Murphy Pipe & Civil Constructions Pty Ltd (Migration)

Murphy Pipe & Civil Constructions Pty Ltd (Migration) [2017] AATA 960 (3 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Murphy Pipe & Civil Constructions Pty Ltd
CASE NUMBER:  1517551
DIBP REFERENCE(S):  OPF2014/4057 OPF 2016/2624 OPF 2016/2625
MEMBER:Glen Cranwell
DATE:3 March 2017
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal varies the decision under review by deciding under s.140M(2) to bar the sponsor from making future applications for approval as a standard business sponsor until 8 October 2018.

Statement made on 3 March 2017 at 9:04am

CATCHWORDS

MIGRATION – standard business sponsor – variation of sponsorship bar under s.140M(2) – failure to ensure sponsored persons worked in nominated occupation – exercise of discretion – reckless failure to satisfy sponsorship obligations – commencement of bar

PRACTICE AND PROCEDURE – Secretary’s obligation to provide relevant documents under s.352(4) – format of documents – delay in provision of documents – failure by Secretary to provide documents relied on by delegate – Tribunal unable to be satisfied of various matters due to insufficient evidence – no evidence in the nature of ‘firsthand knowledge’ provided by applicant – reconsideration of earlier decision affected by jurisdictional error

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 2A
Migration Act 1958, ss 140AA, 140GB, 140K, 140L, 140M, 352(4), 362A, 375A, 376, 378

Migration Regulations 1994, r 2.84, r 2.86, r 2.89 – r 2.94B, Schedule 8, Condition 8107

CASES

Briginshaw v Briginshaw [1938] HCA 34
MIBP v Choong Enterprises Pty Ltd [2105] FCA 390
MIMA v Bhardwaj (2002) 209 CLR 597
MZAFZ v MIBP [2016] FCA 1081

Shi v Migration Agents Regulatory Authority [2008] HCA 31

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 4 April 2008. On 8 December 2015, the delegate decided to bar the applicant from making future applications for approval as a standard business sponsor for 4 years under s.140M on the basis that the applicant failed to satisfy r.2.84, r.2.86 and r.2.90 of the Migration Regulations 1994 (the Regulations).
[Mr RR] appeared on behalf of the applicant before the Tribunal on 29 September 2016 and 31 January 2017 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms SS].
The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has decided to vary the decision under review by deciding under s.140M(2) to bar the sponsor from making future applications for approval as a standard business sponsor until 8 October 2018.
The Tribunal notes that it purported to make a decision in this matter on 16 February 2017. That decision was expressed to be made under s.140M(1)(d), which applies to an approved sponsor. The applicant wrote to the Tribunal on 2 March 2017, pointing out that the decision should have been made under s.140M(2), which applies to a person who “was an approved sponsor”. At the time of the delegate’s decision on 8 December 2015, the applicant was not an approved sponsor, its sponsorship having lapsed on 8 October 2015. In these circumstances, the Tribunal considers its earlier decision was affected by jurisdictional error and has reopened the decision: see MIMA v Bhardwaj (2002) 209 CLR 597. The changes made to the decision are confined to replacing references to s.140M(1)(d). No other changes beyond the insertion of this paragraph have been made.

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 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.
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.

Does a circumstance for the taking of an action exist?

In the present case, the delegate found that the applicant failed to satisfy r.2.84, r.2.86 and r.2.90.

Material provided by the Department

The starting point for the Tribunal’s consideration is s.352(4) of the Act, which provides as follows:
The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary's possession or control and is considered by the Secretary to be relevant to the review of the decision.
The following chronology of relevant events speaks for itself:

On 18 December 2015, the application for review to the Tribunal was lodged by the applicant.
On 21 December 2015, an automatic request for the Departmental file was sent by the Tribunal to the Department.
On 28 February 2016, the Tribunal wrote to the Department noting that it had not received the Departmental file and requesting that the same be provided.
On 29 February 2016, the Department wrote to the Tribunal advising that an “urgent” request had been sent to the program area.
On 3 March 2016, a Departmental officer telephoned the Tribunal requesting an extension of time to provide the documents, as the file was with their legal team.
On 8 March 2016, the Department wrote to the Tribunal asking for the best way for the file to be provided to the Tribunal. The email trail noted that the file “contains over 4,000 pieces of individual evidence, with each of these pieces of evidence being multiple pages in most cases. If the AAT requires us to print up every single piece of evidence you are going to be looking at literally thousands of bits of paper and probably a hundred paper files.” The Tribunal responded on the same day, advising that the file could be provided on disks.
On 27 June 2016, the Department wrote to the Tribunal requesting an update on the matter. In particular, it asked whether a hearing had been scheduled or held.
On 12 July 2016, the Department wrote to the Tribunal noting that it had received a file overdue reminder, and asking whether the Tribunal had received a copy of the file on disk. The Tribunal responded on the same day that it had not.
On 14 July 2016, the matter was constituted.
On 19 July 2016, the Tribunal wrote to the Department advising that the matter had been constituted, and requesting the file as a matter of urgency. The Department responded on the same day advising that the Tribunal’s request would be actioned as a matter of urgency.
On 19 July 2016, the Tribunal wrote to the Department in the following terms:
From the Member
I refer to the email from the Department about the provision of the file. Please make it clear to the Department that I require a paper file, NOT a disk. If that means there are 4,000 pieces of paper, so be it. I do not propose to look at 4,000 documents online. Thanks.
[emphasis in original]
On 4 August 2016, the Departmental file was received by the Tribunal. The file provided did, in any event, include 2 disks.

The Department’s longstanding practice is to provide paper files to the Migration and Refugee Division of the Tribunal. Putting aside the convenience of the member, there were cogent reasons for the Tribunal to request a paper file from the Department in the circumstances of this case. The Tribunal has to be able to deal with a request for access to documents from the applicant under s.362A. Such a request was in fact received on 31 August 2016. The Tribunal is unable to simply pass on to the applicant a disk “with file pathways to specific documents recorded on a catalogue” provided by the Department. The terms of s.362A require the Tribunal to exclude certain documents, including documents subject to s.375A and s.376 certificates. The Departmental file as ultimately provided to the Tribunal did contain a substantial number of documents subject to such certificates, which could not be released to the applicant. The Departmental file obviously needs to be provided in a form which enables the Tribunal to meet its own statutory obligations regarding the terms of release of documents to the applicant.
The Departmental file provided to Tribunal comprised 1,115 pages. Two of those “pages” were disks, which when printed by the Tribunal comprised 895 folios. It is clear as a matter of basic arithmetic that the Department did not provide to the Tribunal over 4,000 documents period, let alone in circumstances where most documents were said to comprise multiple pages.
Given the lengthy delays involved in obtaining the Department’s files, the Tribunal was not minded to seek further documents from the Department. The Department’s statutory obligation is to provide all documents relevant to the review “as soon as is practical”. The Department took over 7 months to prepare what material was provided to the Tribunal. The Tribunal was also mindful of the effect of further lengthy delays if it had chosen to seek further documents given its statutory mandate to provide a mechanism of review which is, amongst other things, “quick”: s.2A of the Administrative Appeals Tribunal Act 1975.
In Briginshaw v Briginshaw [1938] HCA 34, Latham CJ stated:
The standard of proof required by a cautious and responsible tribunal will naturally vary in accordance with the seriousness or importance of the issue.
Dixon J further stated:
Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences
[emphasis added]
The Tribunal notes that the imposition of a sponsorship bar is in the nature of a sanction. Bearing in mind the “seriousness of an allegation made” and “the gravity of the consequences flowing from a particular finding” for the applicant, the Tribunal has decided to limit its review to the documentary evidence provided to it by the Department. In particular, the Tribunal has decided not to rely on references to documents in the delegate’s decision where the corresponding documents were not provided to the Tribunal. The Tribunal is reluctant to see an applicant advantaged as a result of omissions by the Department. However, the Tribunal is of the view that, in making its own findings, it should have the opportunity to examine the documentary evidence upon which the delegate made her findings rather than merely rely on the delegate’s characterisation of such evidence.
This is the approach is consistent with High Court authority that the Tribunal must reach its conclusion by conducting its own, independent assessment and determination of the matters necessary to be addressed. In Shi v Migration Agents Regulatory Authority [2008] HCA 31 at 141, Kiefel J stated:
The reasons of the members of the Full Court of the Federal Court in Drake v Minister for Immigration and Ethnic Affairs confirm what is apparent from s 43(1), that the Tribunal reaches its conclusion, as to what is the correct decision, by conducting its own, independent, assessment and determination of the matters necessary to be addressed. To the contrary of the argument put by the respondent on this appeal, that the Tribunal's exercise of power is dependent upon the existence of error in the original decision, Smithers J denied that the Tribunal was limited to something of a supervisory role. As his Honour said, the Tribunal is authorised and required to review the actual decision, not the reasons for it.
[footnotes omitted]

Disclosure issues

The Tribunal directs pursuant to s.378 that the identities of clients and employees of the applicant not be published, but it is not satisfied that any further restrictions on the publication of this decision are in the public interest.
The Tribunal notes that it requested the Department to reissue the s.375A certificates in this matter, given the defective nature of those certificates in light of MZAFZ v MIBP [2016] FCA 1081. The Tribunal did this to ensure that release of certain documents did not “lead to injury or damage to community members” (to adopt the wording of the reissued certificates). The Tribunal provided copies of the reissued s.375A and s.376 certificates to the applicant, although it should be emphasised that the information relied on in making its findings do not go beyond what is set out in the delegate’s decision, a copy of which was provided by the applicant.
The Tribunal also notes that the applicant’s pre-hearing submissions dated 25 November 2016 bear the markings “Privileged and Confidential” and “Without Prejudice”. The Tribunal raised at the hearing that these markings were misconceived in the context of submissions provided to the Tribunal. The representative indicated he would take instructions. The applicant’s post-hearing submissions dated 14 February 2017 bear the marking “Commercial and In Confidence”. Notwithstanding the misconceived nature of these markings, the Tribunal has carefully considered these submissions while eschewing direct references to them in this decision to the extent possible.

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).
The Tribunal is not satisfied that the applicant has failed to satisfy r.2.84. The delegate’s finding in this regard was based on a Personnel Acquisition Approval Form relating to [Mr A]. This form was not provided to the Tribunal, and in the absence of being able to examine this form the Tribunal is not satisfied that a failure has occurred.
The delegate found that the applicant failed to satisfy r.2.86 on 38 occasions. The Tribunal has undertaken an exhaustive comparison of the 1,115 folios provided to it (including the contents of the 2 CD-ROMS) to the material referred to in Attachment A of the delegate’s decision. Attachment A was provided by the applicant to the Tribunal as part of the delegate’s decision. The Tribunal has reproduced Attachment A as Attachment A to this decision. It has highlighted the documents which have been provided to the Tribunal. The documents which are not highlighted have not been provided to the Tribunal. The Tribunal has taken a considerable period of time and made every effort to ensure that its reconciliation of the documentary evidence is as accurate as possible.
In respect of the following persons, the Tribunal was provided with none of the documentation referred to in Attachment A:

[Mr B];
[Mr C];
[Mr D];
[Mr E];
[Mr F];
[Mr G];
[Ms H];
[Mr I].

In the absence of being able to examine any of the material relied upon by the delegate, the Tribunal is not satisfied that the applicant failed to satisfy r.2.86 in relation to these persons.
In respect of the following persons, the only evidence provided to the Tribunal were company spreadsheets recording the person as having been employed under an Enterprise Bargaining Agreement (EBA) which did not relate to the nominated occupation:

[Mr J];
[Mr K];
[Mr L];
[Mr M];
[Mr N];
[Mr O];
[Mr P];
[Mr Q];
[Mr R];
[Mr S];
[Mr T];
[Mr U].

While employment under an EBA is indicative that the person may not have worked in the nominated occupation, it does not go as far as to provide evidence of what occupation the person actually worked in. The obligation on the applicant under r.2.86 is to ensure that sponsored Subclass 457 visa holders do not work in an occupation unless the occupation was nominated by the sponsor for the primary sponsored person under s.140GB(1) and the nomination was approved under s.140GB(2): r.2.86(2)(a). In the Tribunal’s view, in order to be satisfied that the applicant failed to satisfy r.2.86 in a particular case, there must be positive evidence that the person worked in an occupation other than their nominated occupation. In the absence of being able to examine any of the other material relied upon by the delegate, the Tribunal is not satisfied that these persons worked in occupations other than their nominated occupation. The Tribunal is therefore not satisfied that the applicant failed to satisfy r.2.86 in relation to these persons.
The Tribunal is not satisfied that the applicant failed to satisfy r.2.86 in relation to [Mr V]. In addition to the company spreadsheets recording him as being employed under an EBA, the Department provided the Tribunal with a one page handwritten resume. In the Tribunal’s view, a resume does go as far as to provide evidence of what occupation [Mr V] worked in for the applicant. As noted above, his inclusion in the EBA alone does not do so either.
The Tribunal is not satisfied that the applicant failed to satisfy r.2.86 in relation to [Mr W]. Company spreadsheets describe his position as “Supervisor”, which is not inconsistent with Program or Project Administrator. [Mr RR] gave evidence that the reference to LOO was Letter of Offer, which indicates that [Mr W] was employed on an individual contract rather than an EBA. This is also consistent with [Mr W] having worked as a Program or Project Administrator. A copy of the Letter of Offer was provided to the Tribunal after the hearing.
In relation to the remaining 16 occasions in which the delegate found that the applicant failed to satisfy r.2.86, the Tribunal is satisfied that the failure to satisfy the sponsorship obligation is made out in each case. What distinguishes these cases from those referred to above is that the Department has provided the Tribunal with sufficient evidence to enable it to reach the requisite state of satisfaction. The Tribunal’s detailed findings in respect of each person are set out below. These findings are made with reference to the highlighted documents in Attachment A to this decision. It is trite to state that the Tribunal has used the expression “firsthand knowledge” to refer to something that a witness actually saw or heard, as distinguished from knowledge that is gained from some other person or source. It is not for the Tribunal to comment on the wisdom of the applicant’s choice to only present evidence from [Mr RR] in relation to these failures, when the failures took place between 2008 and 2013 and he only commenced employment with the applicant in October 2012, before becoming Group Human Resources Manager as late as May 2013.

[Mr X]

[Mr RR] gave evidence that he had no firsthand knowledge of the duties undertaken by [Mr X]. At the preliminary hearing on 29 September 2016, the Tribunal asked whether the applicant intended to present evidence from [Mr X] as to the duties undertaken by him. It was told that such evidence would not be presented. As it stands, the Tribunal has no evidence before it from persons who have firsthand knowledge of the duties undertaken by [Mr X].
[Mr X] was nominated as a Contract Administrator. The ANZSCO description for this occupation sets out the following description:
Prepares, interprets, maintains, reviews and negotiates variations to contracts on behalf of an organisation.
Company spreadsheets indicate that he was employed under an EBA, which does not cover the role of Contract Administrator. Timesheets for the period 3 May 2011 to 7 May 2011 record that [Mr X] was working on the earthworks crew, and on 7 May 2011 operated a 30 ton excavator.
In the absence of evidence from persons who have firsthand knowledge of the duties undertaken by [Mr X], the Tribunal considers the contemporaneous documents referred to above are the most reliable indicator before it as to the duties undertaken by [Mr X]. The Tribunal is satisfied on the basis of this evidence that [Mr X] worked as a 30 ton excavator operator as part of an earthworks crew, which is outside the scope of the duties of his nominated occupation of Contract Administrator as set out in ANZSCO.

[Mr Y]

[Mr RR] gave evidence that he had no firsthand knowledge of the duties undertaken by [Mr Y]. At the preliminary hearing on 29 September 2016, the Tribunal asked whether the applicant intended to present evidence from [Mr Y] as to the duties undertaken by him. It was told that such evidence would not be presented. As it stands, the Tribunal has no evidence before it from persons who have firsthand knowledge of the duties undertaken by [Mr Y].
[Mr Y] was nominated as a Program or Project Administrator. The ANZSCO description for this occupation sets out the following description:
Plans and undertakes administration of organisational programs, special projects and support services.
Company spreadsheets indicate that he was employed under an EBA, which does not cover the role of Program or Project Administrator. Other spreadsheets describe his position as “Labourer TA”. A spreadsheet provided by the applicant to QGC also describes [Mr Y] as a TA. [Mr RR] gave evidence that TA is an abbreviation for Trades Assistant. [Mr RR] conceded that it was conceivable that people could have worked outside their nominated occupation because there were no management systems in place to prevent this at the relevant time.
In the absence of evidence from persons who have firsthand knowledge of the duties undertaken by [Mr Y], the Tribunal considers the contemporaneous documents referred to above are the most reliable indicator before it as to the duties undertaken by [Mr Y]. The Tribunal is satisfied on the basis of this evidence that [Mr Y] worked as a Labourer and/or Trades Assistant, which is outside the scope of the duties of his nominated occupation of Program or Project Administrator as set out in ANZSCO.

[Mr Z]

[Mr RR] gave evidence that he had no firsthand knowledge of the duties undertaken by [Mr Z]. At the preliminary hearing on 29 September 2016, the Tribunal asked whether the applicant intended to present evidence from [Mr Z] as to the duties undertaken by him. It was told that such evidence would not be presented. As it stands, the Tribunal has no evidence before it from persons who have firsthand knowledge of the duties undertaken by [Mr Z].
[Mr Z] was nominated as a Program or Project Administrator. The ANZSCO description for this occupation sets out the following description:
Plans and undertakes administration of organisational programs, special projects and support services.
Company spreadsheets indicates that he was employed under an EBA, which does not cover the role of Program or Project Administrator. Other spreadsheets describe his position as “Operator Backhoe” or “Operator”. A spreadsheet provided by the applicant to QGC also describes [Mr Z] as an Operator Backhoe.
In the absence of evidence from persons who have firsthand knowledge of the duties undertaken by [Mr Z], the Tribunal considers the contemporaneous documents referred to above are the most reliable indicator before it as to the duties undertaken by [Mr Z]. The Tribunal is satisfied on the basis of this evidence that [Mr Z] worked as an Operator or Operator Backhoe, which is outside the scope of the duties of his nominated occupation of Program or Project Administrator as set out in ANZSCO.

[Mr AA]

[Mr RR] gave evidence that he had no firsthand knowledge of the duties undertaken by [Mr AA]. At the preliminary hearing on 29 September 2016, the Tribunal asked whether the applicant intended to present evidence from [Mr AA] as to the duties undertaken by him. It was told that such evidence would not be presented. As it stands, the Tribunal has no evidence before it from persons who have firsthand knowledge of the duties undertaken by [Mr AA].
[Mr AA] was nominated as a Program or Project Administrator. The ANZSCO description for this occupation sets out the following description:
Plans and undertakes administration of organisational programs, special projects and support services.
Company spreadsheets indicate that he was employed under an EBA, which does not cover the role of Program or Project Administrator. His pay classification was alternatively described as D and CW4, which are EBA classifications. Spreadsheets also describe his position as “Pipe Fitter”, “Labourer” and “TA”. Spreadsheets provided by the applicant to QGC also describe [Mr AA] as a Pipe Fitter and TA. [Mr RR] gave evidence that he did not know who created the spreadsheets or the purpose for which they were created, but that logic persuaded him that the information may have been correct at specific points in time.
In the absence of evidence from persons who have firsthand knowledge of the duties undertaken by [Mr AA], the Tribunal considers the contemporaneous documents referred to above are the most reliable indicator before it as to the duties undertaken by [Mr AA]. The Tribunal is satisfied on the basis of this evidence that [Mr AA] worked as a Pipe Fitter, Labourer and/or TA, which is outside the scope of the duties of his nominated occupation of Program or Project Administrator as set out in ANZSCO.

[Mr BB]

[Mr RR] gave evidence that he had no firsthand knowledge of the duties undertaken by [Mr BB]. At the preliminary hearing on 29 September 2016, the Tribunal asked whether the applicant intended to present evidence from [Mr BB] as to the duties undertaken by him. It was told that such evidence would not be presented. As it stands, the Tribunal has no evidence before it from persons who have firsthand knowledge of the duties undertaken by [Mr BB].
[Mr BB] was nominated as a Program or Project Administrator. The ANZSCO description for this occupation sets out the following description:
Plans and undertakes administration of organisational programs, special projects and support services.
Company spreadsheets indicates that he was employed under an EBA, which does not cover the role of Program or Project Administrator. Other spreadsheets describe his position as “Operator” and “Pipe Fitter”.
In the absence of evidence from persons who have firsthand knowledge of the duties undertaken by [Mr BB], the Tribunal considers the contemporaneous documents referred to above are the most reliable indicator before it as to the duties undertaken by [Mr BB]. The Tribunal is satisfied on the basis of this evidence that [Mr BB] worked as an Operator and/or Pipe Fitter, which is outside the scope of the duties of his nominated occupation of Program or Project Administrator as set out in ANZSCO.

[Mr CC]

[Mr RR] gave evidence that he had no firsthand knowledge of the duties undertaken by [Mr CC]. At the preliminary hearing on 29 September 2016, the Tribunal asked whether the applicant intended to present evidence from [Mr CC] as to the duties undertaken by him. It was told that such evidence would not be presented. As it stands, the Tribunal has no evidence before it from persons who have firsthand knowledge of the duties undertaken by [Mr CC].
[Mr CC] was nominated as a Program or Project Administrator. The ANZSCO description for this occupation sets out the following description:
Plans and undertakes administration of organisational programs, special projects and support services.
Company spreadsheets indicates that he was employed under an EBA, which does not cover the role of Program or Project Administrator. A letter from QGC dated 19 March 2013 queried why [Mr CC] was working as a Fitter when his “Visa Occupation” was Project Coordinator. The applicant’s response to QGC was that a new nomination had been lodged to change [Mr CC]’s occupation to Fitter, and that he would be removed from the site until the nomination was approved. [Mr RR] conceded that this evidence “strongly suggested” that [Mr CC] worked as a Fitter.
In the absence of evidence from persons who have firsthand knowledge of the duties undertaken by [Mr CC], the Tribunal considers the contemporaneous documents referred to above are the most reliable indicator before it as to the duties undertaken by [Mr CC]. The Tribunal is satisfied on the basis of this evidence that [Mr CC] worked as a Fitter, which is outside the scope of the duties of his nominated occupation of Program or Project Administrator as set out in ANZSCO.

[Mr DD]

[Mr RR] gave evidence that he had no firsthand knowledge of the duties undertaken by [Mr DD]. At the preliminary hearing on 29 September 2016, the Tribunal asked whether the applicant intended to present evidence from [Mr DD] as to the duties undertaken by him. It was told that such evidence would not be presented. As it stands, the Tribunal has no evidence before it from persons who have firsthand knowledge of the duties undertaken by [Mr DD].
[Mr DD] was nominated as a Program or Project Administrator. The ANZSCO description for this occupation sets out the following description:
Plans and undertakes administration of organisational programs, special projects and support services.
Company spreadsheets indicates that he was employed under an EBA, which does not cover the role of Program or Project Administrator. Other spreadsheets describe his position as “Operator 13T Excavator” or “Operator”. A spreadsheet provided by the applicant to QGC also describes [Mr DD] as Operator 13T Excavator.
In the absence of evidence from persons who have firsthand knowledge of the duties undertaken by [Mr DD], the Tribunal considers the contemporaneous documents referred to above are the most reliable indicator before it as to the duties undertaken by [Mr DD]. The Tribunal is satisfied on the basis of this evidence that [Mr DD] worked as an Operator or Operator 13T Excavator, which is outside the scope of the duties of his nominated occupation of Program or Project Administrator as set out in ANZSCO.

[Mr EE]

[Mr RR] gave evidence that he had no firsthand knowledge of the duties undertaken by [Mr EE] during the period he was a Subclass 457 visa holder, although he has become aware of [Mr EE]’s duties on a subsequent occasion. At the preliminary hearing on 29 September 2016, the Tribunal asked whether the applicant intended to present evidence from [Mr EE] as to the duties undertaken by him. It was told that such evidence would not be presented. As it stands, the Tribunal has no evidence before it from persons who have firsthand knowledge of the duties undertaken by [Mr EE] during the relevant period.
[Mr EE] was nominated as a Program or Project Administrator. The ANZSCO description for this occupation sets out the following description:
Plans and undertakes administration of organisational programs, special projects and support services.
Company spreadsheets indicate that he was employed under an EBA, which does not cover the role of Program or Project Administrator. Other spreadsheets describe his position as “Storeperson” or “Storeman” at pay classification C. Spreadsheets provided by the applicant to QGC also describe [Mr EE] in this way, one of which also includes the following description of Mr Muphy’s duties: “Organises equipment/supplies to site.”
[Mr RR] submitted that the duties of a Storeperson could fall within the scope of Program or Project Administrator. However, that submission overlooks the fact that ANZSCO recognises Storeperson as a discrete occupation with the following description:
Receives, handles and despatches goods in a store or warehouse.
The ANZSCO description of Storeperson is more closely aligned with [Mr EE]’s duties as set out in the spreadsheets above.
Following the hearing, the applicant provided the Tribunal with a document in respect of [Mr EE] indicating that his position was titled “Project Procurement Materials Coordinator” and lists his responsibilities as at 6 April 2011. The Tribunal places no weight on this document as a description of [Mr EE]’s duties, as the duties listed in this document are merely reproduced or paraphrased from the general description of tasks listed in ANZSCO unit group 5111.
The Tribunal was also provided with a 2 page position description for the position of “Site Supervisor / Project Coordinator” dated December 2012. The Tribunal places no weight on this document as a description of [Mr EE]’s duties as it contains no reference to [Mr EE] and relates to a different occupation than the document referred to in the preceding paragraph.
In the absence of evidence from persons who have firsthand knowledge of the duties undertaken by [Mr EE], and in circumstances where it has placed no weight on the additional documents provided by the applicant, the Tribunal considers the contemporaneous spreadsheets referred to above are the most reliable indicator before it as to the duties undertaken by [Mr EE]. The Tribunal is satisfied on the basis of this evidence that [Mr EE] worked as a Storeperson, which is outside the scope of the duties of his nominated occupation of Program or Project Administrator as set out in ANZSCO.

[Mr FF]

[Mr RR] gave evidence that he had no firsthand knowledge of the duties undertaken by [Mr FF]. At the preliminary hearing on 29 September 2016, the Tribunal asked whether the applicant intended to present evidence from [Mr FF] as to the duties undertaken by him. It was told that such evidence would not be presented. As it stands, the Tribunal has no evidence before it from persons who have firsthand knowledge of the duties undertaken by [Mr FF].
[Mr FF] was nominated as a Bricklayer. The ANZSCO description for this occupation sets out the following description:
Lays bricks, pre-cut stone and other types of building blocks in mortar to construct and repair walls, partitions, arches and other structures.
Company spreadsheets indicates that he was employed as an “Operator/Driver” or “Operator”. [Mr RR] conceded that a full-time Bricklayer would not be required on a project undertaken by the applicant.
In the absence of evidence from persons who have firsthand knowledge of the duties undertaken by [Mr FF], the Tribunal considers the contemporaneous documents referred to above are the most reliable indicator before it as to the duties undertaken by [Mr FF]. The Tribunal is satisfied on the basis of this evidence that [Mr FF] worked as an Operator or Operator/Driver, which is outside the scope of the duties of his nominated occupation of Bricklayer as set out in ANZSCO.

[Mr GG]

[Mr RR] gave evidence that he had no firsthand knowledge of the duties undertaken by [Mr GG]. At the preliminary hearing on 29 September 2016, the Tribunal asked whether the applicant intended to present evidence from [Mr GG] as to the duties undertaken by him. It was told that such evidence would not be presented. As it stands, the Tribunal has no evidence before it from persons who have firsthand knowledge of the duties undertaken by [Mr GG].
[Mr GG] was nominated as a Drainer. The ANZSCO description for this occupation sets out the following description:
Installs, maintains and designs below-ground drainage systems and associated sewerage or effluent disposal systems.
Company spreadsheets indicate that he was employed as an “Operator/Excavator” and “Operator 30T Excavator”.
[Mr RR] submitted that operating an excavator could fall within the duties of Drainer. However, that submission overlooks the fact that ANZSCO recognises Excavator Operator as a discrete occupation with the following description:
Operates heavy excavation plant to excavate, move and load earth, rock and rubble.
The ANZSCO description of Excavator Operator is more closely aligned with [Mr GG]’s duties as described in the company spreadsheets.
In the absence of evidence from persons who have firsthand knowledge of the duties undertaken by [Mr GG], the Tribunal considers the contemporaneous documents referred to above are the most reliable indicator before it as to the duties undertaken by [Mr GG]. The Tribunal is satisfied on the basis of this evidence that [Mr GG] worked as an Operator/Excavator or Operator 30T Excavator, which is outside the scope of the duties of his nominated occupation of Drainer as set out in ANZSCO.

[Mr HH]

[Mr RR] gave evidence that he had no firsthand knowledge of the duties undertaken by [Mr HH]. At the preliminary hearing on 29 September 2016, the Tribunal asked whether the applicant intended to present evidence from [Mr HH] as to the duties undertaken by him. It was told that such evidence would not be presented. As it stands, the Tribunal has no evidence before it from persons who have firsthand knowledge of the duties undertaken by [Mr HH].
[Mr HH] was nominated as a Drainer. The ANZSCO description for this occupation sets out the following description:
Installs, maintains and designs below-ground drainage systems and associated sewerage or effluent disposal systems.
A company spreadsheet indicates that he was employed as a “Supervisor”.
[Mr RR] submitted that operating a Supervisor could include making sure people are trained in the use of equipment. He stated that [Mr HH] was receiving a leading hand allowance, so he was supervising people.
In the absence of evidence from persons who have firsthand knowledge of the duties undertaken by [Mr HH], the Tribunal considers the contemporaneous documents referred to above are the most reliable indicator before it as to the duties undertaken by [Mr HH]. The Tribunal is satisfied on the basis of this evidence that [Mr HH] worked as a Supervisor, which is outside the scope of the duties of his nominated occupation of Drainer as set out in ANZSCO. The Tribunal notes that even training people in the use of equipment is different to working as a Drainer.

[Mr II]

[Mr RR] gave evidence that he had no firsthand knowledge of the duties undertaken by [Mr II]. At the preliminary hearing on 29 September 2016, the Tribunal asked whether the applicant intended to present evidence from [Mr II] as to the duties undertaken by him. It was told that such evidence would not be presented. As it stands, the Tribunal has no evidence before it from persons who have firsthand knowledge of the duties undertaken by [Mr II].
[Mr II] was nominated as a Program or Project Administrator. The ANZSCO description for this occupation sets out the following description:
Plans and undertakes administration of organisational programs, special projects and support services.
Company spreadsheets indicate that he was employed under an EBA, which does not cover the role of Program or Project Administrator. Other spreadsheets describe his position as “Leading Hand Dogger and Rigger” and “Dogger and Rigger”. Spreadsheets provided by the applicant to QGC also describe [Mr II]’s role classification in similar terms.
[Mr RR] gave evidence that a Dogger and Rigger arranges the safe lifting of material between locations at different heights.

In the absence of evidence from persons who have firsthand knowledge of the duties undertaken by [Mr II], the Tribunal considers the contemporaneous documents referred to above are the most reliable indicator before it as to the duties undertaken by [Mr II]. The Tribunal is satisfied on the basis of this evidence that [Mr II] worked as a Dogger and Rigger and a Leading Hand Dogger and Rigger, which is outside the scope of the duties of his nominated occupation of Program or Project Administrator as set out in ANZSCO.

[Mr JJ]

[Mr RR] gave evidence that he had no firsthand knowledge of the duties undertaken by [Mr JJ]. At the preliminary hearing on 29 September 2016, the Tribunal asked whether the applicant intended to present evidence from [Mr JJ] as to the duties undertaken by him. It was told that such evidence would not be presented. As it stands, the Tribunal has no evidence before it from persons who have firsthand knowledge of the duties undertaken by [Mr JJ].
[Mr JJ] was nominated as a Contract Administrator. The ANZSCO description for this occupation sets out the following description:
Prepares, interprets, maintains, reviews and negotiates variations to contracts on behalf of an organisation.
Company spreadsheets indicate that he was employed under an EBA, which does not cover the role of Contract Administrator. Timesheets for the period 3 May 2011 to 7 May 2011 record that [Mr JJ] was working on the earthworks crew, and on 7 May 2011 operated a 30 ton excavator.
In the absence of evidence from persons who have firsthand knowledge of the duties undertaken by [Mr JJ], the Tribunal considers the contemporaneous documents referred to above are the most reliable indicator before it as to the duties undertaken by [Mr JJ]. The Tribunal is satisfied on the basis of this evidence that [Mr JJ] worked as a 30 ton excavator operator as part of an earthworks crew, which is outside the scope of the duties of his nominated occupation of Contract Administrator as set out in ANZSCO.

[Mr KK]

[Mr RR] gave evidence that he had no firsthand knowledge of the duties undertaken by [Mr KK]. At the preliminary hearing on 29 September 2016, the Tribunal asked whether the applicant intended to present evidence from [Mr KK] as to the duties undertaken by him. It was told that such evidence would not be presented. As it stands, the Tribunal has no evidence before it from persons who have firsthand knowledge of the duties undertaken by [Mr KK].
[Mr KK] was nominated as a Program or Project Administrator. The ANZSCO description for this occupation sets out the following description:
Plans and undertakes administration of organisational programs, special projects and support services.
Company spreadsheets indicate that he was employed under an EBA, which does not cover the role of Program or Project Administrator. Another spreadsheet describes his position as “Labourer and Leading Hand”.
In the absence of evidence from persons who have firsthand knowledge of the duties undertaken by [Mr KK], the Tribunal considers the contemporaneous documents referred to above are the most reliable indicator before it as to the duties undertaken by [Mr KK]. The Tribunal is satisfied on the basis of this evidence that [Mr KK] worked as a Labourer and Leading Hand, which is outside the scope of the duties of his nominated occupation of Program or Project Administrator as set out in ANZSCO.

[Mr LL]

[Mr RR] gave evidence that he had no firsthand knowledge of the duties undertaken by [Mr LL]. At the preliminary hearing on 29 September 2016, the Tribunal asked whether the applicant intended to present evidence from [Mr LL] as to the duties undertaken by him. It was told that such evidence would not be presented. As it stands, the Tribunal has no evidence before it from persons who have firsthand knowledge of the duties undertaken by [Mr LL].
[Mr LL] was nominated as a Program or Project Administrator. The ANZSCO description for this occupation sets out the following description:
Plans and undertakes administration of organisational programs, special projects and support services.
Company spreadsheets indicate that he was employed under an EBA, which does not cover the role of Program or Project Administrator. Timesheets for the period 3 May 2011 to 4 May 2011 record that [Mr LL] was working on the earthworks crew.
When the Tribunal put to [Mr RR] that working on an earthworks crew appeared to be outside the scope of the occupation of Program or Project Administrator, [Mr RR] conceded that this was a “fair” point.
In the absence of evidence from persons who have firsthand knowledge of the duties undertaken by [Mr LL], the Tribunal considers the contemporaneous documents referred to above are the most reliable indicator before it as to the duties undertaken by [Mr LL]. The Tribunal is satisfied on the basis of this evidence that [Mr LL] worked on an earthworks crew, which is outside the scope of the duties of his nominated occupation of Program or Project Administrator as set out in ANZSCO.

[Mr MM]

[Mr RR] gave evidence that he had no firsthand knowledge of the duties undertaken by [Mr MM]. At the preliminary hearing on 29 September 2016, the Tribunal asked whether the applicant intended to present evidence from [Mr MM] as to the duties undertaken by him. It was told that such evidence would not be presented. As it stands, the Tribunal has no evidence before it from persons who have firsthand knowledge of the duties undertaken by [Mr MM].
[Mr MM] was nominated as a Drainer. The ANZSCO description for this occupation sets out the following description:
Installs, maintains and designs below-ground drainage systems and associated sewerage or effluent disposal systems.
Company spreadsheets indicate that he was employed as a “Leading Hand Backhoe” and “Plant Operator”. QGC also wrote to the applicant on 19 March 2013 advising that [Mr MM] was working as a Supervisor and not a Drainer, a position which the applicant accepted in return correspondence dated 21 March 2013. The applicant indicated that an application to the Department would be made to amend his status.
[Mr RR] submitted that the letter dated 21 March 2013 may have simply been an attempt to foster good customer relations with QGC, however the Tribunal does not consider this submission to be credible. The Tribunal considers it implausible that the applicant would have undertaken to apply to the Department to amend [Mr MM]’s status if his status had been correctly described in the first place.
In the absence of evidence from persons who have firsthand knowledge of the duties undertaken by [Mr MM], the Tribunal considers the contemporaneous documents referred to above are the most reliable indicator before it as to the duties undertaken by [Mr MM]. The Tribunal is satisfied on the basis of the letter from the applicant dated 21 March 2013 that [Mr MM] did not work as a Drainer.
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).
The delegate found that the applicant provided false or misleading information in support of 39 Subclass 457 visa nominations and 17 Employer Nomination Scheme nominations. The Tribunal was not provided with any of the nomination applications or related files, and in the absence of being able to examine the material provided in support of these nominations the Tribunal is not 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.
The Tribunal now turns to its consideration of the criteria under r.2.89(3).

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

The Tribunal agrees with the delegate’s comments that:
I acknowledge that MPC has fully co-operated with the Department throughout the current monitoring event and consider this to be a mitigating factor in my final decision.

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

The Tribunal has found that the applicant has failed to satisfy r.2.86 on 16 occasions. According to [Mr RR], the applicant has sponsored a total of 195 Subclass 457 visa holders.

(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 employment by the applicant of 16 persons in occupations other than what for which they were nominated to be very serious. As Mansfield J observed in MIBP v Choong Enterprises Pty Ltd [2105] FCA 390 at [49], the purpose of the sponsorship obligations framework is:
(1) to secure the integrity of the Australian labour market – by ensuring that persons who are sponsored to work in Australia are not employed in a manner that undercuts standard conditions of employment; and
(2) to protect those persons who are brought to Australia and who are vulnerable to exploitation.
Section 140AA of the Act sets out the purposes of the sponsorship program relevantly as follows:
The purposes of this Division are as follows:
(a) to provide a framework for a temporary sponsored work visa program in order to address genuine skills shortages;
(b) to address genuine skills shortages in the Australian labour market:
(i) without displacing employment and training opportunities for Australian citizens and Australian permanent residents (within the meaning of the regulations); and
(ii) without the temporary sponsored work visa program serving as a mainstay of the skilled migration program;
(c) to balance the objective of ensuring employment and training opportunities for Australian citizens and Australian permanent residents with that of upholding the rights of non-citizens sponsored to work in Australia under the program;
(d) to impose obligations on sponsors to ensure that:
(i) non-citizens sponsored to work in Australia under the program are protected; and

(ii) the program is not used inappropriately;

…

The Tribunal considers that the employment by the applicant of 16 Subclass 457 visa in occupations other than that for which they were nominated represents an inappropriate use of the program.
The Tribunal does not accept that the failures arose out of “grey areas” or a lack of clarity surrounding the scope of the occupational classifications of Contract Administrator and Program or Project Administrator. To take an example, there is no grey area surrounding Contract Administrator which would extend to confusing the occupation for one involving the operation of a 30 ton excavator.
As set out in Attachment A, the failures took place between 2008 and 2013, with most of the failures taking place between 2011 and 2013.

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

The Tribunal finds that the applicant had been a standard business sponsor between 4 April 2008 and 8 October 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

The failures to satisfy r.2.86 have resulted in the exposure of the Subclass 457 visa holders to potentially having their visas cancelled for breach of condition 8107, which requires visa holders to work only in the occupation listed in the most recently approved nomination for the holder.
The failures have also resulted in Australian citizens or permanent residents having potentially been denied employment opportunities. The Tribunal notes the applicant has provided a media report indicating that it can be difficult to recruit Australian citizens and permanent residents to some positions in remote areas. However, no specific evidence was provided in relation to difficulties in filling the positions in question.

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

The Tribunal finds that the failures to satisfy r.2.86 were reckless. The sheer scope of the 16 failures takes them beyond the scope of mere inadvertence.
The Tribunal has considered the possibility that the failures were intentional. [Mr RR]’s evidence was that the applicant was heavily reliant on the advice of its previous migration agent. In his statutory declaration, he stated that the migration agent “presented herself to the MPC HR Department as a problem solver who should be trusted to do her job”. The migration agent “directed and controlled the application process”. At the hearing, [Mr RR] stated the migration agent provided advice that anyone in a supervisory role could be sponsored as a Program or Project Administrator. The Tribunal did not have the opportunity to take evidence from the migration agent, and therefore has only one side of events. The Macquarie Dictionary (2nd Revised Edition, 1982) defines intention as “the act of determining mentally upon some action or result”. If [Mr RR]’s version is correct, then it does not appear that the applicant positively determined to inappropriately use the sponsorship program, as opposed to accepting commercially convenient advice from the migration agent without asking too many questions. In the Tribunal’s view, the applicant acted “without caution”, which falls squarely within dictionary definition of reckless.
Whatever the circumstances relating to the preparation of the nomination applications, the Tribunal considers it is clear that the applicant made minimal, if any, efforts to comply with the requirement that the Subclass 457 visa holders be employed in their nominated occupations. In the absence of monitoring by the Department, the Tribunal considers it likely that the practice of Subclass 457 visa holders working in other occupations would have continued.

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

The applicant did not inform the Department of the failures, and indeed continued to contest most of the failures at the hearing before the Tribunal. There is no evidence that the applicant has not otherwise 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 Tribunal agrees with the delegate’s comments that:
The failures of the sponsorship obligations identified in the NOITTA are not failures the sponsor can rectify.
…
In relation to the sponsor’s failures of r.2.86, all of the sponsored persons identified in the NOITTA have either ceased employment with the sponsor or no longer hold a subclass 457 visa.

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

[Mr RR] and [Ms SS] gave evidence that the applicant has instituted a compliance program designed to prevent such failures occurring in the future. That program includes [Ms SS]’s appointment as legal counsel, as well the establishment of a Risk Management Committee and other measures. Further details are set out in [Ms SS]’s statutory declaration.

(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 applicant has breached any other sponsorship obligations.

(k) any other relevant factors

[Mr RR] submitted at the hearing that the applicant did not exploit any of the employees in question, that the bar as had a reputation impact on the applicant’s business and that the applicant has expended considerable funds in engaging in compliance reviews and audits arising out of the failures. The bar has also impacted on the applicant’s ability to engage foreign workers for future wind farm projects.
The Tribunal notes that there are no provisions prescribing any relevant periods for the purposes of imposing a bar. In the exercise of its discretion to impose a bar for a specified period, the Tribunal may have regard to Departmental policy. Departmental policy provides that where a bar is to be imposed on a sponsor from making future applications for approval as a sponsor in relation to one or more classes of sponsor pursuant to s.140M, the relevant bar period to be imposed should generally be between 3 months and 5 years
Considering the totality of the circumstances, and having regard to the prescribed criteria the Tribunal finds that the action mentioned in s.140M(2), to bar the applicant from making future applications for approval as a standard business sponsor until 8 October 2018, should be taken. This represents a 3 year period from the expiry of the applicant’s most recent sponsorship agreement on 8 October 2015. The Tribunal does not accept the argument that the bar should be “backdated” to an earlier date, given that it is a logical contradiction to apply a bar during a period when the applicant was in fact approved as a standard business sponsor. The Tribunal considers that a reduction in the 4 year bar imposed by the delegate is appropriate given that it has been satisfied of a lesser number of failures to satisfy r.2.86, and none of the failures to satisfy r.2.90 and r.2.84. While it is clear the applicant has made substantial improvements in its processes to ensure satisfactory compliance with its sponsorship obligations in the future, the Tribunal considers that shortening the bar to less than what is effectively a 3 year period would send the wrong message to the applicant in terms of the seriousness of the failures found by the Tribunal and the reckless manner in which they occurred. The Tribunal considers that this period is proportionate given the number and nature of the failures.
The Tribunal recommends that in the future the Department puts in place procedures to ensure that all relevant documents are provided to the Tribunal in a timely manner in accordance with its statutory obligations.

DECISION

The Tribunal varies the decision under review by deciding under s.140M(2) to bar the sponsor from making future applications for approval as a standard business sponsor until 8 October 2018.

Glen Cranwell

Member

ATTACHMENT A

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

The delegate has reason to believe that the sponsor has failed to satisfy the requirements of regulation 2.86 in relation to its employment of the following sponsored persons:

1. [Mr X]

On 11 January 2011, the sponsor lodged a 457 nomination application with the Department indicating that it wished to employ [Mr X] in the occupation of Contract Administrator. This nomination was approved by the Department on 7 February 2011. [Mr X's] associated 457 visa application was also approved by the Department on 7 February 2011 and from this date [Mr X] was required to work only in his nominated occupation. The following information, records and documents obtained during the monitoring process show that [Mr X] did not work in his nominated occupation from the time he was granted his 457 visa until the time he obtained permanent residency on 15 October 2013.

A company spreadsheet titled "Training Matrix (Main) Rev 11" lists [Mr X's] position as "Excavator Operator"
Medical records and reports dated 15 November 2013 and 19 November 2013 associated with medical assessments completed by [Mr X] list his position as "Operator" on four (4) separate occasions.

Records and documents that show the sponsored person possesses qualifications and tickets that relate to occupations that are outside the sponsored person's nominated occupation. The qualifications and tickets also relate primarily to occupations that are not approvable under the 457 visa program.
A number of company spreadsheets that cite [Mr X's] occupation as "Contract Administrator" and employed under an Enterprise Bargaining Agreement (EBA) during his period of employment on a 457 visa. It is noted that the company's EBAs do not cover administrative type roles such as [Mr X's] nominated occupation of Contract Administrator. The EBAs are restricted to occupations such as tradespersons, plant operators, labourers and trades assistants.
Three (3) company spreadsheets titled "MPC EXPAT LIST" or similar citing [Mr X's] nominated occupation as Contract Administrator and his role as Diesel Fitter.
Two (2) company spreadsheets created 17 August 2012 titled "MPC Labour Tradies current 35" and "MPC Labour Job titles" listing [Mr X's] "Job Title" as "CW3 Sino". It is noted that the occupations classified under Construction Worker Grade 3 (CW3) in the sponsor's "Sino Iron" EBA relate primarily to plant operation. The occupation of Contract Administrator is not listed under the CW3 classification.
"Pipe and Civil Sino Iron Crew Timesheets" covering the period 3 May 2011 — 7 May 2011 which list [Mr X] working on an "Earthworks" crew under the supervision of [Mr NN] during this period. It is noted the timesheet dated 7 May 2011 specifically notes [Mr X] to be operating a 30 ton excavator during this shift.
"Sino Payroll Timesheets" covering the period September 2010 — November 2011 showing the employment of [Mr X] by the sponsor under its "Sino Iron Project" EBA.
An untitled and undated company document that lists [Mr X]'s employment classification as CW3.
A Personnel Acquisition Approval Form (PAAF) dated 5 November 2013 which lists [Mr X's] position as an Excavator Operator on the QCLNG Trunklines Project. It is noted this document is dated less than three weeks after [Mr X] was granted permanent residency on the basis that he was being sponsored to work for the sponsor as a Contracts Administrator. This is addressed in further detail under Regulation 2.90 Provision of false or misleading information.
A CV for [Mr X] citing employment with the sponsor from "2009 — Current" and listing the following roles under "Positions": "Skilled operator working in roles operating various plant when required. Excavator, Grader, Dozer, Dumper, Loader". Also lists under the heading "Previous work history" the following: "Previous roles held as a skilled Plant Operator within the pipeline and civil construction industries.

Based on the above, the delegate has reason to believe that [Mr X] never worked for the sponsor in his nominated occupation of Contract Administrator whilst employed on a subclass 457 visa. The delegate has reason to believe that during this period, [Mr X] was employed as a "Mobile Plant Operator" - Australian and New Zealand Standard Classification of Occupations (ANZSCO) Code: Minor Group 721, or similar.

2. [Mr Y]

On 30 March 2011, the sponsor lodged a 457 nomination application with the Department indicating that it wished to employ [Mr Y] in the occupation of Program or Project Administrator. This nomination was approved by the Department on 8 April 2011. [Mr Y]'s associated 457 visa application was approved by the Department on 19 April 2011 and from this date [Mr Y] was required to work only in his nominated occupation. The following information, records and documents obtained during the monitoring process show that [Mr Y] was not working in his nominated occupation from the time he was granted his 457 visa until the time he ceased employment with the sponsor 29 November 2011.

A company spreadsheet titled "Training Matrix (Main) Rev 11" lists [Mr Y]'s position as "Truck Driver".
Records and documents that show the sponsored person possesses qualifications and tickets that relate to occupations that are outside the sponsored person's nominated occupation. The qualifications and tickets also relate primarily to occupations that are not approvable under the 457 visa program.
Employee Handbook Induction signed by [Mr Y] on 29 March 2011 and listing his position as Storeman/Operator.
A HR Spreadsheet titled "20111121_Revised Chinchilla Status" listing [Mr Y]'s "DIAC nomination" as "Project Administrator" and his role as "Labourer TA".
A number of company spreadsheets that cite [Mr Y]'s occupation as "Project Administrator" and employed under an EBA during his period of employment on a 457 visa. It is noted that the company's EBAs do not cover administrative type roles such as [Mr Y]'s nominated occupation of Program or Project Administrator. The EBAs are restricted to occupations such as tradespersons, plant operators, labourers and trades assistants.
A company spreadsheet titled "20111124_MPC Personnel" that lists [Mr Y]'s "Role" as "Labourer TA" and his "Base Rate" as "D". It is noted that the sponsor's EBAs describe Group D occupations as Labourer, Trades Assistant or similar.
A company spreadsheet titled "MPC Personnel — 21.10.2011" that lists [Mr Y]'s "Role" as "Labourer TA".
A number of other company spreadsheets that list [Mr Y]'s "Role" as "Labourer TA".
Two (2) company spreadsheets created 17 August 2012 titled "MPC Labour Tradies current 35" and "MPC Labour Job titles" listing [Mr Y]'s "Job Title" as "CW4 Chinchilla". It is noted that the occupations classified under Construction Worker Grade 4 (CW4) in the sponsor's "Pipe and Civil Pty Ltd Union Greenfield Collective Agreement" relate primarily to plant operation and driving occupations. The occupation of Program or Project Administrator is not listed under the CW4 classification in any of the sponsor's agreements.
A spreadsheet provided to QGC by the sponsor on 13 December 2011 in response to a request for details of the sponsor's overseas workers. The spreadsheet lists [Mr Y]'s nominated occupation as "Program/Project Administrator" and his "role classification in the project" as "TA". It also lists [Mr Y]'s pay classification as "EBA - Group D".

Based on the above, the delegate has reason to believe that [Mr Y] never worked for the sponsor in his nominated occupation of Program or Project Administrator whilst employed on a subclass 457 visa. The delegate has reason to believe that during this period, [Mr Y] was employed variously as a "Mobile Plant Operator" - ANZSCO Code: Minor Group 721, a "Labourer/Trades Assistant" — ANZSCO Code: Unit Group 8219, a "Dogman" — ANZSCO Code: 821911, or similar.

3. [Mr Z]

On 22 November 2010, the sponsor lodged a 457 nomination application with the Department indicating that it wished to employ [Mr Z] in the occupation of Program or Project Administrator. This nomination was approved by the Department on 26 November 2010. [Mr Z]'s associated 457 visa application was approved by the Department on 8 August 2011 and from this date [Mr Z] was required to work only in his nominated occupation. The following information, records and documents obtained during the monitoring process show that [Mr Z] never worked in his nominated occupation from the time he was granted his 457 visa until the time he ceased employment with the sponsor around 15 April 2012.

Records and documents that show the sponsored person possesses qualifications and tickets that relate to occupations that are outside the sponsored person's nominated occupation. The qualifications and tickets also relate primarily to occupations that are not approvable under the 457 visa program.
Company spreadsheet titled "20111121_Revised Chinchilla Status" that lists [Mr Z]'s "DIAC Nomination" as "Project Administrator" and his "Role" as "Operator Backhoe". [Mr Z]'s "Base Rate" is also listed as "B add LH". A separate sheet in this document also lists the following next to [Mr Z]'s name: "30T Excavator" and "B". It is noted that in the sponsor's EBAs, Group B occupations consist mainly of various Plant Operators. The occupation of Program or Project Administrator is not included.
Company spreadsheet titled "20111124_MPC Personnel(2)" that lists [Mr Z]'s "DIAC Nomination" as "Program or Project Administrator" and his "Role" as "Operator Backhoe". [Mr Z]'s "Base Rate" is also listed as "B".
Company spreadsheet titled "MPC Personnel — 21.10.2011(2)" that lists [Mr Z]'s "Role" as "Operator".
Company spreadsheet titled "MPC Visa Personnel — 24.04.2012" that lists [Mr Z]'s "Role" as "Operator". A separate sheet in this spreadsheet also list [Mr Z]'s "DIAC Nomination" as "Program or Project Administrator" and his "Role" as "Operator Backhoe". [Mr Z]'s "Base Rate" is also listed as "B".
Company spreadsheet titled "MPC 457 Visa Personnel — 07.05.2013" that lists [Mr Z]'s "Role" as "Operator".
Two (2) company spreadsheets created 17 August 2012 titled "MPC Labour Tradies current 35" and "MPC Labour Job titles" listing [Mr Z]'s "Job Title" as "Chinchilla CW2". The occupation of Program or Project Administrator is not listed under the CW2 classification in any of the sponsor's EBAs.
Daily Timesheets covering the period 1 March 2012 8 March 2012 listing [Mr Z]'s "classification" as Operator.
A spreadsheet provided to QGC by the sponsor on 5 December 2011 in response to a request for details of the sponsor's overseas workers. The spreadsheet lists [Mr Z]'s nominated occupation as "Program/Project Administrator" and his "role classification in the project" as "Operator Backhoe".
A spreadsheet provided to QGC by the sponsor on 13 December 2011 in response to a request for further details of the sponsor's overseas workers. The spreadsheet lists [Mr Z]'s nominated occupation as "Program/Project Administrator" and his "role classification in the project" as "Operator Backhoe". It also lists [Mr Z]'s pay classification as "EBA - Group B",

Based on the above, the delegate has reason to believe that [Mr Z] never worked for the sponsor in his nominated occupation of Program or Project Administrator whilst employed on a subclass 457 visa. The delegate has reason to believe that during this period, [Mr Z] was employed primarily as a "Mobile Plant Operator" - ANZSCO Code: Minor Group 721, or similar.

4. [Mr B]

On 4 March 2013, the sponsor lodged a 457 nomination application with the Department indicating that it wished to employ [Mr B] in the position of Plough Supervisor and nominate him under the ANZSCO occupation of Specialist Manager nec. This nomination was approved by the Department on 12 March 2013. [Mr B]'s associated 457 visa application was also approved by the Department on 12 March 2013 and from this date [Mr B] was required to work only in his nominated occupation. The following information, records and documents obtained during the monitoring process show that [Mr B] did not work in his nominated occupation from the time he was granted his 457 visa until the time he ceased employment with the sponsor on 31 March 2014.

Employee Handbook Induction signed by [Mr B] on 9 April 2013 and listing his position as Operator - Supervisor.
Induction: General Question Paper completed by [Mr B] on 9 April 2013 listing his position as Operator — Supervisor and the following listed under "Plant and Equipment": Plow Operator, Winch Operator.
An internal company email dated 4 January 2013 from [one staff member] to [another staff member] referring to [Mr B] as "another Spider Plough and Winch Operator" that the sponsor wished to employ.
Daily Supervisor Allocation Sheets covering the period 3 June 2013 — 9 June 2013 listing [Mr B]'s duties as Plough Operations or similar. None of these documents identifies [Mr B] as the supervisor for the crew he is working with.
Daily Supervisor Allocation Sheet covering the period 2 September 2013 — 8 September 2013 listing [Mr B]'s duties as Plough Operations or similar. This document does not identify [Mr B] as the supervisor for the crew he is working with.
Daily Supervisor Allocation Sheets covering the period 18 November 2013 — 24 November 2013 listing [Mr B]'s duties as Plough Operations. None of these documents identifies [Mr B] as the supervisor for the crew he is working with.

Based on the above, the delegate has reason to believe that [Mr B] never worked for the sponsor in the occupation of Plough Supervisor and therefore never worked in his nominated occupation of Specialist Manager nec whilst employed with the sponsor on a subclass 457 visa: The delegate has reason to believe that during this period, [Mr B] was employed primarily employed as a "Mobile Plant Operator" - ANZSCO Code: Minor Group 721, specifically a Plough Operator.

5. [Mr C]

On 26 July 2011, the sponsor lodged a 457 nomination application with the Department indicating that it wished to employ [Mr C] in the occupation of Electrician (General). This nomination was approved by the Department on 18 August 2011 and from this date [Mr C] was required to work only in his nominated occupation. The following information, records and documents obtained during the monitoring process show that [Mr C] never worked in his nominated occupation from the time he was granted his 457 visa until the time he obtained permanent residency on 1 July 2013.

Medical records and reports dated 6 May 2014 associated with medical assessments completed by [Mr C] list his position as "Pipe Layer" on four (4) separate occasions. Under the "Occupational History" heading of these records, [Mr C] lists his job title/work description as Pipelayer for the period 2008 — 2014.
Records and documents that show the sponsored person possesses qualifications and tickets that relate to occupations that are outside the sponsored person's nominated occupation. The qualifications and tickets also relate primarily to occupations that are not approvable under the 457 visa program.
Two (2) Ernst & Young documents related to its 457 visa file review for MPC which cite the following concerns re: [Mr C]: "Appears position changed from electrical technician to construction worker grade 3 Aug 2012." 0PD2015/678, 0PD2015/644.
Two (2) company spreadsheets created 17 August 2012 titled "MPC Labour Tradies current 35" and "MPC Labour Job titles" listing [Mr C]'s "Job Title" as "Sino CW2". In the sponsor's "Sino Iron Project" EBA, the classification Construction Worker Grade 2 (CVV2) primarily covers the following occupations: Bitumen worker, Chain man, concrete related occupations and some plant operation positions. The occupation of Electrician is not listed under the CW2 classification. Electricians have their own separate classification under this EBA.
"Sino Payroll Timesheets" covering the period June 2011 — November 2011 showing the employment of [Mr C] on the Sino Iron Project. The job codes outlined on these timesheets show [Mr C] being primarily involved in the following duties throughout this period: "Coating External" and "Day Works".
An offer of employment dated 24 August 2012 for [Mr C] (signed by [Mr C] on 9 October 2012) that indicated he would be employed as a Construction Worker Grade 4 on the Rio Tinto Coastal Waters Project. It is noted that the occupations listed under the sponsor's EBA for this project relate primarily to Dogman, Rigger and Operator roles. The occupation of Electrician is not listed under this agreement.

Based on the above, the delegate has reason to believe that [Mr C] never worked for the sponsor in his nominated occupation of Electrician whilst employed on a subclass 457 visa. The delegate has reason to believe that during this period, [Mr C] was employed primarily in occupations associated with pipe laying including; "Mobile Plant Operator" - ANZSCO Code: Minor Group 721 and Dogman — ANZSCO Code: 821911; or similar.

6. [Mr AA]

On 13 May 2011, the sponsor lodged a 457 nomination application with the Department indicating that it wished to employ [Mr AA] in the occupation of Program or Project Administrator. This nomination was approved by the Department on 7 June 2011. [Mr AA]'s associated 457 visa application was approved by the Department on 8 June 2011 and from this date [Mr AA] was required to work only in his nominated occupation. The following information, records and documents obtained during the monitoring process show that [Mr AA] never worked in his nominated occupation from the time he was granted his 457 visa until the time he obtained permanent residency on 4 October 2013.

A "Statement of Attainment" for [Mr AA] dated 17 February 2012 listing competencies in the following: "Inspect machinery for plant, animal and soil material" and "Clean machinery of plant, animal and soil material.
Records and documents that show the sponsored person possesses qualifications and tickets that relate to occupations that are outside the sponsored person's nominated occupation. The qualifications and tickets also relate primarily to occupations that are not approvable under the 457 visa program.
A Verification of Competency Log Book in the name of [Mr AA] listing the following: The performance of Wheel Loader and Roller Operations on 24 September 2011; the performance of Chainsaw operations on 26 September 2011 and the performance of Telehandler operations on 28 September 2011.
A letter of offer dated 25 October 2011 for [Mr AA] that outlines his "Award" as "Group ID" under the Murphy Pipe and Civil Gas QCLNG Upstream Project Works Enterprise Agreement. It is noted the Group D classification under this agreement contains the following occupations: Labourer, Trades Assistant, Formsetters Assistant and Chainperson. It is also noted more generally that the company's EBAs do not cover administrative type roles such as [Mr AA]'s nominated occupation of Program or Project Administrator. The company's EBAs are restricted to occupations such as tradespersons, plant operators, labourers and trades assistants.
A HR Spreadsheet titled "20111121_Revised Chinchilla Status" listing [Mr AA]'s "DIAC nomination" as "Program or Project Administrator" and his role as "TA". It is noted the spreadsheet lists [Mr AA]'s "Base Rate" as "D change to C and LH". It is also noted that a separate sheet within this document lists the following next to [Mr AA] — "TA" and ID".
A HR Spreadsheet titled "20111124_MPC Personnel" listing [Mr AA]'s "DIAC nomination" as "Program or Project Administrator" and his role as "TA". It is noted the spreadsheet lists [Mr AA]'s "Base Rate" as "D".
A HR Spreadsheet titled "Chinchilla 457 s Sept 2011" that lists [Mr AA]'s classification as "CW4".
A HR Spreadsheet titled "Chinchilla MPC Personnel — 05.10.11." that lists [Mr AA] as an EBA employee, classification: CW4.
A HR Spreadsheet titled "QGC — 457 Personnel 20120403 (5)" that lists [Mr AA]'s "Visa Occupation" as "Project Coordinator" and his "Position" as "Labourer". This spreadsheet also contains the following note against [Mr AA]: "Supervisor LOO sent 03/04/2012".
A HR Spreadsheet titled "457 Employees & Non 457 Employees List" which lists (under Tabs titled "150611" and "200611") [Mr AA] as an EBA employee and his "Job Description" as "Pipe Fitter".
A HR Spreadsheet titled "MPC Personnel — 21.10.11" which lists [Mr AA] as an EBA employee and his "Role" as "TA".
A HR Spreadsheet titled "MPC Visa Personnel — 24/4/12 that lists [Mr AA]'s role as "TA".
A spreadsheet provided to QGC by the sponsor on 5 December 2011 in response to a request for details of the sponsor's overseas workers. The spreadsheet lists [Mr AA]'s nominated occupation as "Program/Project Administrator" and his "role classification in the project" as "TA".
A spreadsheet provided to QGC by the sponsor on 13 December 2011 in response to a request for further details of the sponsor's overseas workers. The spreadsheet lists [Mr AA]'s nominated occupation as "Program/Project Administrator" and his "role classification in the project" as "TA". It also lists [Mr AA]'s pay classification as "EBA - Group D".
A spreadsheet provided to QGC by the sponsor on 21 December 2012 in response to a request for further details of the sponsor's overseas workers. The spreadsheet lists [Mr AA]'s nominated occupation as "Program/Project Administrator" and his "role classification in the project" as at 22 January 2012 as "Pipe Fitter". It also indicates that [Mr AA] was an EBA employee at this date.

A company spreadsheet titled "Training Matrix (Main) Rev 11" lists [Mr E]'s position as "Operator"
Records and documents that show the sponsored person possesses qualifications and tickets that relate to occupations that are outside the sponsored person's nominated occupation. The qualifications and tickets also relate primarily to occupations that are not approvable under the 457 visa program.
Induction question paper completed by [Mr E] on 2 September 2010 in which [Mr E] lists his "Job Description" as "Operator".
New Employee Induction signed by [Mr E] on 12 October 2010 listing his position as "Operator"

Based on the above, the delegate has reason to believe that [Mr E] did not work in his nominated occupation whilst employed by the sponsor on a subclass 457 visa. The delegate has reason to believe that during this period, [Mr E] was primarily employed as a "Mobile Plant Operator" - ANZSCO Code; Minor Group 721, or similar.

30. [Mr S]

On 30 November 2010, the sponsor lodged a 457 nomination application with the Department indicating that it wished to employ [Mr S] in the occupation of Contract Administrator. This nomination was approved by the Department on 3 December 2010. [Mr S]'s associated 457 visa application was also approved by the Department on 3 December 2010 and from this date; [Mr S] was required to work only in his nominated occupation. The following information, records and documents obtained during the monitoring process show that [Mr S] never worked in his nominated occupation from the time he was granted his 457 visa until the time he ceased employment with the sponsor on 27 July 2012.

Records and documents that show the sponsored person possesses qualifications and tickets that relate to occupations that are outside the sponsored person's nominated occupation. The qualifications and tickets also relate primarily to occupations that are not approvable under the 457 visa program.
A company New Employee Induction dated 19 November 2010 showing [Mr S]'s position as "Operator":
An Employee Work History dated 19 November 2010 citing [Mr S]'s employment with MPC as an "operator" since November 2010. This document does not list any previous work as a Contract Administrator.
A company spreadsheet titled "Training Matrix (Main) Rev 11 lists [Mr S] as an "Operator".
A number of company's spreadsheets which list [Mr S] working on the Sino Iron Project and being paid under the terms and conditions of an EBA. It is noted that this does not align with documentation provided by the sponsor in support of its nomination of [Mr S]. This documentation indicated that [Mr S] was to be employed by the sponsor on an individual agreement and paid a salary. It is also noted that the company's EBAs do not cover administrative type roles such as [Mr S]'s nominated occupation of Contract Administrator. The EBAs are restricted to occupations such as tradespersons, plant operators, labourers and trades assistants:
A company spreadsheet titled "MPC Labour Job Titles" lists [Mr S]'s job title as "CW3 Sino". It is noted that the occupations classified under Construction Worker Grade 3 (CW3) in the sponsor's "Sino Iron" EBA relate primarily to plant operation. The occupation of Contract Administrator is not listed under the CW3 classification: OPD2015/877
"Sino Payroll Timesheets" covering the period November 2010 to November 2011 showing the employment of [Mr S] on the Sino Iron Project under the "Sino Iron Project" EBA. The job codes outlined on these timesheets show [Mr S] being primarily involved in the following duties throughout this period: "Tailings and Return", "Return to Main — Weld", "Return to Main — Trench", Stringing/Bending", "Drain Lines & Dams", "Trenching/Blasting/Padding", "Concreting", "Backfill" and "Clear and Grade":

Based on the above, the delegate has reason to believe that [Mr S] never worked for the sponsor in his nominated occupation of Contract Administrator whilst employed on a subclass 457 visa. The delegate has reason to believe that during this period, [Mr S] was primarily employed as a "Mobile Plant Operator" - ANZSCO Code: Minor Group 721, or similar.

31. [Mr LL]

On 10 June 2011, the sponsor lodged a 457 nomination application with the Department indicating that it wished to employ [Mr LL] in the occupation of Program or Project Administrator. This nomination was approved by the Department on 25 June 2011. [Mr LL]'s associated 457 visa application was also approved by the Department on 25 June 2011 and from this date [Mr LL] was required to work only in his nominated occupation. The following information, records and documents obtained during the monitoring process show that [Mr LL] never worked in his nominated occupation from the time he was granted his 457 visa until the time he ceased employment with the sponsor on 27 July 2012.

Records and documents that show the sponsored person possesses qualifications and tickets that relate to occupations that are outside the sponsored person's nominated occupation. The qualifications and tickets also relate primarily to occupations that are not approvable under the 457 visa program.
A New Employee Induction dated 08 October 2010 listing [Mr LL]'s occupation as "Labourer".
A company spreadsheet titled "Training Matrix (Main) Rev 11 lists [Mr LL] as a "Labourer".
A number of company spreadsheets list [Mr LL] working on the Chinchilla Project under the terms and conditions of an EBA. It is noted that the company's EBAs do not cover administrative type roles such as [Mr LL]'s nominated occupation of Program or Project Administrator. The EBAs are restricted to occupations such as tradespersons, plant operators, labourers and trades assistants:
Two (2) company spreadsheets created 17 August 2012 titled "MPC Labour Tradies current 35" and "MPC Labour Job titles" listing [Mr LL]'s "Job Title" as "CW2 Sino" during the period 4 October 2010 — 27 July 2012. It is noted that the occupations classified under Construction Worker Grade 2 (CW2) in the sponsor's "Sino Iron" EBA relate primarily to labourer type roles such as Fencer, Bitumen Worker and Concrete Spreader. The occupation of Project or Program Administrator is not listed under the CW2 classification.
"Pipe and Civil Sino Iron Crew Timesheets" covering the period 3 May 2011 — 4 May 2011 which list [Mr LL] working on an "Earthworks" crew under the supervision of [Mr NN] during this period.
"Sino Payroll Timesheets" covering the period September 2010 - November 2011 showing the employment of [Mr LL] on the Sino Iron Project under the "Sino Iron Project" EBA. The job codes outlined on these timesheets shows [Mr LL] being primarily involved in the following duties throughout this period: "Tailings and Return", "Stringing/Bending", "Trenching/Blasting/Padding" and "Clear and Grade".

Based on the above, the delegate has reason to believe that [Mr LL] never worked for the sponsor in his nominated occupation of Program or Project Administrator whilst employed on a subclass 457 visa. The delegate has reason to believe that during this period, [Mr LL] was primarily employed as a "Mobile Plant Operator" - ANZSCO Code: Minor Group 721, "Labourer/Trades Assistant" — ANZSCO Code: Unit Group 8219; or similar.

32. [Mr F]

On 17 October 2011, the sponsor lodged a 457 nomination application with the Department indicating that it wished to employ [Mr F] in the occupation of Carpenter. This nomination was approved by the Department on 2 November 2011. [Mr F]'s associated 457 visa was granted on 7 November 2011 and from this date [Mr F] was required to work only in his nominated occupation. The following information, records and documents obtained during the monitoring process show that [Mr F] was not working in his nominated occupation from the time his nomination was approved until the time he obtained permanent residency on 5 June 2014:

Medical documentation dated 8 April 2014 citing numerous references to [Mr F]'s occupation as "Operator". The occupational history section within the document lists [Mr F]'s occupation as "Carpenter/Operator" from 2010 — 2014:
Records and documents that show the sponsored person possesses qualifications and tickets that relate to occupations that are outside the sponsored person's nominated occupation. The qualifications and tickets also relate primarily to occupations that are not approvable under the 457 visa program.
A company spreadsheet titled "Training Matrix (Main) Rev 11" lists [Mr F]'s occupation as "Labourer".
A file review by Ernst & Young lists the following concerns for [Mr F]: "Appears position changed from carpenter to construction worker grade 4 Aug 2012".
A draft report from Ernst & Young that looked at the sponsor's compliance with the 457 obligations notes the following for [Mr F]: "457 Position Description: Carpenter", "May 2013 Role: Excavator Operator" and "Comment: MPC do not have a position description available for current role so we are unable to compare duties of a Carpenter to an Excavator Operator. Based solely on the change to job title, this is a potential breach of immigration requirements as the role currently performed is not in line with the role approved as part of the visa application".

Based on the above, the delegate has reason to believe that [Mr F] never worked for the sponsor in his nominated occupation of Carpenter whilst employed on a subclass 457 visa. The delegate has reason to believe that during this period, [Mr F] was primarily employed as a "Mobile Plant Operator" — ANZSCO Code: Minor Group 721, a "Dogman" — ANZSCO Code: 821911, or similar.

33. [Mr G]

On 2 September 2009, the sponsor lodged a 457 nomination application with the Department indicating that it wished to employ [Mr G] in the occupation of Drainer under the ASCO occupation of Drainer (ASCO Code: 443115). This nomination was approved by the Department on 13 November 2009. [Mr G]'s associated 457 visa application was also approved by the Department on 13 November 2009 and from this date, [Mr G]'s duties needed to clearly correlate with the duties listed under the ASCO code for the nominated occupation. The following information, records and documents obtained during the monitoring process show that [Mr G] did not undertake duties that clearly correlated with the occupation of Drainer from the time he was granted his 457 visa until the time he obtained permanent residency on15 June 2012.

Records and documents that show the sponsored person possesses qualifications and tickets that relate to occupations that are outside the sponsored person's nominated occupation. The qualifications and tickets also relate primarily to occupations that are not approvable under the 457 visa program.
A company spreadsheet titled "Training Matrix (Main) Rev 11" lists [Mr G]'s position as "Operator".
Daily Timesheets covering the period 1 March 2012 to 28 March 2012 listing [Mr G]'s "Classification" as "Operator" for this period.
An email from [Ms OO] to [Ms PP] on 26 September 2010 that contains a table which lists [Mr G]'s position as "Operator — Classification CW4".
PAAF documentation dated 4 April 2013 listing [Mr G]'s occupation as Trencher Operator. Attached to this documentation is a CV for [Mr G] which lists his position with "Pipe and Civil" as "Plant Operator" from October 2008 to September 2010 and his position with "Murphy Pipe and Civil" as "Plant Operator" from September 2010 to "Current".
"Sino Payroll Timesheets" covering the period November 2010 to November 2011 showing the employment of [Mr G] on the Sino Iron Project under the terms and conditions of the sponsor's EBA. The job codes outlined on these timesheet shows [Mr G] being primarily involved in the following duties throughout this period: "Tailing and Returns", "Return to Main — Weld", "Drain Lines and Dams", "Coating Internal" and "Trenching/Blasting/Padding.

Based on the above, the delegate has reason to believe that [Mr G] never worked in the occupation of Drainer. The delegate has reason to believe that during his period of employment with the sponsor on a 457 visa, [Mr G] undertook duties primarily associated with those of a Plant Operator.

34. [Mr MM]

On 9 February 2011, the sponsor lodged a 457 nomination application with the Department indicating that it wished to employ [Mr MM] in the occupation of Drainer. This nomination was approved by the Department on 4 March 2011 and from this date [Mr MM] was required to work only in his nominated occupation. On 11 April 2013, the sponsor lodged a further 457 nomination application to continue to employ [Mr MM]. This nomination stated that the sponsor wished to employ [Mr MM] in the occupation of Program or Project Administrator. This nomination was approved by the Department on 15 April 2013 and from this date; [Mr MM] was required to work only in the occupation of Program or Project Administrator. The following information, records and documents obtained during the monitoring process show that [Mr MM] did not work in his nominated occupation of Drainer from the time this nomination was approved until the time he was nominated to work for the sponsor as a Program or Project Administrator.

A company spreadsheet titled "Training Matrix (Main) Rev 11" lists [Mr MM]'s position as "Plant Operator".
A number of company spreadsheets listing [Mr MM]'s "DIAC Nomination" as a "Drainer" and his "Role" as a "Leading Hand Backhoe" or similar during his period of employment on a 457 visa.
A company spreadsheet titled "Chinchilla 457's Sept 2011" that cites [Mr MM]'s occupation as "Drainer" who is employed under an EBA, with classification "CW4" at 1 September 2011 at the Chinchilla Project. It is noted that the "CW4" classification does not include the occupation of drainer in the sponsor's "Civil Construction & Engineering Projects Greenfields Agreement". The CW4 classification relates mostly to Plant Operator roles. The occupation of Drainer sits under the CW3 classification in this and other sponsor EBAs.
A company spreadsheet titled "Chinchilla MPC Personnel" that cites [Mr MM]'s occupation as "Drainer" who is employed under EBA with classification "CW4" as 5 October 2011.
Two (2) company spreadsheets created 17 August 2012 titled "MPC Labour Tradies current 35" and "MPC Labour Job titles" listing [Mr MM]'s "Job Title" as "CW4 Chinchilla" during the period 28 March 2011 — 30 October 2011.
A company spreadsheet titled "QGC — 457 Personnel 20120403 (5)" that cites [Mr MM]'s visa occupation as "Drainer and his position as "Plant Operator" at 22 March 2012 and 23 April 2012.
General Induction Question Paper dated 28 March 2011 listing [Mr MM]'s Job Description as "Plant Operator":
Records and documents that show the sponsored person possesses qualifications and tickets that relate to occupations that are outside the sponsored person's nominated occupation. The qualifications and tickets also relate primarily to occupations that are not approvable under the 457 visa program.
A letter of offer dated 25 October 2011 for [Mr MM] which outlines employment with the sponsor under Group B of the "Murphy Pipe and Civil Gas QCLNG Upstream Project Works Enterprise Agreement". It is noted that Group B occupations in this agreement relate mainly to Plant Operation, Dogging, Rigging and Scaffolding. The occupation of Drainer is not classified under this group.
A number of company spreadsheets titled "MPC EXPAT LIST" listing [Mr MM]'s "ANZSCO" as "Drainer" and his "Position" as "Supervisor".
A letter from QGC to MPC dated 19 March 2013 indicating that there appeared to be an Immigration issue with the employment of [Mr MM], Specifically, QGC identified that [Mr MM] had been nominated as a Drainer but was working on the QGC project as a Supervisor.
A letter from MPC to QGC dated 21 March 2013 indicating that "[Mr MM] — Contractor shall make application to DIAC to amend his status from Drainer to Supervisor. Over the course of the last 11 months [Mr MM] has proved to be a valuable asset to Contractor with an exceptional performance to date in the field, along with his excellent attitude and approach to safety".

Based on the above, the delegate has reason to believe that [Mr MM] never worked for the sponsor in his nominated occupation of Drainer whilst employed on a subclass 457 visa. The delegate has reason to believe that during this period, [Mr MM] was primarily employed as a "Mobile Plant Operator" ANZSCO Code: Minor Group 721 and then in a supervisory position related to the company's project works.

35. [Mr T]

On 26 August 2011, the sponsor lodged a 457 nomination application with the Department indicating that it wished to employ [Mr T] in the occupation of Program or Project Administrator. This nomination was approved by the Department on 27 September 2011. [Mr T]'s associated 457 visa application was also approved by the Department on 27 September 2011 and from this date [Mr T] was required to work only in his nominated occupation. The following information, records and documents obtained during the monitoring process show that [Mr T] was not working in his nominated occupation from the time he was granted his 457 visa until the time he was granted permanent residency on 25 February 2014.

Records and documents that show the sponsored person possesses qualifications and tickets that relate to occupations that are outside the sponsored person's nominated occupation. The qualifications and tickets also relate primarily to occupations that are not approvable under the 457 visa program.
A company spreadsheet titled "Training Matrix (Main) Rev 11" lists [Mr T]'s position as a "Labourer" with an induction date of 12 October 2010.
A number of company spreadsheets that cite [Mr T]'s occupation as "Program or Project Administrator" and employed under an EBA during his period of employment on a 457 visa. It is noted that the company's EBAs do not cover administrative type roles such as [Mr T]'s nominated occupation of Program or Project Administrator. The EBA's are restricted to occupations such as tradespersons, plant operators, labourers and trades assistants.
A company spreadsheet titled "Payrates" listing 457 visa holders listing [Mr T] as being employed on the Sino Iron Project under the classification of "SI CW3". It is noted that the occupations classified under Construction Worker Grade 3 (CW3) in the sponsor's "Sino Iron" EBA relate primarily to plant operation. The occupation of Program or Project Administrator is not listed under the CW3 classification.
Sino Iron timesheets covering the period May to October 2011 showing the employment of [Mr T] on the Sino Iron Project under the "Sino Iron Project EBA". The job codes outlined on this spreadsheet shows [Mr T] being primarily involved in "Tailing and Return", "Coating External", "Drain Lines and Dams", and "HDPE Lining".

It is noted that the sponsor lodged a notification with the Department on 1 May 2013 advisilg that [Mr T] had a new position of Site Supervisor and that this role still aligned with his nominated occupation of Program or Project Administrator. PAAF documentation dated 23 September 2013 and 13 January 2014 obtained during monitoring indicates [Mr T] took up a position as "Supervisor" with the sponsor around 23 September 2013.

Contrary to the claim made by the sponsor in the notification dated 1 May 2013, the delegate does not consider that the position of Site Supervisor aligned with [Mr T]'s nominated occupation of Program or Project Administrator.

The delegate has reason to believe that [Mr T] never worked for the sponsor in his nominated occupation of Program or Project Administrator whilst employed on a subclass 457 visa. The delegate has reason to believe that during this period, [Mr T] was primarily employed as a "Mobile Plant Operator" - Australian and New Zealand Standard Classification of Occupations (ANZSCO) Code: Minor Group 721, or similar.

36. [Ms H]

On 11 November 2008, the sponsor lodged a 457 nomination application with the Department indicating that it wished to employ [Ms H] in the occupation of Project Administrator under the ASCO Code of Project or Program Administrator (ASCO Code 329211). This nomination was approved by the Department on 13 November 2008. [Ms H]'s associated 457 visa application was also approved by the Department on 13 November 2008. From 14 September 2009 (the date the sponsorship obligations framework commenced), [Ms H]'s duties were required to clearly correlate with the position description provided at the time of nomination approval.

It is noted the following duties were outlined in [Ms H]'s nomination:

Responsibilities: Generally manage all administrative tasks; Co-ordinate resources and activities including manpower and equipment
Main duties: Respond to enquiries; prepare reports detailing expected timelines, budgets and the like; oversee equipment allocation, replacement and repairs; maintain records of and report on contract variations; resolution of complaints or on site problems; liaise with clients, contractors, employees, management to ensure coordination of activities; review administrative procedures to ensure maximum efficiency; ensure management is kept abreast of site requirements and any potential difficulties; maintain personnel records including hours worked, leave entitlements and training requirements.

In response to a request for information from the Department, the sponsor provided an "Offer of Employment — Trainee OHSE Advisor" dated 9 February 2010 offering a change of employment from Inventory Controller to Trainee OHSE advisor and specifically outlined this position as a traineeship.

It is noted that [Ms H] signed this offer on 9 February 2010. It is also noted that according to the sponsor's payroll records, [Ms H]'s gross weekly salary also reduced from $1346.15 to $964.54 from 7 March 2010.

Based on the above, the delegate has reason to believe that from around 7 March 2010 [Ms H] undertook duties that were clearly not aligned with the description of her duties provided at nomination and were clearly not at the skill level associated with the occupation of Project or Program Administrator. The delegate is satisfied this continued until such time that [Ms H] ceased employment which the sponsor has indicated occurred sometime in 2010.

37. [Mr U]

On 19 February 2008, the sponsor lodged a 457 nomination application with the Department indicating that it wished to employ [Mr U] in the occupation of Onsite Foreman under the ASCO occupation of Project or Program Administrator. This nomination was approved by the Department on 4 April 2008. [Mr U]'s associated 457 visa application was also approved by the Department on 30 June 2008. From 14 September 2009 (the date the sponsorship obligations framework commenced), [Mr U]'s duties were required to clearly correlate with the position description provided at the time of nomination approval.

On 4 June 2012, the sponsor lodged another 457 nomination application to continue to employ [Mr U] in the ANZSCO occupation of Program or Project Administrator. This nomination was approved on 8 June 2012. [Mr U]'s associated 457 visa application was also approved by the Department on 8 June 2012 and from this date; [Mr U] was required to work only in his nominated occupation of Program or Project Administrator.

The following information, records and documents obtained during the monitoring process show that [Mr U] did not undertake duties that clearly correlated with the description of his duties (provided at nomination stage) whilst employed on his first 457 visa. They also show that [Mr U] did not work in his nominated occupation from the time he was granted his second 457 visa until the time he obtained permanent residency on 5 February 2013.

Records and documents that show the sponsored person possesses qualifications and tickets that relate to occupations that are outside the sponsored person's nominated occupation. The qualifications and tickets also relate primarily to occupations that are not approvable under the 457 visa program.
A CBUS Superannuation for completed by [Mr U] on 28 August 2008 in which he lists his occupation as Plant Operator.
A company spreadsheet titled "Training Matrix (Main) Rev 11" lists [Mr U]'s position as "Operator".
A number of company spreadsheets covering the period from around March 2010 to around December 2011 that cite [Mr U]'s occupation as "Project Administrator" and being employed under an EBA during this period. It is noted that the company's EBAs do not cover administrative type roles such as [Mr U]'s nominated occupations of Program or Project Administrator. The EBAs are restricted to occupations such as tradespersons, plant operators, labourers and trades assistants.
Sino Iron Project timesheets covering the periods September 2010 to December 2010 and April to November 2011 showing the employment of [Mr U] on the Sino Iron Project under the "Sino Iron Project EBA".
An email from a [Ms OO] to a [Ms PP] dated 11 October 2010 containing a list of new starters. [Mr U]'s occupation classification is listed as CW3. It is noted that the occupations classified under Construction Worker Grade 3 (CW3) in the sponsor's "Sino Iron" EBA relate primarily to plant operation. The occupation of Program or Project Administrator is not listed under the CW3 classification.
Daily Timesheets covering the period 1 May 2012 to 2 August 2012 listing [Mr U]'s "Classification" as: "Labourer", "Operator" or "Truck Driver" for this period.
Daily Timesheets covering the periods 3 August 2012 to 15 December 2012 and 13 March 2013 to 25 May 2013 that list [Mr U]'s "Classification" as "Plant Controller" during these periods. It is noted however that [Mr U] was listed as a Truck Driver on timesheets dated 8 December 2012, 18 March 2013 and 12 April 2013.
A "Letter of Offer" dated 10 February 2012 to [Mr U] to commence on 1 March 2012 in accordance with the Murphy Pipe and Civil Caval Ridge Pipeline AWU Greenfields Agreement 2011. [Mr U]'s classification is listed as "Group D + Leading Hand Allowance".
Payslips for the period between 11 April 2011 and 8 May 2011 indicating [Mr U]
was paid in accordance with Sino Iron Construction Worker Grade 3 classification.
An email from [Mr QQ] to [two other people] dated 30 April 2012 stating [Mr U] was being paid under an EBA but has since transferred to salary payments.

Based on the above, the delegate has reason to believe that [Mr U] never worked in the position of Onsite Foreman and therefore never undertook duties that clearly correlated with his list of approved duties during his employment with the sponsor on his first 457 visa. The delegate is also satisfied that [Mr U] neverworked for the sponsor in his nominated occupation of Program or Project Administrator whilst employed on his second subclass 457 visa. The delegate has reason to believe that during both of these periods, [Mr U] was primarily employed as a "Mobile Plant Operator" - ANZSCO Code: Minor Group 721, or similar.

In reaching this position the delegate has considered a number of company documents and records that suggest that [Mr U] moved into the position of Materials Coordinator around May 2012 and moved from employment under an EBA to salaried employment at the same time. It is also noted that this occupation appears to have formed the basis for the sponsor's renomination of [Mr U] in June 2012.

While the Department approved this position for [Mr U] under the occupation of "Program or Project Administrator", based on the information outlined above, the delegate has reason to believe that [Mr U] never actually worked in the position of Materials Coordinator.

38. [Mr I]

On 17 September 2010, the sponsor lodged a 457 nomination application with the Department indicating that it wished to employ [Mr I] in the occupation of Program or Project Administrator. This nomination was approved by the Department on 7 October 2010 and from this date [Mr I] was required to work only in his nominated occupation. The following information, records and documents obtained during the monitoring process show that [Mr I] was not working in his nominated occupation from the time he was granted his 457 visa until the time he ceased employment with the sponsor 13 May 2011

A company spreadsheet titled "Training Matrix (Main) Rev 11" lists [Mr I]'s position as "Operator".
New Employee Induction signed by [Mr I] on 23 September 2010 listing his position as "Operator".
General Induction Question Paper completed 23 September 2010 listing [Mr I]'s position as "Operator".
Records and documents that show the sponsored person possesses qualifications and tickets that relate to occupations that are outside the sponsored person's nominated occupation. The qualifications and tickets also relate primarily to occupations that are not approvable under the 457 visa program.
An email from [Ms OO] to [Ms PP] on 26 September 2010. The email contains a table which lists [Mr I]'s positions as "Operator — Classification CW4". It is noted that the occupations classified under Construction Worker Grade 4 (CW4) in the sponsor's "Sino Iron" EBA relate primarily to plant operation, rigging and scaffolding.
Sino Payroll Timesheets covering the period September 2010 to March 2011 showing the employment of [Mr I] on the Sino Iron Project under the sponsor's Sino Iron Project EBA. It is noted that the company's EBAs do not cover administrative type roles such as [Mr I]'s nominated occupation of Program or Project Administrator. The EBAs are restricted to occupations such as tradespersons, plant operators, labourers and trades assistants.

Based on the above, the delegate has reason to believe that [Mr I] never worked for the sponsor in his nominated occupation of Program or Project Administrator whilst employed on a subclass 457 visa. The delegate has reason to believe that during this period, [Mr I] was primarily employed as a "Mobile Plant Operator" - ANZSCO Code: Minor Group 721, or similar.

[2017] AATA 960

3 March 2017

Key Legal Topics

Areas of Law

Administrative Law

Immigration

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies