Geelong Graphics Pty Ltd (Migration)

[2024] AATA 362

Geelong Graphics Pty Ltd (Migration) [2024] AATA 362 (22 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Geelong Graphics Pty Ltd

REPRESENTATIVE:  Mr Tariq Ameer (MARN: 1807556)

CASE NUMBER:  2111364

HOME AFFAIRS REFERENCE(S):          OPF2020/7493

MEMBER:Jade Murphy

DATE:22 February 2024

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 (Cth).

Statement made on 22 February 2024 at 5:17pm

CATCHWORDS

MIGRATION – sponsorship cancellation or bar – sponsorship obligations – providing false or misleading information – record keeping obligations – payslips provided out of time – ensuring equivalent terms and conditions of employment  – nominees did not receive nominated salary – COVID-19 lockdown restrictions – part payments in cash – nominee returned part salary for documented services to his family – participating in the nominated occupation – nominee’s additional employment while on leave – power to take an action does not arise – decision under review set aside  

LEGISLATION

Migration Act 1958, s 140
Migration Regulations 1994, rr 2.79, 2.83, 2.86, 2.89-2.94

CASES

Talukder v MIAC & Anor [2009] FMCA 223

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 Home Affairs to take an action under s 140M of the Migration Act 1958 (Cth) (the Act) in relation to the applicant’s sponsorship.

1. The applicant was approved as a standard business sponsor on 14 June 2016. On 9 August 2021, the delegate decided to impose a two-year bar under s 140M on the basis that the applicant had failed to satisfy their sponsorship obligations in three identified circumstances and had provided false or misleading information.

2. Mr Muhammad Ramzan appeared before the Tribunal on 21 August 2023 to give evidence and present arguments on behalf of the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

3. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

5. 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.

6. For these purposes, the circumstances are prescribed in regs 2.89–2.94B 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.

7. 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: regs 2.89–2.94B. 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: reg 2.89

   10.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: reg 2.89(2).

   11.In the present case, the delegate found that the applicant failed to satisfy their sponsorship obligation in the following circumstances.

   Regulation 2.79 Obligation to ensure equivalent terms and conditions of employment.

8. As set out in the primary decision and as confirmed by the Tribunal at hearing, the delegate outlined concerns regarding the salaries paid to sponsored persons, namely Mr Muhammed Asif and Mr Balwinder Singh. The delegate considered that the documentary evidence revealed that Mr Asif had received less that his nominated salary over 11 pay periods and that Mr Singh repaid his fortnightly salary to the applicant and as such received less than required during the monitoring period.

9. At hearing, the Tribunal asked Mr Ramzan what he would like to say in response to the delegate’s concerns in this regard. Mr Ramzan responded that regarding the finding that Mr Asif had received less that his nominated salary over 11 pay periods, that the relevant pay periods were heavily impacted by the COVID-19 pandemic and Mr Asif had worked less hours than usual because of lockdown restrictions. Mr Ramzan told the Tribunal that some salary payments to Mr Asif had also been made in cash which is why the pay slips did not reconcile with bank account statements provided. Mr Ramzan submitted and relied on the Australian Taxation records and Notice of Assessment for the relevant period which demonstrated a taxable income of $54,000 was received by Mr Asif in line with a full year’s employment.

10. In response to the claim that Mr Singh had repaid his fortnightly salary to the applicant, Mr Ramzan told the Tribunal that Mr Singh often had his sister, and several friends attend the workshop and have work done on their vehicles. Mr Ramzan submitted that any money paid by Mr Singh to the applicant was for that work. Mr Ramzan told the Tribunal that the money paid into the account by Mr Singh was reconciled by invoices issued to Mr Singh’s sister and his friends for work completed and that these were provided to the Department.

11. The Tribunal accepts Mr Ramzan’s explanation that the relevant period of employment for Mr Asif was heavily impacted by COVID restrictions and does not draw any negative inference from a change in work hours because of this, or that some salary payments were made in cash. The Tribunal considers this is a reasonable explanation for an inconsistency between the pay slips issued to Mr Asif, and the bank account statements. Further, the Tribunal relies on the Notice of Assessment for Mr Asif which includes the cash payments made to him and finds that it is independently verifiable third-party evidence that demonstrates Mr Asif was paid his full salary at the relevant time.

12. The Tribunal further accepts Mr Ramzan’s explanation for the payments made from Mr Singh to the applicant’s bank account. The Tribunal relies on the documentary evidence provided, namely the invoices for work completed and the payments made by Mr Singh and finds that they correlate. As a result, the Tribunal finds that this is a reasonable explanation that ameliorates the concerns raised in the primary decision.

    Regulation 2.83 Obligation to provide records and information to the Minister.

    17.The delegate noted that the applicant was requested to provide pay slips for Mr Asif and Mr Singh and the applicant explained that it was unable to due to its accountant being overseas during the COVID pandemic period. The delegate noted that the applicant was provided an extension of time to provide the pay slips and that it eventually provided the requested documents, but it was outside the timeframe stipulated, including an extension of time.

    18.At hearing, the Tribunal asked Mr Ramzan if he would like to respond to the delegate’s concerns as expressed in this regard. Mr Ramzan told the Tribunal that again, there were exceptional circumstances due to the COVID-19 pandemic and the lockdown restrictions that were in place at the relevant time. Further, the applicant’s accountant was unreliable and not providing prompt services. Mr Ramzan submitted documentary evidence demonstrating that the applicant has now changed its accounting service and notes that all documents requested were provided to the Department, albeit after the extended period. The Tribunal notes that the applicant was issued a monetary penalty in connection with this decision and that this has been paid to the Department. The Tribunal considers that this is a considerable penalty which has already been incurred by the applicant.

    19.The Tribunal accepts that the applicant has changed its accounting practice and service and that it acknowledges it has a responsibility to ensure it complies with requests to provide information and documents to the Department. On this occasion, the Tribunal accepts that there were exceptional difficulties imposed by the COVID-19 pandemic and there was a delay in providing the requested materials that was out of the applicant’s control. The Tribunal is satisfied that, notwithstanding another global pandemic outbreak, that the applicant has put itself in a better position to comply with this sponsorship obligation.

    Regulation 2.86 Obligation to ensure primary sponsored person works or participates in the nominated occupation, program, or activity.

    20.The delegate noted they accepted that on the documentary evidence this obligation was satisfied in relation to Mr Asif’s employment. However, the delegate remained satisfied that there was a failure regarding the employment of Mr Singh. The delegate considered it was implausible for the applicant not to have known that Mr Singh was driving an Uber for full-time hours during a 12-month period that he was allegedly also employed by the applicant in a full-time capacity. The applicant noted that Mr Singh took excessive leave during this period and the delegate considered it reasonable to consider that this facilitated Mr Singh’s alternative employment as an Uber driver. As a result, the delegate was satisfied that the applicant had failed in its obligation to ensure the sponsored person works in his nominated occupation.

13. At hearing, the Tribunal asked Mr Ramzan if he would like to respond to the delegate’s concerns as expressed in this regard. Mr Ramzan told the Tribunal that he had experience with having driven Uber vehicles when he first arrived in Australia. Mr Ramzan stated that he had personally undertaken over 13,000 trips and most were completed in the evenings and weekends as this is generally the highest demand for transport. Mr Ramzan maintains that Mr Singh was employed full-time with the applicant during the relevant period and worked standard business hours during the day for the applicant. However, Mr Ramzan submitted that it was possible that Mr Singh was supplementing this employment with work as an Uber driver in the evenings and on the weekends which could still amount to concurrent full-time hours.

14. The Tribunal finds the oral testimony of Mr Ramzan to be candid, significantly detailed, consistent with documentary evidence, and therefore reliable. The Tribunal accepts that an alternative plausible explanation for Mr Singh’s concurrent full-time employment as an Uber driver exits and as a result is not satisfied that there is a demonstrated failure of the applicant in their obligation to ensure primary sponsored person works or participates in the nominated occupation.

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

    False or misleading information: reg 2.90

15. 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: reg 2.90(2).

    25.As set out in the decision record, the delegate considered that on the documentary evidence provided by the applicant and gathered during monitoring, that the payslips and rosters provided by the applicant to Australian Border Force officers were false and misleading. The delegate noted the applicant’s explanation regarding Mr Singh, his alleged ill-feeling towards Mr Ramzan and the termination of his employment, but regardless, considered the documents had been demonstrated to be false and misleading.

16. At hearing the Tribunal asked the Mr Ramzan whether he would like to respond to the delegate’s concerns as expressed in this regard. Mr Ramzan relied on his previous assertions that all documents, specifically pay slips and roster are genuine. Mr Ramzan noted that independently verifiable information such as bank statements, together with Australian Taxation evidence corroborated his internal documents.

    27.The Tribunal has formed a different view to that of the Department. The Tribunal has had the opportunity to ask its own questions of Mr Ramzan regarding the Mr Asif and Mr Singh’s employment, and as a result, test the evidence previously submitted to the Department at the time of making its decision. Particularly persuasive was his oral testimony regarding the difficult effects of the COVID-19 pandemic on the business at the relevant time, and then the corroboration of specific details by independent evidence issued by the Australian Taxation Office.

    28.The Tribunal accepts the applicant’s explanation of the inconsistencies raised by the delegate, that discrepancies with payslips and bank statements reflected cash payments and did not arise because of anything more sinister. This was supported by Mr Asif’s Notice of Assessment.

    29.The Tribunal has considered and relied on considerations set out in the matter of Talukder v MIAC & Anor [2009] FMCA 223, in which His Honour Driver FM found:

    … that the clause requires something more than mere existence of information suggestive of falsity. It requires some probative information.

    30.Although this decision looks at the term ‘false and misleading’ for the purposes of PIC4020, the Tribunal considers the words of Driver FM also relevant to the consideration of ‘false and misleading’ in this matter and considers that the inconsistencies raised by the Department give rise to a suspicion of falsity at best, which is not in the Tribunal’s view borne out when balanced with the documentary and oral evidence to the contrary.

    31.The Tribunal has formed the view that the pay slips and rosters provided by the applicant are not false or misleading.

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

    Action to be taken

17. 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

    34.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 (Cth).

    Jade Murphy
    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.

    …