Bishokarma (Migration)

[2023] AATA 2556

Bishokarma (Migration) [2023] AATA 2556 (8 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Anil Bishokarma
Ms Puja Bishokarma

CASE NUMBER:  2110818

HOME AFFAIRS REFERENCE(S):          BCC2019/4552718

MEMBER:Jennifer Cripps Watts

DATE:8 July 2023

PLACE OF DECISION:  Canberra

DECISION:The Tribunal remits the applications for Skilled Nominated (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 190 -  Skilled - Nominated visas:

·Public Interest Criterion 4020 for the purposes of cl 190.214 of Schedule 2 to the Regulations

Statement made on 8 July 2023 at 4:21pm

CATCHWORDS

MIGRATION – Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 – Skilled - Nominated – Australian employment experience qualifications – occupation of Accountant – incorrect information in the visa application – employment verification checks – updated employment evidence – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 65
Migration Regulations 1994, Schedule 2, cl 190.214; Schedule 4, Public Interest Criterion 4020

CASES

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 6 August 2021 to refuse to grant the applicants Skilled Nominated (Permanent) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 11 September 2019. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl 190.214 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The delegate made the finding that the applicant did not satisfy the Public Interest Criterion (PIC) 4020(1) because he provided false or misleading information in relation to the visa application and that there were no compelling or compassionate circumstances, as they are described in PIC 4020(4), to justify waiving the criteria.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 190.214 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).

5. 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?

6. The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5).

7. The requirement in PIC 4020(1), which, relevantly in this case, is not to provide false or misleading information, applies whether or not the Minister became aware of the 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.

8. 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.

9. The applicant was invited to apply for the subclass 190 visa that is the subject of this review on 5 September 2019.  The application was lodged by an online form and was made on 11 September 2019.  Under a points system, an applicant must claim and be awarded a specified number of points to meet the requirements for the grant of the visa.  Relevantly, in this case, the applicant had made a claim under Part 6D43 relating to his Australian employment experience qualifications that he had worked for 60 months as a qualified accountant at ANP Store Pty Ltd trading as Bargains 2U in Sydney, from 2014 to 2019, performing the duties of an Accountant (general) as they are listed in the ANZSCO code 221111, for which he would be entitled to be awarded 15 points.

10. In the online form the applicant included, among other things, that he had worked as an Accountant from July 2014 to December 2019 at ANP Store Pty Ltd trading as Bargains 2U.  The applicant uploaded a work reference letter to the visa application, dated 29 August 2019 and signed by Director Sudip Kerung, which included the period of the applicant’s employment, the tasks and duties he performed when he worked there as an Accountant and some positive comments about the applicant and his work (the work reference).  Other relevant documents that accompanied the visa application, relating to the work that is the subject of the work reference included:

    ·A CPA issued Skilled Employment Assessment dated 26 July 2019

    ·Westpac Bank statements from 29 April 2014 to August 2019 showing payment of his weekly salary into the account

    ·Pay slips from July 2014 to August 2019 which include the Westpac account number that his salary was paid into each week

    ·PAYG statements and notices of assessment from the ATO for the financial years ending 2015, 2016, 2017 and 2018 and the applicant’s individual tax return for each year from 2015 to 2019

11. When the visa application was being assessed in March 2020, a Departmental officer phoned Mr Kerung, who is the person who wrote and signed the work reference.  Mr Kerung and the applicant have both, since then, given written statements saying that Mr Kerung was in his car on his way to work at the time.  The essence of the phone conversation between the Departmental officer and Mr Kerung is that Mr Kerung said the applicant had worked for him since spring 2016.  Neither Mr Kerung, nor the applicant, on the evidence they have provided, are denying that Mr Kerung got the date wrong, but that he was surprised by the call and, in traffic on his way to work he simply got the date wrong.  In addition, when Mr Kerung was asked what duties the applicant performed, he gave an answer that did not satisfy the delegate that the duties were those of an Accountant (General) 221111, but what the delegate though sounded more like those of a Bookkeeper (551211).  Negative weight was given to both these matters and the delegate decided that the applicant did not meet PIC 4020 because he had provided false or misleading information in a material particular. 

12. The Tribunal has carefully gone through all the financial evidence the applicant provided, at the time of application, and up to the time of this decision.  The Tribunal has also had regard to the applicant’s professional qualifications, which include an Australian Master of Professional Accounting and his CPA skills assessment, and to the very informative, detailed and rationally argued submission he gave to the Tribunal on 3 July 2023.

13. The weight of verifiable financial and documentary evidence overwhelmingly supports the applicant’s submission and claim that he worked for Mr Kerung as an accountant from July 2014 to December 2019 (for the purpose of meeting the 6D43 points criteria for the award of 15 points for a subclass 190 visa).  When the documentary evidence is weighed against the content of one phone call where Mr Kerung got a date wrong and gave an abridged list of duties the applicant had performed, when he was surprised by a phone call from the Department on his way to work, the Tribunal is not inclined to give any negative weight to the content of the phone conversation on 12 March 2020.

14. For the reasons given, the Tribunal is satisfied that the applicant has NOT given, or caused to be given, to the Minister or the Tribunal, information that is false or misleading in a material particular’ as defined in PIC 4020(5).

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

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

16. 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).

17. There is no information before the Tribunal that indicates the applicant or any member of his family unit have been refused a visa because of a failure to satisfy PIC 4020(1) in the last 3 years.

18. Therefore, PIC 4020(2) does not apply.

    Has the applicant satisfied the identity requirements?

19. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.  The applicant’s identity was not a substantive issue on which the visa was refused and there is no information before the Tribunal that indicates his identity is in question.

20. Therefore, the applicant the applicant meets PIC 4020(2A).

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

21. 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).

22. This not a substantive issue on which the visa was refused, and there is no information before the Tribunal that indicates that the applicant or any member of his family unit member has been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A)

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

    Non-Disclosure Certificate (NDC) issued under s 375A of the Act

24. There is a NDC on the Department file that relates to the investigations into the applicant’s work history, including information about the phone call to the writer of the reference letter.    The NDC includes the first name of a delegate of the Minister, and their position number, but it is not signed, nor is there any reference to an electronic signature.  For this reason, it is the Tribunal’s view that the NDC was not validly issued.  In any event, as the Tribunal has decided to remit the matter for reconsideration, it was not considered to be a material issue that the applicant be shown a copy of the NDC and asked to comment on its validity. 

    Conclusion

25. On the basis of the above, the applicant satisfies satisfy PIC 4020 for the purposes of cl 190.214 of Schedule 2 to the Regulations.

    DECISION

26. The Tribunal remits the applications for Skilled Nominated (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 190 -  Skilled - Nominated visas:

    ·Public Interest Criterion 4020 for the purposes of cl 190.214 of Schedule 2 to the Regulations

    Jennifer Cripps Watts
    Senior 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.

    …