1502112 (Migration)
[2016] AATA 3741
•20 April 2016
1502112 (Migration) [2016] AATA 3741 (20 April 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Jewel Mohajan
CASE NUMBER: 1502112
DIBP REFERENCE(S): BCC2013/1133525
MEMBER:Alan Duri
DATE:20 April 2016
PLACE OF DECISION: Sydney
DECISION:The tribunal affirms the decision not to grant the applicant a Skilled Nominated (Permanent) visa.
Statement made on 20 April 2016 at 4:23pm
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
Mr Mohajan was born in 1991 in Bangladesh. He arrived in Australia on 9 March 2013 on a Subclass 462 visa.
On 25 July 2013 Mr Mohajan applied for a Skilled Nominated (Permanent) visa under s.65 of the Migration Act 1958 (the Act).
On 4 February 2015 the delegate refused to grant the visa on the basis that Mr Mohajan did not satisfy the requirements of cl.190.216 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate considered that Mr Mohajan supplied bogus documents concerning his employment history in Bangladesh. In particular a site visit to one of the employers (Parfait Associates) indicated that the business did not exist at the stated address. The delegate found that Mr Mohajan did not satisfy public interest criterion 4020.
Hearing
Mr Mohajan appeared before the tribunal on 25 November 2015 to give evidence and present arguments.
Mr Mohajan was represented by his registered migration agent Diana Tong.
The tribunal was provided with a variety of information about Parfait, essentially to the effect that the address visited by the department was only used for registration purposes. Mr Mohajan gave evidence to the effect that the actual address of the business was originally 76/C Khwaza Manjil (3rd floor), in front of the Lion Eye Hospital. Since 2012 the business has operated from Plot No 169 (Ground Floor Road #2 Sugandha R/A, Panchlaish, Chittagong.
Mr Mohajan told the tribunal that he is currently working for Crust Pizza. He indicated that he is not in any relationship with an Australian citizen/permanent resident or New Zealander.
The tribunal advised that it would arrange a site visit to confirm the existence of Parfait Associates.
On 7 March 2016 the tribunal received a site visit report from the Bangladeshi High Commission to the effect that the employer references were not genuine.
On 10 March 2016 the tribunal sent Mr Mohajan a letter under s.359A inviting him to comment on or respond to the adverse information.
On 12 April 2016 the tribunal received a variety of material that where relevant will be discussed below.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the visa applicant meets public interest criterion 4020 as required by cl.190.216 for the grant of the visa. Broadly speaking and relevant to this application, 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).
The requirements in cl.4020(1) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: cl.4020(4). Public interest criterion 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.
While public interest criterion 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 public interest criterion 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.
The documents in question are work references and associated material such as payslips from Parfait Associates Ltd, a Bangladeshi engineering business. The work references state that Mr Mohajan was employed a superintending engineer from 2 January 2012 to 28 February 2013.
These documents were supplied in relation to Mr Mohajan’s Skilled Nominated (Permanent) Subclass 190 visa.
As noted in the delegate’s decision Parfait Associates material gave an address at 2/8 Bandar Stadium Market, Bandar Chittagong.
A site visit on 22 October 2014 revealed that no such business operated at the address.
However Mr Mohajan gave evidence to the tribunal that the Bandar Market address was only used by Parfait Associates for registration purposes and never actually operated from that address. Mr Mohajan indicated that at the time he was employed by Parfait, the business was operating from 76/C Khwaza Manjil (3rd floor), in front of the Lion Eye Hospital. Mr Mohajan indicated that the business has since moved to Plot No 169 (Ground Floor Road #2 Sugandha R/A, Panchlaish, Chittagong -4203. Mr Mohajan supplied the tribunal with a letter dated 23 November 2015 from the Chairman of Parfait Associates corroborating his claims, as well as a number of other letters from Parfait Associates and various photographs of the business.
As noted above, the tribunal arranged a further site visit to verify Mr Mohajan’s claims.
A site visit was conducted on 23 February 2016. Of particular relevance was the the fact the the tribunal was supplied with a letter dated 23 November 2015 by Mr Md. Asif Iqbal of Parfait Associates Ltd that listed specific duties undertaken by Mr Mohajan during his period of claimed employment. However during the site visit the employer was unable to produce any documentary evidence that Mr Mohajan was ever employed by Parfait Associates Ltd in the period claimed.
In response to the s.359A letter the tribunal received a letter from Ms Tong to the effect that the employer Mr Asif found the immigration officers were “rude, manipulative and asking questions with judgemental comments”. Ms Tong stated that Mr Asif informed immigration officer that some old employment records and work records were archived and that Mr Mohajan did not work at the company’s current location and that he would need time to locate documents. The tribunal subsequently was provided with a number of payslips from Parfait Associates Ltd as well as four documents entitled “Site progress Report” dated throughout 2012 with the supervisor listed as Mr Mohajan.
Based on the February 2016 site visit, it is apparent that the business Parfait Associates Ltd exists. Furthermore the tribunal finds that the various work references were written by people employed by Parfait Associates Ltd. The tribunal is satisfied that the work references are not bogus documents as defined in s.5 of the Act.
However this does not mean that the information contained in the various material supplied by Parfait Associates Ltd is true.
There have been two site visits in this case both of which have been unable to independently verify Mr Mohajan’s claims. During the second site visit at particular, the purported employer was unable to provide any documentary evidence that Mr Mohajan was employed at that organisation as claimed in a reference letter issued as recently as November 2015. The tribunal notes a claim that the employee was unable to provide any documentary evidence because the records were archived. However this does not explain how as recently as November 2015 employer was able to provide a detailed letter about Mr Mohajan’s employment, including his particular duties. The tribunal finds that the February 2016 site visit report is an accurate depiction of what occurred during the site visit. Accordingly the tribunal accept that Parfait Associates Ltd was unable to provide during the site visit any evidence that Mr Mohajan was employed during the period in question. The tribunal is not convinced by the explanation that Mr Mohajan’s records were archived elsewhere.
Based on the second site visit the tribunal is not satisfied that Mr Mohajan was employed by Parfait Associates Ltd in the role and for the period as claimed in the documents. The information in the documents in question has not been able to be independently verified. The tribunal acknowledges that follow the February site visit further documents have been provided. However, given the results of the first two site visits, the tribunal saw no utility in arranging a third site visit to validate the recently received documents.
In summary the tribunal finds that Mr Mohajan has provided information that is false or misleading in a material particular in relation to his Subclass 190 visa application.
Therefore, Mr Mohajan does not meet cl.4020(1).
Should the requirements of cl.4020(1) be waived?
The requirements of cl.4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in r.1.03), that justify the granting of the visa.
There is no evidence or suggestion that there are compelling circumstances in this case that affect the interests of Australia.
The tribunal is also not satisfied, that notwithstanding Mr Mohajan’s employment at Crust there are compassionate circumstances in this case that affect the interests compelling an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen to justify the grant of the visa.
Therefore the requirements of cl.4020(1) should not be waived.
On the basis of the above, Mr Mohajan does not satisfy public interest criterion 4020 for the purposes of cl.190.216.
DECISION
The tribunal affirms the decision not to grant the applicant a Skilled Nominated (Permanent) visa.
Alan Duri
MemberATTACHMENT
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.
…
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Natural Justice
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