am satisfied that Katunga Fresh did provide false or misleading information to the Department on 1 occasion.

28. 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

29. For these reasons, I am 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.

30. In considering what action to take, I have had regard to the prescribed criteria in rr.2.89(3) and 2.90(3), as extracted in the attachment to this decision.

    Regulation 2.89: Failure to comply with sponsorship obligations

    Katunga Fresh’s past and present conduct in relation to Immigration and the period of time over which it has been an approved sponsor

31. Katunga Fresh was most recently approved as a standard business sponsor on 5 January 2017.  It has successfully nominated and sponsored 13 primary visa holders in the Subclass 457 and then Temporary Skills Shortage visa schemes.  The ABF’s investigation is the first time Katunga Fresh has been subject to monitoring.  The evidence before me suggests that Mr and Mrs van den Goor and their representatives have cooperated with the Department to the best of their ability, and they have not intentionally obstructed ABF’s investigations or intentionally misled ABF officers in any way.

    The number of occasions on which Katunga Fresh has failed to satisfy its sponsorship obligations

32. Mr and Mrs van den Goor have admitted and accepted that there were multiple breaches of Katunga Fresh’s sponsorship obligations.  They were identified by the delegate, and the majority of those findings are affirmed by me at review.  Katunga Fresh breached its obligation under 2.79 on 13 occasions.  It breached its obligation under s.2.82 on 13 occasions.  It breached its obligation under r.2.83 on 2 occasions.  It breached its obligation under r.2.87 on 11 occasions. 

33. The horticulture sector has a notorious reputation where exploitation of foreign workers is concerned.  In my view, the number of breaches demonstrate a significant and repeated pattern of behaviour, and I am satisfied that but for ABF’s investigation, it is likely that breaches of all these obligations would have continued to accrue.  This is because Mr and Mrs van den Goor’s evidence to me at the hearing is that they were never advised of their obligations as a standard business sponsor, nor did they independently avail themselves to learn their sponsorship obligations.

    The nature and severity of the circumstances relating to the failure to satisfy the sponsorship obligations, including the period of time over which the failure has occurred

34. The evidence before the Tribunal suggests that the breaches of the obligation under r.2.87 commenced with the first approved nomination and visa sponsorship under the 457 and 482 visa programs, and Katunga Fresh docked wages to recoup visa expenses for an average of 2 years per visa holder, but up to 3 years in some cases.  At a rate of $80 per visa holder per week, this would amount to at least $16,000 per visa holder.  I accept that Katunga Fresh has changed its practice in relation to this, and has repaid excessive deductions to the relevant workers.  However, in my view, but for ABF’s investigation, Katunga Fresh would likely have continued to dock wages for its temporary visa holders for the duration of their visa. 

1. I am also concerned that Mr and Mrs van den Goor claim never to have sought legal advice or accounting advice regarding the decision to recoup the costs of sponsorship and nominations for temporary visa holders.  This shows a wanton disregard for the integrity of the Temporary Skills Shortage visa program, and contradicts the body of evidence before me attesting to Mr and Mrs van den Goor’s generosity and strong community spirit. 

   Whether, and the extent to which, the failure to satisfy the sponsorship obligation has had a direct or indirect impact on another person

2. The failure to satisfy the sponsorship obligations under r.2.79 and 2.87 has directly impacted each of Katunga Fresh’s Subclass 482 visa holders.  It has meant they have had less net income than they may otherwise have been entitled to.  Entitlements to public holiday pay under the National Employment Standards cannot be denied. 

3. I am also conscious that the failures to satisfy these particular sponsorship obligations directly benefitted the shareholders of Katunga Fresh by reducing the overheads associated with recruiting a suitable workforce.  Mr and Mrs van den Goor’s own evidence is that their temporary visa holders are critical to the success of their business.  Katunga Fresh or its associated entities have sponsored employees for permanent residency in the past, and Mr and Mrs van den Goor have grown their business on the back of a considerable amount of foreign labour.  Indeed, the very reason to request an expedited hearing in this matter is to resolve Katunga Fresh’s status to continue to sponsor foreign workers to keep its business thriving.

   Whether, and the extent to which, the failure to satisfy the sponsorship obligation was intentional, reckless or inadvertent

4. By Mr and Mrs van den Goor’s admission, the payroll deductions to recoup the costs associated with sponsoring and nominating their temporary visa holders was completely intentional, and was undertaken without consultation of any appropriate advisor such as an accountant or lawyer, or even the migration agent engaged to make the applications on Katunga Fresh’s behalf.  I do not agree with the delegate’s view that Katunga Fresh intentionally misled ABF by claiming those deductions were related to accommodation expenses.

5. However, I do agree with the delegate that while Mr and Mrs van den Goor claim they only made deductions to cover visa and migration agent fees, they continued to make payroll deductions for the life of each worker’s visa.  This indicates that the deductions continued to be made when in all likelihood the relevant fees had been recouped.  This is a major concern.

6. In respect of non-compliance with the Award requirements for public holiday pay, in my view, this conduct was reckless rather than intentional.  Mr and Mrs van den Goor did not know they were obliged to make certain public holiday payments, so it is not possible for their failure to make those payments to be intentional.  In finding their conduct to be reckless, I note that Mr and Mrs van den Goor could easily have sought advice regarding their payroll obligations under the Award and they did not do so.  For that reason, I do not consider the failure to satisfy the obligation to provide equivalent terms and conditions to be inadvertent.

   Whether, and the extent to which, Katunga Fresh cooperated with Immigration, including whether it informed Immigration of the failure

7. The evidence before me suggests that Mr and Mrs van den Goor were fully cooperative with ABF during its investigation.  They provided frank and forthright evidence at the Tribunal hearing.  However, I note that they did not identify the failures themselves and self-report; they only became aware of their sponsorship obligations as a result of the ABF investigation.

   The steps (if any) taken to rectify the failure to satisfy sponsorship obligations, including whether steps were taken at the request of Immigration or otherwise

8. I am satisfied that Katunga Fresh rectified the failures to provide certain public holiday pay and the recouping of certain costs by making back-pay payments to the affected visa holders, and there is sufficient documentary evidence before me to confirm this.  It is clear to me that Mr and Mrs van den Goor do intend to act within the law at all times moving forward, and they have both acknowledged their mistakes and lessons learned as a result of the ABF investigation.

   The processes (if any) implemented to ensure future compliance with sponsorship obligations

9. Mr and Mrs van den Goor indicated that they now appreciate the totality of their sponsorship obligations, and they were amenable to the suggestion that recouping any costs associated with visas may not be appropriate for their business moving forward.  They have acknowledged they understand their obligations under the National Employment Standards and the relevant Award.  They have acknowledged that they need to retain better records in relation to all payments to and from their staff.  There is no specific documentary evidence to demonstrate that processes have been implements to ensure future compliance with sponsorship obligations.  However, I am prepared to accept Mr and Mrs van den Goor’s verbal commitment to complying with all of their sponsorship obligations in future.

   The number of other sponsorship obligations that Katunga Fresh has failed to satisfy and the number of occasions on which Katunga Fresh has failed to satisfy other sponsorship obligations

10. This is the first time Katunga Fresh has been subject to monitoring and investigation by the Department.  There is no evidence of previous failures to satisfy any sponsorship obligation(s).  The multiple failures identified in the ABF investigation and the delegate’s decision have been enunciated above.  Serious compliance issues were identified.

    Any other relevant factors

11. Mr and Mrs van den Goor’s significant contributions to the Moira Shire community and the hydroponic farming community in Australia warrant consideration in determining an appropriate course of action in relation to the identified failures to satisfy sponsorship obligations.  Similarly, the impact of the Covid-19 pandemic on agricultural businesses in the Shepparton region warrants significant weight.  I have considered all of the letters of support provided by local businesses and community groups, as well as the oral evidence at the hearing from the witnesses supporting Katunga Fresh.  Mr and Mrs van den Goor have a very strong, positive reputation and have demonstrated a clear commitment to improving hydroponic farming standards in Australia, and to ensuring a vibrant community through the sponsorship of Katunga’s local netball and football clubs.  Katunga is a small town, and a close-knit community.  The numerous failures to comply with sponsorship obligations appear completely at odds with the image of Mr and Mrs van den Goor presented in their documentary and oral evidence.

    Regulation 2.90: Provision of false or misleading information

12. I have departed from the delegate’s findings in relation to 5 of the 6 occasions on which Katunga Fresh was found to have provided false or misleading information to the Department.  The occasion I will consider in relation to the criteria in r.2.90(3) is the provision of false or misleading information in response to ABF’s request for information in September 2020.

    The purpose for which the information was provided

13. Katunga Fresh’s previous registered migration agent advised the Department that payroll deductions from the sponsored workers’ salaries related to accommodation expenses in an attempt to demonstrate that Katunga Fresh had not breached its sponsorship obligation under r.2.87.

    Katunga Fresh’s past and present conduct in relation to Immigration

14. Katunga Fresh was a standard business sponsor from 5 January 2017 to 5 January 2022 and sponsored 13 primary visa holders in the Subclass 457 and 482 visa programs.  This is the first time it was monitored by the Department.  Mr and Mrs van den Goor and their agents cooperated with the Department’s investigations.  While it is my view that the false or misleading information provided to the Department was the result of poor communication between Mr and Mrs van den Goor and their previous registered migration agent, nonetheless false or misleading information was provided.

    The nature of the information

15. The false or misleading information relates to the classifications of costs incurred by the visa holders to their sponsor, Katunga Fresh.  The visa holders live on-site and pay Mr and Mrs van den Goor $120 per week, in cash, for their accommodation.  It is clear that statements to the Department during the investigation that the $80 deductions from 3 of the sponsored workers were for their accommodation were misleading at best; they are false and misleading at worst.

    Whether, and the extent to which, the provision of false or misleading information has had a direct or indirect impact on another person

16. Mr and Mrs van den Goor may have benefitted from the provision of false or misleading information relating to payroll deductions had ABF not been advised by some of the visa holders that accommodation payments were actually made in cash on a weekly basis.  If ABF had not realised that accommodation payments were made in cash, the delegate may have accepted Mr and Mrs van den Goor’s previous agent’s statement that the payroll deductions were for accommodation and not for recouping the costs of visa sponsorship and nomination.

    Whether the information was provided in good faith

17. In my view, the false or misleading information was not provided in good faith.  It is likely that the information was provided as part of a deliberate strategy to maintain the appearance of compliance with the requirement of the sponsorship obligation in r.2.87.

    Whether Katunga Fresh notified Immigration immediately upon discovering that the information was false or misleading

18. There is no evidence to suggest that Mr and Mrs van den Goor made any effort to notify the Department that the previous migration agent’s statements to the ABF were false or misleading. 

    Any other relevant factors

19. I have not identified any other relevant factors that warrant consideration at this time.

    Conclusion

20. I am particularly concerned by the conduct surrounding the failure to satisfy the sponsorship obligation under r.2.87, and the fact that Mr and Mrs van den Goor allowed the Department to be provided with false or misleading information regarding the payroll deductions for recouping costs associated with sponsorship and nomination approvals.  In my view, these are serious failures that warrant a significant penalty.  Mr and Mrs van den Goor have demonstrated contrition for their mistakes and I am satisfied that they will not breach this sponsorship obligation in the future.  I have given significant weight to the impact on the local community if Katunga Fresh is unable to continue to sponsor workers within its business.

21. During the hearing, I had concluded that given the importance of the Katunga Fresh business to the Katunga community, the eagerness of previously sponsored workers to return to Katunga Fresh, and Mr and Mrs van den Goor’s clear and genuine contrition for their mistakes, it would be appropriate to reduce the length of the sponsorship bar from 24 months to 6 months.  I also note a significant reduction in the length of the bar is warranted where my findings in relation to the sponsorship obligation at r.2.86 are different from those made by the delegate. 

22. As set out above, given that Katunga Fresh’s standard business sponsorship approval had only 3 months and 6 days left to run at the time of the delegate’s decision, action under s.140M(1)(c) to bar Katunga Fresh from sponsoring further workers on the terms of its approved sponsorship agreement for 24 months is illogical.  A bar of 6 months would be similarly illogical.

23. Considering the totality of the circumstances, and having regard to the prescribed criteria, I am satisfied that the action mentioned in s 140M(1)(c) to bar the applicant until 29 December 2021 from sponsoring more people under the terms of its approved standard business sponsorship should be taken.

    DECISION

24. The Tribunal varies the decision under review by reducing the period of the sponsorship bar imposed under s.140M(1)(c) of the Act from 24 months to 3 months.

    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.

    …