The Trustee For Singh Family Trust (Migration)

[2019] AATA 1503

The Trustee For Singh Family Trust (Migration) [2019] AATA 1503 (31 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  The Trustee for Singh Family Trust

CASE NUMBER:  1714015

DIBP REFERENCE(S):  OPF2016/7283

MEMBER:Wan Shum

DATE:31 January 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision under review.

Statement made on 31 January 2019 at 3:19pm

CATCHWORDS

MIGRATION – cancellation – Regional Employer Nomination (Permanent) – Subclass 187 Regional Sponsored Migration Scheme –sponsored visa holder did not work fulltime in nominated position – trustee failed to ensure sponsored person worked in nominated occupation – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 140K, 140L, 140M, 375A, 359A
Migration Regulations 1994 (Cth), rr 2.84, 2.86, 2.89, 2.94B

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 sponsorship approval held by The Trustee for Singh Family Trust.

2. The Trustee for Singh Family Trust (the Trustee) was approved as a standard business sponsor on 31 March 2016. The Trustee sponsored Mr Baljit Singh (the sponsored visa holder) for the nominated occupation of Transport Company Manager, which was approved on 12 April 2016. The sponsored visa holder was granted a Subclass 457 visa in association with the nominated occupation on 1 July 2016. On 12 June 2017, the delegate decided to cancel the approval of the Trustee as a standard business sponsor under s.140M(1)(a) and bar the Trustee for one year from making future applications for approval under s.140M(1)(d). The delegate considered that the Trustee had failed to ensure the primary sponsored person works or participates in the nominated occupation, program or activity and had failed to satisfy a sponsorship obligation.

3. A delegate subsequently cancelled the visa of the sponsored visa holder. Both the Trustee and related visa applicant have sought review of those decisions. The Trustee and the sponsored visa holder were represented in relation to the review by the same registered migration agent.

4. Mr Gurprit Singh appeared before the Tribunal on behalf of the Trustee on 22 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Baljit Singh, the sponsored visa holder. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages. The representative attended the Tribunal hearing.

5. The Tribunal informed Mr Gurprit Singh that a delegate had issued a certificate pursuant to s.375A in respect of information contained in certain folios on the department files. The Tribunal provided a copy of the certificate following the hearing, inviting any comments on the validity of the certificate. The Tribunal did not receive any comments in this regard.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Trustee for Singh Family Trust is a business that operates three taxis in Mackay, Queensland. The Trustee was approved as a standard business sponsor in 2016. It then sponsored Mr Baljit Singh under the Subclass 457 program to work as a Transport Company Manager.

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

9. 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.

10. 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.

11. Where a prescribed circumstance has been found to exist, the regulations prescribe criteria that must be taken into account when determining what action, if any, to take: r.2.89 – r.2.94B. These criteria, as they relevantly apply to the circumstances of this case are set out in the attachment to this decision.

    Does a circumstance for the taking of an action exist?

    Failure to satisfy a sponsorship obligation: r.2.89

12. Pursuant to r.2.89(2), 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.

13. In the present case, the delegate found that The Trustee had failed to satisfy a sponsorship obligation and had breached r.2.86. Regulation 2.86 requires the sponsor to ensure that the sponsored person works in the nominated occupation, with the sponsored visa holder being the sponsored person in this case.

14. The delegate was not satisfied that the sponsored visa holder worked as a Transport Company Manager on the basis of an interview with the sponsored visa holder and a site visit to the business address, which involved discussing the position with Mr Gurprit Singh, the owner/Director of the Trustee.

15. As discussed during the hearing, the Tribunal had concerns regarding the inconsistent evidence of Mr Gurprit Singh and the sponsored visa holder on various matters including the nature of the work, the work days and hours and the location. The Tribunal was provided with a number of documents following the hearing including financial statements for the past two financial years, operator agreements with Mackay and Whitsunday Taxis, a detailed job description and sample daily driver reports. In addition, a document entitled ‘timeline of business locations and events’ was provided setting out dates the business was located at different addresses as well as sponsorship and visa grant and cancellation dates.

16. The Tribunal then wrote to the Trustee pursuant to s.359A setting out information it considered adverse to the decision to cancel and bar the sponsor. In response, a statutory declaration was provided from Mr Gurprit Singh in which he essentially claims that it was his wife who had a better knowledge of the sponsored visa holder’s duties and work hours, because he was working as a full-time taxi driver at the time. He referred to his wife being the one who would know about the sponsored visa holder’s hours and that she was the one who was contacted if the sponsored visa holder was sick, as was evidenced by the text message shown to Immigration officers during the site visit. While the Tribunal acknowledges that the message from the sponsored visa holder was sent to Mr Gurprit Singh’s wife mobile phone and not his own, his response that his wife was involved in this aspect of the taxi business is not the evidence he gave at the hearing (and discussed in more detail below). Given the propensity to change the evidence to support his position when it becomes apparent that his response is not consistent with other material or evidence previously given, the Tribunal has formed the view that Mr Gurprit Singh’s evidence is not reliable.

    Claimed work hours

17. Mr Gurprit Singh gave evidence at the hearing that the sponsored visa holder’s work hours were Monday to Friday 8am to 4pm, whereas the sponsored visa holder said he worked Monday to Thursday from 8am to 5pm and Fridays from 8am to 3 pm. When this was put to Mr Gurprit Singh at the hearing, he initially responded saying that there was an occasion when the sponsored visa holder needed to leave early on a Friday for family reasons, but did not have a response when the Tribunal advised that according to the timesheets provided to the Department, the shorter hours on Fridays had been since the beginning of his employment. In response to the 359A letter, Mr Gurprit Singh states that it was his wife who used to “deal with [his] hours more than [Mr Gurprit Singh] and sign his hours where needed”. He further states that it was his wife who was responsible for the sponsored visa holder’s work hours and days off more than [he] was and refers to the timesheets which were provided to Immigration during the monitoring. The timesheets were given in response to a written request from the Department. The Tribunal notes that the timesheets are initialled by “B.K” which is Mr Gurprit Singh’s wife’s initials and not his own. However, it would have expected Mr Gurprit Singh to have told the Tribunal at the hearing that it was his wife who signed and checked the sponsored visa holder’s timesheet when asked. Mr Gurprit Singh had clearly stated it was himself who checked and signed the timesheets. Given this, it does not accept that the sponsored visa holder worked as a Transport Company Manager while holding a Subclass 457 visa from Monday to Friday at 8am to 4pm as advised by Mr Gurprit Singh. Nor is it prepared to accept the sponsored visa holder’s evidence that he worked Monday to Thursday from 8am to 5pm and Fridays from 8am to 3pm. The only evidence to corroborate this claim are handwritten timesheets which could easily have been produced at the time they were requested from the Department, and are not sufficiently probative when there is conflicting evidence on this point.

    Dates of claimed work

18. Both the sponsored visa holder and Mr Gurprit Singh claimed that he worked at 2 Corymbia Court, but Mr Gurprit Singh gave evidence that he moved to that address on 1 September 2017 as they had purchased that property with settlement occurring in June/July 2017. If this was the case, the sponsored visa holder should never have worked at this address because his visa was cancelled on 1 September 2017. During the hearing, the Tribunal referred to the sponsored visa holder’s visa having been cancelled on 1 September 2017 and queried why he had worked at that location at all. Following the hearing, it was submitted that the business had moved to the property on 12 August 2017 and the family moved there from 1 September 2017. The Tribunal accepts that the property was purchased in late June 2017 as a letter was provided following the hearing from the real estate agent’s office dated 28 June 2017, addressed to Mr Gurprit Singh and his wife, which confirms the purchase occurred around that date. However, no explanation has been given as to why the business moved to the address earlier than the family moving there. The Tribunal notes that the tenant ledger provided for Bhupinder Kaur (being Mr Gurprit Singh’s wife) shows rent was paid until 16 August 2017 at the 16 Bradford St address. Mr Singh did not claim that there was a different temporary place of residence prior to moving to the 2 Corymbia Court address on 1 September 2017 at the hearing. There is no corroborative evidence to support Mr Gurprit Singh’s oral evidence that the family moved to this address on 1 September 2017. Nor are there any records to show when a change of business address occurred, for example a change of address in bank statements or any other official documents. The Tribunal further notes that the payslips which were provided as evidence of the sponsored visa holder’s employment include the name and address of the Singh Family Trust. The final payslip provided is for the pay period 1 September to 7 September 2017. This document shows the address of the Trustee as 16 Bradford St. The only third party, independently produced evidence is the material from the real estate agents which indicate that when 2 Corymbia Court was purchased but not when the business or family moved into that address. The tenant ledger would suggest that they only lived at the 16 Bradford St address to mid-August 2017 at the latest. However, this was not the evidence of Mr Gurprit Singh. The Tribunal does not consider that Mr Gurprit Singh’s evidence as to whether the sponsored visa holder worked at 2 Corymbia Court at all is reliable as his claims about the business and family locations are not reflected in the supporting documents provided. 

19. The Tribunal further notes that it is indicated on the ‘timeline of business locations and events’ document which was provided following the hearing that the sponsored visa holder ceased work on 1 September 2017. However, this is not consistent with the information given orally at hearing, that he worked until 8 September 2017. Nor is it consistent with the payslip provided which indicates the sponsored visa holder was paid on 8 September 2017 for working the period from 1 September to 7 September 2017.  Mr Gurprit Singh did not respond to the invitation to comment on or respond to information that the sponsored visa holder had worked after his visa was cancelled.

    Claimed duties

20. In terms of the work undertaken, during the hearing Mr Gurprit Singh stated the sponsored visa holder took the vehicles for inspection every 6 months as required by the Transport Department; but the sponsored visa holder did not mention that he did this when he had been asked about his duties. He said that he only took the vehicles once a year for inspection by Mackay and Whitsunday Taxis. Mr Gurprit Singh did not respond to this section of the invitation to comment on or respond to information.

21. Furthermore, their evidence as to how regularly the sponsored visa holder attended the Mackay and Whitsunday Taxi head offices varied – with the sponsored visa holder stating that it was usually once a month, sometimes every 2 weeks depending on the number of dockets received, while Mr Gurprit Singh said that he attended every week. Following the hearing, Mr Gurprit Singh states that when the sponsored visa holder first commenced work he attended Mackay and Whitsunday Taxi head office once a week, but then only once a month, but if required he would attend twice a week. He further states that he informed the sponsored visa holder that it was not compulsory to attend every week. It appears to the Tribunal that Mr Gurprit Singh has given a range of responses, from once a week, to twice a week to once a month, in an attempt to match any response of the sponsored visa holder to the same question. The Tribunal has before it a letter from Mackay and Whitsunday Taxi dated 21 February 2017 which refers to the sponsored visa holder having attended their offices for “our admin from time to time to submit documents for Gurprit Singh”, however it notes that the letter was primarily addressed at the accusation that the sponsored visa holder was driving taxis as he had obtained a driver authorisation. While it accepts that the sponsored visa holder had attended the offices of Mackay and Whitsunday Taxi on occasion for administrative purposes based on their letter, it does not accept that it was a regular attendance. The Tribunal considers that their responses on the frequency differed because the sponsored visa holder did not carry out the nominated occupation for any length of time.

    Location of workplace

22. The sponsored visa holder was asked a number of times about the property ‘16 Bradford St’ which was the previous location of the business (being Mr Gurprit Singh’s home address at the time). He told the Tribunal that it was a unit, in a single storey building with 5 or 6 units. Later, when it was put to him that ‘16 Bradford St’ was a house and not a unit, he then realised his mistake. In response to the invitation, Mr Gurprit Singh said he believed it was because the sponsored visa holder misinterpreted the question and had thought the Tribunal was referring to the location he first began work. He declared that this confusion arose because the sponsored visa holder spent short periods of time at multiple premises over the duration of his employment. While the Tribunal accepts that Mr Gurprit Singh and his wife have changed address 3 times from when the sponsorship was approved to when the visa was cancelled, and it would expect that the business address of the Trustee would have also changed as it was a home-based office, the sponsored visa holder was asked specifically about the ‘16 Bradford St’ address. It considers that he did not associate the address with the location because he did not carry out work at this address, or any of the addresses, with any regularity.

23. The Tribunal further notes that the payslips which were provided as evidence of the sponsored visa holder’s employment include the name and address of the Singh Family Trust. The first payslip is for the pay period 8 July 2016 to 14 July 2016. The address is 2/63 Grendon St, which is consistent with their evidence as to where the office was located at that time. From the pay period beginning 14 October 2016, the address of 16 Bradford St appears on the payslips. The final payslip provided is for the pay period 1 September 2017 to 7 September 2017. This also shows the address as 16 Bradford St. Thus, the payslips indicate that the sponsored visa holder worked at the 16 Bradford St for almost one year. The Tribunal would expect that he would be able to give a general description of the building when asked if he genuinely worked there for nearly one year.

    Whether the sponsored visa holder worked in the nominated occupation

24. The Tribunal has before it the interview response and notes, as well as various documents which were provided to corroborate the claim that the sponsored visa holder was employed by the Trustee in the nominated occupation. It has carefully considered the material before it, and notes that the initial concern of the Department was that the sponsored visa holder was in fact working as a taxi driver as he had obtained a driver’s authorisation. The Tribunal accepts that there is no evidence to support a finding that he worked as a taxi driver, noting that Mackay and Whitsunday Taxis are the only taxi service in the Mackay area and they have confirmed that the sponsored visa holder has never been an affiliated driver despite having a driver’s authorisation number. Given this, it accepts that he did not work as a taxi driver for the Trustee.

25. However, it also considers that there is little evidence to support the claim that the sponsored visa holder worked in the nominated occupation of Transport Company Manager in a full-time capacity. While both Mr Gurprit Singh and the sponsored visa holder claim that he did, a primary concern for the Tribunal is that it does not consider Mr Gurprit Singh’s evidence, oral or written, to be reliable for the reasons outlined above.

26. It accepts that there is evidence which would ordinarily support a view that the sponsored visa holder was working for the Trustee, including bank account statements showing weekly transfers from the Trustee to the sponsored visa holder as well as payslips. However, the payslips are problematic as the details of the employer and the address do not reflect Mr Gurprit Singh’s oral evidence as to his address and thus the business address of the Trustee. For the pay periods from July 2016 to 7 September 2017, there should be 3 different addresses based on Mr Gurprit Singh’s evidence. There are only two different addresses appearing on the payslips. In any case, the payslips are computer generated and the payslips from payment date 13 January 2017 are all printed out on the same date (8 October 2018), with the payslips prior to that date all printed out on 11 January 2017. The earlier print-outs were previously provided in response to the Department’s requests for information around that time. In terms of other supporting material provided as evidence of the applicant’s work, these documents were previously provided in response to the Department’s requests during the monitoring process. The Tribunal considers that only limited weight can be placed on the existence of these documents. The documents include two copies of a brochure “Managing fatigue – A guide for the workplace” published by the Queensland Government which it is claimed that the sponsored visa holder has co-signed in his capacity as a Transport Company Manager. There is also a ‘Driver Training’ sheet for Mandeep Thaper which is signed by the sponsored visa holder as the “Trainer” on 8 February 2017. However, during the sponsored visa holder’s telephone interview on 30 January 2017, as recorded in the decision record of the delegate, the sponsored visa holder had said that the “boss” trains all new taxi drivers. The evidence provided to show that he trained a driver is thus inconsistent with his response during an interview about his duties and responsibilities. These documents are brochures that were published by another organisation and merely initialled or signed and dated by the applicant and another.

1. During the hearing, the Tribunal raised concerns as to whether the work was full-time. Following the hearing, it was provided with a job description for Transport Company Manager which included notations made by the sponsored visa holder as to the regularity he carried out the tasks listed on this document. The Tribunal has significant concerns that the position description provided to it is not the same as that which was provided when the nomination was approved (the original description is copied in the decision record to cancel and bar the sponsor at page 3). For example, the version provided to the Tribunal does not include “setting overall directions of the transport branch of the company” “organizing the purchase and maintenance of vehicles, equipment and fuel”, and “liaising with clients to determine requirements and providing customer with advice and information regarding vehicle hire rates and handling complaints”. In particular, the latter two tasks were of concern to the Tribunal when questioning the parties about the scope of his duties at the hearing. This is because, on their evidence, the position itself did not require that the sponsored visa holder liaise with clients/customers as their evidence was that all bookings were made by customers directly to Mackay and Whitsunday Taxi who then communicated with the driver of the vehicle. Their evidence was that the sponsored visa holder was not involved in any purchases of any vehicles, as the Trustee only had three taxis throughout the period of his employment there. It thus appears that the specific duties which the Tribunal indicated at hearing that it had concerns regarding, because their evidence was that he did not carry out those duties, have been removed from the position description provided to it after the hearing.

2. In addition, while the position description includes notations as to how often the tasks were carried out by the sponsored visa holder, to demonstrate that it was a full-time position, the Tribunal is not prepared to accept this assertion without evidence of his involvement or the event occurring. For example, one of the duties that it is claimed was carried out every 3 months is “organizing training sessions for employees”. However, nothing more has been provided such as training invoices or examples of the type of training session organised. Nor are there any training expenses on the 2017 financial statements of the Singh Family Trust which were provided following the hearing. The Tribunal does not consider the position description document to be reliable evidence that the applicant carried out these duties, and does not consider that it is evidence of the full-time nature of the position.

3. The Tribunal has also considered a “data sheet” listing July to September 2017 in the first column, and figures under the income, expenses and fuel columns with subtotals and profit. It was described as a “quarterly data sheet – normally prepared by the nominated position”. However, there is nothing on this document to indicate that it was prepared by the sponsored visa holder. The Tribunal also has before it copies of receipts and taxi vouchers, and a taxi drivers daily work report and it accepts that the business would need to maintain appropriate records. It does not accept that the sponsored visa holder did that.

4. The Tribunal considers that it is possible that the sponsored visa holder did carry out some tasks such as taking documents to Mackay and Whitsunday Taxis for the Trustee “from time to time”, and this enabled him to have an understanding of the business if there was an interview or if any investigations were undertaken. He has also signed documents which were submitted to the Department during the monitoring referred to above. However, for the reasons given above, the Tribunal has formed the view that these documents are not reliable. The Tribunal acknowledges that there were regular payments made from the bank account of the Trustee to the sponsored visa holder’s bank account which would ordinarily be reliable evidence of an employer/employee relationship. However, given the number of inconsistent responses and the paucity of explanations provided, the Tribunal has formed the view that the sponsored visa holder did not work full-time in the nominated occupation of Transport Company Manager.

5. Even if it is wrong, and the sponsored visa holder was working for the business as claimed, it considers that any tasks undertaken were low level administrative duties and not at the level of a manager. While it accepts that the duties of a Transport Company Manager are predominately administrative in nature, it does not accept that he was engaged in the tasks of a manager which should have included (as per the position description when the nomination was approved) “setting overall directions of the transport branch of the company” and “liaising with clients to determine requirements and providing customer with advice and information regarding vehicle hire relates and handling complaints”. Furthermore, while the Tribunal has considered the breakdown of duties provided to it, the Tribunal does not consider the position description document to be reliable evidence that the applicant carried out these duties, and does not consider that it is evidence of the full-time nature of the position. It notes that there are only a small number of vehicles (3) and drivers (between 4 and 6).

6. The Tribunal has formed the view that the Trustee did not ensure that the sponsored visa holder worked in the nominated occupation. 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

7. For these reasons, the Tribunal is satisfied that a relevant circumstances for s.140L(1)(a) exists. Accordingly, it is necessary to consider whether one or more of the actions mentioned in s.140M should be taken.

8. In considering what action to take, the Tribunal has had regard to the prescribed criteria, as extracted in the attachment to this decision. The criteria to be considered where there is failure to comply with sponsorship obligation are set out in r.2.89(3).

   (a)     the past and present conduct of the person in relation to Immigration

9. The Director of the Trustee denies any failure to ensure the sponsored visa holder worked as a Transport Company Manager. In terms of the Director’s conduct in relation to Immigration, there is nothing before the Tribunal to indicate that he failed to engage with the monitoring process undertaken.

   (b)the number of occasions on which the person has failed to satisfy the sponsorship obligation

10. The Tribunal has found that the applicant has failed to satisfy r.2.86.  This failure has been for the period the sponsored visa holder held a Subclass 457 visa, that is from the date of grant until the visa was cancelled. From 1 July 2016 until 1 September 2017.

    (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

11. The Tribunal considers that the failure to ensure the sponsored visa holder worked in the nominated occupation to be serious. The 457 program is based on their being a short-term need for Australian businesses to employ overseas skilled workers because of a genuine skills shortage in Australia. The nomination was approved on the basis that the Trustee required a Transport Company Manager on a full-time basis to organise and control the operations of a taxi business. However, there is limited evidence to demonstrate that the sponsored visa holder carried out the tasks and duties reflected in the position description provided for approval of the nomination throughout the period the visa was valid. The Tribunal considers that the program was used to enable the sponsored visa holder to remain in Australia on a temporary basis when he was not in fact working full-time for the Trustee in the nominated occupation. It considers that both parties had agreed to proceed in this manner, that is, both the Trustee and the sponsored visa holder understood that the sponsored visa holder would not be working as a Transport Company Manager on a full-time basis for the Trustee.

    (d)     the period of time over which the person has been an approved sponsor

12. The Tribunal finds that the Trustee was most recently approved as a standard business sponsor on 31 March 2016.  The failures to comply with sponsorship obligations have occurred relatively soon after approval of the Trustee as a sponsor, which suggest that the owner/director did not take the sponsorship obligations seriously.

    (e)whether, and the extent to which, the failure to satisfy the sponsorship obligation has had a direct or indirect impact on another person

13. The failure to satisfy r.2.86 had a direct impact on the sponsored visa holder, in terms of the cancellation of his visa. However, as indicated above, the Tribunal considers that the sponsored visa holder and owner/director of the Trustee had an arrangement.

    (f)whether, and the extent to which, the failure to satisfy the sponsorship obligation was intentional, reckless or inadvertent

14. The Tribunal finds that the failure to satisfy r.2.86 in respect of the sponsored visa holder was intentional in that both parties agreed to the arrangement.

    (g)whether, and the extent to which, the person has cooperated with Immigration, including whether the person informed Immigration of the failure

15. There is no evidence that the Director has not cooperated with Immigration, and given that he denies any failure to comply, he did not inform Immigration of the failure.

    (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

    The Director has not taken any steps to rectify the failure, as the failure to satisfy the sponsorship obligation is denied. The decision to cancel its approval as a standard business sponsor and bar from making future applications for approval was made on 12 June 2017. The sponsored visa holder’s visa was cancelled on 1 September 2017. He has Permission to Work 40 hours a fortnight on his bridging visa E, but his evidence is that he is not currently working for the Trustee but has been pushing trolleys for FoodWorks in Mackay. The Trustee has advised that they wish to employ the sponsored visa holder again if the cancellations are set aside.

    (i)the processes (if any) the person has implemented to ensure future compliance with the sponsorship obligation

16. As noted above, the failure to satisfy the obligation is denied.

    (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

17. The Tribunal has not made any findings as to whether any of the other sponsorship obligations has been met. It was noted in the delegate’s decision record that the Trustee had failed to notify the Department of Immigration of the sponsor’s change of address as required by r.2.84. The Director had claimed that he had informed his migration agent of this at the time, but the delegate indicated in the decision record that there was no record of the change of address.

    (k)     any other relevant factors

18. The Trustee has advised that they wish to employ the sponsored visa holder again as a Transport Company Manager once the cancellations have been reversed. It was submitted that this made clear that the Trustee is and always has been committed to its sponsorship obligations and will ensure full compliance during the term of employment. The Tribunal has taken this into account but as it does not consider that the sponsored visa holder was ever working full-time for the Trustee in the nominated occupation, it has placed little weight on this offer of ‘re-employment’.

19. In addition, the Tribunal notes that the parties had initially claimed that the sponsored visa holder worked until 8 September 2017 for the Trustee, and provided a payslip as evidence of this. However, his visa was cancelled on 1 September 2017, so he should not have been working after this date. If he was working as claimed, the Trustee did not take steps to ensure that the sponsored visa holder was permitted to work at that time which does not reflect an employer who is responsible. In any case, the Tribunal is not prepared to accept that he was working for the Trustee in the nominated occupation for the reasons given above so it does not consider that he was working for the Trustee after 1 September 2017.

    Conclusion

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

    DECISION

21. The Tribunal affirms the decision under review.

    Wan Shum
    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.

    …