SYDNEY KOREAN METHODIST CHURCH INCORPORATED (Migration)

SYDNEY KOREAN METHODIST CHURCH INCORPORATED (Migration) [2020] AATA 209 (7 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  SYDNEY KOREAN METHODIST CHURCH INCORPORATED
CASE NUMBER:  1831359
DIBP REFERENCE(S):  OPF2018/8591
MEMBER:Alan McMurran
DATE:7 February 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal varies the decision under review to bar the applicant from making applications for approval as a Standard Business Sponsor and Temporary Activities Sponsor commencing 5 October 2018 for a period of 3 years, concluding on 5 October 2021.

Statement made on 07 February 2020 at 11:35am
CATCHWORDS
MIGRATION – cancellation – sponsorship approval – false or misleading information – financial statement – income and wage expenditure – element of intention – negligent – incorrect as a matter of fact – law of agency – ‘significant failure’ requiring formal action – specified period to be applied – waiving a bar – no new evidence or information – not in the worst-case category – decision under review varied
LEGISLATION
Migration Act 1958 (Cth), ss 140L, 140M, 140O, 360, 362B, 379A
Migration Regulations 1994 (Cth), rr 2.90, 2.101
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application made 25 October 2018 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.
Background
The applicant was approved as a standard business sponsor by agreement with the Department made 26 August 2015, expiring 26 August 2018.
On 5 October 2018, the delegate decided to sanction the applicant under section 140M(1) (d) of the Act by imposing a bar on the applicant for a period of 5 years from making future applications for approval as a standard business sponsor and temporary activities sponsor, on the basis that the applicant, when a standard business sponsor, provided false or misleading information to the Department.
The applicant was invited under section 360 of the Act by letter dated 19 December 2019 to appear before the Tribunal on Thursday, 6 February 2020 to give evidence and present arguments. The Tribunal arranged for an interpreter in the Korean and English languages to be present to assist the applicant at the hearing. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear.
The applicant did not return the Tribunal’s invitation. The applicant failed to appear for the hearing at the appointed date and time. On 19 December 2019, the Tribunal had sent a letter to the applicant, inviting the applicant to provide information, and requiring a response by 2 January 2020. The applicant responded within time by letter dated 26 December 2019, and the Tribunal refers to this correspondence and response in its given reasons below.
The Tribunal notes the hearing invitation was sent to the address provided by the applicant’s registered migration agent, Nicole Yoo. No request was received for a postponement of the hearing date. Nothing further has been received from the applicant or on behalf of the applicant by the Tribunal since an email from Nicole Yoo enclosing the letter from the applicant, and sent by her on 27 December 2019.
Having reviewed its file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with section 379A(5) of the Act, the invitation not having been returned to sender, and in light of its communications with the agent representative appearing for the applicant referred to above. Accordingly, the Tribunal has determined to proceed to make a decision on the review without taking any further action to allow or enable the applicant to appear before it.[1]
[1] s. 362B (1A) (a)
For the following reasons, the Tribunal has decided to vary the decision under review by reducing the period of the bar from 5 years to 3 years, and commencing from the date of the delegate’s decision on 5 October 2018, concluding 5 October 2021.
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 - r.2.94B and include circumstances in which the Minister, or Tribunal on review, is satisfied there has been: a failure to satisfy a sponsorship obligation; provision of false or misleading information; sponsorship application or variation criteria no longer met; a contravention of the law; unapproved changes to a program; a failure to pay additional security; a failure to comply with certain terms of an agreement; or a failure to pay medical and hospital expenses. The prescribed circumstance relied upon in this instance is the provision of false or misleading information to the Department.
Where a prescribed circumstance has been found to exist, the regulations prescribe criteria that must be taken into account when determining what action, if any, to take: r.2.89 – r.2.94B. These criteria, as they relevantly apply to the circumstances of this case are set out in the attachment to this decision.[2]
[2] Relevantly r.2.90
Policy guidelines[3] distinguish between types of failure that fall within the prescribed circumstances[4] as minor failure, significant failure and serious failure. Where the asserted failure has led to a determination that prescribed circumstances exist, in determining whether it is “significant”, policy directs attention to several criteria including a failure that affects the Department’s capacity to monitor the sponsor, and where the failure was due to the sponsor’s negligence or reckless conduct. Where the failure is regarded as “significant”, formal action by the Department is likely and is recommended under policy.
[3] PAM 3
[4] Relevantly here, regulations 2.90 to 2.94A
The applicant, being a person who is or was an approved sponsor, must satisfy the sponsorship obligations prescribed by the regulations.[5] The delegate found the applicant had provided false or misleading information in breach of the regulations[6] and which under policy may be regarded as a “significant failure” requiring formal action.
[5] r.140H
[6] r.2.90
The delegate considered what action might be appropriate as a consequence and as required under s.140M of the Act (as set out above). As the applicant’s sponsorship agreement had expired at the time of the delegate’s decision, the delegate elected to bar the sponsor for a specified period, namely 5 years, from making further applications for approval as a standard business sponsor and temporary activities sponsor.
The Tribunal must on review consider on the information before it:
·whether it is satisfied the applicant is in breach of the regulation (r.2.90) for providing false or misleading information, and the prescribed circumstances exist;
·what action appropriately should be taken under s.140M, having regard to the prescribed circumstances existing, and
·whether the requirement of the Regulations in considering the waiver request on the facts and circumstances in this instance, invokes the exercise of discretion in favour of the applicant. [7]
[7] r.2.101 - criteria for waiving a bar
In considering these matters, the Tribunal has before it information from the Department file[8], the Tribunal file and the written submissions from the applicant by letter dated 26 December 2019. The Tribunal is also mindful of policy considerations as set out in the Department’s guidelines[9] referred to above and intended to assist the decision-maker as to the appropriate outcome.
Section 375A certificate
[8] OPF 2018/8591
[9] PAM 3
Attached to the Department file is a certificate under section 375A of the Act, which certifies information, contained in the Department’s file as information that would be contrary to the public interest if disclosed. The relevant public interest is referred to as information revealing the internal processes of the Department[10] relevant to the audit which it conducted of the applicant.
[10] Department file numbered folios 1 to 10 inclusive
The relevant section provides that where there is a valid certificate attached to the file, relevant to certain information provided, the information or documents to which it refers must only be disclosed to the Tribunal.[11] the Tribunal is required to do all things necessary to ensure the documents or information are not disclosed to any person other than a Member of the Tribunal as constituted for the purposes of the review.
[11] s.375A(b)
The Tribunal has considered the attached certificate to the Department’s file, noting it has been dated 1 April 2019 and is signed by the delegate. The Tribunal is satisfied the certificate is valid in respect of the folios which it seeks to withhold from disclosure.
The Tribunal further notes that the information contained in those folios is not information to which the Tribunal has had regard in coming to its decision in this review, and which outcome has been determined in accordance with the Regulations and relevant guidelines referred to above.
Does a circumstance for the taking of an action exist?
The applicant is registered as an Australian charity with the Australian Charities and Not-For-Profits Commission (ACNPC) which describes the applicant’s main activity as “religious activities”. In the present case, the delegate found that the applicant had provided false or misleading information in its application to the Department made 27 July 2017, which application was supported by a detailed statement of financial performance provided by the applicant.
The applicant was seeking appointment as a sponsor to nominate temporary workers for entry visas, including under Subclass 401[12], where the sponsor nominating is relevantly a religious worker sponsor. The financial information provided was used by the Department to help determine the applicant’s financial viability, and to provide assurance that the applicant is able to support its nominees and comply where applicable with relevant Australian employment laws as to terms and conditions of employment, including base rate of pay and nominee entitlements. The applicant says it is not a fundraiser and does not carry on business fundraising in its role as a registered charity. The ACNPC describes the applicant’s “religious activities” as “providing Sunday church services and Bible study for youth”, to the “general community in Australia”.
[12] Temporary Work (Long Stay Activity) visa
The focus of the delegate’s decision was on the detailed financial statement provided to the Department with the application in July 2017. The Tribunal does not have before it the Department’s file on the temporary activities sponsorship application, but the uncontested evidence of the delegate is that the financial statement presented by the applicant’s migration agent in support, contained information that the applicant’s income for the financial year ending 30 June 2017 was stated to be $307,455 (total income), with wage expenditure of $135,200 for that financial year. The financial statement was signed by the Public Officer of the applicant on 25 July 2017.
On 28 July 2017, the applicant provided to the ACNPC by its accountant, its annual information statement for the same financial year. That statement disclosed income of $185,952 and wage expenditure $54,600. This discrepancy in the figures supplied separately to the Department and to the ACNPC led the delegate to conclude that “the sponsor has significantly inflated their income in their submission to the Department”.
Applicant’s submission
In a letter to the Tribunal from Chang Hyuk Yoon, the applicant’s recorded Public Officer, dated 26 December 2019, the applicant provides an explanation.
It is useful to set out the full contents of that submission which is as follows [literally transcribed):
“Dear Tribunal member,
I am writing to you to request a review of the Department of Immigration’s decision. I was recently advised of our visa refusal due to false information, however, would like to appeal that it was not intentional.
Our church “Sydney Korean Methodist Church” had received a sponsorship cancellation letter from the Border Force due to the conflicting account balance detailed in ACNC and Immigration Department.
On 20^th July 2017, our church had sought a solicitor in Canaan Immigration Service for the renewal of the sponsorship. Whilst we were preparing the required documents ourselves, the solicitor asked for a formal full year accounting though we were no professionals. Due to the difficulty, I had referred them to an accountant in Andrew Narn Accounting Services to make direct contact and prepare necessary documents for the renewal application. We had great trust in both the solicitor and the accountant. Nevertheless, we were yet to know that the (sic) they had submitted the incorrect income balance in the document compared to the ATO report until a letter was received by the Border Force.
The Border Force had suspected that our church had intentionally falsified our account balance sheet to deceit the Department and thus sent us an email stating their decision to cancel the sponsorship. I must state with honesty, we did not manipulate, lie nor forge our balance sheet. Neither did we need to make any changes to our account income as it was enough for the approval of the sponsorship. Therefore, we have no reason be dishonest nor intend the forge, and neither did we know that it was possible to do so.
Further, we have come to realise that the same issue has risen in many other churches that had been applying the sponsorship via Canaan Immigration Service. Due to this I have heard that their office is currently under audit by the Border Force. This may also prove that we did not purposely make the changes. Soon after this incident, Canaan has advised our employees to cancel the visa and return back to their home country as a sponsorship is no longer renewable. I suspect that this is to secrete their faults.
In light of these facts, I would like to request the tribunal a thorough review of our case and reconsider the decision of sponsorship cancellation.
I appreciate your time taken into reading this letter. Please do not hesitate to contact me if you require any further information to approve this request.
Thank you.
Sincerely
Chang Hyuk Yoon”
The Tribunal notes that this was the only response received to its request for information sent 19 December 2019. The Tribunal notes that the applicant was advised of the decision by letter from Australian Border Force dated 5 October 2018, yet the applicant says that it was only “recently advised”. No explanation is provided for the lengthy delay (15 months) in responding. Nor has the applicant provided any further financial information such as current balance sheets or wage records to confirm or otherwise explain the actual figures for correct income and wage expenditure.
The Tribunal notes that the Department sent a Notice of Intention to Take Action (NOITTA) directly to the applicant’s nominated address at Wollstonecraft New South Wales and dated 27 August 2018, which clearly indicated the Department was of the opinion the applicant had provided false or misleading information in relation to the application for approval as a temporary activities sponsor, and by reference to the financial accounts submitted. That notice was never responded to by the applicant or on its behalf and no further communication was made by the applicant until this application to review lodged with the Tribunal.
In the circumstances, and taking into account the submission, the Tribunal is satisfied that the applicant has failed to provide the correct or accurate information required in support of the application seeking to renew sponsorship[13], and as a consequence the Department of Home Affairs, by its authority the Australian Border Force, has issued a valid NOITTA which was duly received by the applicant on or about 27 August 2018.
False or misleading information
[13] See also Explanatory Memorandum, to the Migration Legislation Amendment (Worker Protection) Bill 2008 at paragraph 101 which refers to a sponsor or former approved sponsor, having to comply with the Department's requirements “to provide information”, and also (paragraph 103) "keep records"
One or more of the actions in s.140M may be taken if the sponsor has provided false or misleading information to Immigration or the Tribunal: r.2.90 (2)[14]. In the present instance, 140M(1)(d) is the action taken of the 4 alternatives specified.[15]
[14] This regulation applies to a person who is or was a standard business sponsor and the Minister is satisfied the person (sponsor) has provided false or misleading information to the Department or the Tribunal.
[15] See par 11 above in these reasons
There is no prescribed definition of the expression “false or misleading information” for the purposes of the Act or the Regulations. The question is determined based on the particular facts and circumstances. The correct emphasis in terms of the stricture is on the recipient of the information, in this instance, the Department.
In other words simply put, in this instance, is the Department going to be misled upon the receipt of incorrect or inconsistent financial information required to be provided by the applicant in support of a sponsorship application?
As indicated above, there is no evidence in this instance to show the correct financial information, but there is sufficient inconsistency in the information provided separately to the ACNPC for the Department to regard the information it received as incorrect.
Although it was concluded by the delegate that the information was “fraudulent”[16] , the Tribunal is of the view there is insufficient information to determine that it was intentionally in the sense of deliberately provided (and inflated) to the Department, to achieve the result of having the sponsorship application approved. Suffice it to say that the financial information given to the Department was significantly different from what was provided to ACNPC for the Department to be “misled”. Absent any fraudulent intent, the provision of the information to the Department was at least negligent, and under policy, falls into the category of “significant failure”.
[16] Department file, folio 34
There is no requirement in this Tribunal’s understanding of the regulation (2.90) that any element of intention is necessary on the part of the applicant, or anyone acting on its behalf, for the information which is provided incorrectly (or negligently) to be deemed as “false”. The information is simply “false”, if it is not true. Whether or not it is “false” is a question of fact, and in the applicant’s submission referred to above, the author Mr Yoon concedes “they had submitted the incorrect income balance”.[17]
[17] Tribunal case file at folio 28
Although it has had significant time and opportunity to respond to the actual information provided at the time, how that came about that it was “incorrect”, from whom, and how it was put together, the applicant has chosen not to provide any further information, other than as set out above in the written submission.

That submission takes aim at the solicitor and the accountant acting for the applicant, as to blame, and as the explanation for the provision of the information, but it does not explain how it came to be different in each case. The Department and this Tribunal is entitled to conclude therefore that the information is still within the knowledge of the applicant and there is no submission the information was invented on its behalf in each instance when it was provided. The applicant’s Proper Officer signed the statement provided to ACNPC, which it seems is more likely to be the correct information, and which is significantly less than the income and wage figures provided to the Department.
On this basis the Tribunal finds it is satisfied the Department was misled by false or misleading information (meaning information which was incorrect) provided to the Department on behalf of the applicant.
It does not accept the submission that because the information may have been provided “fraudulently” by someone other than the applicant to the Department, by agents acting on behalf of the applicant, that the applicant is in some way not accountable. The law of agency renders the principal (the applicant) accountable for whatever is produced or presented by those it engages (agents) to act on its behalf.
The Tribunal prefers for its part a finding in this instance on the objective information that the provision of the incorrect information on behalf of the applicant was negligent, and which constitutes a significant failure on the part of the applicant.
Accordingly, the Tribunal is satisfied that the prescribed circumstance in r.2.90 exists for the purpose of s.140M of the Act.
Action to be taken
For these reasons, the Tribunal is satisfied that a relevant circumstance for s.140L (1)(a)[18] exists. Accordingly, it is necessary to consider whether one or more of the actions mentioned in s.140M should be taken.
[18] Circumstances in which the Minister may take action
In considering what action to take, the Tribunal has had regard to the prescribed criteria, as extracted in the attachment to this decision.
S. 140M provides four alternatives, including barring the sponsor for a specified period from making future applications for approval as a sponsor.[19]
Regulation 2.90
[19] s.140M (1) (d)
In considering that alternative, the Tribunal must have regard to r.2.90, as extracted as an attachment to this decision and as referred to in the delegate’s decision. None of the findings of the delegate under that regulation have been challenged. The Tribunal has no reason not to accept those findings, as no further evidence or information has been provided.
The Tribunal notes the purpose of the application was to seek approval as a temporary activity sponsor. The applicant has no previous history of being monitored, cautioned or sanctioned by the Department.
The Tribunal has noted above the information provided to the Department which was false and misleading. The presentation of financial information is fundamental in considering applications for sponsorship in a business environment, and includes the applicant as a registered charitable organisation which does not trade for profit. It is fair to say that the integrity of a business visa approval process would be seriously undermined without accurate and reliable financial information on which to base decisions.
The applicant became aware of the issue at least by August 2018 when it received the NOITTA, but did nothing by way of response to indicate there was some mistake, or to provide correct information with an explanation. This is not an indication of a party acting “in good faith” and where it is reasonable to expect a prompt and responsible reply. The concern as to the information only arose upon the Department’s own enquiry through monitoring.
Considering the totality of the circumstances, and having regard to the prescribed criteria, the Tribunal finds that the action mentioned in s.140M(1) (d) to bar the sponsor for a specified period from making future applications for approval as a sponsor, should be taken.
The only issue remaining is for the Tribunal to consider in the exercise of its discretion the specified period to be applied for barring the applicant. Policy indicates a range from 3 months to 5 years is appropriate.
Waiving a bar – s. 140O
Section 140O provides that in prescribed circumstances, the Minister may make regulations prescribing the circumstances to waive a bar[20].
[20] S.140O (3)
Regulation 2.101 prescribes criteria to take into account, where the Minister has not previously refused to waive the bar. The relevant criteria in the regulation are:
2.101
i)  whether the interests of Australia would be significantly affected if the bar were not waived; and
(ii)  whether a substantial trade opportunity would be lost if the bar were not waived; and
(iii)  whether there would be a significant detriment to the Australian community if the bar were not waived; and
(iv)  whether the person’s inability to sponsor a proposed primary sponsored person would significantly damage Australia’s relations with the government of another country; and
(v)  whether significant new evidence or information has come to light which was not available at the time the decision to place the bar was made;
There are no guidelines for determining the particular result, other than the facts and circumstances applicable, and the Tribunal’s decision is discretionary, so that “many factors are taken into account in determining the sanction ultimately imposed”.[21]
[21] See Minister for Immigration v Roberts & Anor [2011]FMCA 77 per Riley FM at par 26;
The Tribunal notes that no information or submissions have been made either at first instance to the Department or subsequently to the Tribunal concerning the prescribed circumstances for waiver consideration.
The Tribunal finds:
·    it is not aware there are any interests of Australia that would be affected if the bar were not waived;
·     it is not aware a substantial trade opportunity would be lost;
·    the Tribunal further finds that it is not satisfied there is any evidence there would be a significant detriment to the Australian community if the bar were not waived,
·    or that Australia’s relationship with another country might be significantly damaged;
·    the Tribunal finds there is no new evidence or information which has come to light which was not available at the time the decision was made to impose the bar, and taking into account the considerations provided above in these reasons in light of the submissions made in the letter from the applicant.
The Tribunal finds the applicant’s submission adds no significant new evidence or information, other than a criticism of the agents retained by the applicant and a concession that “the incorrect income balance” was submitted. That criticism is not supported by any “significant new evidence” explaining how that came about.[22]
Exercise of discretion
[22] r.2.101
The Tribunal has had regard to the applicant’s written submission. Although the Tribunal is of the view applicants are generally responsible for acts taken or done by agents on their behalf, the Tribunal is prepared to give some weight to the explanation in this instance that the applicant “trusted” the agents to provide the correct information both to the Department and to ACNPC.
The Tribunal has found that it is not satisfied on the information currently available that the applicant acted intentionally or fraudulently. The Tribunal is not of the view that this is a case where the recommended most severe outcome, being a 5 year bar, should apply. The delegate did not have the benefit of the most recent submission. It remains somewhat of a mystery why the applicant chose not to provide any additional explanatory information or documentation to support this application for review and the request for a waiver, until very late, and without then taking the opportunity to appear at a hearing.
Notwithstanding the opportunities to do so[23] and most recently in its submission of 26 December 2019, there remains no clarity around the financial information previously provided, and which the Tribunal accepts is a significant failure. It is in the Tribunal’s view however not in the worst-case category.
[23] See NOITTA, DOHA file at f 20 and Tribunal case file f 25 (invitation)
For those reasons, although the Tribunal is satisfied this is an appropriate case where the decision to impose a bar should be made, it is also satisfied the period of the bar should be reduced, this not being in the Tribunal’s view a situation where, under policy, the period of the bar should be the most lengthy.
Accordingly, the Tribunal proposes that the period be reduced, commencing from the time of the delegate’s decision and continuing until a period of 3 years has elapsed from that date, and which in the Tribunal’s view takes account of the concerns expressed in the reasons set out above.
DECISION
The Tribunal varies the decision under review to bar the applicant from making applications for approval as a Standard Business Sponsor and Temporary Activities Sponsor commencing 5 October 2018 for a period of 3 years, concluding on 5 October 2021.
Alan McMurran
Member

ATTACHMENT – Extract from the Migration Regulations 1994
2.90   Provision of false or misleading information
…
(3) For paragraph 140L(1)(b) of the Act, the criteria that the Minister must take into account in determining what action (if any) to take under section 140M of the Act in relation to the circumstance mentioned in subregulation (2) are:
(a)     the purpose for which the information was provided; and
(b)    the past and present conduct of the person in relation to Immigration; and
(c)     the nature of the information; and
(d)    whether, and the extent to which, the provision of false or misleading information has had a direct or indirect impact on another person; and
(e)     whether the information was provided in good faith; and
(f)     whether the person notified Immigration immediately upon discovering that the information was false or misleading; and
(g)    any other relevant factors.
…

[2020] AATA 209

7 February 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Intention

Negligence