Chamavalappan (Migration)

[2021] AATA 4650

Chamavalappan (Migration) [2021] AATA 4650 (9 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Soumya Mathew Chamavalappan
Mr Mathew Chamavalappan Mathew
Master Anet Chamavalappan Mathew
Miss Janet Rose Mathew

CASE NUMBER:  1922661

DIBP REFERENCE(S):  BCC2017/2924370

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:         9 September 2021 at 2:17 pm (VIC time)

DATE OF WRITTEN RECORD:                20 September 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Skilled Independent Subclass 189 visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 189 visa:

·cl.189.215 of Schedule 2 to the Regulations.

Statement made on 20 September 2021 at 5:26pm

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled Independent) – Registered Nurse – false or misleading information – employment history – ANMAC skills assessment – work reference – confusion over use of maiden name in employment records – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 189.215; 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 9 August 2019 to refuse to grant the visa applicants Skilled Independent (Permanent) Subclass 189 visas under the Migration Act 1958 (the Act).

2. At the hearing on 9 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. Ms Soumya Mathew Chamavalappan, you lodged an application for a 189 Skilled Independent points-tested visa on 15 August 2017, in which you nominated your occupation as registered nurse. 

4. That application was refused on 9 August 2019 because the delegate found you had provided information that was false or misleading in the material particular in support of your application, which created a breach of public interest criteria 4020, and therefore did not satisfy clause 189.215, which is a mandatory requirement for the grant of a visa.

5. You appealed that decision to be reviewed by this Tribunal and with your application you included a copy of the primary decision which you told the Tribunal you had read and understood.  Following our discussions today, I believe you have a reasonable understanding of why the delegate made the decision to refuse your application, which I will discuss with you in a moment.

6. To be eligible for the grant of a 189 visa, an applicant must satisfy a range of criteria set out in the regulations.  One of those is the public interest criteria that we abbreviate to PIC 4020, which states that:

   To satisfy this criterion there is no evidence before the Minister, or in this case, the Tribunal, the applicant has given or caused to be given a bogus document or information that is false or misleading in the material particular, in relation to the application for a visa.

7. In your case, reading from the decision, it advises that you provided evidence of having worked in your nominated or closely related occupation for three of the past ten years and one of those positions was as a staff nurse at the Athura Hospital in Kerala, where you claimed to work from 4 July 2011 to February 2013.

8. You provided an ANMAC skills assessment from July 2017, a work reference from 2013 and a work reference 25 March 2017. 

9. On 14 September 2017, you were requested to provide further supporting evidence of your employment and pay.  You provided a salary certificate for the period claimed from Athura Hospital dated 23 January 2018, signed by the medical director Dr Manikanta.

10. As part of the verification process, department officers conducted checks, contacted the Athura Hospital. Those checks raised concerns regarding your employment.  Department officers contacted the hospital on the landline number provided but the number didn't exist. Dr Manikanta was spoken to on the mobile number provided.  He stated he runs the hospital and didn't recognise your name, did not recall the duties or your employment dates.

11. When asked the provide the details of the nursing superintendent he provided a name other than the one you had provided.  He was also asked about any of the other doctors on staff at the hospital to which he stated he only manages the hospital. Finally when asked about the landline number not working, he did not provide an answer but advised the department officers to send an email.

12. Following this, department officers sent an email seeking verification of your employment.  A response was returned which advised your employment dates were different to those claimed by you.  The hospital advised that your employment was for six months, from 10 February 2011 until 10 August 2011.  However, the reference letter you provided states you were employed at Athura Hospital for some 19 months from 4 July 2011 to 5 February 2013.

13. You were invited to respond, and you did so. An affidavit was subsequently provided by Dr Manikanta in which he said he had made a mistake. The delegate placed more weight on the responses provided to the original enquiries by department staff than the statement provided at a later date. 

14. The delegate placed little weight on a nursing register and therefore found that on the evidence available he was satisfied that in support of your application, you provided a work reference that was false or misleading in a material particular, as it relates to regulation 189.214 and your employment claims for general skilled migration points.  The delegate therefore refused your application, and as previously stated you applied to this Tribunal for review of that decision.

15. Your agent has made some substantial submissions which include his interpretation of the law regarding public interest criterion 4020.  The Tribunal has considered the affidavit of Dr Manikanta was made in October 2018, in which he states that he is the medical director of the hospital and an enquiry such as the one made by the department would normally have been handled by the nursing superintendent, who was not available when they made the call, and he explains that confusion over your employment stems from confusion arising out of the names appearing on the scheduled roster used at the hospital.

16. While your name is Soumya Mathew Chamavalappan, you worked at the hospital under your maiden name of Soumya Mathew Jos and that fact is clear to see from all the evidence and documents you have provided to the department which refer to you by your maiden name. The Tribunal accepts that you were known at the hospital as Soumya Mathew Jos.

17. There was another nurse at the Athura Hospital called Soumya Mary Mathew.

18. The doctor explains that when he looked up the records he found Soumya Mary Mathew, the name Soumya Mathew being similar and appearing in both names which he mistakenly took to be you.  He provided the department with the work dates for Soumya Mary Mathew. He states that when he now looks at the records and realises his mistake he has gone back and confirmed that you worked there as Soumya Mathew Jos from 4 July 2011 to 5 February 2013, which is reflected in the official nurse schedule.

19. The Tribunal believes this explanation to be plausible and accepts that the statement of Dr Manikanta that his original advise to the department was incorrect and that the dates that you provided on the document of your employment were legitimate, and that you had worked there on 4 July 2011 until 5 February 2013.

20. Given that finding, the Tribunal is therefore satisfied that you have not provided a document which was false or misleading in a material particular.  I find you have not breached public interest criteria 4020 and therefore I find you do satisfy clause 189.215. 

21. Given that finding, it is my intention to remit this matter to the department and so I advise that the decision of this Tribunal is to remit the matter to the department with the direction that you do satisfy clause 189.215. 

22. This decision was made at 2.17 pm on this, 9 September 2021. 

    DECISION

23. The Tribunal remits the application for a Skilled Independent Subclass 189 visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 189 visa:

    ·cl.189.215 of Schedule 2 to the Regulations.

    Tim Connellan
    Member