M U & Sons Transport Pty Ltd (Migration)

M U & Sons Transport Pty Ltd (Migration) [2019] AATA 6701 (6 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  M U & Sons Transport Pty Ltd
CASE NUMBER:  1710655
DIBP REFERENCE(S):  OPF2017/24
MEMBER:John Cipolla
DATE:6 December 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision under review.

Statement made on 06 December 2019 at 2:25pm

CATCHWORDS
MIGRATION – cancellation – sponsorship approval – compliance with sponsorship obligations – equivalent terms and conditions of employment – contradictory amounts between payroll summary and bank statements – provision of records – incomplete records – ensure sponsored person work in nominated occupation – Transport Company Manager – undertook tasks inconsistent with the nominated occupation – truck driving – false or misleading information – failure to adhere to undertaking – failure to disclose information to Departmental investigators – action to be taken – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 140L, 140M
Migration Regulations 1994 (Cth), rr 2.79, 2.83, 2.86, 2.89, 2.90

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to take an action under s.140M of the Migration Act 1958 (the Act) in relation to the applicant’s sponsorship.
The applicant was approved as a standard business sponsor on 6 January 2014.
On 19 January 2017, the Department, after conducting a site visit on this date at the business address, commenced an audit of the applicant’s compliance with sponsorship obligations. A commencement of monitoring letter was sent to the applicant on 24 January 2017 and a formal response to this letter was provided by the applicant through his then representative, a migration agent on 8 February 2017. The evidence indicates that an e-mail was sent to the applicant former representative seeking payslips for the visa applicant and that the owner of the business was contacted by the Department and subject to an interview.
On 27 March 2017, the Department issued a Notice of Intention to Take Action (NOITTA). The NOITTA indicated that the delegate had reason to believe, for reasons set out in that notice, that the applicant had failed to satisfy the sponsorship obligations in r.2.79(3), r,2.83 r.2.86 and r.2.90. The applicant’s former representative provided submissions in response to the NOITTA on 13 April 2017.
On 27 April 2017, the delegate decided to cancel the applicant’s approval as a standard business sponsor under s.140M(1)(a) on the basis of a failure to comply with sponsorship obligations.
The applicant’s director, Mr Mohammed Afazal, appeared before the Tribunal on 30 October 2019 to give evidence and present arguments on behalf of the applicant.
At hearing the Tribunal explained to the applicant in considerable detail the relevant issues in the review before it and, as the applicant was not represented at hearing, followed this up with a comprehensive 359(2) letter post hearing.
The applicant engaged a migration agent post hearing who provided a response to a post hearing 359(2) letter.
The Tribunal was advised at the review hearing on 30 October 2019 that the relevant 457 visa holder had now left Australia.
CONSIDERATION OF CLAIMS AND EVIDENCE
Sections 140K, 140L and 140M of the Act provide for the imposition of sanctions on approved sponsors in certain circumstances.
Under s.140M, if prescribed circumstances exist, the Minister (and the Tribunal on review) may take one or more of the following actions:
·cancelling the sponsorship approval in relation to a class to which the sponsor belongs;
·cancelling the sponsorship approval for all classes to which the sponsor belongs;
·barring the sponsor for a specified period from sponsoring more people under the terms of any existing approval; and
·barring the sponsor for a specified period from making future applications for sponsorship approval in relation to one or more classes of sponsor.
For these purposes, the circumstances are prescribed in r.2.89 - r.2.94B and include circumstances in which the Minister, or Tribunal at review, is satisfied there has been: a failure to satisfy a sponsorship obligation; provision of false or misleading information; sponsorship application or variation criteria that 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.
Where a prescribed circumstance has been found to exist, the regulations prescribe criteria that must be taken into account when determining what action, if any, to take: r.2.89 – r.2.94B. These criteria, as they relevantly apply to the circumstances of this case are set out in the attachment to this decision.
Does a circumstance for the taking of an action exist?
Failure to satisfy a sponsorship obligation: r.2.89
The Minister may take one or more of the actions in s.140M if satisfied the sponsor has failed to satisfy a sponsorship obligation referred to in Division 2.19 of the Regulations: r.2.89(2).
In the present case, the delegate found that the applicant had failed to satisfy the sponsorship obligations in r.2.79(3), r.2.83,2.86 and r.2.90. The Tribunal has assessed each of these obligations in turn.
The obligation in r.2.79 requires the applicant to ensure equivalent terms and conditions of employment.
The delegate had regard to the applicant’s response to the NOITTA and other evidence gathered during the monitoring by the Department. The delegate determined that a breach of regulation 2.79 had occurred for a number of reasons. The delegate noted that the applicant provided a payroll summary in response to the commencement of monitoring letter. That document failed to show the hours that the associated 457 visa holder had worked, the hourly rate of pay and leave provisions which prevented a thorough assessment of sub regulation 2.79(3). The Departmental delegate then contacted the applicant’s representative seeking the provision of payslips for the associated visa holder but none were forthcoming. The delegate noted that the applicant stated that the business had been paying the associated visa holder his due wages on a regular basis as per the sponsorship obligation. The applicant also provided an explanation pertaining to the contradictory amounts between payroll summary and the primary sponsored person’s bank statements. The delegate concluded that without payslips and supporting evidence in relation to these contradictory amounts, the Department was precluded from undertaking a full and thorough assessment of the applicant’s obligation in relation to regulation 2.79(3) of the Migration Regulations.
At review the applicant has provided a number of payslips for the visa holder and a range of the business’s bank statements. These documents cover a diverse range of dates and were not provided in any chronological or date order but have been duly considered by the Tribunal.
The evidence that has been provided to the Tribunal at review does not enable the Tribunal to find that the applicant ensured the provision of equivalent terms and conditions of employment to the visa holder .The Tribunal finds on the basis of the evidence before it that the applicant has failed to comply with their sponsorship obligation in r.2.79.
The Tribunal now turns to consider whether the applicant has complied with the sponsorship obligations in r.2.83 which is an obligation to provide records.
The Tribunal notes that the Departmental delegate during the time of monitoring requested the provision of all relevant payslips for the 457 visa holder, and that as at the date of the Departmental decision on 27 April 2017 these records had failed to be provided.
As has been noted above, the applicant has provided to the Tribunal a number of payslips for the 457 visa holder post review hearing. As noted these payslips were in no particular date or chronological order. The Tribunal cannot be satisfied based on the evidence provided to it that the applicant has provided all requisite records pertaining to the employment of the 457 visa holder as required by r.2.83. The Tribunal accordingly finds that the applicant has breached their obligation as required by r.2.83.
The Tribunal now turns to consider whether the applicant has complied with the sponsorship obligations in r.2.86 which is an obligation to ensure the sponsored person works in the nominated position for the associated entity. The evidence provided by the applicant in response to the site visit undertaken by the Departmental delegate was that the sponsored person at the time of the site visit on 19 January 2017 was on-site at WA Freightliners. The applicant advised the Departmental delegate that since the beginning of 2016 the primary sponsored person had worked with WA Freightliners as a truck driver under the employment of the applicant and on a contractual basis with WA Freightliners. Evidence provided by the applicant to the Departmental delegate was that despite the fact that the sponsored person was working as a truck driver they were continuing to meet their obligations to the applicant’s business as a Transport Company Manager.
At the hearing, the Tribunal discussed with the applicant the requirement for sponsors to comply with their sponsorship obligations, including the requirement in r.2.86. The Tribunal also discussed with the applicant information set out in the NOITTA. The Tribunal noted that it had regard to the types of tasks involved in carrying out the role of Transport Company Manager as set out in ANZSCO, which the nomination application would have been assessed against prior to its approval. The Tribunal noted that the tasks for a Transport Company Manager as set out in the ANZSCO did not indicate that driving a truck was a task to be performed in this position.
The Tribunal does not consider the task of driving trucks to transport goods to be consistent with the occupation for which the 457 visa holder was nominated. The 457 visa holder was nominated to work in the occupation of Transport Company Manager for the applicant and not in the role of truck driver. The applicant was under obligation to ensure that the visa holder did not undertake work in an occupation other than the nominated occupation. The Tribunal finds that the 457 visa holder worked as a truck driver for another business whilst in the position, the Tribunal accordingly finds that the applicant has failed to comply with their obligations in this respect.
For the above reasons, the Tribunal finds that the applicant did not ensure that the sponsored person did not work in an occupation other than that for which they have an approved nomination. The applicant has therefore breached their sponsorship obligation in r. 2.86.
Accordingly, the Tribunal is satisfied that the prescribed circumstance in r.2.89 exists for the purpose of s.140M of the Act.
False or misleading information: r.2.90
One or more of the actions in s.140M may be taken if the sponsor has provided false or misleading information to Immigration or the Tribunal: r.2.90(2).
In determining whether the applicant has provided false or misleading information to the Department or Tribunal on review, the Tribunal has had regard to the evidence before it.
It is apparent to the Tribunal based on the evidence before it that during the site visit on 19 January 2017, Departmental officers were told by the applicant that the 457 visa holder was on-site at WA Freightliners. The applicant advised the Departmental delegate that WA Freightliners was a client of the applicant and the applicant further noted that this business had recently changed its name to Australia Road Express in August 2016. The applicant advised the Departmental delegate that since the beginning of 2016, the 457 visa holder had worked with WA Freightliners as a truck driver under the terms of his employment with the applicant. The applicant further advised that despite the fact that the 457 visa holder was working as a truck driver with WA Freightliners he continued to meet his obligations as a Transport Company Manager with the applicant’s business.
Information elicited by the Departmental delegate indicated that records provided by Australia Road Express showed that since January 2016 the 457 visa holder, sponsored by the applicant, had in fact been working daily between 6.75 and 13 hours as a driver for Australia Road Express. The delegate determined that the 457 visa holder was not undertaking the duties of a driver on a temporary basis and that it was not possible for the 457 visa holder to undertake the duties of a Transport Company Manager for the applicant on a full-time basis.
In response to the concerns raised by the Departmental delegate the applicant advised that they misunderstood the requirement that the 457 visa holder could not perform tasks outside the parameters of those tasks expected of a Transport Company Manager. The Departmental delegate noted that the online application to be approved as a standard business sponsor required the applicant to make an undertaking that they would ensure that the person they had sponsored participate only in the occupation, program or activity for which the person had been nominated. The evidence indicates that the applicant agreed to this undertaking at the time of making the application for approval as a standard business sponsor.
The evidence before the Tribunal indicates that the applicant did not adhere to this undertaking and that he did not disclose this to Departmental investigators during the period of monitoring.
It follows that the applicant has provided information that is false or misleading to the Department.
Accordingly, the Tribunal is satisfied that the prescribed circumstance in r.2.90 exists for the purpose of s.140M of the Act.
Action to be taken
For these reasons, the Tribunal is satisfied that a relevant circumstance for s.140L(1)(a) exists. Accordingly, it is necessary to consider whether one or more of the actions mentioned in s.140M should be taken.
In considering what action to take, the Tribunal has had regard to the prescribed criteria, as extracted in the attachment to this decision.
Failure to comply with sponsorship obligation
The criteria to be considered where there is a failure to comply with sponsorship obligation are set out in r.2.89(3) and have been considered as follows.
(a) the past and present conduct of the person in relation to Immigration
There is no information before the Tribunal which suggests that the applicant has failed to engage with the Department during the monitoring process or that they have not previously been co-operative with the Department.
(b)the number of occasions on which the person has failed to satisfy the sponsorship obligation
Other than the breach of sponsorship obligations in r.2.79, r.2.83, r.2.86 and r.2.90 as set out above, there is nothing before Tribunal which indicates that the applicant has failed to satisfy sponsorship obligations on any other occasion.
(c)the nature and severity of the circumstances relating to the failure to satisfy the sponsorship obligation, including the period of time over which the failure has occurred
The Tribunal considers the applicant’s failure to ensure that the 457 visa holder worked only in the nominated occupation to be significant. The evidence before the Tribunal indicates that he had worked as a truck driver on a regular basis during the time he held a 457 visa.
The Tribunal considers that the applicant should have informed himself of the sponsorship obligation to ensure that the 457 visa holder did not work in an occupation other than that for which he was nominated.
(d) the period of time over which the person has been an approved sponsor
The applicant was most recently approved as a standard business sponsor on 6 January 2014 for 3 years.
(e)whether, and the extent to which, the failure to satisfy the sponsorship obligation has had a direct or indirect impact on another person
The evidence indicates that the 457 visa holder has now departed Australia.
(f)whether, and the extent to which, the failure to satisfy the sponsorship obligation was intentional, reckless or inadvertent
It was submitted that the applicant’s failure to comply with the sponsorship obligations was due to lack of knowledge and not intentional. The Tribunal gives limited weight to this evidence, because the Tribunal considers that the applicant should have ensured that he understood the sponsorship obligations with which the applicant had to comply when it became an approved sponsor. This includes, the applicant familiarising himself of the types of tasks involved in carrying out the occupation of Transport Company Manager and ensuring that the 457 visa holder did not regularly undertake tasks that were inconsistent with that occupation. While the Tribunal is prepared to accept that the failure to satisfy the sponsorship obligations was not intentional, it nevertheless considers that it was reckless.
(g)whether, and the extent to which, the person has cooperated with Immigration, including whether the person informed Immigration of the failure
The delegate indicated in the decision record that the applicant had cooperated with the Departmental site visit interview but did not respond to the request to provide payslips.
(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
There is no evidence before the Tribunal pertaining to any steps undertaken by the applicant to rectify the failure to satisfy sponsorship obligations.
(i)the processes (if any) the person has implemented to ensure future compliance with the sponsorship obligation
The applicant stated that he is now aware of the sponsorship obligations and will comply with them going forward.
(j)the number of other sponsorship obligations that the person has failed to satisfy, and the number of occasions on which the person has failed to satisfy other sponsorship obligations
Other than the sponsorship obligations in r.2.79, r.2.83, r.2.86 and r.2.90, the Tribunal has not made any assessment on whether any of the other sponsorship obligations had been breached.
(k) any other relevant factors
The applicant did not provide any evidence pertaining to the applicant’s failure to satisfy sponsorship obligations.
Provision of false or misleading information
The criteria to be considered where there has been provision of false or misleading information are set out in r.2.90(3) and have been considered as follows.
(a) the purpose for which the information was provided
The Tribunal has found that had the applicant been unaware that the 457 visa holder could not work outside his nominated occupation of Transport Company Manager that he would have disclosed this at the time of the Departmental site visit. He failed to do this.
(b) the past and present conduct of the person in relation to Immigration
The Tribunal noted that the applicant has been approved as a standard business sponsor since 6 January 2014. The evidence indicates that the applicant has had migration agents representing him with regard to the sponsorship and nomination applications. The evidence indicates that this is the first time that the applicant had been monitored by the Department and the evidence indicates that the applicant was cooperative with the Department during this process.
(c) the nature of the information
The evidence before the Tribunal indicates that at the time of the Departmental site visit the 457 visa holder was working at another transport company. Indeed run sheets provided by Australian Road Express show that the 457 visa holder had been working for this business as a driver on that day when he should have been working on a full-time basis for the applicant as a Transport Company Manager.
(d) whether, and the extent to which, the provision of false or misleading information has had a direct or indirect impact on another person

The Tribunal considers that the provision of false or misleading information impacted the Department’s ability to properly assess whether a breach of sponsorship obligations had occurred and the extent of that breach.
(e) whether the information was provided in good faith
The evidence before the Tribunal indicates that the information provided could not be considered to be given in good faith. The information provided by the applicant at the time of the Departmental site visit to explain the 457 visa-holders absence from that business was false and misleading.
(f) whether the person notified Immigration immediately upon discovering that the information was false or misleading
It was noted in the decision record that the applicant did not notify the Department that false or misleading information had been provided during the monitoring audit.
(g) any other relevant factors.
The evidence before the Tribunal indicates that the provision of false and misleading information undermines the delivery of the temporary business visa program.
Overall considerations
Having regard to all the relevant circumstances, the Tribunal considers that the Department’s decision to cancel the applicant’s approval as standard business sponsor was an appropriate action to take. For this reason, the Tribunal has decided to affirm the Department’s decision.
As more than two years have passed since the sponsorship approval was cancelled, the Tribunal decided not to take any other action against the applicant.
DECISION
The Tribunal affirms the decision under review.
John Cipolla
Senior Member

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

[2019] AATA 6701

6 December 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Breach

Remedies

Natural Justice