Avtar Singh (Migration)

[2021] AATA 4989

Avtar Singh (Migration) [2021] AATA 4989 (23 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Avtar Singh
Mrs Gurjeet Kaur

CASE NUMBER:  1907144

DIBP REFERENCE(S):  BCC2016/1133672

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:        23 September 2021 at 2:40 pm (VIC time)

DATE OF WRITTEN RECORD:               6 October 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions under review.

Statement made on 06 October 2021 at 7:08pm

CATCHWORDS
MIGRATION – Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 (Skilled – Nominated) – false or misleading information in previous visa application – Cook – skills assessment – claimed employment history – waiver of requirement – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65
Migration Regulations 1994 (Cth), Schedule 2, cl 190.216; Schedule 4, PIC 4020

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 15 March 2019 to refuse to grant the visa applicants Skilled Nominated (Permanent) Subclass 190 visas under the Migration Act 1958 (the Act).

2. At the hearing on 23 September 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. Mr Avtar Singh, you have been in Australia since 20 July 2008, having arrived as the holder of a subclass 572 student visa.  Since that time, you have been granted a 457 visa, another 572 student visa in 2013, another 572 student visa in 2014, a 489 skilled regional visa in January 2015 when you told the Tribunal you were working in Canberra or Queanbeyan.  The 489 visa was cancelled under section 109.  The delegate found there was evidence you had provided false and misleading information and therefore had breached PIC 4020.

4. You lodged this application on 15 March 2016.  Your application was refused on 15 March 2019 because the delegate found you did not meet a criterion in Regulation 190.216 which is a mandatory requirement which deals with what are known as Public Interest Criteria. (PIC)  

5. To be eligible for the grant of a 190 visa, applicants must satisfy a range of criteria set out in the regulations, and one of those is this clause 190.216. One of those criteria is PIC 4020, which requires there be no evidence before the Minister, or in this case the Tribunal, that the applicant has given or caused to be given to the Minister, an officer of the Tribunal during the review, 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 the application for the visa or for a visa the applicant held in the period of 12 months before the application was made.

6. In your case, the delegate found that in your application for your 489 visa, which was the visa that you held before applying for this visa, you had provided evidence that was false or misleading in a material particular. 

7. You appealed that decision to be reviewed by this Tribunal and with your application you included a copy of the primary decision. You told the Tribunal you had read and understood that decision and in our discussions early in the hearing it became apparent that you did understand why that decision has been made. 

8. I read from that decision, and we discussed it at some length, and what it states is that you had applied for a Skilled Nominated visa with your nominated occupation of Cook (ANZSCO 351411). In support of the application you provided a skills assessment from TRA, and that skills assessment had been issued partially on the basis of your claimed employment and supporting documentation from Haveli Hotel and Palace that had formerly been known as Lazeez Restaurant.  During the processing of your application for the 190 visa that you held previously, Department officers visited the business where you claimed to work at Haveli Hotel and Palace, and, reading from the decision record, it says:  

   Upon arrival, the officers spoke with an employee in the kitchen. It was advised that an employee named Mr Bhim is the only cook in the hotel. As Mr Bhim was currently visiting his hometown, the cook’s helper was working in his absence.

   When asked about you, the employee advised that he had never heard of you, and that you had never worked there. It was again stated that Mr Bhim was the only cook employed from the time the hotel opened.

   The officers then spoke with the owner/referee. The following information was provided:
   ● The business was started in 2006 and was originally named Lazeez Restaurant. This was later changed to Haveli Hotel and Palace.
   ● There were three rooms and one banquet hall. There was no restaurant.
   ● The banquet hall was hired out for different events such as weddings and birthday
   parties, and on those occasions cooks were hired from outside.
   ● Mr Bhim was the cook and there was also a kitchen hand and helper, and a driver. Mr Bhim had been the cook since the business opened.
   ● The business had 2-3 functions booked per month only.

   When asked about you, the referee initially said that you were a cook and worked there for 2-3 years, however he couldn’t remember when but it might have been between 2006 and 2009. He stated that you worked full time.

   The officers then said that you completed your course graduation in 2007, so how was it possible that you attended your classes while working full time. The referee then became nervous and then admitted that you had actually never worked there.

   The following was then advised:
   ● The referee did not know you, but was friends with your cousin and was asked to help you get a visa.
   ● No money was taken for providing you with employment documents
   ● You never worked there, he only provided you with letters on the business’s letterhead.
   ● The officers then asked the referee to provide them with a letter on company letterhead stating that he provided non-genuine information to the department, which was done.

   The Department wrote to you on 04 September 2017, inviting you to comment on these findings. In response, we received an email from you, in which you provided an explanation towards the adverse information.

9. They wrote to you again in August 2018 to which you responded stating:

   My employer did not supported in my case me because he was looking for a large amount of money which was not in capcity to pay him.  So he simply gone against me to realise me how big mistake, I have done by not paying him money, which he demanded under the name of immigration inquiry officers, even though before the cancellation of 489 visa.  I requested the visa officer that I knew few regular customers and worker which was present at there that can provide their details of contact and affidavit from to support my claims of employment, but it looks to me that officer was just determined or prepared to cancel by visa by his on discretion. I have mentioned that all the workers are not permanent, most of them are temporary come across from other states just work their seasonally, which makes bit hard to find out them. 

   Secondly about letter which were sent to me on 3 July 2015 and 5 August 2016 regarding Haveli Hotel and Palace (Haryana, India) employment claims which used to be (Formerly Lazeez Restaurant).  I have withdrawn my first application due to constantly demand of money by my employer to take my case on next level for the positive outcomes, but officer if my employer was so honest, then why he signed all the payslips and attendance register,  No body does favours in free, officer in my approximately 10 years career in Australia, no body has done anything free for not even my real cousin brothers, So how my employer can do it free for me.  I am just totally unable to understand how or on what basis he is considered honest and true and on what parameters are used against me to considered bogus or false.

10. You go on to say you have never breached any conditions of your student visa or had any other complaints against you:

    I must admit few mistakes done by me in my past that, I have admitted previously as well that due lack of poor guidance of migration agent and family pressure which lead me to withdraw my letter on 3 July 2015. which is becoming from a small mistake to blunder to me, because I am facing it again and again.  However, I have worked for the Hotel, so I was not willing to negotiate my hard work and my efforts which means a lot to me that was my very first job as kid and very frankly I never even thought that time I will go to Australia and use this work experience in my career.

    That time my goals were different and that work just extra pocket money to support and sustain.

11. You go on to say that your employer’s version of events is fabricated.

12. You state that you did not fill out the 489 visa application but it was completed by a migration agent. You say you gave them documents and the forms were completed by the agent or his staff.

13. So it is your claim that the employer has changed his story and provided bogus information or has provided false information and you are not responsible. 

14. The delegate was not satisfied with your response and refused your application.

15. You have today told the Tribunal that you worked at this business full time for five years. You say you worked there six days a week from mid-afternoon till late at night, 10 or 11 o’clock, depending on how busy it was. You also claim you worked on weekends for 12 hours each on Saturday/Sunday.  You also provided evidence that during much of that time you studied from the morning until 1.30 or 2.15 in the afternoon.

16. It seems extraordinary to me that someone would work six days a week, including 24 hours every weekend, and refer to it as just earning extra pocket money to support and sustain.  I am not sure that that level of work could be classified as someone who was just earning pocket money. 

17. When I repeatedly asked you about your plans and motivation at that stage, given that you were studying a Bachelor of Arts, you were unable or not prepared to provide me with an answer, despite the fact that I asked you the question a number of times.

18. Your agent, Mr Mishra, makes the point that you worked there five years, which is a long time, and says that if someone was going to provide evidence that was false about where they had worked they might do that if they had worked there or they claimed they worked there for a year or two, but not if they had worked there for five years, which is a different proposition altogether.

19. You say that there is evidence that the business changed its name from Lazeez Restaurant to Haveli Hotel and Palace on 1 August 2006.  So presumably prior to 2006 it traded, as Lazeez Restaurant. 

20. There is no evidence before the Tribunal of when Lazeez Restaurant started trading. While when the officers spoke to the owner he said the business started at 2006, he may well have been talking about Haveli Hotel and Palace, and I accept that Lazeez restaurant may have been operating before that time, because you claim that you worked there from 2003 to 2008.

21. There are certainly questions as to what and when things happened, however, my job is to look at the available evidence and decide whether you are eligible for the grant of a 190 visa.

22. The delegate was clearly most influenced by the evidence of the interview with the owner who stated that this Mr Bhim was the only cook in the place and had been since the business opened. 

23. When put under pressure, the owner said he had provided you with documents because he was friends with your cousin and was asked to help you get a visa. He stated that you never worked there.  You say the owner has changed his mind and his story because he is now doing is seeking to extort money from your, or says, ‘You give me money, and I will give you letters that say you worked here so you can get a visa.’

24. When the Tribunal considers the circumstances, it is that it is not just the evidence of the owner.  When Department officers first arrived at the business premises they spoke to an employee in the kitchen who said that Mr Bhim was the only cook at the hotel and that he was working there because Mr Bhim had gone to visit his home. The employee stated that Mr Bhim was the only cook that had been employed from the time the hotel had opened, and that the other employee had never heard of you.  So the same information was provided from two separate sources.

25. On one hand, we have two people saying you never worked there and, on the other hand, you saying you did work there.

26. I do not believe that you have provided satisfactory evidence to support your claims and I am more inclined to believe the evidence of the two people interviewed by the officers when they attended that workplace.

27. Consequently, the Tribunal finds that in support of your application you provided evidence of working that is false or misleading and therefore creates a breach of PIC 4020.

28. As we discussed, if the Tribunal finds a breach has occurred, it must consider whether the need to satisfy PIC 4020 might be waived, which it can be, if there are compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen, permanent resident, or an eligible New Zealand citizen. 

29. We discussed that.  You said you understood it completely and said that there were no circumstances existing that would lead to a waiver of PIC4020.  The Tribunal therefore finds there is no evidence of circumstances in which this matter should be waived.

30. So, having found that you have breached PIC 4020, you therefore do not satisfy clause 190.216. As you do not satisfy clause 190.216 you are not eligible for the grant of a visa therefore it is the decision of this Tribunal to affirm the decision under review, and this decision was made at 2.40 pm on this 23 September 2021.

    DECISION

31. The Tribunal affirms the decisions under review.

    Tim Connellan
    Member