Muskan Group Pty Ltd (Migration)

[2019] AATA 6187

Muskan Group Pty Ltd (Migration) [2019] AATA 6187 (21 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Muskan Group Pty Ltd

CASE NUMBER:  1616584

DIBP REFERENCE(S):  OPF2015/2262, OPF2015/3365

MEMBER:K. Chapman

DATE:21 October 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal varies the decision under review by increasing the period of the sponsorship bar under s.140M(2) from 9 months to 3 years and 6 months from the date of the Department’s decision on 20 September 2016.

Statement made on 21 October 2019 at 2:21pm

CATCHWORDS

MIGRATION – cancellation – sponsorship – failure to comply with sponsorship obligations – site visit – underpayment of staff – loan of money – failure to keep loan documents – pay records do not match deposits – lack of independently verifiable documents – credibility issues – dishonest course of conduct – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 140M, 359(2), 359A, 359C, 360(3), 363A, 375A
Migration Regulations 1994 (Cth), r 2.89

CASES

Hasran v MIAC [2010] FCAFC 40

Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617

Manna v Minister for Immigration and Citizenship [2012] FMCA 28

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant, Muskan Group Pty Ltd, was approved as a standard business sponsor on 16 November 2012 for a period of 3 years. Mr Suresh Sapkota was the director of the applicant at all relevant times. On 20 September 2016, the delegate decided to bar the applicant for 9 months from making future applications for approval as a standard business sponsor under s.140M of the Act. The delegate determined that the applicant had failed to comply with sponsorship obligations and also provided false or misleading information to the Department.

3. On 7 October 2016, the applicant applied to the Tribunal for review of the decision to take action under s.140M, providing a copy of that decision with their application. On 10 October 2018, the Tribunal Registry wrote to the applicant’s appointed registered migration agent, Ms Suzanne Weel of Ausway Migration (‘the representative’), to enquire whether the applicant wished to proceed with the review given that the sponsorship bar had elapsed and a possible option in conducting the review is for the length of the sponsorship bar to be extended. On 24 October 2018, the representative wrote to the Tribunal advising that the applicant instructed they wished to continue with the review application.

4. On 28 August 2019, the Tribunal wrote to the applicant (through the representative who is the authorised recipient for correspondence), pursuant to s.359(2) of the Act, inviting them to provide information concerning whether they had failed to satisfy any sponsorship obligation during any period that they held the status of a standard business sponsor, had ever provided false or misleading information to the Department and to provide information concerning their current business activities. On 11 September 2019, the due date for response to the invitation, the representative wrote to the Tribunal to advise that she did not hold instructions to continue in the review. The representative included a copy of correspondence between her and Mr Suresh Sapkota (director of the applicant company) in which she informed him of the Tribunal’s invitation and sought his instructions. The Tribunal notes that the representative has not been withdrawn from the review by the applicant and accordingly remains the authorised recipient for correspondence. Further, the Tribunal notes that no substantive response to the invitation of 28 August 2019 has yet been received.

5. On 23 September 2019, the Tribunal wrote to the applicant (through the representative who formally remains on the record as the recipient for correspondence), pursuant to s.359A of the Act, inviting them to comment on or respond to the following information:

   -The Departmental file OFP2015/2262 at folios 3-5 contains information regarding internal Department processes and procedures for the conduct of site visits. The Tribunal notes that this material is subject to a certificate pursuant to s.375A of the Act dated 18 October 2016 (see enclosed certificate, you are invited to comment upon its validity if you wish to do so). The ‘gist’ of the material contained at folios 3-5 is that a site visit conducted on 29 June 2015 was part of compliance monitoring instigated due to an allegation that Muskan Group Pty Ltd was taking payment and colluding with persons to gain permanent residence. Prior allegations of employees not receiving correct entitlements had also been made. The material also outlined the processes and procedures for the conduct of that site visit.

6. The s.359A invitation outlined that the above information is relevant to the review because it tends to suggest that the applicant failed to satisfy sponsorship obligations and provided false or misleading information to the Department. It further noted that if the Tribunal relies upon this information in making its decision, it may affirm the decision to bar the applicant for 9 months from making future applications for approval as a standard business sponsor or vary the decision to increase the period of the bar. The s.359A invitation provided a due date for response of 8 October 2019. No response to that invitation has yet been received by the Tribunal.

7. Where an applicant is invited to provide further information in accordance with subsection 359(2) of the Act, and fails to do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information according to subsection 359C(1) of the Act. Additionally, where an applicant is invited to provide comments on or response to information in accordance with s.359A of the Act, and fails to do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information according to subsection 359C(2) of the Act. In these circumstances, the applicant is not entitled to appear before the Tribunal in accordance with subsection 360(3) of the Act. Of note, the effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit the applicant to appear before it as outlined in the Full Federal Court authority in the matter of Hasran v MIAC [2010] FCAFC 40.

8. The Tribunal is satisfied that the applicant failed to respond to both the invitation pursuant to s.359(2) of the Act dated 28 August 2019 (by failing to respond substantively) and that pursuant to s.359A dated 23 September 2019 (by failing to respond at all). The Tribunal has carefully considered whether to afford additional time to the applicant to provide a response to the invitations, or to provide further material in support of their application for review. In doing so, it has paid careful regard to the guidance in the decisions of Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts held that the Tribunal is not required to indefinitely defer its decision-making processes.

9. The Tribunal has taken into account that the applicant has been aware since around 20 September 2016 of the reasons for the Department’s decision to take action under s.140M and also that the implications of not responding to the information requested in the invitations from the Tribunal were set out in the respective correspondence. Additionally, the Tribunal is satisfied that the representative duly received the aforementioned invitations as the authorised recipient of the applicant and that the former placed the latter on notice of at least the initial invitation.

10. In these circumstances, the Tribunal considers that the applicant has had sufficient time in which to address the central issues arising in the application for review and to respond to the s.359(2) and s.359A invitations. On balance, the Tribunal considers it appropriate to make its decision on the review without taking any further action to enable the applicant to provide further information or to obtain their views on the s.359A information. Accordingly, the Tribunal has made its decision on this review application having due regard to the documentary material before it.

11. For the following reasons, the Tribunal has decided to vary the decision under review and substitute a decision to increase the period of the sponsorship bar under s.140M(2) from 9 months to 3 years and 6 months from the date of the Department’s decision on 20 September 2016.

    VALIDITY OF THE S.375A NON-DISCLOSURE CERTIFICATE

12. The Tribunal notes that no submissions were made by the applicant challenging the validity of the s.375A non-disclosure certificate. The Tribunal is satisfied that the s.375A certificate dated 18 October 2016 is valid as public interest grounds are properly outlined therein. The certificate pertains to information in the Department file indicating that a site visit conducted on 29 June 2015 was part of compliance monitoring instigated due to an allegation that the applicant was taking payment and colluding with persons to gain permanent residence. Prior allegations of employees not receiving correct entitlements had also been made. The material also outlined the processes and procedures for the conduct of that site visit. Given the validity of the s.375A certificate, the Tribunal has not released the information in full to the applicant, however it provided ‘the gist’ of the information in the s.359A invitation of 23 September 2019. On balance, the Tribunal is satisfied that the applicant was provided with a fair opportunity to comment upon the aforementioned material but chose not to do so.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

14. 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.

15. 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.

16. Where a prescribed circumstance has been found to exist, the regulations prescribe criteria that must be taken into account when determining what action, if any, to take: r.2.89 – r.2.94B. These criteria, as they relevantly apply to the circumstances of this case, are set out in the attachment to this decision.

    Does a circumstance for the taking of an action exist?

    Failure to satisfy a sponsorship obligation: r.2.89

17. The Minister may take one or more of the actions in s.140M if satisfied the sponsor has failed to satisfy a sponsorship obligation referred to in Division 2.19 of the Regulations: r.2.89(2). In the present matter, the delegate determined that the applicant failed to satisfy the sponsorship obligations in r.2.79, 2.82 and 2.83. For completeness, the Tribunal notes that whilst referred to in the decision record, the delegate did not determine that the sponsorship obligation in r.2.87 was breached.

18. On 29 June 2015, the Department conducted a site visit of the applicant’s business premises at Broadbeach, Queensland. That visit was initiated due to an allegation that the applicant was taking payment and colluding with persons to gain permanent residence, in combination with prior allegations concerning employees not receiving correct entitlements (as outlined in the s.359A invitation of 23 September 2019). A Commencement of Monitoring Letter (COML) was issued during that visit requesting the pay records, for the period 1 March 2015 to 30 May 2015, of five Subclass 457 visa holders employed by the applicant. The Department received various responses to the COML on 13 July 2015, 25 August 2015 and 27 August 2015 (obtained from telephone interviews with the five Subclass 457 visa holders). At that time the applicant was represented by Mr Mofid Bebawy.

19. As is relevant to the present review, the obligation in r.2.79 requires the applicant to ensure that the terms and conditions of employment provided to an employed Subclass 457 visa holder are no less favourable than the terms and conditions of employment that the person provides, or would provide, to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.

20. On 18 December 2015, the Department sent the applicant the first Notice of Intention to Take Action (NOITTA) contending that an employed Subclass 457 visa holder, Ms Manpreet Kaur Dheldy, was being paid $54,000 which was below the market salary rate of $55,000 per annum (as indicated in market research submitted by the applicant to the Department in response to their request subsequent to the COML). On 25 August 2015, the applicant acknowledged that Ms Dheldy should have received an annual salary of $55,000 from 2 June 2014 and made payment to her of $1,000 to correct the error. Following careful consideration of the evidence, the Tribunal finds that the applicant breached its obligation pursuant to r.2.79 given the aforementioned underpayment of salary to Ms Dheldy.

21. The obligation in r.2.82 requires the applicant to keep certain records. As is relevant to the present review, the obligations in r.2.82(3)(e)(i) and r.2.82(3)(e)(ii) respectively require the applicant to keep records of the money paid to an employed Subclass 457 visa holder and of the money applied or dealt with in any way on the visa holder’s behalf or as the visa holder directed. Of note, r.2.82(2)(c)(ii) provides that required payment records must be kept in a manner that is capable of being verified by an independent person.

22. The applicant provided various pay records to the Department for the five Subclass 457 visa holders on 13 July 2015 in response to the COML of 29 June 2015. Thereafter, the first NOITTA was issued on 18 December 2015 which contended that the applicant failed to provide the Department with independently verifiable evidence for the pay date of 8 March 2015 for Mr Santosh Prasad Pathak, a pay record for the pay date 24 May 2015 regarding Mr Pathak and independently verifiable evidence of wages paid to Ms Simran Kaur Toor for the period 1 March 2015 to 25 March 2015.

23. On 18 February 2016, the Department sent a second NOITTA (dated 17 February 2016) to the applicant contending that they failed to keep records of Ms Toor’s wages that are capable of being independently verified for the pay dates of 2, 9 and 16 March 2016, given submitted bank statements provided in response to the first NOITTA did not show deposits on these dates. Further, the second NOITTA contended that the applicant failed to keep independently verifiable records of loan arrangements between Mr Suresh Sapkota (director of the applicant company) and employees Mr Sukhchain Singh and Ms Toor respectively (being money applied or dealt with in any way on the visa holder’s behalf or as the visa holder directed). Such loan arrangements came to the attention of the Department by way of information submitted in response to the first NOITTA (including bank records) and telephone interviews with the relevant employees. Mr Suresh Sapkota contended that for personal reasons he had lent his employee Mr Singh the sum of $5,150 to be repaid in five instalments. The Department contended that this information was inconsistent with the account provided by Mr Singh in his telephone interview, where he indicated he did not know why certain transfers were made from his own bank account. Additionally, Ms Toor advised the Department in interview that she had borrowed the sum of $7,000 in cash from Mr Sapkota which was repaid in six instalments of $1,057 by sending funds to Mr Sapkota’s wife. The Department contended that the aforementioned information from Ms Toor was inconsistent with earlier information that she provided at interview indicating she had never been asked to pay money to, or borrowed money from, the employer.

24. In response to the second NOITTA, the applicant submitted Statutory Declarations from Mr Sapkota of 22 February 2016 and 1 March 2016, Mr Singh of 22 February 2016 and Ms Toor of 23 February 2016. In summary, the declarants maintained that the loan amounts were genuine and not payments made to Mr Sapkota for any other purpose such as visa sponsorship. Mr Sapkota maintained that Mr Singh needed money and so he loaned him $5,150 which was paid back in five instalments with no interest and therefore a loan agreement was not required. Additionally, Mr Sapkota maintained that he lent Ms Toor $7,000 which was repaid by four bank transfers of $1057 and a final payment in cash of $2,722 at the applicant’s restaurant on 15 May 2015. Mr Sapkota also claimed that language barriers influenced his employees’ ability to respond to questions during their respective telephone interviews. Mr Singh and Ms Toor also provided Statutory Declarations attempting to corroborate Mr Sapkota’s account. Further, Mr Sapkota contended in his Declaration of 1 March 2016 that he paid Ms Toor in cash between 1 and 25 March 2015 as she had not supplied her bank details, she was provided with payslips and the business accounting software recorded these transactions (no such records from the accounting software (‘Zero’) were submitted).

25. The Department concluded that the applicant breached the obligation in r.2.82(3)(e)(i) to keep records of the money paid to Ms Toor between 1 and 25 March 2015 given the lack of corroborating documentary evidence to support Mr Sapkota’s assertion that the applicant’s accounting software recorded these transactions. Having regard to the evidence, the Tribunal agrees that the applicant breached the obligation in r.2.82(3)(e)(i) to keep records of the money paid to Ms Toor in the aforementioned period. This is because of the lack of independently verifiable documentary evidence to corroborate that Ms Toor was paid her wages in cash between 1 and 25 March 2015 as claimed by Mr Sapkota. The Tribunal considers it reasonable for Mr Sapkota to have provided records from the applicant’s accounting software which is managed by the internal accountant if in fact they existed. That he did not do so casts doubt upon Mr Sapkota’s credibility. Therefore, the Tribunal finds that the applicant breached the obligation in r.2.82(3)(e)(i) to keep records of the money paid to Ms Toor between 1 and 25 March 2015.

26. The Department concluded that the applicant breached the obligation in r.2.82(3)(e)(ii) to keep records of loan arrangements between Mr Sapkota of the applicant company and Mr Singh and Ms Toor respectively (money applied or dealt with in any way on the visa holder’s behalf or as the visa holder directed) due to the lack of independently verifiable records. Having regard to the evidence, the Tribunal agrees that the applicant breached the obligation in r.2.82(3)(e)(ii) to keep records of the respective loans. This is because of the lack of independently verifiable documentary evidence to corroborate these arrangements. Further, the Tribunal places high evidentiary value on the records of the Department that the initial spontaneous oral evidence of Mr Singh and Ms Toor in their telephone interviews was inconsistent with there being genuine loan arrangements in existence. The Tribunal prefers these Departmental records to the ex-post facto attempts of Mr Sapkota, Mr Singh and Ms Toor to legitimise the loan arrangements given their official source, content and lack of any reasonable basis to impugn the conduct of the Officers conducting the interviews. Further, the Tribunal does not accept that either Mr Singh or Ms Toor misunderstood the questions posed in the interview given the straight forward nature of the subject matter and their lack of request for an interpreter at the time of interview. Additionally, the methods of the loan repayments, which were by way of bank transfer with opaque identifiers utilised and a final cash lump sum by Ms Toor, do not constitute proper records in the view of the Tribunal. The aforementioned matters cast doubt upon the credibility of Mr Sapkota, Mr Singh and Ms Toor. Therefore, the Tribunal finds that the applicant breached the obligation in r.2.82(3)(e)(ii) to keep records of the loan arrangements between Mr Sapkota of the applicant company and Mr Singh and Ms Toor respectively (money applied or dealt with in any way on the visa holder’s behalf or as the visa holder directed).

1. As is relevant to the present review, the obligation in r.2.83 requires the applicant to provide records to the Minister, if requested to do so by properly authorised written notice, in the manner and within the timeframe requested. The COML dated 29 June 2015, issued during the Department’s site visit of the applicant’s premises, requested inter alia the records of payments made to Ms Simran Kaur Toor and Mr Santosh Pathak for the period 1 March 2015 to 30 May 2015. Such records were requested to be provided within 14 calendar days of receipt of the COML. The Tribunal is satisfied that the COML is a properly authorised written notice meeting the requirements of r.2.83(3).

2. In response to the COML, the applicant failed to provide the bank records for Ms Toor for the period 1 to 25 March 2015. Further, in response to the COML the applicant provided bank records for Mr Pathak for 2014 but not the year 2015 as requested. Additionally, a pay record for the pay date of 24 May 2015 in respect of Mr Pathak was not provided. In response to the first NOITTA issued on 18 December 2015, the aforementioned requested bank records in respect of Ms Toor were provided to the Department, as were the bank records for Mr Pathak for the year 2015. The pay record for the pay date of 24 May 2015 in respect of Mr Pathak was never provided.

3. The Department concluded that the applicant breached the obligation in r.2.83 to provide records to the Minister, as requested by properly authorised written notice in the manner and within the timeframe requested, on the basis that the relevant bank records for Ms Toor and Mr Pathak were submitted outside of the timeframe specified in the COML and a pay record for the pay date of 24 May 2015 in respect of Mr Pathak was never provided.

4. Having regard to the evidence, the Tribunal agrees that the applicant breached the obligation in r.2.83 to provide records to the Minister, as requested by properly authorised written notice in the manner and within the timeframe requested. This is because the relevant bank records of Ms Toor and Mr Pathak were clearly provided to the Department well after the specified timeframe stipulated in the duly authorised COML had elapsed. Further, it is apparent that the applicant did not provide a pay record for the pay date of 24 May 2015 in respect of Mr Pathak as requested. Therefore, the Tribunal finds that the applicant breached the obligation in r.2.83 to provide records to the Minister, as requested by properly authorised written notice in the manner and within the timeframe requested.

5. 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

6. 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).

7. The Department contended in the first NOITTA that the applicant provided false or misleading information in response to the COML by way of providing pay records for Ms Toor and Mr Pathak that did not match the respective bank account records. Regarding Ms Toor, the Department contended that submitted pay records indicated she was routinely paid a net amount of $855.69, yet deposits into her bank account from the applicant ranged from $855.00 to $855.69 during the period 1 March 2015 to 30 May 2015. With respect to Mr Pathak, the Department contended that submitted pay records indicated he was routinely paid an amount of $842.46, yet deposits into his bank account from the applicant ranged from $822.00 to $848.00 during the period 1 March 2015 to 30 May 2015. For completeness, the Tribunal notes that the first NOITTA also raised matters pertaining to allegations concerning breach of r.2.87 (the obligation not to recover certain costs), however the Department did not make adverse findings on these matters.

8. Following careful consideration of the evidence, the Tribunal is satisfied that the submitted pay records for both Ms Toor and Mr Pathak do not match the actual amounts deposited into their respective bank accounts by the applicant during the period 1 March 2015 to 30 May 2015. When considered in combination with the credibility concerns previously outlined with respect to Mr Sapkota (the director of the applicant company), the Tribunal finds that false and misleading information was provided to the Department by the applicant in the manner contended.

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

   Action to be taken

10. 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.

11. In considering what action to take, the Tribunal has had regard to the prescribed criteria, as extracted in the attachment to this decision.

    Failure to satisfy a sponsorship obligation

12. The criteria to be considered where there is failure to comply with sponsorship obligation are set out in r.2.89(3) and have been taken into account as follows.

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

13. The Tribunal notes that the applicant did engage with the Department during the monitoring process. However, as outlined above, the applicant provided certain material outside of stipulated time frames and its director, Mr Sapkota, displayed a lack of credibility in relation to his contentions concerning the failure to keep required pay and loan records. On balance, the Tribunal finds that Mr Sapkota, on behalf of the applicant, engaged in a deceptive course of conduct in his responses to the monitoring process. The aforementioned matters weigh in favour of action being taken under s.140M of the Act.

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

14. The Tribunal is satisfied that the applicant breached multiple sponsorship obligations as detailed above. Such matters weigh in favour of action being taken under s.140M of the Act.

    (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

15. The Tribunal considers the actions of the applicant to underpay Ms Manpreet Kaur Dheldy the sum of $1,000 with respect to its obligations in r.2.79 to be of moderate severity given the applicant was well aware of the market salary for her role as it submitted evidence to the Department on that topic.  

16. The Tribunal considers the actions of the applicant to provide the relevant bank records of Ms Toor and Mr Pathak well after the specified timeframe stipulated in the duly authorised COML, and not provide a pay record for the pay date of 24 May 2015 in respect of Mr Pathak as requested, in relation to the breach of r.2.83 to be of moderate severity. This is because the Tribunal forms the view that the applicant, through Mr Sapkota, was attempting to obfuscate the relevant employment particulars when considered in combination with his outlined lack of credibility. 

17. The Tribunal considers the actions of the applicant regarding the breaches of r.2.82 to be serious. This is because the applicant, through Mr Sapkota, has embarked upon a dishonest course of conduct in the view of the Tribunal as displayed by his lack of credibility in relation to these matters. The Tribunal does not accept the bona fides of the submitted records pertaining to the purported period of cash payment of wages to Ms Toor, nor of the purported loans made to her and Mr Singh. Given the significant inconsistency in the submitted evidence from these three individuals, as previously outlined, the Tribunal is satisfied that the applicant deliberately engaged in a breach of these obligations over a sustained period of time.

18. On balance, the Tribunal finds that the nature and severity of the circumstances relating to the failure to satisfy the sponsorship obligations, including the period of time over which the failures have occurred, weigh in favour of action being taken under s.140M of the Act.

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

19. The applicant was approved as a standard business sponsor on 16 November 2012 for a period of 3 years. The aforementioned matter weighs against action being taken under s.140M of the Act given the passage of time that has elapsed since the applicant was a standard business sponsor. However, it does so only slightly given the poor conduct of the applicant which has been outlined.

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

20. The Tribunal is of the view that the underpayment of $1,000 to Ms Dheldy had a direct adverse impact upon her for a period of time, although this impact was limited by the subsequent repayment of the funds to her. The Tribunal also considers that the breaches of r.2.82 and 2.83 have had an indirect adverse impact upon Ms Toor and Mr Singh as their own conduct has been called into question by the applicant’s actions. The aforementioned matters weigh in favour of action being taken under s.140M of the Act.

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

21. The Tribunal considers the applicant’s conduct in underpaying Ms Dheldy to be reckless given it submitted information regarding the market salary for her but failed to pay it appropriately until the monitoring process commenced. The Tribunal considers the applicant’s conduct pertaining to the breaches of r.2.82 and r.2.83 to be deliberate given the credibility concerns outlined with regard to Mr Sapkota. The aforementioned matters weigh in favour of action being taken under s.140M of the Act.

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

22. The Tribunal considers that the applicant cooperated to a limited extent with the Department in relation to the various breaches of sponsorship obligation. The Tribunal notes that the failures regarding sponsorship obligations came to be identified through the sponsorship monitoring process, which arose from an allegation that the applicant was taking payment and colluding with persons to gain permanent residence, in addition to prior allegations of employees not receiving correct entitlements, as outlined in the s.359A invitation. On balance, the Tribunal places some weight upon the s.359A information given the evidence that was unearthed during the sponsorship monitoring process. Whilst the Tribunal accepts that the applicant, through Mr Sapkota, engaged in the sponsorship monitoring process, it forms the view that its actions had an element of dishonesty given the credibility concerns previously outlined with respect to Mr Sapkota. The aforementioned matters weigh in favour of action being taken under s.140M of the Act.

    (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

23. The Tribunal notes that the applicant repaid Ms Dheldy the sum of $1,000 and provided certain pay records, as outlined above, for Ms Toor and Mr Pathak to the Department. However, the Tribunal also notes that the aforementioned actions came as a result of response to the sponsorship monitoring process and, in the case of the relevant pay records, in a delayed fashion.

24. The applicant did not rectify the lack of a pay record for Mr Pathak in respect of 24 May 2015. Whilst the Tribunal notes that the applicant contended it had submitted records for Ms Toor’s purported period of cash wage payment between 1 and 25 March 2015, and of the loan arrangements between her, Mr Singh and Mr Sapkota, the Tribunal does not accept the veracity of such information for reasons previously expressed. On balance, the Tribunal is satisfied that the aforementioned matters weigh in favour of action being taken under s.140M of the Act.

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

25. The majority of the applicant’s response to the sponsorship monitoring process was directed to denial of the contentions raised in the two NOITTA’s. Other than the repayment of $1,000 to Ms Dheldy, there is little persuasive evidence before the Tribunal to indicate that the applicant implemented processes to ensure future compliance with the identified sponsorship obligations. The identified credibility concerns outlined with respect to Mr Sapkota buttress the aforementioned conclusion in the view of the Tribunal. On balance, the Tribunal is satisfied that the aforementioned matters weigh in favour of action being taken under s.140M of the Act.

    (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

26. Aside from the identified breaches of the sponsorship obligations in r.2.79, 2.82 and 2.83, the Tribunal has no persuasive evidence before it of other breaches by the applicant. The aforementioned matter weighs against action being taken under s.140M of the Act.

    (k)     any other relevant factors

27. The Tribunal does not consider there is any other relevant factor weighing either in favour of, or against, action being taken under s.140M of the Act.

    False or misleading information

28. The criteria to be considered where there has been provision of false or misleading information are set out in r.2.90(3) and have been taken into account as follows.

    (a)       the purpose for which the information was provided

29. The Tribunal has determined that the applicant provided pay records to the Department which are inconsistent with the actual amounts deposited into the respective bank accounts of Ms Toor and Mr Pathak during the period 1 March 2015 to 30 May 2015 as described. Whilst the discrepancies are relatively small in terms of dollar amounts, on balance, given the credibility concerns outlined with respect to Mr Sapkota, the Tribunal finds that false and misleading pay records were deliberately provided by the applicant for the purpose of attempting to legitimise the pay arrangements of these employees, in response to the sponsorship monitoring process. This is particularly so when having regard to the totality of the evidence in this review. The Tribunal therefore concludes that the aforementioned matters weigh in favour of action being taken under s.140M of the Act.

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

30. The Tribunal considers the provision of the false and misleading pay records by the applicant to be deliberate. The aforementioned matter weighs in favour of action being taken under s.140M of the Act.

    (c)       the nature of the information

31. The Tribunal notes that the applicant submitted pay records that do not match the amounts actually paid into the bank accounts of Ms Toor and Mr Pathak. Whilst the discrepancies are relatively small in terms of dollar amounts, the Tribunal forms the view that they are part of a broader course of dishonest conduct by the applicant to mask his employment arrangements. The aforementioned matters weigh in favour of action being taken under s.140M of the Act.

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

32. The Tribunal is satisfied that the provision of the false and misleading pay records had a direct adverse impact upon the Departmental Officers engaged in the sponsorship monitoring process, by making it more difficult for such processes to be conducted. The aforementioned matter weighs in favour of action being taken under s.140M of the Act.

    (e)      whether the information was provided in good faith

33. The Tribunal is not satisfied that the false and misleading pay records were provided in good faith to the Department given the credibility concerns identified with respect to Mr Sapkota of the applicant company. The aforementioned matter weighs in favour of action being taken under s.140M of the Act.

    (f)whether the person notified Immigration immediately upon discovering that the information was false or misleading

34. The Tribunal is satisfied that the applicant did not notify the Department that the submitted information was false or misleading. The aforementioned matter weighs in favour of action being taken under s.140M of the Act.

    (g)       any other relevant factors.

35. The Tribunal does not consider there is any other relevant factor weighing either in favour of, or against, action being taken under s.140M of the Act.

    CONCLUSION

36. The Tribunal has carefully reflected upon the factors both against, and in favour of, action being taken under s.140M of the Act. As outlined above, the Tribunal notes that some factors weigh against action being taken under s.140M of the Act. These factors must be carefully balanced with those in favour of action being taken under s.140M of the Act. On balance, following much consideration, the Tribunal finds that the factors in favour of action being taken under s.140M of the Act outweigh those factors to the contrary.

37. Following careful consideration, the Tribunal concludes that the period of the sponsorship bar under s.140M(2) should be increased. This is because of the dishonest conduct displayed by the applicant, through its director Mr Sapkota, in response to the monitoring process as outlined above.

38. 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 should be taken. The period of this bar is to be increased from 9 months to 3 years and 6 months.

    DECISION

39. The Tribunal varies the decision under review by increasing the period of the sponsorship bar under s.140M(2) from 9 months to 3 years and 6 months from the date of the Department’s decision on 20 September 2016.

    K. Chapman
    Member

    
    

    ATTACHMENT – Extract from the Migration Regulations 1994

    2.89   Failure to satisfy sponsorship obligation

    …

    (3) For paragraph 140L(1)(b) of the Act, the criteria that the Minister must take into account in determining what action (if any) to take under section 140M of the Act in relation to the circumstance mentioned in subregulation (2) are:

    (a)    the past and present conduct of the person in relation to Immigration; and
    (b)    the number of occasions on which the person has failed to satisfy the sponsorship obligation; and

    (c)     the nature and severity of the circumstances relating to the failure to satisfy the sponsorship obligation, including the period of time over which the failure has occurred; and

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

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

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

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

    (h)    the steps (if any) the person has taken to rectify the failure to satisfy the sponsorship obligation, including whether the steps were taken at the request of Immigration or otherwise; and

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

    (j)     the number of other sponsorship obligations that the person has failed to satisfy, and the number of occasions on which the person has failed to satisfy other sponsorship obligations; and

    (k)    any other relevant factors.

    …

    2.90   Provision of false or misleading information

    …

    (3) For paragraph 140L(1)(b) of the Act, the criteria that the Minister must take into account in determining what action (if any) to take under section 140M of the Act in relation to the circumstance mentioned in subregulation (2) are:

    (a)    the purpose for which the information was provided; and

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

    (c)     the nature of the information; and

    (d)    whether, and the extent to which, the provision of false or misleading information has had a direct or indirect impact on another person; and

    (e)     whether the information was provided in good faith; and

    (f)     whether the person notified Immigration immediately upon discovering that the information was false or misleading; and

    (g)     any other relevant factors.