Raj & Jai Construction Pty Ltd (Migration)

Raj & Jai Construction Pty Ltd (Migration) [2023] AATA 3472 (29 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Raj & Jai Construction Pty Ltd
REPRESENTATIVE:  Mr Nigel Dobbie
CASE NUMBER:  2214912
HOME AFFAIRS REFERENCE(S):          OPF2022/1090
MEMBER:R. Skaros
DATE:29 September 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal varies the decision under review by reducing the period of the bar to three months from the date of the delegate’s decision.

Statement made on 29 September 2023 at 3:01pm
CATCHWORDS
MIGRATION – sponsorship bar – standard business sponsor – failure to satisfy sponsorship obligation and provision of false or misleading information – equivalent terms and conditions of employment and obligation to keep records – no records of one worker’s pay for initial period – delay in issue of tax file number – backpaid after TFN issued – provision to pay workers without TFNs, withholding full rate of tax – small underpayment of another worker – miscalculation of superannuation rates – backpayment does not overcome non-compliance – outdated awards provided to department – innocent error – workers paid above award – further visas refused because of adverse information – reduction of bar period means bar now ended – decision under review varied
LEGISLATION
Migration Act 1958 (Cth), s 140M
Migration Regulations 1994 (Cth), rr 1.13A, 2.79(3)(b)(i), 2.82(3A), 2.83, 2.89(2)
CASE
Trivedi v MIBP (2014) 220 FCR 169
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 Home Affairs to take an action under s 140M of the Migration Act 1958 (Cth) (the Act) in relation to the applicant’s sponsorship.

The applicant was most recently approved as a standard business sponsor on 23 July 2020 for a period of five years. On 28 September 2022, the delegate made a decision under s 140M of the Act to bar the applicant until 23 July 2025 for sponsoring any more people under the terms of the approved standard business sponsorship.
The Manager, Mr Manish Dua, appeared before the Tribunal on 22 August 2023 to give evidence and present arguments on behalf of the applicant. At the hearing, the Tribunal confirmed (by telephone) with the applicant’s director, Mr Sanjeev Kumar, that Mr Dua is authorised to give evidence on behalf of the applicant.
The applicant was represented by their legal practitioner in relation to the review. The representative attended the hearing.
5.For the following reasons, the Tribunal has decided to vary the decision under review by reducing the period of the bar to three months from the date of the delegate’s decision.
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 regs 2.89–2.94B and include circumstances in which the Minister, or tribunal on review, is satisfied there has been: a failure to satisfy a sponsorship obligation; provision of false or misleading information; sponsorship application or variation criteria no longer met; a contravention of the law; unapproved changes to a program; a failure to pay additional security; a failure to comply with certain terms of an agreement; or a failure to pay medical and hospital expenses.
Where a prescribed circumstance has been found to exist, the regulations prescribe criteria that must be taken into account when determining what action, if any, to take: regs 2.89–2.94B. These criteria, as they relevantly apply to the circumstances of this case are set out in the attachment to this decision.
Does a circumstance for the taking of an action exist?
10.In the present case, the delegate found that the applicant failed to satisfy a sponsorship obligation. The delegate also found that the applicant had provided false or misleading information. The Tribunal has considered the information and evidence before it in respect of each of these circumstances.
Failure to satisfy a sponsorship obligation: reg 2.89
The Minister may take one or more of the actions in s 140M if satisfied the sponsor has failed to satisfy a sponsorship obligation referred to in Division 2.19 of the Regulations: reg 2.89(2).
The delegate considered that the applicant had failed to satisfy the following sponsorship obligations:
·Regulation 2.79 – obligation to ensure equivalent terms and conditions of employment
·Regulation 2.82 – obligation to keep records.
13.The applicant operates a construction business in Western Sydney. The turnover for the most recent financial year was $107 million. The applicant has 43 employees, 28 of whom are Australian citizens or permanent residents.
14.The applicant was most recently approved as a standard business sponsor on 23 July 2020 for a period of five years. They have been the subject of various approvals as a standard business sponsor since 2006. The applicant has had 19 nominations approved since 2010.
15.Relevantly, the following four nominated positions were approved which were the subject of the Department’s monitoring process:
·Civil Engineer (233211) in respect of Mr Shrikeshari Nandan Singh, with a nominated salary of $64,840. Mr Singh’s Subclass 482 visa was granted on 8 October 2020.
·Bricklayer (331111) in respect of Mr Alfredo Jr Ramos, with a nominated salary of $62,018. Mr Ramos’ visa was granted on 6 December 2021.
·Internal Auditor (221214) in respect of Ms Anjali Sachdeva, with a nominated salary of $60,000. Ms Sachdeva’s visa was granted on 3 August 2021.
·Electrical Engineering Technician (312312) in respect of Mr Darshan Kumar, with a nominated salary of $59,784. Mr Kumar’s visa was granted on 11 January 2022.
16.On 11 May 2022, as part of the monitoring process, the Department issued a notice to the applicant under reg 2.83 requesting records and information, which relevantly included information relating to the employment of the above-named sponsored persons for the period from 1 February 2022 to 30 April 2022. In response to the request, the applicant’s then representative provided various documents which relevantly included the following:
·Single touch payroll (STP) records for all their employees, dated from 10 February 2022 to 21 April 2022.
·Payslips for the above-named sponsored persons dated from February 2022 to May 2022.
·Position descriptions for the approved positions.
·Details of Fair Work Awards for the approved occupations.
·Contracts of employment for the above-named sponsored persons.
17.Australian Border Force (ABF) officers also conducted telephone interviews with Mr Singh, Mr Ramos and Mr Kumar. The former representative advised the Department that Ms Sachdeva had resigned from the position on 14 June 2022 and departed Australia.
18.On 30 June 2022, the Department issued the applicant with a Notice of Intention to Take Action (NOITTA) setting out information in relation to which action was being considered. Relevantly, the Department raised concerns regarding the applicant’s compliance with their sponsorship obligations in regs 2.79, 2.82 and 2.86.
19.In determining whether there has been a breach of sponsorship obligations as set out in the NOITTA, the Tribunal has considered the evidence before it as follows:
Compliance with the sponsorship obligation in reg 2.86
20.Regulation 2.86 requires the applicant to ensure that primary sponsored persons work in the occupation for which they have been nominated.
21.The delegate ultimately found that the was no breach of the sponsorship obligation reg 2.86. Based on the evidence before it, including that which was provided by Mr Singh when interviewed by ABF officers regarding the tasks performed in the position, the Tribunal is satisfied that Mr Singh worked in the nominated occupation of Civil Engineer. The Tribunal accordingly agrees with the delegate’s conclusion that the applicant has complied with their obligations in reg 2.86 to ensure that Mr Singh worked in the occupation for which he was nominated.
Compliance with the sponsorship obligation in reg 2.82
22.Regulation 2.82 requires the applicant to keep specified records to demonstrate compliance with the sponsorship obligations, which includes ensuring equivalent terms and conditions or employment as required by r.2.79. Regulation 2.82(3A) specifies the types of records required to be kept by sponsors in respect of that obligation, which relevantly include a record of any money paid to the primary sponsored person. The records must be maintained in a manner capable of being verified by an independent person.
23.The delegate found that the applicant had failed to keep records of Mr Kumar’s pay for the period prior to 26 May 2022. On review, it was submitted that in the light of Mr Kumar’s difficulties in obtaining a tax file number, and in the light of the information and documents before the Tribunal showing that records were kept of the wages and superannuation paid to Mr Kumar, that there has been no failure to comply with the obligation in reg 2.82. It was contended that what occurred was that Mr Kumar was able to be paid (and records of such payment made being kept) once the ATO had issued him with a tax file number.
24.The evidence before the Tribunal indicates that on 26 May 2022, being the first pay cycle after Mr Kumar was issued with a tax file number by the ATO, Mr Kumar was back paid the wages owed to him in respect of each fortnight worked since the commencement of his employment (on 28 March 2022). The wages paid to Mr Kumar were transferred by funds transfer via STP and Mr Kumar’s bank account statement showed that on 26 May 2022 he received the funds, as indicated on the payslips, in respect of each pay period.
25.The Tribunal is satisfied on the evidence before it that the records kept by the applicant in relation to the employment of Mr Kumar, including the record of money paid to him, were capable of being independently verified. Accordingly, the Tribunal is satisfied that there has been no breach of the obligation in reg 2.82.
26.The records kept by the applicant did, however, indicate that there had been a breach of the obligation in reg 2.79.
Compliance with the sponsorship obligation in reg 2.79
The obligation in reg 2.79 requires a standard business sponsor (or former standard business sponsor) of a primary sponsored person, who holds (or last held) a Subclass 482 visa was identified in a nomination made on or after 18 March 2018, to ensure that:
·the primary sponsored person’s annual earnings in relation to the occupation are not less than the annual earnings which the sponsor indicated would be provided to them when the nomination was approved;[1]
·the primary sponsored person’s earnings in relation to the occupation are not less than the earnings an Australian citizen or an Australian permanent resident earns, or would earn, for performing equivalent work in the same workplace at the same location;[2] and
·the employment conditions (other than in relation to earnings) that apply to the primary sponsored person are no less favourable than those that apply, or would apply, to an Australian citizen or an Australian permanent resident performing equivalent work at the same location.[3]
[1] reg 2.79(3)(b)(i).
[2] reg 2.79(3)(b)(ii).
[3] reg 2.79(3)(b)(iii).
28.The NOITTA set out information which suggested that the applicant may not have complied with their obligation in reg 2.79 in respect of Mr Kumar, Ms Sachdeva and Mr Ramos.
29.The delegate ultimately found that there was no failure to comply with the obligation in reg 2.79 in respect of Ms Sachdeva. Having considered the evidence provided in relation to the employment of Ms Sachdeva, including records kept up to her last day of employment (i.e.,14 June 2022) the Tribunal has not identified any breach of reg 2.79 in respect of Ms Sachdeva.
30.In relation to Mr Ramos, the evidence provided regarding his employment includes the employment contract, dated 28 October 2021, which indicates that his salary inclusive of superannuation was $67,910 and that he would be paid fortnightly. The hours of work stipulated in the contract were Monday to Friday 7:00 am – 3:30 pm, with a break of 30 minutes, and Saturday from 8:00 am to 1:00 pm. It was submitted that Mr Ramos only worked the hours for which he was contracted. Mr Ramos indicated the same during his interview with ABF officers. The nomination in respect of Mr Ramos was approved with an annual salary (earnings) of $62,018. This equates to a fortnightly payment of $2385.
31.The payslips for Mr Ramos for the pay periods from 1 February 2022 to 30 April 2022 (being the monitoring period) indicated that his salary was $61,736 with a fortnightly payment of $2374.
32.In seeking to explain the underpayment it was submitted that the error arose because the calculation of the wage in the nomination application was based on an erroneous belief (by the applicant’s former migration agent) that superannuation was 9.5%. The former agent’s calculations were based on $67, 910.00 less 9.5% superannuation, which resulted in an annual base salary of $62,018 being noted on the form. It was submitted that the wage stated on the nomination application should have been stated as $61,736, excluding superannuation, based on a superannuation rate of 10%, which equalled $67,910.
33.It was submitted that Mr Ramos was getting paid $67,910, inclusive of superannuation at a rate of 10% at the time, in accordance with his contract of employment. The Tribunal accepts, based on information contained in Mr Ramos’ payslips (and the associated evidence of transfer of funds) that Mr Ramos was getting paid 10% superannuation (being the correct rate under the superannuation guarantee),[4] however, the Tribunal considers that the applicant’s annual earnings were less than those indicated on the approved nomination. The Tribunal acknowledges the explanation given regarding the discrepancy in Mr Ramos’ earnings and has taken this into account further below, however, it nevertheless considers the shortfall of $11 in Mr Ramos’ fortnightly pay to be less than the annual earnings which the sponsor indicated would be provided to Mr Ramos when the nomination was approved. Consequently, the Tribunal finds that the applicant has not complied with their obligation in reg 2.79(3)(b)(i) in respect of Mr Ramos.
[4] Superannuation Guarantee Charge Act 1992
34.The Tribunal accepts that Mr Ramos’ current salary is $80,000 plus 11% superannuation. It also accepts that the shortfall (which totalled $161.25 plus 10% superannuation) has now been back paid to Mr Ramos. This is evidenced by the recent payslips provided for Mr Ramos. However, this does not overcome the non-compliance with reg 2.79(3)(b)(i) which occurred between February 2022 and April 2022.
35.In determining Mr Ramos’ earnings and whether they were or were not less than those provided to an equivalent Australian worker, the Tribunal has had regard to Building and Construction Award, Level 3, for the relevant period.[5]
[5] Building and Construction General On-site Award (MA000020) 1 February 2022
36.The applicant has advised that there were no Australian employee working as a Bricklayer in the same location as Mr Ramos. The applicable Award provides the following pay rates for a Level 3 (CW/ECW 3) worker employed on a full-time basis:
Weekly Pay - Monday to Friday:                   $966.23[6]
Overtime Saturday first 2 hours (8am to 10 am) ($38.15 x 2) = $76.30
Overtime Saturday after 2 hours (10am to 1pm) ($50.86 x2.5) = $127.15
Total payable per week:        $1,169.68 (yearly equivalent salary $60,823.36)
Total payable per fortnight:     $2,339.36
[6] Includes base rate (industry) allowances.
37.Based on the above calculations, the Tribunal accepts that the total earnings (including allowances) of an Australian worker undertaking the same work at the same level is $60,823. As the total earnings for Mr Ramos for the relevant period was $61,736, the Tribunal is satisfied that Mr Ramos’ earnings (as a level 3 Bricklayer) are not less than the earnings of an equivalent Australian worker. Therefore, the obligation in reg 2.79(3)(b)(ii) in relation to Mr Ramos has not been breached by the applicant.
38.In relation to the obligation in reg 2.79(3)(b)(iii), there is no information before the Tribunal which suggests that any other employment conditions (not related to earnings) were less than those that would be provided to an equivalent Australian worker.
39.The Tribunal has next considered whether the applicant has complied with their obligation in reg 2.79 in respect of Mr Darshan Kumar. The contract of employment, dated 24 November 2021, indicates that Mr Kumar’s salary was $65,722 (inclusive of superannuation), to be paid fortnightly into his nominated bank account. The annual salary (earnings) indicated on the approved nomination was $59,784, which is $2299 a fortnight.
40.Mr Kumar’s visa was approved in January 2022, he travelled to Australia with his family in February 2022 and commenced working for the applicant on 28 March 2022. The records provided to the Department in relation to Mr Kumar’s employment during the monitoring period indicate that Mr Kumar had not received any wages until 26 May 2022. No wage records were provided in respect of Mr Kumar’s employment prior to 26 May 2022 because, as conceded by the applicant, no wages had been paid to him until that pay period.
41.In explaining the reasons for the non-payment of Mr Kumar’s fortnightly wages, the applicant’s former representative informed the Department that Mr Kumar’s tax file number (TFN) was not active until the pay period of 26 May 2022. It was submitted that due to the Single Touch Payroll (STP) system, Mr Kumar’s pay could not be processed until 26 May 2022 and did not reflect in the payroll reports for the period requested by the Department.
42.On review, it was submitted that Mr Sharma wanted to start work to earn an income, but he could only receive wages (and superannuation contributions could only be made) once he had a TFN. It was submitted that once the TFN was obtained, Mr Kumar received payment for all the hours worked and superannuation contributions were made on his behalf. The Tribunal acknowledges that on 26 May 2022 Mr Kumar was back paid all the wages owing to him since 28 March 2022, this is evidence by the STP records of 26 May 2022 and Mr Kumar’s bank statements. The evidence before the Tribunal also indicates that Mr Kumar was issued with a TFN on 17 May 2022.
43.While the Tribunal has had regard to the explanation for why Mr Kumar’s wages were not paid until 26 May 2022, it does not accept the applicant’s submission that the only other option would have been for Mr Kumar not to work and wait until his application for a TFN was processed. The Tribunal considers that the applicant, in the absence of a TFN, could have still paid fortnightly wages to Mr Kumar. Information available on the ATO website indicates that if a TFN is not provided, the employer (the applicant) should withhold 47% from the payments made from a resident employee or 45% from a foreign resident employee.[7] At the hearing, Mr Dua stated that without a TFN they could not pay Mr Kumar’s wages via STP. The Tribunal noted that the applicant could have made alternative arrangements by paying Mr Kumar’s fortnightly wages (less the applicable tax withholding) which would have enabled them to comply with their sponsorship obligations to ensure that Mr Kumar received his wage as indicated in the nomination.
[7] Tax file number (TFN) declarations | Australian Taxation Office (ato.gov.au)
44.The Tribunal finds that for part of the monitoring period, the applicant had not complied with their obligation in reg 2.79(3)(b)(i) in respect of Mr Kumar.
45.In determining whether Mr Kumar’s earnings in relation to the occupation are not less than the earnings an Australian citizen or an Australian permanent resident earns, or would earn, for performing equivalent work in the same workplace at the same location, the Tribunal has had regard to the Electrical, Electronic and Communications Contracting Award (MA000025) as at 1 February 2022, which sets out the pay rates for an electrical worker, grade 3, full-time as follows:
Weekly Pay - Monday to Friday   = $873.38
Overtime Saturday first 2 hours (8am to 10 am) ($37.47 x 2) = $74.94
Overtime Saturday after 2 hours (10am to 1pm) ($45.96 x2.5) = $114.90
Total weekly: $1,063.22 (yearly equivalent salary of $55,287.44)
46.Based on the above calculations, the Tribunal accepts that the total earnings (including allowances) of an Australian worker undertaking the same work at the same level is $55,287. As the total earnings for Mr Kumar were $59,748, the Tribunal is satisfied that the earnings (as a grade 3 Electrical Worker) were not less than those that were provided, or would be provided, to an equivalent Australian worker. Therefore, the obligation in reg 2.79(3)(b)(ii) in relation to Mr Kumar has been met.
47.In relation to the obligation in reg 2.79(3)(b)(iii), there is no information before the Tribunal which suggests that any other employment conditions (not related to earnings) were less than those that would be provided to an equivalent Australian worker.
Conclusion
48.Based on the above, the Tribunal finds that the applicant has not complied with their sponsorship obligations in regs 2.79(3)(b)(i) in respect of Mr Ramos and Mr Kumar.
49.Accordingly, the Tribunal finds that the prescribed circumstance in reg 2.89 exists for the purpose of s 140M of the Act.
False or misleading information: reg 2.90

One or more of the actions in s 140M may be taken if the sponsor has provided false or misleading information to Immigration or the Tribunal: reg 2.90(2).
The delegate considered that the applicant had provided false or misleading information to the Department because, in response to the request for information, the representative had not provided the reference number of the Award applicable to each of the sponsored employees. The Awards provided by the representative included the following:
·Building and Construction General On-site published on 14 August 2019.
·Electrical, Electronic and Communications Contracting published on 27 June 2021.
·Clerks - Private Sector published on 1 July 2021.
·Professional Employees published on 27 June 2019.
52.The delegate found that the applicable Awards were published on later dates and considered that the applicant may have mislead the Department because the applicable Award rates and conditions had changed since the sponsored persons were nominated.
53.The delegate was also concerned that the applicant had provided false information because the representative’s submission indicated that the hours of work in respect of the sponsored employees were noted on their payslips which was not the case.
54.In response to the NOITTA, the previous representative submitted that the company always strives to ensure that the correct Awards are paid to their employees. It was submitted that prior to hiring any employee, the applicant contacts Fair Work to obtain information about the applicable Award. The representative submitted that there was no intention on his part to mislead the Department by providing outdated Awards and that this was a mistake. In relation to the payslips, it was submitted that they follow the advice of Fair Work which provides that only employees who are paid an hourly rate should have the following noted on their payslips: ordinary hourly rate, number of hours worked, and the total amount paid.
55.While the delegate appears to have accepted that the information about the Awards and hours of work being noted on the payslip was provided by the former representative in error, the delegate nevertheless considered that false and misleading information had been so provided.
56.On review, the applicant’s representative contended that the delegate erred in finding that the review applicant had provided false information (in relation to the payslips) and that the opposite was in fact the case. It was submitted that, factually, it was self-evident on the face of the payslips provided to the Department that the hours of work were not shown. In that context, it was evident that there was no intention to provide false or misleading information to the Department.
57.The representative relied on the reasoning Trivedi v Minister for Immigration and Border Protection (2014) 220 FCR 169, in which the Full Court of the Federal Court considered whether a mental element was required in relation to the applicant giving information that is false or misleading in a material particular, and whether an applicant would be caught by any “objectively” untrue statement or information. In Trivedi, the Full Court found that an applicant need not know that the information was false or misleading in a material particular, however, it did find that the information had to be purposely untrue.[8]
[8] per Buchanan J at 179-180 [43]-[49] and 180 [54]; with whom Allsop CJ agreed at 170 [1],and Rangiah J at 181 [56]: at [43].
58.Although Trivedi was dealing with the issue of public interest criterion 4020, the Tribunal considers the reasoning in that judgment to be applicable in this case. The Tribunal accepts, as contended by the representative, that the information and/or documents provided by the former representative (on behalf of the applicant) were nothing more than innocent errors and that the element required for a false or misleading finding was not present.
59.Instead of providing the reference to the applicable Awards at the time of the Department’s assessment, the former representative had provided copies of the Awards applicable at the time the nominations were made. The Tribunal formed the view that this was not a case where the applicant had sought to purposely mislead the Department as to which Awards were applicable at the time of the monitoring, particularly given that the sponsored employees were being paid above the Award. It appears to have been an innocent mistake on the part of the representative as to the nature of the information being requested by the Department for the purpose of its assessment. In relation to the payslips, it was objectively the case that the payslips which were provided did not show the hours worked. The Tribunal accepts that the payslips complied with Fair Work requirements, as the sponsored employees were not paid on an hourly basis, but that they received wages fortnightly based on their contracted hours of work.
60.If the sponsored employees were being paid below the applicable Award at the time of the Department’s assessment, this would have raised concerns about whether there had been an intention on the part of the applicant to mislead the Department as to which Award applied. However, in the circumstances of this case (as considered above) the sponsored persons were being paid above the applicable Award at the time of the Department’s assessment. As such, there would have been no purpose on the part of the applicant (or their former representative) to provide false or misleading documents and/or information.
61.For the above reasons, the Tribunal is not satisfied that the applicant has provided false or misleading information to Immigration or the Tribunal. Accordingly, the Tribunal is not satisfied that the prescribed circumstance in reg 2.90 exists for the purpose of s 140M of the Act.
Action to be taken
62.As the Tribunal has found that the prescribed circumstance in reg 2.89 exists, being the breach of a sponsorship obligation, 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 applicant has not been previously monitored and there has been no previous findings of non-compliance with sponsorship obligations. The Tribunal also notes that the applicant responded to the request for information issued under reg 2.83.
The Tribunal is satisfied that the applicant’s past and present conduct in relation to Immigration has been satisfactory.
The number of occasions on which the person has failed to satisfy the sponsorship obligation
The Tribunal has found that the applicant failed to satisfy their sponsorship obligation in reg 2.79 in relation to Mr Ramos and Mr Sharma.
The failures occurred each fortnight during the period (or part thereof in the case of Mr Sharma) assessed by the Department’s monitoring unit.
The nature and severity of the circumstances relating to the failure to satisfy the sponsorship obligation, including the period of time over which the failure has occurred
The Tribunal accepts that the failure to ensure that Mr Ramos’ annual earnings were not less than the approved annual earnings of $62,018, which amounted to a shortfall of $11 each fortnight, was due to a miscalculation of the superannuation component (of the salary package as provided for in the employment contract) by the applicant’s former migration agent. The applicant has calculated the total shortfall to be $161 and has since back paid the shortfall to Mr Ramos.
In relation to Mr Sharma, the Tribunal accepts that he was not paid his fortnightly wage for work undertaken from 28 March 2022 until 26 May 2022 due to the delay in the issuing of his TFN by the ATO. However, as noted above, the Tribunal does not consider the delay in the issuing of the TFN to be an adequate reason for not paying Mr Sharma wages for a period of two months. The Tribunal accepts that Mr Sharma was back paid his wages in full on 26 May 2022.
The period of time over which the person has been an approved sponsor
The applicant has been approved as a standard business sponsor since 13 June 2006, which is a period of over 17 years.
Whether, and the extent to which, the failure to satisfy the sponsorship obligation has had a direct or indirect impact on another person
The Tribunal considers that the failure to satisfy the obligation in reg 2.79 had an impact on Mr Kumar as he was not paid any wages for a period of two months. The Tribunal has had regard to the evidence that Mr Kumar preferred to continue working so as to accumulate wages (which he understood would be paid to him once he got his TFN), however, the Tribunal considers that the applicant could have sought advice from their accountant or the ATO and made alternative arrangements to pay Mr Kumar his fortnightly wages rather than withhold payment until the TFN had been obtained.
In relation to Mr Ramos, his gross wages were underpaid by $11 a fortnight, the Tribunal acknowledges that this did not result in an overall reduction of the total salary package identified in the employment contract and the earnings were not less than the applicable Award. The Tribunal has also taken into account the fact that the shortfall, which totalled to $161, has now been paid back.
Whether, and the extent to which, the failure to satisfy the sponsorship obligation was intentional, reckless or inadvertent
The Tribunal does not consider the failure to satisfy the sponsorship obligation in reg 2.79 in relation to Mr Ramos and Mr Kumar to have been intentional. It nevertheless considers that the applicant should have made efforts, for example by conducting regular audits, to ensure that they were complying with their sponsorship obligations.
Whether, and the extent to which, the person has cooperated with Immigration, including whether the person informed Immigration of the failure
The evidence before the Tribunal indicates that the applicant cooperated with the Department throughout the monitoring process.
The Department was not informed of the failure to comply with the sponsorship obligations by the applicant and only became aware of the failures during the monitoring process.
The steps (if any) the person has taken to rectify the failure to satisfy the sponsorship obligation, including whether the steps were taken at the request of Immigration or otherwise
The applicant has rectified the failure by paying back paying Mr Ramos the shortfall of $161. Mr Kumar’s wages were back paid in full on 26 May 2022 after his TFN was issued.
The processes (if any) the person has implemented to ensure future compliance with the sponsorship obligation
77.In recent submissions to the Tribunal, Mr Dua stated that the applicant has taken steps to avoid any further non-compliance for superannuation calculations and paying employees, even when no tax file number has been provided, so that employees can commence work and be paid each pay cycle, with records being updated automatically via their accounting software. Mr Dua stated that payroll staff have received additional training from their software provider. The Tribunal has had regard to the letter from a Senior Consultant at Synergy Information Systems advising that they have recently provided 3 days software training to the payroll staff, who should now be fully aware of all the features of the software.
78.The Tribunal is satisfied that the applicant has taken steps to ensure that they comply with their sponsorship obligations in future.
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
Other than the sponsorship obligation found not to have been complied with by the applicant, the Tribunal is not aware of any other sponsorship obligations that the applicant has failed to comply with.
Any other relevant factors
Mr Dua said that the delegate’s decision to bar the applicant has had a determinantal effect on their business and sponsored employees. He provided a list of nominations and visa applications that were refused by the Department on the basis that there was adverse information known to Immigration about the applicant. The delegates who refused the nomination and visa applications were not satisfied that it was reasonable to disregard the adverse information. The applicant and the affected sponsored employees have applied to the Tribunal for review of those decisions.
The Tribunal accepts that the action taken under s 140M to bar the applicant from sponsoring any more people under the terms of their existing approval as a standard business sponsor comes within the meaning of adverse information, as defined in r.1.13A. It accepts that this is likely to impact any pending or future sponsorship or nomination applications made by the applicant and its sponsored employees. The Tribunal notes however, that the legislation also provides for decision makers to disregard adverse information where they consider it reasonable to do so.
The Tribunal considers that its findings in this review, including that the applicant has not provided any false or misleading information to the Department and that the breaches in relation to Mr Ramos and Mr Kumar were not intentional, were promptly rectified by the applicant and steps have been taken to ensure future compliance, put the applicant in a good position to contend that it would be reasonable for a decision maker to disregard the adverse information when considering whether to approve a nomination or sponsorship application and when considering this requirement as part of a visa application.
Conclusion
In determining what action, if any, to take, as provided for in s.140M, the Tribunal has carefully considered all the circumstances as discussed above. The delegate in this case decided to bar the applicant from sponsoring any more people for the duration of their existing approval as a standard business sponsor. The period of the bar (from the date of the delegate’s decision) was two years and 10 months. The bar was based on a finding by the delegate that the applicant had provided false and misleading information and had breached their sponsorship obligations in regs 2.82 and 2.79.
While the Tribunal has found that there was a breach of the sponsorship obligation reg 2.79 in relation to two employees, the Tribunal accepted that the applicant did not intentionally underpay or withhold wages from those employees. The underpayment in respect of Mr Ramos was a relatively small amount and was promptly paid by the applicant upon realising the error in the calculations and the wages withheld on behalf of Mr Kumar were transferred to Mr Kumar shortly after he obtained his TFN. Also, as noted above, the Tribunal accepts that the applicant has taken steps to ensure that such breaches will not be repeated.
The Tribunal found that the applicant did not breach the sponsorship obligation in reg 2.82. Significantly, it also found that the applicant did not provide false or misleading information to the Department.
While the Tribunal considers the breach of the sponsorship obligation in reg 2.79 warrants some action be taken, the Tribunal considers that a significant reduction in the period of the bar imposed by the delegate would be appropriate in this matter.
Considering the totality of the circumstances, as discussed above, the Tribunal considers that the period of the bar should be reduced to three months from the date of the delegate’s decision. This means the bar ended on 28 December 2022.
DECISION
88.The Tribunal varies the decision under review by reducing the bar to a period of three months from the date of the delegate’s decision.
R. Skaros
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.
…

[2023] AATA 3472

29 September 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Remedies

Statutory Construction

Natural Justice