GAJJAR (Migration) - [2020] AATA 4135

GAJJAR (Migration) [2020] AATA 4135 (24 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Kaushal Dhananjay GAJJAR
CASE NUMBER:  1821106
DIBP REFERENCE(S):  BCC2015/3552569
MEMBER:Roslyn Smidt
DATE:24 September 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled Independent (Permanent) visa.
Statement made on 24 September 2020 at 1:36 pm

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled Independent) – false or misleading information – claimed employment experience – applicant’s role or position within employer’s business – bogus document – reference letter – employment contract – relieving letter – waiver of requirement – disadvantage to an Australian business in ‘losing’ an employee – circumstances that affect the interests of Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 189.215; Schedule 4, PIC 4020
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
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 Immigration on 3 July 2018 to refuse to grant the applicant a Skilled Independent (Permanent) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 27 November 2015. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.189.215 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant had provided bogus documents in support of his application and PIC 4020 therefore applied.
The applicant appeared before the Tribunal on 13 August 2020 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND
The applicant obtained Bachelor of Technology in Computer Engineering from the Nirma Institute of Technology in Gujarat in 2008. According to information provided to the Department he worked for four companies in India as a software engineer, software developer and systems analyst between 2008 and his arrival in Australia on a 457 temporary work visa on 9 June 2013. He continued to hold this visa and to reside and work in Australia until November 2015 when he applied for a Subclass 189 permanent visa. To be eligible for a Subclass 189 visa an applicant must meet a number of requirements, including achieving an appropriate score on a points test in which the points are allocated according to a range of criteria including the applicant past employment.
CLAIMS AND EVIDENCE
Evidence provided to the Department
On 30 November 2015 the applicant provided a reference dated 19 June 2015 signed by Datatech Director, Rakesh Patel. This document is on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: GAJJAR (Migration) [2020] AATA 4135
Case: [2020] AATA 4135
Decision Date: 24 September 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal affirmed a delegate's decision to refuse a Subclass 189 (Skilled Independent) visa. The applicant, who had previously held a 457 temporary work visa in Australia, applied for permanent residency based on his claimed employment experience. The core of the dispute concerned the authenticity and validity of employment reference letters provided by the applicant, particularly one from Datatech, which was crucial for his points-based visa assessment.

The Tribunal was required to determine whether the applicant had provided false or misleading information regarding his employment history, specifically his role and tenure at Datatech. This involved assessing the credibility of the reference letter provided by Datatech's Director, Rakesh Patel, in light of investigations conducted by the Department. The Tribunal also considered whether the circumstances surrounding the employment claim, including the potential for a bogus document, affected the interests of Australia.

The Tribunal's reasoning focused on the evidence gathered by the Department, which raised significant doubts about the applicant's claimed employment at Datatech. An initial online search revealed Datatech to be a small business with limited online presence. Subsequent telephone inquiries to Datatech yielded evasive responses, and the Human Resources officer's account of the applicant's employment contradicted the dates provided in the reference letter. Further, the HR officer's denial of background conversations during the call, despite audible evidence, cast doubt on his credibility. The Tribunal noted that the applicant's claimed employment at Datatech occurred during a period when the HR officer stated he had not yet commenced employment there. The Tribunal concluded that the reference letter was likely a bogus document, and therefore the applicant had not satisfied the visa requirements.

The Tribunal affirmed the delegate's decision, finding that the applicant had not met the eligibility criteria for the Subclass 189 visa due to the provision of false or misleading information regarding his employment experience.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.BACKGROUND The applicant obtained Bachelor of Technology in Computer Engineering from the Nirma Institute of Technology in Gujarat in 2008. According to information provided to the Department he worked for four companies in India as a software engineer, software developer and systems analyst between 2008 and his arrival in Australia on a 457 temporary work visa on 9 June 2013. He continued to hold this visa and to reside and work in Australia until November 2015 when he applied for a Subclass 189 permanent visa. To be eligible for a Subclass 189 visa an applicant must meet a number of requirements, including achieving an appropriate score on a points test in which the points are allocated according to a range of criteria including the applicant past employment.CLAIMS AND EVIDENCEEvidence provided to the Department On 30 November 2015 the applicant provided a reference dated 19 June 2015 signed by Datatech Director, Rakesh Patel. This document is on a Datatech letterhead which provides the address of the business and refers to two websites: and It states that the applicant was employed as a Senior ASP.NET Developer between 8 March 2010 and 14 May 2011 and provides a list his responsibilities.[1] [1] NET Software Developer is a software developer who specialises in building software for Microsoft's Windows platform. A Department officer based in New Delhi conducted some initial research into the applicant’s employment in about May 2015. An online search revealed that Datatech had a website (datatech.in) which was created on 9 January 2006 and was also mentioned on a small number of online directories which provided limited information on its operations. Photographs of the Datatech premises and staff suggested that it was a small business with few employees. The officer telephoned Datatech twice. On the first occasion he found the person who answered the phone evasive. On the second occasion he spoke to the human resources officer, Mr T Patel, who told him that Datatech was established in 1992 and confirmed that Mr R Patel was the Director. He said that the applicant had worked with the software team but left the company before he began working there six years earlier. He said that he could not provide any further information because his computer had crashed, but he would try to retrieve the information and provide it later. According to the Department’s notes Mr T Patel was continuously conversing with someone in the background during this call, but when asked about this conversation denied that he had spoken to anyone. The Department officer noted that Mr T Patel must have worked for Datatech at the same time as the applicant if he had been at the company for six years in 2015. He also observed that it was not uncommon for applicants’ friends/family to provide fraudulent or exaggerated employment reference letters and this was more common when the company is small in size and recommended that a site visit be conducted.

Evidence

Evidence Before The Court

The applicant obtained Bachelor of Technology in Computer Engineering from the Nirma Institute of Technology in Gujarat in 2008. According to information provided to the Department he worked for four companies in India as a software engineer, software developer and systems analyst between 2008 and his arrival in Australia on a 457 temporary work visa on 9 June 2013. He continued to hold this visa and to reside and work in Australia until November 2015 when he applied for a Subclass 189 permanent visa. To be eligible for a Subclass 189 visa an applicant must meet a number of requirements, including achieving an appropriate score on a points test in which the points are allocated according to a range of criteria including the applicant past employment.CLAIMS AND EVIDENCEEvidence provided to the Department On 30 November 2015 the applicant provided a reference dated 19 June 2015 signed by Datatech Director, Rakesh Patel. This document is on a Datatech letterhead which provides the address of the business and refers to two websites: and It states that the applicant was employed as a Senior ASP.NET Developer between 8 March 2010 and 14 May 2011 and provides a list his responsibilities.[1] [1] NET Software Developer is a software developer who specialises in building software for Microsoft's Windows platform. A Department officer based in New Delhi conducted some initial research into the applicant’s employment in about May 2015. An online search revealed that Datatech had a website (datatech.in) which was created on 9 January 2006 and was also mentioned on a small number of online directories which provided limited information on its operations. Photographs of the Datatech premises and staff suggested that it was a small business with few employees. The officer telephoned Datatech twice. On the first occasion he found the person who answered the phone evasive. On the second occasion he spoke to the human resources officer, Mr T Patel, who told him that Datatech was established in 1992 and confirmed that Mr R Patel was the Director. He said that the applicant had worked with the software team but left the company before he began working there six years earlier. He said that he could not provide any further information because his computer had crashed, but he would try to retrieve the information and provide it later. According to the Department’s notes Mr T Patel was continuously conversing with someone in the background during this call, but when asked about this conversation denied that he had spoken to anyone. The Department officer noted that Mr T Patel must have worked for Datatech at the same time as the applicant if he had been at the company for six years in 2015. He also observed that it was not uncommon for applicants’ friends/family to provide fraudulent or exaggerated employment reference letters and this was more common when the company is small in size and recommended that a site visit be conducted. Officers from the Department based at Australian High Commission in New Delhi visited the Datatech offices on 30 March 2017. Their report notes the visit lasted for 55 minutes (12:05 pm to 1:00 pm) and that the interviews were conducted in English and Hindi.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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