1602950 (Migration)

[2016] AATA 4120

1602950 (Migration) [2016] AATA 4120 (19 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Sonia Walia

CASE NUMBER:  1602950

DIBP REFERENCE(S): BCC2009/513515 BCC2013/105530

MEMBER:Antoinette Younes

DATE:19 July 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 (Skilled - Graduate) visa:

·Public Interest Criterion 4020 for the purposes of clause 485.224 of Schedule 2 to the Regulations, and

·cl.485.213 of Schedule 2 to the Regulations.

Statement made on 19 July 2016 at 12:53pm

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 31 December 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 17 December 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 the applicant did not satisfy PIC 4020. The applicant sought review by the MRT and it differently constituted member affirmed the delegate’s decision on 3 December 2013. The Tribunal affirmed the decision on the basis that the applicant did not satisfy PIC 4020 and cl.485.213.

3. Subsequently, and by consent the Court remitted the matter to the Tribunal for reconsideration.

4. The applicant appeared before the Tribunal on 12 July 2016. She was represented in relation to the review by her registered migration agent.

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

   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.

8. Cl.485.213 requires the applicant to satisfy the Australian study requirement in the period of six months ending immediately before the day on which the application was made, and that each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation. The previous Tribunal found that the applicant did not satisfy c.485.213(b).

   Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?

9. 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.

10. 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.

11. 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.

    Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?

12. The applicant nominated the occupation of Pastry Cook (ANZSCO 351112) in her application, which is a skilled occupation specified in the relevant legislative instrument.  When applying for review, the applicant provided to the Tribunal a copy of the primary decision record which indicates that in support of her application for the subclass 485 visa, made in December 2009, the applicant provided to the Department a skills assessment from Trades Recognition Australia (TRA). To obtain the skills assessment, the applicant supplied documents to TRA relating to her 900 hours of work experience at L & A Cuisine Pty Ltd (trading as Pasticceria Italia Dolce).

13. The delegate’s decision record indicates that:

    a.The applicant provided to the Department a reference letter from L & A Cuisine Pty Ltd, signed by Leon Carson and dated 17 April 2009, claiming she had undertaken 900 hours of work experience at Pasticceria Italia Dolce between 1 April 2008 and 15 April 2009 and, in support of the reference letter, a log book was provided to the Department, signed by Leon Carson, claiming that the applicant had completed 20 hours a week between 1 April 2008 and 15 April 2009.

    b.On 29 November 2011 the Department received information from the Head Cashier / Supervisor of Ashfield Fruit World stating that the applicant worked at Ashfield Fruit World for 3 years from 2007 to June 2010, initially as a cashier and later on as a supervisor, that she was rostered for shift work, which included weekend work, and throughout her employment at Ashfield Fruit World, on occasions she worked more than 20 hours a week. 

    c.The delegate received information from the applicant’s education provider, Westminster College, that Leon Carson was the applicant’s trainer in Terms 1 and 2 of 2008 and left the college in 2008 to start his own business.

    d.The delegate noted that there was evidence of the applicant’s employment at Ashfield Fruit World for approximately 20 hours a week, at the same time as her employment for 20 hours a week at Pasticceria Italia Dolce and full-time study. The delegate concluded that the applicant may have provided a bogus document because it was obtained as a result of false or misleading statement.

14. In her submission to the Tribunal dated 20 November 2013, the applicant stated that:

    a.She is hard working and it is not impossible or unusual for young people to study or work 60 hours or more and there are many people who put in 60 hours or more and it is unreasonable to suspect that someone cannot work and study for 60 hours a week.

    b.The delegate is only suspecting that her experience may have been fraudulent. Under FOI she was unable to obtain the specific allegations. It appears to her that the delegate was ”bent upon refusing my application and he abused his authority by doing so, without any reasonable reason”. 

    c.People start working as a trainee pastry cooks without any formal studies or experience. She was not working as a rocket scientist and she was only a trainee pastry cook. Her duties included cleaning trays, loading and unloading of trays, all of which do not require formal education.

    d.When she applied for the visa, PIC 4020 did not apply to her and consequently she could not be refused the visa on this basis. The delegate has failed to apply the law correctly.

15. In submissions to the Tribunal dated 29 November 2013, the applicant’s advisor referred to the applicant’s evidence in the course of the hearing before the previous member and argued that the various reasons, the applicant satisfies PIC 4020 as well as cl.485.213.

16. In the course of the hearing on 12 July 2016, the applicant provided a summary of her educational background and her marriage to her now deceased husband. She explained to the Tribunal that there were difficulties in the marriage which included financial difficulties and that her husband had a drinking problem. She stated that he took their son to India which was intended to be a temporary arrangement but did not turn out to be so.

17. The Tribunal discussed with the applicant the information contained in the delegate’s decision record that led to the refusal on the basis of PIC 4020. The applicant gave evidence that she started working at Ashfield Fruit World in 2007 for 20 hours a week and that during the school holidays she worked for six days. When she started her course at Westminster College, she was still working at Ashfield Fruit World. Leon Carson whom she had asked for assistance indicated that she could work for him on a voluntary basis at the kitchen he had in a Burwood club, the name of which she could not recall. She stated that she worked with Leon Carson 20 hours a week for a year until April 2009 and that she was not paid for that work. The Tribunal asked her why she worked for free and she stated it was because she needed the experience and she was unable to obtain relevant paid employment. She stated that she did not tell Leon Carson that she was also employed at Ashfield Fruit World because her husband suggested that she should not do so. The Tribunal referred to the application for the subclass 485 visa and noted that in relation to Form 80 question 23 asking about her employment, she made no reference of her employment either at Ashfield Fruit World or with Leon Carson. The Tribunal also referred to question 31 of Form 1276 and noted that there is no mention of either of those employments in answer to that question. She stated that she did not mention her employment with Leon Carson because it was voluntary and in relation to Ashfield Fruit World, it was “just an omission”.

18. Whilst the Tribunal has concerns about the applicant’s evidence, particularly the failure to disclose in the visa application and form 80 her claimed employment at both Pasticceria Italia Dolce and Burwood Fruit World, the applicant has conceded that she worked more hours than she was permitted as the holder of a student visa. She has conceded that she has breached a student visa condition. There is conflicting evidence before the Tribunal but the Tribunal is of the view that the applicant’s version is not far-fetched. It is not implausible or far-fetched that she worked as claimed at both Pasticceria Italia Dolce and Burwood Fruit World.  Relevantly, the adviser submitted that an investigation by the Department of Education, Employment and Workplace Relations (DEEWR) did not lead to the TRA skills assessment been withdrawn. The Tribunal notes that in submissions to the former Tribunal dated 29 November 2013, the adviser indicated that that the applicant had received a letter dated 24 October 2011 from the New South Wales Investigations Branch of DEEWR which informed her that the Branch was “investigating an allegation that on 4 May 2009, an application to Trade’s Recognition Australia (TRA) submitted by her contained false information in order to obtain a benefit. Specifically, it is alleged that a letter of employment dated 17 April 2009 from L&A Cuisine Pty Ltd trading as Pasticceria Italia Dolce letterhead was false and misleading. This application was submitted to a Commonwealth government agency for the purpose of gaining a skilled migration assessment.” The representative submitted that the applicant had cooperate fully with the investigation and she believes that a thorough examination was carried out which did not result in the skills assessment being withdrawn and consequently “it is clear that after investigation, the investigation Branch came to the conclusion that there was no basis to the allegation”. Whilst the Tribunal has no record of what matters had been considered by TRA and the Tribunal is not bound by any findings made by TRA, the Tribunal is nevertheless persuaded by those submissions.

19. On the basis of the available information and in consideration of the evidence as a whole, the Tribunal is satisfied of the applicant’s employment for Pasticceria Italia Dolce; the Tribunal is satisfied that the applicant completed the 900 hours of work experience as claimed. Therefore, the Tribunal finds that the TRA skills assessment is not a bogus document within the meaning of s. 97(c) of the Act because the Tribunal is satisfied that it was not obtained because of a false or misleading statement, namely, documents relating to the applicant’s purported completion of 900 hours of work experience at L & A Cuisine Pty Ltd. The Tribunal has formed the view that the applicant completed that work experience. The Tribunal finds that that there is no evidence that the applicant has given, or caused to be given, to the Minister or an officer, a bogus document in relation to the application for the visa. The Tribunal is satisfied that the applicant meets PIC 4020(1).

    Is each qualification used to meet the Australian study requirement closely related to the nominated occupation?

20. Although this was not an issue before the delegate, the previous Tribunal found that the applicant did not meet  cl.485.213 and therefore the Tribunal will deal with this issue.  The applicant nominated the occupation of Pastry Cook (ANZSCO 351112) in her application, which is a skilled occupation specified in the relevant legislative instrument. The applicant stated on the application form that she completed the following qualifications in Australia:

    Mar 08 – Jan 09  Certificate III in Food Processing
    Feb 09 – Dec 09  Diploma of Business Management

21. The Tribunal notes that the Certificate III in Food Processing in itself was not of 2 academic years of study or of 16 calendar months. Further, the application for the visa was made in December 2009 and the only qualification completed in the 6 months before the application was made was the Diploma of Business Management. The Tribunal finds that the applicant relied on the Diploma of Business Management to meet the Australian study requirement. The Tribunal must therefore consider whether that qualification is closely related to the nominated occupation of Pastry Cook.

22. In the course of the hearing, the applicant gave evidence that the education provider offered that combination of courses. Whilst the Tribunal appreciates that it is for the Tribunal to determine whether there is the close relationship, the Tribunal does not believe it is appropriate to disregard this combination.

23. Relevantly, on 8 July 2016, the applicant provided to the Tribunal two statutory declarations from previous holders of subclass 485 visas (now Australian permanent residents), who were granted their visas, amongst other things, on the basis of the same qualifications as those held by the applicant and for the same nominated occupation. The Tribunal appreciates that it does not know the full facts in relation to the visa grants of those individuals, the Tribunal nevertheless has no reason to doubt the veracity of the statements provided.

24. On 8 July 2016, the applicant provided the following:

    a.Statement of the applicant setting out comprehensively the studies and subjects she had undertaken in the Diploma of Business Management.

    b.Representative’s submissions essentially relating to cl. 485.213. Notably, the advisor referred to the consent orders of 24 February 2016, namely that:

    The first respondent concedes that the decision of the second respondent is affected by jurisdictional error in that the primary Judge erred by failing to find that the second respondent fell into jurisdictional error in considering whether the appellant’s qualification was closely related to her nominated occupation. The second respondent fell into jurisdictional error because it failed to properly construe and apply the relevant part of the ANZSCO code which related to the applicants nominated skilled occupation.

    c.Statement from Leon Carson dated 24 March 2016 setting out his experience and qualifications, as well as outlining the skills required in pastry cooking.

25. The material before the Tribunal indicates that and the Tribunal accepts that pastry cooks – as most occupations – operate in a business environment. A Diploma of Business Management offers the ability to work in a commercial environment. The Tribunal is persuaded by the applicant’s submissions that her employment was not only about baking and cooking but that she had to know and understand the business environment and various issues relevant to business management. The tasks performed by a pastry cook are set out at ANZSCO 351112 as follows:

    Tasks Include:

    ochecking the cleanliness of equipment and operation of premises before production runs to ensure compliance with occupational health and safety regulations

    ochecking the quality of raw materials and weighing ingredients

    okneading, maturing, cutting, moulding, mixing and shaping dough and pastry goods

    opreparing pastry fillings

    omonitoring oven temperatures and product appearance to determine baking times

    ocoordinating the forming, loading, baking, unloading, de-panning and cooling of batches of bread, rolls and pastry products

    oglazing buns and pastries, and decorating cakes with cream and icing

    ooperating machines which roll and mould dough and cut biscuits

    oemptying, cleaning and greasing baking trays, tins and other cooking equipment.

26. The applicant has claimed that the occupation of a pastry cook is not only about the technical knowledge but requires more such as the knowledge she gained through that qualifications will enable her to work successfully in a diverse background and manage a whole range of roles that come from working within a small trade. The applicant referred to the tasks she performed as part of her employment at Pasticceria Italia Dolce, stating that she used skills such as marketing and her qualification in business management enabled her to perform a variety of tasks. Whilst the Tribunal notes that business management is not listed in the tasks’ description as outlined above, the Tribunal is of the view that management skills are relevant and closely  related to the nominated occupation.

27. Whilst the Tribunal must consider the objective requirements for the occupation and not what the applicant did as part of her role, ASCO definitions provide important guidance and do not suggest an inflexible approach.  The Tribunal refers to the submissions in relation to the period 9 November 2009 to 31 December 2009, that PAM3 notes that “the intention of the closely related criterion in 485.213(b) is to support the policy objective that skilled migrants be job ready for the Australian labour market and make a positive contribution to the Australian community and society as soon as possible”. The Tribunal is of the view that the applicant’s qualification in business is consistent with that policy objective. In Talha v Minister for Immigration and Border Protection [2015} FCAFC 115 (25 August 2015), the Court held that “it is critical that the whole of (the Australian studies) be compared with the whole of the nominated occupation…. Significantly, in many cases, deferring tasks are described at various levels of the hierarchy [referring to the ANZSCO structure]”.  The statement from Leon Carson dated 24 March 2016 refers to the professional skills of a pastry cook and he confirmed that the applicant’s diploma in business management provided the applicant with the “training, skills and competencies she needs to be job ready to work as a pastry cook in the Australian environment”.

1. In consideration of the evidence as a whole, the Tribunal is satisfied that the Diploma of Business Management is closely related to the occupation of Pastry Cook. The Tribunal has found that the applicant relied on this qualification to meet the Australian study requirement, the Tribunal is therefore satisfied that the applicant meets cl. 485.213(b) and cl. 485.213.

   CONCLUSIONS

2. On the basis of the above, the Tribunal finds that the applicant satisfies PIC 4020 for the purposes of cl.485.224. The applicant also meets cl. 485.213.

   DECISION

3. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 (Skilled - Graduate) visa:

   ·Public Interest Criterion 4020 for the purposes of cl.485.224 of Schedule 2 to the Regulations, and

   ·cl.485.213 of Schedule 2 to the Regulations.

   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 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. 

   …