Patil Pathak Pty Ltd ATF Pathak Patil Family Trust (Migration)

[2017] AATA 750

Patil Pathak Pty Ltd ATF Pathak Patil Family Trust (Migration) [2017] AATA 750 (17 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Patil Pathak Pty Ltd ATF Pathak Patil Family Trust

CASE NUMBER:  1606542

DIBP REFERENCE(S):  OPF2016/1052

MEMBER:Glen Cranwell

DATE:17 May 2017

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision under review.

Statement made on 17 May 2017 at 10:54am

CATCHWORDS

Migration – Standard business sponsor – Sponsorship bar – No record of wages paid – 6 month bar

LEGISLATION

Migration Act 1958, s 140M

Migration Regulations 1994, Schedule 2, r 2.82, r 2.89 – r 2.94B

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.

1. The applicant was approved as standard business sponsor on 18 February 2013. On 29 April 2016, the delegate decided to bar the applicant for 6 months from making future applications for approval as a standard business sponsor.

2. Mr Rohit Pathak appeared on behalf of the applicant before the Tribunal on 17 May 2017. 

3. The applicant was represented in relation to the review by its registered migration agent.

   5.For the following reasons, the Tribunal has decided to affirm the decision under review.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

5. 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.

6. 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.

7. 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?

   10.In the present case, the delegate found that the applicant failed to satisfy r.2.89.

   11.The Minister may take one or more of the actions in s.140M if reasonably satisfied the sponsor has failed to satisfy a sponsorship obligation referred to in r.2.78 - r.2.87A of the Regulations in the manner or within the period prescribed: r.2.89(2).

   12.The delegate found that the applicant breached r.2.82, which requires that the record of wages paid to the sponsored person be in a manner that is capable of being verified by an independent person. The applicant’s submissions to the Tribunal acknowledge that Ms Dikshita Gurung was paid in cash from 28 September 2015 to 8 November 2015 at her request. Although a statutory declaration from Ms Gurung, payslips and other documents were provided, the Tribunal is of the view that it is still not possible for an independent person to verify cash payments. Accordingly, the Tribunal finds that the applicant has not satisfied r.2.82.

   13.The Tribunal is satisfied that the prescribed circumstance in r.2.89 exists for the purpose of s.140M of the Act.

   Action to be taken

   14.For these reasons, the Tribunal is satisfied that a relevant circumstances 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. 

   15.In considering what action to take, the Tribunal has had regard to the prescribed criteria, as extracted in the attachment to this decision. The criteria to be considered where there is failure to comply with sponsorship obligation, are set out in r.2.89(3).

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

   16.With the exception of the failure to satisfy the sponsorship obligation identified above, there is nothing before the Tribunal to suggest that the applicant’s conduct has been unsatisfactory.

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

   17.The Tribunal has found that the applicant has failed to satisfy r.2.82. The failure to satisfy r.2.82 took place in respect of the period from 28 September 2015 to 8 November 2015.

   (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

   18.While the applicant maintains that Ms Gurung was paid in full, the Tribunal considers that the failure to record wages in a manner that is capable of being verified by an independent person to be very serious.  This undermines the transparency of the Subclass 457 visa program, which is designed to prevent overseas workers from being paid less than equivalent Australian workers.

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

   19.The Tribunal finds that the applicant was a standard business sponsor between 18 February 2013 to 18 February 2016. 

   (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 failure to satisfy r.2.82 means that is not possible to determine more generally whether the sponsored worker was financially disadvantaged.

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

   21.The Tribunal finds that the failures to satisfy r.2.82 were reckless. The applicant’s evidence was that Ms Gurung requested advance payment of her salary in cash, as she was travelling to Nepal and would not be able to access her bank account. As put to the applicant at the hearing, the Tribunal is unable to see why Ms Gurung’s request could not have been accommodated by transferring her salary advance into her bank account, leaving it to Ms Gurung to make a cash withdrawal from her account before she departed. While the applicant received a written request from Ms Gurung, the Tribunal considers that applicant made insufficient efforts to comply with the requirement to record wages in a manner that is capable of being verified by an independent person.

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

   22.There is no evidence that the applicant has not cooperated with the Department.

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

   23.The applicant provided evidence that it has notified all employees that no cash payments of salary will be made in future.

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

   24.The applicant provided evidence that it has notified all employees that no cash payments of salary will be made in future.

   (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

   25.The Tribunal has not found that the applicant has breached any other sponsorship obligations. 

   (k)     any other relevant factors

   26.The applicant gave evidence that he was truthful with the Department, when he could have simply told the Department that Ms Gurung was on leave without pay during the relevant period.

   27.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 for 6 months from sponsoring more people for Subclass 457 visas, should be taken.  This period is to commence from the date of the delegate’s decision. In the Tribunal’s experience, a 6 month bar is within the range to be expected for breaches of the nature under consideration.  The Tribunal notes that the bar has in any event already been served.

   DECISION

   28.The Tribunal affirms the decision under review.

   Glen Cranwell
   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.

   …