1506362 (Migration)

[2015] AATA 3427

1506362 (Migration) [2015] AATA 3427 (8 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Aditya Vikram Desai
Mrs Shivani Aditya Desai

CASE NUMBER:  1506362

DIBP REFERENCE(S):  BCC2014/2888712

MEMBER:Lisa Lo Piccolo

DATE:8 September 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Skilled Independent (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 189 -  Skilled - Independent visas:

·Public Interest Criterion 4020 for the purposes of cl.189.215 of Schedule 2 to the Regulations.

Statement made on 08 September 2015 at 4:01pm

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 24 April 2015 to refuse to grant the applicants Skilled Independent (Permanent) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 31 October 2014. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl.189.215 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant met Public Interest Criterion 4020(1).

3. The applicants appeared before the Tribunal on 7 September 2015 to give evidence and present arguments.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.189.215 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).

2. 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?

1. 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.

2. 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.

3. 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.

4. In this case, the applicants lodged an application for Skilled Independent (Permanent) (Class SI) subclass 189 visas with the Department on 31 October 2014. In the application, the first named applicant nominated the occupation of Mechanical Engineer. The relevant assessing authority for this occupation is Engineers Australia (Legislative Instrument IMMI 14/048).

5. The applicant lodged a skills assessment from Engineers Australia dated 13 October 2014, for the nominated occupation of Mechanical Engineer with the Department in support of the visa application. The skills assessment indicated that his qualifications are assessed as suitable for migration to Australia under his nominated skilled occupation.

6. In the visa application, the first named applicant stated that he was employed as a Senior Mechanical Engineer with Pankaj Dharkar & Associates (the company). He lodged with the Department an employment certificate dated 31 January 2014 from the company in India. It indicated that he was employed there as Senior Mechanical Engineer from 10 December 2011 to 31 January 2014.

7. The applicants have provided the Tribunal with a copy of the Department’s Decision Record dated 24 April 2014. It indicates that on 20 January 2015 a Departmental officer conducted an investigation to determine the genuineness of the employment declaration and supporting documents.  It indicates that the Departmental officer spoke to an employee at the company who told her that the applicant was at work on the day of the investigation.  It also indicates that she was told from other sources that the applicant was a current employee of the company and was provided with inconsistent information in relation to the applicant’s employment details and duties at the company.  At the time of the telephone call, the applicant had not been in India for more than 11 months.

8. On 10 February 2015, the delegate wrote to the applicants and put the above information to them.  The Delegate stated that the visa application and expression of interest lodged on 24 October 2014 by the applicant declared that the applicant had worked as a senior mechanical engineer at Pankaj Dharkar & Associates between December 2011 and January 2014.  The delegate notes that an employment certificate was submitted to support the declarations and that this information was inconsistent with the information received by the Department on 20 January 2015 (referred to in paragraph 13 above).  The delegate stated that the evidence provided or caused to be provided was a bogus document or false and misleading information in relation to the visa application.

9. On 25 February 2015, the applicants responded by providing the Department with a personal statement and Statutory Declaration, a notarised affidavit from the President of the company confirming the applicant’s employment history, copies of bank statements for the period 2011-2015 showing salary credit from the company, bank statements for the period 2011 to 2015 showing salary credited from the company to the applicant, copies of income tax returns for the periods 2012-2013, 2013-2014 and 2014-2015, a copy of his expression of interest, some correspondence via emails regarding projects undertaken by the company as well as a letter from one client company verifying that the applicant had worked with them whilst employed at the company. 

10. By letter dated 10 May 2015 to the Tribunal, the applicant addressed each of the delegate’s concerns explaining each of the attachments previously sent to the Department.  On 30 August 2015 the applicant submitted additional documents, being documents previously submitted to the Department as well as a further letter signed by the applicant dated 29 August 2015 and a letter dated 25 August 2015 from the President of the company.  In relation to the letter from the company, the applicant told the Tribunal that this was an identical copy of the President’s affidavit submitted to the Department, but was provided in letter form to address the delegate’s concerns.

11. At the hearing, the first named applicant, Mr Aditya Vikram Desai and Mrs Shivani Aditya Desai were present to give evidence.  The Tribunal did not take evidence from the second named applicant.  The Tribunal found the applicant to be a credible and reliable witness.

12. Having reviewed the documentary evidence submitted to the Department and the Tribunal, as well as the applicant’s oral evidence, the Tribunal’s makes the following observations and conclusions:

    (a)The delegate’s view was predicated on a telephone conversation with two persons at the company.  The President of the company has written to the Department explaining that that person is a junior staff member and is not privy to information about employees.  He also said that the employee had informed the consulate that he should speak to the President rather than him.  When the Department continued to ask him questions, he became confused and overwhelmed.  The President also noted that he speaks in the local language and is not proficient in English.  The Tribunal asked the applicant whether he knew the person in question and whether they had worked together.  The applicant told the Tribunal that he knows the employee well and that he is speaks the local Gujarati language.  He said the Department officer spoke to him in English and then in Hindi, neither of which he is confident in. He said the employee knows he lives in Australia and not in Gujarat since February 2014.  In view of the other documentary evidence in this case, the Tribunal accepts this explanation provided by the President of the company and the applicant.  In view of the credible evidence of the applicant and volume of consistent documentary evidence, the Tribunal gives little weight to the Department’s communications with staff at the company on 20 January 2015.

    (b)In a letter dated 16 February 2015 (Tf.28-31) the President also explains that he was out of the office and in an important meeting when the Departmental officer called.  He also states that he asked that he call him at a later time to discuss the issues but the Department person continued to ask questions.  The President states that he told him what he knew from the best of his recollection, but attempted to call the Consulate when he returned to his office and accessed the correct information.  He said he was not permitted to speak to the relevant officer.  In his letter, he confirms that the applicant worked at the company as a senior mechanical engineer between 10 December 2011 and 31 January 2014.  2015.  A statement of ledger showing the applicant’s salary payments was also attached.

    The delegate did not accept this document citing that it lacked reliability because it was not written on company letterhead.  The Tribunal does not share the delegate’s concerns.  The letter has been prepared in the form of an affidavit on stamp paper.  Although the document does not contain an affiant of truth or attestation clause (as an affidavit typically would), it has been notarised and signed by the President before a registered notary.  The Tribunal accepts the applicant’s submission that this is the way important documents are prepared in India.

    (c)The bank statements submitted cover the period 1 December 2010 and 4 February 2014.  The Tribunal accepts that the bank statements show regular income being credited into the applicant’s account between 10 December 2011 and 31 January 2014.  The Tribunal notes the delegate’s concern that there are some differences in the amounts credited to the account. 

    The applicant gave evidence to the Tribunal regarding the alleged differences.  He also addressed these issues at some length in his letter to the Tribunal dated 10 May 2015.  He submitted to the Tribunal that he was paid Rs.40,000 in December 2011 when he started with the company.  This is reflected in the bank statements (and the income ledger).  He then told the Tribunal that the fiscal year in India is from April to March and after his first appraisal in April 2012 his salary increased to Rs.50,000.  This is reflected in the bank statements (and the income ledger).  The Tax Calendar on the Income Tax Department Government of India website confirms that India’s fiscal year is in fact between April and March.  He said that his second and final appraisal occurred in April 2013 when his salary increased to Rs.60,000.  This too is reflected in the bank statements.

    The applicant also told the Tribunal that he received an annual bonus equating to one month’s salary for the festival of Diwali.  The bank statements reflect that this was paid to the applicant in October 2012 and November 2013.  The company ledger also reflects this.   

    Accordingly, the Tribunal is satisfied that the applicant was paid salary for work undertaken by him at the company between 10 December 2011 and 31 January 2014.

    (d)In relation to the income tax reports, the Tribunal notes the delegate’s concerns that the summation of all personal salary in the bank account does not reconcile with the tax assessment particularly for the periods 2012-2014. 

    The Tribunal notes that each tax assessment includes the amount of salary paid and the “TDS”.  The TDS is the Tax Deducted at Source and this is the means of collecting income tax in India as governed under the Indian Income Tax Act of 1961.  The Computation of Total Income is the figure arrived at after calculating all sources of income and deducting all allowable expenses.  The Tribunal notes that the amount of salary amount is different with from the Computation of Total Income, but obviously because the latter is derived it after making numerous other additions and deductions.  The Tribunal accepts that the tax assessments insofar as they refer to the annual amounts of salary received by the applicant from the company match the amounts the company’s ledger says the applicant was paid in each financial year.

    Accordingly, having examined the income tax assessments and the bank statements, the Tribunal is satisfied that the salary from the company in the tax assessment reconciles with the salary received from the company. 

    (e)The applicant has submitted evidence in the form of emails and other correspondence that show he was working on various projects whilst employed at the company.  The delegate was concerned that the emails were not sent to the applicant’s personal email address at the company and referred to “Aditya”.  The delegate was not sure that this was a reference to the applicant.  In addition, a letter was submitted from Architects, Planners, Designers dated 18 February 2015.  That letter was said to be from a client that worked closely with the applicant on a particular project.  The delegate gave less significance to this document since she notes that the signatory was not appropriately identified.

    The Tribunal notes that a copy of the letter dated 18 February 2015 from Architects, Planners & Designers was resubmitted to the Tribunal with a person Anana Tatu identified as the authorised signatory. 

    In addition, the applicant has submitted a number of additional emails and correspondences from his personal email address at the company in relation to projects that he undertook whilst employed at the company.

    Having reviewed each of the emails and correspondences, the Tribunal is satisfied that they were sent or received by the applicant and that the reference to Aditya is a reference to the applicant.  The Tribunal places significant weight on these emails and correspondences, as well as the letter from Architects, Planners, Designers dated 18 February 2015 as evidence that the applicant was employed by the company.

13. Having considered all the evidence, individually and cumulatively, the Tribunal is satisfied that the applicant was employed as Mechanical Engineer at the company. Accordingly, the Tribunal finds that the applicant was employed as Mechanical engineer between 10 December 2010 and 31 January 2015.  Accordingly, the Tribunal finds the work reference from the company dated 31 January 2015 to be genuine. 

14. The Tribunal therefore finds that there is no evidence before it that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, 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 the visa application or a visa held in the 12 months before the visa application was made.

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

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

1. 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). 

2. There is no evidence before the Tribunal to establish that the applicant or any member of the family unit (as defined in r.1.12) has been refused a visa in the relevant period because of a failure to satisfy cl.4020(1)

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

Has the applicant satisfied the identity requirements?

1. Clause 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.  The applicant provided the Tribunal with a certified copy of his Indian passport. It appears to be a genuine passport and corresponded to his bio details.

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

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

1. 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).

2. There is no evidence that the applicant or any member of the family unit (as defined in r.1.12) have been refused a visa in the relevant period.

3. Therefore the applicant meets PIC 4020(2B).

4. On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl.189.215.

DECISION

1. The Tribunal remits the applications for Skilled Independent (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 189 -  Skilled - Independent visas:

   ·Public Interest Criterion 4020 for the purposes of cl.189.215 of Schedule 2 to the Regulations.

Lisa Lo Piccolo
Member

ATTACHMENT

Migration Regulations 1994

Schedule 4

1. (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. 

…