Maresi Productions Pty Ltd (Migration)

[2023] AATA 3225

Maresi Productions Pty Ltd (Migration) [2023] AATA 3225 (17 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Maresi Productions Pty Ltd

REPRESENTATIVE:  Mr John Kotsifas (MARN: 0323893)

CASE NUMBER:  2113066

HOME AFFAIRS REFERENCE(S):          OPF2021/2378

MEMBER:Mary Sheargold

DATE:17 August 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to take one or more of the actions specified in s 140M of the Migration Act 1958 (Cth).

Statement made on 17 August 2023 at 5:01pm

CATCHWORDS
MIGRATION – cancellation – sponsorship approval – compliance with sponsorship obligations – providing records – genuine effort – ensure sponsored person work in nominated occupation – Nurseryperson – provision of false or misleading information – false payment dates on payslips – false timesheets and payslips – minor discrepancies – no malice detected – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 140L, 140M

Migration Regulations 1994 (Cth), rr 2.83, 2.86, 2.89, 2.90

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.Vasili Kanidiadis is a well-known Australian horticulturalist who has run successful horticulture and hospitality businesses in Melbourne.  In 2018, he and his wife relocated to a 20-acre property in Lethbridge, near Geelong, to start a new business venture.  Mr Kanidiadis set up a new company, Maresi Corporations Pty Ltd, and attained approval as a standard business sponsor where he sponsored and employed Mrs Sheetal Biren Shah as a Nurseryperson, ANZSCO 362411, as the holder of a Subclass 482 visa.

2.In 2019, Mr Kanidiadis restructured his business and created a new entity, Maresi Productions Pty Ltd.  He is the sole director and shareholder of this entity.  Maresi Productions Pty Ltd applied for approval as a standard business sponsor, and approval was given on 29 January 2020 for a period of 5 years.  Mrs Shah’s Subclass 482 visa was linked to the new sponsorship and subsequent approved nomination.  Mrs Shah is the only worker sponsored by Maresi Productions Pty Ltd and was the only worker sponsored by Maresi Corporations Pty Ltd.

3.On 10 March 2021, the Australian Border Force (ABF) conducted a 4-minute site visit to the Lethbridge property.  According to the officers’ notes, they were approached by a female as they walked towards the workshed on the property, and they asked her if they could speak to Mr Kanidiadis.  They were told he was not there, and so the officers asked to speak to Mrs Shah.  The two females they met at the property identified themselves as Julia and Anna; Julia told the officers that Mr Kanidiadis was her father. 

4.The officers showed Julia and Anna a photograph of Mrs Shah, and the women told the officers they had “never seen her before.”  The officers’ notes state that Julia initially said that “maybe” Mrs Shah was someone that Mr Kanidiadis occasionally “met up” with, but that Anna interjected and said no, they did not know Mrs Shah.  The only other information recorded in the officers’ notes is that Anna told them they used to have a nursery café that had been sold.

5.This brief interaction at the Lethbridge property aroused the officers’ suspicions as to the legitimacy of Mrs Shah’s employment as a Nurseryperson, and further investigations followed.  Mr Kanidiadis was issued with a notice to produce information regarding his compliance with certain sponsorship obligations including regulation 2.86, the obligation to ensure the primary sponsored person works or participates in their nominated occupation, program or activity.  There was some confusion regarding the provision of the materials requested in the requisite timeframe as Mr Kanidiadis attempted to provide documents via an unsupported platform, and when he re-sent the documents in an alternative method, several were excluded inadvertently.

6.Coupled with evidence from Mrs Shah obtained during a phone interview, the ABF officers concluded that the applicant had breached regulation 2.89 by failing to satisfy its sponsorship obligations, specifically its obligation under reg 2.83 of the Regulations to provide records and information to the Minister, as well as reg 2.86.  The officers also found that the applicant had provided the ABF with false or misleading information in breach of reg 2.90, being false payment dates on payslips, and false timesheets and payslips. 

7.On 7 September 2021, the delegate invoked the powers in s.140M of the Act and decided to cancel Maresi Productions Pty Ltd’s standard business sponsorship and ban the applicant from further sponsorship for a period of 2 years. The applicant has applied to the Tribunal for a review of that decision.

1. Mr Kanidiadis, the sole director and shareholder of Maresi Productions Pty Ltd (the applicant) appeared before the Tribunal on 3 August 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Sheetal Biren Shah, the sponsored worker.  Mr Kotsifas has represented the applicant throughout the review process, and he attended the Tribunal hearing as well.

   9.For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision not to take one or more of the actions specified in s 140M.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

3. 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.

4. 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.

5. 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 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?

   14.In the present case, the delegate found that the applicant failed to satisfy 2 sponsorship obligations, and that the applicant provided false or misleading information as part of its response to the ABF’s investigations.

   Failure to satisfy a sponsorship obligation: reg 2.89

6. 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).

7. In this case, the applicant was found to have breached its obligation to provide records and information to the Minister (reg 2.83) as well as its obligation to ensure that Mrs Shah works or participates in their nominated occupation, program or activity (reg 2.86).

8. The Tribunal is able to dispose of the concerns regarding regulation 2.83 quickly.  The evidence before the Tribunal shows that Mr Kanidiadis made a genuine effort to apprise the delegate with all the requested information, but due to a combination of his lack of information technology skills and the Department’s inability to accept certain file uploads, documents originally submitted in an unreadable form were subsequently excluded from transmission to the Department. 

9. The Tribunal is satisfied that, based on the evidence presented at review, including Mr Kanidiadis’s oral evidence at the hearing, the applicant did not fail to provide the Minister with information or records as requested.  He used his best endeavours to re-send documents that he had provided in an alternative format, and it was a simple mistake that could have been corrected had the delegate made an additional request for the outstanding documents.

10. In respect of reg 2.86, again, the Tribunal is persuaded that the applicant has ensured that Mrs Shah works in her nominated occupation of Nurseryperson and that she performs the tasks expected of a Nurseryperson on a daily basis.  She continues to work for the applicant while she awaits the outcome of an appeal to the Tribunal in respect of her Subclass 187 visa application, which was refused for reasons stemming from the applicant’s sponsorship cancellation and bar considered here.

11. The evidence available at review confirms that Mrs Shah has obtained qualifications in Australia in horticulture and that she has been working as a nurseryperson continuously since 2017.  Mrs Shah does not drive and so catches a train from Carnegie to Geelong each day and she is collected by Mr Kanidiadis or his son and driven to the farm.  The Tribunal notes that after their 4 minute visit to the Lethbridge property, the ABF officers called Mrs Shah on her mobile phone at 3:23pm.  The officers’ notes from that conversation indicated that she explained her job involved propagating and potting plants, and that usually worked from 8am to 4pm, but had left early on this particular day.  She told the officers she was not required to pay Mr Kanidiadis any money, and that her post-tax salary of $848 was deposited to her bank account on a weekly basis.

    21.The officers contacted Mrs Shah by telephone again on 1 April 2021 and asked further questions.  Mrs Shah stated that she was at work and working with her Mr Kanidiadis, and that the property grows approximately 10,000 seeds. She told the ABF officers how the seeds were harvested and that she also packed and harvested seeds.  She was asked how she gets to work each day and whether she had missed any work days. She indicated that travels to work by public transport and that she has missed numerous days of work because of restrictions during the Covid-19 pandemic.

    22.She was asked how much it costs her to travel by public transport and stated that she uses her Myki card which she tops up regularly. She was asked the colour of the applicant’s car, and a number of other questions, all of which were answered. She was asked whether she works with any other workers, and she said that she does not work with anyone else other than Mr Kanidiadis’s family. She was asked if someone was helping her with her answers and she said no one was helping her to answer questions.  Of note, the officers made no further attempts to visit the Lethbridge property or to contact Mrs Shah or Mr Kanidiadis in the months leading up to the final decision being made.

    23.In his written submission to the Tribunal, Mr Kotsifas stated:

    It is important to note that the department did not conclude that Mrs Shah was working in some alternate occupation which was different to the nominated occupation. It concluded that she did not work at all. This is an extraordinary conclusion to reach given the vast amount of employment records that were provided by the applicant in response to the notice to produce records and Mrs Shah’s own employment and tax records.

    24.The Tribunal shares Mr Kotsifas’s view that it was extraordinary for the delegate to conclude that Mrs Shah did not work for Mr Kanidiadis’s business at all.  The evidence available to the Tribunal at review, including all of Mrs Shah’s payslips, bank statements, the position description for the role, Mrs Shah’s written declaration regarding her education and employment history, and Mr Kanidiadis’s and Mrs Shah’s oral evidence, points plainly to Mrs Shah working in her nominated skilled occupation of Nurseryperson within Mr Kanidiadis’s business.

    25.It is unfortunate that Julia and Anna misspoke regarding Mrs Shah’s position within the business when they were interrogated by the ABF officers, though it is unclear from the officers’ notes whether they were asked whether Mrs Shah worked on the property, or whether they were simply asked if they knew the woman in the photograph.  Had the latter occurred, Julia and Anna’s responses are more logical.  They were not triggered to consider the reason for the officers’ visit being linked to their father’s business practices; for all they knew, the officers were searching for an unlawful non-citizen.  However, it is not for the Tribunal to posit theories as to why the women addressed the officers in the manner they did.

    26.The ABF’s reliance on that brief evidence obtained from Mr Kanidiadis’s daughters, who did not work within the applicant’s business at the time of the site visit, coupled with the lack of interrogation of Mr Kanidiadis or his son, who did work within the business on a full time basis, or indeed Mrs Shah, who attests to having been present on the property at the time of the site visit, has culminated in a cascade of long term issues both for Mr Kanidiadis’s business reputation, and for Mrs Shah’s migration certainty going forward.  Mr Kanidiadis’s evidence is that had the officers attempted to contact him by telephone prior to leaving the property, he would have directed them to the area where Mrs Shah was working at the time.

    27.Both Louis and Julia Kanidiadis, Mr Kanidiadis’s son and daughter, have provided signed statements to the Tribunal attesting to their knowledge of Mrs Shah’s work in their father’s business since at least 2018, and that Mrs Shah has always been known to the family as “Sweety”.  This led to confusion when the officers allegedly asked Julia and Anna if they knew Sheetal Shah.

    28.Departmental records confirm that Mrs Shah has held several temporary work visas in her nominated occupation of Nurseryperson.  She has the qualifications required to perform this role.  Her payslips, employment contract, position description, and all other documentary evidence provided suggests she works as a Nurseryperson within the applicant’s business.  The applicant continues to employ Mrs Shah in that role today.

    29.Therefore, based on all the available evidence, the Tribunal is satisfied that the applicant has met its obligation under reg 2.86 to ensure that its sponsored worker, Mrs Shah, works in her nominated occupation of Nurseryperson. Accordingly, the Tribunal is not 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

12. 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).

13. In this case, the applicant was found to have included false payment dates on Mrs Shah’s payslips, as well as having been found to provide false timesheets and payslips to the Department.  The delegate dealt with these 2 issues swiftly, stating that despite Mr Kanidiadis’s responses to the Notice of Intention To Take Action, where he indicated that the minor defects in some of those payslips and timesheets were easily explained and had no material bearing on Mrs Shah and her employment, the applicant could not use this evidence to negate the errors and therefore, it furnished false information to the Department.   

14. Mr Kanidiadis is a sole director and shareholder of a small business.  He has few employees, and engages an external accountant to provide all accounting services for his business.  He admits to having been remiss at times regarding the actual payment of salaries that his account has advised have fallen due being paid on the date stated on a payslip prepared by the accountant, but that his staff have nonetheless been paid, and are always paid, and that payments are rarely more than a day or two outside the indicated dates on the payslips.

15. Mr Kanidiadis gave evidence at the hearing that he has completely changed his practices with respect to payroll, and he now ensures all payments are made on the correct date.  He cites the lack of complaints from staff as his main indication that his system is working well.

16. At a technical level, it is true that, had Mr Kanidiadis’s accountant suggested Mrs Shah was paid on one day but he made the bank transfer the next day, that the payslip prepared by the accountant contained false information.  However, Mr Kanidiadis has only ever had minor discrepancies between the dates paid and the dates indicated on payslips, and no malice has been detected. 

17. There is no suggestion that Mr Kanidiadis or the applicant has failed in any of its obligations to pay its staff regularly and at the appropriate rate.  A payslip indicating payment on 1 January when payment was actually made on 2 January is of negligible material substance and should not be held to a standard that generally infers a degree of intent to mislead or deceive.  These are no more than simple oversights by an overworked small business owner with limited accounting skills.

    36.Accordingly, the Tribunal is not satisfied that the prescribed circumstance in reg 2.90 exists for the purpose of s 140M of the Act.

    Action to be taken

18. As the Tribunal finds that none of the circumstances for s 140L(1)(a) exist, it follows that the power to take an action under s 140M does not arise.

    DECISION

    38.The Tribunal sets aside the decision under review and substitutes a decision not to take one or more of the actions specified in s 140M of the Migration Act 1958 (Cth).

    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.

    …

    2.94A Failure to comply with certain terms …

    …

    (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 current conduct of the person in relation to Immigration; and

    (b)    the extent to which the person has not complied with the…agreement; and

    (c)     the number of occasions on which the person has failed to comply with the…agreement; and

    (d)    any other relevant factors.

    …