Dorji (Migration) - [2023] AATA 3550

Dorji (Migration) [2023] AATA 3550 (16 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Chimi Dorji
Mrs Chencho Dema
Miss Kinley Mendrel Dema
Master Keelay Phuntsho Dorji
REPRESENTATIVE:  Ms Rosemary Lynne Acutt (MARN: 1461394)
CASE NUMBER:  2113034
HOME AFFAIRS REFERENCE(S):          BCC2019/2907719
MEMBER:Antonio Dronjic
DATE:16 October 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Skilled Nominated (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 190 - Skilled - Nominated visas:
·Public Interest Criterion 4020 for the purposes of cl 190.216 of Schedule 2 to the Regulations.

Statement made on 16 October 2023 at 3:36pm
CATCHWORDS
MIGRATION – Skilled Nomination (Permanent) visa – Subclass 190 (Skilled – Nominated) – false or misleading information given in relation to application for visa – work experience – promotion dates in work reference letter do not match those verified by employer – later letter confirms correct dates – materiality of information which will or might determine outcome of application – period and duties of employment undisputed and dates of promotion not material – decision made without hearing necessary – members of family unit decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65, 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 2, cl 190.216, Schedule 4, criterion 4020(1), (5)(b)
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Bushell v MIAC [2008] FMCA 1193
Sharma v MIMAC [2013] FCCA 1280
Sran v MIBP [2014] FCCA 37
Talukder v MIAC [2009] FMCA 223
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 Home Affairs on 16 September 2021 to refuse to grant the applicants Skilled Nominated (Permanent) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 6 June 2019. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of Public Interest Criterion (PIC) 4020(1) for the purposes of meeting cl 190.216 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The delegate formed a reasonable suspicion that the applicant gave false and misleading information in his work experience documents to the Department in relation to his visa application.
The applicants sought review of the delegate’s decision on 27 September 2021 and with their applications provided a copy of the primary decision record. The applicants were represented in relation to the review by their registered migration agent.
On 7 September 2023, the Tribunal wrote to the applicants advising them that it had considered material before it and was unable to make a favourable decision on this material alone and invited the applicants to attend a video hearing on 17 October 2023.
On 19 September 2023, the applicant’s representative provided legal submissions and documentary evidence in support of the applications. The list of documents is attached to this decision record and marked as Attachment A.
Under subsection 360(2)(a) of the Act the Tribunal considered that it should decide the review in the applicants’ favour based on the material before it.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 190.216 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).
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 B 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?
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.
The concept of ‘no evidence’ in PIC 4020(1) is not defined in the legislation. However, the Tribunal notes that in Bushell v Minister for Immigration and Citizenship & Anor [2008] FMCA 1193, Scarlett FM found there was jurisdictional error in a finding by the Tribunal (differently constituted) that there was ‘no evidence’ in circumstances where there was some evidence, albeit relatively slight, that supported the applicant’s claim. Accordingly, the Court held that in such a situation, it was not correct for the Tribunal to say there was no evidence.
The Tribunal notes that in Talukder v MIAC & Anor [2009] FMCA 223 (‘Talukder’s case’) Driver FM found that the word ‘evidence’ requires an assessment of the quality of the evidence being relied on by the Tribunal before finding whether an applicant fails to satisfy the criterion. The Court stated that the use of the word ‘evidence’ in cl 880.224 (as it was prior to 2 April 2011):
… establishes that the clause requires something more than mere existence of information suggestive of falsity. It requires some probative information. In other words, a decision maker cannot simply take any information suggestive of falsity as sufficient for the purposes of the clause. The decision maker must satisfy himself or herself that the information is acceptable as evidence pointing to false or misleading information having been given for the purposes of establishing the validity of the visa application and that the falsity or misleading information was material to the visa application.[1] [emphasis added]
[1] [2009] FMCA 223 at [20]
This approach was endorsed in Sharma v Minister for Immigration and Multicultural Affairs and Citizenship[2] (‘Sharma’s case’) where the Court expressly considered the meaning of ‘evidence’ in the context of PIC 4020. Specifically, the Court in Sharma’s case held that the word ‘evidence’ is used to impose a requirement that whatever facts are conveyed by the material relied upon to establish that information given in connection with the application for a visa was false or misleading in a material particular, they must be facts that are sufficiently probative to lead to that conclusion.
[2] [2013] FCCA 1280 (Judge Manousaridis, 6 September 2013) at [33]–[37]
Further, in Sran v Minister for Immigration and Border Protection[3] (‘Sran’s case’) the Court held that what a third party may have done in other cases could not:
… be a basis for establishing such a serious matter as fraud in the current case. While the circumstances may be “suspicious”, it is evidence about the applicant’s case that is necessary, not simply the drawing of inferences from the circumstances in other cases.
[3] [2014] FCCA 37 (Judge Nichollas,17 January 2014) at [71]
As such, the Tribunal must make an assessment as to whether there is evidence that is sufficiently probative to lead to a conclusion that the information given was a bogus document or false or misleading in a material particular.
The applicant was invited to apply for a Subclass 190 visa on 8 May 2019. In his application, lodged with the Department on 6 June 2019, the applicant nominated occupation of Computer Network and Systems Engineer (ANZSCO Code 263111).
In 2005, the applicant completed a bachelor’s degree of Information Systems Management at the University of Madras (India). By 30 June 2013, he had also completed master’s in computer applications at Lovely Professional University in India. On 13 December 2018, the applicant obtained a positive skills assessment for his nominated occupation of Computer Network and Systems Engineer from Australian Computer Society (ACT).
In the visa application form, the applicant claimed points for overseas employment based on his employment as a Senior ICT Officer at Sherubtse College Royal University of Bhutan from 1 December 2009 to 20 June 2018.
In support of his claim, he provided, inter alia, a work reference letter from Sherubtse College Royal University of Bhutan dated 20 November 2018, stating that the applicant was employed from 1 January 2006 to 20 June 2018. The letter stated that the applicant worked as:
Assistant ICT Officer from 1 January 2006 to 31 December 2007
ICT Officer from 1 January 2008 to 31 December 2010
Senior ICT Officer from 1 January 2011 to 20 June 2018
Following verification of the applicant’s claim with the Sherubtse College Royal University of Bhutan, the delegate found that the applicant was promoted to ICT Officer on 1 July 2013 and promoted to Senior ICT Officer on 1 July 2016. This did not match with the information in the reference of 20 November 2018 which provided dates of promotion as ICT Officer on 1 January 2008 and Senior ICT Officer on 1 January 2011.
Whether the applicant provided a bogus document
When considering whether a document is a ‘bogus document’, it is necessary to address the elements of the definition in s 5 of the Act. According to the definition, a ‘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.
Based on the evidence before it, the Tribunal finds the employment reference letter issued by Sherubtse College Royal University of Bhutan and signed by Mr Tshering Wangdi on 20 November 2018 was issued in respect of the applicant. The Tribunal further finds that the above listed document is not counterfeits or that it was altered by a person who does not have authority to do so.
The Tribunal was particularly concerned whether the applicant’s reference letter of 20 November 2018 was obtained because of a false or misleading statement. Based on the evidence before it, including the applicant’s statutory declaration and letter provided by Mr Wangdi on 22 December 2020, the Tribunal accepts that the applicant did not obtain work reference letter dated 20 November 2018 because of a false and misleading statement he made to Sherubtse College Royal University of Bhutan.
Accordingly, the Tribunal finds that the applicant has not given or caused to be given a bogus document to the Department with his visa application.
Whether the applicant provided information that was false or misleading in a material particular
In response to the Department’s natural justice letter of 2 December 2020, the applicant provided a detailed letter of explanation dated 22 December 2020, addressing the delegate’s concerns and clarifying how the provision of inconsistent employment dates had arisen. This was supported by a letter of explanation from the President of Sherubtse College, Mr Tshering Wangdi, confirming the applicant’s correct details and further confirming his duties of employment.
The delegate did not accept the applicant’s explanation relating to the inconsistent dates of promotion concluding that the applicant adjusted the dates of his employment promotions for the purposes of his visa application in an attempt to meet the points test and to obtain a favourable skills assessment. The Delegate found that the employment reference letter dated 20 November 2018, contains information that is false and misleading in terms of the claimed dates of promotion.
For information to be ‘false or misleading in a material particular’ in the context of PIC 4020, there must be a visa criterion upon which the allegedly false information could materially bear.[4] The definition in PIC 4020(5)(b) focuses upon the materiality of the information. It applies to information which goes to something which will or might determine the visa application and is not concerned with information that is irrelevant to the visa requirements.[5]
[4] Singh v MIAC [2012] FMCA 145 at [68]
[5] Kaur v MIBP [2014] FCCA 1264 at [80]–[81]. See also Singh v MIBP [2018] FCCA 1136
In addition, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42.
To claim points for overseas employment experience qualifications under Part 6D.3 of the Schedule 6D, the applicant was required to provide evidence that he was employed outside Australia in his nominated or closely related skilled occupation for either 36, 60 or 96 months in the 10 years immediately before he was invited to apply for this visa. The employment in this context is defined as ‘engaged in an occupation for remuneration for at least 20 hours a week’.
While acknowledging the delegate’s concerns regarding the discrepancies related to the promotion dates, the Tribunal is satisfied that the employment reference letter of 20 November 2018 does not contain false and misleading information that are relevant in a material particular.
In this context it is immaterial how much the applicant was paid for his work or when was he promoted from assistant ICT officer to ICT officer or Senior ICT officer. It is not disputed that the applicant was working at Sherbets College Royal University of Bhutan from January 2006 to June 2018 in his nominated occupation or closely related skilled occupation.
The information provided by the Department does not in the Tribunal’s view provide probative information sufficient to satisfy the Tribunal that false or misleading information has been used in the application at hand; rather it is merely suggestive of falsity. As was reasoned by Driver FM in Talukder’s case, referred to above, to be probative, the information must be more than suggestive of falsity; the information must be acceptable as evidence pointing to false or misleading information having been given for the purposes of the application.
As a result, the Tribunal is not satisfied that there is sufficiently probative evidence that the applicant has given, or caused to be given, to the Minister, or an officer of the Department, the Tribunal or a relevant assessing authority a bogus document or information that is false or misleading in a material particular in relation to the application for a Subclass 190 visa or in relation to a visa held in the 12 months before the visa application was made. Accordingly, the Tribunal finds that the applicant meets the requirements of PIC 4020(1).
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(1)?
PIC 4020(2) requires the Tribunal to be satisfied that the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing 3 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2AA).
There is no evidence before the Tribunal that the applicant or a member of his family unit have been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing 3 years before the application was made to the present.
Therefore, PIC 4020(2) is met.
Has the applicant satisfied the identity requirements?
PIC 4020(2A) requires an applicant to satisfy the Tribunal as to his or her identity. Having regard to the applicant’s passport located on the Department’s file the Tribunal is satisfied as to the applicant’s identity. Therefore, the applicants meet PIC 4020(2A).
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?
PIC 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2BA).
There is no evidence before the Tribunal that the applicant or member of his family unit have been refused a visa because of a failure to satisfy identity requirements during the relevant period.
Based on the above, the applicant does satisfy PIC 4020 for the purposes of cl 190.216.
DECISION
The Tribunal remits the applications for Skilled Nominated (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 190 - Skilled - Nominated visas:
·Public Interest Criterion 4020 for the purposes of cl 190.216 of Schedule 2 to the Regulations
Antonio Dronjic
Member
Attachment A: Document List
·Submissions from Rosemary Acutt from Queensland Migration Practice dated 18 September 2023.
·PRA’s passport issued 23 June 2015.
·Department of Home Affairs decision and notification letter dated 16 September 2021.
·Public Interest Criteria [clause 4001 to 4022] from Legend.com undated.
·Proof of employment letters from Sherubtse College signed by Tshering Wangdi dated 22 December 2020 and 20 September 2021.
·Statutory declaration made by Mr Dorji dated 5 March 2022.
·Skills assessments for ANZSCO 263111 (computer Network and System Engineer) from Australian Computer Society Inc. (ACT) dated 13 December 2018 and 29 November 2021.
·Screenshot of ACS skills assessment application undated.
·ACS summary of criteria requirements for a suitable ICT skills assessment result undated.
·Pages from ACS migration skills assessment guidelines for applicants dated April 2023.
·Proof of employment letter from APNIC (Asia Pacific Network Information Centre) signed by Stephanie Davies dated 12 September 2023.
·Payslips for Mr Dorji from APNIC dated 28 November 2021 to 2 September 2023.
ATTACHMENT B
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.
…