1514196 (Migration)

[2016] AATA 3740

1514196 (Migration) [2016] AATA 3740 (15 April 2016)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Kanchan Sharma

CASE NUMBER:  1514196

DIBP REFERENCE(S):  BCC2009/131222

MEMBER:Antoinette Younes

DATE:15 April 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 15 April 2016 at 9:44am

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 22 August 2012 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 18 March 2009. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.485.224 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because she did not meet Public Interest Criterion 4020.

3. On 27 February 2014, a differently constituted Tribunal affirmed the delegate’s decision not to grant the applicant the visa. On 6 October 2015, the Court remitted the matter to the Tribunal to be determined according to law.

4. The applicant appeared before the Tribunal on 31 March 2016 to give evidence and present arguments.

5. For the following reasons, the Tribunal has concluded that the matter should be affirmed.

   RELEVANT LAW

6. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.485.224 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   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: Batra v MIAC [2013] 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. In the delegate’s decision record provided by the applicant in support of the application for review, it is noted that:

    a.On 20 March 2012, in support of her visa application, the applicant provided a skills assessment from Trades Recognition Australia (TRA) reference number TRA09/123237928. In order to obtain the skills assessment, the applicant provided TRA documents supporting the claim of 900 hours of work experience from New Bombay Fusion Restaurant (the restaurant).

    b.On 17 May 2010, the owner of the restaurant, Mr Privithi Singh was interviewed by Departmental officers. During this interview, Mr Singh provided a list of all of the persons who had been employed at his restaurants. The applicant’s name was not included in the list of employees.

    c.On 15 June 2012, the Department provided the applicant with an opportunity to comment on this information.

    d.In the Statutory Declaration dated 9 July 2012, the applicant responded by noting that she had worked at the Bombay Fusion and Indioz restaurants owned by Mr Singh from April 2008 until April 2009 as a volunteer cook. She first applied for her TRA assessment in March 2009 which was declined due to the non-updated contact details of the restaurant. She then approached Mr Singh to explain what happened and he provided her with the updated contact details of the restaurant which were forwarded for a further TRA assessment in June 2009 and consequently her TRA application was approved. When Mr Singh was interviewed by the Department, he did not include her name on the list which may have been due to “professional or personal reasons, or maybe he forgot or did not want to include my name as I left the job after I was provided with my work experience certificate.” This was because Mr Singh did not pay her even after she finished her volunteer work experience as a cook so she had no choice but to leave the job in April 2009. She had professional relations with people who usually worked with her at the restaurants.

    e.The delegate gave little weight to the applicant’s responses because she did not provide any documents supportive of those claims such as log books, timesheets, daily activity records or liability insurance documentation.

    f.Based on the available information, the delegate decided that the skills assessment provided by the applicant to the Department, namely TRA09/123237928, was a bogus document within the meaning of s. 97(c) of the Act.

    g.The delegate further found that the applicant had not raised any compassionate or compelling circumstances for the purpose of PIC 4020(4) and therefore the applicant did not meet the requirements of PIC 4020(1). Consequently the applicant was found not to meet the requirements of cl. 485.224.

12. The Tribunal has before it copies of two work references relating to the applicant from the restaurant dated 22 February 2009 and 26 May 2009 which were provided by the applicant to TRA. The reference dated 22 February 2009 indicates that the applicant had been working in the capacity of casual cook at the restaurant “from 20^th April 2008 till date on a student visa with the work limitation of 20 hours per week and more hours in school holidays. She has worked as a cook for more than 900 hours as a volunteer 30^th until now” (sic). The letter dated 26 May 2009 refers to the applicant having worked “with our organisation as a cook from 20 April 2008 until 20 February 2009. She works 20 hours a week complying with her student visa regulations and worked full-time during school holidays. She has completed over 900 hours of commercial work experience as a cook”.

13. In the course of the hearing, the Tribunal discussed with the applicant the information contained in the delegate’s decision record provided by the applicant in support of the application for review, that led to the refusal to of the visa. The applicant agreed that in support of her visa application she had provided documents supporting her claim that she had 900 hours of experience at the restaurant. The applicant gave evidence that she worked as a cook at the restaurant and at the Indioz from April 2008 until April 2009 on a volunteer basis. She stated that she had never cooked in India.

14. The applicant stated that she got married in 2007 and later divorced in 2013. She remarried in 2015 and is currently 6 ½ months pregnant. She said she came to Australia to undertake a bachelor of accounting at Central Queensland University but she did not complete the course as the fees were very high and she was not that interested in accounting. She stated that she was advised that accounting would be an easier pathway to permanent residence. She changed to a diploma in hospitality. She stated that prior to working at the restaurant, she was working as a customer service representative at Oporto but she needed experience in a restaurant in order to satisfy the visa requirements. The applicant gave inconsistent and confused answers about when she left Oporto but eventually stated that she left Oporto prior to April 2008, around Christmas 2007 or early January 2008.  She stated that she left because she needed to work in a restaurant not fast-food like Oporto.  She did not have a job when she left Oporto.

15. The Tribunal asked the applicant how she got the job at the restaurant and she stated that a friend (Aman Sharma) of hers who worked at the restaurant and Oporto told Mr Singh that she needed work experience and Mr Singh agreed without being formally introduced to the applicant. He called her in February 2008.  She did not send her CV and there was no interview.  Her friend told her to simply go to the restaurant on a Friday night in February after Valentine’s Day. She later returned and worked as a volunteer. The Tribunal asked the applicant why she would work as a volunteer and she stated that she was young and she was looking at the future. She said that the restaurant had a lot of volunteers. 

16. The Tribunal asked the applicant to outline the nature of her duties. She stated that she helped the chef in cutting vegetables, preparing sauces, preparing the dough for breads, making tandoori, and ordering. The Tribunal indicated that it would appear that she was a kitchen hand rather than a cook and the applicant disagreed; she stated that she was cooking curries which included preparing the sauces. She said she was involved in selecting the menu. She said she worked regularly on Thursdays, Fridays, Saturdays, and occasionally on Tuesdays.  She, Prya and Foram selected the menu.  The Tribunal asked her why she left the restaurant and she stated she had completed her 900 hours and Mr Singh refused to pay her as an employee subsequently.

17. The applicant gave evidence that a migration agent lodged the visa application. The Tribunal discussed with the applicant the reference dated 26 May 2009 which she provided in support of the application for a skills assessment. The applicant said there was a “miscommunication”.  The Tribunal indicated to the applicant that in the reference letter it is noted that she worked “as a cook from 20^th of April 2008 until 20 of February 2009”, which appears to contradict her oral evidence that she worked until April 2009. The applicant said she did not check the reference and that Mr Singh had put the wrong date.  The Tribunal noted that the dates are inconsistent with her oral evidence that she finished in April 2009.  The applicant stated that her 900 hours were completed in February and she had started in February 2008 not April.

18. The Tribunal asked the applicant about the discrepancies and she reiterated that she had started at the restaurant in February 2008 and that “he” only wrote the period relevant to the 900 hours. In accordance with s.359AA, the Tribunal indicated to the applicant that the discrepancies are relevant because they could raise doubts about her claims that she had worked for 900 hours at the restaurant, her credibility and it could lead to the Tribunal to affirm the decision.  The applicant indicated that she had started in February 2008 and finished in February 2009, but “he” put down when she worked as a cook. 

19. The Tribunal discussed with the applicant the information contained in the delegate’s decision record that on 17 May 2010, Mr Singh was interviewed by the Department and when asked about his employees, he did not include the applicant’s name on the list that he provided. The applicant stated because she worked as a volunteer and that it is possible that Mr Singh did not include her name because she had asked him to pay her. She stated that he used to yell at her and others. He used them for free labour.  She stated that after April 2009, she was on good terms with him and he gave her the reference of 26 May 2009.  She said she returned to him after TRA’s negative assessment and they contacted him as shown in one of the documents (folio 79, DIBP).

20. In accordance with s.359AA, the Tribunal indicated that the adverse credibility finding made by the previous member is of relevance as it could lead the Tribunal to affirm the decision.  The applicant said when Mr Singh was called by TRA, he told them she worked at the restaurant. Upon further clarification, she stated that she has done nothing wrong or has harmed the Australian community.

21. The Tribunal asked the applicant about Foram Bodam and she stated she had never met him but he worked in the kitchen. The Tribunal asked the applicant who gave her the reference letters and she said they were given to her by Mr Singh.  She said she lost the first one (22/2/09) and asked Mr Singh and he gave her another.  She reiterated that she does not know Bodam and that Mr Singh gave it to her.  He said his manager signed it and she lost it.

22. Overall, the Tribunal found the applicant’s evidence confused, internally inconsistent and contradictory with other information she had previously provided. She required substantial prompting to clarify significant aspects of her claims that she had worked 900 hours at the restaurant. Her oral evidence about when she worked at the restaurant is inconsistent with the work references before the Tribunal which provided different dates in relation to the applicant’s alleged volunteer work. Mr Singh was interviewed by departmental officers and he did not give the applicant’s name as being one of his employees. When those inconsistencies were raised with the applicant by the Tribunal, her explanations were neither persuasive nor convincing.

23. The Tribunal finds it difficult to accept that the applicant and Mr Singh were not on good terms when she asked for paid work and he refused, yet this was resolved in a short time when he agreed to give her references.  On her own evidence, she worked at the restaurant until February 2009 and she left when she asked for paid work which Mr Singh refused, yet the first reference provided is dated 22 February 2009 - around the same time of when she was having problems.  It is difficult to accept that she would approach Mr Singh under these conflict circumstances and he would be willing to help by giving her references.  Given that the applicant did have a skills assessment, the Tribunal accepts as plausible that TRA contacted Mr Singh who supported the TRA application. The Tribunal finds it difficult to accept that Mr Singh would have supported the applicant if indeed they had a conflict over employment and pay. The Tribunal is of the view that if Mr Singh had supported the applicant’s skills assessment, he would not continue to support her with the departmental investigation.

24. The Tribunal finds it difficult to accept that if Mr Singh had indeed provided the work references to the applicant, he would not identify the applicant as one of his employees/volunteers during the departmental investigation. The Tribunal accepts as plausible that Mr Singh might not have been entirely truthful with the Department, but it does not necessarily follow that the applicant has been truthful. The Tribunal is of the view that there might have been collusion between the applicant and Mr Singh to provide false information and documents to both the Department and TRA.  The applicant’s own evidence was confused and lacked clarity, raising serious doubts about her claimed 900 hours of work.

25. In light of the above comments and in consideration of the evidence as a whole, the Tribunal finds that the applicant did not work for 900 hours at the restaurant or Indioz, and that she or her representative provided TRA with the two work references to support her claim of 900 hours of work.

26. As the Tribunal found that the applicant did not work for 900 hours as claimed, the Tribunal therefore finds that the two references provided to TRA contain incorrect information. The Tribunal is satisfied that the work references dated 22 February 2009 and 26 May 2009 are false and misleading in a material particular. The skills assessment from TRA dated 8 July 2009 indicates that the assessment was based, amongst other things, on the references to form a view that the applicant had undertaken 900 hours of related work experience.

27. Considering the evidence individually and cumulatively, the Tribunal finds that the two references relied upon by TRA were false or misleading in a material particular because the applicant was not employed as a cook and she had not worked there in any capacity for over 900 hours. In consideration of the evidence as a whole, the Tribunal finds that the skills assessment from TRA was provided by the applicant or on her behalf to the Department to support her visa application. Therefore, the Tribunal is satisfied that the applicant has given, or caused to be given, to the Minister or an officer of the Department a bogus document in relation to the application for the visa for the purpose of meeting the criteria of the subclass 485 visa. In consideration of the evidence as a whole, the Tribunal finds that the applicant does not meet the requirements of PIC 4020(1).

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

28. 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.

29. The applicant gave evidence that she is currently married to an Australian citizen and that she is six and half months pregnant. She told the Tribunal that she has applied for a partner visa sponsored by her husband. The Tribunal recognises that if the applicant is not granted the subclass 485 visa on the basis of not meeting PIC 4020, she would need to rely on the outcome of the partner visa application in order to remain with her family in Australia. The Tribunal recognises that once born, the child would be an Australian citizen by virtue of his father’s citizenship. Although the child is not yet born, the Tribunal has however considered in relation to the child, Article 3.1 of the UN Convention on the Rights of the Child 1989 (CROC). 

30. The Tribunal acknowledges that and gives regard to the primary interests of the child, however those interests are not determinative; the Tribunal has found that the applicant provided to documents containing false information in order to inaccurately show that she has the relevant and required work experience. She has therefore attempted to obtain a visa based on false information. This goes to the integrity of the Australia’s migration program and it is not in the public interest not to give significant weight to the fact that the provision of false information is a serious matter and unless there are compassionate and compelling circumstances that warrant the waiver, the Tribunal should not exercise discretion and waive the requirements of PIC 4020. The Tribunal is of the view that the Australian community has a legitimate expectation that decision makers give regard to the integrity of the migration program. By saying so, the Tribunal is not asserting that community expectations or interests override other circumstances such as those of the applicant, however, providing false information is a serious issue and the Tribunal gives it significant weight.

1. Moreover, the applicant’s conduct, specifically in insisting that she did not provide false information, indicates to the Tribunal a continued willingness to disregard the law and show no remorse in correcting the record and acknowledging wrongdoing. The applicant has not shown an ability to self-reflect and acknowledge the provision of false information. The Tribunal appreciates that acknowledging that she had provided false information is a serious admission, however showing remorse and acknowledging wrongdoing demonstrate an important aspect of one’s willingness to respect the law. The provision of references to TRA occurred about eight years ago when the applicant was a younger and the Tribunal might have been more sympathetic to the applicant had she acknowledged wrongdoing.

2. The Tribunal acknowledges that family unity is important and that from the applicant’s perspective, it is in her interest and that of her family to be granted the visa. The Tribunal appreciates that the refusal of the applicant’s visa would have an adverse impact on the applicant’s husband who is an Australian citizen and child, although unborn; the Tribunal is of the view that it is natural that the husband would be anxious and upset about the refusal of his wife’s visa and that the refusal would be unsettling for the family. The refusal could mean that the family has to consider other options for the visa applicant to remain in Australia with her family. However, the Tribunal is not satisfied that the impact on the family in the circumstances amounts to compassionate or compelling circumstances warranting the waiver.  Moreover and on her own evidence, the applicant has underway another visa application, which would take into consideration her current circumstances in assessing the genuineness of the relationship she has with her current husband. The Tribunal is not dealing with the partner visa application and does not have an opinion about the genuineness of the relationship. The Tribunal is of the view that proper and due processes would take place in assessing the partner visa application which would take into consideration the child/and or the fact that the applicant is pregnant. By referring to the partner visa application, the Tribunal is not attempting to discharge its responsibility to another decision maker, but the fact that the applicant has lodged a partner visa application is relevant to the current circumstances of the applicant which the Tribunal is required to take into consideration in assessing waiver.

3. In consideration of the evidence as a whole and on balance, the Tribunal is satisfied that the refusal would not result in a breach under the CROC, or that there are circumstances that are compassionate and compelling warranting waiver.

4. In essence, and for the stated reasons, the Tribunal is not satisfied that there are compassionate or compelling circumstances to justify the granting of the visa.  For the stated reasons, the Tribunal is not satisfied that the requirements of cl.4020(1) should be waived.

5. It follows that the Tribunal finds that the applicant does not satisfy PIC 4020 for the purposes of cl.485.224.

   DECISION

6. The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

   Antoinette Younes
   Senior 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. 

   …