Startech Prestige Pty Ltd (Migration)

Startech Prestige Pty Ltd (Migration) [2020] AATA 5914 (4 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Startech Prestige Pty Ltd
CASE NUMBER:  1824388
DIBP REFERENCE(S):  OPF2018/11907 OPF2018/11908 OPF2018/11910 OPF2018/4600
MEMBER:R. Skaros
DATE:4 November 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal varies the decision under review by reducing the period of the bar to 12 months from the date of the Department’s decision.

Statement made on 04 November 2020 at 2:53pm
CATCHWORDS
MIGRATION – cancellation – sponsorship bar – visa holder had not been working for the business – gaps in employment - personal circumstances and medical issues - visa holder had not been paid annual leave entitlements - sponsor has failed to comply with their sponsorship obligations - terms and condition of employment -Tribunal varies the decision under review by reducing the period of the bar to 12 months
LEGISLATION
Migration Act 1958, ss 140M, 245
Migration Regulations 1994, r 2.79, 2.86, 2.90

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 Immigration 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 30 June 2014 for a period of three years.
On 6 August 2018, the delegate decided to bar the applicant for a period of five years from making applications for approval as a standard business sponsor or temporary activities sponsor under s.140M of the Act, as the delegate had found that the applicant did not comply with their sponsorship obligations in r.2.79 and r.2.86 of the Regulations.
The applicant’s Director, Mr Patrick Lee, appeared before the Tribunal on 26 August 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the 457-visa holder, Mr Gurvinder Singh Gahra.
The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.
Non-disclosure certificate: s.375A
The Department’s file included documents entitled ‘Recommendation Report’ and ‘Field Activity Plan’ which were the subject of a non-disclosure certificate under s.375A of the Act. The certificate indicated that disclosure of the stated documents would be contrary to public interest because it would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would be likely to prejudice the effectiveness of those methods. A copy of the certificate was sent by email to the applicant’s representative prior to the hearing. Issues relating to the validity of the certificate and relevance of the information covered by the certificate were discussed with Mr Lee and the representative at the hearing. The Tribunal acknowledged that the information in the documents covered by the certificate was relevant to the issues in the review, but noted that the information, to the extent that it was relevant, was disclosed to the applicant in the Notice of Intention to Take Action (the Notice) and that the applicant had an opportunity to respond to the information. After some discussion about the nature of the information covered by the certificate, no issue was taken with the validity of the certificate.
The Tribunal is satisfied that the certificate, which was properly signed and dated, provides a valid public interest reason for the non-disclosure of the stated documents. The Tribunal is also satisfied that the information relevant to the issues in the review have been fully disclosed to the applicant by the Department, and to which the applicant has had an opportunity to respond.
The Tribunal has had regard to the evidence before it and, for the following reasons, has decided to vary the decision under review by reducing the period of the bar to 12 months from the date of the Department’s decision.
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 r.2.89 to r.2.94B of the Regulations 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: r.2.89 to 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?
In the present case, the delegate found that the applicant failed to satisfy the following sponsorship obligations:
·Regulation 2.79 - Obligation to ensure equivalent terms and conditions of employment
·Regulation 2.86 - Obligation to ensure the primary sponsored person works in the nominated occupation.
Failure to satisfy a sponsorship obligation: r.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: r.2.89(2).
The applicant was approved as a standard business sponsor on 30 June 2014 for a period of three years. On 15 July 2014, a related 457-nomination in the occupation of Motor Mechanic was approved by the Department in relation to Mr Gahra. On the same day, Mr Gahra’s Subclass 457 visa was approved for a period of four years. The base salary in respect of that position was $54,000.
On 9 May 2018 Departmental officers conducted a site visit at the applicant’s business premises in Lynbrook, Victoria. During the site visit the officers interviewed Mr Lee and several employees regarding the employment of the visa holder. Details of the interviews and the officers’ observations were noted in the monitoring report.
On 11 May 2018, the Department commenced monitoring of the applicant and, as part of that process, requested the applicant to provide information and/or documents so as to assess their compliance with their sponsorship obligations.
In response to the request for information, Mr Lee provided various documents, including a written statement, contract of employment for the visa holder, 2015, 2016 and 2017 PAYG summaries and payslips for the visa holder. Also provided was an employment contract and payslips for another employee, Mr Richard Prazer. The Tribunal notes that in various documents and submissions the visa holder was referred to as ‘Garry’.
On 25 June 2018, the applicant was issued with a Notice of Intention to Take Action. In relying on information obtained during the site visit and documents received from the applicant, the delegate set out the following circumstances in relation to which action was being considered:
Regulation 2.89 Failure to satisfy sponsorship obligation
The delegate has reason to believe the sponsor has failed to satisfy one or more of the sponsorship obligations below:
Regulation 2.79 Obligation to ensure equivalent terms and conditions of employment
Regulation 2.86 Obligation to ensure primary sponsored person works or participates in nominated occupation, program or activity
Regulation 2.87 Obligation not to recover, transfer or take actions that would result in another person paying for certain costs
Regulation 2.90 Provision of false or misleading information
The delegate then set out the reasons for believing that the sponsor had not met the various circumstances, as follows.
In relation to the obligation in r.2.79, the delegate relevantly noted the following:
On 9 May 2018, ABF officers conducted a site visit to Startech Prestige Pty Ltd trading as Startech Prestige Lynbrook. The Officers interviewed business Director Patrick Lee. During this interview Patrick Lee stated that sponsored person, Gurvinder Singh Gahra, took 3- 4 months accumulated annual leave in 2017.
On 11 May 2018, the ABF sent the sponsor a Notice requesting records and/or information. This included a request for:
·the 457 visa holder’s gross and net salary (including any deductions made) for the period 11 May 2017 to 10 May 2018
·Records of the money paid to the 457 visa holder for the period 11 May 2017 to 10 May 2018.
On 25 May 2018, in response to the ABF’s request for records and/or information the sponsor provided Payroll Advice statements for Gurvinder Singh Gahra for the periods:
·1 August 2014 to 1 January 2017
·18 September 2017 to 8 October 2017
·9 April 2018 to 20 May 2018
The sponsor also provided a statement that Gurvinder Singh Gahra took leave to travel to India on:
·1 January 2017 to 19 April 2017
·11 October 2017 to 30 November 2017.
The sponsor has not provided evidence that Gurvinder Singh Gahra received paid annual leave for the 3-4 month period he went to India. In addition, the sponsor has not provided independently verifiable records that Gurvinder Singh Gahra was paid for the period 9 April 2018 to 10 May 2018 as outlined on the Payroll Advice.
On 14 June 2018, the sponsor provided bulk salary payment records for the periods:
·17 April 2014 to 19 December 2016
·19 June 2017 to 19 October 2017
·19 February 2018 to 19 April 2018
As individual salaries cannot be determined by bulk statements, without separation these wage figures cannot be used to make an assessment against regulation 2.79.
As a request for independently verifiable pay records for Gurvinder Singh Gahra was made on 11 May 2018 and the sponsor has failed to provide independently verifiable records for some of Gurvinder Singh Gahra’s wage payments identified in the Payroll Advice statements, the delegate has reason to believe that Gurvinder Singh Gahra has not received the commensurate salary to his guaranteed annual earnings approved at nomination.
On the basis of the above information, the delegate formed the view that the sponsor had not met their obligations under r.2.79(3)(a)(iii).
In relation to the obligation in r.2.86, the delegate noted the following:
On 15 July 2014, the Department approved Startech Prestige Pty Ltd’s nomination for Gurvinder Singh Gahra to work as a Motor Mechanic.
In October 2017, a Departmental Officer phoned the nominated business number for Startech Prestige Pty Ltd and the person who answered the phone stated there was no employee by the name Gurvinder Singh Gahra.
On 9 May 2018, ABF officers attended the nominated business address at Lynbrook VIC. Officers interviewed business Director Patrick Lee, Motor Mechanic apprentice Leon Lee (also the Director’s son), Motor Mechanic Joseph Reshan Jayamaha (Reshan) and Motor Mechanic Richard Prazer. The sponsored person, Gurvinder Singh Gahra was not present at the workplace and all of the people interviewed provided inconsistent information about Gurvinder Singh Gahra’s periods of employment and leave from the workplace.
Leon Lee is in his third year of full-time work as an apprentice Motor Mechanic for the business, he listed Reshan and Richard as the only other employees of the business. When specifically questioned about Gurvinder Singh Gahra he stated he did not know anyone by that name.
Patrick Lee, Richard Prazer and Joseph Reshan Jayamaha (Reshan) all provided different information on the last time Gurvinder Singh Gahra worked at Startech Prestige Pty Ltd and periods of leave he had taken in 2017:
Patrick Lee stated:
·Gurvinder Singh Gahra last worked at the business on Monday 7 May 2018.
Patrick Lee was asked “Before this week, when was the last time he [Gurvinder Singh Gahra] took sick leave?” Patrick Lee responded by saying “He’s never, he’s gone to get married, I think he took a long break to get married that’s about it”.
Patrick Lee also stated that Gurvinder Singh Gahra had accumulated his annual leave and took 3-4 months off as he had never taken annual leave before. He estimated this was around December 2017.
Richard Prazer stated:
·Gurvinder Singh Gahra last worked at the business on Tuesday 8 May 2018, commencing at 8am.
Officers asked if Gurvinder Singh Gahra had taken any leave in 2017. Richard Prazer stated that Gurvinder Singh Gahra took 2-3 months leave in October 2017.
Joseph Reshan Jayamaha (Reshan) stated:
·Gurvinder Singh Gahra last worked at the business on Friday 4 May 2018
Officers asked if Gurvinder Singh Gahra had taken any leave since Joseph Reshan Jayamaha (Reshan) commenced working for the business in February 2017. Joseph Reshan Jayamaha (Reshan) stated Gurvinder Singh Gahra had taken a few days of leave last year (2017).
In addition Joseph Reshan Jayamaha (Reshan) stated he had seen Gurvinder Singh Gahra outside of work at Richard Prazer’s place on Tuesday night whereas Richard Prazer stated he had not seen Gurvinder Singh Gahra outside of work in a long time.
The inconsistencies provided raise concerns about the reliability of the information being provided to the ABF.
On 25 May 2018, in response to the ABF’s request for records and information the sponsor provided the following information regarding Gurvinder Singh Gahra’s periods of employment and leave from work:
·He commenced employment with the sponsor on 9 August 2014 and worked fulltime until 31 December 2016.
·He took leave to travel to India from 1 January 2017 to 19 April 2017
·He had a bad accident in India and only returned to work for half a day
·He returned to work on 18 September 2017 until 8 October 2017. The sponsor stated that Gurvinder Singh Gahra was still not able to return to normal duties
·He then went back to India from 11 October 2017 to 30 November 2017
·He returned to full time work on 2 April 2018 and has continued to work full time performing his normal duties as a Motor Mechanic.
This conflicts with the information provided by Patrick Lee during the interview with ABF Officers on 9 May 2018 where he stated that Gurvinder Singh Gahra had not taken any other sick leave. It is also concerning that this information conflicts with responses provided by Joseph Reshan Jayamaha (Reshan) and Richard Prazer, neither persons statement reflected Gurvinder Singh Gahra only worked for three weeks in 2017 and only returned to work in April 2018.
The delegate considers the fact that Patrick Lee, Joseph Reshan Jayamaha (Reshan) and Richard Prazer did not mention that Gurvinder Singh Gahra had not worked for the majority of 2017 during their interview as an indication the information provided to ABF Officers on 25 May 2018 lacks credibility.
On 12 June 2018 the sponsor provided:
·A prescription for tablets dated 9 April 2018
·A lab test for Iron levels, TSH, B12/Folate and Vitamin D levels also dated 9 April 2018.
·A medical certificate from Dr. Surjit Singh Super Specialty Hospital in India, dated 16 April 2017. This states Gurvinder Singh Gahra was “under indoor treatment w.e.f. 3/4/17 till 15/4/2017 for a spine injury.
·A medical certificate from Kochar Nursing Home in India dated 28 November 2017. This states that Gurvinder Singh Gahra was “suffering from hypertension / Anxiety neurosis with depression / acute lumbago due to a fall in slippery bathroom and was undergoing treatment w.e.f. 18/10/2017 till 28^th Nov. 2017”
The delegate further noted that no evidence was provided from a doctor in Australia regarding the injuries sustained, incapacity to work or rehabilitation for the injuries sustained. There were also concerns that there were no written records at the applicant’s site which identified the visa holder as an employee of the business. It was noted that there were no rosters or timesheets. The delegate noted that the director, Mr Lee, had informed the officers during the site visit that he had no access to the employees’ payslips as these are done by the bookkeeper offsite and that staff do not sign off on any of their work so there is no record of work performed by the workers.
It was also noted that the visa holder’s name did not appear on the cleaning roster which was the only document identified in the workshop that detailed the employees’ names. It was noted that all other employees, including Tony the cleaner who only comes in a few hours a day, were included in the roster. It was noted that the workers provided slightly different accounts of why the visa holder’s name was not on the cleaning roster, relating to whether he eats with the workers or uses kitchen crockery.
The delegate referred to the statement from Mr Gahra in which he explained that his name does not appear on the roster due to religious reasons as he never uses any kitchen items requiring him to clean up.
The delegate noted that during the interview the director stated that the visa holder mainly works on non-European cars and that he is a Mercedes Benz specialist and undertakes the diagnostics himself and is hands-on in the business. It was noted that the director had indicated that the visa holder does not work on the European cars which is what the workshop specialises in. It was noted that the director stated that he does not usually employ non-Mercedes Benz mechanics but that the visa holder showed that he was a good worker. The director also stated that the visa holder was studying at the time he commenced working for the business and that he decided to sponsor him after about three to four months of employment. It was noted that during the interview the Departmental officer put their concerns to the director that the visa holder was not working for the business, to which the director responded that Leon Lee would not know Gurvinder Singh Gahra (the visa holder) because he is known as ‘Goody’. It was noted that this differed from previous explanations that the staff knew the visa holder as ‘Garry’.
The delegate considered that the inconsistencies provided about the visa holder’s employment, periods of leave, that he was not at the business when Departmental officers visited and there were no work records for him on the premises, indicated that the visa holder had not been working for the business. On this basis the delegate formed the view that the sponsor had not met their obligation in r.2.86.
In relation to the obligations not to recover, transfer or take actions that would result in another person paying for certain costs in r.2.87, the delegate was concerned that no information had been provided to demonstrate that the sponsor had paid the fees for the sponsorship and nomination costs.
The delegate was also concerned that the sponsor had provided false or misleading information, in contravention of r.2.90, about there being a genuine need for the position in the business in circumstances where the sponsor had another motor mechanic employed in the business, despite indicating on the nomination application that there were no equivalent employees working in the position within the business.
The applicant’s response to the Notice

In response to the Notice, the Department received detailed submissions and supporting documents.
In relation to the obligation in r.2.79(3), it was submitted that the sponsor provided bulk salary payment records showing salary payments to its employees which included the visa holder. It was submitted that this was the manner in which the employees of the business were paid and that the visa holder’s bank of statements for the period between April 2014 and April 2018, which had been provided to the Department, showed payment of his salary from the sponsor.
In relation to the obligation in r.2.86(2), the representative took issue with the original notice which only focused on the information obtained from Mr Leon Lee that he did not know anyone by the name of Gurvinder Singh Gahra and had not disclosed that other employees had confirmed the visa holder’s employment with the sponsor and that he had taken leave in 2017. It was submitted that Patrick Lee had stated that Gurvinder last worked at the business on 7 May 2018 and that Richard Prazer stated it was 8 May 2018, being a differential of only one day. It was submitted that all employees acknowledged that the visa holder took leave in 2017 and that they were not asked how long the visa holder worked in 2017. It was submitted that the director had kept the appropriate records relating to his employees and that he has provided a statement and supporting evidence detailing the periods of the visa holder’s employment and leave taken.
In response to the concern that no evidence had been provided from a doctor in Australia regarding the visa holder’s injuries or rehabilitation, it was submitted that as the injuries were sustained in India, all the medical reports presented were from the doctors who treated the visa holder whilst he was in India.
In response to the concern that there were no records at the workshop identifying the visa holder or any of the other employees, it was submitted that no adverse inference can be drawn from this as it includes all employees of the business. In relation to the concern that the visa holder’s name did not appear on the kitchen roster, it was submitted that this was due to the visa holder’s religious dietary requirements, that he did not use any of the kitchen utensils and was therefore not required to be included in the kitchen roster. A detailed statement from the visa holder was provided explaining why he was not included in the kitchen/cleaning roster.
In response to the concern that the workshop specialises in European cars and that the visa holder works on non-European cars, it was submitted that no adverse inference can be drawn from this because the workshop services all makes of vehicles and not just European vehicles. It was submitted that the visa holder was a qualified motor-mechanic and had approximately six months experience with another employer before commencing with the nominator. It was also submitted that at the time the 457 nomination was lodged and subsequently approved on 15 July 2014, there was no requirement under the relevant labour market testing rules that employers must only employ experienced workers.
Detailed submissions were also made in relation to the concerns outlined in the notice regarding r.2.87 and r.2.90, however, it is not necessary to detail these submissions as the delegate ultimately found that there was insufficient information on which to conclude that there had been a breach in respect of these obligations.
Evidence before the Tribunal
Prior to the hearing, the Tribunal received submissions and supporting documents. The Tribunal has had regard to these as part of its considerations below.
A detailed history of the visa holder’s employment, leave entitlements and leave taken was provided as follows:
·The visa holder began his employment on a 457 visa on 9 August 2014 and worked until 31 December 2016 on a full-time basis as a motor mechanic.
·The visa holder travelled to India to get married on 1 January 2017 where he remained until 19 April 2017 when he returned to Australia. He was not paid for this period as it was leave without pay, as the visa holder did not have any accrued annual leave.
·The visa holder had a bad accident whilst in India and upon returning to work he lasted less than a day, as he was unable to move properly and was a danger to himself and other employees. He severely injured his back and neck.
·The visa holder returned to work on 18 September 2017 and worked full time until 8 October 2017. He needed more rest, so it was suggested that he have more time off work for his situation to improve.
·It was clear in the two weeks he returned to work that he was still unable to resume his normal duties and perform them safely.

·The visa holder then went back to India to be with his family and wife to recuperate and he stayed in India from 11 October 2017 until 30 November 2017, when he returned to Australia with his wife.

·The visa holder finally returned to work on a full time basis on 2 April 2018 and has continued to work full time performing his normal duties as a motor mechanic up until October 2019.
·The visa holder took extended leave to deal with personal issues, including the breakdown of his relationship which has since ended in divorce.

At the hearing Mr Lee provided evidence about the sponsoring business, its employees and the decision to sponsor the visa holder for the position of motor mechanic. He stated that he is a motor mechanic by trade. Prior to coming to Australia, he had a car dealership in Dubai. He established Startech Prestige in Lynbrook in 2007. He stated that he was in need of a motor mechanic and placed and advertisement in the paper. He received about five applications at the time. He decided to select Mr Gahra for the position because he was impressed with his work ethic. He stated that Mr Gahra was trade qualified, was willing to work hard and demonstrated that he knew what he was doing.
The Tribunal raised with Mr Lee its concern about the significant gaps in Mr Gahra’s employment. The Tribunal noted that while there was evidence that the visa holder was employed by the business between August 2014 and December 2016, it was concerned that after that time the applicant’s employment was sporadic and that there were significant gaps between each period of leave and when he resumed employment. The Tribunal further noted that the initial gap in Mr Gahra’s employment appeared to coincide with the lodgement of the employer nomination for the permanent visa, which was subsequently approved by the Department in April 2017. The Tribunal raised the concern that Mr Gahra appears to have ceased working for the sponsor shortly after qualifying for the permanent residence visa i.e. after completing the two years of employment in the nominated position.
In response, Mr Lee acknowledged that there were gaps in Mr Gahra’s employment but contended that this was due to Mr Gahra’s personal circumstances and medical issues. He indicated that he had agreed for the visa holder to take leave until his health improved. In further explaining the nature of the leave, Mr Lee stated that initially Mr Gahra took three months of leave to go to India and get married as arranged by Mr Gahra’s parents. He agreed for Mr Gahra to take a three-month vacation and approved the leave.
Mr Lee gave evidence that the visa holder, whilst in India, sustained a back injury and had a slipped disk which prevented him from returning to work for some time. Mr Lee was unable to provide much detail about how the injury was sustained, stating only that Mr Gahra slipped and injured his back. He stated that Mr Gahra gave him the doctor’s letter, which he has kept in his records, and that he agreed for Mr Gahra to take leave until his condition improves. He indicated that Mr Gahra attempted to return to work in April 2017 but was still unwell and he agreed for Mr Gahra to take further leave until his condition improves.
When asked about whether Mr Gahra was paid during that period of leave, Mr Lee explained that they are a small business and that he had just paid Mr Gahra his annual leave entitlements. When asked about payment of sick leave to Mr Gahra, Mr Lee stated that he had relied on his bookkeeper to ensure that entitlements were paid, he was unsure of how the records for the leave were kept but indicated that they now have an accounting program called Zero which calculates all the required leave entitlements. The Tribunal raised the concern that there was limited information before it about Mr Gahra’s sick and annual leave entitlements and whether they had been paid out. After some discussion, Mr Lee indicated that he would provide further information regarding payment of entitlements following the hearing.
The Tribunal discussed with Mr Lee the information set out in the notice regarding the alleged breach that the Mr Gahra had not been undertaking work in the nominated employment with the sponsor. The Tribunal explained to Mr Lee that it was particularly concerned about the evidence obtained from Leon Lee during the site visit in which he stated that he did not know Mr Gahra. In response, Mr Lee stated that his son Leon is completing a motor mechanic apprenticeship and was attending the workshop only one day a week and only knew the visa holder as ‘Garry’. The Tribunal expressed its surprise that Leon, who is the Mr Lee’s son and had been undertaking an apprenticeship for four years would not know Mr Gahra’s formal name. Mr Lee stated that Leon is quite young and that when the officers came into the workshop in uniform everyone was shaken up and nervous. He stated that when Leon was asked if Gurvinder Singh worked there, he genuinely did not know that this was Garry’s formal name, as he is not familiar with Indian names and had not spent much time with Garry in the workshop. Mr Lee also stated that Leon spent most of his time working out at the nearby gym and on the day that Leon does come into the workshop he mostly stays in the office. He stated that the long-term plan is for Leon to take over the business though he has not shown much interest.
The Tribunal discussed with Mr Lee the officer’s observations that Mr Gahra’s name did not appear anywhere in the workshop, including on the kitchen roster. Mr Lee explained that Mr Gahra is a Sikh and eats only vegetarian food. He stated that Garry normally has lunch outside and they did not include him in the kitchen roster as he cannot wash dishes which had meat in them. In relation to a workshop roster, Mr Lee stated that they are a small business and do not need to keep a work or attendance roster.
The Tribunal expressed its concern that between January 2017 and April 2018, Mr Gahra only worked intermittently, to which Mr Lee stated that Mr Gahra was never quite right after the fall and that it has taken a long time for him to get his strength back. When asked if he was aware of Mr Gahra undertaking any other employment during that time, Mr Lee stated ‘no’. When asked how Mr Gahra was supporting himself, Mr Lee stated that it was clear that Mr Gahra was struggling and that he had been relying on friends to support him. Mr Lee stated that Mr Gahra kept in contact with him and used to often come the workshop and that he felt very sorry for him. He stated that Mr Gahra is a good person and that once the business re-opens, after the coronavirus lockdown is lifted, he would re-employ Mr Gahra as a motor mechanic.
The Tribunal also took evidence from Mr Gahra. When asked about the history of his employment with the sponsor, he stated that he had responded to an online advertisement for the position. He stated that at the time he had completed his Certificates III and IV and was looking for a full time job as a mechanic. He stated that he had been working on a casual basis to get work experience and that the sponsor was looking for someone full time. Mr Gahra provided details of the interview and stated that he was asked by Mr Lee to work on a trial basis for one week. He demonstrated that he could work on different types of cars and was offered the position.
Mr Gahra stated that he continued to work full time until December 2016 when he was informed by his parents that it was time to get married. He stated that the marriage was arranged by his father and he travelled to India for the wedding. While he was in India he slipped and fell on his back. He was assisted by family members and taken to hospital. He was informed that he had an injury of his vertical chord at L3 and needed complete bed rest for a few months. Mr Gahra stated that he was not able to return to work on time and informed Mr Lee of his situation.
Mr Gahra stated that after returning to Australia in April 2017, he attempted to return to work but could not continue as he was still experiencing pain. He contacted Mr Lee in September 2017 to inform him that he could return to work. He stated that he returned to work in September for about three weeks but was unable to continue as again he was experiencing pain and was on a lot of medication. Mr Gahra stated that he was not able to resume work full time with the sponsor until April 2018. When asked how he was able to support himself during the time he was not working, Mr Gahra indicated that he received assistance from good friends and the priest of the Sikh temple. Mr Gahra maintained that he did not undertake any other employment, that he was dedicated to his job with the sponsor and returned to that employment as soon as he was able to do so. Mr Gahra gave evidence that he was entitled to about eight or nine days of sick leave and that he had a good relationship with his employer.
Following the hearing, the Tribunal received supporting documents and submissions. The documents included the following:
·Skills assessment for the applicant issued by VETASSESS on 20 May 2019 in the occupation of Motor Mechanic.
·PAYG statements for Mr Gahra for the financial years from 2014 to 2019, together with the corresponding ATO tax assessment notices for those years.
·Superannuation statements for Mr Gahra for transactions from 2015 to 2019.
The Tribunal also received a statement from Mr Lee in which he explained that salaries are paid as one block deduction from the business’ account and are transferred automatically to the different employees. He stated that an annual leave loading of 17.5% is paid on all annual leave and is in accordance with the relevant Award and that annual leave is paid weekly to employees because of the cashflow of the business. He stated that the business shuts down one week before Christmas and reopens one week after New Year’s Day and that all employees take these three weeks as annual leave.
Considerations
In assessing whether the sponsorship obligations in r.2.79 and r.2.86 have been breached, the Tribunal has carefully considered the evidence before it as follows.
The Tribunal has first considered whether the applicant has complied with their obligation in r.2.86 to ensure that the primary sponsored person works in the nominated occupation before considering the obligation in r.2.79 relating to equivalent terms and conditions of employment as the delegate had found that Mr Gahra was not working in any capacity in the sponsor’s business.
Regulation 2.86(2), to which the sponsor is subject, requires the sponsor to ensure that the visa holder works in the nominated occupation and that they do not work in an occupation for which they have not been approved.
The evidence before the Tribunal which raised concerns about whether Mr Gahra worked in the nominated occupation for the sponsor includes, information obtained during a phone call made by a Departmental officer to the business in October 2017, during which the officer was informed that there was no one by the name of Gurvinder Singh Gahra employed by the business, information obtained during the site visit, including the response by Leon Lee that he did not know anyone by the name of Gurvinder Singh Gahra and the inconsistencies between the responses given by Mr Lee and the employees, Mr Prazer and Mr Reshan, about when Mr Gahra last worked. There were also concerns about Mr Gahra’s name not appearing on the kitchen roster or on any documents located at the business’ premises. The Tribunal will address each of these concerns further below.
In relation to the concern that Mr Gahra may not have worked for the sponsor in any capacity, the Tribunal considers that there is limited probative evidence on the information before it to establish that Mr Gahra had never worked for the sponsor.
The evidence before the Tribunal indicates that Mr Gahra was in receipt of wages and superannuation payments, consistent with his terms and condition of employment as provided for in the employment contract, from August 2014 to December 2016, for a few weeks in September/October 2017 and from April 2018. In addition to this evidence, there is also the oral evidence of Mr Lee, Mr Reshan and Mr Prazer during the site visit indicating that Mr Gahra works as a motor mechanic in the sponsor’s business and was last seen at the premises a few days prior to the site visit.
The Tribunal acknowledges that there were inconsistencies in the evidence about when Mr Gahra last worked, however, on a closer look at the evidence, the inconsistences about the date only differed by a few days. The Tribunal has also considered the explanation for why Leon Lee had told the officers that he did not know Mr Gahra and accepts as plausible Mr Lee’s explanation that Leon, who is a young apprentice, knew Mr Gahra as ‘Garry’ and that he mostly worked in the office on the days he was in the workshop. The Tribunal notes that some of the documents provided by the sponsor to the Department relating to Mr Gahra’s employment indicate that he is referred to as ‘Garry’, including details about Mr Gahra’s email address: ‘gurvidergarry@...’. The Tribunal accepts that Mr Gahra’s name was not on the kitchen roster due to religious reasons and that his name did not appear on any material in the workshop because the sponsor does not keep a roster, and that neither Mr Gahra or any of the other employees’ names are identified on any material posted at the workshop.
The Tribunal has had regard to the evidence on the Department’s file and the concerns raised in the notice about the employment of Mr Gahra, however, the Tribunal is not able to comfortably establish on that evidence that Mr Gahra had not worked at all for the sponsor. This is relevant as it goes to the seriousness of the breach, being one of the considerations the Tribunal must have regard to, as required by r.2.89, when considering what action, if any, to take if a breach is established.
At the hearing, Mr Lee was strident in his evidence that Mr Gahra had worked full time as a motor mechanic at the workshop following the grant of his Subclass 457 visa. He stated that Mr Gahra commenced full time in the position in August 2014 up until December 2016 and since April 2018. Mr Lee and Mr Gahra gave consistent evidence about Mr Gahra’s experience prior to applying for the position with the sponsor and the events leading up to Mr Gahra being offered the position and commencing work with the sponsor. Mr Lee and Mr Gahra also gave consistent evidence about why the applicant had not worked full time for the sponsor from January 2017 until April 2018, other than for a few weeks in September/October 2017, which included that the applicant had to travel overseas to marry, that he had a fall which resulted in him injuring his back and that it had taken the applicant over a year to recover and be able to return to work again.
Mr Gahra’s movement records confirm that he was outside Australia from January 2017 to April 2017 and from October 2017 to November 2017. In relation to Mr Gahra’s medical condition, the Tribunal has before it the medical reports from India indicating that he was admitted to hospital due to a spinal injury. There is no basis to doubt the genuineness of these reports. The Tribunal was, however, concerned that the applicant had not provided any medical reports from a medical practitioner in Australia regarding the extent of his injuries and how it impacted his ability to return to work. The Tribunal acknowledges that the injury occurred in India and that Mr Gahra was treated by doctors in India, however, Mr Gahra was in Australia for about one year during which he was not fit for work and the Tribunal considers that if Mr Gahra’s condition was so debilitating, then some evidence would have been available regarding the applicant’s back injuries and recovery progress. In any case, the Tribunal is prepared to give the sponsor the benefit of the doubt and accepts that the reason Mr Gahra had not worked for a period of almost one year whilst he was in Australia was because he was still recovering from his back injury. This, however, does not absolve the sponsor from their obligation in r.2.86(2)(a) as discussed further below.

In relation to the obligation in r.2.86(2)(b) that the visa holder does not work in an occupation other than that for which they have been approved, there is no evidence before the Tribunal which suggests that Mr Gahra had worked in another occupation or for any other employer since being granted the Subclass 457 visa in July 2014 to date. Mr Gahra gave evidence, which the Tribunal accepts, that during the time he was in Australia and not working for the sponsor he was being supported by good friends and a priest from the Sikh temple.
In assessing the sponsor’s obligation with r.2.86(2)(a), the Tribunal notes that on a plain reading of the regulations, the sponsor has not demonstrated that they have complied with this obligation. While Departmental policy allows for periods of unpaid leave, it also indicates that for Subclass 457 visa holders this should not exceed three months. This is consistent with the condition that would have been imposed on Mr Gahra’s Subclass 457 visa, namely condition 8107, which required him not to cease work in the nominated occupation for a period exceeding 90 days.
There is limited evidence before the Tribunal that Mr Lee had formally approved a specified period of leave without pay in respect of Mr Gahra or that any part of the leave taken by Mr Gahra was personal/sick leave. Mr Lee appears to have allowed Mr Gahra to take an unspecified period of leave without making a concerted effort to satisfy himself that Mr Gahra could not work as a motor mechanic or to consider whether light duties in the nominated occupation could be accommodated. While Mr Lee had indicated in his evidence that he kept in contact with Mr Gahra and had kept a copy of the medical certificate from India, there is limited evidence before the Tribunal to suggest that Mr Lee had requested Mr Gahra provide updated medical reports about his medical condition so as to maintain contemporaneous records to explain why Mr Gahra had been unable to resume work. The Tribunal is not satisfied that the applicant had satisfactorily discharged their obligation to ensure that Mr Gahra worked in the nominated occupation with the sponsor.
While the Tribunal acknowledges the reasons for why Mr Gahra did not work in the nominated occupation for extended periods during which he held a Subclass 457 visa, which the Tribunal will have regard to further below in its considerations under r.2.89, the Tribunal nevertheless considers that on a plain reading of the requirement in r.2.86(2)(a), the sponsor has not complied with their obligation to ensure that the visa holder works in the nominated occupation.
Regulation 2.79 – Obligation to ensure equivalent terms and conditions of employment
Regulation 2.79(3)(a)(iii) requires a sponsor to ensure that the terms and condition of employment provided to the primary sponsored person are no less favourable than the terms and conditions of employment that the Minister was satisfied, under r.2.72(10)(c) of the Regulations, as in force before 18 March 2018, were no less favourable than the terms and conditions of employment that are provided, or would be provided, to an Australian citizen or an Australian permanent resident.
On 15 July 2014, the Department approved the sponsor’s nomination in relation to Mr Gahra for the position of Motor Mechanic. The approved annual base salary was $54,000. Mr Gahra was also entitled to superannuation as provided for by the Superannuation Guarantee and was entitled to four weeks of paid annual leave and 10 days of personal/carer leave under the minimum National Employment Standards. These entitlements were set out in the employment contract for Mr Gahra which was also provided to the Department by applicant in response to the request for information.
The delegate was concerned that the evidence provided by the sponsor regarding the payment of wages showed only bulk salary payments and that payments made to individual employees, including the visa holder, could not be verified. While this concern may be relevant to the obligation in r.2.82 of the Regulations to keep records of payments made to a sponsored person in a specified manner, it does not establish that r.2.79(3) has been breached. This is because other evidence provided by the sponsor to the Department and to the Tribunal, including PAYG, tax assessment notices and bank records for Mr Gahra for the periods he was working for the sponsor, including the period of April 2018 to May 2018, clearly indicate that Mr Gahra was in receipt of wages, by way of bank transfers into his account, which were consistent with the amounts noted on the payslips provided to the Department and in accordance with the terms and conditions of his employment as provided for in the employment contract.
The Tribunal is also satisfied on the evidence provided relating to Mr Gahra’s superannuation account that Mr Gahra was paid his superannuation entitlements as provided for in the employment contract.
Other than for the few weeks of in September/October 2017, there is no evidence that the visa holder was paid any wages for the period from 1 January 2017 to April 2018, which Mr Lee has indicated was taken as leave without pay.
In relation to the concern that the sponsor had not provided evidence of paid leave for the period that the visa holder was overseas – between January 2017 and April 2017 – the Tribunal notes that there was conflicting evidence about whether Mr Lee had informed the Departmental officer during the site visit that Mr Gahra had accumulated his leave so he could take an extended holiday or whether, as submitted by the representative on behalf of the sponsor, that the leave taken by Mr Gahra during that period was unpaid leave as Mr Gahra had only accumulated 80 hours’ worth of leave up to 25 December 2016.
When the issue of leave entitlements was discussed with Mr Lee at the hearing, he was unable to explain how or when the visa holder was paid his annual leave entitlements. He stated that he relied entirely on his bookkeeper to ensure that all wages, leave entitlements and tax obligations were complied with. Mr Lee undertook to speak to the bookkeeper and to provide further information regarding Mr Gahra’s annual leave.
Following the hearing, the Tribunal received a statement from Mr Lee explaining that leave entitlements were paid on a weekly basis. The Tribunal reviewed the payslips that were provided to the Department by the sponsor in response to the request for information and, while it observed that they included a record of the holiday leave accrued, it was not entirely clear on the payslips that Mr Gahra’s pay was inclusive of annual leave entitlements. The gross pay noted on the payslip appears to be for the total number of hours worked at the specified hourly rate which is equal to the base salary specified in the contract of employment.
The Tribunal also notes that Mr Gahra was employed under an individual contract of employment and not under an Award. He was entitled under the contract to a base salary of $54,000 and four weeks of annual leave. The payslips indicate that the weekly payments to Mr Gahra were in respect of hours worked and do not suggest that the accrued leave entitlements were either taken by the applicant or were paid out by the sponsor.
The Tribunal has had regard to the post hearing submission that all employees of the business take three weeks annual leave around Christmas and New Year, however, the payslip for the pay period between 26 December 2016 to 1 January 2017 indicates that the pay was only for 40 hours of work and that Mr Gahra had accumulated 83.06 hours of holiday leave. There is no verifiable record of how Mr Gahra’s accrued leave entitlements were dealt with by the sponsor.
The Tribunal is not satisfied that the sponsor has demonstrated that the visa holder had been paid his annual leave entitlements as provided for under the contract of employment. Consequently, the Tribunal finds that the sponsor has failed to comply with their sponsorship obligations in r.2.79 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 the above reasons, the Tribunal is satisfied that a relevant circumstance for s.140L(1)(a) of the Act exists. Accordingly, it is necessary to consider whether one or more of the actions mentioned in s.140M should be taken.
In this case, the delegate made a decision to bar the applicant from applying for approval as a sponsor for five years, being the maximum period indicated in the policy.
The Tribunal has had regard to representative’s submissions that the period of the bar was not warranted and disproportionate to the alleged breaches and mitigating circumstances.
In considering what action to take, the Tribunal has had regard to the prescribed criteria, as extracted in the attachment to this decision.
The past and present conduct of the person in relation to Immigration
The delegate found that the sponsor had not co-operated with the Department as they provided only some of the records requested and that the information conflicted with other evidence before the Department. The Tribunal acknowledges the delegate’s concern regarding the omissions in the information provided; however, the Tribunal notes that by the completion of the monitoring process and in response to the notice, most of the information requested by the Department was eventually provided. The evidence before the Tribunal also indicates that Departmental officers were able to enter the sponsor’s premises and speak to all the business’ employees, and that the director, Mr Lee, willingly participated in the interview process. Overall, the Tribunal is satisfied that the sponsor was generally co-operative with the Department.
The number of occasions on which the person has failed to satisfy the sponsorship obligation
The Tribunal has found that the applicant has failed to satisfy the sponsorship obligations in r.2.79 and r.2.86. There applicant has not satisfied these obligations on one occasion.
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
In relation to the failure to ensure that the visa holder works in the nominated occupation, which occurred over a period of about one year, the Tribunal has considered the mitigating circumstances, being that the visa holder was, for part of the time, outside Australia, and when he was in Australia was unable to resume work due to a back injury.
In relation to the failure to satisfy the obligation to ensure equivalent terms and conditions of employment, as the Tribunal has found, this relates to the applicant’s failure to demonstrate that the visa holder had received his leave entitlements as provided for in the contract of employment. While the Tribunal acknowledges that Mr Lee delegated the responsibility of employees’ payments to his bookkeeper, the Tribunal considers it Mr Lee’s obligation to ensure that the visa holder was paid his leave entitlements in accordance with the contract of employment, on the basis of which the nomination was approved. Mr Lee’s contention that the visa holder was paid in accordance with the Award is unsatisfactory, as the visa holder was employed under an individual contract and not an Award.
The period of time over which the person has been an approved sponsor
The applicant was approved as a standard business sponsor on 30 June 2014 for a period of three years.
Whether, and the extent to which, the failure to satisfy the sponsorship obligation has had a direct or indirect impact on another person
The Tribunal has had regard to the representative’s submission that the decision to impose a five-year ban has severely impacted the visa holder, as his Subclass 186 visa was refused on that basis. The Tribunal notes that the decision to refuse the visa holder the employer nomination Subclass 186 visa is currently under review before the Tribunal. The Tribunal considers that the sponsor’s failure to comply with their sponsorship obligation may adversely impact the visa holder’s eligibility to qualify for an employer nomination visa.
Whether, and the extent to which, the failure to satisfy the sponsorship obligation was intentional, reckless or inadvertent
The Tribunal considers that the sponsor’s failure to satisfy the sponsorship obligations in r.2.79 and r.2.86 was reckless. Mr Lee, as the sponsor’s director, was responsible for ensuring that he informed himself of the sponsorship obligations and that they are complied with.
Whether, and the extent to which, the person has cooperated with Immigration, including whether the person informed Immigration of the failure
As the Tribunal has indicated above, it considers that the applicant has generally been co-operative with the Department. However, the Tribunal considers that the applicant was required to inform the Department of the change in the employment circumstances of the visa holder given the long periods of time that the visa holder was unable to resume employment.
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
The Tribunal is satisfied that the visa holder resumed work with the sponsor in April 2018. Mr Lee also explained that there was a gap in the employment in November 2019 due to the breakdown of Mr Gahra’s relationship with his spouse and subsequent divorce. Mr Lee also confirmed that the position of motor mechanic remains available to the visa holder and that when the lockdown in Victoria is lifted and the workshop re-opens, Mr Gahra will recommence work with the sponsor.
In relation to the breach regarding terms and condition of employment, the Tribunal is not satisfied that the sponsor has taken any steps to either pay the leave entitlements or to provide probative evidence demonstrating that the leave entitlements under the contract have been paid.
The processes (if any) the person has implemented to ensure future compliance with the sponsorship obligation
As noted above, Mr Lee has indicated that once the workshop is able to resume trading Mr Gahra will recommence work with the business.
The is limited evidence before the Tribunal regarding the sponsor’s obligation to ensure payment of leave entitlements as provided for in the contract of employment and to maintain the required records of the same.
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
The Tribunal notes that while the Department had concerns about other sponsorship obligations, such as the obligation in r.2.87 and the requirement in in r.2.90, the sponsor was not found to have failed to satisfy those obligations.
Any other relevant factors
It was submitted that the applicant has only sponsored the visa holder and no other employees. It was noted that the Department’s decision to impose the bar was made more than one year after the sponsorship had ceased. It was also submitted that the sponsor provided the Department with all the records requested and that the sponsor has acted in good faith in their dealings with the Department.
In relation to the applicant’s dealings with the Department, the Tribunal has made some favourable findings above. The fact that the monitoring commenced, and a bar imposed, after the sponsorship had ceased, is of no consequence, as sponsorship obligations generally apply to sponsors and former sponsors.
Having carefully considered all the circumstances, the Tribunal considers that a sanction is warranted in this case, however, given the Tribunal’s findings, it considers that any bar imposed should be far less than the five years imposed by the Department.
In this case, the delegate imposed the maximum bar period suggested in the policy. It was clear from the delegate’s decision that this was based on the view formed that the visa holder had never worked for the sponsor and that the employment arrangement was a sham devised to secure permanent residence for Mr Gahra. As noted above, the Tribunal, having carefully considered the evidence before it, did not form the same view.
Considering the totality of the circumstances, and having regard to the prescribed criteria, the Tribunal considers that a bar of 12 months from applying for approval as a standard business sponsor or temporary activities sponsor to be an appropriate action to take in this case. The period of the bar commenced on the date of the Department’s decision, being 6 August 2018, and ended on 6 August 2019.
DECISION
The Tribunal varies the decision under review by reducing the period of the bar to 12 months from the date of the Department’s decision.
R. Skaros
Senior Member

ATTACHMENT – Extract from the Migration Regulations 1994
2.89   Failure to satisfy sponsorship obligation
…
(3) For paragraph 140L(1)(b) of the Act, the criteria that the Minister must take into account in determining what action (if any) to take under section 140M of the Act in relation to the circumstance mentioned in subregulation (2) are:
(a)   the past and present conduct of the person in relation to Immigration; and
(b)   the number of occasions on which the person has failed to satisfy the sponsorship obligation; and
(c)   the nature and severity of the circumstances relating to the failure to satisfy the sponsorship obligation, including the period of time over which the failure has occurred; and
(d)   the period of time over which the person has been an approved sponsor; and
(e)   whether, and the extent to which, the failure to satisfy the sponsorship obligation has had a direct or indirect impact on another person; and
(f)    whether, and the extent to which, the failure to satisfy the sponsorship obligation was intentional, reckless or inadvertent; and
(g)   whether, and the extent to which, the person has cooperated with Immigration, including whether the person informed Immigration of the failure; and
(h)   the steps (if any) the person has taken to rectify the failure to satisfy the sponsorship obligation, including whether the steps were taken at the request of Immigration or otherwise; and
(i)    the processes (if any) the person has implemented to ensure future compliance with the sponsorship obligation; and
(j)    the number of other sponsorship obligations that the person has failed to satisfy, and the number of occasions on which the person has failed to satisfy other sponsorship obligations; and
(k)   any other relevant factors.
…

[2020] AATA 5914

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