Sri Guru Gobind Singh Transport Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1191
•31 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Sri Guru Gobind Singh Transport Pty Ltd v Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1191
File number(s): BRG 333 of 2020
BRG 467 of 2020Judgment of: JUDGE VASTA Date of judgment: 31 May 2021 Catchwords: MIGRATION – review of administrative appeals decisions – whether decisions affected by jurisdictional error – jurisdictional error not established – applications dismissed. Legislation: Migration Act 1958 (Cth) ss 140L, 140m
Migration Regulations 1994 (Cth) regs 1.13A, 2.57(1), 2.90, 5.19
Number of paragraphs: 116 Date of last submission/s: 24 May 2021 Date of hearing: 24 May 2021 Place: Brisbane Counsel for the Applicants: Mr Ower QC Solicitor for the Applicants: Hartnett Lawyers Counsel for the First Respondents: Mr Byrnes Solicitor for the First Respondents: Clayton Utz ORDERS
BRG 333 of 2020 BETWEEN: SRI GURU GOBIND SINGH TRANSPORT PTY LTD
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
31 MAY 2021
THE COURT ORDERS THAT:
1.The Application filed on 17 June 2020 as amended on 19 April 2021 be dismissed.
2.The Applicant pay the First Respondent’s costs of and incidental to this application and application BRG467 of 2020 fixed in the sum of $7,467.00.
ORDERS
BRG 467 of 2020 BETWEEN: SRI GURU GOBIND SINGH TRANSPORT PTY LTD ACN 162 434 415
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
31 MAY 2021
THE COURT ORDERS THAT:
1.The Application filed on 19 August 2020 as amended on 20 April 2021 be dismissed.
2.Costs as per Order 2 in BRG333 of 2020
REASONS FOR JUDGMENT
JUDGE VASTA
INTRODUCTION
This is a review of two decisions of the Administrative Appeals Tribunal (“the AAT/ the Tribunal”); the first given on 13 May 2020 (the sponsorship decision) and the second given on 15 July 2020 (“the nomination decision”). The Applicant is a company that is in the transport business.
The Applicant had been an approved sponsor from October 2014 but such approval would expire midway through 2017 and so the Applicant made a further application for nomination. The sponsorship decision affirmed the cancellation of the Applicant’s sponsorship (gained in 2014) and the nomination decision affirmed the refusal for the Applicant to be a nominated employer (the 2017 application).
Brief Chronology
In April 2013, Harpeet Singh (“the employee”) made an unrelated application for a “s 457” Visa. In the information that the employee gave to the department for that application, he said that he had a brother in Australia whose name was Rajbeer Khangura and who lived at 230/35 Palm Avenue Surfers Paradise. According to that application, the employee was also living at the same address as his brother.
The Applicant made a business nomination on 1 August 2014. That application was made by a migration agent. The application was for a transport company manager and the application nominated the employee as the person whom the Applicant wished to fill that position.
Accompanying the application was a “reference” under the hand of Gurcharan Singh and on purported letterhead of “Khangura Transport Pvt. Ltd” which is reproduced at CB 23. The documentation for approval of the employee included another “reference” also under the hand of Gurchuran Singh on the same “letterhead” and dated 15 September 2014. This is reproduced at CB 24. The curriculum vitae of the employee was also submitted. This is reproduced at CB 26. The department approved the nomination in October 2014.
On 23 December 2016, Australian Border Force (“the ABF”) wrote to the Applicant, via their migration agent, to inform them that the Applicant had been identified for monitoring as part of the department’s activities to ensure sponsors were complying with sponsorship responsibilities. The letter specifically asked the Applicant to provide records relating to the employee. This correspondence is reproduced at CB 54.
Because the approval, given in August 2014, would expire in mid-2017, on 6 January 2017, the Applicant made another application for nomination. It was hoped that, if granted, the employment of the employee would simply continue unabated.
The Court Book notes (at CB 325 and 326) that the ABF received information from the Applicant on 1 February 2017. It also notes that there had been an attempt to contact the Applicant’s business number on multiple occasions and that the call diverted to a different number. Because of “case officer concerns”, a site visit was planned for 28 February 2017.
According to the “Post site visit/interview report” dated 1 March 2017 (and reproduced at CB 331), the ABF officers spoke to the owner of the business, Rajbeer Khangu. Rajbeer Khangu is Rajbeer Khangura (“the employer”). The ABF asked the employer about the employee. The employer described the duties that the employee undertakes.
The employer told the ABF that he advertised the position of transport manager through the websites “Gumtree” and “Seek”. He said there were a few Applicants for the job however the employee had the experience needed for the position. The employer was asked if he knew the employee before he got the job with the Applicant. The employer answered “not much”. The employer stated that he had seen the employee in India but that he was not a good friend. He said that he had met him in India and that the employee was given the job because his background was suitable.
The true state of affairs is that the employer and the employee are brothers and that they live at the same address. The employee had given that information in his earlier, but unrelated application. ABF telephoned the employee after the interview with the employer and he (the employee) told ABF that he and the employer were brothers.
On 27 March 2017, the department informed the Applicant that it was considering taking action under s 140 M of the Migration Act 1958 (Cth) (“the Act”); such action included barring the sponsor or cancelling the sponsor’s approval.
In June 2017, the Minister cancelled the Applicant’s sponsorship, and, in July 2017, the Minister refused the nomination which was the subject of the application made 6 January 2017.
The Legislation
Sections 140L and 140M of the Act read as follows:-
140L Regulations may prescribe circumstances in which sponsor may be barred or sponsor’s approval cancelled
Circumstances in which the Minister may take action
(1) The regulations may prescribe:
(a) either or both of the following:
(i) circumstances in which the Minister may take one or more of the actions mentioned in section 140M in relation to a person who is or was an approved sponsor if the Minister is reasonably satisfied that the person has failed to satisfy a sponsorship obligation in the manner (if any) or within the period (if any) prescribed by the regulations;
(ii) other circumstances in which the Minister may take one or more of the actions mentioned in section 140M; and
(b) the criteria to be taken into account by the Minister in determining what action to take under section 140M.
Circumstances in which the Minister must take action
(2) The regulations may prescribe either or both of the following:
(a) circumstances in which the Minister must take one or more of the actions mentioned in section 140M in relation to a person who is or was an approved sponsor if the Minister is reasonably satisfied that the person has failed to satisfy a sponsorship obligation in the manner (if any) or within the period (if any) prescribed by the regulations;
(b) other circumstances in which the Minister must take one or more of the actions mentioned in section 140M.
(3) Different circumstances and different criteria may be prescribed for:
(a) different kinds of visa (however described); and
(b) different classes in relation to which a person may be, or may have been, approved as a work sponsor or family sponsor.
140M Cancelling approval as a sponsor or barring a sponsor
Actions that may be taken in relation to approved sponsors
(1) If regulations are prescribed under section 140L, the Minister may (or must) take one or more of the following actions in relation to an approved sponsor:
(a) cancelling the approval of a person as a work sponsor or family sponsor in relation to a class to which the sponsor belongs;
(b) cancelling the approval of a person as a work sponsor or family sponsor for all classes to which the sponsor belongs;
(c) barring the sponsor, for a specified period, from sponsoring more people under the terms of one or more existing specified approvals as a work sponsor or family sponsor for different kinds of visa (however described);
(d) barring the sponsor, for a specified period, from making future applications for approval as a work sponsor or family sponsor in relation to one or more classes prescribed by the regulations for the purpose of subsection 140E(2).
Action that may be taken in relation to former approved sponsors
(2) If regulations are prescribed under section 140L and a person was an approved sponsor, the Minister may (or must) bar the person, for a specified period, from making future applications for approval as a work sponsor or family sponsor in relation to one or more classes prescribed by the regulations for the purpose of subsection 140E(2).
The appropriate regulation is Reg 2.90 which reads:-
2.90 Provision of false or misleading information
(1) This regulation applies to a person who is or was:
(a) a standard business sponsor; or
(b) a professional development sponsor; or
(c) a temporary work sponsor; or
(d) a temporary activities sponsor.
(2) For subparagraph 140L(1)(a)(ii) of the Act, an additional circumstance is that the Minister is satisfied that the person has provided false or misleading information to Immigration or the Tribunal.
(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.
The legislative framework that applies to the present case is that there must firstly be an ascertainment as to whether the Applicant has provided false or misleading information to the Department or to the Tribunal.
Once the Department, or Tribunal, is satisfied that the Applicant has provided false or misleading information, then the Department, or Tribunal, must take into account those matters listed in reg 2.90. Once all of that information has been taken into account, then the Department, or Tribunal, can exercise the power under s 140M.
The Sponsorship Decision Hearing
The AAT considered whether the Applicant had provided false or misleading information. The AAT considered the information that the employer gave during the interview that occurred on 28 February 2017 (which has been previously described). It has been conceded by the Applicant that the employer told the ABF a lie during this interview.
The AAT said that this was not the only concern. The other concern was with the material that had been submitted in August 2014 to substantiate the suitability of the employee; this material being the two letters reproduced at CB 23 and CB 24 and the resume of the employee reproduced at CB 26.
The hearing occurred on 11 February 2020. The day before (10 February 2020), the AAT received a large volume of submissions and supporting documents from the Applicant. One of those documents was an affidavit deposed by Gurcharan Singh, the same person who had signed the letters that are CB 23 and CB 24. In this affidavit, the author admits that he is the father of the employee. He simply reiterates the work that the employee had done for him but also says that he has no records to back this up because the business ceased operating in 2011.
The AAT did not come to their decision on the hearing day. The AAT wrote to the Applicant, post-hearing, on 25 February 2020, inviting the Applicant to comment further.
On 9 March 2020, further documents were filed by the Applicant, notably a letter from Sukhwinder Singh, purportedly of “Pb. National Enterprises” dated 16 February 2020. In that letter, the author says that his company utilised the services of Khangura Transport from May 2003 to November 2011. The letter says that they dealt with the assistant manager (the employee). The letter said that they are unable to locate any documentation in regard to their dealings with Khangura Transport as they are not required to keep a copy of records for more than five years.
The Lie on 28 February 2017
The Applicant had submitted to the Tribunal that the employer was never expressly asked whether the employee was his brother. The Applicant submitted that the employer’s response, that he knew the employee from India but “not well”, is not false information. Not surprisingly, the Tribunal rejected that explanation.
The Applicant submitted that the employer was stressed at the time of the site visit, in part due to problems with a debtor but also because the employer feared that his relationship to the employee would lead to a visa refusal in the future.
The Tribunal rejected this explanation and noted that another explanation, for the stress that the employer had, could have been because he knew he had manufactured the employee’s qualifications for the Visa and that the Department was now taking a close look at all of these matters. The Tribunal noted that the ABF had written to the Applicant two months before the site visit and so the employer had every reason to be stressed because he knew that “the jig was up”.
The Tribunal found that the response given by the employer to the ADF was false because the employer and employee were living together with their wives and children; so the response that he knew the employee “not much” is palpably false. The Tribunal found that the rest of the response was a lie by omission. The Tribunal found that the employer intended to mislead the ABF to believe that there was no familial relationship between the employer and the employee. Therefore, the Tribunal found that the employer, in his capacity as director of the Applicant, provided false or misleading information to the ABF during this interview.
The Material Submitted at the Time of the Nomination in August 2014
The Tribunal then considered whether the employer provided false or misleading information with regard to the employee’s experience and work history. The Tribunal noted the two letters (CB 23 and CB 24) and the resume (CB 26). The original application had a statement from the Applicant’s migration agent that said that the employee had been identified as a suitable candidate on the basis of his qualifications and practical experience in the transport industry.
The Tribunal said that there was a shortage of objective evidence to support a finding that the employee gained relevant work experience whilst working for “Khangura Transport Pvt Ltd” from May 2007 to February 2010. The resume of the employee (CB 26) details that his work experience included working as a manager at the Subash Medical Store from May 2007 to April 2010. This ties in with his educational qualification of Diploma of Pharmacy which the employee received in May 2007. There is no reference in that resume to the employee working for Khangura Transport Pvt Ltd at any time, let alone between May 2007 and February 2010.
The reference at CB 23 spoke of the employee being employed full-time at the company as an assistant manager from May 2007 to February 2010. The reference notes that he was paid Rs. 25,000 a month and listed six distinct duties and responsibilities.
The reference at CB 24 spoke of the employee undertaking voluntary work experience, with the family owned and operated company, from May 2007 to February 2010 on a regular and ongoing basis. It was said that the employee’s voluntary work experience was as an assistant to the signatory (which was now revealed to be his father). The reference noted the same six distinct duties and responsibilities, however, in this reference, it describes the employee as “assisting”, “understanding and assisting” or “understanding” those tasks rather than undertaking them himself as described in CB 23.
The Tribunal noted the Applicant was now saying that the company, Khangura Transport Pvt Ltd, was a small family business established after the father had finished working as a professor. The company reportedly operated for an eight year period between 2003 and 2011. The Tribunal noted that there was not a “skerrick of legal evidence, pay evidence, accounting evidence, regulatory evidence, website evidence or any evidence, except that obtained from (the father) and Sukhwinder Singh by way of letter, which would corroborate the work experience of the employee”.
The Tribunal noted that neither of those two persons gave evidence and the Tribunal was not prepared to accept their untested written assertions in the absence of any objective evidence. The Tribunal did not accept, even nine years after the company purportedly closed, that there would not remain some objective, official, third-party, corroborating evidence.
The Applicant contended that it was not required to retain any evidence of having advertised for the employee’s role on Gumtree or Seek and the Tribunal made no finding as to whether the advertising did or didn’t take place as required. The Tribunal did consider that, even if the advertising took place, the Applicant always intended to fill the role with the employee.
The Tribunal came to the following conclusion at paragraph 35 and 36 of its reasons
35. The Tribunal considers that the evidence points clearly to a much simpler story than that which the applicant seeks to paint. (The employer) came to Australia before his brother (the employee), and established a transport business. (The employee) 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). (The employee) wanted to stay, and (the employer) 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 (the employee)’s claimed work experience in the transport industry has been wholly contrived to support the nomination applicant, and secure (the employee)’s continued stay in Australia.
The Conclusion of the Tribunal
The Tribunal found that the prescribed circumstances required by reg 2.90 existed and that the power to act pursuant to s 140 M of the Act had now been enlivened.
The Tribunal then looked at the seven factors that reg 2.90(3) mandated for consideration. Upon weighing up all those factors, the Tribunal concluded that the conduct was deliberate and designed to obtain a migration outcome for the employee. The Tribunal commented on the serious nature of the behaviour of the Applicant.
The Tribunal found that the appropriate action to take, pursuant to ss 140M(1)(a) and (d), was to cancel the approval of the Applicant as a business sponsor and bar the Applicant for two years for making future applications for such approval. As this was the same action taken by the Department, the Tribunal simply affirmed the decision of the Department.
The Nomination Decision
As previously detailed, the department refused the nomination of the Applicant in July 2017. The legislative framework is contained in reg 5.19. Relevantly, that regulation prescribes that a nominator may apply to the Minister for approval of the nomination of the position in Australia. Subregulation 5.19(3) legislates that the Minister must, in writing, approve nomination if a number of factors are satisfied.
The relevant factor in this application was reg 5.19(3)(g) which states:
(g) either:
(i) there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or
(ii) it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator;
Adverse information is defined in reg 1.13A as the following:-
1.13A Meaning of adverse information
(1) Adverse information is any adverse information relevant to a person’s suitability as:
(a) an approved sponsor; or
(b) a nominator (within the meaning of regulation 5.19); or
(c) a maker of a nomination in accordance with a labour agreement; and includes information that the person, or a person associated with the person:
(d) has been found guilty by a court of an offence under a Commonwealth, State or Territory law that relates to one or more of the matters referred to in subregulation (2); or
(e) has, to the satisfaction of a competent authority, acted in contravention of such a law; or
(f) has been the subject of administrative action (including being issued with a warning), by a competent authority, for a possible contravention of such a law; or
(g) is under investigation, subject to disciplinary action or subject to legal proceedings in relation to an alleged contravention of such a law; or
(h) has become insolvent within the meaning of subsections 5(2) and (3) of the Bankruptcy Act 1966 and section 95A of the Corporations Act 2001.
(2) The matters are the following:
(a) discrimination;
(b) immigration;
(c) industrial relations;
(d) occupational health and safety;
(e) people smuggling and related offences;
(f) slavery, sexual servitude and deceptive recruiting;
(g) taxation;
(h) terrorism;
(i) trafficking in persons and debt bondage.
(3) The conviction, contravention, administrative action, investigation, disciplinary action, legal proceedings or insolvency mentioned in paragraphs (1)(d) to (h) must have occurred within the previous 3 years.
(4) In this regulation:
competent authority has the meaning given by subregulation 2.57(1).
According to reg 2.57(1), a competent authority means “a department or regulatory authority that administers or enforces the law that is alleged to have been contravened”.
The department had refused the nomination because it found that there was adverse information known to the Department and that it was not reasonable to disregard that information. The Tribunal had to ascertain whether there was adverse information and, if it found that there was such adverse information, then had to consider whether it was reasonable to disregard that information.
The Tribunal made the sponsorship decision on 13 May 2020. On 14 May 2020, the Tribunal wrote to the Applicant regarding the nomination application. This letter is reproduced at CB 297. The Tribunal invited the Applicant to comment or respond to information. The particulars of that information were:-
On 13 May 2020, the Tribunal affirmed the decision to cancel the approval of (the Applicant) and bar them from making future applications for approval as a standard business sponsor for two years
The letter went on to say that
This information is relevant to the review because r.5.19(3)(g) required that there is no known adverse information known to immigration about you or a person associated with you. If we rely on this information in making our decision, we may, subject to your comments, find there is adverse information known to immigration about you, and unless the Tribunal finds it reasonable to disregard this adverse information, may find this the reason to affirm the decision under review.
On 28 May 2020, the Applicant responded to the Tribunal, in these terms:-
We are instructed that the employer acknowledges the severity of the non-compliance of regulation 2.90 (2) of the migration regulations, and accepts the Tribunal’s decision to affirm the cancellation for approval as a standard business sponsor. The employer also understands that the decision continues to constitute “adverse information” in regard to the present application on review. Having regard to the above, we are instructed it is reasonable to disregard the adverse information, due to a consideration that there are no other instances of non-compliance with any laws either with immigration, or the laws of the Commonwealth or State/Territory governments in which the business operates. [my underlining]
The Applicant made further submissions to the Tribunal about the indispensability of the employee. The Tribunal accepted that the employee had been a beneficial worker and had developed skill in his role but did not accept that his departure from the business would equate to a loss of work or employment.
The Tribunal said that it did not consider it reasonable, where it had found that the Applicant had contrived a family migration outcome, to overlook the adverse information. The Tribunal said that if it overlooked the information, this would allow the Applicant to benefit from its “egregious conduct”. The Tribunal said that, by engaging in the conduct that was the subject of the adverse information, the Applicant has potentially denied an Australian worker the role.
Because the Tribunal found it was not reasonable to disregard the adverse information, the Applicant had not met the requirements of reg 5.19(3)(g) and therefore the nomination could not be approved. For this reason the Tribunal affirmed the decision.
The Grounds of these Applications
There are two applications and many of the grounds overlap. Obviously, if there were a jurisdictional error in the sponsorship decision, this would mean that the application for review for the nomination decision would also be successful. But, if there were no jurisdictional error illustrated in the sponsorship decision, there are still review grounds in the nomination decision which the Court needs to consider.
The Sponsorship Decision - Grounds One and Two
These grounds are in the alternative and are reproduced below
1.The Tribunal made a jurisdictional error:
1.1 by misconstruing r 2.90(3) of the Migration Regulations 1994 (Cth) Regulations); or
1.2 alternatively, by exercising its power under s.140M of the Migration Act 1958 (Cth) in a manner that was legally unreasonable…
2.In the alternative to paragraph 1 above, the Tribunal made a jurisdictional error by misconstruing r 2.90(2) of the Regulations.
To engage with these grounds requires statutory interpretation of the legislation. Pursuant to s 140L, the regulations can prescribe other circumstances in which the Minister may take one or more of the actions mentioned in s 140M. Regulation 2.90(2) allows as “the additional circumstances” that the Minister is satisfied that the person has provided false or misleading information to Immigration or the Tribunal.
According to s 140L, the regulations can also prescribe the criteria to be taken into account in determining what action to take under s 140M. Regulation 2.90(3) lists seven factors that the Minister must take into account in determining what action to take under s 140M.
Section 140M details what the actions are that may be taken if the prerequisites set down by the regulations have been fulfilled.
In this case, the clear statutory pathway is that if the Minister is satisfied that an approved sponsor has provided false or misleading information to Immigration or the Tribunal, the Minister must then consider the factors in reg 2.90(3). After taking all those matters into account, the Minister may take the actions specified in s 140M.
The argument advanced by the Applicant is that the nature of information being “false and misleading” is informed by a consideration of the factors in reg 2.90(3). The Applicant argues that considering “the purpose for which the information was provided” means that the information needs to be “false and misleading in a material particular”. The Applicant makes that submission because, a statement will only be false or misleading in material particular if it is relevant to the purpose for which it is made.
The Applicant concedes that there is no need, pursuant to reg 2.90(2), for “the false and misleading information” to relate to a material particular. But the Applicant contends that, in taking that information into account (pursuant to reg 2.90(3)) in deciding what action to take, it means that, if the information is not false or misleading in a material particular, it would warrant less serious consequences than if the information was false and misleading in a material particular.
Furthermore, the Applicant submits that the information must be provided to “Immigration or the Tribunal”. The Applicant submits that such a requirement connotes that the information must be given in support of a Visa application (or a cancellation) as those are the matters that are the domain of “Immigration or the Tribunal”. Information given to officers of the ABF in the course of an interview does not fulfil the criteria, according to the Applicant.
The Applicant submits that, notwithstanding the heinous nature of lying to officers of the ABF, it was nevertheless not false information relating to a material particular. The Applicant contends that such a false statement made in February 2017 could not have affected the grant of approved sponsorship status in 2014.
At paragraph 42 of the Tribunal’s reasons, the Tribunal said that “the Tribunal considers that had the Applicant not engaged in this conduct, the nomination would not have been approved, and (the employee) would not have been granted a visa” (my underlining). The Applicant pointed out that there was no obligation upon the employer to disclose the relationship between himself and the employee at the time that the Visa was applied for, and granted. The fact that the Tribunal has equated the “false and misleading information” with the approval of the nomination, illustrates that the Tribunal has made an error. The Applicant contends that, by making that correlation, the Tribunal has effectively said that the information was false and misleading in a material particular, yet it was clearly not because the information was not of that calibre.
I cannot accept the argument of the Applicant. Firstly, the Applicant is attempting to “work backwards”. Simply because false or misleading information must be considered in light of “the purpose for which the information was provided” does not mean that the information must be false and misleading in a material particular. Whilst it may be that for a statement to be false and misleading “in a material particular” means that it must be “relevant to the purpose for which it is made”, the converse is not a logical corollary. It does not mean that a consideration of “the purpose for which the (false and misleading) information was provided”, necessitates that it has to be materially particular to the grant of a Visa.
It may be that the employer told the lie about his relationship with the employee some 28 months after October 2014 so it could not have influenced the successful applications. But it could well have been a different story if the employer had informed the Department that the search to fill the position had resulted in the identification of the employee, who also just happened to be the brother of the employer and the son of the person who had written CB 23 and CB 24. The inconsistencies between the two letters and the CV of the employee (CB 26) take on a totally different complexion when the relationship between those parties is known.
The Tribunal refers to the “conduct” of the Applicant in paragraph 42 of their reasons. “Conduct” is a wider concept than the simple identification of the false and misleading information. When one looks at the context in which paragraph 42 was written, the “conduct”, referred to by the Tribunal, goes to the “purpose for which the information was provided”.
That purpose, according to the Tribunal, was “to secure a migration outcome for (the employee), by creating the impression that (the employee) was the best Applicant for the nominated occupation for subclass 457 Visa purposes”. Therefore, it is open for the Tribunal to conclude, on its findings, that had the Applicant not engaged in that “conduct”, the nomination would not have been approved.
Such a conclusion is therefore not the result of a misconstruing of the effect of regs 2.90(2) or (3).
In this case, the Applicant was put on notice that ABF would be monitoring it to ensure that it was complying with sponsorship responsibilities. It requested records specifically relating to the employee. The letter (at CB 62) clearly states that there are a number of circumstances, besides failure to satisfy a sponsorship obligation, in which the Minister may take administrative actions against the sponsor and that these included a situation where a sponsor provided false or misleading information to the Department or the Tribunal.
The inference, that was clearly open, is that the ABF, as part of the Department of Home Affairs (which includes the Department of Immigration) has targeted the Applicant regarding the Applicant’s actions in relation to the employee. Furthermore, the Applicant was put on notice about the consequences of, at any time, providing false or misleading information to the Department.
There is no doubt that the information that the employer gave to the ABF, on 28 February 2017, was false and misleading. The Tribunal correctly determined that this was false and misleading information pursuant to reg 2.90(2). The fact that it was given to the ABF and not directly to the Department is not to the point. Both the Department of Immigration and Australian Border Force were, and remain, part of the Department of Home Affairs.
The Tribunal correctly used this information pursuant to reg 2.90 (3). The Tribunal did not misconstrue the regulation. The purpose for which the information was given was to obfuscate the fact that the employer and the employee were brothers living at the same address. This was to assist in creating the impression that the employee was the best applicant for the position.
As the consideration of this information was done properly, there was no unreasonable exercise of power under s 140M.
Grounds one and two therefore fail.
The Sponsorship Decision - Ground Three
This ground is reproduced below
3.The Tribunal made a jurisdictional error in that:
3.1 in respect of being satisfied of the criterion in r 2.90(2) it engaged in reasoning that was illogical or irrational; or
3.2 alternatively, in respect of the exercise of its discretion under s 140M of the Act, it acted in a manner that was legally unreasonable,
in relation to its consideration of the evidence concerning the Nominee’s employment at Khanguara Transport Pvt Ltd.
The essence of the complaint that is made by the Applicant is that the Tribunal has equated their lack of satisfaction of a particular fact with a positive finding that the fact does not exist. This ground focuses on the finding that the evidence given to the Department regarding the employee’s past work experience was false and misleading information.
The Applicant contends that, upon the facts before the Tribunal, it was open for the Tribunal to be not satisfied that the employee had worked for a transport company in India between May 2007 and February 2010. But, the Applicant contends that it was simply not open to find that the material provided to the Department was “false and misleading information”.
The Applicant contends that the process of reasoning of the Tribunal was as follows:-
(a)in 2017, the employer lied to the ABF about the employee being his brother;
(b)the letters, CB 23 and CB 24 were inconsistent;
(c)there was no other objective evidence to say that the employee had the relevant work experience;
(d)in the absence of such objective evidence, the Tribunal would not accept the later statements of Gurcharan Singh and Sukhwinder Singh;
(e)therefore, the Applicant provided false or misleading information.
It seems to me that there was more to the process of reasoning than just those matters. The consideration also entailed these other facts:-
(a)the letters (CB 23 and CB 24) were inconsistent with the CV of the employee (CB 26). It could be asked rhetorically how could the employee be working in a profession consistent with his educational qualifications (pharmacy) between 2007 and 2010, if he is working for his father’s company during the same time and being paid Rs. 25,000 a month;
(b)the letters (CB 23 and CB 24) were authored by the father of the employee (and the employer) without that fact being revealed to the Department;
(c)the letters (CB 23 and CB 24) did not have the proper letterhead of a company but attempted to give the impression that it was a proper letterhead ;
(d)there was no independent corroborative evidence that the company, at which the employee had purportedly worked, actually ever existed. There were no records, accounts, website presence or any of the other indicia of existence even accounting for the claim that the company had ceased to exist some nine years beforehand;
(e)a similar problem was present for the statement written by Sukhwinder Singh. There was no corroborative material that his company/business ever traded with the company of the father of the employee and employer.
(f)The excuse that the company ceased trading in 2011 rings hollow when the letters (CB 23 and CB 24) are purportedly written on company letterhead even though they are authored some three years after the company ceased trading.
These other considerations put a totally different complexion on the matter. When one puts those matters into the mix together with the matters that the Applicant has identified, it was open for the Tribunal to conclude that the material produced to the Department regarding the previous experience of the employee was “false and misleading information”.
It is not to the point that another person in the shoes of the Tribunal may not have come to that conclusion on those facts; it is sufficient that this Tribunal was able to come to that conclusion.
Therefore, the conclusion was not “unreasonable” and no jurisdictional error is illustrated by this ground.
The Sponsorship Decision - Ground Four
The final ground of the sponsorship decision is as follows:
4.The Tribunal made a jurisdictional error by:
4.1 failing to inquire into the Nominee’s employment at Khangura Tranport Pvt Ltd by contacting Gurcharan Singh and Sukhwinder Singh; or
4.2 Failing to comply with s 360 of the Act by notifying the Applicant that it was not prepared to accept the evidence of Gurcharan Singh and Sukhwinder Singh unless they were called as oral witnesses.
To fully understand this ground, attention has to be paid to the chronology of events. The actual hearing conducted by the Tribunal occurred on 11 February 2020. The day before, the Applicant gave the Tribunal a large number of documents. Included in those documents was an affidavit of Gurcharan Singh dated 4 February 2020 which is reproduced at CB 530 and 532.
After the hearing, the Tribunal invited the Applicant to make some post-hearing submissions and, as a result, on 9 March 2020, the Applicant provided the statement of Sukhwinder Singh which was dated 16 February 2020 which is reproduced at CB 707.
As has been explained earlier, the Tribunal disregarded such evidence because there was no independent corroboration of the facts contained in statements. The Applicant contends that the Tribunal should have put the Applicant on notice at the hearing (on 11 February 2020) that it was not prepared to accept the evidence unless those two persons were called as witnesses.
The Applicant contends that the failure by the Tribunal to make contact themselves with those witnesses, or to put the Applicant on notice that he should call such witnesses, constitutes an “obvious failure” by the Tribunal to make “an obvious enquiry” about a critical fact, the existence of which can be easily ascertained.
The Tribunal, on 10 January 2020, sent an invitation to the Applicant to attend a hearing. The Applicant asked for an adjournment to another date. On 20 January 2020, the AAT sent another invitation inviting the Applicant to a hearing that would take place on 11 February 2020. In both those invitations, the Applicant was asked to detail any witnesses that the Applicant wished to call (CB 509).
In the response to the second invitation, the Applicant did not detail that they wished for Gurchuran Singh to give evidence. Given that the Applicant knew the truthfulness of the letters (CB 23 and CB 24) was a very live issue for the Tribunal, it is inexplicable that the Applicant would reply to the Tribunal that it wished for the employer and the employee to give evidence, but not the father. I queried this with Counsel for the Applicant during the hearing, and he could provide no answer as to why this was not done. It explains why the Tribunal were at pains to point out that the father did not give evidence.
The Tribunal could hardly have put the Applicant on notice at the hearing on 11 February 2020, that it was not prepared to accept the evidence of Sukhwinder Singh unless he gave evidence, because the Tribunal did not even know of the existence of this person until 9 March 2020. When this was pointed out to the Applicant, his contention changed. The Applicant contended that the Tribunal itself should simply have contacted the witness.
This situation is totally different to the situation where a Tribunal needs to know a particular fact that the Applicant, or a witness, may be able to quickly give to the Tribunal. The Tribunal had an affidavit and a statement from these respective persons. The facts of those statements were either going to be accepted or not accepted. There was no aspect of the statement that needed to be clarified. For this reason, this case falls into a totally different category to those cases where it is that a Tribunal (or IAA) has acted unreasonably in not contacting the witness to give further evidence.
The Applicant has not identified anything that the two persons could have given in evidence that would have changed the view of the Tribunal. All that was submitted to me, is that the two witnesses could have said to the Tribunal that what they wrote in their respective statements was the truth. That could hardly constitute new evidence or give the Tribunal a fact upon which the Tribunal needed to inform itself.
It is trite to say that it is not for the Tribunal to make its own investigations. It is for an Applicant to present arguments and evidence that it wishes to go before the Tribunal. It is not for the Tribunal to “plug holes” in the case of an Applicant. The Applicant could hardly have been surprised by the conclusions made by the Tribunal, as they mirror closely what the department had already ruled. The Applicant had the opportunity to present evidence and asked the Tribunal to make its decision upon the evidence the Applicant had put before it.
There was no call for the Tribunal to contact any witness and no jurisdictional error is established because of the failure of the Tribunal to act in the way that the Applicant now wishes it had acted. Ground four fails.
As all grounds have failed, the application regarding the sponsorship decision is dismissed.
The Nomination Decision - Ground One
Ground one of the nomination decision is as follows:
1.The Tribunal made a jurisdictional error by misconstruing r 1.13A of the Regulations.
As noted earlier in these reasons, the Tribunal relied upon the findings it had made in the sponsorship decision as constituting “adverse information”.
The Applicant contends that what was relied upon by the Tribunal did not constitute adverse information. This contention is made notwithstanding that the Applicant had conceded in its submission to the Tribunal that those findings did constitute “adverse information”. Usually, an Applicant would not be able to rely upon a matter on review that it had distinctly disavowed before the Tribunal. Notwithstanding this, I have still considered this particular ground.
Whether the findings identified by the Tribunal amount to “adverse information” is a matter of statutory interpretation.
The Applicant is correct in his submission that, in the nomination decision, the Tribunal did not formally identify the adverse information. The Tribunal had identified the adverse information as being its earlier decision of 13 May 2020 (the sponsorship decision) in its letter to the Applicant on 14 May 2020. The Tribunal set out the relevant parts of its earlier sponsorship decision in its reasons with respect to the nomination decision. Because of the concession by the Applicant, it would seem that the Tribunal did not deal further with whether its earlier sponsorship decision amounted to “adverse information” as all concerned had admitted that it did.
The question then is whether, as a matter of law, the earlier decision amounts to “adverse information”. I have earlier set out the terms of reg 1.13A. The Applicant contends that adverse information must be information that conforms to the descriptions given in reg 1.13A(1)(d) to (h).
However the statute clearly says that “adverse information is any adverse information relevant to a person’s suitability as… an approved sponsor… and includes information that the person” fits into one of the categories in paragraphs regs 1.13A(1)(d) to (h). The use of the word “includes” does not mean that any information that does not fit within regs 1.13A (1)(d) to (h) is therefore “excluded”.
The Applicant contends that the regulation has since been amended. The amendments have now widened the definition of “adverse information” so that the various categories are now to said to be “without limiting reg 1.13A(1) as well as including that “information that is false or misleading in a material particular” is now one of the categories of “adverse information”.
I do not see that these amendments are illustrative that the previous regulation (upon which the Court is concerned) is exclusive of any categories outside of regs 1.13A (1)(d) to (h).
It seems to me on a proper construction of the regulation, that information that did not fit into the aforementioned categories, could still be considered as “adverse information”. The definition is broad enough to include any information that would be adverse to a person’s suitability to be an approved sponsor.
What constitutes “adverse information” will differ according to the circumstances of each case; the regulation simply dictates that if the information fits into any one of the aforementioned categories and complies with the other tests mentioned in paragraphs (2) and (3), that information will always be considered “adverse”, no matter what the circumstances of the case.
Because the information was “adverse information” as that term is used in reg 1.13A, there has been no jurisdictional error and ground one therefore fails.
Nomination Decision - Grounds Two and Three
Ground two was not pressed and ground three was in the same terms as ground three of the sponsorship decision. As no jurisdictional error was illustrated upon ground three of the sponsorship decision, neither of these grounds need to be considered further.
Nomination decision - Ground Four
Ground four of the nomination decision is as follows:
4. In the further alternative to paragraph 2 above, the Tribunal made a jurisdictional error in that it engaged in reasoning that was illogical or irrational or acted in a manner that was legally unreasonable in relation to its consideration of the role of Mr Harpreet Singh.
Once the Tribunal had decided that there was adverse information in relation to the Applicant, the Tribunal had to decide whether it was reasonable to disregard the adverse information.
The Applicant had submitted that the employee was indispensable to the Applicant. It was submitted that the employee was able to positively direct transport staff and that the employees’ hard work and skill had aided the Applicant to expand and grow the business and that this provided employment to Australian workers.
The submission continued that the employee’s absence from the business was likely to result in either the loss of work, or the need to turn work away, which would likely see Australian citizens and Australian permanent residents losing their employment.
At paragraph 21 of its reasons, the Tribunal said that it “accepted that the employee had been a beneficial worker and had developed skill in his role”. But it did not accept that the employee’s departure from the business would necessarily equate to a loss of worker employment. There was “no evidence before the Tribunal that demonstrated, for example, that the Applicant has made efforts to replace the employee or to train existing workers to fulfil his role”.
The Applicant submits that the Tribunal ignored “obvious facts” that a replacement for the employee would have to be found, leading to a period in which his position would be unoccupied; that a replacement would have to be trained and to gain experience, during which the productivity of the person in that position would almost certainly fall; and, that the replacement would take time to build a rapport with drivers and customers. I am not sure how those facts are “obvious”.
It seems to me on a fair reading of the Tribunal’s reasons, that the Tribunal did not “ignore” anything that was submitted to it by the Applicant. It did, however, not accept the submissions that were made. There was no finding made other than a finding of non-satisfaction.
Realistically, this ground is no more than an attempt at merits review. It was for the Applicant to satisfy the Tribunal of these matters. It failed to do so. That does not illustrate any jurisdictional error. Ground four fails.
Nomination Decision – Ground Five
This ground is exactly the same as ground four of the sponsorship decision. As consideration of this same ground in the sponsorship decision failed to identify a jurisdictional error, this ground need not be considered further.
This means that the application in respect of the nomination decision is dismissed.
Orders
I dismiss both applications.
Because they were argued together and had overlapping grounds, I am of the view that there should only be an award for costs for the scale amount for one application. The Applicant is to pay the costs of the Minister fixed in the sum of $7,467.
I certify that the preceding one hundred and sixteen (116) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Dated: 31 May 2021
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