Westley Garden Pty Ltd (Migration)

[2020] AATA 524

Westley Garden Pty Ltd (Migration) [2020] AATA 524 (14 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Westley Garden Pty Ltd

CASE NUMBER:  1719097

DIBP REFERENCE(S):  OPF2017/3078

MEMBER:Sean Baker

DATE:14 February 2020

PLACE OF DECISION:  Melbourne

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 14 February 2020 at 4:39pm

CATCHWORDS

MIGRATION – cancellation – Nomination – sponsorship obligations – false or misleading information – on site visit – duties of nominated position – evidence provided – provided rosters – compelling and credible oral evidence – majority of work as RCO – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 140M, 375A
Migration Regulations 1994 (Cth)

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 was approved as a standard business sponsor on 26 June 2013. On 7 August 2017, the delegate decided to bar the sponsor for three years under s.140M on the basis that the applicant had failed to satisfy sponsorship obligations and provided false or misleading information.

3. The applicant appeared before the Tribunal on 31 January 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Jasmeen Kaur Sekhon (the sponsored person), Ms Mary D’Souza (manager), Mr Alvi D’Souza (owner), Dr Ranasinghe, Phillip Papadpoulous and Ms Navneet Kaur. The applicant was represented in relation to the review by its registered migration agent.

4. 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

   Certificate

5. On the Department file OPF2017/3078 is a purported certificate under s.375A. However, the purported certificate provides only general information about why disclosure of the identified folios would be contrary to the public interest. In my view, they do not indicate with any specificity the public interest reason and I find that the certificate is not valid. I provided a copy of the purported certificate to the representative and applicant. They did not make submissions.

   The provisions

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

7. 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.

8. 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.

9. 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?

10. In the present case, the delegate found that the applicant failed to satisfy a sponsorship obligations (r.2.89) and provided false or misleading information (r.2.90).

11. The genesis of this decision was in a site visit conducted by Department officers on 4 April 2017 on the premises of Westley Gardens, a Supported Residential Service facility operated by the sponsor. In a notice of intention to take action sent after this site visit, the concerns of the Department were set out. The concerns centred on whether Ms Sekhon, the primary sponsored person, was undertaking duties in line with her nominated occupation (r.2.86). The information on which this concern was derived was from an interview with Ms Sekhon, Ms D’Souza and Mr D’Souza at the site visit, staff rosters sighted there, and a response from the sponsor to a request for information, dated 9 May 2017, in which the sponsor provided staff rosters, pay advice slips, evidence of salary payments, qualifications and training, and employment contract and PAYG summary for Ms Sekhon.

12. As a consequence of the response dated 9 May 2017, the delegate decided that the sponsor had provided false or misleading information, specifically, false documents in the form of staff rosters in an attempt to conceal duties performed by the sponsored person and the total hours worked by her on a weekly basis.

13. To the Tribunal the applicant provided a copy of the delegate’s decision.

14. I have also been provided with statutory declarations from Ms Sekhon and Ms D’Souza, and reference letters from a resident, family of a resident, doctors and health care workers who all attest to Ms Sekhon’s work as a Residential Care Officer (RCO) at the facility, and to her good work in this capacity, emails and documents relating to Ms Sekhon’s work and photographs of Ms Sekhon at the facility.

15. Further documents include:

    ·     a more recent statutory declarations from Ms D’Souza,

    ·     a statutory declaration from Mr D’Souza,

    ·     Rosters covering sample periods over 2017 to 2019;

    ·      Internal Emergency Contact List;

    ·     Position Description for Residential Care Officer;

    ·      Employment Contract for Ms Sekhon;

    ·     PAYG Summary for Ms Sekhon for the financial years ended 30 June 2017, 30 June 2018 and 30 June 2019;

    ·     Sample selection of payslips for Ms Sekhon for 2016, 2017 and 2019;

    ·     Ms Sekhon PTE Score Report dated 20 February 2018;

    ·      Australian Institute of Welfare and Community Workers Inc. Skills Assessment decision dated 2 March 2011;

    ·     Financial reports for the financial years ended 30 June 2013, 30 June 2014 and 30 June 2015;

    ·     Financial report for the financial year ended 30 June 2018;

    ·     Various evidence of Ms Sekhon’s ongoing performance of her role as RCO;

    ·     Training invoices evidencing compliance with training benchmark;

    ·     Remuneration survey and advertisements for the role of RCO; and

    ·     Current organisation chart.

16. I have been provided with comprehensive and helpful legal submissions.

17. After the hearing I was provided with a current employment contract between the sponsor and Ms Sekhon.

18. At the hearing I tool evidence from Ms Sekhon. She described, in some compelling detail, her role at the facility. She explained that she had been employed as a personal care attendant (PCA) and cleaner and described the functions she undertook in this role, including personal hygiene, some assistance in the kitchen and some light cleaning. In 2011 she said she was promoted to the role of RCO on the basis of her completed qualifications, and on a higher salary, performing different duties. She explained that she looked after their health and wellbeing, trained and guided them to have an independent life, organised activities to assist this, and followed up no their medical and other appointments with specialists, doctors, nurses and other health care professionals. She provided attention and care to the residents. She would often speak with specialists, doctors and health care professionals about the welfare, health and mental health of specific clients, and would discuss medication with them and refer residents where appropriate. She would manage residents who could be abusive or potentially dangerous and would de-escalate these issues. She dealt with admission procedures and reviews, support plans and medication and incident records. She would counsel and support and refer residents who had suicidal or self-harm thoughts. She discussed how she did the admission procedure plan and the process she went through with new residents. She described her role in very specific terms and with spontaneous use of examples.

19. I asked her to tell me the difference, as she understood it, between a PCA and a RCO. She explained that as a PCA you did not have experience of how to talk at a higher level, you just undertook the showering and cleaning and helped out with daily activities. As an RCO you used your developed knowledge and skills to plan for the needs of the residents more long term. I asked if she had made coffee for the residents as an RCO. She said that this was very hurtful and described a situation where her process of managing and de-escalating a particular resident’s agitation involved sitting with him and making him a coffee.

20. I asked if she had slept over at the facility in her role as an RCO. She said she had but explained that this needed to be seen in context – Ms D’Souza, the manager, was to go on holiday and they were having trouble finding PCAs at that time. Ms D’Souza asked Ms Sekhon to do the night shifts and as Ms Sekhon was living there she agreed to do this. She emphasised that she had not been required or forced to do this, it was a small thing she agreed to and that they had paid her for. She confirmed it had been for approximately 10 occasions. She confirmed that she was presently employed in the same role as an RCO at the facility and was no longer living on the premises.

21. Ms D’Souza gave evidence. She said that they had been operating the facility since 2002, and had developed it from a smaller facility to one that cared for 36 people, and from elderly residents to younger people with a range of challenges that meant they needed to live in a supported facility. She said they had a really good reputation from psych wards and they always had a long waiting list. She said that many residents had challenging behaviour at times and Ms Sekhon was able to de-escalate situations rather than having to move people out or call medial or security staff. She gave relevant examples of Ms Sekhon’s work with the residents as an RCO.

22. She explained that the sleepovers had been only 10 occasions when she had been away. She explained that there was a division in the work between her and Ms Sekhon, she would do the money side of the admission and Ms Sekhon would talk to them about their state and work out whether they could remain at their facility. Ms Sekhon would set up the care plans. She and Ms Sekhon would then observe new residents closely in the two week ‘probation’ period. She confirmed that they employed 12 staff and that Ms Sekhon was the only sponsored person. She said it was a small family run business and they were very proud of the work they did, it assisted the community and Ms Sekhon was an integral part of that. She then explained the roster.

23. She said that the rosters that the officers had seen on the site visit was historical – she would copy and paste the old roster, and she confirmed that Ms Sekhon was listed as a PCA and cleaner because this was the role she had had prior to 2011. She said it was also outdated because the sleepover was done mostly by her and her family members. She said that the rosters were not checked by DHHS which understood they were a small business and considered they were managing it well.

24. She said she had changed the rosters when they were sent to the Department on 9 May 2017, but not in an attempt to deceive the Department or to provide false or misleading information, but to demonstrate, as she saw it, the work the Ms Sekhon had actually been doing over those time periods. She said she had not thought that it would be construed in that way. It was noted that she had provided this explanation early, on 5 September 2017, but that this had been received by the Department only after the decision to bar the sponsor, so it had not been considered by the Department.

25. I took evidence from Mr Papadpoulous, an aged care continence consultant who said that he did a lot of work with Ms Sekhon and recognised her as an RCO working on addressing and monitoring the clients’ needs. When they discussed continence or urinary catheter management, she would explain to him how they had been going with their management. He said the point of liaison was with Ms Sekhon. He said that he would regularly catch up with her and she would give him an update that covers the care planning for those clients, and she also monitored their support programs, which was good. He said he could not accurately say how long in his experience Ms Sekhon had done this role, but it had been a number of years, and he said that Ms D’Souza assists him if Ms Sekhon is unavailable.

26. I spoke with Dr Ranasinghe who confirmed that Ms Sekhon worked as an RCO and spoke with her about the residents’ physical and mental health issues and would give her insight into whether the medication had the desired effect on the patient, whether they were improving or getting worse of if she needed to follow up on symptoms. Ms Sekhon would pro-actively contact the practice and do other things to help with and monitor the patients’ welfare. She noted that it was great that Ms Sekhon organised activities for the residents. She said that she had been seeing patients at Westley for three years and Ms Sekhon had been doing the role during that time. She said Ms Sekhon genuinely cared for the patients and would tell her something she may have missed.

27. I took evidence from Ms Kaur a PCA at Westley. She said that Ms Sekhon had been an RCO for about eight years or so, and Ms Sekhon did duties including organising for the residents, when residents are agitated she sits and works with them, and prepares care plans, and provide reports, and information sessions for the residents. She said if there is an incident she reports that to Ms D’Souza or to Ms Sekhon.

28. I took evidence from Mr D’Souza. He explained that he owned the business but the day to day management was done by Ms D’Souza. He said that because he has another business he is in or out and if there is an emergency Ms D’Souza calls him and he can be there. He said because of this he did not have the detailed understanding of Ms Sekhon’s role that Ms D’Souza has. He said that Ms Sekhon is an RCO and that is her position. he said that in relation to the sleepovers, this was a misunderstanding, she had accepted to do that at that time as Ms D’Souza was away. He said that the residents were very attached to Ms Sekhon and they appreciated her work.

    Failure to satisfy a sponsorship obligation: r.2.89

29. 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).

30. In this case the Department were concerned from the information before them that Ms Sekhon was not engaging in duties in line with her nominated occupation (r.2.86(2)).

31. Given the information from the site visit and the response to the notice, I can well understand how they arrived at this view.

32. However, I have had access to further information as well as a range of evidence from credible witnesses.

33. It is important to set out the duties for the nominated occupation. These are drawn from ANZSCO and the relevant code is Unit Group 4117 Welfare Support Workers - 411715 Residential Care Officer. An RCO, ANZSCO sets out, is a person who ‘Provides care and supervision for children or disabled persons in group housing or institutional care.’ [1] Tasks for the unit group (This is the wider grouping and will include tasks that are clearly not relevant) include:

    [1] ANZSCO, Unit Group 4117 Welfare Support Workers - 411715 Residential Care Officer, 2013, v.1.3,

    • assessing clients' needs and planning, developing and implementing educational, training and support programs 

    • interviewing clients and assessing the nature and extent of difficulties 

    • monitoring and reporting on the progress of clients 

    • referring clients to agencies that can provide additional help 

    • assessing community need and resources for health, welfare, housing, employment, training and other facilities and services 

    • liaising with community groups, welfare agencies, government bodies and private businesses about community issues and promoting awareness of community resources and services 

    • supporting families and providing education and care for children and disabled persons in adult service units, group housing and government institutions 

    • supervising offenders on probation and parole 

    • assisting young people to solve social, emotional and financial problems 

    • preparing submissions for funding and resources, and reports to government bodies and other agencies[2]

    [2] ANZSCO, Unit Group 4117 Welfare Support Workers - 411715 Residential Care Officer, 2013, v.1.3,

34. This can be contrasted with the definition for a personal carer and assistant, Minor Group 423 Personal Carers And Assistants, who provide ‘assistance, support, care and companionship to aged and disabled persons and others in need of care and in therapy programs.’[3] In looking at these and the tasks as described for the RCO, it is apparent that there are several significant distinctions – an RCO role involves care but also a supervisory element, and the PCA has no supervisory element and a focus on assistance to do every day activities such as showering, and secondly, the PCA requires a Certificate III and on the job training or a Certificate IV or three years of relevant experience.[4] In contrast, the RCO requires an Associate Degree, Advanced Diploma or Diploma.[5]

    [3] ANZSCO, Minor Group 423 Personal Carers And Assistants, 2013, v.1.3,

    [4] ANZSCO, Minor Group 423 Personal Carers And Assistants, 2013, v.1.3, ANZSCO, Unit Group 4117 Welfare Support Workers - 411715 Residential Care Officer, 2013, v.1.3, >

    Turning to the question of qualifications. On the basis of the documents and submission, I accept that Ms Sekhon has completed a Diploma of Community Welfare Work, a Certificate IV in Frontline Management, an Advanced Diploma of Management, a Diploma of Marketing at Australian Institute of Technology, and an Advanced Diploma of Marketing, and relevant short courses including HLTFA311A - Apply First Aid, HLTCPR211A – Perform CPR and HLTFA211A – Provide Basic Emergency Life Support. I accept that she has been positively assessed by the Australian Institute of Welfare and Community Workers Inc. (‘AIWCW’) as meeting the academic and professional requirements for admission to membership in the AIWCW, and therefore, being suitable for welfare work in Australia. I accept on the basis of the above that Ms Sekhon is qualified for the role of RCO.

35. I turn now to consider the information before me about Ms Sekhon’s role. I have had the benefit of evidence from her, a colleague who is a PCA, and Ms D’Souza and Mr D’Souza. This includes details statutory declarations as well as evidence at the hearing. Significantly, I have also had the benefit of speaking with health professionals and I have statements from other health professionals.

1. All of this evidence is consistent with Ms Sekhon performing the role of an RCO at the facility. In particular, I found Ms Sekhon’s detailed evidence at hearing persuasive. I found the evidence at hearing of the health professionals persuasive. She, and the other witnesses, have given compelling and credible evidence, including detailed examples, of her work in assessing the needs of the residents, developing programs for them, her role with Ms D’Souza in interviewing new/prospective residents, her role monitoring and reporting on the progress of clients to Mr Papadpoulous and Dr Ranasinghe and her referral of residents to appropriate services and liaison with these services. I consider that the evidence before me demonstrates that Ms Sekhon is undertaking these duties and has done so since July 2011 at the facility, but also that she undertakes these duties to a very high standard and provides a very good quality of care and supervision to the residents of the facility.

2. I have had regard to the information Ms Sekhon and Ms D’Souza and Mr D’Souza provided to the Department at the site visit. I agree with the Department that there was much in this evidence to be concerned with, but having had access to what I find to be credible evidence at the hearing, and the corroboration of health professionals who have worked with Ms Sekhon for many years, I consider it likely that much of the information related to nerves on the part of Ms Sekhon and Ms D’Souza, and their unfamiliarity with being interviewed. In this regard I also note that the delegate focused on the matter of the preparation of coffee and meals by Ms Sekhon. I prefer her explanation that this was sporadic, not part of her normal duties, and in some cases was a management technique she used to assist her supervision and care of residents. I accept the evidence that the sleepovers were for a specific period where Ms D’Souza was away, and were a function of Ms Sekhon being resident at the facility at that time for unrelated and understandable reasons.

3. I have had regard to the rosters. I have had regard to the evidence of Ms D’Souza, and I accept that she had a significant workload, did not consider the accuracy of the rosters of central importance as it did not form part of their reporting obligations to DHHS. I also find it entirely plausible that the reason why Ms Sekhon was listed as a PCA and cleaner was that prior to July 2011 this was her role, and that this designation was repeated in the rosters as a legacy of her role prior to her engagement as an RCO.

4. From speaking with people within and from outside the facility, and from the numerous written support statements, I am of the view that this facility performs an important role as a supported residential service for particularly challenging residents who have significant mental and physical disabilities and health needs, that this small business is performing a considerable service to the community, and that Ms Sekhon is a valued, and valuable, member of the team who performs the role to a high standard.

5. The sponsorship obligation is to ensure that the primary sponsored person works or participates in the nominated occupation. Departmental policy states that:

   Some work outside of the nominated occupation may be considered acceptable under policy, if the duties are closely related to those of the nominated occupation. However, the significant majority of work must be in the nominated occupation for regulation 2.86 to be satisfied.[6]

   [6] PAM3 Migration Policy And Operational Contents, Sponsorship compliance framework: Sponsorship obligations

6. Policy does not bind a decision maker absent a legislative intent for it to do so, but in this case policy is helpful in expressing a sensible approach to the interpretation of r.2.86.

7. Having regard to the information above, I find that a significant majority of Ms Sekhon’s work is as an RCO, performing the duties expressed in ANZSCO. Whilst I accept that she undertook some sleepovers or weekend work, I find that these were limited in scope and period of time. Whilst she made coffees and prepared meals, I consider that these were incidental to her work as she explained it to me, as a function of her supervision and management of residents. I do not find it significant that she does not prepare submissions for funding and reports to government bodies and agencies because I do accept the significant written material that demonstrates, along with the evidence from medical professionals, that she has a significant role in the supervision of the medical issues, behaviour and reporting on their behaviour and outcomes, including in writing.

8. Having regard to all of the information before me it appears that Ms Sekhon performs, very substantially, the role defined in ANZSCO as an RCO. In particular, it is clear to me that her role includes a considerable supervisory element absent from the role of a PCA, and that the significant majority of her work is conducted, as set out above, in line with the ANZSCO definition of an RCO. I am not satisfied that the sponsor has not ensured that the primary sponsored person works or participates in the nominated occupation. I am not satisfied that the sponsor has failed to satisfy r.2.86.

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

   False or misleading information: r.2.90

10. 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).

11. The delegate concluded that the version of the rosters provided by the sponsor 9 May 2017 was false or misleading information in an attempt to conceal the role of Ms Sekhon and the hours she worked.

12. As an initial point I note that Ms D’Souza, who prepared this version of the rosters, was present and would have been aware that the Departmental officers obtained copies of the rosters at the time of the site visit which contained differing information. It is difficult to see how she or anyone else could have concluded that it would be effective to provide false or misleading copies of the rosters in an attempt to conceal the earlier information, given that the Department would clearly have been aware of the earlier information.

13. I note also that Ms D’Souza has provided what I consider to be a compelling explanation for the difference as early as her statutory declaration of 5 September 2017. Unfortunately this was provided after the Department made the decision in this matter, but it was reasonably contemporaneous with the provision of the information. her explanation in subsequent statutory declarations and at hearing has remained consistent, and I find it entirely plausible that the ‘new’ information was an attempt to correct the rosters to reflect the true state of affairs. This explanation is consistent with my point above, and with the overwhelming evidence that Ms Sekhon’s duties are those of an RCO and have been so since July 2011 that I received from medical professionals, colleagues, residents and family of residents.

14. I note also that it is a very significant and serious charge to make that a person or organisation has provided false or misleading information. I consider that the evidence that this information was either false, in the sense that Ms Sekhon did not work those hours and was not in that role, or misleading given the contemporaneous explanation offered by Ms D’Souza for the disparity, to be lacking. I prefer the explanation given by Ms D’Souza and I find that properly understood in the context of Ms D’Souza attempting to explain the actual situation, the information is neither false or misleading. There is an insufficient basis to conclude that the sponsor or anyone acting on behalf of the sponsor has provided false or misleading information in the form of the rosters provided by the sponsor 9 May 2017.

15. Accordingly, the Tribunal is not satisfied that the prescribed circumstance in r.2.90 exists for the purpose of s.140M of the Act.

    Action to be taken

16. 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

17. 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.

    Sean Baker
    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.

    …

    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.

    …