1511509 (Migration)

[2016] AATA 4209

1511509 (Migration) [2016] AATA 4209 (28 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  Noble Mathew Thomas

CASE NUMBER:  1511509

DIBP REFERENCE(S):  BCC2014/1075455

MEMBER:Mary Cameron

DATE:28 July 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Skilled Independent (Permanent) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 189 - Skilled - Independent visa:

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

Statement made on 28 July 2016 at 4:46pm

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 3 August 2015 to refuse to grant the applicant a Skilled Independent (Permanent) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 28 April 2014. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.189.215 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate found that the applicant had given, or caused to be given, a bogus document in relation to his visa application and therefore did not satisfy PIC 4020(1) for the purposes of cl.189.215.

3. The applicant appeared before the Tribunal on 31 May 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Dr Biju Thomas and Usha S. Nair. The Tribunal hearing was conducted with the assistance of an interpreter in the Malayalam and English languages.

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.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).

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: Arora v MIBP [2016] FCAFC 35; 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 this case the applicant lodged his visa application for a Skilled Independent (Permanent) (Class SI) Subclass 189 on 28 April 2014. In support of the application he provided a number of documents attesting to his claimed employment at Erattu Multi-Specialty Hospital and Geriatric Care Centre in Kerala, India. These comprised 

    ● A letter on the letterhead of Erattu Multi Specialty Hospital & Geriatric Care Centre

    dated 4 October 2013, titled “TO WHOM SO EVER IT MAY CONCERN”, signed by

    Dr Vinu Abraham, Medical Director. This letter certifies the applicant’s employment at Erattu Multi Specialty Hospital & Geriatric Care Centre from 10 February 2010 to 1 February 2013 and lists his salary as Rs. 6500 including all perks per month by hand.

    ● A statement from the applicant that he received his salary by hand and signed on the Hospital Register. He therefore did not have any payslips or bank statements.

    ● A statement from the applicant that as his annual salary was less than 70000 Indian Rupees he was not required to submit a tax return.

    ● A letter from a chartered accountant dated 16 June 2014 certifying the applicant’s  salary for the financial years 2009-10 to 2013-14 as per his salary certificates. This letter also states that he was not required to file a tax return as his salary was below the taxable limit.

    ● A salary certificate on the letterhead of Erattu Multi Specialty Hospital & Geriatric Care Centre dated 11 June 2014, signed by Dr Vinu Abraham, Medical Director, listing the applicant’s earnings, deductions and net pay from 1 February 2010 to January 2013.

11. According to the delegate’s decision record, a copy of which the applicant provided to the Tribunal with the review application, verification checks on the applicant’s claimed employment at Errattu Multi-Specialty Hospital and Geriatric Care Centre were undertaken by the Department on 24 July 2014, 4 March 2015 and 1 May 2015 through internet checks and phone calls to the hospital and to the applicant.

12. On 19 August 2014, 25 March 2015 and 6 May 2015 a case officer put information obtained in the verification checks to the applicant and invited him to comment on the information.

13. The applicant responded on 20 August 2014, 26 August 2014, 20 April 2015 and 31 May 2015 and provided statements dealing with the inconsistencies and concerns raised by the case officer; a ‘screen dump’ from a telephone carrier showing the number of the hospital; photographs of the hospital and its’ surrounds; a telephone bill from the hospital showing its’ address and phone number; a letter dated 15 April 2015 from a member of parliament stating that the hospital is functioning; an undated letter from the president of Aranmula Grama Panchayat advising that the hospital had been operating from March 2000; photographs of an attendance register; a reference from the applicant’s cousin Dr Biju Thomas who advised that he is an Australian citizen, and a reference from a work colleague in Australia.

14. After considering all of the available evidence the delegate was satisfied that two documents provided by the applicant, dated 4 October 2013 and 11 June 2014 and purporting to be signed by Dr Vinu Abraham, the Medical Director of the Erattu Multi-Specialty Hospital and Geriatric Care Centre were bogus documents, and therefore that the applicant did not satisfy PIC 4020(1). In so finding, the delegate gave significant weight to telephone conversations conducted with a person who the delegate accepted as being Dr Vinu Abraham, although the applicant had submitted that the person could not have been Dr Abraham because Dr Abraham was not in India at the time when a Departmental officer purportedly contacted him by telephone at the Erattu Multi-Specialty Hospital and Geriatric Care Centre in Kerala.

15. The delegate went on to find that there were no compassionate or compelling circumstances in the case that might justify the grant of the visa, and therefore that PIC 4020 (1)(a) was not waived.

16. In support of the review application the applicant provided a detailed written submission and supporting documents.

17. According to the applicant’s submission all of the documents he provided are genuine and he did not provide any bogus documents or false information at any stage, and that while it is true that the Department experienced some difficulties during the verification process, the suggestion that the applicant provided bogus documents is absolutely wrong.

18. According to his submission the applicant graduated in nursing from NDRK College of Nursing in India in 2008. He worked at Neelachal Institute of Medical Sciences, Bhubanerwar, India as an assistant lecturer in nursing from 4 December 2008 until 8 December 2009. He then worked at Erattu Multi-Specialty Hospital and Geriatric Care Centre (Erattu Hospital) in Kerala from 4 March 2010 to 1 February 2013. He worked at Indira Gandhi Cooperative Hospital, Kerala from 4 March 2013 until 1 July 2013. He arrived in Australia on 10 July 2013 and completed a bridging course for nursing registration between 15 July 2013 and 20 September 2013. He received his skills assessment in February 2014 after receiving full registration from AHPRA as a registered nurse in November 2013. He has worked continuously in Australia since completing his studies.

19. According to his submission the applicant submitted all of the necessary documents with his application. The Department initially did not believe that the Erattu Hospital existed. It is a small scale hospital in a rural area of Kerala, largely managed at the time by the Director, Dr Vinu Abraham. However after the applicant provided numerous documents including photographs the Department accepted that the facility did in fact exist. In regard to the verification of the documents provided by the applicant to the Department, it is the applicant’s submission that the Departmental officer spoke to a person at the hospital who was not Dr Abraham and the information provided by that person did not satisfy the Departmental officer.

20. According to the applicant’s submission, the Departmental officer assumed that he or she had spoken to Dr Abraham in India on 4 March 2015 whereas in fact Dr Abraham had travelled to the United States in December 2014 and was not in India at the relevant time. The officer had spoken to someone else at the hospital who did not speak Hindi very well. The applicant requested and was provided with a copy of the passport of Dr Abraham showing that he was not in India in March 2014, and Dr Abraham confirmed to the applicant that he did not speak to any Departmental officer.  Dr Abraham had told him that he was willing to provide evidence, but he cannot do so as he passed away in Houston in December 2015. Since his death the name of the Erattu Hospital has been changed to Kidangannur Medical Centre.

21. According to the applicant’s submission, he explained to the Department on multiple occasions that the genuine-ness of his documents can be proved by directly checking them against registers maintained by the hospital or by talking to the hospital director or another responsible person. His submission provides the names and backgrounds of several witnesses, and accompanying his submission are copies of several pages of the passport of Dr Vinu Abraham; copies of newspaper death notices of Dr Vinu Abraham; and telephone records indicating several telephone calls from Dr Biju Thomas (who is the applicant’s cousin and an Australian citizen) to Dr Vinu Abraham in the USA.

22. In support of the review application the applicant also provided copies of very comprehensive submissions he provided to the Department.

23. At the Tribunal hearing applicant gave evidence that he worked at Erattu Hospital between 2010 and 2013, and later at another hospital in Kerala before arriving in Australia in July 2013. In the course of obtaining his skills assessment for the purposes of the visa application he needed a certificate in particular format, and he rang Dr Vinu Abraham in the latter half of 2013, around August or September to provide that certificate. At that time Dr Abraham was the Director of the Erattu Hospital. Dr Abraham provided the certificate to the applicant’s brother who sent it to him. The applicant was subsequently invited to apply for the Subclass 189 visa and did so on 28 April 2014.

24. The applicant told the Tribunal that during the visa application process he was asked questions about how his salary was paid in India. Because he was paid in cash he had difficulty proving this, so he asked Dr Abraham to provide a written statement about his pay, which he did, again providing the document to the applicant’s brother who then sent it to him in June 2014. Dr Abraham subsequently relocated to Houston, Texas in the USA in December 2014 and where he died in 2015.

25. The applicant described his more recent attempts to contact Dr Abraham and his discovery, assisted by his brother in Kerala, that Dr Abraham was deceased.

26. The applicant told the Tribunal that the person to who a Departmental officer spoke at the Erattu Hospital could not have been Dr Vinu Abraham because Dr Abraham was in the USA at the time, and that this is verified by the entry and exit records contained in his passport.

27. The Tribunal queried why a person at the Erattu Hospital would pretend to be Dr Abraham if they were not. The applicant responded that he made enquiries with the hospital himself about this matter, and was told that no-one had contacted the hospital about the applicant, but that at some time an anonymous caller had made enquiries about Dr Abraham, asking whether he still worked at the Erattu Hospital or not. The applicant had subsequently rung Dr Abraham in the USA, who then provided the applicant with a copy of his passport to prove his whereabouts at the relevant time.

28. The Tribunal asked the applicant why he had not obtained a written statement from Dr Abraham. He responded that he had thought that the Department would contact Dr Abraham directly as he had provided the Department with his phone number and other contact details in the USA.

29. The applicant told the Tribunal that the problems in the case have arisen because of the nature of the Erattu Hospital which was a small regional facility without a proper website, structured to meet the needs of the local people. He explained that he had obtained all of the evidence from the hospital that he possibly could.

30. The Tribunal heard evidence from Dr Biju Thomas who is the applicant’s cousin, and who is an Australian citizen and a practising psychiatrist. The witness told the Tribunal that he spoke to Dr Vinu Abraham for the first time in April 2014 in relation to the problems the applicant was having with his visa application, because the applicant had asked for his assistance. The witness did this, in part, because the applicant himself was anxious about asking a doctor to provide material on his behalf because the applicant himself is ‘only a nurse’. The witness explained that this issue of status needs to be understood in the context of Indian culture which is enormously hierarchical.

31. The witness told the Tribunal that he had had a very open discussion with Dr Abraham about the applicant’s problems. The witness has provided a written submission to the Department in which he states that during their conversation Dr Abraham expressed surprise that the applicant’s credentials regarding his work at the Erattu Hospital had been questioned, and had reiterated that the hospital has issued genuine documents about the applicant. He told the witness that he had not received any telephone calls from the Department. He also confirmed that the applicant had worked at Erattu Hospital for three years. He had told the witness that the hospital is currently being run by other people but that he intended to again take charge of it when he returned to India.  The witness told the Tribunal that they also spoke about Dr Abraham’s situation in the USA. He had told Dr Thomas about feeling lonely in the USA away from his country and familiar culture.

32. The Tribunal discussed with the witness why a person at the Erattu Hospital, not being Dr Abraham, would, when responding to a telephone call from a Departmental officer, provide inaccurate information. The witness stated that that the Departmental officer contacting the hospital has recorded that they spoke in Hindi. He stated that there seems to have been an assumption that people could speak Hindi when they couldn’t, as every state in India has its own language, which in Kerala in Malayalam. He does not think that the person to whom the Department spoke understood what he or she was being asked.

33. The Tribunal heard evidence by telephone from Usha Nair who told the Tribunal that she was the Director of Nursing at the Erattu Hospital in Kerala when the applicant was working there. She told the Tribunal that she remembers the applicant well and that she recalls that he worked at the hospital from approximately 2010 until 2013. She stated that the applicant was in the intensive care unit and the paediatric ward working as a staff nurse. She was also a staff nurse at the hospital, but it has now closed down as the Medical Director Dr Vinu Abraham has passed away. The witness told the Tribunal that Dr Abraham died ‘last December’.  She stated that he died in the USA where he had gone to work about a year before his death.

34. Based on all of the evidence contained in the applicant’s submissions to the Department and the Tribunal, together with the oral evidence of the applicant and the witnesses, the Tribunal accepts that the applicant was employed as a staff nurse at the Erattu Multi-Specialty Hospital and Geriatric Care Centre (Erattu Hospital) in Kerala from 4 March 2010 to 1 February 2013.

35. The Tribunal understands the delegate’s different conclusions given the results of the telephone enquiries made with the Erattu Hospital in March 2015, however the Tribunal is satisfied that the Departmental officer did not in fact speak to Dr Vinu Abraham as he or she believed, because Dr Abraham had departed India in December 2014, as is evidenced by his passport, and was living and working in Houston in the USA at the relevant time.

36. The applicant himself has acknowledged the difficulty in verifying his employment experience given the lack of corroborative documents in the nature of pay advices or tax records. However he has provided the Tribunal with a number of photographs of extracts from a Register of Wages in his name for the relevant period, and his documentary and oral evidence has been wholly consistent. That evidence is supported by the consistent written and oral evidence of Dr Biju Nelson who has stated that his discussion with Dr Vinu Abraham clearly indicated that the various documents issued by Erattu Hospital for the applicant are genuine.

37. The applicant’s evidence is also consistent with that of Usha Nair whose evidence is that she was the Director of Nursing at Erattu Hospital during the period when the applicant worked there. The evidence of the provision of a bogus document was almost entirely comprised of inconsistencies in the information provided by the applicant compared with that obtained during verification checks made by a Departmental officer. However the Tribunal is satisfied based on the passport of Dr Vinu Abram that the person with whom the Department spoke in the course of the verification check was not Dr Abraham, and therefore not a person who could have provided the correct information.

1. The Tribunal notes that the meaning of ‘evidence’ in the context of PIC 4020 was expressly considered in Sharma v MIMAC [2013] FCCA 1280, in which the Court stated that the word ‘evidence’ is used to impose a requirement that whatever facts are conveyed by the material relied upon to establish, that information given in connection with the application for a visa was false or misleading in a material particular, they must be facts that are sufficiently probative to lead to that conclusion. On the evidence available, the Tribunal cannot be satisfied there was probative evidence that the two documents provided by the applicant dated 4 October 2013 (a letter certifying the applicant’s employment at Erattu Hospital) and 11 July 2014 (A statement of the applicant’s earnings, deductions and net pay) and purported to be signed by Dr Vinu Abraham, the then Medical Director of Erattu hospital, are bogus documents in respect of the applicant’s work experience at the hospital.

2. Therefore the Tribunal is not satisfied that there was probative 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.

3. Therefore, the applicant meets PIC 4020(1).

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

4. 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).

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

   Has the applicant satisfied the identity requirements?

6. Clause 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity. The applicant provided the Department with a certified copy of his Indian passport. There is no material to suggest that the passport is not genuine. Therefore, the applicant meets cl.4020(2A).

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

7. 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).

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

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

   DECISION

10. The Tribunal remits the application for a Skilled Independent (Permanent) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 189 -  Skilled - Independent visa:

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

    Mary Cameron
    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. 

    …