Sri Guru Gobind Singh Transport Pty Ltd (Migration)

[2020] AATA 3484

Sri Guru Gobind Singh Transport Pty Ltd (Migration) [2020] AATA 3484 (13 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Sri Guru Gobind Singh Transport Pty Ltd

CASE NUMBER:  1712773

DIBP REFERENCE(S):  OPF2016/7266 OPF2017/7701

MEMBER:Bridget Cullen

DATE:13 May 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision under review.

Statement made on 13 May 2020 at 3:46pm

CATCHWORDS

MIGRATION – cancellation – standard business sponsor – provided false or misleading information – lack of evidence that nominated employee possessed relevant work experience – nominated employee was also sponsor’s close family member – contrived family migration outcome – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 140L, 140M, 375A, 376

Migration Regulations 1994 (Cth), rr 2.72, 2.90, 5.19

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 under Section 140E of the Act on 19 August 2014. On 1 June 2017, the delegate decided to cancel the approval of the applicant as a standard business sponsor, and further barred them for two years from making future applications for approval as a standard business sponsor; both under s.140M of the Act. This was on the basis that the applicant provided false or misleading information at two instances; the r.2.72 nomination of Harpreet Singh, and during a site visit on 28 February 2017.

3. The applicant, by way of Mr Rajbeer Khangura, a/the director, appeared before the Tribunal on 11 February 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Harpreet Singh, the nominee. The hearing was heard jointly with two related matters; the application for review for approval of an employer nomination under r.5.19 for Mr Harpreet Singh, and the application for review in relation to Mr Harpreet Singh’s Class EN (Subclass 186) visa.

4. The applicant was represented in relation to the review by its registered migration agent, Suzanne Weel of Ausway Migration (MARN 0316130). The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

7. 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.

8. 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.

9. 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?

10. In the present case, the delegate found that the identified circumstance relevant was the provision of false or misleading information, from r.2.90 of the Regulations.

    False or misleading information: r.2.90

11. 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).

12. On 23 December 2016, the Australian Border Force (ABF) commenced monitoring of the applicant. As part of this sponsor monitoring, on 28 February 2017, the ABF conducted a site visit to the applicant’s business address. While there, the applicant’s director, Mr Rajbeer Khangura, was interviewed.

13. In the interview, Mr Khangura was asked about one his employees, Mr Harpreet Singh. Mr Singh’s subclass 457 visa nomination, for the role of Transport Company Manager, had been approved by the Department on 20 October 2014. Mr Khangura told the interviewing officer that he had advertised the Transport Company Manager role the on Gumtree and Seek websites. He said that although there were a few applicants following the advertising for the role, Mr Singh had the experience needed.

14. The interviewing officers asked Mr Khangura, twice, whether he knew Mr Singh, prior to his applying for the role.  Mr Khangura responded “not much” to the first question.  The second question elicited a further response by Mr Khangura that he had seen, and met, Mr Singh in India, but he was not a good friend.  Instead, Mr Khangura told the officers that Mr Singh’s experience led to him being the successful applicant.

15. On the same day, the ABF also interviewed Mr Singh, by telephone. Mr Singh said that he saw the advertisement for the role on Seek, and applied for the role. He then revealed that Mr Khangura was his brother, and that he, his wife, and child, all reside with Mr Khangura and his family. The Department confirmed that the information Mr Singh gave in his interview, that Mr Khangura was his brother, was consistent with information he gave to the Department when he applied for the visa.

16. On one of the forms submitted to the Department in conjunction with his subclass 457 visa, Mr Singh told the Department he had one brother, Rajbeer Khangura, and that since November 2011, he resided Mr Khangura at a Surfers Paradise, QLD address.

17. The ABF’s concerns were not limited to whether Mr Khangura, in his role as director of the sponsor company, provided false or misleading information in responding the officers’ questions about whether Mr Singh was his brother.  There were also concerns with the genuine nature of the nature of the work experience of Mr Singh, and found that the work experience evidence provided was wholly contrived by the applicant to support the nomination and secure Mr Singh’s continued stay in Australia.

18. The applicant provided two letters from “Khangura Transport Pvt Ltd” to the Department in conjunction with Mr Singh’s 457 nomination application. These letters stated that Mr Singh “has practical experience in the transport industry in India.” The Department formed the view that the letters were provided to create the impression that the applicant had undertaken an openly advertised, merits based recruitment process for the position of Transport Company Manager, and that Mr Singh had the relevant experience to be chosen from a pool of applicants.

19. The ABF, being satisfied that the applicant had provided false and misleading information to the Department, and having taken into account the criteria in regulation 2.90(3), cancelled the approval of the applicant as a Standard Business Sponsor, and barred the applicant from making future applications for approval as a standard business sponsor for two years from the time of decision on 1 June 2017.

20. The Tribunal invited the applicant to a hearing on 20 January 2020, to be held on 11 February 2020. On 10 February 2020, the Tribunal received a large volume of submissions and supporting documents.

21. On 25 February 2020, the Tribunal invited the applicant to comment on information that was before it, which was subject to a s.375A certificate, and further information subject to a s.376 certificate. The Tribunal letter invited comment as follows:

    ·A 375A certificate issued by the Department on 7 July 2017 for Departmental files
    OPF2016/7266 and OPF2017/7701.

    The certificate is attached.

    ·A 376 certificate issued by the Department on 7 July 2017 for Department File
    number OPF2016/7266. The Member has exercised their discretion in revealing
    the information, as it contains information already known by the applicant. The
    information contained in those folios is the Form 80 filled by the nominee.

    The certificate is attached.

    This information is relevant to the review because they contain information that may be used by the Tribunal in deciding whether a breach of Regulation 2.90 has occurred. If we rely on this information in making our decision, we may, subject to any comments or information before the Tribunal, find that you have provided false or misleading information, in breach of Regulation 2.90, and affirm the decision under review. Sri Guru Gobind Singh Transport Pty Ltd is invited to give comments on or respond to the above information in writing.

22. On 9 March 2020, further documents were filed by the applicant, consisting of a letter from the applicant’s accountant; and a letter from a Mr Sukhwinder Singh, purportedly of P.B. National Enterprises, claiming that it conducted business with Khangura transport Pvt Ltd, and with Mr Singh in his capacity as “Assistant Manager” between 2003 and 2011. Mr Sukhwinder Singh did not give evidence, and says that despite the lengthy period of business, he has not been able to locate any documentary evidence to support the assertions in his letter.

    The applicant’s submissions and evidence

23. The applicant’s representative’s submissions are clearly articulated, and outline the applicant’s arguments and evidence in relation to whether the provided false and misleading information about:

    ·The relationship between the director, Mr Khangura, and the nominee/visa applicant, Mr Singh;

    ·The way in which Mr Singh was selected to work for the applicant; and

    ·The employment background of the nominee/visa applicant, Mr Singh.

24. Both Mr Khangura and Mr Singh gave evidence consistent with the submissions filed on the applicant’s behalf.  Mr Khangura says that he was never asked expressly if Mr Singh was his brother. In his submissions it is argued that, “Rajbeer was simply asked how he knew of Harpreet Singh. The response provided being that Rajbeer knew him from India and not well, is in effect not false information.”

25. This argument is one of semantics. The Tribunal does not consider that Mr Khangura’s explanation is a reasonable excuse for misleading the interviewing officers. Mr Khangura says that he was stressed at the time of the site visit, in part due to problems with a debtor, and also because he feared that his relationship to Mr Singh would lead to a visa refusal in future. While the Tribunal accepts the site visit may have been stressful, and that the applicant may have had a debtor, another explanation for that stress is that Mr Khangura knew he had manufactured his brother’s qualifications for the subclass 457 visa, and that the Department was taking a closer look at those circumstances.

26. By the time of the site visit, the evidence before the Tribunal is that the ABF had already written to the applicant seeking further particulars about the manner in which Mr Singh was selected, and in relation to Mr Singh’s employment background.  Mr Khangura had every reason to be stressed, as it is plain to the Tribunal that he manufactured an outcome for his brother, in order to secure a Subclass 457 visa for him.

27. The Tribunal considers that Mr Khangura’s response to the ABF that he knew Mr Singh “not much” is false.  They were living together for an extended period, with their wives and children.  The rest of Mr Khangura’s response is a lie by omission. The Tribunal finds that he intended to mislead the ABF to believe there was not a familial relationship between himself and Mr Khangura.  The Tribunal finds that Mr Khangura, in his capacity as Director of the applicant, provided false or misleading information to the ABF during the monitoring interview.

28. In relation to whether Mr Khangura provided false or misleading information at the time of Mr Singh’s nomination, in relation to Mr Singh’s experience and work history, the Tribunal finds that he has. Further, the Tribunal finds that Mr Khangura perpetuated the circumstances by continuing to provide false or misleading information in relation to Mr Singh’s experience and work history during the monitoring by ABF.

29. Mr Khangura, and Mr Singh, gave evidence that, back in India, Mr Singh had gained relevant and suitable work experience. They were represented by the same migration agent who now acts for the representative in this hearing. There is no suggestion that Ms Weal knew the information given by them to her was false, presumably she took it at face value.  She provided a statement regarding the genuine need for the Transport Company Manager (ANZSCO 149413) to the Department in support of the nomination application, which advised that:

    “Mr [Harpreet] Singh was identified as a suitable applicant for the position on the basis of his management qualifications, which covered competencies relevant to the management of operational plans, projects, budgets and financial plans, people performance, industrial relations, customer service and ensuring a safe work place.

    Mr Singh also has practical experience in the transport industry in India and general management experience in Australia and India which was considered relevant by the business, specifically in relation to being familiar with the daily management of a business and its staff.”

30. There is a shortage of objective evidence to support a finding that Mr Singh gained relevant work experience while working for “Khangura Transport Pvt Ltd”. The pieces of the story told by Mr Singh and Mr Khangura do not fit together. Although Mr Singh completed a Diploma of Pharmacy in India (obtained in May 2007), he also purportedly worked as an Assistant Manager for Khangura Transport Pvt Ltd between May 2007 and February 2010. The timeframe of the alleged transport industry work experience is curious, given that Mr Khangura provided a resume for Mr Singh to the Department on 4 August 2014, where Mr Singh claims to have been working as a Manager for the Subash Medical Store between May 2007 and April 2010.

31. The two Khangura Transport Pvt Ltd letters provided by the applicant with the nomination application – neither of which is on company letterhead – are inconsistent. One letter claims that Mr Singh was a regular and on-going volunteer, and the other claims that he was an Assistant Transport Manager earning Rs 25,000 per month.

32. The story the Tribunal is now told is that Khangura Transport Pvt Ltd was a small family business, established after Mr Khangura and Mr Singh’s father, Gurcharan Singh, left work as a Professor. Although the company purportedly operated for an 8-year period between 2003 and 2011, there is not a skerrick of legal evidence, pay evidence, accounting evidence, regulatory evidence, website evidence, or any evidence except that obtained from Gurcharan Singh by way of letter, and the 9 March 2020 letter from Mr Sukhwinder Singh, capable of corroborating Mr Singh’s work experience. 

33. Neither Gurcharan Singh, nor Sukhwinder Singh gave evidence, and the Tribunal is not prepared to accept their untested, written assertions, in the absence of any objective evidence. The Tribunal does not accept the assertion that the absence of information is because it was only in 2013 that a company compliance regime that was established in India, and the absence of any regulatory regime before that explains the lack of documentation. The Tribunal does not accept that, even 9-years after Khangura Transport Pvt Ltd closed in 2011, that there would not remain some objective, third-party, official, corroborating evidence.

34. The applicant submits that it was not required to retain evidence of having advertised for the role on Gumtree and Seek. The Tribunal makes no finding in relation to whether advertising did, or did not, take place as was required, as it is not necessary to do so in view of the Tribunal’s other findings. Given the applicant’s conduct overall, the Tribunal considers that even if advertising took place, the applicant always intended to fill the role with his brother, Mr Singh.

    The applicant contrived a family migration outcome

35. The Tribunal considers that the evidence points clearly to a much simpler story than that which the applicant seeks to paint. Mr Khangura came to Australia before his brother Mr Singh, and established a transport business. Mr Singh came to Australia, and worked as a Restaurant Manager, Cab Driver, and completed Australian qualifications (Certificate III Printing and Graphic Design, August 2012; Certificate IV Information Technology, July 2012;  and Diploma of Management (December 2012). Mr Singh wanted to stay, and Mr Khangura assisted him to contrive an outcome through the vehicle of the applicant’s transport business.

36. The Tribunal finds that the information provided by the applicant about Mr Singh’s claimed work experience in the transport industry has been wholly contrived to support the nomination applicant, and secure Mr Singh’s continued stay in Australia.

37. Accordingly, the Tribunal is satisfied that the prescribed circumstance in r.2.90 exists for the purpose of s.140M of the Act.

    Action to be taken

38. 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.

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

    The purpose for which the information was provided

40. The Tribunal is satisfied that on behalf of the applicant, Mr Khangura provided the false and misleading information about his relationship with Mr Singh, and in relation to Mr Singh’s claimed experience, in order to secure a migration outcome for his brother, by creating the impression that Mr Singh was the best applicant for the nominated occupation for subclass 457 visa purposes.

41. While it is understandable that one would want to support their family, the Tribunal considers that this sort of conduct cuts against the very core of the Australian migration program.  If unchecked, conduct of this nature, which is difficult for the Department to investigate, has the potential to encourage others who want to facilitate family migration to deliberately mislead the Department, and hope that their efforts are rewarded with a visa. 

42. The Tribunal considers that had the applicant not engaged in this conduct, the nomination would not have been approved, and Mr Singh would not have been granted a visa.

43. The applicant has demonstrated that it will not comply with lawful sponsorship obligations, and will openly lie to, and mislead, ABF and Departmental officers. 

44. The applicant submits that a lesser penalty should be imposed.  In support of this argument, it submits that the conduct by the applicant in Vinton Specialist Pty Ltd (Migration) [2019] AATA 6107, leading to a one-year sponsorship bar, was of a more significant nature. The Tribunal disagrees. The conduct in Vinton was also false and misleading, and involved a breach of the China Australia Free Trade Agreement. This is serious conduct, but in this matter, the Tribunal considers that the applicant used its business to create a family migration outcome it knew it otherwise could not legitimately support. This is the very heart of the migration system – and in that respect, very damaging to the foundation of the Australian business visa program. Whilst the Tribunal is sympathetic to the desire of Mr Khangura to assist his family, it considers deliberate misuse of the system in this way to be very serious. 

1. The applicant also refers to Kapoor Transport Pty Ltd (Migration) [2019] AATA 4334 (26 September 2019) where the penalty imposed was cancelling approval of sponsorship, for conduct involving alteration of log books. Again, the tribunal considers the applicant’s conduct here to be of more serious magnitude – it includes falsification of a work history that was material to the Department’s decision.

2. Although the applicant has referred the Tribunal to other decisions, none strike the Tribunal as particularly relevant to the conduct now before it. The applicant submits that the conduct here is less serious as there has been no finding that there has been a breach of working conditions, including any Fair Work or employment condition concerns. Whilst that may be correct – it is also fairly unrealistic to think that Mr Singh would make any such claim, even if legitimate, against his own brother in these circumstances.  Therefore, this argument lacks any persuasive value in suggesting a lesser penalty is warranted. The Tribunal considers that a two year sponsor bar is on the low end of what is reasonable in these circumstances.

   The past and present conduct of the person in relation to Immigration

3. As explained above, the Tribunal finds that on behalf of the applicant, Mr Khangura has provided false and misleading information to the Department at the time of the nomination application, as well as at the time of the ABF monitoring process. The best the Tribunal can say about the applicant’s conduct is that it has participated in the process, and has no record of any prior instances of non-compliance with sponsorship obligations.

   The nature of the information and whether it was provided in good faith

4. The Tribunal is satisfied that the information provided sought to minimise the extent to which Mr Khangura and Mr Singh knew each other, and to create the impression that Mr Singh had relevant prior experience, and was material to the application made to the Department. Clearly, Mr Khangura was aware that Mr Singh, with whom he lived for a period of time, was his brother. The Tribunal has taken a dim view of the evidence presented by the applicant, overall, and does not think that deliberately concocting a migration outcome is an act that could be seen to be in good faith.

   The extent to which the provision of false or misleading information has had a direct or indirect impact on another person

5. The Tribunal is cognisant that the applicant’s conduct will have a profound impact on Mr Singh and his family. However, the Tribunal considers it likely that Mr Singh was aware of Mr Khangura’s conduct. Mr Singh did acknowledge the relationship between himself and Mr Khangura to the Department and the ABF. However, Mr Singh has been complicit in the misinformation about his qualifications in the transport industry, and can hardly therefore be seen as an innocent third-party, who was not complicit in the conduct in some way.

6. The conduct engaged in by the applicant is indirectly damaging to the Australian workforce, as it has potential to reduce roles that should be made available to the Australian workforce.

   Whether the person notified Immigration immediately upon discovering that the information was false or misleading

7. The Tribunal is satisfied that the applicant did not notify the Department that the information was false or misleading but in fact sought to maintain it was accurate.

   Any other relevant factors

8. The applicant submits that the Tribunal should consider the financial position of the applicant, which had an annual turnover of $8,109,558.00 in the FYE 2019. The Tribunal accepts that the applicant is performing well financially. 

9. The Tribunal also accepts that it is possible Mr Singh has performed well in the role, and gained relevant skills. But for the deception engaged in by the applicant, this opportunity would not have been available to Mr Singh; rather, it should have been made available to someone with relevant skills and qualifications.  In other words, Mr Singh has benefitted from an opportunity that should not have been made available to him. Despite Mr Singh’s efforts in the role, having made a finding the Mr Singh did not hold relevant experience to begin with; it is difficult to now weight this as a factor in favour of reducing the penalty imposed.

   Conclusions

10. The Tribunal has found that the applicant did breach r.2.90(3). The Tribunal finds that the conduct here was deliberate and designed to obtain a migration outcome for Mr Singh.  Providing false and/or misleading information to the Department and the ABF in this manner is serious, and should be viewed dimly given the potential such conduct has to infect and damage the business visa system. 

11. Considering the totality of the circumstances, and having regard to the prescribed criteria the Tribunal finds that the action mentioned in s.140M(1)(a) and (d) to cancel the approval of the applicant as a business sponsor, and bar the sponsor for two years from making future applications for approval as a standard business sponsor should be taken.

12. As this is the same action that the Department took, the effect of this decision is to affirm the decision under review.

    DECISION

13. The Tribunal affirms the decision under review.

    Bridget Cullen
    Member

    
    

    ATTACHMENT – Extract from the Migration Regulations 1994

    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.

    …