Safe Solutions Australia Pty Ltd (Migration)

[2022] AATA 2567

Safe Solutions Australia Pty Ltd (Migration) [2022] AATA 2567 (4 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Safe Solutions Australia Pty Ltd

REPRESENTATIVE:  Mahalingam Sutharshan (MARN: 0961664)

CASE NUMBER:  1916841

HOME AFFAIRS REFERENCE(S):          OPF2017/15913

MEMBER:Namoi Dougall

DATE:4 May 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to take one or more of the actions specified in s 140M of the Migration Act 1958.

Statement made on 04 May 2022 at 1:01pm

CATCHWORDS
MIGRATION – cancellation – sponsorship approval – compliance with sponsorship obligations – equivalent terms and conditions of employment – Accountant (General) – Senior Accountant – minimum annual market salary rate (AMSR) – approved nomination application – evidence on the Department’s file – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 140M

Migration Regulations 1994 (Cth), rr 2.79, 2.89

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.

2. The applicant was approved as a standard business sponsor on 11 May 2013. On 11 June 2019, the delegate decided to bar the applicant for a period of two years until 11 June 2021 from sponsoring other people under s 140M on the basis that the applicant had not satisfied sponsorship obligations as the applicant had breached reg 2.79, the obligation to ensure equivalent terms and conditions of employment as Mr Hasan, Senior Accountant had not been paid the market salary rate for a Senior Accountant.

3. The applicant was represented in relation to the review.

4. On 2 March 2022, the Tribunal wrote to the applicant pursuant to s 359(2) of the Act setting out the circumstances that led to the applicant being barred from being a sponsor until 14 March 2020 and inviting the applicant to provide a submission addressing the criteria set out in reg 2.89.

5. The letter also advised that if the information was not provided within the period allowed, or as extended, the Tribunal may make a decision without taking any further action to obtain the information and the applicant will also lose its right to appear before the Tribunal at a hearing. The applicant did not respond to the Tribunal’s letter of 2 March 2022 within the period allowed.

6. On 18 March 2022, outside the period allowed for a response the applicant’s representative sent an email to the Tribunal stating that the applicant will provide a submission as to why they believe the sponsorship ban should not have been imposed once the matter has been constituted and a hearing listed.

7. On 18 March 2022, the Tribunal wrote to the applicant stating that the response to the Tribunal’s letter was on 18 March 2022 and was outside the timeframe provided which was 16 March 2022 and that the applicant had, therefore, lost its right to a hearing. The letter also stated that the Tribunal had, nevertheless, decided to delay making its decision and if the applicant would like the Tribunal to consider any further material then that material must be provided to the Tribunal before 30 March 2022 after which the Tribunal will proceed to a decision.

8. On 30 March 2022, the applicant responded to the Tribunal’s letter of 18 March 2022 with a submission. It was submitted that the Tribunal had in its letter of 2 March 2022 failed to specify under which section of the Act the Tribunal had invited the applicant to provide information. The letter did state clearly the timeframe, which is the prescribed period, within which the applicant was to respond to the Tribunal’s invitation to provide information set out in its letter of 2 March 2022 as well as the consequences of not providing the information, or requesting an extension of time, within the period allowed.

9. The submission also refers to reg 4.17(4) and that the prescribed period for giving information or comments commences when the person receives the invitation and ends 14 days after the day the person receives the information. The submission correctly states that as the Tribunal sent the letter inviting the applicant to provide information on 2 March 2022 the deadline to provide information starts from 3 March 2022, however, the submission incorrectly stated that the period ends on 17 March 2022 as that is 14 days after the day the person received the invitation. The period within which the information is to be provided starts on the day after the date the invitation is received and includes that day in the 14 days to the end of that period. That is, in the circumstances of this review the period within which the information was to be provided started on, and included, 3 March 2022 in the 14-day prescribed period, which meant that the day after the 14-day prescribed period ended is 16 March 2022 and not 17 March 2022 as submitted.

10. In light of the above, on 13 April 2022 the Tribunal wrote to the applicant stating that the Tribunal will be finalising its decision after 20 April 2022 and will take into account all submissions and information provided on behalf of the applicant.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

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

2. 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.

3. 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.

4. 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?

1. In the present case, the delegate found that the applicant had failed to satisfy reg 2.79 –  Obligation to ensure equivalent terms and conditions of employment.

Failure to satisfy a sponsorship obligation: reg 2.89

1. 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).

2. The applicant was most recently approved as a standard business sponsor on 11 May 2013. On 14 February 2015, the Department approved Mahmud Hassan for the position of Accountant (General) with the applicant on a base salary of $55,000.

3. On 7 November 2017, the Department commenced monitoring the applicant. As part of that monitoring notices were issued to various banks in relation to the applicant, and three of the applicant’s employees, bank accounts.

4. On 22 August 2018, the Department conducted a site visit at the applicant’s premises in Mascot and issued a Notice requesting records and/or information on the applicant.

5. On 4 September 2018, the applicant responded to the Notice requesting records and/or information by providing the requested documents which included for the three employees of the applicant the following: payslips, PAYG summaries; EFT receipts; and employment contracts.

6. On 15 May 2019, Departmental officers conducted a further site visit.

7. On 16 May 2019, Departmental officers interviewed Mr Hasan at which Mr Hasan stated that in Bangladesh he was a CFO/Secretary at Summit Power and he was offered by a director of the applicant $55,000 as that is the minimum amount that can be paid. Mr Hasan stated that his employer had the opportunity to work with him using his skills and had the opportunity to develop his firm using Mr Hasan’s advice and workmanship. He is also a member of FIPA. The other two employees enter information for each client into spreadsheets and submit that spreadsheet to Mr Hasan for review and, if necessary, he will change the data. After that the information is submitted to the director. He is the supervisor of the other two employees and has been a supervisor from when he had learnt Australian accounting systems. The director sends a workplan to Mr Hasan and he allocates the work to the other employees as he is aware of their work. Mr Hasan also stated that as far as he is aware he is getting the same salary as the other employees. Mr Hasan listed what his duties were and how he has helped the business increase. Mr Hasan stated that the market rate for his experience and skills was $75,000 but he has not asked for that amount. He has asked for a pay increase. Mr Hasan was referred to the website that stated he was a Practice Manager, however, Mr Hasan stated that to be a Practice Manager you have to be a permanent resident or citizen, but he has all of the qualifications. He can perform the duties, but he cannot call himself that.

8. On 16 Mary 2019 a Departmental officer also interviewed Mr Billah who stated during the interview that he reports to Mr Hasan and he is paid $2,100 gross which he later confirmed is $55,000.

9. The Departmental files indicate that the delegate had considered on 22 May 2019 the following opensource information in relation to the average salary for a Senior Accountant: PayScale; Indeed and Glassdoor. There are no screenshots of the pages accessed by the Department on 22 May 2019.

10. On 23 May 2019, the Department issued on the applicant a Notice Of Intention To Take Action (NOITTA) setting out the particulars of the circumstances for which action was being considered including that on 7 November 2017 the Department commenced monitoring the sponsor. On 14 February 2015, the Department approved Mahmud Hassan for the position of Accountant (General) on a base salary of $55,000. Departmental officers interviewed Mr Hassan who stated that he supervises, reviews and allocates work to two other General Accountants. Mr Hassan also stated that with his qualifications and skills he worth is $75,000 per annum and he only accepted $55,000 because of his children’s future in Australia.

11. The NOITTA refers to the applicant listing Mr Hassan on its website as Practice Manager. The decision then summarises Mr Hassan’s profile on the applicant’s website as follows:

    [H]e is a senior level executive with extensive hands on experience in managing the Company finances, Accounts and Corporate Affairs. A fellow Cost and Management Accountant from the Institute of Cost & management Accountants of Bangladesh (ICMAB). Having extensive experience in financial management, infrastructure finance, structured finance, foreign currency finance, and capital markets. Accredited as a Public Accountant from the Institute of Public Accountant (IPA).

12. The NOITTA also stated that based on Mr Hassan’s experience and skills he appeared to be a Senior Accountant and that open sources indicated that the average salary for a Senior Accountant was between $74,051 and $85,163 per annum. The pay records on the Departmental file indicated that Mr Hasan was paid $55,000 per annum.

13. On 3 June 2019, the applicant responded to the Department’s NOITTA (the response). It was submitted in the response that at the time of the nomination the correct minimum annual market salary rate (AMSR) was $55,000 based on the Department’s approval of the business nomination application. The response further submitted that Mr Hassan as an accountant spent 95% of his effort as follows:

    prepare and examine financial records, examine statements to ensure accuracy, ensuring statements and records comply with laws and regulations, computing taxes owed, preparing tax returns, ensuring prompt payment, inspecting books of accounts and accounting systems to keep up to date, organizing and maintaining financial records, improving businesses efficiency where money is concerned, making best-practices recommendations to management and suggesting ways to reduce costs which enhance revenues and improve profits

14. It was further submitted in relation to supervision and the other 5% of Mr Hasan’s work that he:

    does not directly involve to the supervisory level but approximately 5% of his work load is related to review, checking of the financial data and statements prepared by other accountants and form an opinion about whether the financial report complies with the accounting standards as well as about certain other matters and report to Directors e.g. whether all working papers been checked for accuracy and completeness and complete the due diligence process for verification, investigation of an potential opportunity to confirm all facts and financial information

15. The response further stated that the applicant did not have knowledge of the rules and accounting standards in Australia but after time he acquired that knowledge which established him as a skilled employee. However, the response stated that applicant does not have the position of Senior Accountant to offer Mr Hasan. Further, the response stated that Mr Hasan enhanced the professionalism across the whole planning process, not just the preparation of financial forecasts but also statements.

16. It was also submitted that the applicant has found that the work culture that includes perks such as flexible schedules and an inspiring work environment was more effective in motivating the applicant’s employees than higher salaries.

17. On 20 April 2022, the applicant provided a submission addressing the criteria in reg 2.89. In particular it was submitted that the business is running and solvent and there has been no more compliance actions except for the one the subject of this review. The submission referred to complying with sponsorship obligations as they have performed enquiries as to the market rate for equivalent work and referenced employment websites for the research. Unfortunately, the Tribunal cannot verify if any market research was conducted in 2018 as the links provided to the various employment websites only open pages with current job advertisements.

18. The submission also stated that steps were taken within reasonable time to rectify Mr Hasan’s salary. However, the Tribunal notes that the applicant only rectified Mr Hasan’s salary in August 2020 with is 14 months after the delegate’s decision. The submission also stated that any failure to comply with sponsorship obligations was in advertent. The submission also stated that sadly Mr Hasan passed away in December 2021.

19. The sponsorship obligation in reg 2.79 requires a business sponsor to ensure that the terms and conditions of employment provided to a sponsored person are no less favourable than the terms and conditions of employment that are provided to an Australian citizen or permanent resident. The Tribunal notes that the nominated occupation was Accountant (General) and that there is no ANZSCO occupation code for Senior Accountants. Further, the tasks list for the unit group 2211 Accountants and the descriptions for each of the positions under that unit group do not include the task of supervision of other accountants. The addition of a supervision task may mean that Mr Hasan’s salary should have been more than $55,000 but unfortunately there is no independent evidence on the Department’s file beyond Mr Hasan’s own statements at interview. This is because the Department did not include screenshots of the independent opensource information that they relied on from the PayScale, Indeed and Glassdoor websites or the details from each of the websites including what was the salary information shown on each. Nor do the links set out on the Departmental file show relevant job advertisements and salary information for the relevant time period as the information is current to the date and time it is accessed.

20. On the evidence on the Departments file, the Tribunal accepts that Mr Hasan performs the tasks associated with the nominated occupation as listed in ANZSCO and also performs the task of supervising more junior accountants. This may mean that Mr Hasan should be paid more than the $55,000 he was being paid at the time but there is no evidence on file to indicate what that amount should be beyond Mr Hasan’s own statement that with his qualifications and skills he worth is $75,000 per annum. Without independent contemporaneous information the Tribunal cannot be satisfied that the Department’s assessment that Mr Hasan’s salary should have been between $74,051 and $85,163 per annum is accurate and, therefore, that the terms and conditions are less favourable than the terms and conditions of employment that are provided to an Australian citizen or permanent resident. Therefore, the Tribunal cannot be satisfied that the applicant has breached sponsorship obligations: reg 2.79.

21. Accordingly, the Tribunal is not satisfied that the prescribed circumstance in reg 2.89 exists for the purpose of s 140M of the Act.

22. As the Tribunal finds that none of the circumstances for s 140L(1)(a) exist, it follows that the power to take an action under s 140M does not arise.

DECISION

1. The Tribunal sets aside the decision under review and substitutes a decision not to take one or more of the actions specified in s 140M of the Migration Act 1958.

Namoi Dougall
Member

ATTACHMENT – Extract from the Migration Regulations 1994

2.89   Failure to satisfy sponsorship obligation

…

1. 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.

…