Ali (Migration)

[2020] AATA 5093

Ali (Migration) [2020] AATA 5093 (6 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Abid Ali

CASE NUMBER:  2004986

DIBP REFERENCE(S):  BCC2018/1942822

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:         6 August 2020 at 2:04 pm (VIC time)

DATE OF WRITTEN RECORD:                21 August 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the decision under review with the direction that the applicant meets cl.489.211.

Statement made on 24 August 2020 at 1:23pm

CATCHWORDS
MIGRATION – Skilled Regional Sponsored (Provisional) visa– Subclass 489 visa – applicant has not given or caused to be given, a bogus document or information that is false or misleading– applicant completed Job Ready Program– evidence provided – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 375A
Migration Regulations 1994, Schedule 2, cls 489.211

STATEMENT OF DECISION AND REASONS

1. This decision follows an application for review of a decision made by a delegate of the Minister for Immigration on 24 February 2020 to refuse to grant you a Skilled Regional Sponsored (Provisional) Subclass 489 visa under the Migration Act 1958 (the Act).

2. The criteria for the grant of a sub-class 489 visa are set out in Part 489 of Schedule 2 to the Regulations.  489.211 is a mandatory requirement and it deals with what are known as the Public Interest Criteria (PIC) one of those being PIC 4020 which says that to satisfy that requirement there is no evidence before the Minister, or in this case the tribunal, that the applicant has given or caused to be given, a bogus document or information that is false or misleading in a material particular in relation to the application for a visa. 

3. In your case the delegate found and stated:

   In consideration of all the information to hand I am not satisfied that your claims of employment as a motor mechanic with this company are genuine.  I find the spontaneous response provided by your employer during the telephone interview to be more reliable than the considered responses to the officer’s email.  I find your employer’s explanation of not being able to remember correctly regarding your employment history is implausible, especially considering the information he provided during the telephone call in relation to your Job Ready Program. 

4. I will come back to that. 

   The tax notices don’t add significant weight to your claims.  Your TRA workplace assessment does provide some support to your claims.  Of greater concern is the fact that your assessor didn’t complete identification verification when undertaking the assessment.  There is no evidence that you are the person who was assessed.  Therefore, I find the workplace assessment does not add sufficient weight to your claims.  The employment references and payslips submitted are easily produced documents.  I can’t be satisfied they have not been contrived for the purpose of your application.

   In consideration of all the information to hand, I am not satisfied that your claims of employment as a motor mechanic at Quick Auto Repairs are genuine.  Based on the evidence and information before me, I find that you have given false and misleading information in a material particular.  Therefore, I’m not satisfied you meet PIC 4020(1).  No information has been given that you are seeking a waiver of 4020.  As a result, 489.211 is not met.

5. So that was the decision of the delegate.  I come to the question of your Job Ready Programme.  What has been pointed out in Mr Hammond’s submission, which I accept, is that the delegate has basically taken a number of decisions based on a phone call made to the owner, while he was not at the business premises at the time because his son was in hospital.  The owner gave a range of answers in that phone call but then subsequently said he was confused as there were two people named Abid who worked there. One of the important responses about which he was confused was when he answered a question about when you were employed and he responded that you had left the company and not completed your Job Ready Program there.

6. The delegate was also concerned about inconsistencies that appeared in your form 80 and in other evidence as to when you had started work or to the work period that you had at Quick Auto Repairs. You have provided evidence that the Tribunal accepts that you worked there on a full-time basis from October 2016 to December 2017.  The fact that your form 80 says you started there in April 2016, I accept was an error made for whatever reason but you were under a significant amount of pressure at that time.

7. The question of working part-time versus full-time, you make the claim which I accept that you cannot do the Job Ready Program working part-time, it is a requirement that you be working full-time.  You have provided evidence that you completed the Job Ready Program at Quick Auto Repairs and I am satisfied that that has happened.

8. In terms of whether it was you or what had happened, there were a number of site visits.  There was one on 23 February 2017.  You were then given notice that they were going to do an assessment on 11 December 2017 and they, in fact, did come out on 11 December 2017 and conducted an assessment.  So the fact that they were there conducting an assessment, as far as I am concerned, is further evidence that you worked at least until December 2017 as claimed.

9. You have provided the Tribunal with the tax returns that the Department questioned. They clearly list the name of the two different tax agents you used in those two years, 2017 and 2018.  They are different tax agents however I accept that they are genuine returns that were lodged via tax agents. 

10. In terms of the advice from the ATO where it says you worked as a taxi driver, and interestingly as a helicopter operator, you tell me that that the occupation of Uber driver automatically puts you in that classification that includes helicopter operator.  Regardless of whatever, you make no bones about the fact that you worked at one stage part-time as a taxi driver or an Uber driver to make some extra dollars and there is nothing to prevent you from doing that, so I do not give that any consideration.

11. Mr Hammond referred to the fact that there are 375A certificates on file regarding a number of documents.  There are.  One of them is a dob-in letter.  It is anonymous.  It basically raises doubt about you working at Quick Auto Repairs.  The situation is, as I said, is it is anonymous and I give it no weight in considering this decision.

12. As I said, the delegate’s concerns were mainly raised as a result of a phone call that was made to your former boss, and am I right in believing that the phone call was approximately 14 months after you had left work with Quick Auto Repairs?

13. MR ALI:  Yes, yes, that is correct.

14. MEMBER:  You also said that your boss there, Mr Awas, was not particularly happy with the fact that you left his employment shortly after completing the Job Ready Program, and that is understandable and I accept that as being a statement of fact.

15. So the fact that the phone call was 14 months after you finished work there, I accept is a reason for Mr Awas to have been vague and I accept that, in fact, when he spoke about the face you had finished working there and not completing the program, he was confusing you with someone else.  I am satisfied you did complete your Job Ready Program.  I am satisfied you did work on a full-time basis with Quick Auto Repairs from October 2016 to December 2017.

16. I am not satisfied that you have provided evidence that was false or misleading and, therefore, I find there is no breach of section 4020 and I am, therefore, satisfied that you satisfy clause 489.211.  Subsequently, it is my intention to remit this matter to the Department with the direction that you satisfy 489.211.  That is my decision.

    DECISION

17. The Tribunal remits the decision under review with the direction that the applicant meets cl.489.211.

    Tim Connellan
    Member