SJ INFINITY PTY LTD (Migration)
[2021] AATA 2701
•11 May 2021
SJ INFINITY PTY LTD (Migration) [2021] AATA 2701 (11 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: SJ INFINITY PTY LTD
CASE NUMBER: 1926121
HOME AFFAIRS REFERENCE(S): OPF2018/9684
MEMBER:Bridget Cullen
DATE:11 May 2021
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision under review.
Statement made on 11 May 2021 at 4.47pm
CATCHWORDS
MIGRATION – cancellation – standard business sponsor – compliance with sponsorship obligations – equivalent terms and conditions of employment – underpayment of nominee – leave without pay – nominee working for another related company in different occupation – action to be taken – deliberate conduct – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 140L, 140MMigration Regulations 1994 (Cth), rr 2.79, 2.89
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
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 (the Act) in relation to the applicant’s sponsorship.
The applicant was approved as a standard business sponsor on 16 May 2014. They had applied for further sponsorship on 26 June 2018, but this application was withdrawn on 3 July 2019. On 27 August 2019, the delegate decided to bar the sponsor from making applications for approval as a standard business sponsor and temporary activities sponsor for 24 months under s.140M on the basis that the sponsor breached r.2.89 by failing to satisfy their sponsorship obligations.
The applicant, by way of Jian Zhao, appeared before the Tribunal on 7 December 2020 to give evidence and present arguments. The hearing was held as a combined hearing with two related matters: (1) Matter 1930571 (refusal of nomination of occupation of Massage Therapist); and (2) Matter 1933838 (related nominee visa refusal). Mr Jian Ge also gave evidence to the Tribunal.
The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. Mr Zhao told the Tribunal that he had lived in Australia for 11-years and conducted his business dealings in English, he wanted to have full interpretation given the nature of the proceedings.
The applicant was represented in relation to the review by its registered migration agent, Mr Hang Chen (MARN 0854662) of No Worries Visas Pty Ltd. Mr Chen attended the Tribunal hearing.
At the commencement of the hearing, the Tribunal disclosed the s.376 non-disclosure certificate that was on the Departmental file, dated 23 September 2019. The Tribunal provided the applicant’s representative an opportunity to make submissions in relation to the validity of the certificate. The applicant did not wish to make any submissions in relation to the certificate.
For the following reasons, the Tribunal has decided to affirm the decision under review.
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?
In the present case, the delegate found that the applicant had failed to satisfy a sponsorship obligation, a breach of r.2.89. The delegate identified a breach of r.2.79 – the obligation to ensure equivalent terms and conditions of employment.
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).
On 31 July 2019, the Department issued a Notice of Intention to Take Action (“NOITTA”) under r.2.96 of the Regulations. The delegate was satisfied that circumstances existed warranting barring the applicant from further use of the sponsorship program.
The circumstance identified by the delegate was a breach of r.2.79. This is an obligation on sponsors to ensure that equivalent terms and conditions of employment exist for their nominees.
The delegate found that one of the nominees, Jian Ge, had been underpaid $31,012.65 and another nominee, Meijie Zhang, had been on Leave Without Pay for an extended duration and that period was such a duration that it was incompatible with the purpose of the temporary skilled visa program. As such, the delegate found that Meijie Zhang had been underpaid, but did not state the amount of the underpayment.
The response to the NOITTA was received by the Department on 13 August 2019. The applicant disagreed with the findings and stated that both the nominees had taken long periods of unpaid leave on the basis of being sick. The applicant stated that Fair Work protected employees from dismissal when on sick leave for less than three consecutive months, and that even though they were no longer protected from being dismissed, that the nominee was ‘kind enough to keep the positions for them with the hope they can recover soon and return to their position’.
Based on the information available to the delegate at the time of their decision, that the nominees were still on leave without pay and no confirmed plan to return to work, and that in the absence of a formal application for leave without pay or any documented plan to return to work, the delegate was satisfied that underpayment had occurred.
The applicant did provide the Tribunal with a copy of the delegate’s decision record, but did not otherwise lodge any new written evidence or submissions in the Tribunal. The applicant did file material that had already been provided to the Department, under the related file number 1930571, which the Tribunal has considered in relation to this matter despite the applicant not actually filing the material in the matter that is the subject of this decision. The Tribunal confirmed with Mr Chen that the applicant did not have any additional information to provide to the Tribunal. Mr Chen confirmed that there was no new evidence in relation to the current sponsorship bar case.
The Tribunal provided the applicant, and Mr Chen, with multiple opportunities to explain to the Tribunal what the applicant’s position was in relation to whether it failed to satisfy a sponsorship obligation.
The Tribunal confirmed that more than 30-weeks “leave” was taken by Jian Ge, which was purportedly for a back injury sustained in February of 2018. The applicant told the Tribunal that he provided a copy of medical documents related to Mr Ge’s back injury to the Department. It is not necessary for the Tribunal to determine whether, in fact, Mr Ge sustained a back injury because the information before the Tribunal suggests that he was working elsewhere during the period that he was supposedly on leave.
The Tribunal asked Mr Zhao if it was possible that Mr Ge was working elsewhere during the period he was on leave. The Tribunal was told it was not possible, as he stayed in China for treatment.
In relation to Meijie Zhang, Mr Zhao told the Tribunal that “she has mental problems, so how am I supposed to let them come back to work?” The Tribunal does not accept Mr Zhao’s evidence, as there is no evidence of any mutually agreed leave without pay arrangements, or documented plan for Ms Zhang to return to work.
Having regard to the process set out in s.359AA of the Act, the Tribunal disclosed to the applicant the general particulars of the information before it, that is subject to the s.376 Certificate. The Tribunal considered that it was procedurally fair for the applicant to be made aware of the nature of the information before it, which indicates that Mr Jian Ge was not working in the nominated position as a Massage Therapist, but was instead working for another related company as a Sales Manager.
Mr Chan told the Tribunal that the applicant did not require any additional time to be able to respond to this Information, indicating that Mr Zhao and Mr Ge were “both happy to answer the question right now”.
Mr Zhao then referred to Department monitoring at a company called “U-Flooring” and said that he had explained to the Department previously that he was involved in a project with Mr Ge’s brother, who was back in China. Mr Zhao told the Tribunal that Mr Ge was acting as his brother’s representative. Mr Zhau said that his brother had the title “Manager” of U-Flooring, but this was honorary.
The Tribunal does not accept the evidence of Mr Zhao, which it considers to be implausible and contrived. The Tribunal considers that the information obtained by the Department in conducting monitoring of the applicant, which is the subject of the s.376 Certificate is the most reliable information before the Tribunal.
Having put to the applicant the nature of the Certificate material, and hearing the applicant’s evidence in response, the Tribunal is confident that the applicant both understood the nature of the information and the Tribunal’s questions about Mr Ge’s employment. The Tribunal finds that Mr Ge was working for U-Flooring as “Manager”.
The Tribunal rejects Mr Zhao’s evidence in relation to Ms Zhang as lacking credibility, and the Tribunal finds that the applicant failed to satisfy its sponsorship obligations in relation to both Ms Zhang and Mr Ge. The evidence before the Tribunal supports a conclusion that both Mr Ge and Ms Zhang were underpaid, and in the case of Mr Ge, employed elsewhere. The Tribunal finds that the applicant did not comply with its sponsorship obligations to continue to employ and pay both workers and has failed to satisfy the obligation to ensure equivalent terms and conditions of employment.
Accordingly, the Tribunal is satisfied that the prescribed circumstance in r.2.89 exists for the purpose of s.140M of the Act.
Action to be taken
For these reasons, the Tribunal is satisfied that a relevant circumstance for s.140L(1)(a) exists. Accordingly, it is necessary to consider whether one or more of the actions mentioned in s.140M should be taken.
In considering what action to take, the Tribunal has had regard to the prescribed criteria, as extracted in the attachment to this decision.
The sponsor’s past and present conduct in relation to Immigration
The applicant was first approved as a sponsor on 16 May 2014 and has not been monitored in the past. On the basis that the Department’s decision reflects a view that the applicant “generally cooperated with the ABF’s attempts to conduct an audit of the [applicant’s] compliance with the sponsorship obligations”, the Tribunal weights this as a slightly positive factor in the applicant’s favour.
The number of occasions on which the sponsor has failed to satisfy the sponsorship obligation
The Tribunal finds that the applicant has failed to satisfy the obligation to ensure equivalent terms and conditions of employment for two of its sponsored subclass 457 visa holders, Mr Jian Ge and Ms Meijie Zhang. In the context of a workforce that has sponsored 8 persons through the 457 visa program, this is equivalent to 25% of the applicant’s sponsored employee workforce.
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 has taken a very dim view of the evidence given by Mr Zhao, which it has found lacks credibility. The Tribunal considers it significant that Mr Ge has been working for a company other than applicant, which Mr Zhao is also involved with, U-flooring. Given that the Tribunal does not accept the explanation given by Mr Zhao that Mr Ge was an “honorary” manager, the Tribunal considers that Mr Zhao was deliberately looking to mislead it, which it considers serious.
The period of time over which the sponsor has been an approved sponsor
As mentioned above, the applicant has been an approved sponsor since 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 failure to pay both Mr Ge and Ms Zhang their guaranteed annual earnings has a direct financial impact on them both. Additionally, allowing Mr Ge to work in a different business operated by Mr Zhao has an indirect impact on the Australian labour market, in that this role should be available to Australian workers.
Whether, and the extent to which, the failure to satisfy the sponsorship obligation was intentional, reckless or inadvertent
Although the applicant has generally complied with the ABF monitoring process according to the delegate’s decision record, the applicant has provided the Tribunal with perfunctory information. Where Mr Ge is concerned, the Tribunal considers it likely that the applicant knowingly allowed him to work in a different role for another company. Mr Zhao admits that Mr Ge was involved with U-flooring, but then suggests that cultural factors mean he was acting in an honorary capacity for his brother. The Tribunal finds this explanation entirely implausible.
Whether, and the extent to which, the sponsor has cooperated with Immigration, including whether the sponsor informed Immigration of the failure
The conduct that is the subject of this decision was only discovered through monitoring processes. Therefore, this is not a situation where the applicant became aware of its own shortcomings and then advised the Department.
The steps (if any) the sponsor has taken to rectify the failure to satisfy the sponsorship obligation, including whether the steps were taken at the request of Immigration or otherwise
There is no information before the Tribunal suggesting that the applicant has taken steps to rectify its failure to satisfy its sponsorship obligations.
The processes (if any) the sponsor has implemented to ensure future compliance with the sponsorship obligation
There is no information before the Tribunal suggesting that the applicant has implemented processes to aide in satisfaction of its sponsorship obligations in future.
The number of other sponsorship obligations that the sponsor has failed to satisfy and the number of occasions on which the sponsor has failed to satisfy other sponsorship obligations
There is no evidence before the Tribunal of other failures of sponsorship obligations by the applicant.
Any other relevant factors
Mr Jian Ge has an application for review before the Tribunal in relation to the refusal of an ENS Temporary Residence Transition (EN 186) visa associated with a nomination by the applicant for a position as a Massage Therapist (ANZSCO 411611).
Conclusions
The Tribunal has found that the applicant did breach r.2.89 in failing to satisfy sponsorship obligations. The Tribunal finds that the conduct by the applicant was deliberate and not accidental or inadvertent.
Considering the totality of the circumstances, and having regard to the prescribed criteria the Tribunal finds the actions mentioned in s.140M(1)(c) to bar the applicant from making applications for approval as a standard business sponsor and temporary activities sponsor for 24 months should be taken.
DECISION
The Tribunal affirms the decision under review.
Bridget Cullen
MemberATTACHMENT – 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.
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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Breach
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Statutory Construction
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Remedies
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Intention
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