Gill (Migration)

[2018] AATA 4267

Gill (Migration) [2018] AATA 4267 (26 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sikander Singh Gill

CASE NUMBER:  1708743

DIBP REFERENCE(S):  BCC2009/121434

MEMBER:Antonio Dronjic

DATE:26 September 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 26 September 2018 at 10:33am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Skilled – Graduate) – bogus documents – TRA skills assessment – two skills assessment supplied – completion of work experience – evidence of work hours – work references – recollection of co-worker’s names – recollection of business trading hours – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 485.224, Schedule 4 PIC4020


CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Sandhu v Minister for Immigration & Anor [2013] FCCA 491
Trivedi v MIBP [2014] FCAFC 42

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 6 August 2012 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act). At the time the visa application was lodged, Class VC contained two subclasses;- 485 and 487. The completed application form indicates that the relevant subclass in this case is Subclass 485, the criteria for which are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

2. The applicant applied for the visa on 12 March 2009. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of public interest criterion (PIC 4020) for the purposes of cl.485.224.

3. The applicant applied for review of the primary decision on 24 August 2012 and provided a copy of the Department’s decision to the Tribunal.

   History of proceedings

   Primary Decision

4. To meet one of the requirements for the grant of the visa sought, the applicant provided evidence of a skills assessment from Trades Recognition Australia (TRA) in the occupation of a cook.  Following an investigation, a delegate of the Minister for Immigration found that the TRA skills assessment of 31 October 2008 was a bogus document and thus found that the applicant did not satisfy PIC 4020(1). The delegate was not satisfied that there were circumstances justifying the grant of the visa to waive the requirements of PIC 4020 and refused to grant the applicant the visa.

5. On 16 May 2011, the former Head Chef and Catering Manager of Oakleigh Catering JMark advised the Department that he was aware some of the references for Oakleigh Catering JMark were not genuine and had not been issued by him, that he no longer endorsed references given and retracted any or all letters or references relating to Oakleigh Catering JMark.

6. By letter dated 15 May 2012 the Department invited the applicant to comment on the adverse information in relation to his claimed work experience.

7. The visa applicant responded by providing a Statutory Declaration dated 9 July 2012 maintaining that he worked at Oakleigh Catering JMark as claimed and providing evidence of his employment at Bombay Crown restaurant and Whitehorse Club.

8. The Tribunal (differently constituted) requested information on summons from the Department on 2 July 2014.  On 15 July 2014 the Tribunal received a covering template document titled Oakleigh Catering that recorded a telephone interview with the ex-head chef/Catering Manager, Mr Malcolm Phelps, on 16 May 2011.  It was noted a site visit had not been conducted as the business had ceased trading.  Also provided was a copy of a document titled ‘Operation Lodge’ and subtitled ‘Oakleigh Catering/Carnegie RSL Oasis Bistro’.  This document was a summary of a telephone interview held with Mr Malcolm Phelps on 16 May 2011 at 11 am.  The contents of this document are summarised in the delegate’s decision. 

   The Tribunal’s First Hearing

9. The applicant appeared before the Tribunal on 5 September 2014. This is the summary of his oral evidence:

   He completed both a Certificate III in Hospitality and an Advanced Diploma of Hospitality Management at the South Pacific Institute;

   He first approached Malcolm Phelps in March 2007 while studying his Certificate III.  He was referred to Malcolm Phelps through a friend, Jagdev Singh, with whom he was living at the time.  He said the restaurant was located in Drummond Street Oakleigh and he travelled there are via train from Reservoir disembarking at Oakleigh station which was a 3 to 4 minute walk from the premises.  He described the building as yellow with the front gate on Drummond Street.

   He said both Malcolm Phelps and his brother Robert Phelps worked there with Robert both helping to manage and cook.  Asked if he was sure Robert was Malcolm’s brother he said yes, Malcolm had told him this.  The applicant said he spoke to Malcolm and gave him his résumé.  Malcolm said he would call him but when he did not do so he visited again a month later and on this occasion Malcolm told him he was able to give him volunteer work.

   He commenced working there in April typically working from 3pm to 10pm three nights a week, usually Wednesdays, Thursdays and Fridays but also occasionally on a Sunday.  He said the busiest day is Friday.  The applicant said the main Cook was Malcolm and other people who worked there were: Guy, Rachel and Alex.  He said there were no other work experience students when he worked.  The applicant said for the first day he just looked at what was happening and on the second day Malcolm showed him what to do.

   The applicant said he kept track of his 900 hours on his phone which he lost in 2010.

   The Tribunal asked a number of questions concerning the most popular dishes at the restaurant and the ways to prepare these dishes.

   The applicant said he worked at Oakleigh Catering as claimed but cannot prove it as it was 7 to 8 years ago.  He said he had tried to phone Malcolm about 10,000 times but his phone is disconnected.  The applicant said he did not keep in contact with anyone else at the bistro.  After completing his work at Oakleigh Catering he laid carpet for a few months, worked as a waiter at the Melbourne Exhibition Centre, worked at the Whitehorse Club as a kitchen hand and worked at Bombay Crown where he was employed for about two nights a week as a Cook.  The applicant said he has another casual job cleaning about two days a week.

   Later the applicant completed 450 hours’ work experience at the Heritage Indian Restaurant which he needed to complete to get his second skills assessments.  He has been employed since January 2013 as a Chef on a casual basis.  He provided a copy of his recent PAYG certificate that records an income of $7035 from the Heritage Indian Restaurant for the year ending 2013.

   When invited to make any submissions in relation to compelling or compassionate and compelling circumstances in relation to the waiver provisions of PIC 4020, the applicant did not make any submissions.

10. On 25 September 2014, the Tribunal (differently constituted) affirmed the decision under the review.

11. The applicant sought a judicial review of the Tribunal decision. On 21 July 2016, the Federal Circuit Court of Australia dismissed the application. The Applicant appealed this decision to the Federal Court of Australia. On 24 March 2017, an order was made remitting the matter to the Tribunal on the basis that the Tribunal failed to afford the applicant procedural fairness under s.360 of the Act.

12. The matter was constituted to the current Tribunal on 8 August 2018.

13. On 15 August 2018, the Tribunal wrote to the applicant advising him that it had considered the material before it and was unable to make a favourable decision on this material alone and invited the applicant to attend a hearing on 18 September 2018.

    The Tribunal’s Second Hearing

14. At the commencement of the hearing, the applicant stated that he is feeling depressed. I enquired and he confirmed that he saw a medical practitioner who prescribed him some medication. He stated that he did not take his medication this morning and that he is OK to proceed with the hearing.

15. After confirming his residential address, the applicant stated that he married in 2016; that his partner is not an Australian citizen, permanent resident or eligible New Zealand citizen; that their son was born in 2016 and that both his wife and son currently reside at his parent’s place in India. He travelled to India only on one occasion since he married and he regularly communicates with his wife and child by phone. The applicant has two siblings one of which resides in Canada and the other in India. He has no relatives in Australia. Before arriving in Australia in December 2006, he completed the equivalent of year 12 in India and worked at his parent’s farm.

16. He obtained a taxi drivers’ licence in late 2013 or early 2014 and ever since that time, he is and has been working as a taxi driver. He stated that he wanted to find employment as a cook but was not successful. He stated that his mother requires medical attention in India so he had to find a job in order to financially support his family. He further stated that he would like to move into regional Australia and work as a cook.

17. The applicant confirmed that he had provided to the Department a copy of his Statutory Declaration dated 9 July 2012. I presented the applicant a copy of this declaration. After reading it, the applicant confirmed that everything stated in the Declaration is true and correct; that he did not wish to change any part of the Declaration or to add anything to the Declaration.

18. He confirmed in his evidence that, from 8 October 2007 to 12 February 2009, he completed an Advanced Diploma in Hospitality at South Pacific Institute which included a Certificate III in Commercial Cookery. He attended lectures 2-3 days per week but cannot recall on which days. From early 2007 to early 2008 he resided in Reservoir. When asked who he lived with the applicant initially gave two names: Harvinder Singh and Harginder Singh. In early 2008 he moved to Preston with his friend Harvinder.

19. When I enquired whether Jagdev Singh lived with him at the Reservoir address, the applicant changed his evidence and stated that he now remembers that Jagdev and Lucky also shared the accommodation with him in Reservoir.

20. The applicant confirmed in his evidence that, with his skills assessment application to TRA, he had submitted the work reference letter from Oakleigh Catering JMark, dated 17 July 2008 and that he received the positive assessment for his nominated occupation of a cook on 31 October 2008. He stated that, with his Subclass 485 visa application, he submitted to the Department a copy of the TRA skills assessment letter dated 31 October 2008.

21. I enquired as to whether he was assisted by a migration agent during the skill assessment and visa application process. He stated that he was assisted by Ms Kavita Bali and that he cannot remember how much he paid for her services. I enquired as to who drafted the reference letter of 17 July 2008 and the applicant stated that he does not know. He gave evidence that he received the letter from Malcolm Phelps.

22. He stated that he was referred to Malcolm Phelps through a friend, Jagdev Singh, who used to work at Oakleigh Catering JMark before he commenced his voluntary work experience. He typically worked from 3 pm to 10 pm, three nights a week, usually Thursdays, Fridays and Saturdays.

23. I noted that during the hearing held on 5 September 2014, he stated in his evidence that he occasionally worked on Sundays. The applicant stated that he cannot recall ever working on Sundays. I enquired as to whether the restaurant was open seven days per week and the applicant stated that it was. He stated that the restaurant was not licenced to serve alcohol and it had 30 tables.

24. I enquired as to who else was working at the restaurant at the time he claims to have volunteered there. He gave evidence that Malcom worked as a head chef; Malcolm’s brother Tony as an assistant chef and three waiters/waitresses were serving the customers. He was unable to recall the names of the wait staff who worked at the restaurant.

25. I asked if a person named Robert was working at the restaurant. He then changed his evidence and stated that Malcolm’s brother’s name was Robert and not Tony. I asked the applicant if he is sure that Robert is Malcolm’s brother and not his son and he stated that he is sure that Robert is Malcolm’s brother.

26. I noted that during the hearing held on 5 September 2014, he gave evidence that Alex, Guy and Rachel worked at the restaurant. He confirmed this to be the case. I enquired as to whether the applicant attempted to contact any of his co-workers (apart from Malcolm) and ask them to confirm that he worked at the restaurant during the claimed period. He stated that he did not because he had changed his telephone.

27. I asked if he kept any record of the hours he worked at the restaurant. He stated that he had a book where he recorded hours he worked at Oakleigh Catering JMark. He added that Malcolm did not check if he made correct entries in his book or verify in any other way that his calculations of hours worked at the restaurant were correct. He stated that he no longer has this book.

28. The applicant then stated that Malcolm kept his own record of the hours the applicant worked at the restaurant. When I asked how Malcolm kept those records, the applicant stated that he never saw him doing that. Malcolm would usually tell him at the end of the week that he completed 20 hours of work that particular week.

29. I noted that during the hearing held on 5 September 2014, he stated in his evidence that he kept a record of hours worked at the restaurant on his phone which he subsequently lost. I also noted that today he stated that he changed his telephone and at the previous hearing that he lost his telephone. I invited the applicant to explain this discrepancy in his evidence.

30. The applicant stated that he remembered better at the previous hearing. He then changed his evidence and stated that he kept a record of hours worked at the restaurant on his phone.

31. The Tribunal raised the issue of the applicant’s credibility and explained the consequences if the applicant is found not to be a credible witness.

32. I noted that, despite obtaining a successful skills assessment outcome for his nominated occupation of a cook in October 2008, he applied and obtained another skills assessment outcome from TRA on 5 September 2013. He provided a copy of the second assessment letter outcome to the Tribunal. I asked the applicant why he decided to apply for the second skills assessment.

33. The applicant stated that he was told by his migration agent to do so as the previous skills assessment was only valid for three years. I noted that the TRA skills assessment letter of 31 October 2008 does not state the validity period of three years. He stated that he relied on the advice given to him by migration agent Ms Kavita Bali. The applicant gave evidence that she was the same agent who helped him prepare and lodge the first skills assessment and visa applications.

34. The Tribunal explained the waiver provisions in PIC 4020(4) and asked the review applicant if there were any compelling circumstances that affect the interests of Australia or compelling and/or compassionate circumstances that affect the interests of an Australian citizen, permanent resident or eligible New Zealand citizen that justify the grant of the visa in his case. He stated that there are no such circumstances that he wants the Tribunal to consider.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

36. The issue in this review is whether the visa applicant meets PIC 4020 as required by cl.485.224 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).

37. 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 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?

38. 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.

39. 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.

40. 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.

41. According to the primary decision record provided by the applicant with his review application, on 16 May 2011, the former Head Chef and Catering Manager of Oakleigh Catering JMark advised the Department that he was aware some of the references for Oakleigh Catering JMark were not genuine and had not been issued by him, that he no longer endorsed references given and retracted any or all letters or references relating to Oakleigh Catering JMark.

42. The work reference letter from Oakleigh Catering JMark, dated 17 July 2008 provided by the applicant to the Tribunal inter alia states:

    The Oasis bistro is open for lunch Monday to Saturday and dinner from Thursday to Saturday

    June 2008 will see my wife and I heading into some work and semi-retirement…I will oversee the transition of ownership of my restaurant, till the end of 2008, to my son Robert

1. Notwithstanding the information the Department has presented to the Tribunal, the applicant maintained that he completed over 900 hours’ work experience at Oakleigh Catering JMark as stated in the work reference letter of 17 July 2008.

2. The Tribunal, during the hearing, sought information from the applicant in order to satisfy itself as to whether he had genuinely completed the work experience as claimed and as documented in the letter he provided to TRA in support of his skills assessment application.

3. The Tribunal finds that the applicant’s oral evidence was inconsistent and lacking credibility. The reference letter of 17 July 2008 states that the Oasis bistro was open for lunch Monday to Saturday and dinner from Thursday to Saturday. At the first hearing, the applicant stated that he occasionally worked on Sundays. At the second hearing he stated that he does not recall ever working on Sundays and that the restaurant was open seven days per week. I find it difficult to accept that a person who claims to have been working at this restaurant from April 2007 to July 2008 would not be able to recollect that the restaurant was in fact closed on Sundays.

4. The reference letter of 17 July 2008 provided by the applicant to this Tribunal states that Robert is Mr Malcolm Phelps’ son. During the first and the second hearing, the applicant gave evidence that Robert is Mr Phelps’ brother.

5. At the first hearing the applicant stated in his evidence that he kept a record of hours worked at the restaurant on his phone which he subsequently lost. At the second hearing he stated that he had a book where he recorded the hours he worked at Oakleigh Catering JMark which he also lost. While I accept that the applicant’s recollection of relevant events might have been better at the time of the first hearing in September 2014, I find that by stating that he kept the record of hours worked in a book (that he later lost), the applicant attempted to give misleading evidence in an effort to bolster his case.

6. At the second hearing, the applicant was unable to recall that Mr Jagdev Singh, the person who referred him to Mr Malcolm Phelps, lived with him in Reservoir, until the Tribunal asked him about this person. Similarly, he was unable to recall the names of the wait staff who worked at the restaurant (Alex, Guy and Rachel) until prompted by the Tribunal. I find it difficult to accept that a person who claims to have been working at this restaurant from April 2007 to July 2008 would not be able to recollect the names of people he worked with during this significant period of time.

7. While mindful that the applicant’s claimed work experience related to a period in 2007 and 2008, the Tribunal would nonetheless expect the applicant to retain at least some accurate recollection of the restaurant’s opening hours, names of his co-workers, ways he kept records of the hours he worked at the restaurant and the relationship between the restaurant owner and the assistant chef with whom the applicant claims to have been working from April 2007 to July 2008.

8. I do not find the applicant to be a credible witness. I do not accept that the inconsistencies in the applicant’s evidence were the result of confusion. I have considered but I do not accept that the efflux of time is sufficient to allay my concerns.

9. Based on the evidence before me and, having considered the repeated inconsistencies in the applicant’s testimony, content of the work reference letter of 17 July 2008 and information contained in the primary decision record, I am not satisfied that the applicant performed the work experience as described in the work experience letter.

10. The Tribunal notes that the definition of ‘bogus document’ itself does not require the requisite suspicion to be formed on the basis of information of any particular quality.[1] Rather, it is sufficient that the Tribunal reasonably suspects that the document was bogus, for example, because it was not issued in respect to the applicant or because it is counterfeit or has been altered or was obtained because of a false or misleading statement (see Sandhu v Minister for Immigration & Anor [2013] FCCA 491).

    [1] Sandhu v MIMAC [2013] FCCA 491 (Judge Driver, 26 July 2013) at 43, undisturbed on appeal: Sandhu v MIMAC [2013] FCA 842 (Cowdroy J, 20 August 2013).

11. Based on the evidence before it, the Tribunal reasonably suspects that the skills assessment issued by TRA, dated 31 October 2008 and provided by the applicant to the Department, was a bogus document within the meaning of s.5(c) of the Act as it was obtained because of a false or misleading statement contained in the reference letter of 17 July 2008, namely, that the applicant had completed over 900 hours of work experience at Oakleigh Catering JMark.

12. As a result, the Tribunal is 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 in relation to his application for a Skilled (Provisional) (Class VC) visa. Accordingly, the Tribunal finds that the applicant does not meet the requirements of PIC 4020(1)(a).

13. In considering whether to waive the requirements of PIC 4020(1), the Tribunal has considered whether there are compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

14. The applicant did not claim the existence of any circumstances relevant to waiver provisions and the Tribunal does not find any exist. Accordingly, the Tribunal is not satisfied that there are compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of Australian citizens, Australian permanent residents or eligible New Zealand citizens that would justify the grant of the visa. Accordingly, the Tribunal has determined not to waive the requirements in PIC 4020(1).

15. It follows that the applicant does not satisfy the requirements of PIC 4020 for the purposes of cl.485.224.

16. The tribunal has also considered whether the applicant satisfies the criteria for the grant of a Subclass 487 visa. As there is no claim or evidence that the applicant was nominated by a State or Territory government agency or sponsored by a relevant Australian relative, as required by cl.487.213, the applicant cannot meet the criteria for a Subclass 487 visa.

    DECISION

17. The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

    Antonio Dronjic
    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. 

    …