Chakraborty (Migration)

Chakraborty (Migration) [2020] AATA 3995 (20 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Sharmishtha Chakraborty
Mr Utpal Bhattacharjee
Master Debopam Bhattacharjee
Miss Debdatta Bhattacharjee
CASE NUMBER:  1802868
DIBP REFERENCE(S):  BCC2016/511782
MEMBER:Roslyn Smidt
DATE:20 July 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for Skilled Independent (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 189 - Skilled - Independent visas:
·Public Interest Criterion 4020 (1) for the purposes of cl.189.215(1) of Schedule 2 to the Regulations.

Statement made on 20 July 2020 at 1:19 pm

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) visa – Subclass 189 Skilled–Independent – false and misleading employment information – allegation of absconding from service without authorisation – employment details provided by a later manager – overlapping periods of different employers – employment in several locations – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 65
Migration Regulations 1994, Schedule 2, cl 189.215; Schedule 4 Public Interest Criterion 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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 25 January 2018 to refuse to grant the applicants Skilled Independent (Permanent) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 3 February 2016. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl.189.215(1) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate found that the applicant had provided false and misleading information and a bogus document in relation to her employment with Bangladesh Railways.
The applicant appeared before the Tribunal on 16 July 2020 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (1) (PIC 4020(1)) as required by cl.189.215(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).
BACKGROUND
In January 2012 the applicant applied for a student visa to undertake a post graduate degree in mechanical engineering at Edith Cowan University. In that application she stated that she had worked as a Senior Mechanical Engineer for Family Homes (Pvt) Ltd in Dhaka from January 2006 to January 2012.
The applicant completed a Master of Science Degree in Mechanical Engineering in Bangladesh in December 2005. She completed a Doctoral Degree at Edith Cowan in December 2015.
On 2 February 2016 the applicant lodged an expression of interest in applying for a class 189 visa on 2 February 2016 in which she nominated her occupation as mechanical engineer. She provided an assessment from Engineers Australia which stated that he had been recognised as a Mechanical Engineer and stated that she had been employed by Bangladesh Railways between 27 November 2008 and 28 May 2012.
CLAIMS AND EVIDENCE
The issue in this case is whether the applicant has provided a bogus document or false or misleading information in relation to her employment by Bangladesh Railways.
In the expression of interest lodged on 2 February 2016 the applicant stated that she had worked as an assistant engineer for Bangladesh Railways from November 2008 to May 2012. She described her duties as supervision of locomotive. In support of her application she provided:
·    a memo from Bangladesh Railways dated 3 December 2008 which stated that she had commenced employment at the BCS (Railway Engineering) Mechanical Department in November 2008 as an Assistant Mechanical Engineer/probationer.
·    a letter dated 21 January 2016 signed by Mohammad Talsi Ahmed Khan the Works Manager, Diesel Workshop, Kamalapur, Dhaka. The letter states that the applicant worked as Assistant Works Manager in Bangladesh Railway from 27 November 2008 to 28 May 2012. It does not specify where she worked during that time. It does not provide a detailed list of her duties, but states that she was good fault detection, speculation of necessary spare parts for routine repair and major overhaul of engines, fuel systems, brake systems of locomotives, installation of engines into trucks, trouble shooting of traction motors, inspection-planning-layout-installation of the engine. It also states that she had excellent administration and supervision skills and good managerial qualities in handling workers.
·    a letter of resignation from Bangladesh Railways dated 28 May 2012
According to a report from the Department of Home Affairs, the Principal Migration Officer and another Department officer visited the Locomotive Workshop, Kamalapur in Dhaka on 12 March 2017 and spoke to Mr Mohammad Taslim Ahmed Khan, the signatory of the applicant’s reference letter and the Director of Locomotive Maintenance. Mr Khan confirmed that he had written the reference provided by the applicant. He said that he had commenced working at the Kamalapur workshop in January 2016.
The Department officers asked for evidence to substantiate the applicant’s claims regarding her employment with Bangladesh Railways. They were advised that the applicant’s records could not be located, but as far as they could ascertain based on information from other staff she had worked at the workshop from February 2010 until January 2012. The Director of Locomotive Maintenance said as far as he was aware the applicant was absconding from service without authorisation.
The officers asked Mr Khan for evidence of the applicant’s duties as set out in his reference letter. He said that the work had been carried out following verbal instructions and no logs or documentation was keep, making it difficult to provide this information. The Department staff observed that this seemed implausible. Mr Khan made no comment.
The officers asked Mr Khan for a copy of the job description for the position of Assistant Works Manager. He said that there was no document which clearly set out a job description for the position, but the workshop manual might have some references. The officers asked to see the manual, but they were told that it could not be located.
The officers noted that the references Mr Khan had provided stated that the applicant worked at the workshop form 27 November 2008 until 28 May 2012, which differed from the information provided by staff at the workshop. They also noted that the applicant had left the workshop a long time before Mr Khan commenced working there and it therefore appeared that he would not have been able to describe her role or performance. Mr Khan said that he had seen the applicant a couple of times at the Parbatipur workshop, but he had never been her supervisor. He said that he “somehow” got the dates, but when pressed for more information he said that the applicant had provided the dates and information regarding her duties at the workshop him. He said asked some colleagues for confirmation before writing the letter.
The officers asked to see the documentation which showed the applicant’s employment dates. They were shown a service board located in the office of the Assistant Works Manager which recorded the applicant as holding the position of Assistant Works Manager from 28 February 2010 to 15 January 2012 [a photo is attached to her file]. They were also shown a letter in an office file which stated that the applicant had commenced work as Assistant Works Manager at the workshop on 28 February 2010 and a release letter which indicated that she had worked at Parbatipur prior to that date.
The Department officers asked to see the applicant’s service records. They were advised that they would need to contact the Director of Establishment to access these records.
The authors of the report concluded that it was evident that the applicant had been employed by Bangladesh Railway, but that her claims regarding her duties while working there were fraudulent and that the applicant arranged for Mr Khan to include these duties to facilitate her visa application. In reaching this conclusion they noted that:
·    the dates on the reference letter differed from the information they were able to obtain at the office and that Mr Khan had admitted that the dates on the letter were given to him by the applicant.
·    that the applicant had never worked with Mr Khan who admitted that the information in the letter regarding the duties performed by the applicant were provided by the applicant herself.
·     no evidence had been provided which suggested that the applicant had performed the duties stated in the reference, nor was any evidence provided to suggest that the current Assistant Works Manager performed the tasks listed in the reference provided by the applicant in support of her visa application.
On 4 May 2017 the Department wrote to the applicant to invite her to comment on information which suggested that she had provided a bogus document or false or misleading information in relation to her 189 visa application.
The applicant was informed that the Department had been advised that she had worked at the Kamalapur Workshop as an Assistant Works Manager from 28 February 2010 to 15 January 2012, which was at odds with her claim that she had been employed by Bangladesh Railways from 2008 to 2012. The letter also states that the duties and responsibilities of an Assistant Works Manager differed from the duties the applicant had set out in the reference letter provided by the applicant. Finally, the letter notes that the employment history provided in her student visa application states she worked for Family Homes (Ptv) Ltd from January 2006 to January 2012, which overlaps the period she claims to have worked for Bangladesh Railways.
The applicant’s responded on13 June 2017. She said that she had been employed by Bangladesh Railways from 2008 to 2012, but she had worked at four different locations during this time. In support he provided:
· A Certificate of Experience dated 25 May 2017 which give the following record of employment for the applicant:
27 November 2008 to 14 September 2009 Assistant Mechanical Engineer, Railway Training Academy Chittagong
15 September 2009 to 25 February 2010 Assistant Works Manager, Central Locomotive Workshop Parbotipur
28 February 2010 to 15 January 2012 Assistant Works Manager, Diesel Locomotive Workshop Kamalapur Dhaka
16 January 2012 to 28 May 2012 Officer on Special Duty, Establishment Department Rail Bhaban Dhaka
· Documents issued by Bangladesh Railways regarding her transfers from one location to another as set out above.
With regard to her duties at the workshop, the applicant said that she had never been given a detailed job description as no such document existed. She said that she had been engaged an Assistant Mechanical Engineer and was assigned to the position of Assistant Works Manager as set out in the Certificate of Experience. Assistant Works Manager was the designation given to Assistant Engineers at most of the workshops to which she was assigned. As an Assistant Works Manager her work related to the scheduled maintenance and repair of railway Diesel locomotives. Her duties included monitoring work progress, assisting with technical matters, supervising the overall tasks under schedule maintenance and any other tasks assigned by Works Manager. In support of this she provided a document which gives brief descriptions of the work of Assistant Works Managers working in different sections of Bangladesh Railways. It includes a designation which states that Assistant Works Managers are to be responsible for activities relating to locomotive repair and maintenance.
The Department’s 4 May 2017 letter also notes that applicant had stated in her student visa application that she had worked for Family Homes Pvt Ltd at Family Homes Pvt Ltd from November 2008 to May 2012, a period which overlapped with her claimed employment at Bangladesh Railways and that this also indicated that she had provided false or misleading information in relation to her employment when she applied for a 189 visa. In response the applicant said that in addition to her job at Bangladesh Railways she had worked as a consultant for Family Homes Pvt Ltd during the period in question.
The delegate did not accept the applicant’s explanation for the perceived inconsistencies between the dates in the reference dated February 2016 and the information provided by Mr Khan and the Director of Locomotive Maintenance in March 2017. She also found the applicant’s evidence regarding her duties while working for Bangladesh Railways inconsistent and unsupported by the evidence provided.
In a submission to the Tribunal dated 4 February 2018 the applicant stated that her documents were genuine and the information she had provided regarding her employment was true. She said that reference letter issued by the Kamalapur office on 21 January 2016 had confused matters by failing to set out the difference locations in which she had worked, but this was rectified in the reference dated May 2017.
With regard to the information in her student visa, she said that she had not asked Bangladesh Railways for a reference when she applied for a student visa because she knew it would be difficult to obtain one, so she asked Family Homes instead.
The applicant attended a hearing on 16 July 2020. She explained that she had contacted the Kamalapur Workshop to ask for a reference in January 2016 before applying for a 189 visa. She was referred to Mr Khan as he held in the position previously held by her supervisor. She asked him for a reference and assumed that it would be prepared using her employment records and his knowledge of the job. She did not provide him with information regarding the dates of her employment or her duties. She said that her position required her to travel and to attend meetings with people from other workshops and she had met Mr Khan at a few of these events, but she had never worked with him.
The applicant said that after being recruited as an engineer by Bangladesh Railways in 2008 she underwent several months basic training. Following that she remained attached to the Railway Training Academy Chittagong while she undertook placements at a range of different workshops for short periods. In 15 September 2009 she was transferred to the Central Locomotive Workshop in Parbotipur While she was working in Chittagong and Parbotipur her family remained in Dhaka and she returned to her home every weekend. After about five months in Parbotipur she was able to obtain a transfer to Dhaka to be near her family. In January 2012 she applied for and obtained a transfer to the head office in Dhaka, but despite the different designation her duties did not change. She resigned in May 2012 and came to study in Australia.
With regard to her failure to mention her employment at Bangladesh Railways in her student visa application she said that it was often difficult to obtain documents from government bodies in a timely fashion, so she included her work as a consultant for Family Homes instead. She acknowledged that this was inappropriate.
Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?
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.
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.
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.
For the reasons set out below, I am not satisfied that the reference from Mr Khan is a bogus document or that the applicant provided information was false or misleading in a material particular in relation to her 189 application.
In the first place, the applicant provided her evidence at the hearing in a forthright and convincing manner and I found her to be a credible witness. I accept that she asked Mr Khan to provide her with a reference because he was the current Works Manager at her former workplace and an appropriate person to provide such a document. I also accept that she did not attempt to dictate the contents of the reference but expected that it would be based on information regarding her employment held by Bangladesh Railways and his knowledge of the position.
Secondly, and more importantly, in my view there is no inconsistency between the information regarding the applicant’s dates of employment at Bangladesh Railways in the reference signed by Mr Khan and evidence which she has provided elsewhere.
It appears that the officers from the Delhi officer of the Department and the delegate understood Mr Khan’s letter to say that the applicant had worked at the Kamalapur Workshop from November 2008 until May 2012. This is not correct. The letter states that she worked for Bangladesh Railways from November 2008 until May 2012. This is consistent with the dates provided in her original application. It is also consistent with the memo dated 3 December 2008 regarding her recruitment and her letter of resignation dated 28 May 2012 a memo from Bangladesh Railways, both of which were also provided with her initial application. While Mr Khan’s reference lacks the detail of the Certificate of Experience dated 25 May 2017, they both confirm that the applicant worked for Bangladesh Railways from November 2008 to May 2012. In addition, the fact that the applicant was employed as an Assistant Works Manager at the Kamalapur Workshop from 28 February 2010 to 15 January 2012 was confirmed during the site visit in 2016 and evidence was also provided which confirmed that she had previously worked in Parbotipur. This accords with the information in the Certificate of Experience and provides strong support for a finding that the certificate is genuine and contains an accurate account of the applicant’s employment between November 2008 and May 2012.
Thirdly, in my view the evidence does not suggest that the applicant has provided false or misleading information in relation to her duties as an Assistant Works Manager while working at Bangladesh Railways.

The delegate’s concerns relate to the fact that according to Mr Khan the applicant provided the information which he included in the reference which he prepared, that they failed to locate or obtain any evidence which confirmed that information or any evidence that the current Assistant Workshop Manager at the workshop performed the information in Mr Khan’s reference and that the job descriptions provided by the applicant in June 2017 were generic in nature and lacked detail. The delegate also appears to have concluded that the applicant’s evidence she gave regarding her duties was inconsistent.
It appears that some of the issues relating to the contents of the reference arose because Mr Khan and his superior were uncooperative and defensive when questioned by Department staff in Delhi. They appear to have been reluctant to provide information which would almost certainly have been available, for example information on the duties of someone who held the position of Assistant Works Manager at the workshop. More significantly, the Director of Locomotive Maintenance’s statement that the applicant was absconding from her job at the workshop without authorisation is at odds with the evidence that she transferred to another branch of the railways in January 2012 and formally resigned in May 2012. The Director provided no explanation for this statement and I find it highly unlikely that the applicant would have “absconded” from her job rather than resign her position prior to coming Australia. I have placed little weight on the evidence provided by Mr Khan and the Director when it conflicts with the applicant’s account of events.
According to the applicant she did not tell Mr Khan what to write in the reference which she requested. She expected him to prepare the reference based on information held by Bangladesh Railways regarding her employment and his knowledge of the work of an Assistant Works Manager. I find her account credible. While Mr Khan had never worked with her, as the person currently supervising the work of the Assistant Works Manager at the workshop he must have been sufficiently aware of the duties usually performed someone who held that position to provide a reference. Furthermore, he told the Department officers who visited the workshop that he had consulted colleagues prior to writing the reference. There is nothing remarkable on a supervisor relying on information from other staff members when preparing such as reference.
In any event, even if the applicant had provided Mr Khan with her an account of her duties, this alone does not mean that the information in the reference was false or misleading. Nor does the failure of the Department officers who visited the workshop to locate or obtain evidence which confirmed the information in the reference provided by Mr Khan or the fact that the job description provided later by the applicant was general in nature mean that the information the reference provided by Mr Khan was false or misleading.
Finally, in my view the information in Mr Khan’s reference is not inconsistent with other evidence provided by the applicant. The applicant and Mr Khan both stated that the duties of an Assistant Works Manager are varied. The does not provide a detailed job description. It comments on the applicant’s performance of some of the tasks she was assigned while working at the workshop. It does not conflict with general description of the work of an Assistant Works Manager provided by the applicant or set out in the document which provides job descriptions of engineers working as Assistant Works Manager in different departments of Bangladesh Railways.
After considering all of the relevant information I am satisfied that the applicant has not provided a bogus document or false or misleading information in relation to employment at Bangladesh Railways in support of her 189 visa application.
I have also considered the evidence provided by the applicant in her student visa application regarding her employment in Bangladesh. I accept that the applicant worked as a consultant for Family Homes Pvt Ltd while also working for Bangladesh Railways and that she failed to mention Bangladesh Railways as a matter of convenience as she mistakenly believed she would need to provide supporting documentation regarding her employment and it would be more difficult and time consuming to seek this evidence from Bangladesh Railways. As the applicant herself agrees, this was an unwise decision. However, while the information provided could be characterised as misleading as it failed to mention Bangladesh Railways, this was not a relevant consideration in determining whether applicant meet the criteria for a student visa and thus was not false or misleading in a material particular in relation to the application for the visa. With regard to the supporting documents from Family Homes Pvt Ltd, they were issued in respect of the applicant, there is no suggest that they are counterfeit of were altered by an unauthorised person and, as noted above I accept that the applicant worked for that business as a consultant during the period in question. I am satisfied that these are not bogus documents.
After considering all of the relevant information I am satisfied that the applicant has not provided a bogus document or false or misleading information in relation to a material particular in her student visa application.
I am satisfied the applicant has not provided false or misleading information in a material particular support of her application. She therefore meets PIC 4020(1). In these circumstances it is appropriate to remit the matter to the department for further consideration.
DECISION
The Tribunal remits the applications for Skilled Independent (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 189 - Skilled - Independent visas:
·Public Interest Criterion 4020 (1) for the purposes of cl.189.215(1) of Schedule 2 to the Regulations.
Roslyn Smidt
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.
…

[2020] AATA 3995

20 July 2020

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

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