1420159 (Migration)

[2015] AATA 3910

1420159 (Migration) [2015] AATA 3910 (22 December 2015)

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DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mistyak Pty Ltd

VISA APPLICANT:  Mr Kaashif Abdul Salam Ansari

CASE NUMBER:  1420159

DIBP REFERENCE(S):  BCC2014/18896

MEMBER:Lesley Hunt

DATE:22 December 2015

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 (Temporary Work (Skilled)) visa:

·Public Interest Criterion 4020 for the purposes of cl.457.224 of Schedule 2 to the Regulations.

Statement made on 22 December 2015 at 4:50pm

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 on 18 September 2014 to refuse to grant the applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 3 January 2014. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.457.224 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant did not met Public Interest Criterion 4020 as there was evidence before the department that the visa applicant has given or caused to be given information that is false or misleading in a material particular.

3. The review applicant was represented in relation to the review by its registered migration agent.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.457.224 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).

6. 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?

7. 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.

8. 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.

9. While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42.

10. In a submission dated 16 December 2015 the applicant’s representative submits that the evidence on which the delegate based the refusal decision was not of sufficiently probative value to justify the finding that the applicant had provided a bogus document or false or misleading information. The representative refers to the Federal Magistrate’s Court decision in Talukder v Minister for Immigration and Citizenship [2009] FMCA 223 in which the Court considered the term “evidence”. Reference is also made to the Federal Court decision in Talukder v Minister for Immigration and Citizenship [2009] FCA 916 and the Federal Circuit Court’s decision in Sharma & Ors v Minister for Immigration and Multicultural Affairs and Citizenship & Anor [2013] FCCA 1280.

11. The Tribunal notes that Talukder’s case concerned a different legislative provision and is therefore not a direct authority for the interpretation of subclause 4020(1).  However the Tribunal notes that Federal Magistrate Driver found that the word “evidence” requires an assessment of the quality of the evidence being relied on by the Tribunal. He states at paragraph 20 of his decision:

    The evidence must point to information having been false or misleading in a “material particular”.  That goes to both the strength of the evidence and its relevance.[1]…The use of the word “evidence” in my view establishes that the clause requires something more than the mere existence of information suggestive of falsity.  It requires some probative information…The decision maker must satisfy himself or herself that the information is acceptable as evidence pointing to false or misleading information having been given for the purposes of establishing the validity of the visa application and that the falsity or misleading information was material to the visa application.[2]

    [1] Talukder v Minister for Immigration and Citizenship [2009] FMCA 223 at paragraph 18.

    [2] Ibid, paragraph 20.

12. The Tribunal notes that the conclusion in Talukder was upheld on appeal by the Federal Court and further endorsed in Sharma’s case.  In Sharma’s case the Court expressly considered the meaning of “evidence” in the context of PIC 4020. The Court held that the Tribunal’s task was to:

    … make an assessment as to whether there is evidence that is sufficiently probative to lead to a conclusion that the information given was a bogus document or false or misleading in a material particular.[3]

    [3] Sharma & Ors v Minister for Immigration and Multicultural Affairs and Citizenship & Anor [2013] FCCA 1280, paragraph 25.

13. The issue in dispute in the present case relates to employment references provided by the visa applicant in support of the visa application.  Information on the departmental file indicates that the visa applicant provided two employment references in support of his application for the visa:  a reference letter from Café Janta referring to his employment between 2007 and 2012 and a reference letter from Usmania Hotel.  The reference letter from Café Janta, dated 22 October 2013, was signed by Mohammed Tauqeer, Senior Manager.  The letter stated that the visa applicant performed the following duties:  Managing 60 café staff; Roster management; Stock and larder control; Managing cash register; Providing superior customer service; Resolving issues; Interviewing new staff, staff training and emphasizing consistency; Organizing and managing events; Organizing birthday parties, engagement parties.

14. The reference letter from the Usmania Hotel, dated 7 November 2013, was signed by Mohd, Salim, Senior Manager.  The letter stated that the visa applicant’s duties involved: recruiting, training and motivating staff; managing staff and providing them with constructive feedback; coordinating the entire operation of the restaurant; roster management; monitoring health and safety as well as ensuring hygiene in food preparation and serving; staff payment as well as organizing cash drawers; performing administrative activities such as scheduling, rostering, budgeting and managing. 

15. In the decision record, a copy of which was provided by the applicant to the Tribunal, the delegate states as follows: 

    On 28 February 2014, the reference letter from Café Janta and a photo of the applicant were referred to the Australian High Commission in New Delhi for site visit verification.  On 3 April 2014 the Australian High Commission in New Delhi advised that the employment claims were non genuine. 

    At the address, Departmental officers met a gentleman who introduced himself as the referee. The referee recognised the applicant and stated that: the applicant was an ex-employee; the applicant worked as a restaurant manager; the applicant worked for 4-5 years from 2006-2010; the referee did not remember the exact dates of employment. 

    The referee was not able to provide any further information such as the applicant’s salary or work timings.  The referee repeatedly said that he had joined the business after the applicant. 

    When the Departmental officers reminded the referee to provide true and honest information, the referee provided the following information:

    He identified his signature on the reference letter.  He stated that the applicant is his cousin brother and the applicant’s father is a partner in the business.  The applicant’s father owns another restaurant called Usmania Restaurant.  Reference letter was prepared by the applicant and the referee only signed it.  Referee stated that the business has no letterhead and the reference letter is not valid.  All the documents were prepared by the applicant.  The applicant visited the restaurant at times and did not have fixed work timings.  The referee did not have documents to support the applicant’s association with the business. 

    Departmental officers then requested to speak with the oldest staff at the restaurant.  The referee introduced an employee who had been working in the restaurant for 20 years. This employee was unable to identify the applicant.  The referee then gave the employee a hint after which he recognised the applicant and stated that the applicant did not do any work.  Departmental officers then spoke to a gentleman at the counter who introduced himself as the manager.  The manager was unable to identify the applicant and could not provide any further information. 

    On 28 May 2014 the visa applicant was provided with 28 days to provide comment on the ‘non-genuine’ information supplied to the Department and/or to make a submission that there were compassionate or compelling circumstances to justify the waiver of any or all of PIC 4020(1) and (2) to justify the grant of the visa.

16. The visa applicant provided a written response to the Invitation to Comment, dated 24 June 2014.  He submitted the following documents: a submission from his representative, a statement refuting the allegation that the information provided in the reference letters was false and misleading; a statement from the referee and his English language qualifications; a statement from the senior employee; evidence of Café Janta and Usmania hotel ownership; and identity documents.

17. In his statement the visa applicant states the following. 

    I would like to make a statement about the report produced by the officers who went to the restaurant in India with reference to my 457 visa.  My father Abdul Salam Ansari and the owner of the Restaurant (Café Janta) have been in a relationship as working partners for more than 15 years.  A document has been attached for the same.  I was the manager at that restaurant (Café Janta).  But when my cousin, Ansari Mohammed Tauqeer was able to handle completely, I used to run between my family restaurant (Usmania) and Café Janta.  I didn’t have a fixed time for any restaurant as I am not a staff but considered as the boss in both the restaurant. 

    Raijab Ali, the senior most staff has been working for my father since he was a young boy.  He used to work at Usmania before my father moved him to Café Janta.  He fondly called me “Aachi” and not much people are familiar with my real name Kaashif.  Besides everyone calls me “Seth” which means “Boss” at the restaurant so my name hardly ever turns up.  Raijab Ali is an illiterate staff who doesn’t even know how to sign.  When he saw the officers at the restaurant he wanted to show that he is the manager and the only person who works.  This is because in India when an officer shows up it seem to be a problem and he wanted to solve the problem on his own.

18. The senior employee, Mr Raijab Ali states the following in his written statement dated 18 June 2014. 

    When the officer asked me do you know Kashif? I said who Kashif.  I know 2 to 3 people named Kashif.  When I was told Kashif Ansari is the son of Salam Sir, then I said I do know him.  Then, when he asked what is his occupation?  I said he does nothing. I have been working for Salam Sir for years now.  I do all the manual work.  Kashif does not do any manual work.  He does intellectual work.  For example: Who gets what salary, who to hire for work, training, liaise with customers in order to keep them happy, understanding customer’s problems and any other work that a supervisor is supposed to do. 

    After Kashif left the business, Tauqeer looked after the work, however Kashif still came often to supervise work.

19. The senior manager Mohammed Tauqeer, states the following in his written statement.  

    I would like to make some statements regarding the report presented by the enquiry made by some officers at Café Janta.  I did mention that Kaashif Abdul Salam Ansari worked from 2006 to 2012 and then I joined later in 2010.  I started work here under him as a trainee manager as I needed to understand things for this business before overtaking the full responsibility of the business.  He was helping his father at the other restaurant (Usmania) as well, so he kept on going there quite a few times a day.  This is what I said to the officer, as his duty hours are not fixed since I joined. Regarding the salary, I did mention to the officers that over here we do not have a pay slip for the records.  The transactions in this industry in Mumbai especially, are done by the means of cash.  I also said that the reference letter was prepared by me as per the request of Kaashif Abdul Salam Ansari.  We never keep the letterhead copy on the premise but we do have it saved at the computer at home.  Whenever someone asks me for a letter of reference, I prepare it accordingly.  The above statements are true and I mentioned these things to the officers.

20. The following is a summary of the representative’s submission dated 24 June 2014. It is submitted that the senior manager, Mr Tauqeer, denies the allegation that he has told the officers that the visa applicant worked for 4-5 years from 2006 to 2010 at Café Janta.  Mr Tauqeer states that he told the officers that the applicant worked from 2006 to 2012 and he himself joined Café Janta later in 2010.  Mr Tauqeer denies that he stated that the reference letter was prepared by the applicant and he only signed it.  He states that he told the officers that he never kept the letterhead on the café premises but only saved it on the computer at home.  He would prepare reference letters accordingly.    He denies that his father owned a restaurant called Usmania Restaurant.  He submits that the applicant’s father owns a restaurant called Usmania Restaurant.  The applicant provided the business registration certificate and his birth certificate showing that his father runs the Usmania Restaurant.  He states that he started working at Café Janta under the applicant’s training, firstly as a trainee manager and then he took over the full responsibility as manager. The representative refers to both Mr Ansari’s and Tauqeer’s statements that as Mr Ansari’s father is a long term business partner of Café Janta, Mr Ansari has been asked by his father to work for Café Janta to assist in running it.  Between 2010 and 2012 Mr Ansari worked at his father’s restaurant, Usmania Restaurant, and Café Janta, as he was asked to train the new manager Tauqeer for Café Janta.  The partnership certificate between the owner of Café Janta and Mr Ansari’s father, has been submitted in support of this claim. 

21. The representative states that Mr Ansari states that he spoke with both Mr Tauqeer (the referee) and Mr Ali (the senior staff member) and both state the following.  Two officers came to Café Janta.  One was a local Indian officer and the other was Caucasian.  Neither of the two officers provided their names and the Indian officer did most of the questioning in the local language. The Caucasian officer only asked Tauqeer a few questions in English as Tauqeer speaks good English. 

22. In a submission dated 16 December 2015 to the Tribunal the representative submits that there is conflicting information between the written statements submitted by Mr Tauqeer and Mr Ali, and the information provided by the delegate in the decision record.  It is also submitted that there are inconsistencies between the Minute and the Decision record. It is further noted by the representative that after accessing the departmental file in this matter it appears that there are no records of the interview which allegedly took place on 27 March 2014, no notes of the investigation, no recording of the interviews, no transcripts or statements by the two officers who undertook the site visit.  It is noted by the representative that the only record of what occurred during the site visit is a summary of adverse information contained in the Invitation to Comment letter of 28 May 2014 and a document titled “Minute: Submission in relation to PIC 4020 (Fraud)” dated 27 August 2014. However, neither of those documents were prepared by people who attended the site visit. The representative notes that the Minute is dated approximately three months after the invitation to comment was sent to the applicant on 28 may 2014 and approximately five months after the site visit.  The Minute was signed by the Manager, Queensland 457 Temporary Work (Skilled), who is located in Brisbane, Queensland.  The Invitation to Comment was issued by the delegate, also located in Brisbane, Queensland. 

23. The representative submits that the Minute appears to be the only record of the evidence obtained during the investigation.  As the Minute is dated 27 August 2014, some five months after the investigation took place, is authored by a person who was not a party to the investigation and who is located in Brisbane, and as the Minute makes no reference to any documents relied on to produce the Minute, the representative submits that the evidence relied on is hearsay, and should not be regarded as admissible evidence.  It is submitted that there is no contemporaneous information from the Department in evidence before the Tribunal that can reasonably be relied on, and if the Tribunal were to rely on the Minute and the Invitation to Comment, it would amount to a miscarriage of the principles of natural justice. 

1. The Tribunal has carefully considered all the evidence before it and notes that there are conflicting accounts regarding what transpired during the site visit conducted by two officers from the Australian High Commission on 27 March 2014. 

2. The Tribunal notes that the evidence contained in the departmental file consists of:

   ·    the visa application and supporting documents;

   ·    an email dated 28 January 2014 from the delegate to the NDLI Referral Unit (DFAT) asking for verification of the visa applicant’s employment claims;

   ·    a letter dated 28 May 2014 from the Department to the visa applicant inviting him to comment on unfavourable information which does not support his visa application;

   ·    submission dated 24 June 2014 in response to the unfavourable information and the following attachments: a statement from the visa applicant; documents identifying the owners of Café Janta and Usmania Hotel and evidence of the business partnership between the owner of Café Janta and the applicant’s father; birth certificate of the visa applicant; a letter with English translation from Rajjab Ali, senior employee at Café Janta;

   ·    a letter from Mohammed Tauqeer, Senior Manager, Café Janta and evidence of his English language skills;

   ·    a Minute dated 27 August 2014 with an assessment and the recommendation that the visa applicant fails to satisfy the PIC 4020 criteria, signed by the Manager Queensland 457 Temporary Work (Skilled) section of the Department;

   · the decision record dated 18 September 2014 refusing the visa application because cl.457.224 is not met due to the applicant’s failure to satisfy PIC 4020.

3. Section 352 of the Act sets out the procedures to be followed when an application for review is lodged with the Tribunal.  Section 352(2) refers to the Secretary providing the Tribunal with copies of the decision record which sets out the findings of fact made by the person who made the decision and refers to the evidence on which those findings were based.  

4. Section 352(4) states:  The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary's possession or control and is considered by the Secretary to be relevant to the review of the decision.

5. The Tribunal has carefully examined the departmental file.  It does not contain any contemporaneous notes taken at the site visit; there is no recording of the interviews between the departmental officers and the applicant’s referee and the senior employee; there is no report from the site visit made by the two officers who undertook the site visit.  In the representative’s response to the Invitation to Comment on unfavorable information dated 24 June 2014 a request was made for a copy of the record of interview conducted at the site visit.  Nearly eighteen months has passed since that request was made and no record of interview has been provided.  The Tribunal considers that ample time has passed for the Department to have provided this evidence. 

6. The Tribunal considers that it should not be forced to rely on the delegate’s account of the evidence rather than the evidence itself, particularly given the statutory obligation on the department to provide the evidence in question. In the absence of the contemporaneous notes or recording of the site visit interviews, and given the subsequent evidence provided by the applicant’s referee and the senior employee Mr Ali, the Tribunal is unable to be satisfied that the applicant has provided false or misleading information or a bogus document in support of his visa application. 

7. Whilst the Department appears to have some information that may indicate that the visa applicant has provided misleading information, that information, in the way in which it has been presented to the Tribunal, cannot reasonably be said to be “evidence” in accordance with the standard imposed by Talukder’s case and Sharma’s case.  In the Tribunal’s view of the evidence before it, it is highly possible that there has been miscommunication or misunderstanding between the Departmental officers and the two men interviewed.  Had all documents and contemporaneous evidence been provided to the Tribunal, it may have been able to reach a different conclusion.  However, the Tribunal is only able to make a decision on the basis of the evidence before it.  While the summary of the findings from the site visit provided by the staff of the High Commission referred to in the Minute does raise some doubts, the Tribunal is not prepared to base a finding of a failure to meet PIC 4020 on the limited evidence before it.

8. Therefore, the applicant meets cl.4020(1).

   Has a visa previously been refused on the basis of a failure to satisfy cl.4020(1)?

9. Clause 4020(2) requires the Tribunal to be satisfied that the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy cl.4020(1) in the period commencing 3 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: cl.4020(2AA). 

10. There is no evidence before the Tribunal to indicate that the applicant or any member of the applicant’s family unit have been refused a visa in the relevant period because of a failure to satisfy cl.4020(1). 

11. Therefore, cl.4020(2) is met.

    Has the applicant satisfied the identity requirements?

12. Clause 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity. The visa applicant provided the Department with copies of his Passport and Birth Certificate. On the evidence before it, the Tribunal is satisfied that the applicant meets the identity requirements.  

13. Therefore, the applicant meets cl.4020(2A).

    Has a visa previously been refused on the basis of a failure to satisfy cl.4020(2A)?

14. Clause 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in cl.4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: cl.4020(2BA).

15. There is no evidence before the Tribunal to indicate that the applicant or any member of his family unit have been refused a visa on the basis of a failure to satisfy cl.4020(2A).

16. Therefore cl.4020(2B) is met.

17. On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl.457.224.

    DECISION

18. The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 (Temporary Work (Skilled)) visa:

    ·Public Interest Criterion 4020 for the purposes of cl.457.224 of Schedule 2 to the Regulations.

    Lesley Hunt
    Member

    ATTACHMENT

    Migration Regulations 1994

    Schedule 4

    4020(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 1958

    s.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. 

    …