Khan Group (Aust.) Pty Ltd (Migration)

[2018] AATA 3609

Khan Group (Aust.) Pty Ltd (Migration) [2018] AATA 3609 (2 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Khan Group (Aust.) Pty Ltd

CASE NUMBER:  1715839

HOME AFFAIRS REFERENCE:                OPF2017/1313

MEMBER:Lilly Mojsin

DATE:2 August 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal varies the decision under review by barring the applicant under s.140M(2) of the Act from making further application for approval as a standard business sponsor for the period from the date of the delegate's decision until the date of this decision.

Statement made on 02 August 2018 at 8:46am

CATCHWORDS
Migration – Cancellation – Nomination – Sponsorship bar – Failure to satisfy sponsorship obligations – Incorrect weekly salary payments – Failure to inform change of directorship – Tasks undertaken not part of nominated occupation – Rectified failure – Implemented processes for future compliance – Seriousness of the matter – Decision under review varied

LEGISLATION
Migration Act 1958 (Cth), ss 140M, 140L, 375A
Migration Regulations 1994 (Cth), rr 2.82, 2.89

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to take an action under s.140M of the Migration Act 1958 (the Act) in relation to the applicant’s sponsorship.

2. The applicant company [Company] was approved as a standard business sponsor on 22 November 2012 for a 3 year period. The delegate, on 17 July 2018, decided to impose a sponsorship bar for 12 months on the applicant. The sponsorship bar prevented the Company from making further application for approval as a standard business sponsor under s.140M of the Act on the basis that it had failed to keep records consistent with its obligation in r.2.82 of the Migration Regulations 1994 (the Regulations).

3. The Company appealed that decision to this Tribunal and the company attached a copy of the delegate's decision to the application for review.

4. The Company’s Managing Director, Naeem Miangul [representative], appeared before the Tribunal on 27 June 2018 to give evidence and present arguments.

5. The Company was represented in relation to the review by its registered migration agent. The migration agent attended the Tribunal hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present review is whether a circumstance for the taking of an action under s.140M of the Act exists and, if so, what the appropriate action was to be taken.

7. The delegate found that the Company failed to satisfy r.2.89 of the Regulations, that is, the Company failed to satisfy a sponsorship obligation because the Company had breached the following regulations:

   • Regulation 2.82 - Obligation to keep records

   • Regulation 2.84 - Obligation to provide information to Immigration when certain    events occur

   • Regulation 2.86 - Obligation to ensure the primary sponsored person works or participates in a nominated occupation, program or activity

8. At the commencement of the hearing, the Tribunal noted that a Certificate had been issued by the Department in accordance with s.375A of the Act regarding information in the Department's file. The effect of such a Certificate is that the Tribunal is prohibited from disclosing the document the subject of the certificate, or information in it.

9. The Tribunal considered the validity of the s.375A Certificate. The Tribunal informed the Company that, in its opinion, the s.375A Certificate in this review was valid because the officer of the Department had certified that the relevant pages of the file contained internal operating procedures and processes.

10. The Tribunal, after hearing a submission from the Company’s advisor, informed the Company that it was of the view that the Information covered by the certificate was not relevant to its decision because it covered the Department’s Sponsor Monitoring Report. Details from that monitoring report, had been provided to the Company in the delegate’s decision. Further, a Notice to Produce to the Company’s bank, and to the Director’s bank, and the documents produced in response was covered by the certificate. The bank statements produced were statements that had been issued by the bank to the Company and to its representative. Those bank statements were not adverse to the Company as they were documents the Company had in its possession. Further the documents covered by the s.375A Certificate were not documents about internal operating procedures and processes of the Department.

11. The representative confirmed that at the time of Department monitoring the Company employed one 457 visa holder Aleem Ullah Shah in the role of Customer Service Manager (ANZSCO 149212).

12. The representative said that his company had been in business since 2001. He runs petrol stations and convenience stores. He agreed that the Department had found that he had not kept records correctly. He said that he had not made a correct payment once only. The discrepancy occurred in payslip no 1. In 2016 the discrepancy of $4.11 was paid.  The representative produced a receipt for payment of $5.72 in 2018 on advice from his accountant. He was not quite sure of the reason why he needed to pay this amount but he paid it anyway. In 2016 the representative attended to his own accounting or it was done by an onsite manager. He used a program Quickbooks. It was a manual entry data system and hence an error was made. The representative said that when monitoring found the error he went to his accountant. The representative said that he has changed his systems. Now he sends data to his accountant who runs the payroll for him. The accountant sends a list back to the applicant who transfers the salaries into his employee accounts.

13. The applicant further stated that he had not notified the Department about the change of Directors as he was not aware he had to do so and the only reason that the changes were made were because his accountant had organised the company differently to qualify for a bank loan.

14. The representative said that the sponsored worker did handle other issues when the representative was away. He is only away once in 6 months. Asked about the procedures he  has now put in place he said that now, if he is away, his wife does the console work or another staffer, an Australia citizen, does the console work.

    REASONS AND FINDINGS

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

16. Under s.140M of the Act, if prescribed circumstances exist the Minister 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 or former approved sponsor for a specified period from making future applications for sponsorship approval in relation to one or more classes of sponsor.

17. Under s.140M(2) of the Act, if prescribed circumstances exist, the Minister (and the Tribunal on review) may bar a former approved sponsor for a specified period from making further applications for approval as a sponsor.

18. For these purposes, the circumstances are prescribed in r.2.89 - r.2.94B of the Regulations and include circumstances in which the Minister (and the 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 are 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.

19. In the present review, the delegate found that the Company had failed to satisfy sponsorship obligations by breaching the following obligations [r.2.89] whilst it was an approved sponsor.

20. The identified failures to satisfy the sponsorship obligations were:

    ·Regulation 2.82 - Obligation to keep records

    In relation to the incorrect weekly salary payment the representative acknowledged that one pay slip provided by the visa holder was not numbered to enable verification of the business’ ‘system error’ that occurred at payslip no. 21.

    ·Regulation 2.84 - Obligation to provide information to Immigration when certain events occur

    Nagina Khanam, the representative’s spouse was appointed Director in December 2016. The representative explained that the change of directorship occurred because he had been advised that it was necessary to do so for a bank loan.

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

    The representative conceded that the visa holder occasionally had undertaken tasks associated with the occupation of Console Operator whilst working as a Customer Service Manager which was not approved by the Department in the nomination process.

21. Based on the representative's oral evidence during the Tribunal hearing, the Tribunal finds that the Company has failed to satisfy its sponsorship obligation, failed its obligation to provide information to Immigration when certain events occur and failed its obligation to ensure the sponsored person works or participates in a nominated occupation, program or activity.

22. Accordingly, the Tribunal is satisfied that the prescribed circumstance in r.2.89 of the Regulations exists for the purpose of s.140L(1) of the Act.

23. Accordingly, it is necessary to consider whether actions mentioned in s.140M(2) of the Act should be taken.

24. Where one or more prescribed circumstances have 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 of the Regulations. As a preliminary matter, the Tribunal has considered the delegate's decision to bar the Company under s.140M(1)(c) the Act at a time when the Company's sponsorship approval had already ceased.

25. The Tribunal considers the following prescribed criteria:

    (a)        the past and present conduct of the person in relation to Immigration.

    The Tribunal finds that there has been no problems to date. The representative’s past and present conduct appears to have been both honest and cooperative in all his dealings with the Department.

    (b)        the number of occasions on which the person has failed to satisfy the sponsorship obligation

    There have been no other breaches.

    (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 breaches occurred in 2016.  The Tribunal finds that the Company's failure to keep records that are capable of being verified by an independent person for the period of their employment was not on its own significant, in light of only one breach being recorded. But coupled with the additional breaches of not providing information to Immigration when certain events occur and not ensuring the primary sponsored person worked or participated in his nominated occupation, program or activity is serious.

    (d)The period of time over which the person has been an approved sponsor 

    The nomination was approved in November 2012 and the nomination expired in November 2015.

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

    There is no evidence before the Tribunal to suggest that the failure to satisfy the sponsorship obligation had a direct or indirect impact on another person

    (f)         whether, and the extent to which, the failure to satisfy the sponsorship obligation was intentional, reckless or inadvertent

    The Tribunal is satisfied that the failures were inadvertent

    (g)         whether, and the extent to which, the person has cooperated with Immigration, including whether the person informed Immigration of the failure

    There is no evidence that the representative has not 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

    The representative rectified the failures when he became aware of them .

    (i) the processes (if any) the person has implemented to ensure future compliance with the sponsorship obligation

    The representative gave evidence that the Company has changed it procedures

    (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

    The Tribunal has not found that the Company has breached any other sponsorship obligations.

    (k) any other relevant factors

    There are a number of factors that are to the Company's credit. These include its general conduct, its history as a sponsor, its cooperation with the Department, its efforts to rectify the failure and the processes that have been put in place to ensure future compliance. The Tribunal has accepted also that the Company did not set out to exploit or disadvantage the visa holder.

26. In considering what action to take, the Tribunal has had regard to the prescribed criteria set out above and extracted in the Attachment to this decision. In particular, the Tribunal notes the concerns expressed about the implications of any decision by the Tribunal to take action under s.140M of the Act on possible future applications for employer initiated temporary or permanent visas.

27. Considering the totality of the circumstances, and having regard to the prescribed criteria, the Tribunal considers that the failure by the Company as a former approved sponsor warrants some sanction. The Tribunal finds that the action outlined in s.140M(2) of the Act should be taken.

28. In the circumstances of this review, the Tribunal has decided to vary the bar to the period from the date of the delegate's decision until the date of this decision. This bar reflects the Tribunal's view of the seriousness of the matter whilst also recognising that the representative cooperated with the Department and took remedial action to ensure compliance with the obligation in r.2.82 of the Regulations.

29. While the Tribunal does not consider that the seriousness of the matter warrants any action with prospective effect, it is not of the view that this is a case where no action under s.140M of the Act should be taken.

    DECISION

30. The Tribunal varies the decision under review by barring the applicant under s.140M(2) of the Act from making further applications for approval as a standard business sponsor for the period from the date of the delegate's decision until the date of this decision.

    Lilly Mojsin
    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

    (d)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