1418439 (Migration) - [2015] AATA 3091

1418439 (Migration) [2015] AATA 3091 (7 July 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Gurveer Singh Kaushik
CASE NUMBER:  1418439
DIBP REFERENCE(S):  BCC2009/464877
MEMBER:Wan Shum
DATE:7 July 2015
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Residence) (Class VB) visa.
Statement made on 7 July 2015 at 3:41pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 10 July 2013 to refuse to grant the applicant a Skilled (Residence) (Class VB) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the Subclass 886 visa on 25 November 2009.
To meet one of the requirements for the grant of the visa sought, the applicant provided evidence of a skills assessment from Trades Recognition Australia (TRA) in the occupation of cook. The TRA assessment was based on evidence of his qualifications and 900 hours’ work experience.
Following an investigation, a delegate of the Minister of Immigration concluded that the TRA skills assessment was a bogus document and thus found that the applicant did not satisfy Public Interest Criterion 4020(1). The delegate was not satisfied that there were circumstances justifying the grant of the visa to waive the requirements of Public Interest Criterion 4020(1) and refused to grant the applicant the visa on the basis that the applicant did not satisfy the requirements of cl.886.225 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
The applicant sought review of that decision which was affirmed by the Tribunal, differently constituted, on 4 December 2013. The applicant filed an application in the Federal Circuit Court of Australia at Brisbane and, on 4 November 2014, the court ordered by consent that the matter be remitted back to the Tribunal to reconsider the matter according to law.
The applicant was represented in relation to the review by his registered migration agent, Mr Lorenzo Boccabella. The applicant appeared before this Tribunal on 29 April 2015 to give evidence and present arguments with his representative.
BACKGROUND
The applicant is a national of India, born in September 1987. He first travelled to Australia as a holder of a Subclass 573 (Student) visa in June 2007.
In order to be granted a Subclass 886 visa, the applicant had to apply for an assessment of his skills for the nominated skilled occupation by the relevant assessing authority (cl.886.212) and give evidence that his skills had been assessed as being suitable for the nominated skilled occupation (cl.886.223).
On the Subclass 886 visa application form, it was indicated that the applicant had applied for an assessment of his skills for the nominated skilled occupation of cook. The ‘relevant assessing authority’ for the occupation of cook is Trades Recognition Australia (TRA) (Legislative Instrument IMMI 12/068). It was indicated on the form that he had obtained a skills assessment from TRA on 16 September 2009 with the reference…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] AATA 3091
Decision Date: 7 July 2015

CaseChat Overview and Summary

The applicant, an Indian national, applied for a Skilled (Residence) (Class VB) visa, which requires an assessment of his skills as a cook by Trades Recognition Australia (TRA). He submitted evidence of his formal training and a reference letter from his employer, Maharaja Indian Restaurant, claiming 900 hours of work experience. However, during a Department of Immigration investigation, the restaurant owner could not verify the applicant's identity or confirm his employment, leading to doubts about the authenticity of the reference letter. The Tribunal reviewed the case to determine if the applicant met the Public Interest Criterion 4020 (PIC 4020) for the visa, which includes requirements related to providing false or misleading information or documents.

The key legal issue was whether the applicant satisfied PIC 4020, specifically cl.4020(1), which requires that the applicant has not provided any false or misleading information or bogus documents related to the visa application or any previous visa held within the last 12 months. Additionally, the Tribunal needed to assess whether cl.4020(2) was met, ensuring that neither the applicant nor any family unit member had been refused a visa due to failure to satisfy cl.4020(1) in the preceding three years. The Tribunal also had to consider if the applicant satisfied the Minister as to his identity (cl.4020(2A)) and whether there had been any refusals due to identity issues in the preceding 10 years (cl.4020(2B)).

The Tribunal concluded that the applicant did not satisfy PIC 4020 for the purposes of cl.886.225(a) because there was insufficient evidence to confirm the authenticity of the work experience reference provided to TRA. The restaurant owner's inability to verify the applicant's identity or employment history led the Tribunal to doubt the credibility of the reference letter. Consequently, the Tribunal affirmed the decision not to grant the applicant a Skilled (Residence) (Class VB) visa. The Tribunal found that the investigation findings and lack of corroborative evidence from the restaurant owner supported the conclusion that the applicant had not met the required criteria.

The final orders affirmed the decision to refuse the grant of the Skilled (Residence) (Class VB) visa to the applicant. The Tribunal upheld the earlier decision made by the Department of Immigration, citing the lack of credible evidence to support the applicant's claimed work experience as the primary reason for the refusal. The Tribunal's decision was based on the need for accurate and verifiable information to meet the visa criteria and ensure the integrity of the migration process.

Orders

Orders of the court

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Background

Background to the litigation

The applicant was represented in relation to the review by his registered migration agent, Mr Lorenzo Boccabella. The applicant appeared before this Tribunal on 29 April 2015 to give evidence and present arguments with his representative. BACKGROUND The applicant is a national of India, born in September 1987. He first travelled to Australia as a holder of a Subclass 573 (Student) visa in June 2007. In order to be granted a Subclass 886 visa, the applicant had to apply for an assessment of his skills for the nominated skilled occupation by the relevant assessing authority (cl.886.212) and give evidence that his skills had been assessed as being suitable for the nominated skilled occupation (cl.886.223). On the Subclass 886 visa application form, it was indicated that the applicant had applied for an assessment of his skills for the nominated skilled occupation of cook. The ‘relevant assessing authority’ for the occupation of cook is Trades Recognition Australia (TRA) (Legislative Instrument IMMI 12/068). It was indicated on the form that he had obtained a skills assessment from TRA on 16 September 2009 with the reference or receipt number of TRA09/062251498. It was elsewhere indicated on the application form that the applicant had completed two courses at Holmes Institute, being a Certificate IV in Hospitality (Commercial cookery) and a Diploma of Hospitality Management from July 2007 to July 2009. The skills assessment from TRA dated 16 September 2009 states that the applicant’s application for a skills assessment was successful and that for the purposes of the skills assessment component of the migration process his occupation is Cook 4513-11. It states that the evidence provided has satisfied formal training requirements and has satisfied 900 hours directly related work experience. To obtain this assessment, the applicant had supplied to TRA evidence of formal training requirements and documents supporting his claim to have 900 hours’ work experience from Maharaja Indian Restaurant. Those documents included a letter dated 4 June 2009 stating that the applicant had been working as a cook at Maharaja Indian Restaurant from 2 August 2008 till present. While his visa application was being processed, an investigation was conducted by the Department of Immigration, with a site visit and interview of Mr Baljit Binning, owner of the Maharaja restaurant, carried out on 15 February 2011. Mr Binning was shown photographs of the 30 odd applicants claiming work experience at his restaurant, although a small number of photographs were unavailable and shown to him at a later date. According to the report on the site visit and interview plan, Mr Binning was asked questions regarding the operation and staffing of the restaurant including the duties undertaken by students who genuinely worked at the restaurant during the relevant period, of which he said there were around 5 or 6 students. Based on the information provided by the owner during the 15 February 2011 interview, the investigating officers concluded that the applicant had not undertaken the work experience as stated in the employment reference provided to TRA. It was noted that the owner was unable to verify his identity or confirm that he had completed work experience at the Maharaja Indian Restaurant.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.886.225(a).DECISION The Tribunal affirms the decision not to grant the applicant a Skilled (Residence) (Class VB) visa.Wan ShumMemberATTACHMENTMigration Regulations 1994Schedule 44020(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:(a)the application for the visa; or(b)a visa that the applicant held in the period of 12 months before the application was made.(2)The Minister is satisfied that during the period:(a)starting 3 years before the application was made; and(b)ending when the Minister makes a decision to grant or refuse to grant the visa;the applicant and each member of a family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).(2AA)However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.(2A)The applicant satisfies the Minister as to the applicant’s identity.(2B)The Minister is satisfied that during the period:(a)starting 10 years before the application was made; and (b)ending when the Minister makes a decision to grant or refuse to grant the visa;neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).(2BA)However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.(3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.(4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:(a)compelling circumstances that affect the interests of Australia; or(b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;justify the granting of the visa.(5)In this clause:information that is false or misleading in a material particular means information that is:(a)false or misleading at the time it is given; and(b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information. …Migration Act 1958s.5 Interpretation(1) In this Act, unless contrary intention appears:…bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:(a)purports to have been, but was not, issued in respect of the person; or(b)is counterfeit or has been altered by a person who does not have authority to do so; or(c)was obtained because of a false or misleading statement, whether or not made knowingly. …

Ratio Decidendi

Legal Principle Established

The earlier decision of the Tribunal, differently constituted, was remitted for reconsideration by the Court. The reason for the remittal was because the Minister for Immigration and Border Protection conceded that the decision was affected by jurisdictional error as the Tribunal failed to consider relevant material by ignoring corroborative evidence in makings its credibility findings.CONSIDERATION OF ISSUE The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.886.225(a) for the grant of the visa. Broadly speaking, this requires that:·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: cl.4020(1); and·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy cl.4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: cl.4020(2) and (2AA); and·the applicant satisfies the Minister as to his or her identity: cl.4020(2A); and ·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy cl.4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: cl.4020(2B) and (2BA). The requirements in cl.4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: cl.4020(4). However, this waiver does not apply to the identity requirements in cl.4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular? The term ‘information that is false or misleading in a material particular’ is defined in cl.4020(5) and the term ‘bogus document’ is defined in s.5(1) of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in cl.4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Batra v MIAC [2013] FCA 274. The requirement in cl.4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant: cl.4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.