Atluri (Migration)

[2023] AATA 4440

Atluri (Migration) [2023] AATA 4440 (30 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Vamshikrishna Atluri

REPRESENTATIVE:  Mrs Claudia Zych (MARN: 1799220)

CASE NUMBER:  2112688

HOME AFFAIRS REFERENCE(S):          BCC2020/464642

MEMBER:Noelle Hossen

DATE:30 October 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for a Skilled Nominated (Permanent) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 190 - Skilled - Nominated visa:

·Public Interest Criterion 4020 for the purposes of cl 4020(1) of Schedule 2 to the Regulations

Statement made on 30 October 2023 at 3:49pm

CATCHWORDS
MIGRATION – Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 (Skilled – Nominated) – Analyst Programmer – false or misleading information – claimed employment – employment reference – payslips – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 31 August 2021 to refuse to grant the applicant a Skilled Nominated (Permanent) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 17 February 2020. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 4020(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because

3. The applicant appeared before the Tribunal on the 20 September 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Tom Kosmidis who is his employer.  

4. The applicant was represented in relation to the review.

5. The application was the subject of a Departmental Certificate pursuant to section 375A, which was dated the 21 October 2022.The details of the Certificate was provided to the applicant by the Tribunal by letter dated the 17 August 2023 and the applicant was required to comment by the 15 September 2023.The Tribunal did not receive a submission from the applicant in respect of the section 375 A Certificate.

6. The applicant did provide the Tribunal with submissions and documents to include but not limited to the following:

   Employment offer letter dated 2/08/2019

   Employment contract 7/08/2019

   Statutory declaration of Managing Director dated the 9/12/2020.

   Pay slips

   Bank statements

   EOI points Breakdown

   Employment contract area manager.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

9. 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?

10. 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.

11. 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.

12. 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.

13. The applicant and his witness Tom Kosmidis were adamant that they did not provide any false and misleading information to the Department.

14. The applicant made an application for a Skilled Nominated SN190 Visa on 17 February 2020.

15. The Nominated Skilled occupation was Analyst Programmer (ANZSCO code 261311).

16. In the visa application form the following claims were made:

    Invitation date 22/ 01/ 2020

    Invitation expiry date 22/ 03/ 2020

    Nominated by South Australia Subclass 190

    Visa application stream: Skilled nominated

    Invited pathway: State and Territory nominated

17. The applicant declared that he had employment as a System administrator by Andrash Management Pty Ltd in Australia from 7 August 2019.

18. The applicant declared that he was employed by the business and it was a multi-site service station, and his occupation and duties were as a system administrator. In his expression of interest dated 4^th of November 2019 and his application form dated 17 February 2020 he claimed 5 points for State – Territory nomination.

19. In March 2020, the Department contacted immigration South Australian and requested copies of the documentation submitted to that authority to obtain the applicant’s State Nomination. In August 2019, Immigration South Australia provided the requested documents.

20. The following documents were provided to the Department:

    Employment Reference dated 12 November 2019 confirming employment as a System Administrator from 7 August 2019 working part-time, ( 20 hours per week) listing duties, signed by Tom Kosmidis, Director.

    Payslips for the following periods: 5 August 2019-10 November 2019.

21. In assessing the documents provided, the following concerns were identified by the Department:

    The payslips provided by the applicant were all very similar. They all contain the same salary, superannuation amounts and tax amounts. The Department was of the view that as a systems administrator the applicant would be required to work outside of normal working hours to deal with any system errors. The Department concluded that there was no evidence in the payslips of working more than 20 hours per week or evidence of any overtime payments. The Department felt that this was concerning as the payslips may have been generated for the purpose of the application and may not be a genuine record of his employment.

22. In his evidence Mr. Tom Kosmidis (Director) indicated that at the time he could only employ the applicant for 20 hours per week in his role in 2019.

23. The Department attempted to verify his claimed work experience provided to immigration South Australia, so officers from the Department made a series of employment verification checks.

24. At the hearing the Tribunal put to the applicant and his witness the matters contained in the Decision of the Delegate to clarify the matters raised. The overall conclusion that the Tribunal came to is that the evidence collected by the Departmental officers did not categorically prove the fact that the evidence provided in the application was false or misleading. The applicant readily admitted that he spoke to the Department officer and that he was not sure when he answered the telephone whether it was a genuine call from an officer from the Department, so he gave vague answers and was not focused at the time.  He was answering the phone at the store that he was working at, at the time of the call.

25. He said that he is now working as an area manager and looks after 15 service stations. He now gets paid $70,000 as a salary package which includes a car, fuel, and a laptop. He said that during the time that he has lived in Australia, he has completed his Masters degree and completed a professional year.

26. He confirmed that he did not give in-depth information to the Departmental Officer at the time that he answered the call. His employer confirmed that the payslips had not been generated for the purpose of the application and represented a genuine record of his employment. The Tribunal accepts the evidence of the applicant and his witness and does not have any concerns that the employment documentation provided by way of employment reference dated 12 November 2019 are not genuine. The Tribunal is satisfied that the applicant’s oral evidence at the hearing resolved all concerns that the Tribunal had about the matter and raised in the delegate’s decision. The Tribunal finds that the applicant and his witness were truthful in their evidence and that the applicant did perform the duties of a system administration with Andrash Management Pty Ltd from 7 August 2019 to 17 November 2020.

27. The witness is the Director of the company Andrash Management Pty Ltd and the employer of the applicant. He gave his evidence in a forthright manner. His written evidence was in the form of a Statutory declaration. His oral evidence included information about the Business. He said that he was a Director of the company with his brother and that they opened 27 stores in 4 years and they now have 500 staff.

28. His Statutory Declaration stated as follows:

    Vamshikrishna Atluri was employed in the position of System Administrator and his tasks and duties were specified in the Statement of service I provided to him on the 12^th of November 2019 which he later provided to Immigration SA.

    Vamshikrishna was genuinely employed in this position between the 7^th of August and the 2^nd February 2020.

    Vamshikrishna discontinued to be employed as a System Administrator because he was seeking full time hours and I was not able to allocate more of Andrash’s budget towards this position as we already had another fulltime IT employee. As such Vamshikrishna decided to take a store manager position which provided him full time hours.

29. Mr. Kosmidis said that he looks after the hiring and firing of staff. The company now own and run 55 petrol stations. He has over 500 staff. He said it was hard to keep his finger on the pulse due to the size of the operation. He confirmed that the applicant has worked for the company for the last 4 years. In those 4 years they increased the size of the organisation by acquiring 27 stores.

30. He said that the applicant worked as an area manager and that he would not want to let him go as his work is pivotal to the organisation.

31. The Tribunal had no reason to doubt his evidence as he gave his evidence in a forthright manner. The Tribunal accepted the applicant’s explanation and accepts the supporting documents as further enforcing the point that he did work for his employer as claimed.

32. Therefore, the applicant meets PIC 4020(1).

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

33. 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).

34. The Tribunal is satisfied, on the basis of the known information before the Tribunal, that there is no adverse information before the Tribunal concerning the applicant or any member of the family unit (as defined in reg 1.12) as having been refused a visa in the relevant period because of a failure to satisfy PIC 4020(1)

35. Therefore, PIC 4020(2) is met.

36. On the basis of the information and evidence before the Tribunal, the Tribunal is satisfied that the applicant has met the identity requirements required under PIC 4020 (2A)

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

37. 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).

38. As the applicant has met the requirements of PIC 4020(2A) the Tribunal is satisfied that PIC 40290(2B) does not apply.

39. Therefore PIC 4020(2B) does not apply.

40. On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl 4020(1).

    DECISION

41. The Tribunal remits the application for a Skilled Nominated (Permanent) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 190 - Skilled - Nominated visa:

    Public Interest Criterion 4020 for the purposes of cl 4020(1) of Schedule 2 to the Regulations

    Noelle Hossen
    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.

    …