RAVI DUTT PTY LTD (Migration)

RAVI DUTT PTY LTD (Migration) [2023] AATA 4062 (15 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  RAVI DUTT PTY LTD
CASE NUMBER:  2108128
HOME AFFAIRS REFERENCE(S):          OPF2019/3715
MEMBER:R. Skaros
DATE:15 November 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal varies the decision under review by reducing the period of the bar to 12 months from the date of the delegate’s decision.

Statement made on 15 November 2023 at 11:41am
CATCHWORDS
MIGRATION – cancellation – sponsorship cancellation – 1 year bar – applicant had failed to satisfy sponsorship obligations – false or misleading information – applicant has failed to keep accurate records in relation to the wages and leave payments – Ms Gurdeep Kaur had not ceased employment with the applicant- on leave without pay due to pregnancy complications – employees were paid (but for minor discrepancies) the amounts indicated on the payslips – Tribunal does not consider the pay records provided to the Department to be false or misleading – reducing the period of the bar to 12 months from the date of the delegate’s decision – decision under review set aside
LEGISLATION
Migration Act 1958, ss 140M, 375A
Migration Regulations 1994, rr 2.79, 2.82, 2.83, 2.84
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 13 April 2019. On 8 June 2021, the delegate decided to bar the applicant until 13 April 2023 (a period of 22 months) under s 140M on the basis that the applicant had failed to satisfy a sponsorship obligation and provided false or misleading information to the Department.
The applicant’s director, Mr Jicky Sharma, appeared before the Tribunal on 12 September 2023 to give evidence and present arguments.
The Department’s file contained a non-disclosure certificate issued under s 375A of the Act. The documents covered by the certificate included details of allegations received about the applicant, financial information about the applicant obtained from third parties and internal departmental communications. When invited to comment on the validity of the certificate, Mr Sharma indicated that he understood why the Department may not want to disclose the information to him, but he wanted the Tribunal to review the information when making its decision.
In forming a view about the validity of the certificate, the Tribunal had regard to the content of the certificate and the nature of the documents covered by the certificate. The Tribunal observes that the certificate provides, in part, reasons for why particular documents should not be disclosed to anyone other than the Tribunal. For example, in respect of the allegations about the applicant, it provides that the information was given in confidence. For other documents, however, the certificate merely describes the documents but does not provide a reason for their non-disclosure. In considering the certificate, the Tribunal formed the view that it was partially valid. Relevantly, however, the Tribunal is satisfied that the information contained in the subject documents has been disclosed to the applicant’s director (Mr Sharma) in Notices of Intention to Take Action (the NOITTA) and he has had an opportunity to comment on the information.
6.For the following reasons, the Tribunal has decided to vary the decision under review by reducing the period of the bar to 12 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?
11.In the present case, the delegate found that the applicant failed to satisfy a sponsorship obligation. The delegate also found that the applicant provided false or misleading information to the Department.
Background
12.The applicant operated three restaurants in Western Australia at different points in time. Mr Sharma informed the Tribunal that the restaurants have since closed.
13.The applicant was first approved as a standard business sponsor on 20 December 2014 for a period of one year. The applicant was subsequently approved for a period of five years, from 11 March 2016 to 11 March 2021, though on 13 April 2018 the approval was extended to 13 April 2023.
14.Departmental records indicate that the applicant was previously counselled about their sponsorship obligation and received a satisfactory outcome in relation to that interaction with the Department on 16 May 2018.
15.Following allegations received by the Department, monitoring of the applicant’s compliance with sponsorship obligations commenced on 8 April 2019. The period of the monitoring was from 1 October 2018 to 31 March 2019. At the time, the following persons were sponsored by the applicant:
·Ms Gurdeep Singh in the occupation of Café or Restaurant Manager with a nominated base salary of $55,000.
·Mr Rajat Soni in the occupation of Cook with a nominated base salary of $54,000.
·Ms Gurpreet Kaur in the occupation of Cook with a nominated base salary of $54,000.
16.This matter has a very long procedural history before the Department. On 31 May 2019, the Department sent the first notice under reg 2.83 requesting records and information about various matters, including the employment of the above-named sponsored persons. Mr Sharma provided various documents to the Department in response to the reg 2.83 notice. A telephone interview was also conducted with Mr Sharma on 6 June 2019. Further allegations were received by the Department about the applicant’s conduct towards his sponsored employees. Information also came before the Department indicating that the applicant was the subject of investigations by the Fair Work Ombudsman (FWO). Between September 2019 and July 2020, the Department sought to obtain information from third parties about the applicant, its director (Mr Sharma), and the sponsored persons. In September 2020, telephone interviews were conducted with the sponsored persons. Documents were subsequently received by the Department from Mr Rajat Soni and Ms Gurpreet Kaur about their employment with the applicant and the outcome of the FWO investigation. On 27 January 2021, the Department sought further information from FWO about the investigation. On 24 February 2021, the Department issued a second NOITTA. After considering the applicant’s response to that NOITTA, the Department made a decision under s. 140M of the Act to bar the applicant from sponsoring any more people under the terms of their existing sponsorship.
17.In determining whether a circumstance exists for the taking of an action, the Tribunal has had regard to all the relevant evidence before it as follows.
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 NOITTA identified the following obligations, which the delegate considered may have breached by the applicant:
·Reg 2.79: Obligation to ensure equivalent terms and conditions of employment.
·Reg 2.82: Obligation to keep records.
·Regulation 2.83: Obligation to provide records and information to the Minister.
·Regulation 2.84: Obligation to provide information to Immigration when certain events occur.
·Regulation 2.86 Obligation to ensure primary sponsored person works or participates in nominated occupation, program or activity.
The obligation in reg 2.79 relevantly requires a standard business sponsor (or former standard business sponsor) of a primary sponsored person, who holds (or last held) a Subclass 457 visa on the basis of a nomination made before 18 March 2018, to ensure that the terms and conditions of employment provided to the primary sponsored person are no less favourable than those indicated in the nomination when it was approved and are no less favourable than those that would be provided to an equivalent Australian worker.[1]
[1] Reg 2.79(3)(a).
The documents provided to the Department by Mr Sharma which are relevant to the assessment of this obligation include the following:
·Contracts of employment for the sponsored persons
·Job descriptions and rosters
·Payslips and bank transfers
·Timesheets and leave records
·PAYG summaries and sponsorship costs
·Recruitment information
·Incident summary regarding Mr Sharma’s stolen laptop.
·Information regarding labour market testing conducted.
·Notification of cessation of employment by Ms Gurpreet Kaur and Mr Rajat Soni, dated 18 August 2019.
·Medical reports for Ms Gurdeep Kaur.
22.In addition to the above documents. the Tribunal also has before it the bank records pertaining to the applicant and the sponsored employees.
23.In respect of the wages paid to Ms Gurdeep Kaur, there were minor discrepancies between the wages indicated on the payslips/EFT receipts and those transferred to her bank account. There was also no independent evidence of the annual leave payments (as suggested by the payslips) in February and March of 2019. Further, the payslips for Ms Gurdeep Kaur suggests that she received a gross salary of $24,494 which represent 11 salary payments of $2226 gross in each fortnight, however, there was only evidence of 10 salary deposits having been made in that financial year.
24.In respect of Mr Rajat Soni, the evidence raised concerns that Mr Soni may have been coerced by the applicant to take leave without pay for an extended period (between 6 December 2018 and 18 June 2019) and that he was not paid his leave entitlements. There was also no independent evidence of Mr Soni having received the wages identified on the payslip dated 17 July 2019. The delegate also raised concerns that Mr Soni may not have been getting paid in accordance with the minimum Award for a Level 4 Cook (AQF Cert III qualified). The delegate calculated the annualised wage to be $54,414 for the 2018 financial year and $56,069 for 2019.
25.In respect of Ms Gurpreet Kaur, the evidence also raised concerns that she may have been coerced to take leave without pay on two occasions: from 10 October 2018 to 6 November 2018, and from 2 January 2019 to 29 January 2019. The records also suggested that Ms Gurpreet Kaur had not received several wage payments during July 2019 and August 2019. Like Mr Soni, the delegate also considered that Ms Gurpreet Kaur was not being paid in accordance with the Award for a qualified Level 4 Cook.
26.In responding to the above concerns, Mr Sharma acknowledge that there had been a discrepancy in the payments for Ms Gurdeep Kaur and that he had back paid the shortfall of $8.80. In respect of the unpaid wage, Mr Sharma claimed that Ms Gurdeep Kaur had requested her annual leave wages be held later in the year and that the June 2019 payslips were created to reflect annual leave taken in February and March of 2019. Mr Sharma also provided evidence from his personal bank account indicating he had transferred one of the missing wage payments.
27.The Tribunal acknowledges that the underpayment of $8.80 was relatively minor and has been back paid, however, it was less than the earnings identified in the approved nomination and is therefore a breach of reg 2.79(3)(a)(iii).
28.In relation to the claim of annual leave being held until later in the year, the Tribunal had some difficulty reconciling the information on the payslips with when the actual leave payments were made. In evidence given during her interview, Ms Gurdeep Kaur indicated that she had taken a mix of paid and unpaid leave but did not mention that she had requested her leave entitlements be paid later as claimed by Mr Sharma. While the Tribunal had some concern about the credibility of the claim, there is information on the Department’s file which indicates that Ms Gurdeep Kaur was married to Mr Sharma’s brother (Hitesh) and so it is plausible that there was some arrangement between the parties about the timing of the paid leave. There is also evidence to indicate that the missing wage payment for Ms Gurdeep Kaur was paid by Mr Sharma from his personal account.
29.In respect of Mr Soni and Ms Gurpreet Kaur, Mr Sharma disputed that he forced them to take leave without pay. Mr Sharma gave evidence that Mr Soni and Ms Gurpreet Kaur became anxious because the monitoring process was taking too long and would affect their sponsorship. He said Mr Soni and Ms Gurpreet Kaur started to blame him for their situation, and that they had personal issues and went to the FWO to try and get more pay from him. Mr Sharma said that Mr Soni and Ms Gurpreet Kaur started to look for alternative employment and he was under a lot of pressure. He said they left the employment, took leave without pay, and then changed their story to suggest that they were entitled to more money.
30.The Tribunal has also had regard to the documents before the Department, including those provided to FWO by Mr Soni and Ms Gurpreet Kaur, and Mr Sharma’s responses to FWO. The sponsored employees claimed that Mr Sharma contrived the work rosters (hours of work) and the leave request documents. The Tribunal observed that that there were numerous discrepancies between the evidence given by the sponsored employees and Mr Sharma about the sponsored employees’ hours of work, claimed leave taken, leave entitlements and when they resigned from their positions. In the circumstances, the Tribunal considered it appropriate to rely on the outcome of the FWO investigation.
31.The FWO considered that Mr Soni and Ms Gurpreet Kaur were employed as Cooks (Grade 3 Level 4). The FWO found that the sponsored employees did not receive pay slips as required by the Fair Work Act. It was also found that the sponsored employees did not receive the correct leave loading allowance. The Tribunal notes that the allegations of forced leave without pay were made by Mr Soni and Ms Gurpreet Kaur as part of their complaint to the FWO, however, no findings were made by FWO to indicate that there was a breach by the employer in relation to those allegations. On this basis, the Tribunal is not satisfied that the Mr Soni and Ms Gurpreet Kaur were entitled to receive a wage during the claimed periods of leave without pay. The failure to pay the leave loading to which Mr Soni and Ms Gurpreet Kaur were entitled is, however, a breach of reg 2.79(3)(a)(iv) in that it was less than what an equivalent Australian performing the same work at the same location would have been entitled to.
32.Mr Sharma provided evidence to the Department of having paid (from his personal account) the missing wage payments identified by the delegate in the NOITTA.
33.The Tribunal notes that Mr Sharma’s poor record keeping and the discrepancies between amounts and dates within the records that were kept made it somewhat difficult to fully assess the applicant’s compliance with the obligation in reg 2.79. In any case, having regard to the evidence overall, including the findings of the FWO, the Tribunal considers that the applicant has failed to comply with their obligation in reg 2.79(3)(a) in respect of Ms Gurdeep Kaur, Mr Soni and Ms Gurpreet Kaur. The Tribunal acknowledges that the breaches in respect of this obligation were at the lower end of seriousness, in terms of the amounts involved, and has had regard to this when considering what action, if any, to take.
34.Regulation 2.82 requires a sponsor to keep records of the type specified in reg 2.82(3). The records must be kept in a reproducible format and, in respect of records relevant to the obligation in reg 2.79 (terms and conditions of employment), the records must be capable of being verifiable by an independent third party.
35.The Tribunal considers that the pay records in respect of Ms Gurdeep Kaur did not match the amounts that were paid into Ms Gurdeep Kaur’s bank account. There were also discrepancies between the payslip issued for annual leave and when she received the annual leave payment. The Tribunal has considered Mr Sharma’s explanation that he was asked to hold onto the annual leave payment, however, this does not overcome the fact that the dates of the payslips did not correspond with when the payments were made. The Tribunal accordingly finds that the applicant has failed to keep accurate records in relation to the wages and leave payments made to Ms Gurdeep Kaur.
36.In relation to Ms Gurpreet Kaur, it was also identified that the payslip for the fortnight ending 15 January 2019 indicated net wages of $1703 had been transferred, however, the bank records showed that she had received $2000 on 16 January 2019. In seeking to explain the discrepancy, Mr Sharma contended that in addition to the wages paid on 16 January 2019, he had reimbursed Ms Gurpreet Kaur $297 (being the difference between $2000 less the wages of $1703), as she used her own funds to pay for business related expenses. When asked to provide evidence to substantiate this claim, Mr Sharma indicated that the receipt would be too old to recognise, but he provided a copy of a receipt which was faded and difficult to read. The Tribunal considers that the applicant has not complied with the obligation to keep records that are capable of being verified in relation to funds paid to Ms Gurpreet Kaur.
37.Given the above, the Tribunal finds that the applicant has not complied with their obligation in reg 2.82.
38.Regulation 2.83 requires a sponsor provide records or information to the Minister in the manner, and within the timeframe, requested. The records that can be requested include those that must be kept under Commonwealth, State or Territory legislation and those required to be kept under reg 2.82.
39.On 7 December 2020, the Department wrote to Mr Sharma requesting evidence of all current and historic superannuation contributions made on behalf of the three sponsored persons. The applicant was requested to provide these records to the Department within 14 calendar days.
40.On 20 December 2020, Mr Sharma informed the Department that his work laptop had been stolen in February 2019 and that he could only provide the current (12 months) records, however, no superannuation records were provided to the Department. An officer of the Department contacted Mr Sharma and advised him to contact his bank and the respective superannuation organisations for this information, as the ATO and superannuation entities would have kept records which could be readily obtainable online. The Department extended the period by which Mr Sharma could provide this information by 14 calendar days.
41.On 19 January 2021 Mr Sharma sent an email to the Department stating that he believes the Department has direct access to the superannuation information. He stated that he had previously cooperated in providing information and is no longer prepared to provide the requested superannuation documentation.
42.At the hearing, Mr Sharma claimed that he had provided to the Department the documents he had kept. When it was put to him that he had failed to provide the documents evidencing superannuation payments despite being requested by the Department on two occasions, he said he lost his laptop and provided evidence of the police report to the Department. He said that by the time the Department requested the information the monitoring process had been going for a long time, he was getting tired of all the requests, he was stressed, he was having difficulty with the workers, his partner’s visa application was refused, she was in India, and he felt under a lot of pressure and was not coping.
43.The Tribunal has considered Mr Sharma’s response and while it accepts that the monitoring process took a long time, this does not overcome the failure to produce the documents requested by the Department. The applicant was under obligation to keep records of all payments made on behalf of the sponsored persons, including superannuation payments, and the applicant was required by reg 2.83 to provide those documents within the period specified. The failure to do so, led to the applicant being in breach of the sponsorship obligation in reg 2.83 and the Tribunal so finds.
44.Regulation 2.84 requires the sponsor to provide information to Immigration about when certain events occur. These events include notifying the Department if a sponsored person has ceased employment. The information must be provided within 28 days of the event occurring. The Department suspected that Ms Gurdeep Kaur had ceased working for the applicant as she had been residing in NSW. In responding to the NOITTA, Mr Sharma disagreed with the Department’s view that Ms Gurdeep Kaur had abandoned her employment. At the hearing, Mr Sharma stated that he informed the Department about Ms Gurdeep Kaur’s circumstances, including that she had medical issues, fell pregnant and had her baby in NSW and could not return to WA due to the COVID-19 travel restrictions. Mr Sharma stated that Ms Gurdeep Kaur did not leave the employment and was on leave without pay since 2018 and returned to WA when the restrictions were lifted.
45.The Tribunal has had regard to the medical documents on the Department’s file relating to Ms Gurdeep Kaur’s pregnancy and to Mr Sharma’s evidence that she took maternity leave, leave without pay and that she could not return to WA due to the restrictions. The Tribunal has also had regard to Ms Gurdeep Kaur’s evidence during her interview with the Department indicating that she has been on unpaid leave and that she had not left her employment with the applicant. Both Mr Sharma and Ms Gurdeep Kaur have denied that Ms Gurdeep Kaur had ceased employment with the applicant, and both claimed that she has been on leave without pay due to pregnancy complications, the birth of her child and travel restrictions. Given the evidence before it, the Tribunal considers that the suspected non-compliance with reg 2.84 has not been established. The Tribunal accordingly finds that there has been no breach of reg 2.84 by the applicant.
46.Regulation 2.86 requires a sponsor to ensure primary sponsored person works in the occupation for which they were nominated. As noted above, the Department was concerned that Ms Gurdeep Kaur had ceased employment with the applicant as she had been residing in NSW. Having regard to the evidence in the preceding paragraphs relevant to Ms Gurdeep Kaur’s pregnancy, medical complications, being on leave without pay and the COVID-19 travel restrictions, including Mr Sharma and Ms Gurdeep Kaur’s evidence that Ms Gurdeep Kaur had not abandoned the employment with the applicant, the Tribunal is not satisfied that non-compliance with reg 2.86 has been established. The Tribunal accordingly finds that there has been no breach of reg 2.86 by the applicant.
47.As the Tribunal has found that there has been non-compliance with regs 2.79, 2.82 and 2.83, it follows that the prescribed circumstance in reg 2.89 exists for the purpose of s 140M of the Act. Before considering what action (if any) to take by reference to the matters in reg 2.89(3), the Tribunal will next determine whether the applicant has provided false or misleading information.
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 Department identified numerous documents provided to it which they suspected may contain false or misleading information. The information as particularised in the NOITTA included the following: a letter purporting to be from Mr Soni addressed to Mr Sharma requesting leave without pay; timesheets for Mr Soni and Ms Gurpreet Kaur indicating that they worked 38 hours a week; a Form 1022 (Change of Circumstances) which was lodged in relation to the Nomination of Ms Gurdeep Kaur for the Employer Sponsored (Subclass 186) visa indicating a change of location of employment in November 2019 and pay records which did not accurately reflect the dates on which Mr Soni and Ms Gurpreet Kaur were paid their wages.
The Tribunal has considered evidence pertaining to each of the above documents. In relation to the letter from Mr Soni for leave without pay, the Department had information before it from Mr Soni denying that he had written that letter. Mr Sharma, however, has maintained that the letter was written by Mr Soni and was signed in his presence. The Tribunal notes that other than Mr Soni’s denial of having signed the letter, there is limited other evidence to confidently establish that the signature on the leave request letter was falsified. Information on the Department’s file appears to suggest that the letter was provided to FWO as part of the investigation, however, there was nothing in the outcome of that investigation which was of assistance in ascertaining whether the content and/or signature had been contrived. The evidence before the Tribunal does not establish that the leave without pay letter contained information that was false or misleading.
As to the timesheets, the Department had information before it from Mr Soni and Ms Gurpreet Kaur denying that the timesheets (or accompanying rosters) were accurate and said that they had worked more than 40 hours and sometimes up to 50 hours a week. Other information before the Department also included records from Workhour App used by the sponsored employees to record their hours. Mr Sharma maintained that his records were accurate and had been signed by Mr Soni and Ms Gurpreet Kaur. He claimed that the records kept by the employees were not accurate and that FWO had identified discrepancies in those records. At the hearing, Mr Sharma maintained that his employment records and timesheets were accurate and that the sponsored employees worked standard hours each week and had signed the timesheets. Information on the Department’s file suggests that the competing records kept by Mr Soni and Ms Gurpreet Kaur were provided to FWO as part of their investigations. Information on the Department’s file suggests that FWO did not have sufficient evidence to make conclusive findings regarding excess hours worked. Furthermore, the outcome of FWO’s investigations do not include findings that the employees had not been paid for excess hours worked. Having carefully considered the evidence before it, the Tribunal notes that while there are concerns regarding the accuracy of the records kept by Mr Sharma, the evidence does not establish with any confidence that the timesheet records are false or misleading.
In relation to the Form 1022, which was signed by Ms Gurdeep Kaur, was provided to the visa processing section in September 2019 indicating Ms Gurdeep Kaur’s residential address in WA and, relevantly, that her employment had moved from the applicant’s Restaurant in Wandina to the Restaurant on Chapman Road. The evidence before the Department, however, was that Ms Gurdeep Kaur had been residing NSW since early 2019 and had returned to WA only in December 2020. Other evidence before the Department, as provided by Mr Sharma, was that Ms Gurdeep Kaur had been on leave without pay since around March 2019. The delegate was concerned that Ms Gurdeep Kaur was not physically present at work during the time she claimed to have changed work location.
53.At the hearing Mr Sharma explained that the Form 1022 was lodged with the Department by Ms Gurdeep Kaur. He said she had not informed him of when she was going to return to recommence work. He was aware of the Form 1022 being lodged because it was done on the advice of the migration agent after the Origin India Restaurant in Wandina closed. They received advice from the agent that they should notify the Department of the closing down of the Wandina Restaurant and inform them that Ms Gurdeep Kaur’s employment had been transferred to the other location. The Tribunal acknowledges the concerns raised in the NOITTA that the Form 1022 appears to suggest that Ms Gurdeep Kaur was living and working in WA when this was not the case.
54.Mr Sharma claims that he did not lodge the Form 1022 and that this was done by Ms Gurdeep Kaur and/or the migration agent on her behalf. If this is the case, and the Tribunal has been unable to identify any other evidence of the Department’s file to the contrary, then it cannot be established that the applicant had provided false or misleading information to the Department about Ms Gurpreet Kaur’s employment with the applicant. Secondly, Mr Sharma’s explanation about why the Form 1022 was provided appears plausible, when considered in the context of other claims that Ms Gurpreet Kaur, despite living in NSW due to complications with her pregnancy, was still in an employment relationship with the applicant and had an intention to return to work when she was able to do so. Notwithstanding the concerns of the Tribunal that the Form 1022 indicated an address at which Ms Gurpreet Kaur was actually residing at the time the form was lodged, the explanation indicating that the purpose of the form was notify the Department of the closing of the restaurant location initially identified in the nomination and to advise of the transfer of Ms Kaur’s employment to another restaurant appears plausible. In the circumstances, the Tribunal is not satisfied that the evidence before it establishes that the Form 1022 was given by the applicant and that it contained false or misleading information about Ms Gurdeep Kaur’s employment.
In relation to the concerns regarding the inaccuracies in the pay records, for reasons discussed above, the Tribunal considers that the discrepancies were due to poor record keeping and the failure to transfer to the employees the full amounts noted on the payslips rather than a deliberate act on the part of Mr Sharma to provide false or misleading payslip documents to the Department. The bank records, including Mr Sharma’s personal bank account records, indicate that the sponsored employees were paid (but for minor discrepancies) the amounts indicated on the payslips. Therefore, the Tribunal does not consider the pay records provided to the Department to be false or misleading.
56.Having regard to all the above, 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
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. However, the applicant was the subject of an educational site visit was conducted in 2018 to assist the applicant with understanding their sponsorship obligations. The outcome of that visit was recorded as 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(3)(a) on the occasions that the sponsored employees were underpaid and/or not paid their leave loading entitlements. The Tribunal has also found that the applicant has failed to comply with reg 2.82 and reg 2.83, these failures occurred during the monitoring process, which commenced in April 2019 and did not conclude until June 2021.
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
At the hearing, Mr Sharma gave evidence that running of the restaurant businesses was stressful, as was the lengthy monitoring process. He said the sponsored employees, Mr Soni and Ms Gurpreet Kaur, started to worry about the length of time the monitoring was taking and that was why the dispute started and they made allegations against him. He said they were worried about their visas and started to look for other jobs.
While the Tribunal accepts that the monitoring process took a long time to resolve, the Tribunal nevertheless considers that Mr Sharma’s poor record keeping and the failure to provide records to the Department as requested was of his own making. Mr Sharma had been counselled by the Department in 2018 about his sponsorship obligations and should have made every effort to ensure that he complied with those obligation. In relation to the failure to comply with reg 2.79(3)(a), the Tribunal considers that any underpayment of wages and/or non-payment of annual leave entitlements were at the lower end of seriousness given the amounts involved.
The period of time over which the person has been an approved sponsor
The applicant has had several sponsorship agreements approved since December 2014.
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 to ensure equivalent terms and conditions of employment had a direct impact on Mr Soni and Ms Gurpreet Kaur as they did not receive the entitlements owing to them. The underpayment for Ms Gurdeep was a much smaller amount of $8.80 and the applicant has indicated that this amount has been back paid.
The Tribunal also considers that the failure to keep accurate records and provide those records to the Department had an impact on the Department’s ability to fully assess the applicant’s compliance with their sponsorship obligations, including those which relate to the sponsored employees’ superannuation entitlements.
Whether, and the extent to which, the failure to satisfy the sponsorship obligation was intentional, reckless or inadvertent
Mr Sharma gave evidence that the problems with him keeping accurate records was due to the stress of trying to run the businesses, as he had no assistance and was trying to do everything himself. He said he was no longer able to afford the assistance of a migration agent as the process was taking too long. He also indicated that his laptop had been stolen, he provided evidence of this to the Department and explained why he could not provide the superannuation records.
The Tribunal acknowledges Mr Sharma’s evidence that managing and operating the restaurant businesses was stressful, however, the Tribunal considers that Mr Sharma was under an obligation to ensure that he adhered to all the legal requirements (under employment law and immigration law) associated with operating a business, employing staff and being an approved standard business sponsor. Mr Sharma was required to ensure employees received their correct entitlements, that accurate records were kept, and he was under obligation to provide evidence of those records when requested. His failure to do so was, in the Tribunal’s view, reckless.
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 generally cooperated with the Department throughout the monitoring process. However, it is noted that Mr Sharma declined to make further efforts to obtain (and provide) evidence of the superannuation payments despite being requested by the Department and being advised on how the records could be obtained.
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 decision record indicates that in relation to the non-compliance with reg 2.79, the shortfall in payment has been rectified for one of the sponsored employees. No steps appear to have been taken to rectify other breaches.
The processes (if any) the person has implemented to ensure future compliance with the sponsorship obligation
At the hearing, Mr Sharma indicated that he would like to establish a new business in future and start afresh. He said he has learnt from the past and is committed to educating himself on the new technologies which will assist him to comply with sponsorship obligations. He said he would implement single touch payroll (STP) and will be more informed about the requirements 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 obligations 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 Sharma gave evidence that the breaches occurred during a very difficult personal time in his life. The sponsored employees were worried about their visa situation and started to blame him. He had to respond to the FWO investigations and respond to the Department. The processes took a long time and took a toll on his mental health.
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 approval as a standard business sponsor, which at the time still had 22 months to run. The period of the bar was based on a finding by the delegate that the applicant had breached their sponsorship obligations and provided false and misleading information to the Department.
The Tribunal has found that the applicant has failed to satisfy the sponsorship obligations in regs 2.79, reg 2.82 and re 2.83. However, it was not satisfied that the applicant had provided false or misleading information to the Department as set out in the NOITTA. In the circumstances, the Tribunal considers it appropriate to reduce the period of the bar to a period that commensurately reflects its findings.
Considering the totality of the circumstances, as discussed above, the Tribunal considers that the period of the bar should be reduced to 12 months from the date of the delegate’s decision. This means the bar ended on 8 June 2022.
DECISION
The Tribunal varies the decision under review by reducing the bar to a period of 12 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.

[2023] AATA 4062

15 November 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

Natural Justice