The Trustee for Rai Family Trust (Migration)

[2020] AATA 5930

The Trustee for Rai Family Trust (Migration) [2020] AATA 5930 (3 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  The Trustee for Rai Family Trust

CASE NUMBER:  2006440

DIBP REFERENCE(S):  BCC2017/1308830

MEMBER:Andrew George

DATE:3 November 2020

PLACE OF DECISION:  Darwin

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to take one or more of the actions specified in s.140M of the Migration Act 1958.

Statement made on 3 November 2020 at 10:15am

CATCHWORDS
MIGRATION – cancellation – sponsorship approval – Workers have a legal right to work in Australia – ss.245AB(1) and 245AC(1) do not apply – decision under review set aside

LEGISLATION
Migration Act 1958, ss 140M, 245
Migration Regulations 1994, rr 2.59, 2.91

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to take an action under s.140M of the Migration Act 1958 (the Act) in relation to the applicant’s sponsorship.

2. The applicant operates fruit farms. The applicant was approved as a Standard Business Sponsor on 21 February 2018.[1] On 16 March 2020, the delegate decided to cancel the sponsor’s approval as a standard business sponsor under s.140M(1) of the Act. The applicant had admitted to “… employing unlawful workers but claim that this was not intentional, reckless or inadvertent. Their labour provider was contracted to ensure that all workers held an appropriate visa”.[2] Materially, the delegate found:

   “Due to their breaches of Sections 245AB and 245AC of the Act, the sponsor no longer meets the sponsorship approval criteria under Regulation 2.59(g) for standard business sponsors.

   The responsibility for not employing illegal workers lies with the sponsor, not their labour provider. Any issues they have with their labour provider agreement is a matter between the sponsor and the provider.

   To ensure ongoing compliance with employees, regular Visa Entitlement Verification Online system (VEVO) checks of employees’ status would be expected and the sponsor has not provided evidence that they have done these checks in the past”.[3]

   [1] Hearing Book/80.

   [2] Delegate’s Decision/2.

   [3] ibid/3-4.

3. The applicant, in the persons of Mr Gurudial Singh Rai and Mr Manjor Singh Rai, appeared before the Tribunal on 27 October 2020 to give evidence and present arguments. These witnesses were assisted, where required, by an interpreter of the Punjabi language.

4. The applicant was represented by Mr Rami Yousif of Brett Slater Solicitors. Helpfully, and in compliance with the practice directions, Mr Yousif submitted a book of all relevant documents prior to the hearing (the Hearing Book).

5. For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision not to take one or more of the actions specified in s.140M.

CONSIDERATION OF CLAIMS AND EVIDENCE

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

2. 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.

3. For these purposes, the circumstances are prescribed in rr.2.89 to 2.94B and relevantly include application or variation criteria no longer being met in r.2.91.

4. The Tribunal received oral evidence from Mr Manjot Singh Rai that was consistent with the outline of evidence submitted,[4] complying with paragraph [6.8] of the practice directions. Mr Manjot Singh Rai’s evidence was to the following effect:

   a.The applicant entered a contract with a labour provider (who is not named as they were not a party to these proceedings), to supply persons as agricultural workers.

   b.The contract was drawn up by solicitors and prohibited the labour provider from supplying illegal workers.

   c.The applicant never intended to employ workers who were unlawful non-citizens, or who were working in breach of their visa conditions.

   d.The applicant terminated its contract with the labour provider as soon as it became aware of that work had been performed by workers who had been supplied but did not have a legal right to work.[5]

   [4] Hearing Book/4-5.

   [5] ibid/76.

5. The Tribunal has a copy of the relevant contract, signed by Mr Manjot Singh Rai.[6] A material term of that contract is clause 7(c), which reads:

   “The Supplier warrants that, at all times when provided to Manjot, the Workers have a legal right to work in Australia and that no Worker will be an Illegal Worker”.[7]

   [6] ibid/75.

   [7] ibid/71.

6. Of note, the term ‘Illegal Worker’ is defined in the contract as follows:

   “A worker who is as an ‘Unlawful Non-Citizen’ within the meaning of the Migration Act 1958 (Cth) (‘Migration Act’) and who is working without a visa; or a ‘Non-Citizen’ within the meaning of the Migration Act who is performing work in breach of a Visa Work Condition within the meaning of the Migration Regulations 1994 (Cth)”.

7. The Tribunal notes that Mr Manjot Singh Rai’s oral evidence is consistent with the full admissions he made to Australian Border Force.[8] The Tribunal accepts Mr Manjot Singh Rai’s oral evidence.

   [8] ibid/77-78.

8. The Tribunal also heard from Mr Guridal Singh Rai. Much of this evidence reflected that of Mr Majot Singh Rai. Having already accepted Mr Manjot Singh Rai’s evidence, the Tribunal need not repeat most aspects of Mr Guridal Singh Rai’s evidence. It is of note that Mr Guridal Singh Rai also spoke of the possible fate of two employees should this application be unsuccessful. For reasons that will become apparent, however, this evidence is not relevant to this decision.

Does a circumstance for the taking of an action exist?

1. As outlined in paragraph [2] above, the delegate found that s.245AB of the Act was not met. The material parts of this section read:

   245AB  Allowing an unlawful non‑citizen to work

   (1)         A person (the first person) contravenes this subsection if:

   (a)the first person allows, or continues to allow, another person (the worker) to work; and

   (b)      the worker is an unlawful non‑citizen.

   (2)Subsection (1) does not apply if the first person takes reasonable steps at reasonable times to verify that the worker is not an unlawful non‑citizen, including (but not limited to) either of the following steps:

   (a)      using a computer system prescribed by the regulations to verify that matter;

   (b)      doing any one or more things prescribed by the regulations.

2. The delegate also found that s.245AC of the Act was not met. The material parts of this section read:

   245AC  Allowing a lawful non‑citizen to work in breach of a work‑related condition

   (1)         A person (the first person) contravenes this subsection if:

   (a)the first person allows, or continues to allow, another person (the worker) to work; and

   (b)      the worker is an unlawful non‑citizen.

   (c)      the worker holds a visa that is subject to a work‑related condition; and

   (d)the worker is in breach of the work‑related condition solely because of doing the work referred to in paragraph (a).

   (2)Subsection (1) does not apply if the first person takes reasonable steps at reasonable times to verify that the worker is not in breach of the work‑related condition solely because of doing the work referred to in paragraph (1)(a), including (but not limited to) either of the following steps:

   (a)      using a computer system prescribed by the regulations to verify that matter;

   (b)      doing any one or more things prescribed by the regulations.

3. The Tribunal notes that the material parts of the regulations referred to in ss.245AB(2)(b) and 245AC(2)(b), being rr.5.19G(2)(a) and 5.19H(2)(a), are identical. They state the following is a prescribed thing:

   (a)the entry into a contract under which a party to the contract performs either or both of the following functions:

   (i)verifying that a person has the required permission to work in Australia (however that is described in the contract);

   (ii)supplying persons who have the required permission to work in Australia (however that is described in the contract);

4. As such, rr.5.19G(2)(a)(ii) and 5.19H(2)(a)(ii) provide the applicant with an exemption to ss.245AB(1) and 245AC(1) through the operations of ss.245AB(2)(b) and 245AC(2)(b). That is, by entering into a contract where the supplier warranted that “… the Workers have a legal right to work in Australia and that no Worker will be an Illegal Worker …” the applicant satisfied the prescribed thing of being a party to a contract “… supplying persons who have the required permission to work in Australia”. To this end, delegate was mistaken that “Any issues they [the applicant] have with their labour provider agreement is a matter between the sponsor and the provider”.

5. In light of the findings already made, the Tribunal is satisfied that ss.245AB(1) and 245AC(1) do not apply and therefore the applicant cannot have breached these provisions. It follows then that no adverse information in r.2.59(g)(i) has arisen, nor do the circumstances in r.2.91 arise. Accordingly, the Tribunal is not satisfied that a prescribed circumstance exists for the purpose of s.140M of the Act.

DECISION

1. The Tribunal sets aside the decision under review and substitutes a decision not to take one or more of the actions specified in s.140M of the Migration Act 1958.

Andrew George
Member