Saranya Logistics Pty Ltd (Migration)

[2019] AATA 4126

Saranya Logistics Pty Ltd (Migration) [2019] AATA 4126 (6 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Saranya Logistics Pty Ltd

CASE NUMBER:  1822152

DIBP REFERENCE(S):  OPF2018/5813

MEMBER:Mary Sheargold

DATE:6 September 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal varies the decision under review by reducing the period of the sponsorship bar under s.140M(2) from 4 years to 3 months from the date of the Department’s decision, 23 July 2018.

Statement made on 06 September 2019 at 2:31pm

CATCHWORDS

MIGRATION – Nomination – failure to comply with sponsor obligations – lied to ABF about address – genuine remorse for mistake – admits false statement – decision under review varied

LEGISLATION

Migration Act 1958 (Cth), ss 140L, 140M, 375A
Migration Regulations 1994 (Cth), rr 2.84, 2.89, 2.90

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to take an action under s.140M of the Migration Act 1958 (the Act) in relation to the applicant’s sponsorship.

2. The applicant was approved as a standard business sponsor on 25 May 2012. On 23 July 2018, the delegate decided to bar the applicant for 4 years form making applications for approval as a standard business sponsor and temporary activities sponsor under s.140M on the basis that the applicant had failed to comply with a sponsorship obligation and also provided false or misleading information to the Department.

3. Mr Lovnish Mediratta, the director of Saranya Logistics Pty Ltd (the applicant), appeared before the Tribunal on 6 September 2019 to give evidence and present arguments.  

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

5. For the following reasons, the Tribunal has decided to vary the decision under review by reducing the period of the sponsorship bar under s.140M(2) from 4 years to 3 months from the date of the Department’s decision, 23 July 2018.

   Non-disclosure certificate issued pursuant to s.375A of the Act

6. At the hearing, the Tribunal informed Mr Mediratta that pursuant to s.375A of the Act, the Department had placed a non-disclosure certificate over folios 1-7 of the Departmental file.  The Tribunal told the applicant that the Department argued that disclosure of the documents sought to be protected by the non-disclosure certificate would be contrary to the public interest because they “contain documents or information which would normally be exempt from disclosure under Part IV of the FOI Act and do not fall within s.375.”

7. The Tribunal told Mr Mediratta that it found the non-disclosure certificate to be invalid, and that in any case, the Tribunal did not consider the information contained in those folios of the Departmental file to be relevant to the review.  The Tribunal noted that all relevant information was disclosed in the Notice of Intention to Take Action dated 27 June 2018 (NOITTA) and the Notice of Decision dated 23 July 2018.  The Tribunal invited Mr Mediratta to comment on the validity of the certificate.  After consultation with his representative, Mr Mediratta declined to comment.  As such, the Tribunal finds the non-disclosure certificate to be invalid.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

9. 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.

10. For these purposes, the circumstances are prescribed in r.2.89 - r.2.94B and include circumstances in which the Minister, or tribunal on review, is satisfied there has been: a failure to satisfy a sponsorship obligation; provision of false or misleading information; sponsorship application or variation criteria no longer met; a contravention of the law; unapproved changes to a program; a failure to pay additional security; a failure to comply with certain terms of an agreement; or a failure to pay medical and hospital expenses.

11. Where a prescribed circumstance has been found to exist, the regulations prescribe criteria that must be taken into account when determining what action, if any, to take: r.2.89 – r.2.94B. These criteria, as they relevantly apply to the circumstances of this case are set out in the attachment to this decision.

    Does a circumstance for the taking of an action exist?

12. In the present case, the delegate found that the applicant failed to satisfy a sponsorship obligation, and that the applicant provided false or misleading information to the Department.

    Failure to satisfy a sponsorship obligation: r.2.89

13. 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: r.2.89(2).

14. Regulation 2.84 obliges an approved sponsor to notify the Department when certain events occur.  Specifically, the Tribunal notes that r.2.84(3)(b)(ii) obliges an approved sponsor to notify the Department about a change to the sponsor’s address and contact details, and that in accordance with r.2.84(2)(b) and r.2.84(6), this must have been done within 28 days of the change of address.

15. Mr Mediratta admits that he did not notify either his representative or the Department in relation to the change of business address for the applicant’s business.  Of significance, the Tribunal notes that a period of over 2.5 years elapsed from the time the applicant ceased operating its business at 326 Keilor Rd, Niddrie, and commenced operating from Mr Mediratta’s home address, to the time the Department contacted Mr Mediratta to confirm that the business was operating at 326 Keilor Road, Niddrie.  As such, the Tribunal finds that the applicant breached its obligation in r.2.84 of the Regulations.

16. Accordingly, the Tribunal is satisfied that the prescribed circumstance in r.2.89 exists for the purpose of s.140M of the Act.

    False or misleading information: r.2.90

17. 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: r.2.90(2).

18. In the Notice of Decision, the Department found the applicant had provided false or misleading information to the Department, and had breached r.2.90 of the Regulations.  The Tribunal notes that this finding was made because Mr Mediratta lied to the Department in relation to the business address of the applicant’s business.  The Notice of Decision states, “in relation to this regulation, the sponsor confirmed in response to the NOITTA that a phone interview was conducted by the ABF on 15 June 2018, with Lovnish Mediratta who is both the sponsor and the visa applicant.”

19. The Notice of Decision goes on to say:

    The sponsor proposes that the responses provided during the interview with the ABF were not representations made on behalf of the business as a sponsor, but responses provided solely in the capacity of a visa applicant.  The sponsor admits that false statements were provided to the ABF officer during the phone interview, however had the sponsor been notified that the interview was between the ABF and the sponsor, not the ABF and the visa applicant, he would have provided the correct responses.

    I find the sponsor’s justification for providing false information to the ABF during the phone interview to be illogical.  Statements made to the ABF during the phone interview where [sic] made by Lovnish Mediratta, who is both the sponsor and the visa applicant.  Any statements made by Lovnish Mediratta are therefore taken to be made both in relation to the sponsor’s capacity as approved sponsor and as a visa applicant.”

20. By way of background, the Tribunal notes that at the hearing, Mr Mediratta acknowledged that he had established Saranya Logistics Pty Ltd and had sought approval from the Department as a standard business sponsor to sponsor himself for a Subclass 457 visa.  The Tribunal notes that approval as a standard business sponsor was granted on 25 May 2012 for a period of 3 years.  The Tribunal notes submissions from the representative at hearing that the applicant’s ENS approval to sponsor Mr Mediratta for a Subclass 186 visa was lodged on 29 June 2016 and approved on 12 January 2017.  The representative confirmed that Mr Mediratta’s Subclass 186 visa application had been lodged on 16 March 2017.

21. After receiving the NOITTA, Mr Mediratta provided the Department with a signed statutory declaration dated 3 July 2018.  In that statutory declaration, Mr Mediratta declares that on 15 June 2018, he received a telephone call from a person “whom I believed represented himself as the case officer dealing with my subclass 186 visa application.”  The applicant’s representative made written submissions to the Department, by email dated 4 July 2018, in response to the NOITTA stating that “respectfully, Mr Mediratta’s statutory declaration shows that the representations made were not on behalf of the company, but by him in the capacity as a visa applicant.”  The representative’s submissions go on to say, “when the call from Australian Border Force was made, the introduction was that the call was in relation [to] his visa application.”

22. At the hearing, Mr Mediratta told the Tribunal that the officer from Australian Border Force called and told him he had some questions in relation to his visa application.  The Tribunal notes the significance of this information, particularly in the context where Saranya Logistics Pty Ltd’s standard business sponsor approval had lapsed more than 3 years prior to the Department contacting Mr Mediratta on 15 June 2018, and where the applicant’s ENS application to sponsor Mr Mediratta for a Subclass 186 visa had been approved by the Department 17 months prior to Mr Mediratta receiving a telephone call from Australian Border Force.

23. Based on the evidence before it, the Tribunal finds that Mr Mediratta was not put on notice that he was being questioned by the officer from Australian Border Force as either a standard business sponsor or the nominating employer.  The Tribunal notes that in a situation where an officer of the Department contacted Mr Mediratta to discuss his “visa application,” had Mr Mediratta not been both the visa applicant and the director of the company sponsoring his visa application, he could not have been questioned by Australian Border Force as a sponsoring employer.  The Tribunal finds it was reasonable for Mr Mediratta to assume that he was only being questioned as a visa applicant and not as a sponsoring employer because he did have a visa application on foot with the Department, but his company’s ENS application had been approved 17 months earlier and his company’s standard business sponsorship approval had expired over 3 years earlier.  The Tribunal finds it was incumbent on the Departmental officer to expressly declare he was questioning Mr Mediratta as the director of Saranya Logistics Pty Ltd and not as a visa applicant in order for it to rely on Mr Mediratta’s statements in his conversation with the Department as being made on behalf of the company, rather than on behalf of himself as a visa applicant.  Based on the evidence before it, the Tribunal finds that the Departmental officer did not do so.

24. Further, the Tribunal notes its concerns in relation to the manner in which the officer questioned Mr Mediratta about Saranya Logistics Pty Ltd’s business address.  At the hearing, Mr Mediratta gave evidence that his business had ceased to operate from a virtual office based at 326 Keilor Road, Niddrie, in late 2015.  He told the Tribunal that in October or November 2015, he received a renewal notice for his virtual office at 326 Keilor Road, but that on 22 November 2015, he was involved in a significant car accident, after which he required shoulder surgery.  He stated that upon returning to work, the period for renewal of the virtual office had lapsed, and the provider had cancelled his virtual office.  He gave evidence that he contacted Hume City Council to ascertain whether it was permissible for him to maintain his business address from home and he was told that it was.

25. Mr Mediratta gave evidence that he believed the authorities were on notice regarding his change of business address, and has provided the Tribunal with copies of business activity statements from 2017 and 2018 demonstrating his home address being listed as the place of business.  The representative submitted he did not recall being asked for the business address when completing the applicant’s ENS application in the temporary residence transition stream, and that Mr Mediratta’s Subclass 186 visa application listed his home address and not his work address as his contact point.

26. Mr Mediratta gave evidence that when he was contacted by the officer from the Department, he was asked the question, “is the business located at 326 Keilor Road, Niddrie?”  Mr Mediratta gave evidence that it was at that moment that he realised he had not informed either his representative or the Department of the change to his business address, and that he panicked and made up a lie, where he told the officer that this was the business address, but that the business was not operating there at present because the office was under renovation for 2 months.  Mr Mediratta gave evidence that had he been asked the question, “where is the business located?” he would have advised the officer that the business operated from his home address, and it was only because the officer cited the address in Keilor Road, Niddrie, that Mr Mediratta realised he had failed to update the business address with the Department.

27. The Tribunal questioned Mr Mediratta at length as to why, if he was generally a law abiding and honest person as he claimed to be, he would lie rather than tell the truth to the officer.  Mr Mediratta expressed his genuine remorse for his mistake and stated he was not sure why he had lied, but he was nervous, shocked, and panicked while he was speaking to the officer and he thought it was the best thing to do at the time.  The Tribunal questioned Mr Mediratta at length as to whether he had truly only realised his error at the time of the Department’s telephone call or whether he had intentionally deceived the Department from November 2015 to the time of the Department’s call as to the applicant’s business address.  Mr Mediratta reiterated that he believed the authorities had been notified because his dealings with the Australian Taxation Office and the Australian Securities and Investments Commission were using the current business address, which is Mr Mediratta’s home address.

28. The Tribunal asked Mr Mediratta why he did not confess to the officer later in the telephone call as to his dishonesty.  Mr Mediratta told the Tribunal that the telephone conversation had commenced with the officer stating he was calling regarding Mr Mediratta’s Subclass 186 visa application, and the officer the questioned Mr Mediratta regarding his tasks in his job as a transport manager.  Mr Mediratta stated that he was then asked whether the business was located at 326 Keilor Road, Niddrie, and upon giving his explanation to the officer, the officer closed his questioning, confirmed Mr Mediratta’s email address, and ended the telephone call.

29. The Tribunal found Mr Mediratta’s evidence at the hearing to be frank and forthright, and observes that he showed genuine remorse for his mistakes.  The Tribunal notes that prior to this particular incident with the Department, neither Mr Mediratta nor the applicant had ever been found to breach any laws or regulations in Australia.  The Tribunal accepts Mr Mediratta’s evidence as genuine and credible, and notes there is no evidence from the Department to indicate that anything Mr Mediratta has stated to the Tribunal is untrue.  The Tribunal also notes that there is no evidence on the Departmental file to substantiate the Department’s claim that “the sponsor admits that false statements were provided to the ABF officer during the phone interview, however had the sponsor been notified that the interview was between the ABF and the sponsor, not the ABF and the visa applicant, he would have provided the correct responses.”  There is only regret and remorse expressed by Mr Mediratta for his decision to provide a false statement to the Department, and no indication that had he known he was being questioned as a sponsor rather than a visa applicant, his response to the officer’s question regarding the office location would have been different.

30. Based on all the evidence before it, the Tribunal is not satisfied that the prescribed circumstance in r.2.90 exists for the purpose of s.140M of the Act.

    Action to be taken

31. Given the findings above, the Tribunal is satisfied that a relevant circumstance for s.140L(1)(a) exists, that is, that the applicant failed to satisfy a sponsorship obligation in accordance with r.2.89. Accordingly, it is necessary to consider whether one or more of the actions mentioned in s.140M should be taken.

32. In considering what action to take, the Tribunal has had regard to the prescribed criteria, as extracted in the attachment to this decision.

33. The Tribunal notes that with the exception of this incident, the applicant has a good record of compliance and conduct in relation to its dealings with the Department.  The Tribunal finds that the applicant has failed to satisfy a sponsorship obligation on one occasion.  The Tribunal finds that while that failure occurred over an extended period of time, being in excess of 2.5 years, the failure to satisfy the obligation has not had a direct or indirect impact on another person.  The Tribunal finds the failure to satisfy the sponsorship obligation, in all the circumstances, to be reckless.

34. The Tribunal finds that the applicant did cooperate with the Department after the NOITTA was provided and the applicant itself was on notice regarding the Department’s investigation into its business address.  The Tribunal understands that the Department is now aware that the applicant’s business operates from Mr Mediratta’s home address.  The Tribunal notes that at the hearing, Mr Mediratta acknowledged he understood his sponsorship obligations, including that he needed to notify the Department if the place of business changed.  The Tribunal notes that the applicant has only had one approval as a standard business sponsor for a period of 3 years, and has only sponsored one worker, Mr Mediratta, in the time it was approved as a standard business sponsor.

35. Considering the totality of the circumstances, and having regard to the prescribed criteria the Tribunal finds that the action mentioned in s.140M(2) to bar the applicant for a period of 3 months from making future applications for approval as a standard business sponsor and temporary activities sponsor should be taken.

    DECISION

36. The Tribunal varies the decision under review by reducing the period of the sponsorship bar under s.140M(2) from 4 years to 3 months from the date of the Department’s decision, 23 July 2018.

    Mary Sheargold
    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.

    …