Arora (Migration)

[2023] AATA 4448

Arora (Migration) [2023] AATA 4448 (31 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Amandeep Arora
Mr Amandeep Singh
Master Gurekas Singh
Miss Ranya Kaur

REPRESENTATIVE:  Mr Navdeep Singh Khehra

CASE NUMBER:  2113565

HOME AFFAIRS REFERENCE(S):          BCC2019/2660591

MEMBER:Namoi Dougall

DATE:31 October 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Skilled Regional Sponsored (Provisional) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 489 - Skilled - Regional (Provisional) visas:

·Public Interest Criterion 4020 for the purposes of cl 489.211 of Schedule 2 to the Regulations

Statement made on 31 October 2023 at 5:28pm

CATCHWORDS
MIGRATION – Skilled Regional Sponsored (Provisional) (Class SP) visa – Subclass 489 (Skilled – Regional (Provisional)) – false or misleading information – claimed employment – Restaurant Manager – employment statement – payslip – superannuation statement – ATO documentation – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 489.211, 489.222, 489.224; Schedule 4, PIC 4020

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Trivedi v MIBP [2014] FCAFC 42

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 Home Affairs on 20 September 2021 to refuse to grant the applicants Skilled Regional Sponsored (Provisional) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 22 May 2021. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl 489.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was satisfied that the applicant provided false or misleading information to eth Minister and a relevant assessing authority as to her employment as a Restaurant Manager.

3. The applicant appeared before the Tribunal on 26 October 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the former director of Flavour N Spice Pty Ltd, Ms Ripple Deep Kaur.

4. The applicants were represented in relation to the review.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 489.211 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: PIC 4020(1); and

   ·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 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: PIC 4020(2) and (2AA); and

   ·the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and

   ·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 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: PIC 4020(2B) and (2BA).

2. The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.

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

1. The term ‘information that is false or misleading in a material particular’ is defined in PIC 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 PIC 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.

2. The requirement in PIC 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: PIC 4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.

3. 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.

4. On 22 May 2021, the applicant lodged a Subclass 489 visa application on the basis of the nominated occupation Café or Restaurant Manager. The applicant also stated that she worked as a Restaurant Manager for Chawlas 2 (C2) from September 2015 to June 2016 and then for Hunger Delights from June 2016.

5. The application also stated that she had a suitable skills assessment from VETASSESS dated 14 February 2019. Provided with the visa application was the VETASSESS skills assessment dated 14 February 2019. Included as part of the skills assessment was the applicant’s employment as a Restaurant Manager at Flavour N Spice Pty Ltd / Hunger Delights from September 2016 to February 2019. The skills assessment also stated that the following periods of employment:

• From September 2014 to June 2016, Restaurant Manager, Flavour N Spice Pty Ltd (FNS) / Chawlas 2, Australia.

• From June 2016 to August 2016, Restaurant Manager, Flavour N Spice Pty Ltd / Hunger Delights, Australia.

1. Provided to the Department in relation to the applicant working for FNS trading as C2 were the following documents:

• An employment statement on C2 letterhead dated 6 February 2019 and signed by FNS’s director, Mr Ripple Deep Kaur which indicates that that FNS trading as C2 employed the applicant from 1 September 2015 to 14 June 2016 in the position of Restaurant Manager and that her supervisor was Mr Kaur. The statement also listed the applicant’s main duties.

• An undated letter on C2 letterhead signed by Mr Kaur stating that the applicant worked for C2 from1 September 2015 to 14 June 2016 and which also listed the applicant’s duties.

1. The applicant also stated in her visa application that

• An undated statement on Hunger Delights; letterhead and signed by Mr Kaur which stated that the applicant worked for Hunger Delights from 15 June 2016 to now as a Restaurant Manager and listed the main duties.

• A second copy of the statement referred to immediately above which is however, dated 2 May 2019.

1. Provided to the Department were the applicant’s ATO documentation and superannuation documents as follows:

• PAYG summaries issued by FNS to the applicant and her Notices of Assessment for the tax year ending 30 June 2016 and 2017. The 2016 PAYG summary has the ATO receipt attached.

• The applicant’s Notice of Assessment for the tax year ending 30 June 2018.

• BT Financial Group statements for the applicant’s BT Super for life account from 1 June 2015 to 1 July 2016, 1 July 2017 to 1 July 2018 and 1 July 2018 to 1 July 2019 which include a number of transactions including contributions but does not indicate who made the contributions.

• Payslip issued by FNS on 21 July 2016 for the applicant’s fortnightly pay.

1. On 14 October 2019, the Department received from VETASSESS copies of the employment documents you provided to them to support your skills assessment.

2. The documents the applicant provided to VETASSESS in relation to her work with C2 included the statements, the payslip dated 21 July 2016, the PAYG payment summary for the tax year ending 20 June 2016 with receipt and the superannuation account statement for the period 1 July 2015 to 1 July 2016 listed above and the following:

• An organisational Chart.

• Employment contract between the applicant and FNS dated 1 September 2015.

• A payslip issued by FNS on 7 January 2016. The payslip incudes employer superannuation contribution which are stated to be made to BT.

1. The documents the applicant provided to VETASSESS in relation to her work with Hunger Delights included the statement and the 2017 and 2018 PAYG summaries and Notices of Assessment listed above and the following:

• An Organisational Chart.

• Payslip issued by FNS on 12 January 2017, 8 June 2017, 28 June 2017, 15 February 2018, 31 January 2019. The payslip incudes employer superannuation contribution which are stated to be made to BT.

• BT superannuation statement for the applicant’s BT Super for Life account listed above, as well as, for the period 1 July 2016 to 1 July 2017 and 1 July 2018 to 2 February 2019.

1. In and around January 2020, the Department commenced employment verification checks. The online checks included:

• A Google internet search of Hunger Delights Toowoomba indicated that Hunger Delights was permanently closed.

• An ASIC search of Hunger Delights which indicated that the principal place of business was Shop 2 217 Margaret Street Toowoomba. A Google search of that address indicated that the premises were up for lease.

• A Google search of ‘ provided a result of a Facebook page which indicted that the last post was in July 2016.

• The Facebook page included the mobile number, #6640. Around 6:00 pm on 28 January 2020, the delegate tried to call that number six times but there was no answer.

• The Australian Good Food Guide website indicated that the listing for Hunger Delights no longer existed.

• The True Local listing for Hunger Delights included, amongst other numbers, the mobile number listed on the Facebook page.

1. On 28 January 2020, the delegate made a number of phone calls as part of the applicant’s employment verification checks. The delegate first attempted to call a number of times the phone number on the statements from Hunger Delights, #1670 but the number was not in service. The delegate then called the applicant at 5:37 pm and after verifying that the applicant had answered the call, the delegate recorded the conversation in a written record of the telephone call as follows:

   PA advised she is the Restaurant manager and has been working for the business since 2016 and with Hunger delight for the last 3 years (could not advise exact dates)

   PA advised she was still employed by the company and worked from 11am to 8 pm. I asked if she was currently at work as it was 5:37 and it did not sound like she was in a restaurant. PA advised she was on her break and was at the market currently making her way back to the restaurant.

   PA said she managed 2 waiters, one kitchen helper and the Chef

   PA said she managed the paperwork,

   Weekly pay for all including herself, she’d prepare and issue payslips and transfer salaries into individuals accounts on a weekly basis.

   Discuss menu changes with the Chef eg in summer introduce new menu to fit the season

   PA claimed to work between 38 to 40 hours per week and would receive an income of $850-860 per week after tax. Super find is BT Super

   I asked if she worked anywhere else – to which PA advised she worked Part time at a fuel station. I asked which fuel station – BP Ashgrove only part-time when they were short staff and when she was not working at Hunger Delights.

   I asked how long her break was to which she advised she would have been back at the restaurant if it was not for the phone call. I asked for the telephone number of the restaurant – the number provided was [#1670], I repeated the number twice PA confirmed that was the restaurant number. I advised the PA I had already made numerous attempts to call the restaurant on that number however it seems to be disconnected. PA advised that is the restaurants number and it is operational.

   PA confirmed the restaurant manager/owners name is Ripple Deep Kaur. PA advised she is currently offshore.

   Thanked PA for her time and ended the call.

2. The delegate after the call with the applicant, called at 6:00 pm the mobile number for Mr Kaur, #4013 written on one of the Hunger Delights’ statements, however, the call went through to voice mail. The delegate also called two different mobile numbers that had been provided to the Department, but they were either not connected or went through to voice mail.

3. In relation to BP Ashgrove were the applicant stated that she worked part time. The delegate called the number located on an online search for the petrol station and the call was answered by an employee working at BP Ashgrove. After introductions and advice on the purpose of the call, the delegate recorded the conversation in a written record of the telephone call as follows:

   …confirmed PA worked at BP Ashgrove had been at work today and finished her shift at 2pm (this contradicts PA’s claims she was working at Hunger delights from 11am on the day) Shree advised he was unable to provide any other information. He directed me to speak to their manager … and provided his mobile number

4. The delegate then contacted the manager of BP Ashgrove on the mobile provided at 6:00 pm and After introductions and advice on the purpose of the call, the delegate recorded the conversation in a written record of the telephone call as follows:

   [The manager] advised PA worked as Café lead/customer service, Permanent Part time Monday to Friday. Monday to Thursday this week she worked from 5am to 2 pm and Friday she was rostered to work 5am to 10 am. PA worked approximately 66 hours per f/night that is 33 hours per week.

5. On 3 February 2020, the Department sent the applicant a natural justice letter (the natural justice letter) which referred to the applicant stating in her visa application that she worked for C2 as a restaurant Manager but did not wish to claim points for that employment and for Hunger Delights which she was seeking to be awarded points for skilled employment.

6. The natural justice letter also listed the employment and other documents provided to VETASSESS as part of the applicant’s skills assessment. The delegate in the natural justice letter then stated that the payslips provided to the Department and VETASSESS included claim that employer superannuation contributions had been made to the applicant’s BT superannuation account but that the BT superannuation statements (listed above) do not indicate that the contributions listed are from C2 or from Hunger Delights.

7. The natural justice referred to the internet searches that indicated that Hunger Delights was permanently closed and not operating from the address indicated in Google searches and that this contradicted the applicant’s statement during the employment verification checks call that she was working at the restaurant but was on a break at the market.

8. The natural justice letter referred to the applicant confirming the phone number for the restaurant, which was repeated back to the applicant twice, however, the number was the one that the delegate had attempted to call the number numerous times but the number seemed to be disconnected. The letter then stated that after the delegates’ call with the applicant another attempt was made to call the restaurant on that number but with no success. However, a staff member of BP Ashgrove confirmed you had been working on the day of the delegate’s call to you until 2:00 pm. Further, the roster details obtained from the manager of BP Ashgrove contradicted the applicant’s claim that she was working at Hunger Delights that day from 11:00 am.

9. The natural justice letter also stated that the Department had received numerous allegations including that the applicant had provided false financial documents, and education and employment experience. The Department had also received information that the applicant did not work for Hunger Delights but instead worked permanently for a BP Petrol station.

10. The natural justice letter stated that, in light of the above concerns, the delegate was not satisfied as to the truthfulness of the applicant’s clams that she performed the duties of a Restaurant Manager with Hunger Delights in Australia from June 2016. Therefore, the delegate reasonably suspected that the applicant provided to the Minister and to a relevant assessing authority, false or misleading information in relation to her employment as a Restaurant Manager at Hunger Delights in Australia.

11. On 28 February 2020, the applicant responded to the natural justice letter by providing a statutory declaration of the applicant dated 26 February 2020 and supporting documents. The application declared that she was employed at the C2 location from 1 September 2015 to 28 June 2016 as a Restaurant Manager. On 29 June 2016 she joined Hunger Delights and continued to work full time in the position of Restaurant Manager until 2019. At the time of the lodgement of the applicant’s Subclass 489 visa application she was compliant with the Department’s employment requirements and has provided documents to support this. The supporting documentation provided included the ATO documentation and superannuation statements, as well as:

    ·The CBA Business Transaction Account is held by the director at the Hunger Delights’ address in Margaret Street Toowoomba from 10 June 2016 to 30 June 2019.

    ·A Westpac Business One account in the name of Directors of FNS at an address in Benhiam St, Calamvale, QLD from 2 June 2014 to 30 June 2016.

    ·Documents addressed to FNS being Council assessments, a pest control invoice, as well as, grease trap cleaning payments and work cover insurance payments made from the CBA account and a food licence. The documents are dated from 5 September 2016 to 20 March 2019.

12. On 18 September 2023, the applicant provided to the Tribunal a submission from the applicant’s representative dated 18 September 2023 (the September submission) together with supporting documentation.

13. The information included the applicant’s Individual Tax Returns for the tax years ending 30 June 2016 to 2022 and Notices of Assessment for the tax years ending 30 June 2018 to 2022. The Individual Tax Returns indicate that the payer of the applicant’s salary or wages for tax years ending 30 June 2016 to 2019 was FNS.

14. The Individual Tax Return for the tax year ending 30 June 2019 indicated that that the applicant was also being paid a salary by No.1 Riverside Quay Pty Ltd which trades as BP Retail and continued to be paid by this company until the tax year ending 30 June 2022. The Tribunal was also provided with three offers of employment dated 16 June 2017, 21 May 2019 and 14 April 2022 from BP Retail to the applicant.

15. Also provided was an employment confirmation letter dated 10 September 2023 from Christopher Woulahan, the manager at BP Ashgrove. The letter dated that the applicant had been a member of the team since 2017. After enquiries from the Tribunal, Mr Woulahan confirmed by email on 23 October 2023 that the applicant’s start date with BP Ashgrove was 19 June 2019.

1. The Individual Tax Return for the tax years ending 30 June 2021 and 2022 indicate that that the applicant was also being paid a salary as a Child Care Worker. In relation the applicant’s work as a Child Care Worker, the Tribunal was provided with, amongst other documents, the following:

   ·The applicant’s Certificate III Early Childhood Education and Care awarded by Allora College on 1 September 2021.

   ·Employment agreements between the applicant and Guardian Childcare & Education dated 22 April 2021, 11Juen 2021, 10 August 2021, 25 February 2022 and 2 November 2022. The last employment contract indicated that the applicant was employed on a full time basis as Assistant Centre Manager. This confirmed in an employment verification letter dated 10 September 2023.

   ·Information on skills shortage in Childcare.

2. The September submission, in relation to the phone call between the delegate and the applicant on 28 January 2020 as part of the employment verification checks, submits that the applicant acknowledges that she misunderstood the phone call and provided false information. The submission then stated that:

   She had been employed as a Restaurant Manager until 2019. However, on the evening of 28 January 2020, she received an unsolicited call from a number with no caller ID. Due to her awareness of prevalent phone call scams, she initially misunderstood the call as potentially fraudulent. Consequently, she proceeded to provide false information over the phone with the intention of protecting her personal information (i.e., she did not intend to disclose that she wasn’t working there). Regrettably, it was only later that she realized the call was legitimate, but by then, it was too late to rectify the situation.

3. On 23 October 2023 the Tribunal was provided with a further representative’s submission (the October 2023) which stated in relation to the phone call on 28 January 2020 as follows:

   On January 28, 2020, during the phone conversation, the applicant misinterpreted the question, leading to the provision of inaccurate and misleading information in a material context. At the time of the call, the applicant was aware that Hunger Delights was no longer operational. She mistakenly believed the officer was inquiring about her current position as a "Restaurant Manager" at Hunger Delights, which caused confusion and resulted in an unintentional error, leading to inaccurate responses

4. It was further submitted in the October 2023 submission that the applicant was employed by Hunger Delights until June 2019 and after the business ceased due to financial difficulties the applicant assisted her employer in winding down process until September 2019. A statement from Mr Sai Chellogu dated 11 October 2023 stated that he worked as a Cook from 2017 to December 2018 at Hunger Delights and during that time the applicant held the full time position of Restaurant Manager.  Attached to the statement of Mr Chellogu was his PAYG summary for the tax year ending 30 June 2019 and his drivers licence. Subsequently the Tribunal was provided with an extract from ASIC which indicated that FNS was deregistered on 16 June 2022.

5. On 25 October 2023, the Tribunal was provided with a letter from the applicant’s superannuation provider, Mercer Superannuation (Australia) Limited (Mercer) dated 24 October 2023 which stated that FNS had made employer contributions to the applicant’s superannuation account from 1 February 2016 to 6 August 2019. The Tribunal accessed the Mercer website on 31 October 2023 and it stated that from 1 April 2023 BT superannuation accounts were transferred to Mercer Super.

6. At the hearing the applicant stated that around June 2016 she started to work for Hunger Delights. The restaurant was a Mexican Bar with a maximum capacity of 40 and there was no liquor licence and it also provided take away meals. The applicant worked from 11 am to 8:30 pm which were the opening hours of the restaurant. The team consisted of 4 to 5 people. The team became less as one left in 2018 and there were some casuals as well. It was the Cook who left, and it was around December 2018.

7. At the hearing the applicant stated that the financial difficulties started around the 2018 to 2019 financial year. The business dropped down from the beginning of that financial year and in the end it was bad. The applicant confirmed that by 30 June 2019 the business was bad and had stopped. The business was wound up in September 2019 and after further questioning from the Tribunal the applicant stated that the business stopped trading around June 2019.

8. At the hearing the Tribunal asked the applicant what she did when the restaurant stopped trading and the applicant stated that she did more hours with BP Ashgrove and she was looking for more jobs as a Restaurant Manager. The applicant stated that she helped Ms Kaur with the winding down of the business from June to September 2019, her hours were sometimes a whole day and sometimes it was a few hours in the day, it was flexible. It was not everyday it was 3 days a week including working online and calling. The applicant confirmed she was being paid for her assistance. The applicant confirmed that prior to the business closing its doors in June 2019, she worked 38 to 40 hours and during the opening hours.

9. At the hearing the applicant stated that she started to work in June 2017 for BP Ashgrove on a casual basis. The applicant confirmed she did not have set hours, but she worked many hours as the family in Australia and India had financial issues due to her father and brother’s deaths. The applicant spoke with Ms Kaur about and asked for her hours to be flexible but stated that she still worked 38 hours and fulfilled all her responsibilities. On average she worked around 32 to 33 hours a week until 2018. The applicant could not recall when in 2018 she reduced her hours at BP Ashgrove.

10. At the hearing the applicant confirmed that the primary method of payment was cash. The applicant confirmed that she was responsible for the banking and Hunger Delights’ account was with CBA, the cash was given to Ms Kaur at the end of the day and she deposited the cash into the bank account. Throughout the period credit cards were also accepted.

11. At the hearing the Tribunal referred to there being no more point of sale deposits into the CBA account from January 2018 and asked when business declined. The applicant stated that it was in the at the beginning of 2018 and it did not pick up. The Tribunal asked again when the applicant stopped working so many hours at BP Ashgrove and the applicant stated that she was not sure, but it may be around March to April 2018.

12. At the hearing the applicant confirmed that at the start of the call on 28 January 2020 the delegate did identify themselves and advised the applicant what they were calling about. The applicant sated that she could not remember if the delegate informed her at the beginning of the call that they were going to ask about her employment. After the delegate introduced themselves, the delegate asked questions about her duties and work as a Restaurant Manager. The delegate wanted her to confirm her duties, salary and superannuation. The Tribunal asked if she was asked about her working hours and the applicant stated that she thought they asked about the opening hours. The applicant confirmed that she was asked if she was working on that day and she did say that she was working. 

13. At the hearing the Tribunal asked the applicant what she stated to the delegate when the delegate stated that it did not sound like she was at a restaurant. When the applicant did not answer the question, the Tribunal asked what was the applicant’s response to the delegate’s question as to where she was, and the applicant stated she said she was at the restaurant. The Tribunal referred to the applicant stating to the delegate that she was at the market buying food for the restaurant and the applicant stated that she may have said that as she was confused and stressed.  The applicant stated that she spoke with the delegate for 20 to 25 minutes. The Tribunal said that does not suggest that the applicant thought it was a scam and the applicant stated that once she was asked about her duties, she thought it was a real call and answered as to her actual experience. The Tribunal referred to the question about whether she was working came after she told the delegate about the duties and the applicant stated that she could not remember. The applicant confirmed that the statement was not true and the applicant stated that she did not mean to as she was confused and not in her correct mind and it was not her intention and she was worried about her children’s future.

14. At the hearing the applicant stated that she a working Wednesday to Saturday at Hunger Delights and she worked Mondays and Tuesdays most of that time at BP Ashgrove.

15. At the hearing Ms Kaur stated she first employed the applicant in 2018 at C2. When Ms Kaur sold C2 in May 2016 and the applicant then worked at Hunger Delights, even the Cook moved to that restaurant. Hunger Delights was Mexican and had a capacity of 40. She employed 4 to 5 people until December 2018 as she tired to keep everyone, in the 2018 and 2019 financial year the business was making a loss so after December 2018 the staff numbers reduced. Hunger Delights stopped trading when the lease ended on 13 June 2018, and it took 2 to 3 months to wind up the business. The business was primarily cash, initially there were some eftpos payments, but most customers paid cash. The staff encouraged cash payments and they stopped using eftpos. Business dropped off from June 2018 and expenses grew so the business was making a loss.

16. At the hearing Ms Kaur stated that the applicant was working flexible hours from the beginning of 2018 and when Ms Kaur was pregnant, she moved to fixed hours, Wednesday to Saturday. The flexible hours were during the period the applicant’s family was suffering financially, the applicant had told her that she was working at BP Ashgrove and Ms Kaur allowed her to work so long as she worked her 38 hours. The applicant also took personal leave. The applicant’s hours became fixed around May 2018. Ms Kaur confirmed that the applicant worked her full hours until the restaurant closed. In July 2019 the applicant helped her to close the business but there were not fixed hours and she paid her in cash. There were a few customers in June and in May 2019. Ms Kaur stated that she has stopped advertising and promoting the restaurant in 2017. The business made a loss in the tax year ending 30 June 2019.

Conclusion

1. The delegate found that the applicant had given to the Minister and the relevant assessing authority false or misleading information as to her employment as a Restaurant Manager with FNS trading as Hunger Delights. The information was that set out in the employment statements, payslips, the superannuation statements referred to above and related to the applicant’s claimed place of employment, dates of employment, duties undertaken and claimed remuneration. Based on this finding the delegate found that the applicant had caused to be given information that is false or misleading in a material particular and did not satisfy PIC 4020.

2. On the evidence provided to the Tribunal, which was not before the delegate, particularly the ATO documentation indicating that the applicant was being paid a salary by FNS until the tax year ending 30 June 2019 and other financial information including FNS’s bank statements that FNS trading as Hunger Delights operated until June 2019. The Tribunal has also been provided with information that confirmed that FNS made employer superannuation contributions to the applicant’s superannuation account from 1 February 2016 to 6 August 2019. There is no information on the files that indicates that up until June 2019 the applicant was not employed by FNS trading as Hunger Delights as a Restaurant Manager and performing the duties of that position. There is no evidence that the applicant was employed prior to June 2019 in any other position. The applicant and Ms Kaur confirmed that the applicant also worked at This is supported by the evidence BP Ashgrove on a casual basis from June 2017.The causal basis of the work is confirmed by the BP retail employment contract with the applicant.

3. On the above, the Tribunal is satisfied that the applicant did not provide or cause to be provided to the Department or to a relevant assessing authority false and misleading information as to her employment with FNS trading as Hunger Delights.

4. The Tribunal is satisfied that the applicant provided a false information on 28 January 2020 that she was still employed as a Restaurant Manager, however, the Tribunal is not satisfied that the information is false or misleading in a material particular. The employment information set out in the applicant’s visa application and provided subsequently in relation to her employment as a Restaurant Manager at Hunger Delights is relevant to cl.489.224 and Schedule 6D as the applicant is claiming employment points. The skills assessment and the documentation on which the skills assessment was based is relevant to cl.489.222. Both cl.489.222 and 489.224 are to be met at the time of invitation to apply for the visa which was 20 May 2019, and the Tribunal is satisfied, that at the time of the invitation, there was no false or misleading information provided to the Department or the relevant skills assessing authority. The applicant’s information provided to the delegate on 28 January 2020 is false or misleading, but it is not relevant to any criteria for the grant of a Subclass 489 visa.

5. Therefore, on the above the Tribunal is satisfied that the applicant has met the requirements of PIC4020(1). In reaching this conclusion the Tribunal has taken into account the community information covered by the certificate issued by the Department pursuant to s.376. A copy of the certificate was provided to the applicant by the Tribunal on 4 September 2023 together with the gist of the information covered by the certificate. The Tribunal is satisfied that the certificate is valid.

Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(1)?

1. PIC 4020(2) requires the Tribunal to be satisfied that the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing 3 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2AA).

2. There is no evidence before the Tribunal that the applicant or any member of the family unit (as defined in r.1.12) have been refused a visa in the relevant period because of a failure to satisfy PIC 4020(1). Therefore, the Tribunal is satisfied that PIC 4020(2) is met.

Has the applicant satisfied the identity requirements?

1. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity. The Tribunal has viewed the relevant passports, birth certificates, police certificates, and marriage certificate on the Departmental file for the applicants and the Tribunal is satisfied as to their identities. Therefore, the Tribunal is satisfied that applicants meets PIC 4020(2A).

Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?

1. PIC 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2BA).

2. There is no evidence before the Tribunal that the applicant or any member of the family unit (as defined in r.1.12) have been refused a visa in the relevant period because of a failure to satisfy PIC 4020(2A). The third and fourth named applicants were born on 18 October 2005 and 17 November 2009 and were under 18 years at time of application. Therefore, the Tribunal is satisfied that PIC 4020(2B) does not apply.

3. On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl 489.211.

DECISION

1. The Tribunal remits the applications for Skilled Regional Sponsored (Provisional) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 489 - Skilled - Regional (Provisional) visas:

   ·Public Interest Criterion 4020 for the purposes of cl 489.211 of Schedule 2 to the Regulations

Namoi Dougall
Member

ATTACHMENT

Migration Regulations 1994

Schedule 4

1. (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.

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Migration Act 1958

s 5      Interpretation

(1) In this Act, unless contrary intention appears:

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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.

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