Dhakal (Migration)

[2021] AATA 4200

Dhakal (Migration) [2021] AATA 4200 (20 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rabin Dhakal

CASE NUMBER:  2007302

DIBP REFERENCE(S):  BCC2011/402882

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:         20 August 2021 at 1:23 pm (VIC time)

DATE OF WRITTEN RECORD:                21 October 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 21 October 2021 at 5:15pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Skilled – Graduate) – false or misleading information provided in visa application – skills assessment – application lodged by agent with applicant indifferent to contents – agent’s many previous applications with false or misleading information – notification of refusal may not have been properly sent – residence and work for more than nine years – support of employer and close relationship with family – no circumstances justifying grant of visa – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 98
Migration Regulations 1994 (Cth), Schedule 2, cl 485.224, schedule 4, criterion 4020

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 5 April 2012 to refuse to grant the visa applicant a Skilled (Provisional) (Class VC) Subclass 485 visa under the Migration Act 1958 (the Act).

2. At the hearing on 20 August 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. Mr Rabin Dhakal, you lodged an application for a Skilled Graduate Visa (Subclass 485) Visa on 6 November 2011, and your application was refused on 5 April 2012 because the delegate was not satisfied you met the requirement for the grant of a 485 visa.  You appealed that decision to be reviewed by this Tribunal, and with your application you included a copy of the primary decision.

4. When matters come here my job is to look at your application afresh and to make a new decision.  Reading from the primary decision, it says that on 6 September 2011 you lodged your application for a Skilled (Provisional) (Class VC) Subclass Skilled Graduate (485) visa and that on 7 February 2012 you were contacted by the Department and provided with an invitation to comment on adverse information in relation to your 485 application.

5. In summary this invitation to comment put the following adverse information to you;

   It is alleged that you lodged your 485 application with the assistance of a business known as S & S Migration through a gentleman called Jatinder Singh who had been found to have lodged numerous previous applications with the Department containing false and misleading information.  The Department identified a file with your personal details and the application reference numbers in the office of S & S Migration.  You provided the following reference indicating a successful skills assessment TRA 10/971488165.  TRA have no record of providing you this skills assessment, and they have no record of ever providing you with any skills assessment.

   It is alleged that you provided false and misleading information to the Department in relation to your application for a 485 visa. 

   You were provided 28 days to respond to this letter.  This period has now expired.  You have not responded to the invitation to comment. 

   I have reviewed all the evidence in relation to your application.  PIC 4020 states that there is no evidence before the Minister that the applicant has given or caused to be given to the Minister, an officer of the Migration Review Tribunal, 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 an application for a visa.  In your application you provided this TRA reference.  The TRA confirmed they did not provide this reference to you and had never provided you with a skills assessment, therefore you have provided false and misleading information in line with definition in PIC 4020.

6. It goes on to say that section 98 of the Migration Act states:

   A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

7. And so, the delegate refused your application.  You have today told the Tribunal that you never received that letter inviting you to comment on adverse information and the Tribunal accepts that statement, however the role of the Tribunal is to review the decision to refuse the 485 visa.

8. Mr Dhakal, in your case we are dealing with legislation which says that people will not provide evidence that is false or misleading in a material particular when they are lodging a visa application, and if they do they breach what is known as Public Interest Criteria 4020 which we abbreviate to PIC 4020.

9. PIC 4020 can be waived if there are certain circumstances, which are compelling circumstances that affect the interests of Australia, so that is a particularly high bar, or there are compassionate or compelling circumstances that affect the interests of an Australian citizen, permanent resident or an eligible New Zealand citizen which justify the granting of a visa.  I am keen to ask you whether you believe that there are any circumstances that exist that might lead to the waiver of PIC 4020.  Do you understand what I have just told you?

10. MR DHAKAL:  I understand that if it affects an Australian citizen that in my case then it can be waived.

11. It may be possible.  Do you believe there are circumstances that might lead to a waiver?

12. MR DHAKAL:  I’ve been working for an Australian family and working running that business and also being considered as a family member, so that’s what I can say, sir.  That’s all I can think of right now, sir.

13. No, that is fine, thank you.

14. Mr Dhakal, you have today told the Tribunal you have been in Australia since 1 July 2008 when you arrived on a Student visa that was current until September 2009.  You were subsequently granted a further 572 visa current until November 2010, and then you were granted another 572-student visa that was current until 30 November 2011.  You say you came here to study accounting and you were enrolled in Advanced Diploma of Accounting which you studied for about a year before you gave it away.  You then studied Information Technology briefly and then a certificate course in business, but you did not complete any of those studies.

15. The application I am reviewing today is for a Subclass 485 Temporary Graduate visa lodged on 6 September 2011.  It was refused on 5 April 2012, however there was a question as to whether that notification of the decision was legitimately or properly sent, and so you were correctly notified of the decision on 3 April 2020, some many years after the original event.  Your application was refused because the delegate found you did not meet the criterion in Subclause 485.224, which is a mandatory requirement and deals with what are known as Public Interest Criteria we refer to and abbreviate to PIC as already mentioned.

16. To be eligible for the grant of a 485 visa an applicant must satisfy PIC 4020 which requires there to be no evidence before the Minister, or in this case the Tribunal that the applicant has provided or cause to have provided a bogus document or information that is false or misleading in a material particular in relation to an application for a visa. 

17. In your case the delegate found you had applied for a 485 visa through a business called S & S Migration, and dealt with a man called Jatinder Singh who had previously been found to have lodged numerous applications with the Department containing false or misleading information.

18. When I asked you today what happened you told me the story that your visa that was due to expire in November 2011.  You had been struggling with relationships here in Melbourne and decided to go and visit a friend in Tasmania.

19. While there you met a fellow who was called Arjay and because your visa was not long from expiring, and Arjay said he knew someone in Melbourne who knew someone else that if you had English at a level of IELTS-6, and had been in Australia for more than 2 years and paid him a substantial amount of money he could get you a visa with two years’ working rights, and there was a suggestion, the process could be repeated in the future.

20. And so you rang and spoke to this fellow, Jatinder, who you say sounded like a reasonable fellow, and he said, “Yes, I can do that for you.  Just send me some money.”  You cannot remember exactly how much but believe it was between two‑and‑a‑half and three‑and‑a‑half thousand dollars. He told you he could get you a working visa.  You say that is what happened and you were subsequently granted a Bridging Visa A on 6 September 2011.  You said you did not look at it particularly, you were happy you had a visa that you believed gave you work rights.

21. You told the Tribunal you previously held three student visas which you lodged through agents but in applying for those you in every case had to answer a large number of questions. In this case there were no questions and you agreed with the Tribunal that that was somewhat unusual. 

22. However, you came back to Melbourne and you went up to Shepparton fruit picking for a few months until the tomato season ran out.  You met and formed a friendship with a girl from Taiwan and you moved up to Mildura and Swan Hill as the orange season was about to start.  You found a legitimate employer who said, “I will give you a good job, but I need evidence of your visa status and what is going on to employ you.”  You say it was then that you checked the visa for the first time and realised it was soon to expire, so you didn’t lodge another application because you knew you wouldn’t get a job. That is according to you the first time that you really had a look at this visa that had been granted. 

23. You went back to Shepparton working on a farm for a year.  You broke up with the girl from Taiwan and moved back to Melbourne and around the end of 2013 you started working in kitchens in restaurants and have worked your way up the chain in restaurants to the point where you now work for a business called Four Leaves.  I am not sure what your job there is.  A letter from the owner says that you are the head chef however, the business website says that he (the owner) is the head chef, but anyway you work there as a chef, and the family that own the restaurant are happy to support you and tell the Tribunal that you are a good hard working fellow who has a job available there as long as you want it, if you have got a visa.

24. When the Tribunal asks you what you want to have happen, you respond that you would like the Tribunal to look at your circumstances, you want the opportunity to tell the story from your side, and you would like a fair go.

25. I explained to you in detail the relationship of what is known as agency, and the requirement to satisfy PIC 4020

26. It is your evidence that you rang and spoke to this fellow Jatinder who said, “Yes, I can get you a work visa.”  You have never had a work visa, you have got no sponsorship, you have no prospects of work, you have no evidence of having done any work or going to do any work that I am aware of, but he said, “Yes, I will get you a visa, just give us some money and a passport.”  And you say, “Thank you very much that’s a good idea.” 

27. In those circumstances, the Tribunal considers that you authorised him to lodge an application on your behalf, which he did.  You say all that you then heard was that you had been granted a bridging visa with work rights and you heard nothing else.  For the last 10 years you have not worried all that much about it, it troubles you a bit but you have not been concerned enough to approach the Department or approach a migration agent or a lawyer, or to do anything about it.

28. While you say you would like to tell your story and have us look at your circumstances, as I have said to you, the role of the Tribunal is not to grant visas, it is to consider whether you are eligible for a 485 visa.  I am reviewing the fact that you were refused a visa for providing information that was false or misleading. 

29. In support of your application you provided evidence of having received an assessment [TRA 10/971488165].  from the relevant assessing authority Trades Recognition Australia (TRA).

30. In verifying the evidence provided, the Department contacted the TRA who advised the number provided was not a number they had issued and they had no one of your name on their books.  You say you know nothing about that claiming it was all done by this Mr Jatinder.

31. However, you approached this gentleman Jatinder and asked him to lodge an application or authorised him to do so.  We did not get into why you had stopped studies and you did not apply for another student visa, but he told you he could get you a visa with work rights which you thought was a good idea, so you approached him on that basis. 

32. What was important to you was getting the visa with work rights.  You were indifferent as to how it was obtained or the evidence required to achieve the outcome.  When that visa was granted you say you did not look at it, you did not check it. The Tribunal finds that to be improbable. 

33. There is no question you engaged this Jatinder Singh to lodge an application on your behalf and you paid him a substantial fee for doing so.  You left the details of the application to him and appeared to be indifferent to the content of the application.  You did not care what was in it as long as it was a visa that gave you work rights.

34. I am satisfied that having regard to your circumstances, having instructed an agent to file an application on your behalf, and paid a fee to do so, an agency agreement was established.  The agent acted on your behalf in lodging the application and the Tribunal finds that the application for a Subclass 485 visa was validly made.

35. The Tribunal looks at your background and your history; you came to Australia some 10 years ago to study but for the last seven or eight years you have spent time working, fruit picking and on farms and working in kitchens and restaurants.  To be eligible for the grant of a 485 visa there are a range of requirements that need to be met.  One of them is that you have completed studies in the period of six months before you apply for a visa.  You have told the Tribunal that did not happen.

36. The second thing is that you require a skills assessment.  You told the Tribunal you did not apply for a skills assessment and the TRA have confirmed that to be the case. 

37. Clause 485.224 requires there is no false or misleading evidence provided in support of a visa application.  With your application evidence was provided of a skills assessment that you say you never did, you have got no idea what it was about, however as stated the Tribunal is satisfied the application was made by an agent acting on your behalf and you were indifferent to what information was provided. I therefore find , and therefore I find you do not satisfy clause 485.224.

38. I find that Jatinder Singh lodged that application knowingly, therefore there was purposeful falsity involved in the lodgement of this application.  When I ask you whether there are any circumstances that might meet the definition for the waiver of PIC 4020, given it can be waived if there are compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, permanent resident or an eligible New Zealand citizen which justify the granting of a visa, you say that for the last approximately 12 months you have been working at a business and have been included as a family member in the family that own that business, and that has been affirmed by Ms Heggarty who is here today who is the mother of the family that owns the business.  You have provided a reference from her husband that says you have managed the kitchen throughout the day, and it talks about your duties being food preparation, stocktaking, cleaning, managing staff, serving high quality food.  It says that since June 2020 you have been an irreplaceable support.

39. While I accept that is the case, I do not believe that those circumstances satisfy the definition of compassionate or compelling circumstances.  While I accept you have become close to their family in the last 12 months and your being refused a visa might cause them some sadness, certainly in the short‑term, I do not believe those circumstances meet the definition of compassionate or compelling circumstances, and I do not believe that replacement of an unqualified cook would be something that would be compassionate or compelling circumstances for a restaurant, and so I am therefore not satisfied that circumstances exist that would mean that PIC 4020 should be waived.

40. Having considered your circumstances as a whole the Tribunal finds there are a number of grounds on which you do not satisfy the requirements for the grant of a 485 visa. One of those is regulation 485.224, which was the basis for the delegate’s which deals with Public Interest Criteria 4020 that there is no evidence that with your application there was information provided that was false or misleading.

41. The Tribunal finds that with your application your indifference to the evidence provided caused the provision of a skills assessment by your agent with your authority, and that evidence created a breach of PIC 4020. 

42. There is no evidence of circumstances that would lead to a waiver of PIC 4020 and it is therefore the decision of this Tribunal to affirm the decision under review, and this decision was made at 1.23 pm on this 20 August 2021.

    DECISION

43. The Tribunal affirms the decision under review.

    Tim Connellan
    Member