Aktar (Migration)

[2021] AATA 2300

Aktar (Migration) [2021] AATA 2300 (15 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Most Nazneen Aktar

CASE NUMBER:  1826038

DIBP REFERENCE(S):  BCC2017/1347099

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:         15 April 2021 at 1:41 pm (VIC time)

DATE OF WRITTEN RECORD:                30 April 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the decision under review with the direction that the applicant meets the criteria with the direction that the applicant meets the criteria in clause 190.216 of schedule 2 of the regulations

Statement made on 30 April 2021 at 5:19pm

CATCHWORDS
MIGRATION –Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 – bogus document, or false or misleading information – job title is the same as a Junior Civil Engineer – applicant progressed successfully along an academic and career pathway – legitimate document –decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 190.216

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 29 August 2018 to refuse to grant the visa applicant a Skilled Nominated (Permanent) Subclass 190 visa under the Migration Act 1958 (the Act).

2. At the hearing on 15 April 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. Ms Aktar you applied for a 189 skilled nominated visa back on 11 April 2017.  Your application was refused on 29 August 2018 because the delegate was not satisfied you met the requirements for the grant of a visa.  Specifically, the delegate found that you did not satisfy clause 190.216 which deals with what are known as Public Interest Criteria.

4. One of those is Public Interest Criterion 4020 which states that to satisfy that requirement, there is no evidence that the applicant has given or caused to be given to the Minister, an officer of the Tribunal, during review of a part five 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 an application for a visa, or a visa that the applicant has held in the period of 12 months before the application was made.

5. As I said, the delegate refused your application and you appealed that decision to be reviewed by this Tribunal. With your application you included a copy of the primary decision which you tell me you have read and understood.

6. Reading from that decision, it states there is evidence before the Minister the applicant has provided, or caused to be provided, a bogus document or false or misleading information in relation to this visa application. It goes on to say, the department conducted checks to confirm the information you provided in your previous TU574 student visa application and your current visa application.  During this process, the department received unfavourable information which was inconsistent with the information provided in your previous TU574 student visa application and which did not support your current skilled visa application.

7. It goes through and talks about your claimed work experience and the various documents that were provided.  Department records show you were the holder of a 574 student visa and the officers conducted a review of the evidence you provided with that student visa application and found you had supplied work references from the same employers from whom you provided references for this current application. 

8. The department found that serious concerns were raised when officers compared the work references listing your duties which you provided in your student visa application, to those you provided in this skilled visa application. They found there were major inconsistencies regarding your designation and duties. 

9. And it goes on to list work references issued in June 2016 for work from the period December 2015 from the Embassy of Sweden, stating you joined in the position of Program Officer Water Resources Management for Climate Change adaption, the work reference was signed by a woman, the first secretary> Serious concerns were raised that your position and the duties statement was inconsistent with the work reference dated 18 August 2016.

10. There’s a work reference from SMEC International for the period February to November 2015 for the position of Environmental Specialist, serious concerns were raised in the duty statement of this reference which is inconsistent with the work reference issued on the same date which you provided in the skilled visa application, signed by the same dignitary.

11. A work reference issued in February 2016 by Centre for Environmental and Geographic Information Services (CEGIS) stated you worked continuously as a fulltime employee for around 12 years, having joined the company in February 2003. You were promoted to Senior Professional in January 2010 and worked as a Specialist from January 2014 to January 2015.

12. A duty statement was provided, serious concerns were raised that your positions and the duty statement were inconsistent with the work reference you provided in this application dated 28 July 2016.  So they asked you for further evidence and you provided a range of documents that did not satisfy the delegate. 

13. Regarding the skills assessment, the delegate made the observation, I reasonably suspect that a positive skills assessment issued to you on 17 March 2017 had not considered your duties as per those described on the work references provided to the department, only after you were invited to provide comment on adverse information. Those work references do not support the duties of civil engineer, as listed in the work references provided at the time for initial assessment with this visa application.  I am not satisfied that your response has sufficiently allayed the inconsistencies and information and concerns presented to you in the information in the invitation to comment in order to demonstrate you’re engaged in employment in your nominated occupation of civil engineer or a closely related occupation.  Based on the evidence and information before me, I have found that you have given information in the form of work references dated 2 February 2016, 28 July 2016 and 18 August 2016 that are false and misleading in the material particular to your claims for overseas employment points in order to meet regulation 190.214. Therefore, I am not satisfied that the applicant meets public interest criteria 4020 subclause 1. 

14. And therefore, the delegate found you did not satisfy 190.216 which was the reason your application was refused.  The situation is that you have provided the Tribunal with very detailed responses to the concerns of the delegate and we have gone through and discussed your employment history.

15. You completed a Bachelor of Civil Engineering in February 2002 after which you began employment with CEGIS. You completed a Masters of Civil Engineering in 2005 and you continued working at CEGIS.  CEGIS is the centre for Environmental and Geographic Information Services.  And it has some unusual – well perhaps not unusual at all, but it uses terminology that we are, perhaps, not used to.

16. It has technical staff as well as administrative staff and it has various job designations. Technical people are classified as professionals, senior professionals, specialists, senior specialists, et cetera.  And those titles are granted according to seniority and experience and are used by the company to establish benefit packages. 

17. Various documents you have provided stated that when you started with CEGIS in February 2003, you were given the job title of Junior Morphologist.

18. What has become apparent from the various range of evidence you have provided, and from what you’ve told me today, is that that job title is the same as a Junior Civil Engineer, those titles are interchangeable.  You worked in that role in a range of occupations and dealt with a range of different issues that would be expected of someone who was on a pathway of civil engineering.

19. In January 2010, you were elevated to the position of Senior Civil Engineer which gave you the title of Senior Professional within the organisation and in January 2014, you were again promoted to the position of Specialist.  You left CEGIS and were engaged by SMEC International as a Senior Design Engineer where your prime focus was on the design of a highway.

20. And in December 2015, you were engaged by the Consulate of Sweden, the Embassy of Sweden, as a program officer and in that role, you were primarily managing compliance of projects that were funded by the Swedish government. 

21. The Swedish government was putting money into projects and it was your job to ensure that not only were those jobs carried out according to the specifications of whatever contracts they were involved in, but also to ensure that they met with the engineering standards of both Sweden and of Bangladesh.

22. The delegate was concerned by the differences in duties that were performed in your work references for this visa and for a previous student visa, references that were provided by the same employers.  The delegate was also concerned that those statements were made by the referees and provided to suit the visa requirements.

23. While there may be some cultural and wording misunderstandings here, I think that is a perfectly reasonable statement for someone to make in that yes, I have provided references and I provided them because I knew they were applying for a visa and so I worded them to state they would satisfy those requirements. 

24. And it was the same with the references from the Embassy of Sweden and SMEC, these letters were – references were that they were provided to satisfy the requirements.  From the very detailed submissions you’ve made and considering everything you’ve done, the Tribunal believes you have progressed very successfully along an academic and career pathway. You have gained qualifications and progressively worked in increasingly senior and challenging roles as a civil engineer.

25. Understandably, because of the breadth of your profession, there are a very large number of activities you have been engaged in that may or may not be considered to be specifically the role of an engineer.  However, in your case, I don’t think there is any doubt that everything you have done has been leading to an increase in your professionalism as an engineer.

26. While it is not relevant to your overseas work experience, and the department noted that, they did make comment about the fact that they believe that your assessment had been done, perhaps without due consideration to the works that you had done. 

27. Well the fact that you have completed a PhD at RMIT in Civil Engineering and are now a Doctor of Civil Engineering or a doctor of philosophy civil engineering, while that may not be directly relevant to your overseas work experience, you have progressed and are clearly considered extremely highly in your academic profession and that institute that is highly regarded where you are, and have been for some years, employed as a lecturer and you are currently enrolled as a VE teacher providing lecture services to students doing advanced diploma studies in engineering.

28. I don’t believe that such a degree, a PhD, would’ve been granted without consideration and reference to your work experience and I think that it adds significant weight to the assessment that was already done, and I find the assessment is perfectly acceptable.  I do not believe there is any evidence that documents you have provided, while there may be some inconsistencies in the wording used, I don’t believe that any of those documents are bogus, or false or misleading in a material particular.

29. I am therefore satisfied that you do satisfy clause 190.216 and it is therefore, the decision of this Tribunal to remit this matter to the department with the direction that you do satisfy clause 190.216.  And this decision was made at 1.41pm on 15 April 2021.

    DECISION

30. The Tribunal remits the decision under review with the direction that the applicant meets the criteria with the direction that the applicant meets the criteria in clause 190.216 of schedule 2 of the regulations.

    Tim Connellan
    Member