Northern Trade Solutions Pty Ltd (Migration)

Northern Trade Solutions Pty Ltd (Migration) [2019] AATA 1793 (17 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Northern Trade Solutions Pty Ltd
CASE NUMBER:  1611629
DIBP REFERENCE(S):  OPF2015/4420 OPF2016/3345 OPF2016/3346
MEMBER:Kate Millar
DATE:17 May 2019
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to take one or more of the actions specified in s.140M of the Migration Act 1958.
Statement made on 17 May 2019 at 5:12pm

CATCHWORDS
MIGRATION – cancellation – sponsorship approval – compliance with sponsorship obligations – ensure sponsored person work in nominated occupation – unpaid work for a director of the approved sponsor – voluntary work – director’s personal responsibility – scope of nominated occupations – metal fabricator – welder – glazier – recovering costs associated with nomination or recruitment of non-citizen – fees for trade testing and materials – nomination application fees – costs charged by migration agent to visa holders – false or misleading information – action to be taken – breach of obligation on one occasion – unintentional breach – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 140L, 140M
Migration Regulations 1994 (Cth), rr 1.03, 2.86, 2.87, 2.90

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

Northern Trade Solutions Pty Ltd (NTS) is engaged in the construction industry in the Northern Territory as a builder and developer, and mainly undertakes commercial fit out work. It employs glaziers, welders, plasterers and metal fabricators and currently has approximately 50 employees. The company employs thirteen 457 visa holders in various occupations. NTS was approved as a standard business sponsor on 27 November 2011.
On 23 November 2015 it was audited by the Department of Immigration and Border Protection (the Department). As a result of the audit, on 8 July 2016 a delegate of the Minister for Home Affairs found NTS had breached its sponsorship obligations and cancelled the approval of the sponsor as a standard business sponsor as well as barring it from making future applications for approval as a standard business sponsor for a period of 24 months under s.140M of the Migration Act 1958 (the Act).
NTS has applied for a review of the decision to cancel its approval as a standard business sponsor and barring it from making future applications for approval.
Two of the directors of NTS, Mr Jiayun Lee and Mr Gerasimos Koukouvas appeared before the Tribunal on 19 February 2019 to give evidence and present arguments. NTS was represented in relation to the review by its registered migration agent.
While the ASIC extract lists “Jiayun Li” as a director, and various documents were provided signed by “Jiayun Li”, all of the documents submitted to the Tribunal are signed by “Jiayun Lee”. Quotes provided for NTS state they are prepared by Jiayun (Lee) Li. For the purposes of this matter, and in the absence of any information to the contrary, the Tribunal has assumed Jiayun Li and Jiayun Lee are the same person.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision not to take one or more of the actions specified in s.140M.
SECTION 376 CERTIFICATE
The file originally contained a certificate issued under s.375A of the Act, which prevents the disclosure of information covered by this certificate. The Tribunal asked that the delegate reconsider the certificate, and as a result it was revoked and a certificate was issued under s.376 of the Act which provides the Tribunal a discretion to release the information. This certificate related to a single folio of the Department file and the reason provided for not disclosing the information was that the information could disclose, or enable a person to ascertain the existence or identity of a confidential source of information.
A copy of the certificate issued under s.376 of the Act was provided to NTS, and it was given an opportunity to comment on the validity of the certificate. NTS submitted the certificate was not valid.
As the Tribunal found the information addressed by the certificate was relevant and should be disclosed to the NTS in any event, the information as covered by the certificate issued under s.376 of the Act was provided to NTS in writing prior to the hearing.
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 to r.2.94B of the Migration Regulations 1994 (the Regulations) and include circumstances in which the Minister, or Tribunal on review, is satisfied there has been a failure to satisfy a sponsorship obligation.
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 to r.2.94B. These criteria, as they apply to the circumstances of this case are set out in the attachment to this decision.
Nature of the Business
By way of background, it is useful to record the structure and nature of the business. Mr Lee gave evidence that NTS is a multi-trade builder and developer. It is divided into divisions with metal fabrication, glazing and external cladding. They undertake work in high rise residential building, medical facilities, schools, airports and service stations. Mr Lee said, the current turnover of the business is AU$14 million to AU$15 million. The 2018 financial statements disclose a turnover of approximately AU$13 million, which has built over time from AU$11 million in 2015 and AU$8 million in 2016. The equipment disclosed in the financial statements is consistent with the claimed work.
NTS provided a series of quotations for work and installation certificates together with technical drawing consistent with the claimed work, with certification for installation of balustrades, screen, awnings, as well as certification regarding the standard of glazing.
On the basis of this information, the Tribunal is satisfied that NTS does the type of work described by Mr Lee and requires workers who are metal fabricators, welders and glaziers.
Does a circumstance for the taking of an action exist?
In the present case, the delegate found that NTS Ltd had failed to comply with the obligation in r.2.86 of the Regulations to ensure the primary sponsored person works in the nominated occupation, the obligation in r.2.87 of the Regulations not to recover, transfer or take actions that would result in another person paying for certain costs, and the obligation in r.2.90 not to provide false or misleading information.
Obligation to ensure the primary sponsored person works in the nominated occupation: r.2.86
Regulation 2.86(2) of the Regulations states if the primary sponsored person holds a Subclass 457 visa, or the last substantive visa the person held was a Subclass 457 visa, NTS must ensure that the person does not work in an occupation unless the occupation was nominated for the primary sponsored person.
The term “work” is defined in r.1.03 of the Regulations as an activity that, in Australia, normally attracts remuneration.
In this case, it is alleged that Marlon Cantemprate, Jeorge Balia, Ranulfo Jr Socorro Papel and Patrick Wahing, who are or were employees of NTS and held Subclass 457 visas were not working in their nominated occupations. The Tribunal has considered each of these employees in turn in relation to the work they performed during working hours.
One issue in this matter is unpaid work that was done at a site where a house was being built by one of the directors of NTS. As this applies to each of the visa holders, and is a discrete incident where it is stated they did not work in their nominated occupation, this has been addressed as a separated issue.
Unpaid work for a director of NTS
It is alleged that at least three Subclass 457 visa holders assisted a director of NTS, Mr Chi, to move steel bars and clean at a site where he was building a house.
Mr Cantemprate stated at interview with the Department on 23 November 2015 he felt pressured to undertake unpaid work at a site where a house was being built for an NTS director for half a day every Saturday, and was not happy about this as he was not being paid. It is also recorded in another interview that he stated he has only worked on one occasion.
Mr Papel states in an interview with the Department on 18 November 2015 that he was doing work other than metal fabrication at “Jimmy’s” house at Muirhead and was not paid for this work. He said seven 457 visa holders were working on Saturday at the Muirhead address.
In regard to the allegation that Mr Cantemprate was required to perform unpaid work for a director of NTS, Mr Lee said that the director in question, Mr Yinting Chi, also worked as a project manager. He said that when the 457 visa holders arrived, Mr Chi assisted them to rent an apartment, set up bank accounts and arrange tax file numbers as well as loaning them money when required. He says Mr Chi maintained a good relationship with the workers, and when he was building a new house several of the visa holders helped clean the site on a voluntary basis. He said this was not discussed with him, and that to be paid by NTS they would have to put this on a timesheet. Mr Lee said the workers were not pressured to work on this site and he was not aware this had occurred until there was a report from the Department.
After the hearing NTS provided a statutory declaration from Mr Chi stating that in 2015 he appointed a builder to build his home. He said that Mr Wahing noticed he needed help on his property to move some steel. He regarded Mr Wahing as a friend as he lived close by, and outside of work he would assist Mr Wahing when needed, including loaning him items he needed for his house. He states Mr Wahing organised some friends to help, and that the builder would have no reason to direct Mr Wahing to go to the building site. He declares he considered it a favour to assist a friend. Mr Chi provided a copy of the contract and planning permit showing that “Habitat NT Pty Ltd” applied for the building permit.
Mr Wahing, in his statement dated 12 May 2016, states that he volunteered to help clean the site and pass steel bars for a couple of hours one Saturday afternoon. He said he did this because Mr Chi helped him a lot when he came to Darwin, training him on the job site and also lending him money to purchase a car.
The tasks performed by the 457 visa holders were handling steel bars and cleaning the site. These are not tasks associated with their occupations. The term “work” is defined in r.1.03 as an activity that, in Australia, normally attracts remuneration. While it is stated the work done at Mr Chi’s site was voluntary, it is still work conducted by the visa holders as this type of activity would ordinarily attract remuneration. The work conducted was labouring work, and was not work in the nominated occupations of the visa holders. It follows this was work outside the visa holder’s nominated occupation.
This matter then raises the question of whether NTS failed to ensure that the visa holder worked in their nominated occupations or whether it was Mr Chi personally who failed to ensure visa holders worked in their nominated occupations. Mr Lee said that this work was not work for NTS, it was Mr Chi having his own arrangement with the visa holders. The law relating to the attribution of the action of directors of a company to the company is complex.
The visa holders did not record the time spent working for Mr Chi on NTS timesheets, and the responsibility for the construction of the home was that of another company. Mr Chi is only one of four directors of NTS. Mr Lee, another director, said he was not aware of Mr Chi’s actions until the Department issued a notice of intention to take action against NTS. These factors support that any failure was not that of NTS, but rather of Mr Chi personally.
However, in the context of this specific Act, it is the responsibility of the directors of a company which is an approved sponsor to be aware of the sponsorship obligations. Mr Chi therefore had a responsibility to be aware of the sponsorship obligations of NTS. This obligation was to ensure the visa holders worked in their nominated occupations. This obligation extends to all parts of NTS; including each of the directors of NTS.
Mr Chi would not have been in a position to be in contact with the visa holders except for the employment of the visa holders by NTS. He was only known to them by reason of that position. As a director of NTS, he held a position of relative authority in relation to the visa holders to act on behalf of NTS. The ability of the visa holders to refuse to do voluntary work for him on his own property given his role as a director of NTS is reduced due to his role as a director.
As a director of NTS, Mr Chi had an obligation on behalf of NTS to ensure the visa holders worked in their nominated occupations. In acting in such a way that the visa holders did not work in the nominated occupation, there is a breach of this obligation.
The Tribunal also examined the allegations relating to each of the visa holders individually in the context of work recorded through NTS.
Marlon Cantemprate
Mr Cantemprate was employed as a metal fabricator. A guide to the duties of this position can be found in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) which states this position marks off and fabricates structural steel and other metal stock to make or repair metal products and structures including boilers and pressure vessels. The tasks listed in ANZSCO include:
·studies drawings or specifications to determine job requirements
·selects, cleans and prepares metal stock, fabrication tools and equipment
·cuts, rolls, bends, shapes, moulds, spins, heats or hammers metal products to fabricate parts of sub-assemblies
·fits and assembles metal components by riveting, bolting, welding, brazing or soldering
·finishes products by cleaning, polishing, filing or bathing them in acidic solutions
·measures quality of fabricated parts or sub-assemblies
·may set up and operate spinning lathes to spin shaped articles from sheet or structural metal
·may plan, layout and fabricate mould patterns or templates for producing metal castings or articles.
In the present case, the delegate found that NTS had failed to comply with its obligation to ensure Mr Cantemprate worked as a metal fabricator. This was on the basis of a site visit and interview with the visa holder, and statement provided by NTS.
A site visit was conducted on 23 November 2015 and the delegate interviewed Mr Cantemprate who said his duties included on site preparation with drilling, framing, hauling gypsum board and helping others to do their work. He reported no metal fabrication was done on site and while he mainly works on site metal fabrication is done at the workshop, and he has only worked one week in the workshop. He later provided an email stating that since the interview his duties had not changed and attached photographs which showed him carrying out labouring duties.
On 29 April 2016, NTS held a meeting with Mr Cantemprate. The NTS record of this meeting states Mr Cantemprate confirmed that the daily job duties summary, as provided in the letter of the same date, was accurate. It is recorded that Mr Cantemprate said that the role of a metal fabricator is to join the steel materials together using a welding machine. The duties of a metal fabricator as per the ANZSCO were explained to the visa holder, which he had not seen before. It is reported that his work at various sites was discussed with him and the tasks at these sites, and he agreed they were correctly described. He then is reported as stating his work is 90% that of a metal fabricator, but continued to state that fitting glass panels into a balustrade is the work of a glazier and acknowledged that he assisted the glazier to install a glass panel in the balustrade frame to complete balustrade work. It is reported he was asked why he had told immigration twice that he only did metal fabrication for one week and it was responded that he did not know. After reading these duties, the visa holder said that his duties were about 90% that of a metal fabricator. The visa holder was also asked why he had only undertaken metal fabrication duties for one week to which the visa holder responded he did not know.
In response to the allegation that Mr Cantemprate was not working in the nominated occupation, NTS also provided a statement from Qun Lin about Mr Cantemprate’s work period 7 September 2015 to 30 April16. The delegate’s analysis of this statement was that he only carried out the duties of the nominated position for 34% of the time. This is contrary to the view of Qun Lin who states that 90% of the visa holder’s duties are related to the metal fabricator job description. The basis for the delegate’s analysis that the position comprises 34% welding duties is not included in the decision. NTS provided a list of dates for when Mr Cantemprate was at different sites and the tasks he performed on these sites. The tasks described at the sites are consistent with the tasks of a metal fabricator, for example fabricating and installing bracket, metal cutting shaping and bending, installing balustrades, and fire stair handrail installation. In these circumstances I am not satisfied that the proportion of tasks as alleged by the delegate are established to be different to those of the nominated occupation.
NTS claims that the allegations made about not working in the nominated occupations arose from disgruntled employees. It provided copies of written warnings issued to Mr Cantemprate on 16 September 2015 and 23 February 2016. His employment was terminated on 13 November 2016 on the basis of not having the skills claimed as a metal fabricator, unsatisfactory performance and poor attitude after he received three written warnings; the first on 16 September 2015, and the second on 23 February 2016. A resignation provided for Mr Cantemprate was dated 20 October 2016.
At hearing Mr Lee gave evidence that Mr Cantemprate did metal fabrication with aluminium and stainless steel components and joining the components. Mr Lee stated his tasks involved cutting and polishing metal, and welding or screwing components together.
Mr Lee said Mr Cantemprate filled out timesheets daily which were signed by a supervisor on a daily basis. Mr Cantemprate worked in the workshop cutting metal and at Mel Road in building a factory with a steel structure for the business, at Darwin High School, and at an apartment building. Timesheets previously provided to the Department list these jobs and the work hours for each day on these jobs. They are not signed by a supervisor, but do record anomalies from usual work hours for matters like driving tests and medical appointments, and it is accepted these are an accurate record of the sites and hours Mr Cantemprate worked.

Mr Lee stated photographs provided to the Department showing Mr Cantemprate digging trenches do not fully explain the work he did, as this was site preparation for the installation of a metal screen. After the hearing he provided the contract for construction work at this property, together with photographs of the finished work which includes metal screens.
Having considered the information before me, I am not satisfied that while Mr Cantemprate was undertaking duties for NTS it did not ensure he was working in his nominated occupation.
Jeorge Armenio Balia
Mr Balia was employed as a welder. ANZSCO states this position cuts, shapes, joins and repairs metal components of iron and steel structures, boilers, pressure vessels and pipes, ships and other vessels. The tasks listed in ANZSCO include:
·Studying blueprints, drawings and specifications to determine job requirements
·Selecting, cleaning and preparing metal stock
·Cutting marked-out metal sections and shapes using hand tools, flame cutting torches and metal cutting machines
·Shaping and bending metal sections and pipes using hand and machine tools, and by heating and hammering
·Aligning parts to be joined using hand tools and measuring instruments
·Joining metal sections using various welding techniques, bolting and riveting
·Examining welds for width of bead, penetration and precision
·Finishing products by cleaning, polishing, filing and bathing in acidic solutions
·Cleaning and smoothing welds by filing, chiselling and grinding
In the present case, the delegate found that NTS had failed to comply with its obligation to ensure the visa holder worked as a welder. This was on the basis of a site visit and interview with the visa holder, and statement provided by NTS.
On analysis of the Statement from Qun Lin for Jeorge Armenio Balia for the work period 27 July 2015 to 30 April 2016 and the timesheets, the delegate submitted that the visa holder only carried out the duties of the nominated position for 47% of the time. As with the analysis for Mr Cantemprate, the delegate did not specify how this proportion was calculated, and there is no further information about the proportion of time spent on each task in the documents before me that would allow this calculation to be made.
At interview with Mr Balia of 23 November 2015, he said he commenced work on 23 July 2015 as a first class welder. He said when NTS has work building railways he is in the workshop, and he had been working in the workshop for the past three weeks doing welding work. Other than the past three weeks, Mr Balia said he had been working on site and not doing metal fabrication work. On site he said he installed glass and gyprock and there has been no change in the nature of the work since the commencement of his employment.
In an interview on 29 February 2016, Mr Balia stated he had been doing labouring tasks not welding, and that he was required to work at his employer’s restaurant on one occasion, but avoiding doing this by not answering his phone.
There are various accounts of a meeting of 9 May 2016 between Mr Balia, Mr Lee, Mr Dayrit (an employee who acted as an interpreter) and Ms Zheng (Human Resources officer for NTS).
NTS provided its written record of a meeting with Mr Balia on 9 May 2016. It states this meeting was conducted to investigate the issues raised by the Department. It states the duties of a welder were explained to Mr Balia, in particular that the duties of a welder included preparing and cutting metal, joining metal by welding or using other fasteners and polishing, cleaning and finishing metals. He advised that the Department had not shown him the duty description. Mr Balia stated that he has also been involved in duties including metal preparation, cutting, fabricating and finishing works, and so no longer believes he has ever been working as a building labourer. The record states he was asked to confirm this in writing but he said he was afraid to do so because the immigration officer may accuse him of providing false information and send him back to the Philippines.
In an interview with the Department on 10 May 2016, Mr Balia reported that he was required to attend an interview with NTS on 9 May 2016 with Mr Lee, Ms Zheng and Mr Greg Dayrit. In this interview, he is recorded as stating he was told to change his statement but did not agree to do so. He stated Mr Lee told him first he had to change it, but then when he refused that he had to add to it. Mr Balia said Mr Lee said he would take a (legal) case out against him if he did not co-operate. Mr Balia said he felt anxious and confused as a result of the meeting. It is stated that Mr Lee said he would take Mr Balia to his lawyer to discuss changing his statements, and that immigration would send him home if he did not sign it. Mr Balia said Mr Lee raised his voice and swore at him at the end of the meeting, and that he had recorded the meeting. It is stated he provided this to the Department. Mr Balia said he was followed outside after this meeting by Mr Dayrit and was told to “just agree so we don’t have any problems”. He said Mr Dayrit called his wife in the Philippines and asked her to call him but she did not do so. Mr Balia said he was required to sign a new statement or reissue his statement by 11 May 2016 and was offered $500 to sign the new documents.
A transcript of parts of the recording is included the Department file. It records that Mr Lee said he could take out a defamation action against Mr Balia, that he misunderstood his duties as a welder, that “they will send him home”, and that if he does not provide a statement the company will take action against him. It records Mr Lee as saying “tomorrow I take you to see my lawyer, he will tell you, how about that? It will cost me $500 and I will pay it, you ask the lawyer about the statement”.
It is stated Mr Lee said he was going to fire Marlon (Mr Cantemprate) and then take legal action and sue for defamation. It is stated Marlon and Ranulfo (Mr Papel) are making trouble, that Marlon is lazy and has had two warning letters and will be fired and is playing games. It is recorded that Mr Lee says that “we have other ways, I don’t have to get your statements, I can get … (inaudible) … someone else to write the statements, the lawyer will agree, we will be OK.” It states that: “If you do not sign the statement you don’t want us to treat you like Marlon.”
It is also recorded:
Sponsor: raised voice “you provide incomplete information …. And you won’t correct, refuse to do that, we have done everything for you” “You need to say things carefully in front of immigration and you won’t” “you now won’t help us to correct that “its bullshit” … raised voice continues … “Jeorge, you are thinking of yourself and make our company into trouble with immigration”. “You’re thinking of yourself, you can go home”
The allegation that Mr Lee told Mr Balia the statement had to be changed and that Mr Lee expected him to sign another statement was put to Mr Lee at the hearing. Mr Lee acknowledged a meeting was held on 9 May 2016. He said he had the meeting minutes, signed by NTS directors and staff but not Mr Balia. Mr Lee said he had a voice record for the full length for the meeting and offered to provide this to the Tribunal. This had not been provided, and the representative advised this was because consent had not been obtained to the recording of the meeting. As the Tribunal had expressed its concerns about whether the voice recording has been lawfully obtained, it does not draw any adverse inference from the failure to provide this recording.
At hearing Mr Lee gave evidence that at this meeting Mr Balia was reluctant to provide a statement of what he did day to day. He said he read out the job description for welder as listed in ANZSCO. He said went back with a timesheet and went though it with Mr Balia and asked why he said he only did three weeks as a welder. Mr Balia said the immigration officer told him this was only doing welding techniques, and said there was a misunderstanding of job duties, and most of time he was doing a welder’s job. He was asked if he was willing to provide a statement that there was a misunderstanding and he had spent the majority of time as a welder. Mr Lee said Mr Balia was afraid to do so because he had said one thing to immigration and was worried that if he gave a different statement that immigration would punish him. Mr Lee said he offered to get legal advice to make Mr Balia feel comfortable about providing a statement, and said the company was happy to pay $500 to get legal advice for Mr Balia.
Mr Lee was warned that if a ground was established that if the Tribunal found his conduct towards workers who had made allegations was as alleged, this would influence its view of what action should be taken.
Mr Lee provided a handwritten statement signed, but not dated, by Mr Balia detailing his tasks during his employment with NTS from December 2015 July 2016. This details tasks associated with being a welder. It is submitted that this was written in September 2016, several months after the meeting in May 2016 and without further request from NTS and shortly before Mr Balia resigned.
After the hearing, it was submitted on behalf of NTS that Mr Balia was not, in fact, dismissed by NTS and resigned of his own accord several months after the monitoring exercise had been concluded.
Mr Lee’s conduct towards Mr Balia in attempting to obtain a further statement was coercive, particularly in circumstances where Mr Balia is sponsored by NTS, is not in his country of origin, and is relying on an interpreter provided by NTS. The approach taken by Mr Lee suggests Mr Balia is being threatened with the termination of his employment if he does not agree to either sign another statement or add to his existing statement.
Given Mr Lee’s conduct during the interview of 9 May 2016, the Tribunal places little weight on Mr Balia’s subsequent written statement as there is no independent evidence of Mr Lee’s conduct towards Mr Balia in the intervening period.
NTS provided a statement made by Mr Januario Rivas of the Consul General of the Philippines in Darwin. This is undated, and confirms that various employees of NTS, including Mr Wahing, made statements attesting to the conduct of NTS towards them during their employment was welcoming, they have been treated kindly and are well looked after. The Tribunal does not doubt that these statements were made to the Consul General and that his view was that they were not coerced or forced to offer these statements. This does not include a statement by Mr Balia, and does not address the concerns of the Tribunal about the conduct of NTS in its interview with Mr Balia.
However, as much as the Tribunal finds Mr Lee’s conduct may fall short of what would be expected from a sponsor, it does not establish that Mr Balia was working outside his nominated occupation, even without relying on Mr Balia’s later handwritten statement of his duties. NTS provided a quote for work with GT Builders which involve manufacture, supply and installation of metal and glazing products, in particular aluminium and glass balustrades, handrails, air conditioning screen and awnings. It includes an installation certificate certifying the works are done to the required standard. For the balustrades, screen and window awnings, a perforated screen for the carpark and a screen fence. Mr Balia’s timesheets show he was assigned to this jobsite from July 2015 to August 2015.
NTS also provided quotes and installation certificates for jobs involving metal fabrication and welding for various other clients during the period of Mr Balia’s employment. In circumstances where NTS is undertaking works involving metal fabrication and welding, the Tribunal is not satisfied that Mr Balia did not perform the duties of a welder. It accepts that Mr Balia performed tasks other than purely welding metals together, but does not consider this is outside the scope of this nominated occupation, or that he performed tasks other than welding to the extent that he was not working in his nominated occupation.
Ranulfo Jr Socorro Papel
Ranulfo Papel was also employed as a metal fabricator. The delegate found NTS had failed to comply with its obligation to ensure Ranulfo Papel worked as a metal fabricator. The visa holder commenced employment with NTS on 13 October 2015.
Mr Papel was interviewed by the Department on 18 November 2015 in which he said he was undertaking work other than metal fabrication and was doing glazing, gyprocking and labouring.
NTS provided a statement to the Department of 13 May 2016 stating Mr Papel lacked the relevant knowledge and skills and as a result, his employment was terminated on 13 November 2015. It is also submitted that NTS spent a period attempting to train Mr Papel without success. Timesheets submitted for Mr Papel for October and November 2015 show his job site as the workshop and other sites at which NTS had work.
After the hearing, NTS provide a record of meeting with Mr Papel dated 2 November 2015 in which it is stated that Mr Papel’s lack of skills was raised with him, including an inability to operate the welding machine correctly. It is stated Mr Papel agreed he was not familiar with aluminium and stainless steel fabrication. It is stated that while his skills were insufficient NTS offered to provide further training and would give him two weeks to improve. If he did not improve NTS would terminate his employment. This record is signed by Mr Lee and Ms Zheng, but not Mr Papel.
A further document dated 13 November 2015 states it is a record of the termination of Mr Papel’s employment by Mr Youlong Shi, another director of NTS. It states he was shown metal fabrication techniques in the previous two weeks in the workshop and on the construction sites but the products and tasks he worked on were not satisfactory. This record is signed by Mr Shi and Ms Zheng.
Ms Zheng provided a statutory declaration dated 8 February 2019 declaring she is the human resources officer for NTS. Ms Zheng states she disagrees with the allegations and that these were only raised after Mr Papel’s employment was terminated in November 2015.
In his statutory declaration of 22 May 2018, Mr Lee denies the visa holders were not provided with duties consistent with their nomination. It is also submitted that Mr Papel no longer works for the company as he was unable to perform his duties and is a disgruntled former employee.
The Tribunal finds NTS attempted to employ Mr Papel as a metal fabricator and spent some time attempting to further train him in this occupation; however, this was ultimately unsuccessful. It is not satisfied that NTS failed to ensure he was working in his nominated occupation.
Patrick Glemn Dapusala Wahing
Patrick Wahing was employed as a glazier from March 2015. Glaziers measure, cut, finish, fit and install flat glass and mirrors.
The tasks listed in ANZSCO include:
·Determining type and dimensions of glass required
·Laying glass over patterns on padded tables and in jigs
·Measuring and marking glass for cutting
·Examining glass and marking defective areas
·Cutting along patterns and templates
·Breaking off sheets and excess glass with notched tools and glass pliers
·Installing glass and mirrors in windows, skylights, display cases, interior walls and ceilings
·Smoothing rough edges using belt sanders and smoothing wheels
·May coat, cut, etch, trim and treat glass to achieve special effects
In the present case, the delegate found that Northern Trade Solutions Pty Ltd had failed to comply with its obligation to ensure the visa holder worked as a glazier.
Mr Wahing was interviewed by the delegate on 2 December 2015, when he stated his duties were installation of frames, and gyprocking with 60% installation of frames and gyprocking. He states he started as a glazier and now works as a gyprocker and installer. He stated his duties included installation of glass, gyprocking, installation of frames and gyprock.
Mr Wahing provided a statement dated 12 May 2016 outlining his duties and responsibilities in response to the previous interview. Mr Wahing stated he was nervous at the interview with the Department and due to the language barrier misunderstood his job duties. He states he was doing onsite installation of the glazing partition windows, and that the stud wall frame was part of the system. It states that as part of his duties as a glazier, cleaning and housekeeping at the end of the day is a requirement of the job, as is the preparation of materials such as galls, aluminium, rubber and silicone sealant.
NTS has provided quotations for work in the period of employment of Mr Wahing that involve the installation of glass, in particular glass balustrades. Its financial statements and the equipment it lists are consistent with it operating the business it states it operates. The tasks in ANZSCO are a guide, and do not indicate that these are the only tasks that can be done by the occupations. While the majority of tasks must be consistent with that of a glazier, it is accepted that there will be some tasks that fall outside these categories.
Obligation not to recover, transfer or take actions that would result in another person paying for certain costs: r.2.87
As it applies to the circumstances of this case, r.2.87 applies to a person who was or is an approved sponsor and requires the person not to take any action, or to seek to take any action, that would result in the transfer to another person of some or all of the costs, including migration agent costs associated with a nomination or that relate specifically to the recruitment of a non-citizen for the purposes of a nomination.
Costs associated with nomination include the fee that accompanies the nomination (r.2.87(1A)(a)(iiia) and r.2.72(5) of the Regulations).
Costs that relate to the recruitment of the non-citizen are not specified in the Regulations, and the Department Policy Guide refers to the price paid with a definite connection with finding and attracting an employee. It states the costs associated with the visa application (including migration agent fees) are usually paid by the visa applicant; however, in some circumstances these may be considered to be recruitment costs, for example if a sponsor agreed to pay these costs to attract the applicant.
In a statutory declaration dated 17 May 2016, Mr Lee states the migration agent invoiced NTS for disbursements but did not render invoices for professional service fees. It declared NTS was not aware of the professional fee arrangements between the sponsored employees and the migration agent, and they were not advised that professional service fees were not to be paid by a third party. It is stated they have requested accounts of all professional service fees charged to visa holders.
At hearing, Mr Lee gave evidence that in 2015 he was approached by a migration agent who is Filipino and knew construction workers in the Philippines who wanted to come to Australia to work. As there was a skills shortage in the Northern Territory he wanted to interview the workers to see if they had the skills they needed.
He travelled to the Philippines with the migration agent to interview potential employees. He said at this time he discussed fees with the migration agent who said NTS would have to pay for his travel costs to the Philippines, the costs of materials for the trade test, rent for a facility in which to conduct the tests and the migration agent’s costs of arranging the tests. He said Mr Papel owned a factory and claimed he trained welders so the testing was conducted in his facility.
Mr Lee said that to nominate the workers, NTS prepared documents for the nomination and handed these to the migration agent to lodge with the Department. He states it was agreed that NTS would not be charged a professional service fee. He states that a fee was not passed on to the visa holders who were charged $3,000 to $5,000 by the migration agent. It is submitted this is the market rate for these services. Mr Lee said that as part of the process they had to register in the Philippines so they could access skilled workers directly.

Invoices were provided from the migration agent to NTS for fees for trade testing and materials, POEA (the approval that is required from the Philippines Government for the workers) processing fee for individual visa holders, and the nomination approval application fee for each applicant. NTS provided bank records to show the transfers of the amounts paid pursuant to these invoices to the migration agent. On the basis of the invoices and bank records, the Tribunal accepts that NTS paid for trade testing and the fee for the nomination applications.
What remained in issue was the payment of any professional service fees for lodging the nomination applications, as there were no professional service fees included in the invoices.
NTS provided a statement from the migration agent, Mr Felix Carao, that he did not charge professional service fees for lodging nomination applications for NTS, and this was based on the working relationship he had with NTS.
Contracts were provide between the visa holders and the migration agent stating a cost of AU$3,000 to AU$4,000. This cost is stated to be assistance for applying for a Subclass 457 visa. It is stated the visa holder will be responsible for paying other disbursements for skills assessments, the visa application fee, medical assessments, POEA, the airfare and pocket money of PHP20,000. The scope of services in the contract does not include services relating to the approval of the sponsor or the nomination application.
The decision record of the delegate does not contain reasons why it is considered that costs associated with a nomination or that relate specifically to the recruitment of the visa holders have been passed on to the visa holders. There is no other information that has been provided to me about whether I should infer part of the costs charged to the visa holders should be considered costs of NTS, and if so on what basis that could be found. While the costs charged to the visa holders appears high, there is no other information before me about the fees a migration agent would usually charge to an applicant for a Subclass 457 visa or for services associated with the application.
In the absence of any other information, on the face of the documents there are no charges associated with the nomination application or that relate specifically to the recruitment of the visa holder in the contracts between the migration agent and the visa holders, and NTS has been charged for the nomination application, the trade testing and interviewing the applicants. While there may be cause for speculation that costs had been passed on to the visa holders, this does not itself establish a breach of the obligation not to transfer the costs associated with the nomination or the recruitment of the visa holders.
Obligation not to provide false or misleading information: r.2.90
Under r.2.90(1) and (2) for a person who is or was a standard business sponsor, an additional circumstance for taking action under s.140L of the Act is that the Minister, and the Tribunal in the place of the Minister, is satisfied the person has provided false or misleading information to Immigration or the Tribunal.
The delegate found NTS provided false and misleading information because it lodged a nomination for the position of “metal fabricator” for Mr Papel with the intention of securing a worker to carry out other duties such as builders labourer.
As the Tribunal has found that NTS attempted to train Mr Papel in these skills, it is not satisfied that it has provided false or misleading information in the nomination application.
Action to be taken in relation to r.2.86 and r.2.87
For these reasons, the Tribunal is satisfied that a relevant circumstance for s.140L(1)(a) exists. This relates to the breach of the obligation to ensure the visa holder works in the nominated position, and specifically to the work that was conducted on Mr Chi’s property in Muirhead. 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 past and present conduct of the person in relation to Immigration
The delegate records that NTS has been cooperative, responding to all requests and making themselves available to meet with officers of the Department. The conduct of NTS towards the Tribunal was also co-operative.
The number of occasions on which the person has failed to satisfy the sponsorship obligation
The Tribunal has found that NTS has breached the obligation on one occasion. It is not satisfied there is information before it to show the visa holder undertook work for Mr Chi at his property on more than one occasion.
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 occurred
The breach that the Tribunal has found established occurred on one occasion. NTS has provide statements from some of the visa holders involved that this work was voluntary and they viewed it as a favour to Mr Chi following his assistance after they arrived in Australia.
The period of time over which the person has been an approved sponsor
NTS has been an approved sponsor since 28 November 2011.
Whether, and the extent to which, the failure to satisfy the sponsorship obligation has had a direct or indirect impact on another person
The work conducted by the visa holders was unpaid. It precluded others being paid for this work.
Whether, and the extent to which, the failure to satisfy the sponsorship obligation was intentional, reckless or inadvertent
As it is the responsibility of a director of an approved sponsor to be aware of the sponsorship obligations, the Tribunal regards the breach as reckless.
Whether, and the extent to which, the person has cooperated with Immigration including whether the person informed Immigration of the failure
NTS has cooperated with Immigration, however did not itself inform Immigration of a failure to comply with its sponsorship obligations.
The steps (if any) the person has taken to rectify the failure to satisfy the sponsorship obligation, including whether the steps were taken at the request of Immigration or otherwise
There is nothing before the Tribunal to establish that there have been further breaches.
The processes (if any) the person has implemented to ensure future compliance with the sponsorship obligation
NTS has employed a consultant to advise them about compliance with their sponsorship obligations, and provided invoices and a plan for complying with their sponsorship obligations.
The number of occasions on which the person has failed to satisfy other sponsorship requirements.
There is nothing before the Tribunal to establish the breach was repeated. It has considered the other alleged breaches and found they have not been established.
CONCLUSION
The conduct of NTS leaves much to be desired, particular in its handling of investigation into matters raised by the Department, and in the visa holders performing work outside the nominated positions for a particular director.
However, a cause of concern does not equate to a breach of a sponsorship obligation. A more detailed analysis of the tasks undertaken by the visa holders would need to be undertaken to substantiate a breach, as well as an examination of the tasks they were performing to engage with the submissions of NTS that they were performing tasks of the position when undertaking site preparation and end of day duties, even when not doing, for example, a specific welding task.
The Tribunal has found there was a breach of an obligation; however, this was only established on one occasion, and in circumstances where the Tribunal is not satisfied this is an intentional breach on behalf of NTS.
Considering the totality of the circumstances, and having regard to the prescribed criteria the Tribunal finds that none of the actions under s.140M should be taken.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to take one or more of the actions specified in s.140M of the Migration Act 1958.
Kate Millar
Senior Member

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

[2019] AATA 1793

17 May 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Remedies

Breach