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 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.
The report on the visit states that the officers were informed that the Datatech office was located on the fifth floor of the building and it was not currently operating from the claimed address (which appears to have been on the ground floor). The office on the fifth floor was small and was occupied by three people, Mr T Patel the Human Resources director, the person in charge of sales and the person in charge of accounts.
The officers first spoke to Mr T Patel who said that he had been working for Datatech for three or four years. He said that the company had about 30 or 35 employees and was involved in the sale of HP products like laptops, servers and printers, but according to the report could not explain what the company did. He was shown the applicant’s 2015 reference. He said that it was a standard letter issued to employees when their employment ceased. He was unable to explain why the letter was dated 2015 given that the applicant left the company in 2011. He said that as HR director he was the only person currently authorised to sign such a letter. However, when the officers pointed out that the applicant’s letter had been signed by the company director, he said that usually the project manager informed the HR Department of the duties of the employee after which HR prepared the letter which was then signed by the Director. He showed the Department officers salary records which named that applicant but was unable to provide any records of his designation or period of employment. He said that the company did not have a procedure to record staff attendance.
The Department officers spoke to Nilesh Bahalani, the head of operations for Datatech. Mr Bahalani stated that the company had 35 employees and had a subsidiary in Australia. He also said that the company had a total of around 180 employees, including salespeople. He said that the company was mainly involved in sale of HP products like laptops, servers and printers. He said that they were also involved in website development, but they were not involved in software development or programming. He said that company employees were involved in digital internet marketing, designing and updating of websites for social media and customising templates that they receive from Australia.
The Department officers also spoke to Mr Reutwik who was introduced as someone who knew the applicant when he worked at the company. Mr Reutwik said that the applicant had worked as a website developer whose job involved creating and updating the website. He said that the company had a sales team in Australia who sent them projects.
A copy of handwritten notes made during the visit were retained on the applicant’s file. They are relatively brief and sometimes difficult to decipher. They appear to be consistent with the final report.
Based on the information obtained during the visit the Department officer who prepared the report found that Datatech was primarily involved in the sale of IT products, that designing websites was secondary work and that the company did not employ software developers. In light of this evidence and his knowledge of the use of fictitious or exaggerated work references in other cases, he concluded that the applicant had provided misleading information regarding his employment and the duties he performed.
On 1 June 2017 the delegate considering the applicant’s case wrote to advise him of the substance of the site visit report. She observed that the report suggested that he had provided false or misleading information. He was invited to comment and to provide a submission on any compelling or compassionate circumstances which might be relevant to waiver of PIC 4020 in his case.
On 17 October 2017 the applicant provided a submission prepared by his previous representative. It maintains that the applicant had provided an honest account of his employment with Datatech and noted that the Department officers who visited Datatech had not spoken to Mr R Patel, the signatory of the applicant’s reference letter. It stated that a letter from Mr R Patel had been requested and would be provided shortly.
The following documents were also provided:
·An extract from the Datatech website headed About Datatech/Founders Message which was downloaded on 13 October 2017. It identifies the Founder/Director as Mr R Patel and states that the company has several branches in Gujarat and across India, that it works in range of areas including web and client server application development.
·A copy of Mr R Patel driver’s licence with an expiry date of October 2018.
·An appointment letter/job contract dated 11 August 2010 which states that subsequent to an interview the company was pleased to appoint the applicant as a senior net developer from 8 March 2010. It provides details on matters such as salary and place of work, but not hours of work.
·Six monthly payslips for the period October 2010 to April 2011. They are on the same letter head as the appointment letter and are addressed to the Manager, Bank of Baroda. They state that the applicant worked between 26 and 30 days a calendar month and earned a net income of 17,800 rupees (18,000 rupees less 200 rupees professional tax).
·An income tax document (Form 16) which states that the applicant worked for Datatech as a software engineer in the period 1 April 2010 to 31 March 2011 and earned a salary of 206,400 rupees from which 2400 rupees tax was deducted, leaving a total gross income of 204,000 rupees.
·A relieving letter from Datatech dated 12 May 2011 which states that the applicant would be leaving his position as a Senior ASP.NET Developer in the Software Department on 14 May 2011.
·An experience certificate dated 14 May 2011 issued by Datatech which states that the applicant worked as Senior ASP.NET Developer from March 2010 to May 2011.
No further submissions were provided to the Department following this. It appears that this may have been partly due to an ongoing Freedom of Information application. The delegate refused the application on 3 July 2018. In essence he accepted that the applicant may have worked for Datatech Computers, but he was not satisfied that he had been employed as a senior ASP.NET developer. He concluded that the reference letter, employment contract and relieving letter provided by the applicant were bogus documents.[2]
Submissions to the Tribunal
The applicant applied for review of the delegate’s decision on 20 July 2018. At the time he had an ongoing Freedom of Information application as a result of which he obtained copies of the notes and complete report relating to the site visit in 2017.
On 6 August 2020 the applicant provided a lengthy submission prepared by his current representative. In essence, it submits that the applicant has not provided any false or misleading information and that the report prepared by the Department officers who conducted the site visit was incorrect, because it failed to accurately record what transpired during the visit and the officers who prepared the report failed to understand the nature of Datatech’s business activities and the applicant’s duties as an employee of the company. It notes that the applicant’s tasks were recorded in the Department officer’s notes as including developing, customising and updating websites and argues that this was work carried out by the applicant in his capacity as Senior ASP.NET Developer.
The applicant also provided a statutory declaration in which he set out his background, his past dealings with the Department and his response to the delegate’s letter of 1 June 2017. He maintained that he had provided an honest account of his employment with Datatech which involved developing and maintaining software and for programming, evaluating and reviewing software and systems. He noted an email exchange on 27 March 2017 between two Department officers who appear to have agreed that the site visit to Datatech was not necessary given that other aspects of this employment history had been found to be credible.
The applicant said that he had received a relieving letter and an experience certificate when he left Datatech in 2011. He later obtained the reference dated 12 June 2015 to support his application for recognition by the Australian Computer Society by contacting Jignesh Patel (Mr J Patel) who he described as his direct manager during his employment with Datatech and most able to comment on his experience and duties. He said that Mr J Patel resided in Sydney and ran Datatech’s Australian operations under the business name SEORank. Mr J Patel made the arrangements for Mr R Patel to provide the reference and instructed the applicant to collected it from the third floor of the Datatech offices in Ahmedabad. He provided copies of emails which he said he and Mr J Patel had exchanged in relation to this reference.
The applicant provided an entry downloaded from the website of SEORank on 8 March 2020, which states that Jignesh Patel is the founder and director of the company. It describes Datatech India as an offshore partner. He also provided evidence that SEORank in Australia had been rebranded Datatech Media in 2008, and that Datatech Media had been rebranded Webential in 2014. He noted that the Datatech.in website referred to Mr J Patel as a sales consultant.
The applicant said that the report of the Department’s site visit was flawed as the officer who prepared it had misinterpreted, misunderstood or failed to accurately record the information which had been provided to them. He submitted that this had resulted in the delegate reaching conclusions which were incorrect.
The applicant noted that the site visit report and the delegate’s conclusion rested to a large degree on information provided by Mr T Patel, who was not employed by Datatech during the time he worked there and had limited knowledge of his work. He said that some of Mr T Patel’s statements had been misunderstood. For example, Mr T Patel had clearly been referring to the standard relieving letters issued by the company, not letters such as the June 2015 letter, when he said that only he had the authority to issue references.
The applicant said that the delegate’s conclusion that Datatech was mostly involved in sales of IT products and was not involved in software development or programming was incorrect. He said information on the Datatech website confirmed that the company was involved in website development and other non-sales activities. He referred to the website which he said confirmed that the company was engaged in website development requiring the skills of a software developer. He noted that Mr T Patel’s linked-in profile states that in addition to selling IT products, Datatech provided web-design and networking services. He submitted that people who prepared the site visit report failed to understand that website development and software development were interchangeable terms. He provided documents which discuss the overlap between these and other terms relating to different categories of work related to website development.
With regard to his position and duties while working for Datatech the applicant noted that during a telephone conversation with a Department officer prior to the site visit, Mr T Patel had stated that he (the applicant) worked in the software division of Datatech, that the Project Manager had confirmed this during the site visit and that a long term employee who knew him in 2010-2011 had confirmed that he had experience on .NET and his main role was to create and update websites.
The applicant claimed that his father had visited Datatech offices on November 2017 and spoken to Mr T Patel, who told him that the Department officers who visited Datatech had been told that the applicant had worked in the role of Senior ASP.NET Developer, but that nobody currently worked in a role with that specific title. He submitted that the fact that nobody currently occupied the position of Senior ASP.NET Developer resulted in the incorrect assumption that he had not occupied that position when he worked for the company.
The applicant submitted that the site report incorrectly concluded that Datatech offices were small, as in addition to the fifth-floor office the Department officers visited the business occupied multiple floors in the building, including offices on the third floor which housed the software division. He said that in November 2017 Mr T Patel told his father that the Department officers had been invited to visit the third floor but had declined to do so.
The applicant also submitted the observation by the Department officers who conducted the site visit was incorrect in stating that the HR officials could not provide any record of reference letters under the applicant’s name, as they had been shown a soft copy of his employment reference letter and verified the date it was issued by viewing the properties of the document. He also claimed that the salary records shown to the Department officer during the visit were evidence of his designation.
The applicant said that he had been aware of the visit to Datatech’s premises on 30 March 2017 when he received the Department’s letter dated 1 June 2017, because his father had called to tell him that he had had a conversation with Mr T Patel who told called to tell him that two Department officers had enquired about the applicant and he had provided them with the relevant information and they had been happy with this.
The applicant said that his father had visited Datatech on 17 July 2017 to explain the problems he was facing to ask Mr R Patel to provide a further letter of support. On 26 July 2017 he received an email from Mr T Patel enclosing draft letters from Mr T Patel and Mr R Patel, together with copies of their identity documents. He submitted that this demonstrated that these men had been willing and able to provide him with support. In November 2017 the applicant had a telephone discussion with Mr T Patel who told him he was working on the draft letter and was waiting on verification of some technical details from Mr Rutwik. However, when his father visited the Datatech office later the same month expecting to collect the signed letters, he was told that the company had already provided all the relevant documents to the applicant and that staff had provided appropriate information to Department officers during their visit. Following that, nobody from the company would provide any further assist to the applicant or his father. The applicant later asked Mr R Patel, Mr T Patel and Mr J Patel to give evidence on his behalf at the hearing, but they all refused to do so. He said that he did not know why everyone associated with his former employer now refused to provide any further assistance, but thought that it could be that they were concerned that involvement in his legal issues could have an adverse impact on their business in Australia.

The applicant provided copies of the undated unsigned statements issued in the name Mr R Patel and Mr T Patel together with a copy of an email dated 26 July 2017 which contains the message “PFA” and indicates that the statements were attached.
The statement attributed to Mr T Patel confirms that the applicant worked full-time for Datatech Computers from March 2010 to May 2011. It states that the company holds his relieving letter and pay slips on file. It states that to the best of his recollection he, Mr Nilesh Bhalani (Operations Manager) and Mr Rutwik Avasthi (Project Manager) confirmed that the details in the reference provided to the applicant in 2015 were correct when questioned by the Department officers in 2017. It also states that Mr Avasthi knew the applicant personally and was aware of his duties and responsibilities. It confirms that Mr T Patel had telephoned the applicant’s father after the site visit to let him know what had happened.
The statement attributed to Mr R Patel also confirms that the applicant worked for Datatech in 2010-2011. It states that Mr R Patel signed the applicant’s reference dated June 2015, that the information contained in the letter is correct and that he could have confirmed the details of the applicant’s employment if he had been contacted by the Department. It also states that Datatech no longer employs anyone in the position of Senior ASP.NET Developer.
The applicant provided a statement from Darko Djakovic, Client Services Manager for the Asia Pacific for Fiserv Australia, the applicant’s current employer who stated that the applicant had possessed the skills to work as a software developer at the time he commenced work for the company [in 1012]. He also provided a reference from Mr Robert Bautista, a friend and colleague currently employed as a Managed Services Consultant, Tech Lead for Fiserv Australia. The reference confirms that the applicant is highly skilled in his field and also states that he is of good character. In support of these submissions the applicant provided a statutory declaration from
In addition the applicant provided some 500 pages of supporting documents, many of which had previously been provided to the Department in support of his current application or his previous visa applications, and some of which were obtained in response to a freedom of information application.
The applicant attended hearings of the Tribunal on 13 August 2020 and 24 September 2020.
At the first hearing the applicant said that during the time he worked for Datatech the company occupied four floors: the ground floor that was a back office where hardware was located, and levels three, four, five and six. At that time the company had no other branches in India, but they had a subsidiary in Australia. He believed that the company continued to occupy four floors in 2017 when the Department officers visited, but he understood that level six was temporarily closed for a construction project. I observed that this appeared to be at odds with the information in the site report. He responded that it had been 10 years since he had worked for Datatech and he was not sure whether the ground floor office was still being used at that time.
The applicant said that there were about 20 or 30 employees working in the software division when he was employed by Datatech Computers. In addition, there were about 10 people working on administration on level five and around five people on level six. In total the workforce was 50 or 60 people at most. He said that all of these workers were involved in activities related to software and he was not sure about the situation relating to the sale of hardware, which was located on the ground floor.
I noted that the Department officers who visited the site in 2017 appeared to have been told both that the company employed 35 people and that it employed about 180 people. He said that he believed that the reference to 35 people was to those working in the software division while the 180 would have referred to the total number of employees in India and Australia. He said that during the time he worked at Datatech Computers there were about three or four employees in Australia. I observed that this suggested that there was a huge sales force. He observed that salespeople were often out on the road and said that he had little interaction with them.
I asked the applicant if he could tell me anything about the second website mentioned on the letterhead he had provided (SEORank.in) as it appeared to be based in India. The applicant said that the only company called SEORank of which he was aware was based in Australia. I asked the applicant if he could explain the relationship between Datatech in India and SEORank in Australia, as some of the evidence suggests the latter was a subsidiary of the former and some suggested that it was a client. The applicant said that he understood that it was a subsidiary that was owned by Datatech Computers. To the best of his knowledge Australian employees were involved in sales and their role was to find clients for Datatech in India.
I noted that according to the applicant’s evidence SEORank had been rebranded Datatech Media in 2008 and observed that it seemed strange that Department officials had been told that the Australian company was still called SEORank when they visited in 2017. The applicant said that he did not know why this was but observed that it could take some to finalise the process of rebranding a company.
I noted that the applicant had stated that Mr J Patel who was based in Australia and involved in sales had been his manager or supervisor during the time he worked for Datatech and asked him to clarify their relationship. He said that Mr J Patel found projects for him to work on and gave him instructions on what was required. I observed that this seemed a little strange as he was working on the technical side in India while Mr J Patel was involved with sales in Australia. He said that salespeople also needed some technical knowledge and added that someone else had some oversight over the technical aspects the projects. When asked about his relationship with Mr R Patel he said that Mr R Patel was in charge overall, but they had almost no contact as Mr R Patel worked on level six and rarely visited the third floor.
The applicant said that he had not had any contact with his colleagues at Datatech between the time he left in 2011 and mid-2015 when he contacted Mr J Patel in Sydney to ask for a reference. He did not speak to Mr J Patel again until 2017 when he asked him for assistance in obtaining evidence to confirm his employment with Datatech. Mr J Patel refused to help him. He contacted Mr J Patel again in January 2020 to ask him to be a witness at the hearing, but Mr J Patel again refused to help him. The applicant said that Mr J Patel continued to live in Australia and work for SEORank. He did not know why Mr J Patel had declined to help him but speculated that it might be because he was concerned that assisting the applicant might harm his business in Australia.
I asked the applicant why the Datatech appointment letter/contract he had provided was dated 11 August 2010 but stated that he was appointed on 8 March 2010. He said that his representative had asked him the same question when they were preparing for the hearing, and he located his original appointment letter within the last 48 hours. He said that the contract provided earlier was issued when he was promoted from .NET Developer to Senior .NET Developer. He said that he did not received any additional income after this promotion, it was just a change in title. I advised him that I found it difficult to accept that the document he had provided related to a promotion. He maintained his claims were true.
Following the hearing the applicant provided second job offer/work contract dated 23 February 2010. It states that the applicant had been appointed to the position of ASP.NET Developer, that he would be responsible to Kaushal Shah and that his working week would be Monday to Saturday 8 am to 4 pm plus reasonable additional hours as required. It is on a different letterhead from the other documents provided by the applicant.
At the hearing on 24 September 2020 I advised the applicant that his failure to provide the second contract or mention its existence prior to the hearing together with the fact that it was on a different letterhead from the other Datatech documents which he had provided cast doubt on its genuineness. He said that he could understand why this might be the case, but he had provided an honest account of events. He said that his failure to provide the document earlier was the result of sloppiness on his part and the fact that the letterhead was different, which caused him to overlook it when reviewing his files.
When asked about his pay and conditions at the hearing on 13 August 2020 the applicant said that he worked nine to five Monday to Friday and received a monthly salary of 18,000 rupee a calendar month, which was appropriate for his skills and experience. When asked if he worked on weekends, he said that he did this occasionally if there was an urgent need. I observed that the payslips he had provided indicated that he had worked a six-day week. He responded that he worked every second Saturday. He said that his first response had been incorrect because it was some time since he had worked for Datatech and he had simply forgotten the hours he worked.
I noted that the statement of annual income (Form 16) prepared by Datatech for the financial year 2011/2012 indicated that the applicant’s salary was 206,400 rupees, while it appeared that it should have been 216,000 rupees. He said that professional tax had been deducted and he might have taken some unpaid leave.
When his father attempted to follow up and obtain the promised letter in about October 2017 Mr R Patel would not speak to him. Mr R Patel told a third party that the company would not provide any further assistance to the applicant.
I noted that the applicant’s recent submissions contained what appeared to be unsigned drafts sent by him or his representatives to Mr R Patel and Mr J Patel for his signature. He said that the letters were prepared by his previous representative after he received the Department’s letter dated 3 July 2018; they had not been signed or returned by either Mr R Patel or Mr J Patel. I observed that unsigned draft letters were not particularly useful to me. The applicant said that he understood. He said that the letters had been provided to demonstrate that Mr R Patel and Mr J Patel were initially cooperative but then withdrew their support.
I noted that the applicant had provided a number of submissions regarding the work of web developers and software developers and observed that while I was far from expert in the nature of these roles, it was my understanding that web development could range from making fairly minor adjustments to templates which were already in existence to complicated work on multi-function websites. The applicant confirmed that this was correct. I also noted that the site visit report appeared to suggest that work at Datatech Computers primarily involved working with existing templates. He maintained that he had been involved in software development.
At the end of the hearing the applicant’s representative asked if I wished to speak to Mr Djakovic who could attest to the applicant’s skills and ability to perform the work of a software developer. I advised her accepted that the applicant had the skills required to work as a .NET developer when he worked for Datatech. However, the issue before me was not the applicant’s skills, but whether he worked for Datatech in the position claimed in 2010-2011, and as the witness had not known him at the time it appeared that he could not provide evidence regarding this issue. The applicant and his representative agreed that it would not be necessary to question Mr Djakovic about the applicant’s skills.
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.189.215 for the grant of the visa. Relevantly, 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). The requirements in PIC 4020 (1) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020 (4).
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 issue in the applicant’s case relates to his claimed employment at Datatech Computers in 2010-2011, specifically whether he was employed as Senior ASP.NET Developer, and the documents provided in support of this claim. In reaching the conclusion that the applicant had not worked in this position the delegate relied on information in the report of the Department site visit conducted in March 2017. This report confirmed that a company called Datatech Computers operated from the address provided by the applicant but concluded that its main activity was selling hardware (computers etc) and that while it had some involvement in website development, it is was not involved in software development. It also concluded that while the applicant had worked for the company, he was not employed in the position of Senior ASP.NET Developer.
The applicant has submitted that there are significant problems with the site visit report relied on by the delegate. I acknowledge that there are some issues with this report. I have difficulty reconciling the statement that Mr T Patel told Department officers that Datatech sold items such as computers with the statement that he could not explain what the company did. In addition, a more detailed account of the salary records which Mr T Patel showed the officers would have been useful, as would an explanation the differing numbers of employees cited by Mr Bahalani. A clearer statement on the nature of company’s involvement in web-development would also have been helpful. That said, I accept that the report provides an honest and broadly accurate account of the information provided to the Department officers. I accept that they were not provided with evidence which confirmed that the business was or had been involved in software development or that the applicant was employed as a senior software developer by the company in 2010-2011.
In reaching this conclusion I have considered the following specific concerns raised by the applicant.
The applicant noted that the Department officers were advised that the applicant was in the software division of the company. He submitted that the officers who conducted the site visit were confused because they failed to understand that terms such as website developer and software developer are essentially interchangeable and wrongly assumed that the applicant was not a software developer.
The term computer hardware refers to the physical components of a computer. Software refers to any program which enables a computer to perform a specific task and clearly covers a wide range of activities involving a wide range of skills. It is my understanding that any work involving the creation or modification of a website using existing templates falls within software category. The fact that Datatech has a software division does not necessary mean that they employed software developers preforming the tasks claimed by the applicant.
I acknowledge there is an overlap between meaning of terms such as web developer and software developer. However, as the applicant agreed during the hearing, website development can involve nothing more that modifying existing templates and does not necessarily require software development skills. If Datatech had been engaged in significant software development rather than more basic website development, I believe that they would have stated this clearly when questioned by Department staff. Not only did this not occur, Mr Bahalani, the head of operations, stated that Datatech was not involved in software development or programming. Clearly a business which is not involved in software development or programming would have no need for a Senior ASP.NET Developer. In these circumstances I do not accept the site visit report wrongly concluded that the applicant was not a software developer because the officers involved were confused about the meaning of the term.
The applicant has submitted that officers who conducted the site visit failed to conduct an adequate investigation; for example, they relied largely on information provided by Mr T Patel who was not with the company when he worked and failed to interview Mr R Patel who signed his reference letter. The applicant also submitted that the officers were wrong to base their conclusion that Datatech was a small company on information which they obtained online and the size of the offices they visited, which were only a portion of the space occupied by the company.
Mr T Patel was questioned in his capacity as HR director. In my view it is not unreasonable to expect that such a person would have access to information on the role of former employees. Mr R Patel appears not have been available during the visit and in my view it there was nothing inappropriate in Department officers relying on the information of the staff they were able to question. With regard to the size of Datatech’s offices, I do not accept that the officers who conducted the visit would have failed to notice that the business occupied multiple floors in the building if this had been the case. In any event, the issue under consideration is the applicant’s role with the company, not the size of the business.
The applicant has submitted that information on the Datatech website and the websites of associated companies such as Webential and SEORank confirm Datatech’s current involvement in a range of software related activities.[3] Currently the software link on the Datatech.in website links to webential.com which appears to be located in or at least focused on the US market. Contrary to the evidence provided by the applicant it appears that Webential and SEORank are separate entities, both of which continue to operate in Australia. The website SEORank.com.au describes Datatech Computers as an offshore partner and also states that SEORank Australia has established a branch in India. The relationship between these companies is unclear. It is also unclear whether they employ software developers to provide their services listed on their websites or contract this work out. I note that according to the applicant, Datatech does not currently employ anyone in the position he claims to have held in 2010-2011, which does not sit well with his claim that the company is currently involved in software development activities.
[3] See and type="1">
In any event, none of the information on any of these websites confirms that services provided by Datatech in 2010-2011 included activities which required the employment of a senior software developer or that the applicant was employed in that position. As noted above, when questioned by Department officers in 2017 the head of operations stated that Datatech Computers was not involved in these activities.
The applicant claims that information in the site report was contradicted by Mr T Patel in conversations with his father following the visit. He claims that Mr T Patel told his father that the Department officers who conducted the visit had been told that the applicant had been employed as a Senior ASP.NET Developer and shown salary records which included his designation (presumably his position as Senior ASP.NET Developer). I note that the site report specifically states that no records which stated the applicant’s designation were provided. I also note that, despite being asked to do so, Mr T Patel, has not provided confirmation of his conversation with the applicant’s father. In the absence of any supporting evidence from Mr T Patel and in light of the other issues with the applicant’s evidence set out in this decision, I have given no weight to the allegations he supposedly made regarding the site visit.
The applicant has provided unsigned statements attributed to Mr T Patel and Mr R Patel. At the hearing it was established that these were prepared by this previous representative and had been provided as evidence that both men had initially been prepared to give evidence confirming his employment with Datatech. The fact that the applicant is in possession of copies of identity documents for these men suggests that he was in contact with them after he received the Department’s letter in June 2017. However, it is also clear that both men were unwilling to sign these statements or provide further support to the applicant. The applicant speculated that they may have been concerned that providing him with further support could cause problems to their operation in Australia. I have some difficulty accepting that both of these men and Mr J Patel would have been reluctant to provide further assistance to the applicant if he had worked for Datatech in the capacity claimed in 2010-2011 and the claims regarding their interactions with Department officers as set out in these letters were accurate. In my view a more likely explanation is that the information in the statements prepared for them is not accurate. In any event, in the absence of properly signed statements and an opportunity to discuss the contents of the statements with the men involved, I am unable to give them any weight.
While I give significant weight to the advice in the Department site visit report, my findings regarding the applicant’s credibility are not based on this evidence alone. There are also significant problems with the documents he has provided in support of the claim that he was employed by Datatech Computers in 2010-2011.
First and most significantly, I do not accept that the employment contracts provided by the applicant where issued to him in 2010 or that they accurately reflect his association with Datatech Computers.
The appointment letter provided in October 2017 is dated 11 August 2010, but states that the applicant was appointed to the position of a Senior .NET Developer on 8 March 2010. When asked to explain this anomaly at the hearing the applicant said that the letter had been issued to him in August 2010 when he was promoted from .NET Developer to Senior .NET Developer, not when he was first employed by the company. He said that the promotion did not involve an increase in pay or any change apart from his job title. I find the explanation implausible. If the letter had related to a promotion, I believe this would have been clearly stated and the letter would not have stated that the applicant was appointed to the highly level of duties from 8 March 2010 when he commenced employment with the company. Furthermore, I do not accept that after being alerted to this problem by his representative two days before the hearing the applicant was able to locate a document which he had previously overlooked. I note that the document which is purported to be the initial letter of appointment is on a different letterhead to that used for the contract provided earlier and all the other Datatech documents provided by the applicant. Finally, I note that despite being alerted to the problems with the first appointment letter and locating the second appointment letter prior to the hearing the applicant failed to provide the second appointment letter until advised that I had problems with the first letter.
I believe that the first contract he provided was manufactured by the applicant himself or provided by Datatech or a third party, the first to overcome the concerns set out in the delegate’s letter of June 2017, and that he manufactured the second contract himself in an attempt to overcome the problems with the first contract.
Secondly, there are significant problems with the payslips provided by the applicant. These documents state that he worked between 26 and 30 days every calendar month while employed by Datatech Computers, which indicates that he worked at least a six-day week. When asked about the hours he worked for Datatech at the first hearing he stated confidently that he worked a five-day week, then that he occasionally worked over-time on weekends and finally that he worked on Saturday every other week. The contract provided following the hearing states that he was contracted to work six days a week.
While I acknowledge that it is now 10 years since the applicant claims to have been employed by Datatech Computers, I do not accept that he would have forgotten that he routinely worked at least six days per week while employed by the company. I do not accept that documents provided by the applicant are payslips which were issued to him in 2010-2011 while he was employed by Datatech Computers. I believe that they were manufactured by him or on his behalf for the purposes of supporting the claim that he was employed by the company as a software developer in 2010-2011.
Third and finally, the Form 16 provided by the applicant states that he earned 206,400 rupees during the financial year ended 31 March 2011 from which 2400 rupees of tax were deducted, resulting in a net income of 204,000 rupees. This is at odds with information recorded on his payslips which state that he earned 18,000 rupees a month from which 200 rupees tax was deducted. This would have resulted in an annual income of 216,000 rupees or 213,600 rupees after tax. When asked to explain this discrepancy, he first suggested the difference related to tax deducted from his income, then said that it could have related to unpaid leave. While it is plausible that the applicant’s income might have been reduced if he took unpaid leave, in light of his demonstrated willingness to provide fraudulent documents, I find that this document was also manufactured by the applicant or at his request.
After considering all of the evidence, I find that the applicant’s evidence regarding his employment with Datatech lacks credibility. While it is clear that he had some association with Datatech and he may have worked for them at some time in some capacity, I do not accept that he held the position of ASP.NET Developer between March 2010 and May 2011 as claimed in his application. I find that this information was false and misleading at the time it was given and was relevant in a material particular to the applicant's claim for Australian skilled migration points as per cl.189.224 of Schedule 2 to the Regulations.
Accordingly, I am not satisfied that there is no 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 his application for a Skilled Independent (Permanent) Subclass 189 visa. Therefore, the applicant does not meet PIC 4020(1).
Should the requirements of PIC 4020(1) be waived?
The requirements of PIC 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 of the Regulations), that justify the granting of the visa. The decision-maker must first be satisfied that there are such circumstances, then must consider whether to exercise the discretion to waive the requirements, having regard to those circumstances: Kaur v MIBP [2017] FCAFC 184.
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.
Waiver submissions
No evidence or submissions have been provided which suggest that there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen.
In submissions provided on 6 August 2020 the applicant and his representative argued that in the event that it was decided the PIC 4020 applied in the applicant’s case he should be granted a waiver on the basis that he had made a significant contribution to his Australian employer, Fiserv Solutions Australia Pty Ltd, to Westpac Bank who are a client of Fiserv Solutions and the broader Australian community. In essence they submit that the applicant holds a senior position within Fiserv Solutions which involves working on a project or projects for Westpac and has received a number of awards from his employer and Westpac for his work. They submit that the loss of the applicant’s services would significantly impact on Fiserv Solutions and Westpac. In the case of Fiserv Solutions, they have invested seven years into his employment and would have difficulty replacing him. In addition, any replacement would take at least a year for his replacement to gain the knowledge and skills required for the position. In addition, he claimed that Westpac Bank relies heavily on his services and expertise and their ability to provide services. In particular, the Westpac Live project would suffer significantly if he was unable to continue to provide these services, and this would significantly impact their ability to provide these services to the broader Australian community.
The submissions also note that people with the applicant’s skills are in short supply in Australia and that the Australian economy depends on migrants such as the applicant. They argue that the COVID-19 pandemic and the closing of Australia’s borders will mean the loss of the applicant’s services will be even more significant, as it will not be possible to recruit skilled people from abroad, which would impact on the applicant’s employer and the broader community. He provided numerous articles and reports relating to Australia’s reliance on migrants in general and the need for people with high level skills in the computer software field in particular.
In support of these submissions the applicant provided a statutory declaration from Darko Djakovic, Fiserv Australia’s Client Services Manager for the Asia Pacific. Mr Djakovic stated that Fiserv was a global financial services technology provider with a focus on mobile banking, online banking and related activities with a revenue of over $15 billion in 2018. He confirmed that the applicant had the skills required of a senior software developer and set out the applicant’s employment with Fiserv. He stated that he had been made aware of the requirements for a waiver of PIC 4020 and added that if the applicant is granted a permanent visa he would be able to continue to work with Fiserv Australia and Australia would continue to benefit from his skills and knowledge.
I spoke to Mr Djakovic on 24 September 2020. He confirmed that the nature of the application before me and the relevant waiver provisions had been explained to him by the applicant’s representative. I advised him that in my view the fact that an employer might lose the services of a valued employee would not generally amount to compelling circumstances which would affect the interests of Australia and asked if he would like to add anything to his written statement. He said that Fiserv worked predominantly with the banking sector providing highly bespoke solutions for each client and in these circumstances the issue was not so much the applicant’s skill set but his knowledge of the particular systems which had been put in place for the companies clients. He said that the applicant had seven years experience with Fiserv’s systems and his absence would create a gap. He said that this would also be a burden for him (Mr Djakovic) because of the difficulty replacing the applicant and the need to rejig things. I noted that Fiserv appeared to be an extremely large international company and it therefore seemed likely that they would have the resources to replace the applicant if necessary. Mr Djakovic said that the bespoke nature of the services would make this difficult. I observed that the issues raised by Mr Djakovic appeared to be difficulties that might be faced by his company and asked how the applicant’s inability to continue in his current position would impact on the broader community. He said that Fiserv provided services to banks such as Westpac which meant that their systems had some 6 million users. I asked how these users would be impacted if the applicant was no longer working for Fiserv. He said that in event that there were problems with the system the applicant would have a key responsibility in fixing things. I observed that it seemed unlikely that a company such as Fiserv would not have measures in place to deal with the absence of a single employee, particularly as any employee could be absent due to illness or might chose to leave. Mr Djakovic said that the company had systems in place to cope with these circumstances, but nevertheless the applicant’s absence would have an impact on their ability to provide services to their clients.
The Department’s guidelines suggest that there may be compelling circumstances affecting the interests of Australia if it would miss out on a significant benefit that the person could contribute to Australia’s business, economic, cultural or other development (for example, a special skill that is highly sought after in Australia) if the person was not granted the visa.
Various judgments have considered claims based on employment in Australia and the ‘interests of Australia’. The judgments considering the meaning of this connote more significant, objective and public interests than that associated with mere employment in Australia.[4] While it is not the case that employment in a business in Australia could never amount to compelling circumstances affecting the interests of Australia, there is a distinction between the disadvantage to an Australian business in ‘losing’ an employee, and circumstances which affect Australia.[5] It is a question of fact and evidence for the Tribunal as to whether the claimed circumstances relating to employment in a particular case constitute compelling circumstances affecting Australia.
[4] Deb v MIBP [2016] FCCA 3351 at [45], citing various other cases including Raza v MIBP [2015] FCCA 1623 and Kandel v MIBP [2014] FCCA 1479.
[5] Deb v MIBP [2016] FCCA 3351 at [56].
I am not satisfied that compelling circumstances that affect the interests of Australia exist in the applicant’s case.
While the loss of the applicant’s services may disadvantage Fiserv or Westpac in the short term, the evidence does not suggest that this would affect the interests of Australia more broadly. Mr Djakovic’s evidence indicates that while Fiserv would be inconvenienced by the applicant’s absence, they have systems in place to ensure that they can continue to service clients such as Westpac and I do not accept that Westpac banking services would be disrupted affecting the interests of millions of clients of the bank if the applicant was unable to continue working in Australia.
I accept that the applicant has skills as a software developer which are in demand in Australia. However, I note the Mr Djakovic’s evidence that it is not so much the applicant’s skill set which makes him value to the company, but his knowledge of the company’s bespoke systems. On the evidence before me I am not satisfied that Australia would miss out on an economic or other benefit if the applicant was unable to continue working in Australia.
With regard to the broader issue of Australia’s reliance on migrants for continued economic progress, while an inability to attract migrants may impact on Australia’s economic growth in future, in the absence of evidence that Australia would miss out on an economic or other benefit if the applicant was unable to continue working in Australia, I do not accept that this means that there are compelling circumstances that affect the interests of Australia exist in his case.
Therefore, the requirements of PIC 4020(1) should not be waived and PIC 4020(2B) is not met.
On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.189.215.
DECISION
The Tribunal affirms the decision not to grant the applicant a Skilled Independent (Permanent) visa.
Roslyn Smidt
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.
…