Dandiwal (Migration)

[2022] AATA 1631

Dandiwal (Migration) [2022] AATA 1631 (2 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Kuldeep Singh Dandiwal
Ms Rupinder Kaur Dandiwal
Ms Yashmeen Kaur Dandiwal
Mr Wais Singh Dandiwal

REPRESENTATIVE:  Ms Karyn Anderson (MARN: 9685990)

CASE NUMBER:  1923611

HOME AFFAIRS REFERENCE(S):          BCC2018/272723

MEMBER:Tim Connellan

DATE:2 March 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Skilled Regional Sponsored (Provisional) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 489 - Skilled - Regional (Provisional) visas:

·Public Interest Criterion 4020 for the purposes of cl 489.211 of Schedule 2 to the Regulations

Statement made on 02 March 2022 at 4:13pm

CATCHWORDS
MIGRATION – Skilled Regional (Provisional) visa– Subclass 489 (Temporary Graduate)) visa – bogus document, or false or misleading information – PAYG statement dates, the reference and form 80 all contained different dates of work start date – no one purposefully provided false or misleading evidence – the applicant meets PIC 4020 – decision under review affirmed remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 489.211

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 August 2019 to refuse to grant the applicants Skilled Regional Sponsored (Provisional) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 17 January 2018. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl 489.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate found that in support of his application he had provided evidence that was false or misleading in a material particular and therefore in breach of PIC 4020.

   Background

3. This application for a Subclass 489 (Provisional) visa was lodged on 17 February 2018. (Application ID 1585609197).

4. One month later, on 17 February 2018, the same applicants lodged an application for a Subclass 190 Skilled Nominated (Permanent) visa. (Application ID 395609889)

5. Decisions to refuse both cases were made on 8 August 2019.

6. Both decisions were refused on the same factual and legal basis being the failure to satisfy PIC 4020.

7. When the matters were appealed to the Tribunal they were allocated case numbers:

   ·     1923610 – 190 Skilled Nominated (Permanent) visa

   ·     1923611 – 489 Skilled Regional Sponsored (Provisional) visa

8. Both cases were constituted to me (Member Tim Connellan).

9. On 9 February 2022, a hearing was held regarding 1923610. Having considered the available evidence, the Tribunal made a decision to remit the matter to the Department for further consideration with the direction that the primary applicant satisfied cl.190.216.

10. Given that both refusal decisions by the Department were based on the same factual and legal basis, the Tribunal did not believe there was a need for a further hearing and thus this decision has been made on the papers, being the evidence presented both in writing and oral evidence at the pervious hearing.

11. The applicants were represented in relation to the review.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 489.211 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).

14. 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?

15. 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.

16. 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.

17. 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.

18. As detailed in the previous decision made in case no. 1923610:

19. The delegate found that the dates of your employment were inconclusive. The delegate found that your PAYG statement dates, the reference you provided and your form 80 all contained different dates of your work start date.

20. There were also concerns about the source and frequency of your superannuation payments. The delegate considered the evidence provided and found that the work reference dated 11 June 2017 and evidence about provided regarding your remuneration was false and misleading and therefore found you did not satisfy PIC 4020, therefore did not satisfy clause 190.216 and refused your application.

21. At the hearing the Tribunal discussed the applicant’s circumstances and background.

22. Having completed his studies and qualifications as a Motor Mechanic a number of years ago, towards the end of 2013, the applicant approached HWKB Pty Ltd who were trading as Ace Gas Conversions and after a period of time they offered to sponsor you for a 457 visa which was subsequently granted on 14 April 2014. You worked with Ace Gas Conversions as a motor mechanic from 30 May 2014 to 30 June 2016.

23. Regarding the delegates concerns about dates, tax documents and superannuation, you say, "I'm a motor mechanic. I go to work from 9 to 5 o'clock and I work hard and do the job as a motor mechanic.  Any documents I provided were given to me by the company accountant and I forwarded them to the Department with my application."

24. You provided a large number of references that support your claims and character references from a large number of people, including some eminent people in the community that you know and work with. Queanbeyan councillors, et cetera, business people and tradespeople who work with you, associates and neighbours and your ex-manager. All of whom attest to the fact that you work fulltime, that you are a hardworking and a highly skilled and qualified motor mechanic and a valued member of your community.

25. There has been a letter provided by the accountant who was the accountant at Ace Gas Conversions while you worked there that states you were employed by the business on a fulltime basis, carrying out general motor mechanic duties.

26. Regarding superannuation, you say, "I don't know. That was the responsibility of the employer and the accountant. I am aware now that sometimes the payments were irregular, sometimes quarterly, sometimes every couple of quarters, sometimes they missed quarters.

27. I was paid my wages and as long as I got my pay each week, I thought everything was fine. I've provided no bogus documents."

28. Regarding the documents referred to: the form 80 that you completed more than 12 months after you had started work and so it required you to go back in time to recall when you worked there. You say it was lodged without any support from any professional and the date you entered on that report was a typo that was in fact the date when you started discussions with them about work rather than the date you actually started work.

29. The delegate refers tom a PAYG statement however there is no evidence that it exists and so I give it no weight.

30. The error in the date in the reference that was provided, once again, I believe was a typo and in fact shows the date you were granted a 457 visa rather than a date that you were actually employed.

31. More tellingly, there is a letter from the current accountant of Ace Gas Conversions which states that when the business was taken over, an inspection of the financial records indicated that many things in the past had been left undone or done incorrectly.

32. For example, there were issues with calculations completed for BAS statements, PAYG summaries were not completed and the employer obligations to the ATO were not completed.

33. The letter states in part “I think the old owner went to see their tax agent once or twice and the tax agent was clearly either very busy or unprofessional”. It goes through and addresses individual issues regarding payslips, and it talks about the fact that the former tax agent did not reconcile wages because they didn't report to the ATO.

34. It appears the tax agent issued PAYG long after the end of the financial year, likely in response to employees requesting them for tax returns. The agent was not working fulltime and only worked on and ad-hoc or as needed basis. PAYG summaries were not system generated. It was manually prepared. The letter states that the previous accountant was likely copying and pasting from templates and not paying attention to detail.

35. The employer would not have had any accounting background and would not have been able to pick up the errors or understand what the agent had done. If the PAYG summaries were sent to the ATO, the errors would have been picked up, but the tax agent did not report to the ATO as was required by law.

36. The evidence provided makes it very clear that the accountant who provided you with the information had been negligent in not fulfilling his duties. He has provided you with documents that you have no reason to believe were not genuine which were submitted to the Department and they Department subsequently found those documents to be false or misleading in a material particular.

37. I believe that the evidence that you have provided - and there is a large volume of it – clearly indicates that you had no knowledge or reason to question the documents provided and no one purposefully provided false or misleading evidence.

38. I therefore find you did not breach PIC 4020 and consequently meet clause 190.216.

39. Given those findings, it is my intention to remit this matter to the Department with the direction that you satisfy clause 190.216.

40. Having made the decision in case number 1923610, the Tribunal finds that in this matter, with the same circumstances, the applicant meets PIC 4020(1).

41. As in the previous case, having found that the Mr Dandiwal meets the essential criteria referred to above, the appropriate course is to remit the application of the secondary applicants for reconsideration.

    Decision

42. The Tribunal remits the applications for Skilled Regional Sponsored (Provisional) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 489 - Skilled - Regional (Provisional) visas:

    ·Public Interest Criterion 4020 for the purposes of cl 489.211 of Schedule 2 to the Regulations

    Tim Connellan
    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.

    …