Adnan Mirza (Migration)

[2021] AATA 4936

Adnan Mirza (Migration) [2021] AATA 4936 (12 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Adnan Mirza

CASE NUMBER:  2100761

DIBP REFERENCE(S):  BCC2019/806424

MEMBER:Peter Haag

DATE AND TIME OF

ORAL DECISION AND REASONS:         12 October 2021 at 2:22 pm (VIC time)

DATE OF WRITTEN RECORD:                19 November 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the decision under review with the direction that the applicant meets clause 500.217(1) of schedule 2 to the Regulations.

Statement made on 19 November 2021 at 12:35pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa– applicant provided accurate information in respect of his employment history – the tribunal is not satisfied that the applicant's employment history is false and misleading – applicant satisfies PIC4020 – decision under review remitted

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 500.217

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 8 January 2021 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

2. At the hearing on 12 October 2021 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a subclass 500 (student visa): public interest criterion 4020, for the purposes of clause 500.217(1) of schedule 2 to the Regulations.

4. I'll now state my reasons for decision.

5. This is an application for review of the decision made by a Delegate of the Minister of Home Affairs, on 8 January 2021 to refuse the grant the applicant a Student (Temporary) (Class TU) visa, under section 65 of the Migration Act 1958.

6. The applicant applied for the visa on 9 January 2020. The Delegate refused to grant the visa on the basis the applicant did not satisfy the requirements of clause 500.217(1) of schedule 2 to the Migration Regulations 1994 because the Delegate was not satisfied the applicant met the requirements of public interest criteria 4020(1). You, Adnan Mirza, the applicant, appeared before the tribunal on 12 October 2021 to give evidence and to present arguments.

7. The tribunal also received oral evidence, by telephone, from Mr Mohammed Lateef Uddin Moin, who was situated in Hyderabad, India, at the time he gave evidence, who stated his occupation as a businessman and according to his evidence and documentation he is, in effect, the owner of True-Life Diagnostic Centre, in Hyderabad, India.

8. The applicant, Mr Mirza, was represented in this review by your registered migration agent, who has been present throughout. 

9. For the following reasons the tribunal has concluded the matter should be remitted to the Department for reconsideration. 

10. The critical issue in this case is whether there is information before the Minister - I'll start that again.

11. The critical issue in this case is whether there is evidence before the Minister, an officer or a relevant assessing authority or the other entities provided for in the Act, that there is information that is false or misleading, in a material particular, as defined in (indistinct) criteria, 4020(5).

12. The common law also establishes that any such information must be purposely false or misleading and it is unnecessary to establish that the applicant knowingly or unwittingly provided the information, which is found to be purposely false or misleading, in a material particular, in respect of the visa application.

13. The critical question is whether your employment history, as it was stated to be in your visa application, was evidently untrue.  Your visa application was lodged on 9 January 2020 and it was part of that application that the information, pertaining to the accuracy of your employment history was stated. 

14. More particularly, the impugned or suspect information was related to your claim that you were employed between 11 January 2016 and 30 August 2019 as an IT help desk officer, employed by True Life Diagnostics and Training Centre, in India. 

15. The accuracy of this information was called into question due to an inquiry made by telephone, on 4 August 2020, by an official representing the Department The phone call  was made to the publicly listed number of True Life, as it was listed in the website of that business. 

16. The official who contacted True Life reported to the officer, who initiated the inquiry and reported that they had spoken to a person who claimed to own of the business and who said that you were never employed in that business. 

17. The recipient of the call to True Life was not identified in the information available to the tribunal.  That is, identified by name, nor is that person identified by name in the information that was before the Delegate.  The person was only identified by their position in the company.

18. The failing to identify, by name, the person who claimed to own the company, in the circumstances where they received an unexpected phone call is a matter of concern to the tribunal.  It is of particular concern, in the light of evidence available to the tribunal that was not available to the Delegate who made the decision to refuse to grant the student visa.

19. The information I refer to is a letter, dated 11 January 2021, on the letterhead of True Life Diagnostic (indistinct). The letter purports to have been signed by Mohammed Lateef Uddin Moin, ostensibly the founding managing director of True-Life Diagnostic Centre. The letter provides his international dialling code and telephone number, and it also states the available time during which he could be contacted. That is compelling evidence.

20. I am referring to Mr Moin's letter.  I am impressed by the fact that Mr Moin has personally signed the document, provided his full name, his contact number and the times during which he would be available, on any day, and he positively requested that he be contacted to confirm the details of his letter.  So, this is not a simple letter that the tribunal is asked to accept, at face value.  The author of this letter, in effect, has, in a (indistinct) and responsible way, indicated his availability to confirm the contents and provided the means by which to do so.  The tribunal finds those matters compelling.

21. Within the contents of the letter Mr Moin unequivocally declares his position in the business, his ownership it - that he knows Mr Mirza, the applicant, that the applicant was employed in his business for three and a half years and, consequently, he shared his direct contact details to assist further and to provide any additional information that was required.  He also refers to providing payslips relevant to Mr Mirza's employment in the business.  Mr Moin also states that he was never contacted by any Immigration authority, in respect of the employment of Mr Mirza in his business.

22. Mr Moin, consistent with his letter, made himself available to give evidence to the tribunal.  It was evident, during the course of his evidence, that he took time out from his business activities to give evidence.  He held himself on standby for a considerable period of time in order to give his evidence.  All of which is consistent with the matters stated, in the letter and the tribunal regards matters as external factors that bear upon the credibility of Mr Moin's evidence.

23. Mr Moin was unequivocal in his evidence.  He gave straightforward evidence that was consistent with his documentation and (indistinct) consistent.  He made it absolutely clear, often without prompting, that Mr Mirza was an employee of his company, that the period of time when Mr Mirza has claimed in his legal application to have been an employee of the Diagnostic clinic is correct.  He was employed by the business during that period.

24. Mr Moin also volunteered that the company keeps employment history records, as one would expect, and that those records confirm that Mr Mirza was employed by the business, during the relevant time, and he referred again to the payslips that he provided to verify Mr Mirza's employment in the business during the material time.

25. The applicant was asked by the tribunal about matters concerning his employment that were not covered within the written materials or the explanations he provided to the Department or the tribunal. 

26. It was evident when describing the nature of Mr Mirza's day-to-day employment activities, Mr Moin, in answer to questions from the tribunal, was discursive and went beyond the information that was immediately responsive to the tribunal's questions concerning the nature of Mr Mirza day-to-day activities in the course of the business. He described, in a detailed way that was consistent with Mr Mirza's evidence, Mr Mirza's employment at the business. 

27. The tribunal finds the evidence of Mr Moin to be credible and corroborative of Mr Mirza's claim that he, in fact, was truthful when he stated his employment history. 

28. Additionally, documentary evidence provided to the tribunal by a manager of the business, who also knows of Mr Mirza and his day-to-day activities, confirmed his employment.  He was not available to give evidence.  The relevant phone number was dialled, but the person who answered, made it clear that the phone number was not correct, and he did not know Mr Mirza and knew nothing about the proceedings, so the tribunal gives little weight to the document.

29. In essence, the tribunal is faced with the evidence of the applicant, which he makes clear he provided accurate information in respect of his employment history, in support of his visa application, and the evidence provided by Mr Mohammed Lateef Uddin Moin, both documentary and oral evidence.  He is the owner of the business and he makes absolutely clear, and the tribunal accepts, that he was not contacted by any representative of the Department or the Australian High Commission in India, in respect to Mr Mirza and his employment history in the business. 

30. That combination of evidence stands in direct contradiction of the hearsay evidence that was before the Delegate. Quite often in the experience of these tribunals, the information resulting from inquiries made overseas on behalf of the Department , testing various aspects of applications, is credible, weighty and may be determinative of an application.

31. That is not so in this case.  The tribunal is concerned that the Delegate was not assisted by more detailed information in respect of the employment history inquiry: Most importantly, the identity of the person who was spoken to by the Department representative, in relation to Mr Mirza's employment history.  That fact deprives Mr Mirza of an opportunity to test the credibility of the evidence and, perhaps, explain why an error may have been made by that person. 

32. The tribunal is also troubled by the fact that the identity of the person who made the inquiry, and the exact position of the person who made the inquiry, has not been provided. Ordinarily, that would not make a difference but given all of the evidence in this case, the absence of that name assumes some small relevance.

33. There is no evidence as to which language was spoken by the person making the inquiry or the person who received the telephone inquiry.  It is not immediately evident that the person who responded to the inquiry was speaking in a - had English as a first language, assuming, that the inquiry was made in the English language, but it may not have been.  Again, that is not certain and that is a matter of concern to the tribunal and may account for some misunderstanding or some other explanation.

34. Whatever the case may be and accepting that there was information before the Minister that indicated the applicant's employment history may have been false and misleading, there is a further consideration, and that is whether or not it was a purposeful falsity, if it was a falsity. 

35. The tribunal, having heard the applicant's evidence and observed him giving evidence and having heard the evidence of Mr Moin, is not satisfied that, assuming for a moment that the employment history, if it was not strictly accurate, constituted a purposeful falsity, because the tribunal accepts that, in fact, Mr Mirza was employed by the business owned by Mr Moin at the relevant time.

36. So, in summary, having considered the totality of the evidence and the basis upon which the tribunal officer was satisfied there was evidence before the Minister that the applicant's employment history was false or misleading information, the tribunal, on balance, is not satisfied that the actual facts of the applicant's employment history, as stated in his visa application, was false or misleading information.  In reaching that view, the tribunal places great weight on Mr Moin's (indistinct) 11 January 2021 and the evidence he gave to this tribunal and content of Mr Moin’s letter of Mr Moin's which, in the experience of the tribunal, is unusual in the insistence that any person concerned to verify the contents of his letter should contact him, at his place of business, on the stated telephone number, between stated times on any day.

37. To summarise, on the basis of the totality of the information and evidence before the tribunal, the tribunal is not satisfied that the applicant's employment history is false and misleading and that it constitutes a purposeful falsity of the sort contemplated in the common law and also in the legislation. 

38. On the basis of the foregoing considerations and reasons, the applicant does satisfy PIC4020, for the purposes of clause 500.217(1).

39. Accordingly, the tribunal remits the application for a Student (Temporary) (Class TU) visa, for reconsideration with the direction that the applicant meets the following criteria for a subclass 500 (student visa): public interest criterion 4020, for the purposes of clause 500.217(1) of schedule 2 to the Regulations.

40. That is my decision and reasons for decision.

    DECISION

41. The Tribunal remits the decision under review with the direction that the applicant meets clause 500.217(1) of schedule 2 to the Regulations.

    Peter Haag
    Member