Tran, Thi Nhien (Migration)

[2019] AATA 4529

Tran, Thi Nhien (Migration) [2019] AATA 4529 (26 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Tran, Thi Nhien

CASE NUMBER:  1900518

DIBP REFERENCE(S):  OPF2018/9147

MEMBER:Alan McMurran

DATE:26 September 2019

PLACE OF DECISION:  Sydney

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 26 September 2019 at 3:00pm

CATCHWORDS

MIGRATION – Nomination – sponsor obligations – nominated occupation – inconsistent evidence – miscommunication – evidence provided upon review– applicant works in nominated occupation – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 140M, 375A
Migration Regulations 1994 (Cth), Condition 8107, r 2.89

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 8 January 2019 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 was approved as a standard business sponsor on 17 June 2013 for a period of 3 years, expiring on 17 June 2016. On 18 December 2018, the delegate decided to bar the applicant for a period of 3 years from making applications for approval as a standard business sponsor and temporary activities sponsor, effective from 18 December 2018. The delegate found that the applicant had breached Regulation 2.89 for failing to satisfy a sponsorship obligation, and in particular, Regulation 2.86 by failing to ensure the primary sponsored person works or participates in the nominated occupation, program or activity.

3. The delegate decided to impose the bar under s.140M on the basis of site monitoring conducted between 19 September 2018 and 18 December 2018, which included two site visits, an interview with employees and the applicant and a telephone interview with the visa holder on 7 November 2018.

4. The applicant appeared before the Tribunal on Monday 23 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the visa holder, Nguyen Hoang Anh. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The applicant was represented in relation to the review by its registered migration agent, Mr Robert Liu, who attended the hearing and made submissions.

6. 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.

   Background Information

7. The applicant is a sole trader operating a business styled “Michelle Beauty and Health Clinic” from premises at Sefton in Sydney. The applicant is an Australian citizen, who came to Australia as a refugee in 1986 and obtained citizenship in 1989. Until about 2004, the applicant did some sewing from home. In 2004, the applicant commenced a business at the Sefton Road address at the downstairs shop, while living upstairs in a residence. The applicant studied beauty therapy and massage in the period from 2004 to 2007, and registered the business name under which she now trades, on 9 December 2008.

8. The applicant’s business is primarily a beauty clinic which includes massage therapy. The applicant currently employs 2 beauticians who work at the premises. The applicant also trains beauty therapists. Massage therapy is conducted by the applicant herself and the visa holder.

9. The applicant became an agreed business sponsor on 17 June 2013, effective until expiry on 17 June 2016. While a sponsor, the applicant has nominated 3 visa holders for positions in her business, including the visa holder, who the applicant nominated for a Subclass 457 for the occupation of massage therapist. The visa holder signed an engagement letter for employment with the applicant on 18 September 2015 for the duration of his visa, which commenced on 10 December 2015 expiring on 10 December 2019. The visa is subject to condition 8107 granted on the basis that the visa holder will only work in the position or occupation nominated and for which the visa was granted The visa holder commenced working for the applicant in about January 2016. The terms of that employment are set out in a letter of engagement signed by him and the applicant on 18 September 2015[1] and which require the visa holder to work a 38 hour week “starting and finishing time to be arranged”.

   [1] DIBP file at f 7

10. The visa holder has been nominated by the applicant for a further substantive visa, which nomination has been refused for reason of the adverse information involving the applicant due to the sanction imposed by the Department, the subject of this review.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

12. 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.

13. 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.

14. 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.

15. On 10 September 2019, the Tribunal wrote to the applicant in response to a request by the applicant for access to written material made 3 September 2019. The Tribunal disclosed to the applicant that certain folios from the Department file were excluded from release owing to s 375A of the Act which certified those documents were not to be disclosed as contrary to the public interest.

    Certificate pursuant to s.375A of the Act.

16. On 27 March 2019, the Department placed a s.375A Certificate on documents which contain allegations and information about the applicant and the visa holder, as well as on documents which detail some of the surveillance and operational procedures of the Department’s Sponsor Monitoring Unit (SMU).  The effect of such certification is that the Tribunal is prohibited from disclosing the documents, or information in those documents, to anyone other than the Tribunal.

17. The Tribunal has viewed the information contained in the documents the subject of the s.375A Certificate.  The information contains allegations about the applicant and the visa holder following two site visits to the Company’s premises on 19 September 2018 and 3 October 2018. It contains details about the SMU’s general surveillance and operational procedures and discloses that a visa holder sponsored to work with the applicant may not have worked with the applicant in breach of visa conditions. 

18. The Tribunal has considered the validity of the s.375A Certificate in this case and finds it is valid.  The s.375A Certificate clearly specifies a public interest reason why the documents, or information in them, should not be disclosed.  In relation to the reasons given for nondisclosure of the SMU’s monitoring and surveillance procedures, the Department is of the view such disclosure may undermine its ability to investigate and monitor sponsors.  The reasons given for the non-disclosure of the information and allegation that a visa holder sponsored to work with the applicant may not have worked with the applicant in breach of visa conditions are that such disclosure might be detrimental to the Department’s general ability to carry out investigations in relation to immigration and sponsorship behaviour.

19. Having regard to the initial issue for determination by the Tribunal – that is, whether the applicant has breached obligations as a sponsor on one occasion, the Tribunal is satisfied that there is a public interest reason in keeping the documents from any person other than the Tribunal as referred to in the s.375A Certificate and that relate to the applicant as well as the SMU’s general surveillance and operational procedures and its operational tactics.

20. The Tribunal finds the s.375A Certificate which is executed and dated 27 March 2019 is valid as it protects information in relation to the applicant provided to the Department and the fashion in which the Department went about obtaining that information, by applying its general surveillance and operational procedures. 

21. In the circumstances, the Tribunal finds that the allegations contained in the information outlined above, and summarized in the 9 folios and which are relevant to the issue for determination by the Tribunal, are well-known to the applicant following the Department’s issued decision, and in respect of which the applicant and the visa holder have made submissions in reply, addressing those issues. The applicant did not make any comments concerning the Certificate.

    Does a circumstance for the taking of an action exist?

22. In reaching its decision, the Tribunal has had regard to the information on the Tribunal’s file, and the Department’s file[2] together with the evidence taken at hearing and the oral submissions.

    [2]OPF 2018/9147

23. In the present case, the delegate found that the applicant was in breach of the standard business sponsor agreement under Regulation 2.89, in particular for failure to satisfy Regulation 2.86 on 1 occasion, and which Regulation requires the applicant to ensure the primary sponsored person (the visa holder) works or participates in the nominated occupation, program or activity. The circumstances surrounding the Department’s decision based on the site visits and interviews were the focus of the Tribunal hearing as summarised below.

    Failure to satisfy a sponsorship obligation: r.2.89

24. 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).

25. In summary, the allegations against the applicant are that:

    ·when conducting site visits on 19 September 2018 and on 3 October 2018, the visa holder was not present at the business premises during ordinary business hours;

    ·at the first site visit, the business appeared to be closed with a sign on the door to that effect ;

    ·at the second site visit, a person spoken to by Department officers informed them the business does not do massage there anymore, but was mainly a beauty business;

    ·the applicant told Department officers at the second visit that the visa holder provided massages for male clients but was not present that day because she had told the visa holder he was not required and she had sent him away;

    ·the applicant said the visa holder was not required because she was absent on prayer duties in respect of her recently deceased brother, and that she required him only to be in the premises when she was there;

    ·the applicant did not produce evidence of bookings for massage, rosters or appointment diaries involving the visa holder;

    ·when interviewed, the visa holder did not know the applicant’s business number and provided a mobile phone number for another business;

26. At the hearing, the Tribunal tested this information against comments and responses from the applicant and the visa holder. The Tribunal asked why the applicant requested the visa holder not to work on those two occasions. The Tribunal asked why an “employee” would inform the Department the business did not do massage anymore. The Tribunal asked whether the visa holder actually worked full-time in the business and had continually done so throughout his employment. The Tribunal asked questions about the visa holder’s lack of knowledge about phone numbers, and then providing a mobile number for an unrelated business. The Tribunal put to the visa holder that it was a condition he work only for the applicant, and whether he understood the proceedings, and whether the statement he had made was true and correct about where and when he was working and why he had provided a mobile phone number for his wife’s business to the Department officers.

27. In answer to these enquiries, the applicant said it was “a coincidence” that on the two occasions when Department officers visited the premises, she was absent, as was the visa holder. She stated that her brother had died on 21 July 2018. She said that in the Buddhist religion, it was important to follow the Buddhist practice of continual prayers for the deceased. She said she usually arranged these prayer sessions at a nearby Buddhist temple in Sefton. She said that was the case on the two days in question. She was asked about her usual practice in running the business and she said that she would verbally and sometimes in writing inform the visa holder beforehand of his client appointments. She said she maintained the roster and set the appointments and that the visa holder would attend at the business every work day. It was ostensibly 9 to 5, but sometimes would be 10 to 4 or later in the evening. She said on average he worked approximately 6 hours per day every week. She said she paid him regardless of whether she sent him away or whether his appointment book was full. She said however on most days he was kept busy with 5 or 6 appointments. The timing for those appointments might vary according to the needs of clients, and might require the visa holder to work outside usual business hours, including starting later, or finishing later.

28. The applicant did not understand what had been said to the Department officers on the second site visit as she was not present at the time, but arrived about 10 minutes later, after she received a phone call. She said she was unaware someone had said the business does not provide massage services anymore, but explained that the persons present when the officers called were all Vietnamese beautician students, who spoke little English. She thought what the person had intended to convey was that no massage was being conducted that day, as the massage area had been converted for beautician training, and the girls were preparing for their practical exam. The applicant explained that she told the officers she had been attending prayer meetings, in accordance with her religion and to honour her brother.

29. The applicant was not aware of what the visa holder may have said when interviewed by Department officers by telephone. She agreed that she made all bookings and took phone calls, and that the visa holder was not responsible in that regard, and she had not provided him with a mobile phone. The applicant said that she supervised the visa holder in his work and on a daily basis. The applicant said that she did not know that the visa holder’s wife conducted a beauty business, and did not know the name of that business. The Tribunal put to the applicant what was contained in the Notice of Intention to Take Action dated 15 November 2018[3], and which set out the allegation that “the business was not conducting massage services regularly”. The applicant said she had not seen the Notice before, and did not become aware of it until advised by her representative. She said the first notice she received was the decision, made 18 December 2018, to which she immediately responded by lodging this application. She said it was not true that the business no longer conducted massage therapy. She said it continued and she needed to employ the visa holder full-time for that purpose, and in respect of which she had made a further nomination application (now refused). No explanation was offered as to why the applicant did not receive the Department’s email informing her of the notice.

    [3] T file at f 82

30. The visa holder relied upon his statement which he said he made contemporaneously in about December 2018, shortly after receiving notice of the decision. He said he understood the applicant’s Buddhist religion and her absence due to prayer sessions, but he arrived for work regularly and on a daily basis. He said on the two occasions of the site visits, he had attended for work in the morning but had been sent home by the applicant. He maintained that he was paid his regular weekly wage, regardless of being sent home “early”. He said that sometimes he worked late in the evening and regularly turned up on a daily basis at 10 AM to start the massages. He confirmed that the applicant provided him with the appointments and he did not have telephone contact with clients. He said that he was a bit confused when speaking to the Department officers, and thought they were asking for his phone number so someone could contact him or speak to him. He provided his personal mobile number which is registered in his name as the account holder for that number. It is also the number used for his wife’s business which provides “permanent make up”. He said he does no work for his wife and she does not have a massage therapy business and it has nothing to do with the applicant. He said he only works for the applicant which he has been doing since his 457 visa was granted.

31. This evidence took some time at the hearing and there was some considerable explanation by the interpreter as both witnesses did not seem to fully understand the questions through the interpreter. Neither witness could speak enough English to be able to provide a fulsome explanation. The Tribunal came to the view it would have been quite difficult for Department officers in communicating with both the applicant and the visa holder without an interpreter present. For example, the person spoken to by the Department officer before the applicant arrived for the second site visit, according to the applicant, was not an employee but 1 of the beautician students. The applicant was not told what the person had said and did not appreciate that the Department officer was left believing the business did not conduct massage therapy at all. She thought her explanation as to being absent for prayer sessions and sending the visa holder home early was sufficient. The applicant said that she had always complied with the Department requirements during the period of her business sponsorship. She said that the visa holder had always been paid his regular wage and to her knowledge the employment with her was his only occupation.

32. The Tribunal notes that it was the one monitoring occasion which has led the Department to making a decision the applicant did not engage the visa holder regularly in normal business hours for massage therapy and during the period of his sponsorship. The applicant had not provided any response when challenged, other than those referred to above at the site interview and which the applicant had thought was sufficient, not being aware of the NOITTA.

33. The evidence does not disclose any work being performed by the visa holder other than with the applicant. There is no evidence of him working elsewhere or on another payroll, or not attending the workplace, other than anecdotally on the two occasions referred to and explained by the applicant as “coincidental”. It would not be unreasonable to conclude, as the Department officers believed, that if the business was not conducting massage therapy during normal business hours when the officers visited, then the visa holder could not be performing the occupation for which his visa was granted.

1. Having carefully reviewed the evidence and having the benefit of the applicant’s explanations at the hearing, the Tribunal has come to the opposite conclusion, and finds the visa holder continues to provide massage therapy services in accordance with his employment, and was doing so in September and October 2018 when monitored. The Tribunal finds it accepts the oral evidence of the applicant and the visa holder, and finds at least in part that the failure in adequate communication between the English and Vietnamese languages at the time of the monitoring led to some confusion and miscommunication, which was a significant contributor to the Department’s decision and the claimed breach. It is entirely understandable that either or both the applicant and the visa holder were confused following their interviews with Department officers and did not fully understand or appreciate the allegations that the visa holder was not working for the applicant as a massage therapist. The Tribunal is satisfied on the evidence that was not the case and that the visa holder works only for the applicant providing massage therapy.

2. Considering the totality of the circumstances, the Tribunal finds it is not satisfied on the available evidence and taking into account the oral evidence presented that the applicant as sponsor has not satisfied r.2.86 - specifically the obligation to ensure the visa holder worked in the nominated occupation of massage therapist.

3. Accordingly, the Tribunal is not satisfied that the prescribed circumstance in r.2.89 exists for the purpose of s.140M of the Act.

   Action to be taken

4. As the Tribunal finds that none of the circumstances for s.140L (1)(a) exist, it follows that the power to take an action under s.140M does not arise.

   Decision

5. 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.

   Alan McMurran
   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.

   …

   s.140K  Sanctions for failing to satisfy sponsorship obligations

   (1) Actions that may be taken in relation to approved sponsors  If a person is an approved sponsor and fails to satisfy an applicable sponsorship obligation, one or more of the following actions may be taken:

   (a) the Minister may do one or more of the following:

   (i) if regulations are prescribed under section 140L, bar the sponsor under subsection 140M(1) from doing certain things;

   (ii) if regulations are prescribed under section 140L, cancel the person's approval as a sponsor under subsection 140M(1);

   (iii) apply for a civil penalty order;

   (iv) accept an undertaking under section 119 of the Regulatory Powers Act, for the purposes of this Subdivision from the person;

   (v) if the Minister considers that the person has breached such an undertaking--apply for an order under section 120 of the Regulatory Powers Act, for the purposes of this Subdivision;

   (b) the person may be issued with an infringement notice under regulations made for the purposes of section 506A as an alternative to proceedings for a civil penalty order;

   (c) an authorized officer may require and take a security under section 269 or enforce a security already taken under that section.

   (2) Actions that may be taken in relation to former approved sponsors  If a person was an approved sponsor and fails to satisfy an applicable sponsorship obligation, one or more of the following actions may be taken:

   (a) the Minister may do one or more of the following:

   (i) if regulations are prescribed under section 140L, bar the person under subsection 140M(2) from making future applications for approval;

   (ii) apply for a civil penalty order;

   (iii) accept an undertaking under section 119 of the Regulatory Powers Act, for the purposes of this Subdivision from the person;

   (iv) if the Minister considers that the person has breached such an undertaking--apply for an order under section 120 of the Regulatory Powers Act, for the purposes of this Subdivision;

   (b) the person may be issued with an infringement notice under regulations made for the purposes of section 506A as an alternative to proceedings for a civil penalty order;

   (c) an authorized officer may require and take a security under section 269 or enforce a security already taken under that section.

   (3) To avoid doubt, subsections (1) and (2) do not limit the circumstances in which:

   (a) the Minister may:

   (i) bar a sponsor under section 140M from doing certain things; or

   (ii) cancel a person's approval as a sponsor under section 140M; or

   (b) an authorized officer may require and take a security under section 269 or enforce a security already taken under that section.

   s.140L  Regulations may prescribe circumstances in which sponsor may be barred or sponsor's approval cancelled

   (1)  Circumstances in which the Minister may take action  The regulations may prescribe:

   (a) either or both of the following:

   (i) circumstances in which the Minister may take one or more of the actions mentioned in section 140M in relation to a person who is or was an approved sponsor if the Minister is reasonably satisfied that the person has failed to satisfy a sponsorship obligation in the manner (if any) or within the period (if any) prescribed by the regulations;

   (ii) other circumstances in which the Minister may take one or more of the actions mentioned in section 140M; and

   (b) the criteria to be taken into account by the Minister in determining what action to take under section 140M.

   (2)  Circumstances in which the Minister must take action  The regulations may prescribe either or both of the following:

   (a) circumstances in which the Minister must take one or more of the actions mentioned in section 140M in relation to a person who is or was an approved sponsor if the Minister is reasonably satisfied that the person has failed to satisfy a sponsorship obligation in the manner (if any) or within the period (if any) prescribed by the regulations;

   (b) other circumstances in which the Minister must take one or more of the actions mentioned in section 140M.

   (3) Different circumstances and different criteria may be prescribed for:

   (a) different kinds of visa (however described); and

   (b) different classes in relation to which a person may be, or may have been, approved as a sponsor.

   s.140M  Cancelling approval as a sponsor or barring a sponsor

   (1) Actions that may be taken in relation to approved sponsors  If regulations are prescribed under section 140L, the Minister may (or must) take one or more of the following actions in relation to an approved sponsor:

   (a) cancelling the approval of a person as a sponsor in relation to a class to which the sponsor belongs;

   (b) cancelling the approval of a person as a sponsor for all classes to which the sponsor belongs;

   (c) barring the sponsor, for a specified period, from sponsoring more people under the terms of one or more existing specified approvals for different kinds of visa (however described);

   (d) barring the sponsor, for a specified period, from making future applications for approval as a sponsor in relation to one or more classes prescribed by the regulations for the purpose of subsection 140E(2).

   (2) Action that may be taken in relation to former approved sponsors  If regulations are prescribed under section 140L and a person was an approved sponsor, the Minister may (or must) bar the person, for a specified period, from making future applications for approval as a sponsor in relation to one or more classes prescribed by the regulations for the purpose of subsection 140E(2).