Bhogal (Migration)

[2020] AATA 4078

Bhogal (Migration) [2020] AATA 4078 (27 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Lovedeep Singh Bhogal
Mrs Sandeep Kaur
Master Baljodh Singh Bhogal

CASE NUMBER:  2003096

DIBP REFERENCE(S):  BCC2018/6053999

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:         27 August 2020 at 4:06 pm (VIC time)

DATE OF WRITTEN RECORD:                3 September 2020

PLACE OF DECISION:  Melbourne

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

·  cl.190.216 of Schedule 2 to the Regulations

·  Having found that the Mr Bhogal meets the essential criteria referred to above, the appropriate course is to remit the application of his wife and son for reconsideration.

Statement made on 03 September 2020 at 2:08pm

CATCHWORDS
MIGRATION –Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 – bogus document, or false or misleading information – business changed ownership and trading names –applicant was overpaid – reasonable explanation –decision under review remitted

LEGISLATION
Migration Act 1958
Migration Regulations 1994, Schedule 2, cl 190.216, Schedule 4, Public Interest Criterion (‘PIC’) 4020

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 12 February 2020 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 27 August 2020 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 Lovedeep Singh Bhogal, you applied for a 190 Skilled Nominated permanent visa on 19 January 2019, with your nominated occupation as Cook. 

4. Your application was refused on 20 February 2020, because the delegate found you did not meet a criterion in clause 190.216, which is a mandatory requirement which deals with what are known as Public Interest Criteria. (PIC)  

5. You appealed the decision to be reviewed by this Tribunal.  With your application you included a copy of the primary decision, which you told the Tribunal you have read and understood.  I read from that decision at length, and we discussed it in some detail, and it appears you now have a good understanding of why the delegate made the decision to refuse your application.  

6. To be eligible for the grant of a 190 Skilled visa, an applicant must satisfy a range of criteria set out in the Regulations.  One of those is PIC 4020, which states that to satisfy the criterion, 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.    

7. In your case, the delegate found that in support of your application, you had provided evidence that created a breach of PIC 4020.  We read from that decision in considerable detail, and I do not intend to go to back over it again.

8. However, there were a number of issues that were raised.  Many of them referred to the fact that the business you worked for had changed ownership and trading names and the registration had changed, et cetera.  There were a lot of references to how and why dates did not add up. 

9. If I can summarise what you have told me, and what I understand today, you started working with that company – it was a restaurant trading under the name of ‘Geronimo’s” in Cowes – on 1 December 2014, and you worked with them until 30 June 2016.  At some stage around that time, there was an event that you have referred to as a “natural calamity,” that you tell me was the collapse of a major wall of an adjoining business – I think you said a souvenir business – and the area became a construction site, which meant that Geronimo’s restaurant had to close down for a period of time. 

10. During the period of time it was closed, the business was sold to another entity.  However, that new entity subsequently decided to reopen the business, still trading under the name of Geronimo’s Pty Ltd. 

11. The delegate raised considerable questions about the transfer of trading names and business registrations.  It is not something that I believe a cook working in a restaurant necessarily would know anything about.  However, your explanation of the timim=ng of events makes sense.  

12. You told the Tribunal that at the time you were working as the holder of a 457 visa, and you had to therefore have the transfer of your nomination between employers, which you applied for, and the transfer was accepted.  You then resumed working for this Employer, a company called M2M, but the business resumed trading under the same old trading name, of Geronimo’s, and you worked there for the period of 1 July 2017 until 3 February 2019. 

13. The delegate raised a number of questions about payslips, payments, and where pay had gone.  You have told the Tribunal that your salary was paid into your bank account.  There was an occasion where there was an excess payment, made for working extra which I accept, in your role and industry, is not all that unusual. 

14. There is then some very messy figures that appear. You ceased employment on 3 February 2019.  However, you kept getting paid for approximately another month, and there are a range of explanations as to what happened.

15. However, the explanation I accept is that the bookkeeper, who did the pays, was unaware that your employment had been terminated, and she therefore kept paying you as though you were still working there full-time, until she became aware that you were not working there anymore.

16. At that stage, it was determined that the pays you had received as salary were to be reclassified and considered unused annual leave and other pay entitlements you were entitled to and should have received when you completed your work on 3 February 2019, although that was not reflected in the financial documents that were provided, which were basically the payroll system and the accounting of the company.       

17. I think it is somewhat naïve on your behalf, but I accept that you believed what was happening was that you were  being paid your entitlements on a weekly basis over the next few weeks after you finished to ease cash flow pressure and so that is why things happened the way they did.  

18. I am satisfied that you have provided the Tribunal with explanations for the issues that were raised by the delegate that led to the finding that you did not satisfy PIC 4020. 

19. On review, and having heard your evidence here today, and having reviewed the submission of your agent, which makes some strange references to a range of other precedent cases that bear no relationship to yours, I find that you have not provided evidence that was false or misleading in a material particular. 

20. I therefore find that you have not breached PIC 4020 as it relates to clause 190.216, and I therefore find that you do satisfy clause 190,216.

21. It is therefore my intention to remit this matter to the Department, with the advice that you satisfy 190.216.  So that is my decision, and it was made at 4.06 pm on 27 August 2020.

    DECISION

22. The Tribunal remits the application for a Subclass 190 Skilled Nominated visa for recononsideration with the direction that the applicant meets the following criteria :

    ·     cl.190.216 of Schedule 2 to the Regulations

    ·     Having found that the Mr Bhogal meets the essential criteria referred to above, the appropriate course is to remit the application of his wife and son for reconsideration.

    Tim Connellan
    Member