Laxmii Narayan Pty Ltd (Migration)

[2020] AATA 3396

Laxmii Narayan Pty Ltd (Migration) [2020] AATA 3396 (13 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Laxmii Narayan Pty Ltd

CASE NUMBER:  1722474

DIBP REFERENCE(S):  OPF2017/13195 OPF2017/1962

MEMBER:Bridget Cullen

DATE:13 August 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision under review.

Statement made on 13 August 2020  at 4:30pm

CATCHWORDS

MIGRATION – sponsorship bar for two years – false or misleading information provided to department – recruitment of employees – labour market testing – employees had no relevant experience, applied other than by responding to employer’s advertising or were already working for employer – genuine need for positions at specific work locations – deliberate misrepresentation – department’s action appropriate, and ban has expired in any case – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 140M

Migration Regulations 1994 (Cth), r 2.90

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 was approved as a standard business sponsor on 9 June 2016 for a period of five years. On 1 September 2017, the delegate, under s.140M, decided to bar the applicant from sponsoring more people for Subclass 457 Temporary Work (Skilled) visas for a period of 2 years on the basis that the applicant had breached r.2.90 of the Migration Regulations 1994, by way of providing false or misleading information to the Department.

3. The applicant appeared before the Tribunal on 18 May 2020, via Mr Vishal Bansal, Chief Financial Officer, to give evidence and present arguments.

4. The applicant was represented in relation to the review by its registered migration agent, Mrs Christine Moh-Bridgland, of Australian Visa Choices (MARN 0429283).

5. For the following reasons, the Tribunal has decided to affirm the decision under review.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

7. Under s.140M, if prescribed circumstances exist, the Minister (and the tribunal on review) may take one or more of the following actions:

   ·  cancelling the sponsorship approval in relation to a class to which the sponsor belongs;

   ·  cancelling the sponsorship approval for all classes to which the sponsor belongs;

   ·  barring the sponsor for a specified period from sponsoring more people under the terms of any existing approval; and

   ·  barring the sponsor for a specified period from making future applications for sponsorship approval in relation to one or more classes of sponsor.

8. For these purposes, the circumstances are prescribed in 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.

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: 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.

10. The applicant, Laxmii Narayan Pty Ltd, trading as IGA Stores, was first approved as a sponsor on 17 August 2012 for a period of three years. The current agreement was approved on 9 June 2016 for a period of five years. As the delegate made the decision on 1 September 2017, the sponsorship bar expired on 1 September 2019.

    Procedural Matters before the Tribunal

11. The application for review was lodged on 20 September 2017, by Ms Moh-Bridgland, the applicant’s current representative. No documents in support of the application were lodged in conjunction with the review.

12. The Tribunal sent the applicant a Hearing Invitation on 24 April 2020. The Tribunal did not receive any supporting documentation in relation to the matter until the day of the hearing, on 18 May 2020.

13. The Representative, in their email on the day of the hearing, wrote to the Tribunal in the following terms:

    “We refer to the hearing today at 12PM and attached herewith the following documents for the Member’s reference.

    We apologise of the delay in providing the documents as the sponsor was confused if the hearing is still proceeding as the sponsorship bar has ended.”

14. The Tribunal notes it wrote to the applicant, through their representative on 22 November 2019, about the expiry of the sponsorship bar. The Tribunal did not receive any response to this correspondence. As there was no withdrawal of the matter, and as there is a valid review application before the Tribunal, the Tribunal is obligated to proceed, and make a decision.

15. The Tribunal, in making its decision, has the Department file, which contained the information before the delegate when they made their decision, and the following:

    -Submission letter from the Representative;

    -Chart explaining the buying process for the company;

    -Gumtree advertisements;

    -Organisation Chart;

    -Letter in relation to Labour Market Testing from the company’s HR Department;

    -Several documents in relation to Financial Reports, BAS and GST Summary;

    -The company’s payroll in relation to the IGA Stores; and

    -Overview of the computer systems.

16. The 18 May 2020 submission by the representative annexed the following documents, along with her submissions:

    -Chart explaining the buying process for the company;

    -Gumtree advertisements;

    -Organisation Chart;

    -Letter in relation to Labour Market Testing from the company’s HR Department;

    -Several documents in relation to Financial Reports (30/6/2019 and 31/12/2019 Financial Reports), BAS and GST Summary;

    -The company’s payroll in relation to the IGA Stores; and

    -Overview of the computer systems

17. Save for updating the financial information that is before the Tribunal (which, in any event, is not relevant to this review), the representative has provided the same information that was already before the Department. This is unhelpful, as unnecessary duplication of identical materials already before the Tribunal makes it more difficult for the Tribunal to navigate a voluminous file. It also requires that the Tribunal take time to compare documents, so as to ensure that the documents are duplications, and do not provide any new information.

18. Following the hearing, on 19 May 2020, the representative wrote into the Tribunal in an attempt to explain the late provision of documents.

    “Thank you for the hearing yesterday for Laxmii Narayan Pty Ltd.
    I apologise for the badly prepared submission yesterday but it was a situation beyond my control.

    After the sponsorship bar was imposed, Vishal engaged a solicitor, (details redacted) for advice and assistance.

    As I knew Vishal was in good hands with (details redacted) technical expertise, I did not follow up on the appeal pending with the AAT (as I thought (details redacted) was looking after it) until I received the notification of the hearing from the AAT on 24/4/2020.

    I had emailed, texted and called Vishal on numerous occasions regarding the hearing but due to the Covid-19 pandemic, he was extremely busy managing his business, and did not have time for me to discuss about the hearing.

    I only received his confirmation to attend the hearing on Sunday (17/5/2020) and attached is a copy of the text messages between us.

    I did explain to Vishal prior to the hearing that the Member will not be pleased and this may be detrimental to the decision.

    As I have said during the hearing, I take full responsibility for the minimal documents submitted for the hearing.

    The purpose of writing this email to you is to let you know that I am very respectful of the Members and the AAT and I apologise again for everything.

    Thank you.”

19. The Tribunal understands that it can be difficult for representatives to obtain instructions from their own client at times. Applicants who are not prepared for hearing, but who have been put on notice of the hearing and the issues before the Tribunal, should not expect that the Tribunal will provide them with a further opportunity, post-hearing, to file materials in the Tribunal. This is particularly the case if the material that the applicant wishes to file post-hearing is material that was available to it at the time of the Department’s decision, as was the case here.

20. The applicant sought a period following the hearing to submit information to the Tribunal that was available to it well in advance of the hearing. The applicant did not advance any basis for an extension of time to file materials that resounded in procedural fairness. The materials the applicant proposed to lodge lacked relevancy (they were copies of schedules of 457 visa holder employees). The reason the proposed materials lack relevancy is that the concerns before the Tribunal relate to information that was provided by the applicant to the Department before the 457 visa nominations were approved. To the extent that the schedules might reveal the locations the 457 visa holders worked from – which is an issue before the Tribunal – the Tribunal would not be prepared more weight on schedules than on the evidence that the Department obtained from the visa holders directly, during interviews.

21. For these reasons, the Tribunal did not afford the applicant a formal opportunity to file additional material following the hearing. For the sake of completeness, the Tribunal also notes that no further substantive information has been lodged by the applicant in the Tribunal following the hearing.

    Does a circumstance for the taking of an action exist?

22. In the present case, the delegate found that the applicant provided false or misleading information to the Department, in relation to the recruitment of 457 visa holders, employed by the applicant as Retail Buyers. The delegate formed the view that the 457 visa holders were not recruited in a manner that was genuine – they did not have the pre-requisite experience for the role of Retail Buyer, did not respond to the applicant’s advertisement for the role, and were already employed by the applicant.  

    False or misleading information: r.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: r.2.90(2).

24. In determining whether the applicant has provided false or information to the Department or Tribunal on review, the Tribunal has had regard to the evidence before it.

    Background

25. The applicant provided the delegate’s decision record to the Tribunal in conjunction with the review.  In the decision record, the delegate has set out the information that led to the Department forming the view that misleading information had been provided in relation to the recruitment of 5 subclass 457 visa holder employees (the total of the applicant’s 457 visa holder employees).

26. The delegate formed the view that the way in which the visa holders were selected and recruited did not correlate to the information that had been provided to the Department by the applicant. Consequentially, the delegate made the decision to bar the applicant from sponsoring more people for Subclass 457 Temporary Work (Skilled) visas for a period of two years.

27. The Department commenced monitoring action of the applicant on 27 February 2017. The Department conducted a series of interviews during the monitoring, including with the five persons sponsored by the applicant under the 457 visa program. 

28. On 9 March 2017, Australian Border Force (ABF) officers conducted a site visit to the applicant’s IGA Stores at 61 Naomi Street, Bundamba; Cr Wondall and Radford Roads, Manly West; and at the head office at 4B/2994 Logan Road, Underwood. While there, interviews were conducted with Vishal Bansal, the applicant’s Chief Financial Officer, and sponsored 457 visa holder, Mandeep Kaur.

29. In April of 2017, telephone interviews were conducted with the rest of the sponsored 457 visa holders - Amitkumar Shanabhai Patel; Dharminder Singh; Jyoti; and Balraj Singh.

Applicant’s response to NOITTA

1. On 8 August 2017, the Department sent the sponsor a Notice of intention to take action “NOITTA”, which the applicant (Vishal Bansal, Chief Financial Officer) responded to on 22 August 2017. Mr Bansal told the Department that the applicant recruited for the position of Retail Buyer through advertisements on SEEK.com, and sometimes through referrals, responding that:

‘We are aware that labour market testing is required for the position, Retail Buyer, however the policy states as follows:
4.6.12.2 Meeting LMT requirements (where applicable)
Under policy, the delegate can be satisfied that there is no suitably qualified and experienced Australian citizen, Australian permanent resident or eligible temporary visa holder readily available to fill the nominated position and hence that the LMT is met if the sponsor:

 undertakes LMT within the required period, that is:
o within 12 months before lodging the application as specified in a legislative instrument or
o since any redundancies or retrenchments have occurred – if any Australian citizens or permanent residents have been made redundant or retrenched from the same or similar occupations in the business of the sponsor (or an associated entity) in the four months prior to lodgement of the application

 Sponsors may also wish to provide additional information regarding their attempts to recruit an Australian worker. If a sponsor chooses not to include any other evidence, delegates are not, however, to treat the application less favourably merely because of this fact
From the above policy, we were only required to provide is a copy of an advertisement and any associated advertising cost. The fact that we provided more information to DIBP why we were unsuccessful in recruiting demonstrates our sincere recruitment efforts.’
‘As per ANZSCO, the entry requirement for a Retail Buyer is an AQF Certificate IV. We set our bar higher than an AQF Certificate IV. We require our Buyers to have formal training in budget or financial planning. Without understanding on how to do proper buying planning, the store would operate at a loss. What we had provided to DIBP at the time of nomination was correct and true.’

1. Further, the delegate’s decision record records that the applicant stated:

‘We advised that we have interviewed a few hundred job applicants ever since we started trading. Some of the job applicants applied via Gumtree and Seek. Some of our employees referred their friends and families to us. Apart from providing the evidence of labour market testing to DIBP for the Retail Buyer position, we are not required by law to keep records on how or when Dharminder, Mandeep, Jyoti, Amit and Balraj were recruited. We reiterate that we did not breach any sponsorship obligations as to how we select our employees to work for us.’

1. Despite the applicant’s assertions that it required relevant experience for Retail Buyers, the information before the Tribunal reveals that this is not the case. Further, the information before the Tribunal also establishes that the information the applicant gave to the Department about its recruitment and hiring process is untrue.

   Provision of false or misleading information about recruitment

2. The delegate considered that the applicant provided false or misleading information to the Department in relation to its recruitment process. The false or misleading information relates to the information provided by the applicant to the Department to support the genuine need for positions, at specific locations. Further, the information relates to the genuineness of the applicant’s advertising process for the nominated roles – namely, that only one of the five 457 visa holders became aware of the role through the advertising.

3. The Tribunal will address the particulars of each 457 visa holder employee, in turn, below.

   Jyoti

4. In the applicant’s NOITTA response, Mr Bansal asserted that:

   ‘Jyoti was initially recruited in March 2015 to work as our Buyer for our IGA Store at Manly, however, when her 457 visa was approved, there was an urgent business need for her to work in IGA Cannon Hill instead.

   ***
   Jyoti is currently working as our Buyer at our IGA Carindale Store.’

1. The applicant has not explained the concerns raised by the Department regarding the genuineness of the Manly West position. When interviewed, Mr Bansal stated that Jyoti had been approved to work at Manly West, but had requested a transfer and worked at Carindale.

2. However, when the Department interviewed Jyoti, she advised that she was working at Carindale, having worked at Cannon Hill until it was sold in August/September 2016. Further, she stated she never worked at Manly West.

3. The Tribunal finds that the applicant provided false or misleading information to the Department in relation to the genuine need for this position at the time of the nomination application. In the application, the applicant represented that there was an immediate need at Manly West and/or Toowoomba. This was the basis on which the nomination application was assessed and ultimately approved, and yet, Jyoti herself told the Department that she never worked at the location as declared in the nomination application.

4. Jyoti did not appear in the Tribunal to give evidence, however the Tribunal prefers her evidence about her own work location as given to the Department in preference to the information provided by the applicant that Jyoti had requested a transfer from the approved location.

5. Further, the applicant has not explained the discrepancies between its claim that Jyoti was a Retail Buyer with relevant experience and qualifications, which it claimed was the reason that Jyoti was successful in her application for the position and others were not.

6. Jyoti advised the Department that she had no previous experience in Retail Buying. Further, she did not apply via Seek or Gumtree, but dropped off her resume at the IGA store.

7. Whilst these details may seem insignificant, the Tribunal takes on board the Department’s concerns that the applicant may have been preferentially employing workers of a particular nationality – in this case, Indian nationals. In the scheme of the 457 visa program (as it was then), the advertising was necessary in order to allow Australian workers the opportunity to apply and obtain employment. The purpose of the scheme was to allow overseas workers to be employed in circumstances where suitable Australian workers were not available – not to preference workers from a particular country.

8. The Tribunal makes no findings about the intent of the applicant in this regard, but notes the importance of applicants providing fastidiously honest information to the Department in relation to nomination applications. The Tribunal finds that the applicant provided misleading information in relation to the nomination application for Jyoti, and in relation to the manner in which it advertised and recruited for Retail Buyer roles, more generally.

   Balraj Singh:

9. In relation to Balraj Singh, Mr Bansal told the Department that:

   ‘Balraj was offer [sic] the Buyer position because he holds the following qualifications which are all relevant to the role:

    Certificate III in Patisserie

    Diploma of Hospitality

    Certificate IV Business

    Diploma of Business

    Diploma of Management

   The entry requirement of the ANZCO [sic] 639211- Retail Buyer is a Certificate III with two years on the job training, or a Certificate IV and he met the requirement. Balraj was able to learn the buying process because he has all the formal training in business acumen. We met the labour market testing requirements by providing the evidence of advertising and we did not mislead DIBP.’

1. As with Jyoti’s nomination, Balraj Singh’s nomination was approved on the basis that the role would be located at Manly West or Toowoomba. Further, the applicant claimed that the process was in accordance with that advised by Mr Bansal – that Balraj Singh applied in response to an advertisement.

2. Yet, when interviewed by the Department, Balraj Singh confirmed he had no previous experience in working in an IGA or any supermarket, and no experience in Retail Buying. Balraj Singh told the Department that he received one month of training at IGA Bowen Hills in the role, which is the only IGA store that he has worked at.

3. The Tribunal finds that the applicant also provided false or misleading information to the Department in relation to the genuine need for this position at the time of the nomination application. In the application, the applicant represented that there was an immediate need at Manly West and/or Toowoomba. This was the basis on which the nomination application was assessed and ultimately approved, and yet, Balraj Singh told the Department that he never worked at the location as declared in the nomination application. Balraj Singh did not appear in the Tribunal to give evidence. The Tribunal considers that Balraj Singh’s evidence, as the employee, about his own location of work is reliable.

4. The applicant has not explained how Balraj Singh was working at the Bowen Hills store, in circumstances where the applicant represented to the Department that the work location was Manly West and/or Toowoomba. Further, the the applicant has not explained the discrepancies between its claim that Balraj Singh had “all the formal training in business acumen”. Balrah Singh told the Department that he did not have Retail Buying training, save for one month of training after he was hired.  Additionally, he did not apply via Seek or Gumtree – rather, he applied in person after friends told him that IGA was a good company to work for.

5. For these reasons, the Tribunal finds that the applicant provided false or misleading information in relation to the nomination application for Balraj Singh, and in relation to the manner in which it advertised and recruited for Retail Buyer roles, more generally.

Other issues with recruitment

1. The Department was concerned with the applicant’s lack of explanation for its claim that its advertising/recruitment efforts for the various 457 nominations were genuine.

2. It is difficult to reconcile the applicant’s claims that its advertising and recruitment processes were aligned with Departmental policy requirements for Labour Market Testing, with the information before the Tribunal that only one of the applicant’s 457 visa nominees applied for the role after seeing an advertisement.

3. The applicant, in its NOITTA response expressed a belief that it was only required to provide a copy of an advertisement and associated costs, whilst claiming that its advertised qualification requirements higher than ANZSCO requirements for the roles.

4. In the delegate’s decision record, the delegate explains the following, with which the Tribunal agrees:

“Policy requires that the delegate be satisfied that no suitable Australian citizen/permanent resident was available for the role, in this regard decision makers can rely upon the sponsor’s statements. This is largely to facilitate processing. However, the way in which the 457 visa holders were recruited, without having responded to the sponsors advertising, not having the pre-requisite experience and in the main already being employed by the sponsor was the key point into the belief that the sponsor had provided misleading information to the Department. Simply providing an advertisement does not indicate sincerity of this process.
In saying ‘we set the bar higher’ in relation to requirements of the role of Retail Buyer, does not correlate with the reality, in that the visa holders did not have the prior knowledge or experience required in the role.”

1. The Tribunal has already set out its concerns and findings in relation to Jyoti and Balraj Singh. It is notable that, of all five 457 visa holders sponsored by the applicant, only Amitkumar Shanabhai Patel told the Department that he applied in response to a SEEK advertisement. All of the remaining 457 visa holders (Jyoti, Balraj Singh, Mandeep Kaur, and Dharminder Singh) advised the interviewing officers that they had no previous experience in their respective roles, and were trained to perform their roles following commencement of their employment with the applicant. This does not suggest a genuine process. Mandeep Singh and Dharminder Singh also did not give evidence in the Tribunal, however the Tribunal considers their own claims about their experience and recruitment for the role to be more reliable than the applicant’s unsubstantiated protestations, absent of objective supporting detail.

2. In particular, Mandeep Kaur told the Departmental officers in her interview that she went to the applicant’s head office with her resume, as a friend told her about the company. She confirmed that she did not respond to an advertised job role. As for prior experience, she had none, and received three months training in the role.

3. Dharminder Singh did not respond to an advertisement, either, but took his resume into various IGA stores on the suggestion of Mr Mandeep Kaur.  

4. The Tribunal finds that the applicant has provided false or misleading information to the Department in relation to the manner in which it advertised and recruited in relation to its 457 visa holders.

5. Accordingly, the Tribunal is satisfied that the prescribed circumstance in r.2.90 exists for the purpose of s.140M of the Act.

6. Accordingly, it is necessary to consider whether one or more of the actions mentioned in s.140M should be taken. 

   Action to be taken

7. In considering what action to take, the Tribunal has had regard to the prescribed criteria, as extracted in the attachment to this decision. As the Tribunal has determined that the applicant has provided false or misleading information to the Department, it must take into account the criteria outlined in r.2.90(3) in determining what action to take under s.140M of the Act.

   Regulation 2.90(3)(a): The purpose for which the information was provided

8. The false or misleading information provided by the applicant to the Department was in relation to both its recruitment processes at the time of nomination applications, as well as during the monitoring process. The information was provided to support the applicant’s assertions that that there was a genuine need for positions at specific locations, as well as to satisfy labour market testing requirements for the applicant’s 457 nominations.

9. In relation to visa holders Jyoti and Balraj Singh, the information was provided to support the Department’s assessment in relation to genuine need, and to pave the way for the nominations to be approved by the Department.

   Regulation 2.90(3)(b): The sponsor’s past and present conduct in relation to Immigration

10. The Tribunal has found that the applicant provided false or misleading information to the Department during the course of the monitoring process and in its NOITTA response. The applicant has not acknowledged it has provided false or misleading information to the Department. The Tribunal is not aware of any other instances of negative conduct in relation to immigration by the applicant.

    Regulation 2.90(3)(c): The nature of the information

11. The applicant has provided false or misleading information to the Department in relation to the entire span of its 457 visa nominees. The information provided about the recruitment process, the qualifications of the nominees, and the location of work was provided to facilitate an immigration outcome that may otherwise not have been open to the applicant and the 457 visa holders. Providing false or misleading information in this manner compromises the integrity of the Australian migration system.

12. Further, although difficult to quantify, the applicant’s conduct may have resulted in roles that should have been offered to more qualified applicants being denied to Australian citizen or Australian permanent residents, which has the potential to damage Australia’s employment market.

    Regulation 2.90(3)(d): Whether, and the extent to which, the provision of false or misleading information has had a direct or indirect impact on another person

13. The Tribunal considers that the false or misleading information given by the applicant has directly benefited its 457 visa holders, who have been provided with employment and were granted corresponding Australian visas, in circumstances where the employment and visas might not have otherwise transpired. At the same time, and as expressed above, the provision of this false or misleading information by the applicant may have been to the disadvantage of Australian citizen workers or permanent residents, who might have been recruited to fill the positions ultimately given to the 457 visa holders, in circumstances where they may also have held better qualifications, had the applicant provided the Department with the correct information.

    Regulation 2.90(3)(e): Whether the information was provided in good faith

14. Given that the applicant’s provision of false or misleading information to the Department spans the totality of its 457 visa holder workforce, the Tribunal considers that the applicant engaged in deliberate misrepresentation, in order to pave the way for approval of nominations for Retail Buyer positions. This is demonstrative of a lack of bad faith, designed to subvert closer examination of the nomination and visa applications by the Department.

    Regulation 2.90(3)(f): Whether the sponsor notified Immigration immediately upon discovering that the information was false or misleading

15. The false or misleading information was discovered by the Department during an audit of the applicant’s compliance with its sponsorship obligations. At no point did the applicant bring any of these concerns to the Department’s attention.

    Regulation 2.90(3)(g): Any other relevant factors

16. The provision of false or misleading information by the applicant is a hindrance to the Department’s ability to effectively manage the (as it was then) 457 visa programme, and damaging to the integrity of the Australian migration program, generally. Overall, the most favourable factor in the applicant’s case before the Tribunal is that the Tribunal is not aware of any other instances where the applicant provided the Department with false or misleading information. That isn’t a particularly positive state of affairs, in the Tribunal’s view.

17. Having regard to all the relevant circumstances, the Tribunal considers that the Department's decision to bar the applicant from sponsoring more people for Subclass 457 Temporary Work (Skilled)  visas for two (2) years was an appropriate action to take, and an imminently reasonable one. For this reason, the Tribunal has decided to affirm the Department's decision.

18. As nearly one year has passed since the sponsorship bar imposed expired, the Tribunal decided not to take any other action against the applicant.

    DECISION

19. The Tribunal affirms the decision under review.

Bridget Cullen
Member

ATTACHMENT – Extract from the Migration Regulations 1994

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.

…