1510858 (Migration)

[2016] AATA 4119

1510858 (Migration) [2016] AATA 4119 (15 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohammed Nadeem

CASE NUMBER:  1510858

DIBP REFERENCE(S):  BCC2009/423597

MEMBER:David McCulloch

DATE:15 July 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 487 (Skilled - Regional Sponsored) visa:

·Public Interest Criterion 4020 for the purposes of cl.487.228 of Schedule 2 to the Regulations.

Statement made on 15 July 2016 at 9:12am

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 9 July 2015 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 3 November 2009. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.487.228 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the failed to satisfy the public interest criterion 4020.

3. The applicant appeared before the Tribunal on 7 July 2016 to give evidence and present arguments. 

4. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.487.228 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).

7. 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?

8. 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: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] dealt with this FCA 274.

9. 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.

10. 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.

11. The applicant provided the Tribunal with a copy of the decision of the delegate refusing the visa. It indicates that the applicant provided a Skills Assessment issued by Trades Recognition Australia dated 2 November 2009. To obtain this Skills Assessment the applicant provided claims to Trades Recognition Australia that he completed 900 hours work experience with ‘Love From India’ (‘the restaurant’). The decision records that on 28 April 2011, Immigration officers visited the owner of the restaurant who reported:

    ·The employer stated that there were no records kept of the hours the applicant worked;

    ·The employer claimed to have signed a reference after the applicant had worked 8 to 9 months on the assumption that he would have completed 900 hours by that time.

12. In response to written information provided by the Department to the applicant dated 10 June 2015 relating to suspected ‘non-genuine’ information, the applicant provided a number of documents. These relevantly included:

    ·A work reference issued by the employer Sunil, dated 29 September 2009. The reference states that the applicant had been employed as a cook from 1 November 2008 until present. It indicates that he had worked 20 hours a week during school days and full time during holidays. It indicates that records show that the applicant had completed more than 920 hours of work experience with guidance and instruction from the head chef. The reference outlines the description of duties and indicates that the applicant is a dedicated and reliable worker.

    ·A Statutory Declaration signed by the applicant dated 22 June 2015. It indicates that the applicant worked more than 900 hours at the restaurant under the training of head chef Sanjay. He indicates that he worked Wednesday, Thursday and Sunday from 6 PM until 10 PM and on Friday and Saturday from 6 PM until 10:30 PM. The applicant indicates that he has tried to contact the proprietor of the restaurant Mr Sunil but that the ownership has changed. He notes that Trades Recognition Australia conducted a telephone check in November 2009 and the applicant was issued with a positive assessment.

    ·Photographs of what the applicant indicates are himself at the restaurant.

13. The Department file contains the full report of the officers who visited the restaurant. The report notes that Sunil was questioned about 16 individuals. He was asked whether they had completed 900 hours of work experience under his employment. The applicant indicated that 14 of those individuals, including the applicant, had completed 900 hours. In two cases he was not sure.

14. The report indicates that the restaurant comprises a small shop with seating for 16 people with a small kitchen capable of holding 2 to 3 cooks. Two employees were observed and Sunil advised that a male employee was the holder of a 457 visa.

15. Provided to the Tribunal was a Statutory Declaration of Mohammed Abdul Qavi dated 29 June 2016. It indicates that the declarant has known the applicant for a long time and they were housemates from 2007 until November 2009. The declarant indicates that the applicant worked at an Indian restaurant called ‘Love from India’. He used to regularly visit the restaurant to get house keys from the applicant. He would sometimes drop the applicant at his workplace on weekdays and weekends in the afternoon and evening. This was approximately between November 2008 to September 2009. At the end of 2009 the applicant relocated to Darwin. The declarant indicates that the applicant is honest and hard-working and it is uncharacteristic of him to provide any false statement or misleading information.

16. The applicant’s adviser provided the following submission to the Tribunal dated 22 June 2016. Relevant parts of the submission follow:

    We act for Mr Nadeem in his application to review to refusal of his subclass 487 visa. The delegate refused the visa application on the basis of her contention that Mr Nadeem had provided misleading information to the skills assessing body in relation to his employment. It is our submission that this finding had no basis, when the evidence supplied by Mr Nadeem is considered in the context of the particular circumstances of his employment and the significant time gap between the cessation of that employment and the department's eventual investigation into his application. It is submitted that the information gathered by the department during the site visit (which is sole basis of the delegate's decision) does not constitute probative evidence that Mr Nadeem had produced false or misleading information to the skills assessing body. The basis for this submission is elaborated below.

    Background and delegate's finding

    Mr Nadeem undertook unpaid work placement as a Cook at Love from India in Burwood, Victoria from November 2008 till September 2009. He instructs that he worked there at least 5 times a week, undertaking shifts of at least 4 hours each day. The details of his placement are contained in the letter from his then employer Sunil, which was provided to Trades Recognition Australia (TRA) for the purposes of skills assessment. TRA found the evidence supplied to be satisfactory. Mr Nadeem lodged his application for a subclass 487 visa on 3 November 2009. As per the delegate's decision record, the department conducted a site visit in April 2011, which revealed that the owner had not kept records of Mr Nadeem's working hours, and had stated that he signed the letter of reference on the assumption that he had completed 900 hours. It was not until four years later, in June 2015 that the department provided this information to Mr Nadeem, asserting that it constituted 'adverse information. Mr Nadeem instructs that upon trying to contact his former employer Sunil, he had discovered that the restaurant had been sold. Mr Nadeem has been unable to contact Sunil and is not aware of his whereabouts. This clearly limited his ability to respond effectively to the matters raised by the department.

    The department seems to have gone on to refuse the visa, solely on the basis of the comments made by Sunil in 2011 to the effect that he did not keep records, and had assumed that Mr Nadeem undertook placement for over 900 hours, The owner's response that he 'assumed' that Mr Nadeem worked for over 900 hours in the restaurant affords no value to the delegate's assertion that Mr Nadeem provided false or misleading information as to the number of hours that he worked. Mr Nadeem instructs (and will confirm in his sworn evidence at hearing) that the owner (Sunil) was always present when he used to work at the restaurant, and there would usually be just one or two other cooks in the kitchen with him. It is entirely plausible therefore, that the owner, having observed Mr Nadeem's work throughout the period from November 2008 to September 2009, was able to ascertain that the number of hours worked amounted to 920 hours at the time of signing the letter. It is our submission that there is no evidence that is of any probative value, to indicate that Mr Nadeem provided false or misleading information. Enclosed with these submissions is also a statement by Mr Nadeem's friend and former housemate Mohammed Abdul Qavi who confirms that he had witnessed Mr Nadeem working at the restaurant in the relevant period.

    Common law principles

    A failure to satisfy PIC 4020 can only arise where there is 'evidence before the Minister' that the applicant produced or caused to be produced false or misleading information in a material particular. The standard of probative value that the evidence must contain has been discussed in the case of Talukder v Minister for Immigration I in which Federal Magistrate Driver held that 'the use of the word "evidence".., establishes that the clause requires something more than the mere existence of information suggestive of falsity. It requires some probative information... 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'.

    In the case of Sharma & Ors v Minister for Immigration and Multicultural Affairs and Citizenship & Anor2, the Federal Circuit Court in interpreting the meaning of 'evidence' in the context of PIC 4020, 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'.

    It is our submission that the information gathered by the department in 2011 is not sufficiently probative to indicate that Mr Nadeem provided or caused to be provided false or misleading information. The Migration Review Tribunal case of INaduge [2014] MRTA 1631 which involved a refusal of visa based on very similar grounds to that of Mr Nadeem is instructive in this regard. It involved a statutory declaration of the previous owner of the restaurant provided to TRA, confirming that the applicant worked as a cook in the restaurant. During the department's checks, the staff interviewed had no knowledge of the applicant and no records were kept. The tribunal found that the checks conducted by the department 'were not probative of whether the applicant had worked as a cook in the business.., evidence only that current management was not acquainted with the applicant or his work in the business'. Similarly in this case, the information gathered from the department's visit to the restaurant goes only to show that the owner did not keep written records. The owner's response that he 'assumed' that Mr Nadeem worked for over 900 hours in the restaurant affords no value to the delegate's assertion that Mr Nadeem provided false or misleading information as to the number of hours that he worked. It is entirely plausible that the owner, having observed Mr Nadeem's work throughout the period from September 2008 to 2009, was able to ascertain that the number of hours worked amounted to 920 hours.

    […]

    Conclusion

    On the basis of the matters submitted above, we submit that there is no basis for the finding that Mr Nadeem submitted false or misleading information, and should therefore be found to meet PIC 4020.

    Hearing, findings and assessment

17. In the hearing, the Tribunal explored with the applicant details of his work at the restaurant. The applicant reiterated that generally he would work five days a week, mostly in the evenings. The restaurant itself was open from 10am with a busy period over lunch. The applicant generally did not work over the lunch period other than on special occasions when he was asked by the owner. The applicant indicated that during his holiday periods he would work extra hours, perhaps an extra 10 hours per week.

18. When the applicant was asked whether he took days off sick or when he had exams, he indicated that he was not sick during this period. He did refer to taking a day off here and there for exams but indicated that mostly exams were in the morning, and he was working in the evening. He added that he did not take any holidays which stopped him working at the restaurant.

19. The applicant indicated that he did not know the importance of keeping a record of his hours. He indicated that the owner used to record details of staff movements including paid staff. He thought that the owner might have kept records of his hours.

20. The Tribunal explored with the applicant the other staff who worked in the restaurant. In addition to the owner, there were three staff in the kitchen and one counter staff. The applicant said there was some degree of rotation amongst the kitchen staff while he was there.  The applicant indicated that he was not aware whether the other staff were working voluntarily like himself as this was a personal matter.

21. The Tribunal explored with the applicant circumstances of him obtaining the reference from Sunil dated 29 September 2009. The applicant indicated that it was based on discussion of the applicant having been there for a period such that he would have worked more than 900 hours. The Tribunal pointed out the specific statement in the reference that the applicant had worked more than 920 hours were based on records. When it was pointed out that this was inconsistent with what the owner told the Department, that there were no records, the applicant said that the owner was old and forgetful. When the Tribunal asked the applicant if he was saying that the owner might have forgotten that he kept records, the applicant said that this was possible.

22. Both the applicant and the adviser commented on the prejudice to the applicant in seeking to establish his work at the restaurant due to the fact that there was a four-year gap from the Departmental visit to the restaurant gathering adverse information, to this adverse information being put to the applicant. Reference was made to this delay making it difficult or impossible for the applicant to obtain evidence that he may have obtained at an earlier point in time to prove that he worked at the restaurant for the period and hours claimed. The applicant has indicated that he has tried to contact the owner but without success because the restaurant has been sold. The applicant indicated that had the adverse information been provided to him earlier he would have able to have obtained supporting statements from fellow employees.

23. In terms of oral evidence in the hearing, the Tribunal found the applicant reasonably convincing in his accounts of working at the restaurant and hours worked. The Tribunal notes the Statutory Declaration provided by Mr Qavi which provided some corroborative evidence that the applicant worked at the restaurant, although as the flatmate of the applicant, he is in a position to provide, and nor has he provided, detailed evidence as to the applicant’s specific working hours.

24. The Tribunal considers that the applicant and the adviser make a reasonable point as to the difficulty of providing proof, many years after the event, as to specific details of hours worked.  Nevertheless, the Tribunal finds it lax of the applicant not to have kept a log of hours worked or have ensured that a record was being kept by the owner.

25. The Tribunal is not satisfied that the indication by the owner to the Department that he had certified the applicant had worked more than 900 hours based on his assumption is a basis to suggest that the statement is false or misleading. It is entirely plausible that the owner of a small business would have a good idea in his head of hours worked by his staff and the period over which they had worked.

26. The information on the Departmental file indicating that the Department asked the owner of the restaurant about 16 individuals, including the applicant, who presumably had claimed to have worked at the restaurant for 900 hours, might cause some suspicion as to the genuineness of testimonials provided by the restaurant given the small number of staff that worked at the restaurant and the large number of individuals who potentially claimed to have  worked there. However, there is no definitive information that these individuals had claimed to have worked these hours at the restaurant (it is simply an inference) and there are no timeframes of employment in which the claims are made. Given those deficiencies, the Tribunal is not in a position to draw an adverse inference based on that information. 

1. The Tribunal does have some difficulty, however, with the statement in the reference that the indication of hours worked was based on records, given inconsistent information provided by the owner to the Department that it was based on an assumption of hours worked. The Tribunal has some scepticism with the applicant’s claim that the owner was old and forgetful may have forgotten that he had kept records.  

2. However, the Tribunal acknowledges the difficulty the applicant has faced, given the delay of many years in the provision of the adverse information to him, in seeking to obtain clarifying evidence from either the owner or others as to the keeping of records, informal or otherwise, or seeking to establish more clearly from the owner the basis on which the owner provided the reference.

3. On balance, the Tribunal is prepared to give the applicant the benefit of the doubt and to accept that he did work at the restaurant over the period and for the hours claimed, and worked for more than 900 hours. The Tribunal is not satisfied therefore that the reference that has been provided by the owner of the restaurant indicating that the applicant worked more than 900 hours is false or misleading in a material particular.

4. While the indication in the reference to the hours worked being based on records could well be loose language or even somewhat disingenuous, the Tribunal is not prepared to find that the reference, considered as a whole, is false or misleading. The Tribunal gives the applicant some benefit of the doubt given the difficulties he has faced in obtaining evidence based on the very significant delay in the adverse information being provided to him.

5. In summary, the Tribunal is not satisfied that the applicant has provided as per cl.4020(1) a bogus document or information that is false or misleading in a material particular.

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

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

7. 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). 

8. The Tribunal has no evidence that the applicant has previously been refused a visa due to a failure to satisfy cl.4020(1).  The Tribunal is satisfied that the applicant has not previously been refused a visa on such a basis. Therefore, cl.4020(2) is met.

   Has the applicant satisfied the identity requirements?

9. Clause 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.  The Tribunal is satisfied on the evidence before the Department and the Tribunal that the applicant has established his identity and therefore the applicant meets cl.4020(2A).

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

10. 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).

11. The Tribunal has no evidence that the applicant or a member of the same family unit have previously been refused a visa due to a failure to satisfy cl.4020(2A).  The Tribunal is satisfied that the applicant has not previously been refused a visa on such a basis.

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

13. On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl.487.228.

    DECISION

14. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 487 (Skilled - Regional Sponsored) visa:

    ·Public Interest Criterion 4020 for the purposes of cl.487.228 of Schedule 2 to the Regulations.

    David McCulloch
    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 the 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. 

    …