DANGOL (Migration)

[2017] AATA 2106

DANGOL (Migration) [2017] AATA 2106 (25 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss TARA DANGOL

CASE NUMBER:  1701298

DIBP REFERENCE(S):  BCC2016/1312371

MEMBER:Catherine Carney-Orsborn

DATE:25 October 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled Independent (Permanent) visa.

Statement made on 25 October 2017 at 2:13pm

CATCHWORDS

Migration – Skilled Independent (Permanent) visa – Subclass 189 – Public Interest Criterion 4020 – Bogus document or information that is false or misleading – Compassionate or compelling circumstances that justify waiver of requirements

LEGISLATION
Migration Act 1958, ss 5(1), 65, 376

Migration Regulations 1994, r 1.03, Schedule 2, cl 189.215(1), Schedule 4, PIC 4020

CASES

Arora v MIBP [2016] FCAFC 35

Batra v MIAC [2013] FCA 274

Trivedi v MIBP [2014] FCAFC 42

Plaintiff M64/2015 v MIBP [2015] HCA 50

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 Immigration on 5 January 2017 to refuse to grant the applicant a Skilled Independent (Permanent) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 30 March 2016. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.189.215(1) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant did not satisfy Public Interest Criterion (PIC) 4020.

3. The applicant appeared before the Tribunal on 24 October 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Gupta and Mr Maharjan.  

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) 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: cl.4020(1); and

   ·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy cl.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: cl.4020(2) and (2AA); and

   ·the applicant satisfies the Minister as to his or her identity: cl.4020(2A); and

   ·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy cl.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: cl.4020(2B) and (2BA).

6. The requirements in cl.4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: cl.4020(4). However, this waiver does not apply to the identity requirements in cl.4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.

7. The applicant applied for a skilled 189 visa on 30 March 2016.  To support her application she supplied evidence of work experience at United Supreme Pvt Ltd.   She supplied references from the managing director, work contract, payment slips and statements from the managing director.  Attached to the application for review of the Department’s decision lodged with the Tribunal was a copy of the Department’s decision.  In that decision record the delegate set out in detail the Departments’ efforts to confirm as correct the information supplied by the applicant to in relation to her application for a skilled subclass 189 visa.

8. The Department had, as set out in the Department’s decision, conducted checks and an interview to ascertain that the information the applicant provided was correct.  The Department officer spoke to company representatives at that company. They person did not know the applicant nor had any knowledge of her having ever being employed at the company.  The Department delegate was told that the company did not employ civil engineers or interior designers.  The company’s business was in ticketing, furniture making and concrete blocks.

9. In response to that information the applicant supplied further statements from a person who claimed to be the managing director.  In those statements it was said that she was employed as an interior designer, that her employment records went missing and there was poor compliance with records.  She also supplied a print out of an email.  The email was dated 19 February 2014 in the text area.  In the emails far left hand corner it was dated 8/22/2017. This would indicate that it was generated in August 2017.

10. The applicant appeared before the Tribunal on the 24 October 2017.  A summary of the hearing is as follows.

11. The Tribunal explained the procedure to the applicant.  The Tribunal went through the decision to refuse the visa and the relevant legislation it was applying.  The Tribunal explained the effect of cl.4020 and the exclusion period.

12. The Tribunal explained that it had access to the Department’s file and the Department’s databases. The Tribunal explained that there was a s376 non-disclosure certificate on information held on the Department file. The Tribunal explained that the information referred to was the employment check and interview that took place. The certificate was in place to protect the identity of the company’s representatives that the department’s delegates spoke to. The applicant has that information which is set out in the Department’s decision.

13. The applicant provided some background.  She was born in Nepal and came to Australia on 15 February 2014.  She has parents, two sisters and a younger brother in Nepal.  Her studies in Australia were funded by her father and mother. 

14. She studied for one year for a Masters of Engineering management.  She then changed to study for Project Management.    She stated she applied for residency and stopped studying.  She stated that she felt she did not need to study after one year as she felt she could apply for residency.

15. She said she did interior design as a profession.  She said that she got her jobs in Nepal as everyone knows everybody else in Nepal.  She said her jobs were found through friends and family.

16. The Tribunal then asked her to go through her employment history.  The applicant recited the employment history as set out in her application.   She stated that she finished her last job in February 2014.  The Tribunal pointed out that in the application on the Department’s file she stated she finished in December 2013.  She said that was not correct.  The Tribunal said it was what was in her statement.

17. She then stated words to the effect that she now remembered she had put in the date of her visa.  She said she continued to work via email even when she came to Australia. She supplied a copy of an email to the Tribunal.

18. The applicant went through the work she claims she undertook.  She said she was in the show room for United Supreme Limited.  She said she would also go out and measure for the clients.  She said she would go to their residential houses.  She said she had work in the kitchen and other furniture.  She said there were five employees other than her. 

19. The Tribunal discussed the issues as set out in the Department’s decision. 

20. The Tribunal went through the issues, as set out in the Department’s decision, that people at the company she had listed as her work experience and she provided documents in relation to, stated that they did not know her and she had not worked there.

21. The Tribunal said that it noted she had provided responses earlier to the Department and documents to the Tribunal in relation to the information as set out in the decision record and asked if she wanted to add anything further.

22. She said that they (the company contacted by the department officers) may have said they do not know her as the managing director Mr Gupta has many businesses and employees and they didn’t interact.  She said there were no records.  The Tribunal asked the applicant if she knew who “unitedgroup” were.  She said she did not.

23. The Tribunal pointed out that that was the website address listed at the bottom of the letterhead for the company she states she worked for “United Supreme Limited”   

24. She replied with words to the effect that Mr Gupta had many companies and she did not know them all.  She stated she did not know the employees of his other companies. She said he ran a ticketing travels company as well as the company she worked at as an interior designer.  The Tribunal asked if Mr Gupta was a family friend or relative.  She stated that she did not know him before she got the job.  The Tribunal pointed out that earlier she had said that in Nepal everybody knows everybody else and that was how she got the job.  She then changed her evidence and said that she got the job on the internet and did not know Mr Gupta.

25. The Tribunal then discussed with the applicant whether there were any compelling circumstances that affect the interests of Australia or compassionate and compelling circumstances that affect the interests of an Australian citizen, permanent resident or eligible New Zealand citizen.

26. She replied that she wanted to finish her studies and stay in Australia.  The Tribunal pointed out that it understood she would be disappointed if her visa was refused however she was not an Australian citizen, permanent resident or eligible New Zealand citizen.  She acknowledged she was none of the above. 

27. The applicant supplied two phone numbers which she stated were Mr Gupta, her employer and Mr. Maharjan, her supervisor.  The Tribunal asked the applicant if an interpreter was needed.  She responded that both understood English and no interpreter were needed.

28. The Tribunal telephoned the number for Mr Gupta on three occasions.  The applicant said that the telephone numbers were the private phone numbers and not the company numbers.

29. On each occasion Mr Gupta answered the phone and identified himself.  When the Tribunal proceeded to asked questions he did not respond and ended the call.

30. The Tribunal then telephoned Mr Maharjan.  He answered the phone and identified himself.  He indicated he knew the applicant. The Tribunal explained it was conducting a review in relation to the applicant’s visa.  The Tribunal asked him how he knew the applicant and he did not respond any further.  The call then terminated.  The Tribunal attempted to call Mr Maharjan again and the recorded message stated that the number was not available.

31. The Tribunal attempted to call Mr Gupta again.  He again answered and identified himself as Mr Gupta.  The Tribunal explained what it was doing and asked how he knows the applicant.  He stated that she worked in his office. The Tribunal asked when she worked for him.  He stated about three years ago.  The Tribunal asked if he could be more precise.  He said he could not remember.  He then stated that he needed to look into her profiles.  He said he had hundreds of people and cannot remember her.  He stated he would have to look at the database records in his office.  The call then ended.

32. The Tribunal then put to the applicant pursuant to s359AA that there was adverse information from Mr Gupta.  The Tribunal said this was adverse as it would affect the genuine nature of the statements she has provided which she claimed were from Mr Gupta.  This would cause the Tribunal to find that the documents were not genuine and agree with the Department’s decision.

33. The Tribunal explained that she could request an adjournment or extra time to consider her response.

34. The Tribunal explained that in the statements she provided to the Tribunal and the ones which were in response to the natural justice letter the Department had sent to her,  Mr Gupta states that the company representatives were unable to remember her because as stated in the first statement dated 17 January 2017 the company had poor record keeping and her employment records went missing. 

35. A second statement signed by Mr Gupta dated 11 August 2017 and provided to the Tribunal by the applicant stated that the company had a policy to destroy employee records after a year once they have left the company.  It further stated that “we do not keep records for the employees who has already left the company to reduce the record keeping as the client files gets destroyed after a year”.   

36. This statement was inconsistent with the oral evidence given by Mr Gupta that he could not remember anything and had to check profiles and look at the database records in the office.

37. The applicant elected to reply at the hearing.  She stated words to the effect that she was not sure why he had said that.  She said he has his own personality.  She further added he would say anything. 

38. The Tribunal then discussed the issues as set out in the decision record and the information the Department had received when it contacted the company the applicant claimed employed her.  The information was that when contacted the persons at the company had no knowledge of the applicant being employed and that they had no need of interior designers or civil engineers.

39. The applicant said that people get scared and confused and will say anything.  She stated that they do not understand. 

40. She then stated that there were other companies and she does not know the other people in the offices.  She went on to say no-body knows anybody else.

41. The Tribunal again asked if she knew who “unitedgroup” were as it was the website address given in the letterhead on the letter she provided which was signed by Mr Gupta.  She replied that she did not know them.

42. The Tribunal said that it had searched the website and it was not a company that seemed related to the one she stated employed her.  She responded that she did not know why that was so.  She stated that Mr Gupta was in many things and maybe he was trying to hide something.  She could not explain why she did not know the website of the company she claims she worked for.

43. The Tribunal asked if there was anything further she wanted to add.  There was nothing further.

    Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?

44. The term ‘information that is false or misleading in a material particular’ is defined in cl.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 cl.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.

45. The requirement in cl.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: cl.4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.

46. 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.

47. In the application to the Department for a subclass 189 skilled visa made on 30 March 2016 the applicant provided documents of her work experience.  Those documents were an employment contract, reference and two payslips.

48. Departmental staff contacted the claimed employer to verify the information and documents provided with the application made on 30 March 2016.

    ·     The departmental officer was advised that the company was in the business of ticketing, furniture making and concrete blocks. 

    ·     The departmental officer was advised that the company does not employ any interior designers.  The officer was also advised that none of the companies on site have a requirement for an interior designer.

    ·     The officer enquired if the company employed any civil engineers and was advised the company does not have any requirement for a civil engineer as the concrete blocks are made by machines, which are automated and they have workers to operate the machines.

    ·     The officer asked if the applicant was a known employee at the company and officer was advised that there was no knowledge of the applicant having ever been employed at the company.

49. On 26 November 2016 the Department gave the applicant the opportunity to comment on the above information.   She provided a letter from Mr Gupta dated 9 December 2013 which stated that she worked for him from November 2012 to the date of the letter (December 2013).  She provided a generic document which was a 3D drawing and bill of quantity.  They are not connected to the applicant.

50. The applicant provided two payslips.  They were typed on plain paper and did not have any employee reference numbers or other identifying factors other than the applicant’s name. 

51. The Tribunal took evidence from the applicant.  It put the issues to her and gave her an opportunity to comment.  She had provided further statements she claimed were from her employer Mr Gupta.  She supplied a copy of an email which had two different dates attached to it.  When queried about the website listed on the bottom of the letters and statements she provided she said she could not recognise it.  She claimed that this was because there were many companies and she did not know them all.

52. At the beginning of the hearing she had said she worked for a small team.  When queried as to why the company did not know of her she replied that was because there were hundreds of employees.  When the Tribunal contacted the author of the statements and letters, Mr Gupta, he contradicted his earlier statements by saying that he could not remember any details about the applicant and had to check his databases at his office.  This contradicts his earlier written statements that all records are destroyed, that there is very poor record keeping and employment records are missing.

53. When these concerns were put to the applicant she did not have any persuasive or adequate response as to why there was such a strong discrepancy.

54. The Tribunal would expect that someone who has supplied three statements to the Tribunal about the applicant would have been able to discuss the applicant’s employment with his company in some detail.

55. When the Tribunal put to her that the dates she claimed her employment ended in her application were different to the later statements provided and the information provided to the Department which was set out in detail in the decision record she was unable to give any convincing response for the discrepancy.

56. She made general comments about no one knowing one another in the company, people saying anything that comes up, they are scared and confused and have personality problems.

57. The Tribunal does not accept the above response as a persuasive or convincing explanation as to why when the company officers and supervisors where queried by the Department delegates they did not know of the applicant.

1. The Tribunal does not accept that persons running a business and company would not keep records as set out in letters and statements provided by the applicant which claim to be from the Managing Director of the company.  The Tribunal does not accept that a company would not know someone who was employed there for a period of two years. 

2. After considering all the evidence provided including the inconsistent documents, vague and unconvincing responses to concerns outllined and the contradictory evidence provided by the witness the Tribunal finds that the applicant has provided bogus documents.

3. Therefore, the applicant does not meet cl.4020(1).

   Should the requirements of cl.4020(1) or (2) be waived?

4. The requirements of cl.4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in r.1.03), that justify the granting of the visa.

5. The expressions ‘compelling circumstances’ and ‘compassionate or compelling circumstances’ are not defined for these purposes. To be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied: see Plaintiff M64/2015 v MIBP [2015] HCA 50. The ordinary meaning of ‘compassionate’ relates to feelings of sympathy, sorrow, pity or concern for others.

6. When asked to comment on the above the applicant stated that she wanted to finish her studies.  She is currently working and wants to stay in Australia.

7. The applicant did not provide any evidence of any compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen.

8. On the evidence before it the Tribunal is not satisfied that the requirements should be waived

9. Therefore the requirements of cl.4020(1) should not be waived.

10. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.189.215(1).

    DECISION

11. The Tribunal affirms the decision not to grant the applicant a Skilled Independent (Permanent) visa.

    Catherine Carney-Orsborn
    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.  

    …