1513355 (Migration)

[2016] AATA 4425

1513355 (Migration) [2016] AATA 4425 (19 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr NAGENDRA KALYAN KRISHNA BHATLAPENUMARTHY
Ms RAMYASHILPA KOMARRAJU

CASE NUMBER:  1513355

DIBP REFERENCE(S):  BCC2015/858555

MEMBER:Rania Skaros

DATE:19 September 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) visas.

Statement made on 19 September 2016 at 12:11pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 18 September 2015 to refuse to grant the applicants Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 17 March 2015. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl.186.213(1) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant met the requirements in PIC 4020.

3. The applicants appeared before the Tribunal on 22 February 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Nadia Pengpaitoon, the HR Manager of Le Montage (Navarra Venues) where the applicant is currently employed. The applicant also provided a list of persons and their telephone numbers. A number of those people could not be reached at the time of the hearing, however, the Tribunal was able to take evidence from the following people by telephone; chef Venkat, Mr Clement and Ms Ahalya.

4. The Tribunal notes that the hearing for this matter was held concurrently with another matter the applicants had before the Tribunal (MRT: 1515114).

5. The applicants were represented in relation to the review by their registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Summary of claims and evidence

7. The applicant indicated in his visa application that he worked for the Golconda Hotel in India between 9 March 2009 and 10 February 2013. The following documents were provided with the application; a work reference, an offer of letter dated 6 March 2009, appointment letter dated 9 March 2009 and pay slips dated between August 2012 and January 2013. These documents were sent to the Department’s offshore post for verification. The decision record, a copy of which was provided to the Tribunal, indicates that the Department was informed by the Golkonda Hotel that the applicant was not employed by them in the stated period.

8. The applicant was invited by the delegate to comment on the adverse information but did not respond.

9. On review, the Tribunal received a statement from the applicant detailing his career history and work experience, including at the Golkonda. The applicant provided a detailed description of the layout of the hotel, its various restaurants and the cuisines they offer, the various commercial kitchens and the number of cooks and chefs employed as part of the kitchen operations. He claimed to have worked with a number of chefs at the hotel, including chef Venkat, and provided details of his claimed duties as a sous chef at the hotel. The applicant provided a number of printouts from the website of the Golkonda, including pages regarding chef Venkat and management of the hotel receiving various awards.

10. The applicant also provided various documents issued by his current employer Navarra Venues, including an organisational chart, employment offer and event forecast report.

11. At the hearing the applicant provided details of his education and work experience. He gave evidence that after completing studies in Australia he returned to India in 2008. He gave evidence that he had an interview with the Golkonda in February 2009 with Ms Ahalya and Mr Rohit Sharma. He said he then went to meet the chefs to chat about his experience and then got an offer letter. He said his salary was Rps 16,000 paid monthly by cash or cheque. He said he worked for 5.5 days. On a full day he had two shifts, from 6.00am to 3.00pm and from 5.00pm to 10.30pm. Wednesday was his day off and Monday was his half day. He claimed to have started working in the Indian and South Indian section and to have later worked in the continental section.

12. The Tribunal put to the applicant that his evidence about his hours of work and how his wages were paid appeared inconsistent with written material before the Tribunal. It noted that the payslips he provided records his bank account details which suggests he was paid by bank deposit. He stated that maybe the IT companies in India paid their staff by direct deposit but private companies in India like the Golkonda always paid wages in cash. He claimed that the Golkonda took their account details for taxation purposes only but never deposited the money in the bank. He said the tax statements also included his bank account details.

13. The Tribunal noted that according to his appointment letter the regular working hours is Monday to Saturday from 9:00am to 6:00pm and that this is inconsistent with the hours he claimed to have worked. He said that it was the hospitality industry and that no hotel or restaurant is open for just those hours. The Tribunal indicated that it is difficult to believe that the Golkonda Hotel, given the size of its operations, would provide employment terms that did not match the actual hours of work. The applicant stated that there were heavy management changes which led to inconsistencies in the management of the hotel.

14. The Tribunal noted that the detailed description he provided about the Golkonda Hotel is information that could have easily been obtained from the internet given the size and operations of that hotel, and that the information may not necessarily demonstrate that he did in fact work there as claimed. He said he can describe the lobby which has antique pieces and the layout of the restaurants which would not be available on the internet.

15. The Tribunal put to the applicant that there was no independent verifiable evidence to support his claim to have worked for the Golkonda Hotel and that all the documents he provided he claims were issued to him by the hotel which is in dispute. It noted that he has not provided any of his bank statement or other independent documents. The Tribunal discussed with the applicant the adverse information obtained by the Department’s offshore post which indicated that he never worked for the Golkonda and that the employment documents he presented were not authorised by the Golkonda.  He claimed that he had a problem with one of the Directors who tried to threaten him but he did not make a police complaint.

16. In relation to the documents, the applicant stated that Mr Rohit Sharma left 6 months after he started there and that the documents are all genuine and that he provided the same documents when he applied for the 457 and when he applied for the TRA. The applicant stated that he could have applied for a visa under his wife’s name and could have waited for the two years to apply so there was no reason for him to provide non-genuine documents. He stated that he is looking for a professional career in Australia. He left the Golkonda in February 2013 and then worked there on a casual basis for the hotel because he was planning to have a restaurant with a friend but got an offer to work in Australia.

17. The representative requested the Tribunal to ask the applicant more questions about his employment at the Golkonda, which the Tribunal did. In response, the applicant gave evidence that he was involved with a lot of food festivals as part of his work at the hotel and went on to describe those events.

18. During the hearing the Tribunal called the Golkonda hotel and took evidence from chef Venkat. Mr Venkat gave evidence that he is the Executive Chef at the hotel and has been in that position with the Golkonda for the last 10 years. He said that the applicant had worked with him from about 5 or 6 years back and that he worked as a department head responsible for the kitchens operations. He said the applicant was employed there for about 3 to 4 years. He said the applicant worked approximately 9 to 10 hours a day and was in charge of the hotel’s Continental cuisine. He could not provide information about the applicant’s wages or how he got paid.

19. The Tribunal clarified with the applicant that he had earlier indicated that he also got paid by cheque and asked him what he did with those cheques. He stated that he deposited them in the bank. When asked if he could provide evidence of those cheques he said it was a long time ago.

20. The Tribunal took evidence from Ms Ahalya. She told the Tribunal that she was the Executive Secretary to the Managing Director at the Golkonda and that she had worked for the Golkonda for the last 18 years. She left in 2015. She gave evidence that she knew the review applicant and that he worked in the kitchen operations area of the hotel. She thinks he may have commenced work sometime in 2008 and recalls that he worked there for about 3 years but not more than 4 years. She gave evidence that HR keeps records of all employees and would have had records of the applicant’s employment. She gave evidence that she was paid by the Golkonda through bank deposit and that the hotel sometimes gave vouchers in addition to the salary. She gave evidence that employees were paid by bank deposit and that only those who did not have bank accounts were paid by cheque.

21. The Tribunal put to the applicant that his documents indicate that he had a bank account and that this was inconsistent with Ms Ahalya’s evidence that the Golkonda paid its staff by bank deposit and that it was only those without a bank account that were paid by cheque. He said that there were employees that were paid by cheque and that she mentioned that his salary is by deposit cheque and by cash voucher. The Tribunal noted that Ms Ahalya stated that the vouchers were in addition to the salary and that it considered the evidence not to be consistent with his evidence. The applicant stated that the account number was only for taxation purposes. The representative submitted that perhaps different sections of the hotel got paid differently.

22. The Tribunal then took evidence from Mr Clement. He told the Tribunal that he is now retired but had worked in the Golkonda hotel for over 10 years in the marketing department. He knows the applicant from his employment at the Golkonda hotel and that he can confirm that the applicant worked in the production section of the hotel. He said that he himself was not involved in the production section and is not able to give much detail about the applicant’s actual duties.

23. The Tribunal explained to the applicant the requirement in PIC 4020. The Tribunal explained to the applicant that the outcome of verification checks of his employment suggest that there is evidence that he provided bogus documents relating to that employment. He stated that according to him he has only ever provided genuine documents which he has been given by the company.

24. The Tribunal explained to the applicant that if it finds he has been given a bogus document it has the discretion to waive the requirement in PIC 4020(1) in certain circumstances. It discussed the waiver provision with him and asked him if he wished to make any submission in respect of the waiver. He indicated he did not have anything to say though the representative noted that the employer’s evidence would also be relevant to the waiver.

25. The Tribunal took evidence from Ms Pengpaitoon. She referred the Tribunal to the record of events document. She stated that the business requires a lot from a chef, they need to be adaptable and reliable and that it is difficult to find chefs that are able to do this role.  She gave evidence that the business has been operating since 1997 and that the applicant had worked there in 2005 on a casual basis for 3 years. He returned to his home country and came back on the 457 through another employer and that they were happy to take him on full time since 2015. She said the applicant looks after the rostering for kitchen-hands and they can rely on him to run functions. She said they rely on all their chefs in different locations to run functions. The business has 5 venue rooms that can operate all at one time.

26. The representative submitted that weddings and functions were lifetime events of many people and that the interest of Australians is demonstrated because if the employer did not have good chefs the experience of Australian citizens would be ruined. It was in Australia’s interest to provide high quality service as chefs are the backbone of the business.

27. The representative agreed for the Tribunal to take evidence from the applicant’s spouse and she was sworn in to give evidence. Ms Komarraju claimed that when they married the applicant was working at the Golkonda. She stated that she does not know anyone that the applicant worked with at the Golkonda. She said the applicant used to leave the house for work at 7:00am and they returned together at 11:00pm after he picked her up from her work at ADP. When asked if she knows how much he gets paid, she stated she did not. When asked how he got paid, she said he got paid in the bank account but she does not interfere with his finances. She said he has an account with SBH (State Bank of Hyderabad). When asked if he has other bank accounts she said she is not sure. When asked how she knows he got paid by bank account, she said because that is how Indian companies pay their workers). When asked how she knows he got paid by bank deposit, she said because she had never seen him carry cash. She said they did not interfere with each other’s financial matters.

28. The Tribunal put to the applicant the inconsistencies in the evidence between him and his spouse about how he got paid and his hours of work. In response he stated that he has an account with SBH bank and Syndicate bank. The Tribunal requested the applicant provide copies of his bank account statements. He said the hospitality field requires people to start working at different times.

29. After the hearing the Tribunal received submissions together with copies of Indian Income Tax Return Verification forms and bank statements for the applicant. The four tax returns were for the assessment years between 2009/2010 and 2012/2013 and were dated 24 February 2016. The SBH bank account and Syndicate bank account statements were dated between 2011 and 2016 and showed various amounts of irregular cash deposits and fund transfers. 

30. In the submission the representative stated that the evidence of Ms Komarraju regarding how the applicant got paid must not be taken as a credible statement because it is inconsistent with the applicant’s evidence and because she had also stated she did not see her husband’s statement and her evidence was based on an assumption about how people were paid in India. It was submitted that Komarraju’s evidence was not intentional as she was not prepared to give evidence during the hearing.

31. Subsequently, the Tribunal requested the Department’s overseas post to conduct further verification. It forward to the Department the applicant’s Indian tax return verification forms, the letter of support from Ms Ahalya that the applicant provided to the Tribunal, a summary of chef Venkat’s evidence at the hearing and the employment documents relating to the applicant’s claimed employment at the Golkonda.

32. The further advice received from the overseas post again suggested that the applicant had provided false documents and false and misleading information about his employment at the Golkonda. Some of the documents received were subject to s.375A and could not be released to the applicant, nevertheless, the Tribunal particularised the information in considerable detail in a letter under s.359A of the Act so that the applicant had a fair opportunity to respond to the adverse information.

33. The information, together with other information that was of concern to the Tribunal, was particularised in the s.359A letter as follows:  

    The particulars of the information are:

    1. Ms Ahalya, who claimed to have worked for the Golkonda Hotel for 18 years as the MD Executive Secretary, gave evidence at the hearing that the Golkonda Hotel normally paid salaries to its staff via bank deposit. She noted that additional benefits, in addition to the salary, were sometimes given as voucher payments. She also stated that persons that did not have a bank account were paid by cheque. However, you have provided evidence of having a bank account (which is noted on the payslips you provided) but gave evidence that the hearing that you were nevertheless paid in cash by the Golkonda Hotel.
    2. Ms Komarraju, your spouse, told the Tribunal that you were paid by bank deposit into your bank account. She then stated that she believed this to be so because you never got cash. However, you gave evidence at the hearing that you were paid by the Golkonda in cash despite payslips indicating details of a bank account. 
    3. Ms Komarraju also told the Tribunal that you used to leave your house at 7.00am to go to work at the hotel. However, you told the Tribunal that your morning shift starts at 6.00am.
    4. At the hearing the Tribunal received oral evidence by telephone from chef Venkat who stated that he is the Executive Chef at the Golkonda Hotel. Chef Venkat told the Tribunal that you worked at the Golkonda Hotel for about 3 to 4 years from about 5 or 6 years back. The Tribunal requested further checks be undertaken of your employment documents by the overseas post and provided further information and details, including details of chef Venkat’s evidence at the hearing that indicated you had worked at the Golkonda, the employment letter from Ms Ahalya dated 3 October 2015 that you provided to the Tribunal, the four income tax certificates (Form 16) you claimed were issued by the Golkonda for the assessment years from 2009 to 2013 and your Indian Income Tax Return Verification forms for the same years.
    5. On 8 April 2016 the overseas post received information from the Finance Manager of the Golkonda Hotel who stated as follows:

    ·That the copy of the the Golkonda Hotel Offer and Appointment Letter in relation to you was not issued by the Company.

    ·That the copy of the Golkonda Hotel Service Certificate in relation to you was not issued by the Company.

    ·That the copies of the payslips noting your name were not issued by the Company.

    ·That the copies of the Forms 16 in relation to you were not issued by the Company.

    ·Name of the Employer as shown on Forms 16 was never The Golkonda Hyderabad.

    ·PAN and TAN number as shown in Forms 16 does not relate to our Company.

    ·There was no one by name Subba Rao as a Director of the company who attested Form 16.

    In addition to the above the Finance Manager provided a number of supporting documents, relevantly including;

    ·PAN (permanent account number) issued by the Income Tax Department – Govt of India which were not consistent with the PAN numbers indicated in your tax documents.

    ·The Company’s Professional Tax Registration certificate issued by the Government of Andhra Pradesh (AP) indicating the Company’s full name and registration under that jurisdiction.

    ·Examples of standard payslips issued by the Company which had limited resemblance to the payslips you provided.

    ·TDS (Tax) Return for the Company detailing its TAN and PAN numbers which were not the same as the TAN and PAN numbers on your tax documents.

    ·A letter from Mr K Venkateswara Rao (Chef Venkat), the Executive Sous Chef, stating that he had provided wrong information about your employment due to the influence of an ex-employee by the name of Ms Ahalya. He stated that Ms Ahalya requested him to certify the verification of your employment so you do not miss the ‘green card’ opportunity and that on humanitarian grounds he certified wrongly your employment details. He stated that no such person (B.N. Kalyan Krishna) has worked for the organisation and he did not take any money or bribe for doing this and he apologises for the wrong certification.

    6. The Finance Manager also made the following relevant observations; that the professional tax applicable in AP does not exceed Rs. 200 per month whereas the payslips you provided indicate Rs. 700 per month. Also, the Provident Fund account number was not shown in your documents and that information could be obtained from the Provident Fund Office.
    7. The overseas post also made the following relevant observations; that income tax returns, such as those provided by you, are documents that can be filed by any individual and no employment checks are conducted by any tax officials. It was also observed that your documents were all filed on the same date of 24/02/2016. The Tribunal also observed that for the tax assessment year 2012-2013 the date shown is 24 June 2016.  

1. In response the applicant provided a statement and documents. In the statement he said that it is common for people to be paid by cash and that Ms Ahalya gave an official statement and that many of the small salaried people got paid by cash which she missed.

2. He stated that his wife does not get involved in his financial matters and because she was working for an international company she assumed his salary was paid by bank deposit. He stated that his wife had told the Tribunal that she does not know how much he was getting paid. He stated that the bank details on his payslips were for taxation purposes. He stated that he has flexibility in his hours of work depending on the workload back in India and Australia. He stated that he has had personal issues with one of the heads of management of the hotel who have tried to pressure the employees, including Mr Venkat, in giving the reference about him. He stated that as an employee he was not aware of the PAN and TAN numbers of the company and was given Form 16 from the finance section which they generate as they had to submit it to the taxation department. He said because of his pay-scale he did not need to file his tax return during that time and that he lodged the tax returns on 24 February 2016 which evidence from an independent body. The applicant attached copies of the confirmation of lodgement of tax returns with the income tax department in India for the years between 2009/2010 and 2012/2013 indicating that they were lodged on 24 February 2016.

3. The applicant also provided a copy of a letter of support from the Managing Director of Navarra Venues confirming the applicant’s current employment with the Company. The reference states that the applicant is of good character and has skills that are hard to find and retain in the hospitality industry and that it would be detrimental for the Company if it lost him.   

   Findings and reasons

4. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.186.213(1) 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).

5. 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?

6. 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.

7. 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.

8. 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.

9. With the visa application, the applicant provided a number of documents in support of his claim to have worked at the Golkonda Hotel in India between 2009 and 2013, including an employment reference, offer letter appointment letter and payslips. Information obtained by the Department’s overseas post indicated that the applicant had not worked at the Golkonda and that the documents provided by the applicant in relation to the claimed employment were not issued by the Golkonda.

10. The applicant maintains that he worked at the Golkonda and that all of his documents are genuine, however, having carefully considered the evidence overall, the Tribunal does not accept the applicant’s claims. The Tribunals reasons for its conclusion follow.

11. The payslips provided by the applicant in relation to his claimed employed at the Golkonda included details of bank account information. Ms Ahalya who worked at the Golkonda as an executive assistant for 18 years gave evidence to the Tribunal that the hotel paid staff by bank deposit and only persons that did not have a bank account were paid by cheque. The applicant’s spouse gave evidence that the applicant was paid by bank deposit and later changed her evidence to say she is not sure how he got paid and just assumed it was by bank deposit because he never carried cash. The applicant on the other hand gave evidence that he was paid in cash and by cheque.

12. The applicant has not provided any supporting evidence to substantiate that he was paid by cheque. The bank account statements provided to the Tribunal showed irregular cash deposits for varying amounts, which were not consistent with his claimed monthly salary, and did not support the applicant’s claims about how he got paid. The Tribunal has considered the applicant’s explanation that the Golkonda only collected his bank details for tax purposes, however, the Tribunal does not find credible that the Golkonda would issue payslips detailing a person’s bank account and then pay their wages in cash.

13. The Tribunal is not satisfied with the applicant’s explanations that his spouse did not have knowledge about his finances and just assumed that he got paid by deposit because that is how people got paid in India. While the Tribunal acknowledges that some couples may not combine their finances, the Tribunal does not find credible that the applicant’s spouse would not have been aware, at the very least, of how the applicant was paid for a period of 4 years. The Tribunal also finds her explanation that she assumed he was paid by bank deposit because he never carried cash to be inconsistent with the applicant’s own evidence that he was paid in cash. The inconsistencies in the evidence about how the applicant got paid strongly suggest that neither of the applicant nor his spouse is providing truthful evidence about the applicant’s claimed employment at the Golkonda.    

14. The Tribunal is also not satisfied with the applicant’s explanation that Ms Ahalya had omitted to give evidence at the hearing that small salaried people were paid. Ms Ahalya’s evidence about how she got paid and how the Golkonda paid its staff (namely by bank deposit) is consistent with the other evidence before the Tribunal, including the information provided by the Golkonda during the second verification check, including information on the payslips they issue which specifies the method of payment. Further, the Tribunal notes that it asked Ms Ahalya a number of questions at the hearing and at no time did she indicate that salaries were paid by cash. The Tribunal is not satisfied that Ms Ahalya omitted to tell the Tribunal that small salaried people got paid by cash and the Tribunal considers the applicant’s attempt at the hearing to modify Ms Ahalya’s evidence, when he stated that she had mentioned that salaries were by cheque and cash voucher, to be indicative of his overall poor credibility. 

15. Tribunal also considers the inconsistencies regarding the terms and condition of employment to be further indicative that the applicant did not work at the Golkonda as claimed. It was indicated in the terms and conditions of the employment documents purportedly issued by the Golkonda that the hours of employment were from Monday to Saturday from 9:00am to 6:00pm. In his oral evidence the applicant sated that he worked 5.5 days a week and had Wednesdays off. He gave evidence that on his full days he had two shifts, from 6.00am to 3:00pm and from 5:00pm to 10:30pm. The Tribunal has considered the applicant’s explanations that the hours of work in the employment documents are not consistent with the hours expected in the hospitality industry and that there were management changes that led to inconsistencies in the management of the hotel, but does not find credible that an employer, especially the Golkonda given the size of its operations as detailed in the information provided by the applicant, including the pages from the hotel’s website and his own description, would provide terms and conditions of employment that did not reflect the actual terms of his employment, even if it did experience changes in its management. The Tribunal also considers Ms Komarraju’s inconsistent evidence about the applicant’s hours of work, namely that he goes to work at 7:00am, to be further indicative of the fact that the applicant is not providing truthful evidence about his claimed employment at the Golkonda. The Tribunal has considered the applicant’s explanation regarding this issue that he had flexible work hours in India and Australia but did not find it satisfactory because the applicant did not indicate, either in his written statement prior to the hearing or at the hearing, that he had flexible work hours. The Tribunal also notes that the terms and conditions of employment (as set out in the appointment letter purportedly issued by the Golkonda, Annexure B paragraph 4) that was provided by the applicant with the application states that ‘the organisation follows strict time schedule and late comings are discouraged’.   

16. The Tribunal also considers it significant that the tax documents which the applicant claims were issued to him by the Golkonda and contained the TAN and/or PAN numbers, did not match the actual PAN and TAN numbers of the hotel as indicated by the official documents the Golkonda provided to the Department during the verification check. The applicant’s explanation for this is that he was not aware of the Golkonda’s PAN and TAN numbers and that the documents he provided were given to him by the finance section. The Tribunal does not find plausible that the Golkonda’s finance section would issue documents to its employees that contained incorrect company identifiers such as its PAN and TAN numbers.

17. The Tribunal has also considered the applicant’s explanation that he had a dispute with one of the managers and that this may be the reason for the Golkonda denying that he worked there and pressuring other employees to provide references indicating he did not work there. The Tribunal however does not find credible that the Golkonda would go to such lengths to deny the applicant’s employment, including giving him documents that contained incorrect company information for the four the years he claimed to have been working there. The Tribunal considers that if there was such as dispute between the applicant and management of the hotel then management could have simply dismissed the applicant from his employment rather than contrive information to dispute his claimed employment.

18. The Tribunal acknowledges that the applicant gave a detailed description of the layout of the hotel, its various restaurants, the commercial kitchens in the hotel and the cuisines they offer. However, as explained to the applicant at the hearing, the Tribunal considers that much of that information can be obtained on the internet, including from the hotel’s own website and many of the hotel booking and other holiday/travel websites. The Tribunal is not satisfied that the applicant’s oral evidence about the hotel and its operations demonstrates that he worked at the Golkonda or overcomes the serious concerns the Tribunal has about his claimed employment there. 

19. The Tribunal has also considered the applicant’s explanation that he provided the same employment documents to TRA and with his Subclass 457 visa application, but is not satisfied that the provision of the documents to other bodies or for the purposes of another visa application establishes that he has worked for the Golkonda as claimed.

20. The Tribunal has considered the income tax return documents dated 24 February 2016 that the applicant provided to the Tribunal and the related acknowledgement documents but is not satisfied that they provide independent evidence, as submitted by the applicant, that the applicant worked at the Golkonda because there is limited evidence on the face of that document regarding the claimed employment.   

21. The Tribunal has also considered the applicant’s explanation that he could have applied for a visa using his spouse’s skills or could have waited for two years on the 457 visa before applying for the permanent visa and did not need to provide non-genuine documents. However, the Tribunal is not satisfied that the applicant’s alternative pathways for a visa establish that the applicant worked at the Golkonda and that he provided genuine documents in respect of that employment.   

22. Given the significant concerns the Tribunal has with the evidence relating to the applicant’s claimed employment at the Golkonda, the Tribunal gives little weight to the explanations provided by the applicant and to the evidence provided in support of the applicant, regarding his claimed employment at the Golkonda, including the evidence provided by the applicant’s spouse, Ms Ahalya, Mr Clement and chef Venkat at the hearing. The Tribunal considers that all of the corroborating evidence provided by the witnesses and the letters provided by the applicant in support of his employment at the Golkonda have been contrived and provided for the purpose of assisting the applicant with his migration matters and not because the applicant genuinely worked for the Golkonda as claimed. 

23. The Tribunal gives significant weight to the evidence obtained by the Department’s overseas post from the Golkonda Hotel directly during the verification checks as set out in the decision record and the extract of the s.359A letter above. The Tribunal accepts the information provided from management of the Golkonda that the applicant was not employed by the Company and that the documents regarding his claimed employment were not issued by the Golkonda.

24. The Tribunal finds that the overall weight of the evidence strongly supports the conclusion that the applicant did not work at the Golkonda Hotel as claimed.

25. Given the above, the Tribunal is satisfied that there is evidence that the applicant has given, or caused to be given, to the Minister and/or to the Tribunal a bogus document, that is, a document that the Tribunal reasonably suspects is a document that is counterfeit or has been altered by a person that does not have authority to do so, or purports to have been, but was not, issued in respect of the person. The documents include the employment reference, offer letter, appointment letter and payslips which the applicant provided to the Department and/or the Tribunal in relation to his Subclass 186 visa application.

26. Given the above, the Tribunal finds that it is not satisfied that there is no evidence that a bogus document has been given, or caused to be given, to the Minister and/or the Tribunal in relation to the application for the visa. Therefore, the applicant does not meet cl.4020(1).

    Should the requirements of cl.4020(1) or (2) be waived?

27. 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.

28. For the following reasons, the Tribunal is not satisfied that the requirements should be waived.

29. The Tribunal has considered the circumstances of the applicant and acknowledges that he has resided in Australia for many years, including as a student from 2005 to 2008, and on a 457 temporary business visa from 2014. The Tribunal acknowledges that the applicant has been employed by Australian companies, including Navarra Venues, and that he is considered to be highly skilled and has strong career prospects in Australia. The Tribunal also acknowledges that the applicant’s spouse has also resided and worked in Australia. The Tribunal notes however that the applicants are not Australian citizens, permanent residents or New Zealand citizens and is not satisfied that their circumstances are such that they affect the interest of Australia.

30. The Tribunal has also considered the evidence relating to the applicant’s current employment and the effect on the employer if they cannot retain the applicant. The Tribunal accepts that the applicant has been employed with Navarra Venues since 2015 and the employers considers him to be an honest, reliable and skilled employee who may be difficult to replace given the skilled shortages in the hospitality industry. However, the Tribunal is of the view that the circumstances of the employer affect the interest of the employer’s business and not the interests of Australia or that it constitutes compelling or compassionate circumstances.

31. The Tribunal has also had regard the submission that the functions organised by the employer, such as weddings, are normally for Australian citizens and permanent residents whose lifetime experience may be ruined if they do not get a good chef. While the Tribunal acknowledges the importance of the business having a good chef so it can provide high quality services and their patrons can gave a good experience, the Tribunal is not satisfied that the risk of patrons having their wedding, or other lifetime experience, ruined because of a bad chef amounts to compelling or compassionate circumstances.

32. Overall, the Tribunal is not satisfied that any of the circumstances of the applicants or the applicant’s employer constitute compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, that justify the granting of the visa in this case.

33. Given the above, the Tribunal finds that the requirements of cl.4020(1) should not be waived.

    Conclusion

34. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.186.213(1).

1. The second named applicant claims to be a member of the first named applicant’s family.  Given the above, the Tribunal finds that second named applicant does not satisfy cl.186.311(a) as she is not a member of the family unit of a person who hold a Subclass 186 visa.

   DECISION

2. The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) visas.

   Rania Skaros
   Member

   ATTACHMENT

   Migration Regulations 1994

   Schedule 4

   4020(1)         There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

   (a)the application for the visa; or

   (b)a visa that the applicant held in the period of 12 months before the application was made.

   (2)The Minister is satisfied that during the period:

   (a)starting 3 years before the application was made; and

   (b)ending when the Minister makes a decision to grant or refuse to grant the visa;

   the applicant and each member of a family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).

   (2AA)However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

   (2A)The applicant satisfies the Minister as to the applicant’s identity.

   (2B)The Minister is satisfied that during the period:

   (a)starting 10 years before the application was made; and

   (b)ending when the Minister makes a decision to grant or refuse to grant the visa;

   neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).

   (2BA)However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

   (3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.

   (4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:

   (a)compelling circumstances that affect the interests of Australia; or

   (b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

   justify the granting of the visa.

   (5)In this clause:

   information that is false or misleading in a material particular means information that is:

   (a)false or misleading at the time it is given; and

   (b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.

   …

   Migration Act 1958

   s.5      Interpretation

   (1) In this Act, unless contrary intention appears:

   …

   bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

   (a)purports to have been, but was not, issued in respect of the person; or

   (b)is counterfeit or has been altered by a person who does not have authority to do so; or

   (c)was obtained because of a false or misleading statement, whether or not made knowingly. 

   …