Haque (Migration) - [2023] AATA 127

Haque (Migration) [2023] AATA 127 (13 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Afroza Haque
Mr Mohammed Obaidur Rahaman
REPRESENTATIVE:  Mr Nigel James Dobbie (MARN: 9370721)
CASE NUMBER:  2002519
HOME AFFAIRS REFERENCE(S):          BCC2019/2450318
MEMBER:Alan McMurran
DATE:13 January 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for GK – Temporary Skill Shortage (Class GK) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 482 - Temporary Skill Shortage visas:
·Public Interest Criterion 4020 for the purposes of cl 482.217(1) of Schedule 2 to the Regulations

The Tribunal remits the applications for GK – Temporary Skill Shortage (Class GK) visas for reconsideration, with the direction that the second named applicant meets the following criteria for Subclass 482 - Temporary Skill Shortage visas:
·cl 482.312(1) of Schedule 2 to the Regulations

Statement made on 13 January 2023 at 1:04pm

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – accountant – false or misleading information provided with visa application – previous employment – during site visit, managing director failed to identify applicant from photo shown – passage of time and unscheduled and unexplained visit at busy time – later attempt to correct evidence and provide documentation rejected – consistent oral and documentary evidence – intended employment not proceeding and applicant currently not working but refusal would remain on visa history – utility in continuing review – member of family unit – second applicant’s continuing work – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A

Migration Regulations 1994 (Cth), Schedule 2, cls 482.217(1), 482.312(1), Schedule 4, criterion 4020(1), (2), (3), (5)
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Hossain v MICMSMA [2021] FCCA 247
Trivedi v MIBP [2014] FCAFC 42
statement of decision and reasons
application for review

This is an application lodged 13 February 2020 for review of a decision made by a delegate of the Minister for Home Affairs on 28 January 2020 to refuse to grant the applicants GK – Temporary Skill Shortage (Class GK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, Ms Afroza Haque, (the applicant), is a 37-year-old citizen of Bangladesh. The second named applicant, Mr Mohammed Obaidur Rahaman (secondary applicant), is the spouse and member of the family unit of the applicant. He is dependent in this review upon the outcome of the applicant’s review in respect of his own visa application. The applicants applied for the visas on 9 May 2019.The applicant is seeking the visa to work in the nominated occupation of Accountant (General)[1].
[1] ANZSCO 221111
The delegate refused to grant the visas on the basis that the first named applicant did not satisfy the requirements of cl 482.217(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the applicant did not meet the public interest criteria 4020 of Schedule 4 to the regulations.[2]
Delegate’s decision
[2] Also referred to as PIC 4020
The Department decision referred to the delegate’s finding that based on the available evidence and information, the delegate was not satisfied the applicant met ‘PIC 4020 subclause 4020(2)’[3]. The delegate then went on to refer to the fact public interest criterion 4020(1) was not met. The relevant provisions in the Regulations are set out in the attachment to these reasons.
[3] see page 5 of the delegate's decision record made 28 January 2020 (the decision paragraphs are not numbered).
It appears from the decision that in fact the delegate found public interest criterion 4020(1) was the relevant provision not met, as at the time of the delegate’s decision neither the applicant nor any member of the applicant’s family had been refused a visa starting 3 years before the application was made and for reason of having provided false or misleading information.[4]
[4] PIC 4020(2)
The delegate found that with her application, the applicant had provided information that is false or misleading in a material particular, namely evidence as to her employment in Dhaka, Bangladesh, as a marketing manager and accountant with Adjust Offset Printers (referred to hereafter as ‘the employer’).
The Department had organised a site visit by officers from the Australian High Commission to the employer’s premises, where the employer’s managing director was shown a photograph of the applicant. The managing director failed to identify the applicant from that photograph. Subsequently, and before the delegate’s decision, the managing director attempted to correct his evidence, but his statement to the Department officers to that effect was rejected, and which the delegate found to be ‘implausible’. Similarly, an explanation and information and documents evidencing the employment produced by the applicant were also rejected. The delegate placed significant weight upon the officers’ site visit to make a finding the employment had not existed as asserted by the applicant , and that she had thus provided information that was false or misleading in a material particular.
Tribunal hearing
The applicants appeared before the Tribunal on 10 January 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the manager, Mr Al-Amin Chowdhury (the managing director), by telephone from him in Bangladesh. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages. The applicant was herself proficient in English and did not require the interpreter. The interpreter however was necessary for the telephone discussion and evidence taken from the managing director. The interpreter was available for the applicant as she chose. No issues were detected during the hearing by the Tribunal with matters of interpretation.
The applicants were represented in relation to the review by their solicitor.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
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 4020 for the grant of the visa. Broadly speaking, this requires that:
·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and
·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and
·the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and
·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA).
The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B). As noted above, PIC 4020 is extracted in the attachment to this decision.
Background
The applicant’s history for her Australian migration is set out in the following chronology:

Date Event Note

24/03/2013 Applied for first TU-573 Higher Education Sector visa 04/04/2013: granted
19/04/2013: arrived
22/07/2013 – 31/12/2014: course 036583G
11/03/2015: ceased

14/02/2015 Applied for first BVA visa 14/02/2015: granted
11/03/2015: ceased

14/02/2015 Applied for further stay 573 visa 11/03/2015: granted
09/04/2015: departed
18/04/2015: arrived
24/03/2014 – 31/12/2015: course 055176K
31/12/2015: ceased

11/11/2015 Applied for second BVA 11/11/2015: granted
31/12/2015: ceased

11/11/2015 Applied for further stay 573 visa 31/12/2015: granted
14/01/2016: departed
16/03/2016: arrived
01/01/2016 – 31/07/2016: course 055176K
16/09/2016: ceased

11/08/2016 Applied for third BVA 11/08/2016: granted
16/09/2016: ceased

11/08/2016 Applied for VC-485 post-study work visa 16/09/2016: granted
04/04/2018: departed
16/05/2018: arrived
16/09/2018: ceased

14/09/2018 Applied for fourth BVA 17/09/2018: granted
30/10/2018: ceased

14/09/2018 Applied for TU-500 Higher ed sector visa 30/10/2018: granted
12/11/2018 – 31/12/2019: course 062951F
12/01/2020: ceased

09/05/2019
Applied for GK-482 Temp skill shortage (med term) visa

- Dependent spouse
Refused: 28/01/2020 – PIC 4020 Fraud
Review commenced: 13/02/2020

09/05/2019 Applied fifth BVA
09/05/2019: granted

- In effect

13/02/2020 AAT review commences 05/10/2022 Member allocation for 10/10/2022

10/01/2023 Tribunal hearing In person (Sydney)

At the time of the hearing, the applicant was not working.
The secondary applicant is employed as an electrical engineer for GRS, an international entity carrying on business as Gransolar on various continents and is reputed to be a global market leader in the growth and development of solar farms. The secondary applicant works as an employee for GRS at a development location, Walla Walla Solar Farm, near Albury in New South Wales. The secondary applicant has provided a reference from GRS attesting to his importance for that project.
Clause 482.312 provides that in order to be eligible for the visa, the secondary applicant must be a member of the family unit of the primary applicant who has satisfied the primary criteria for a 482 Temporary Skill Shortage visa. Accordingly, the employment circumstances of the secondary applicant are not considered relevant other than where those circumstances may arise were the Tribunal to consider the waiver provision in cl 4020(4). For the following reasons, the Tribunal has not considered the waiver provision.
In an email to the Tribunal on 5 January 2023, the applicant has requested that the Tribunal proceed with the review notwithstanding the applicant’s present unemployment and the fact that her intended employment is not proceeding. This information was provided shortly before the Tribunal hearing, the representative having been informed on 5 January 2023.[5] The only issue referred to the Tribunal for this review however is whether or not the applicant meets cl. 482.217(1). The only evidence presented for consideration on review, both from the Department and from the applicant, concerns whether the applicant has complied with public interest criteria 4020(1). The Tribunal has not considered any other criteria for approval of the visa, and those criteria remain matters for the Department’s consideration, where the application is remitted.
[5] The email on 5 January 2023 from the representative states: “The review applicant has today informed us that the sponsor is no longer interested in sponsoring her. This means that she cannot satisfy the criteria for the grant of the visa sought. The review is not, however, one that has no purpose; the review applicant was found by a delegate of the Minister of providing information that was false or misleading in a material particular. The review applicant maintains that she did not do so. The applicant would like the opportunity to at least have a finding on that issue, given it impugns her and remains in her immigration history.”
There is no evidence before the Tribunal from the nominator.
Should the Tribunal continue with the review?
Hossain v MICMSMA [2021] FCCA 247 [6] considered public interest criteria 4020, and in that case, upheld the decision to affirm the visa refusal, finding that where the Tribunal determined that a primary criteria was not met and which was not the criteria on review, the decision under review should be affirmed. Consideration of other issues was deemed unnecessary. On appeal, the Federal Court remitted the matter back to the Tribunal by consent. The case is authority on one view, not confirmed on appeal, that there is no power for the Tribunal to set aside and substitute a decision by quashing a PIC 4020 finding. It would amount to the Tribunal substituting the same decision, namely affirming a refusal, but on a different ground.
[6] Hossain v MICMSMA [2021] FCCA 247 (‘Hossain’)
In the present case, the evidence before the Tribunal concerns only a single (common) criteria for approval, namely whether the applicant has met subclause 482.217(1). Any other issues such as nomination approval [7] have not been considered. The Tribunal is only required to determine whether the criterion is met, and to consider exercising the power to remit for reconsideration. If it is met, it is then up to the Department on a remittal to continue with consideration of any other criteria for approval and before it finalises the visa application. In that fashion, the applicant is also given the opportunity to present her case to the Tribunal so as to address the possible consequence outlined in public interest criterion 4020(2), where a bar on further applications for 3 years is imposed, commencing from the time when a further application is made.
[7] The nomination by Prosperous Financial Solutions Pty Ltd was approved on 8 May 2019
There is thus some utility in the review continuing. As the decision in Hossain was subsequently set aside by consent on appeal to the Federal Court, it seems to this tribunal that it could still consider the (single) issue on review as requested by the review applicant and where there remains a reason to do so which has some significant impact on both the applicants.
In the circumstance, the Tribunal has gone on below to consider whether the applicant can meet the public interest criterion on the evidence now provided.
Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?
The Tribunal has considered the information extracted from the Department file, and the oral evidence from the hearing, Department Policy, and relevant court decisions.
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 application
The application filed 9 May 2019 seeks a Subclass 482 visa in the medium term visa stream for a maximum period up to 4 years, for the occupation of Accountant (General).
The applicant relies upon her education qualifications including a Bachelor of Business Administration gained in December 2009 from North South University in Dhaka, and a Masters of Commerce (Professional Accounting) degree obtained from Federation University in Sydney in 2016. The applicant also has a Masters of Business Administration qualification from the Holmes Institute in Sydney obtained November 2018.
The applicant also relies upon the previous employment claimed in her CV as follows:
·Adjust Offset Printers, Marketing and Accounting Manager, Bangladesh - March 2010 to February 2013;
·NSW Corporate Holdings Pty Ltd, Accountant, Sydney, September 2016 to February 2019;
·Prosperous Financial Solutions Pty Ltd, Accountant part-time, Sydney, March 2019 to time of application
The evidence before the Department
For the purposes of PIC 4020(1), it is the employment in Dhaka from March 2010 to February 2013 that is in issue. The applicant provided the Department with the following evidence to support that employment:
·employer’s reference dated 25 February 2013 (unsigned)
·business card of the managing director
·photographs of the business premises
·National ID card for the managing director
·a current as opposed to previous/earlier photograph of the applicant
·the employer’s pay register book for 2013
·various invoices produced for the employer
·reference letter dated 26 September 2019 from Mr Syfur Rahaman, Purchase Officer, confirming applicants employment between 2010 and 2013
·National ID card for Mr Syfur Rahaman
·reference letter dated 26 September 2019 from Mr Abdul Awal, General Manager, confirming applicants employment between 2010 and 2013
·National ID card for Mr Abdul Awal
·reference letter dated 26 September 2019 from Mr Al-Amin Chowdhury, Managing Director, explaining and correcting information provided by him to 2 officers who visited his premises in September 2019, and enclosing documents as referred to above
·Statutory Declaration made by the applicant on 14 October 2019
·submission by email from the applicant’s then representative made 15 October 2019, which included a video statement from the employer
The above information and documents were provided by the applicant in response to a natural justice letter from the Department dated 19 September 2019 informing the applicant the Department had been unable to verify the applicant’s employment reference from Adjust Offset Printers.
The Department again wrote to the applicant on 18 December 2019. The Department letter invited the applicant to comment on information that she had given, or caused to be given, to the Department, as the relevant assessing authority, a bogus document or information that was false or misleading in a material particular. The letter asserted that public interest criterion 4020 may not be satisfied. This was for reason that the Department had information obtained via the Australian Embassy in Delhi that the applicant’s employer in Dhaka “only employs men and they never employed women employees.” The letter asserted the information shows the employment reference was non-genuine.
In response, the applicant asserted that the information provided was true, and produced a typed letter from the Managing Director dated 9 January 2020. That letter sought to explain the director’s response to officers who had visited his premises in Dhaka. The applicant’s response also included a further submission from the then representative.

On 28 January 2020, the delegate completed a decision notifying the applicant of its refusal for the visa for reasons that the delegate was not satisfied following the checks conducted by the Department on 30 May 2019 as to the authenticity of the employer’s reference letter dated 25 February 2013. The Department checks were unable to verify a web presence, telephone and fax verification, employer email, or web confirmation for the employer despite several attempts made to contact the employer. The decision further relied upon the referral to the Department’s Delhi post on 11 June 2019, resulting in a site visit by 2 High Commission officers to the employer’s premises. The decision referred to the officers speaking with a Mr Shaliman Chowdhury, who had informed them on seeing a photograph of the applicant that he had never employed her.
Evidence before the Tribunal
The Tribunal has available the Department file and the documents as set out above.
The Tribunal wrote to the applicant on 16 November 2022 under section 359A of the Act inviting comment in relation to the PIC 4020 decision.
The applicant responded attaching a Statutory Declaration made by her on 24 November 2022 at Albury in New South Wales.
The applicant also provided the following information:
·a further copy of the National ID card for the Managing Director
·a typed witness statement from the Managing Director, Mr Al-Amin Chowdhury, made 20 December 2022
·a written submission from the legal representative dated 4 January 2023 concerning subclause 482.217(1)
·an email received 5 January 2023 requesting a hearing take place in relation to the decision under review on the public interest criterion 4020(1).
The hearing
The applicant gave sworn evidence and confirmed that her previous statements made in the application and her statutory declarations were true and correct. She said that after receiving the natural justice letter from the Department in September 2019, she telephoned the Managing Director. She gave evidence of her conversation. She said after introducing herself, and mentioning her nickname, Liza, Mr Chowdhury volunteered to check his records. The applicant said the conversation lasted 15 to 20 minutes during which she waited on while the director verified her information. Mr Chowdhury confirmed for her that he had made a mistake about not remembering her as an employee, apologised, saying it had been many years ago, and that he would do what was required to help rectify his error.
The applicant said she gave information to her then representative, who sent someone to Dhaka to collect some records from Mr Chowdhury and obtained a statement. When the documents arrived, they were provided to the Department together with the 2 statements dated 26 September 2019 from Mr Chowdhury and Mr Awal. She confirmed that the pay register information produced which showed her name entered in the employer’s pay book register in 2013 was accurate. She said Mr Chowdhury also confirmed that he had made the reference letter which he had provided in February 2013.
She explained that as the events concerning the site visit and the provision of her employment details checked by the Department in 2019 were not personally known to her, she requested the Tribunal take evidence from Mr Chowdhury directly by telephoning him in Dhaka. She said she was herself surprised that the Department had not accepted she was employed, notwithstanding the documents collected from the employer and the fact Mr Chowdhury had attempted to correct his information. She did not understand why he was not believed.
The Tribunal asked what Mr Chowdhury had told her when she informed him the Department had questioned her employment. She said that Mr Chowdhury tried to explain about the site visit. He told her it had occurred after lunch when he was preparing for a client meeting. He told her that 2 men had appeared, did not identify themselves and started asking questions about the employer. Mr Chowdhury was shown a photograph which he could not identify. He explained to her that he was in a rush, felt stressed and simply said ‘no’ that he did not know the person in the photograph. He said he declined to give them any information about the business and how it operated. He did not say words to the effect that the employer did not employ women. He said at the end of the meeting before leaving, they informed him they were from the Australian High Commission but did not say why they were there otherwise.
At this point, the Tribunal telephoned Mr Chowdhury in Dhaka. Mr Chowdhury, who gave his evidence in the Bengali language, identified himself and confirmed he was able to give evidence for the employer, which still trades but from a different address in Dhaka. He said the employer had moved the business into a neighbouring building. He was asked if the employer had any female employees. He responded, “not now, but in 2008, 2010, 2013 and in 2015.”
He was asked about his statement made 20 December 2022, which sets out as follows:
WITNESS STATEMENT
1. I, Md Al-Amin Chowdhury (DOB: 01 Feb 1985) son of late Abdul Mateen Chowdhury, Managing Director of Adjust Offset Printers, hereby solemnly and sincerely confirm that Afroza Haque was working as Marketing and Accounting Manager in my company from 29thMarch 201O to 28thFebruary 2013. This information was also in my earlier statement dated 26 September 2019 along with a video statement. I reiterate my confirmation regarding her experienced letter approved by me as Managing Director of the Company.
2.    As I originate and reside in Bangladesh, it is not possible for me to physically attend the hearing, but I can attend by video or by telephone. I would request you to consider this witness letter as my statement in support of the case.
3.    After carefully reading the visa refusal letter, I noticed the name of Mr. Shaliman Chowdhury who was declared by the inquiry officer as the manager of the company. This is completely wrong information, and no one named Mr. Shaliman has worked for this company or is related to this company. Also, I do confirm that I don't have any son name Shaliman Chowdhury.
4.    To support myself as the managing director of the company, I have already provided sufficient official documentation and my statement in 2019 not limited to but the company’s trade license, my national identity card, visiting card etc
5.    I can recall that as the managing director of the company I was faced with informal and unscheduled queries from the officers. They were unexpected visitors who are not particularly interested in properly introducing themselves and the purpose of the visit initially during my business rush hour even though I had asked. Honestly my mindset was focusing mainly on my clients meeting and fulfilling business deadline at that moment, rather than spending time on unscheduled and unwanted visitors. I can describe it as a confusing stressful situation and a memory lapse as I focused my mind on clients and business deadlines.
6.    The officers can't recall my name Md. Al-Amin Chowdhury and referred to rather than an anonymous name Mr. Shaliman Chowdhury. My humble request to the authority is to understand my human error in not identifying Afroza Haque why questioned by the officers. I provided my legal declaration including supporting document to show Afroza Haque worked for me as I said.
7.    Finally, I declare once again that the experience letter given to Afroza Haque is true and provided by me as Managing Director and she worked for me as in my letter. Due to stress at the time of questioning and the lack of contact with her for a long time, errors were made by me during questioning with the officer.
8.    I hope the above detailed explanation will be sufficient to accept the claim of Afroza Haque experience in my company. And I strongly believe that this will not be fair to consider only the officer's statement who were referring the company outsider anonymous name Mr. Shaliman Chowdhury statement rather than my legal declaration and supporting documents as the only authorized MD of the company.
He was asked to tell the Tribunal what he remembered about the site visit. He said he was completing a meeting arrangement when 2 men arrived. He said they did not identify themselves and he had no appointment so he was suspicious and nervous. He said they asked about the employer’s business income and its operation. He said he “didn’t like the questions”. He was shown a photograph but could not remember the details, whether it was a colour photo or black-and-white. He said he was annoyed at the time, felt stressed and wanted them to leave so he could “avoid them” and he said, “I didn’t want to talk to them”. He said they spoke in English which was difficult for him to understand and he was not sure what they wanted. He said they were not Bangladeshi. When shown the photograph, he said he did not look carefully and thought he replied simply “no”. He said he was anxious because he had a client waiting for him and wanted them to leave. He thought trying to remember because it was many years ago that the meeting may have lasted for 10 or 20 minutes.
He was asked whether they had provided any identification. He could not remember if they had produced any business cards, but in hindsight, he remembered he had asked them to explain where they were from, but they had avoided answering his question. This made him more concerned. He said they asked him to show them some documents, but he could not remember if he did so or checked any records while they were there. He thought not. He said the employer does keep employee records usually at least 2 or 3 years. He recalled somebody had come to the company to collect some documents for the applicant which he had handed over afterwards. He also recalled the applicant had rung him about her employment and agreed he had apologised for not recognising her at the time of the officers’ visit. He said his statement in his letter of 26 September 2019 and his recent statement in December 2022 (above) were true. He was asked what he remembered of the applicant. He said that she was a good employee. He was asked about Mr Awal. He said he had left the employer but was still a consultant and was working as an advisor.
At the end of the conversation, Mr Chowdhury said he had no objection to the Tribunal referring to his evidence and to him personally, and that everything he had said was correct.
The Tribunal notes that the Department information explains the site visit from the point of view of the officers who attended. They say they were not able to disclose personal information about the applicant. Nonetheless, they expected the witness in the context of the visit to inform them about the applicant, without naming her. They provided nothing whatsoever to assist the witness in his recollection about events many years earlier. They conceded they did not identify themselves until after they had obtained information concerning the photograph, as they were leaving the premises. They did not state their purpose. The summary from the officers notes that they were informed Mr Chowdhury joined the business in 2014, which was after the applicant had left. It is not surprising in those circumstances if the witness did not remember the applicant from a photograph he was shown. The Department’s own report shows the officers were not given documents at the time of the visit and which supports the witness saying he does not recall having checked or researched the records at that time in order to show them. The entirety of the Department’s finding that the employment was ‘non genuine’ is based on the witness not recognising the applicant in a photograph. No other employees were questioned and no other information was made available to assist those officers.
The witness has consistently explained why he failed to recognise the applicant. A period of time that had elapsed covering 6 years, the fact he had not checked the records, the fact there was no appointment and he was pressed at the time to attend another meeting, that he was suspicious about the visitors who did not explain themselves and that he was caught by surprise, are all reasonable explanations and which evidence the Tribunal accepts.
As explained by Mr Chowdhury[8] upon reflection and endeavouring to correct his statement made to the officers at the time of the visit: “when Ms Haque contacted with us and with her information of introduction I realised that Ms Haque was one of our employees. Then I also checked our employee register book and found that Ms Haque’s employment information was correct. I also asked one of our employee Mr Syfur Rahaman who have been working since very long, and he also recognised Ms Haque.”
[8] Witness statement made by him 26 September 2019 in response to DOHA natural justice letter
Having listened to the evidence, the Tribunal rejects the Department’s finding that the evidence of the visiting site officers should be preferred to anything the applicant has provided and carry more weight. The Tribunal accepts the applicant has provided a truthful account of her employment in Bangladesh which was ‘genuine’.
Findings
The Tribunal has listened carefully to all the evidence at the hearing and considered the available information and documents. The Tribunal having regard to the evidence now finds as follows:
·it accepts the evidence and statements of both witnesses, Mr Chowdhury and Mr Awal; these statements were consistent, corroborative, and show no inconsistency or contradictions with the evidence obtained independently from the applicant
·the documents produced show the applicant was an employee in 2013 as recorded in the employer’s pay book register; the Tribunal accepts the applicant’s written and oral evidence about her employment, which it prefers to the report from the officers who attended the site in 2019 stating the employment was ‘non genuine’
·there is no evidence that the documents produced were fraudulent or created for the purpose of supporting the applicant
·Mr Chowdhury has very limited understanding of English and gave his evidence in Bengali; it is likely he did not entirely understand or appreciate what was required of him by the officers who attended the site visit and spoke only in English and whom he had difficulty understanding
·there is no evidence of the photograph shown to the witness, its size, quality , colour or age
·comparative photographs provided by the applicant at the time of her employment in Dhaka in 2013, with her appearance 6 years later in 2019, reveal at first blush and without expert evidence to the contrary, distinct physiological differences which may well have lead someone not to appreciate it was in fact still the same person
·the officers who conducted the site visit identified and reported on Mr Chowdhury using the wrong name, and which indicates a lack of care and attention to a proper identification of him, which might easily have been obtained by a business card or by asking relevant questions
·the site visit was not scheduled and caused the witness distress and he was unable to remember in the heat of the moment details concerning the applicant’s employment some 6 years prior; if he had been forewarned as to the purpose of the visit, the witness would have had an opportunity to check his records beforehand; he did not do so until after the visit when he was approached by the applicant to provide confirmation and information
·the applicant’s employment has been corroborated independently by at least 3 witnesses, Mr Chowdhury, Mr Awal and by Mr Rahaman, and by the applicant herself, and the employer records produced are corroborative of the details of her employment
·the Tribunal places significant weight upon the evidence of the applicant’s witnesses and the applicant herself which it prefers over the report produced by the officers to the Department from the site visit, stating the employment was ‘non genuine’, and where no other statement(s) or information or explanation is produced which might contradict the applicant.
·The Tribunal is satisfied that the applicant did not provide information, which was incorrect, purposely untrue or intended to mislead and with any element of fraud or deception.
Policy provides that the evidence must demonstrate that all 3 components of subclause 4020(1) are met, namely, that there is evidence:-
·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 (the delegate in this case)
·a bogus document or information that is false or misleading in a material particular, and
·that the bogus document or information is in relation to an application for the visa.
In this instance, the Tribunal is satisfied that the evidence does not disclose that any of the 3 components are met. The Tribunal has spent considerable time at hearing identifying the respects in which the applicant’s information was said to be false or misleading, namely the applicant’s Bangladeshi employment, and which appears from the summary above of the applicant’s evidence. The Tribunal is satisfied that the applicant gave truthful and persuasive evidence of her employment from 2010 to 2013 and that it should accept the documents produced. The Department makes no reference to any particular document having been counterfeit or falsified or fraudulent, despite an opportunity before deciding the matter to examine carefully the records provided from the applicant and by the employer.
In relation to the question whether the employment information was provided by the applicant with the application and with knowledge of the false or misleading nature of the information, and which is an element of the criterion [9], the Tribunal has come to an opposite conclusion to that of the delegate. This is because the Tribunal has accepted the applicant’s evidence as to her employment history as provided when she completed the application form, and accordingly that she did not have the requisite purpose, and thus intention, to mislead or deceive. The Tribunal is satisfied that there was no “purposeful falsity” in the Trivedi sense.
[9] Trivedi v MIBP [2014] FCAFC 42
Summary
In summary, the Tribunal finds on the available information, documents, and from the oral evidence and submissions, that there is no evidence before the Tribunal that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, or a relevant assessing authority:
· a ‘bogus document’, as defined in s 5(1), i.e. a document that the Tribunal reasonably suspects is a document that: purports to have been, but was not, issued in respect of the person, or is counterfeit or has been altered by a person who does not have authority to do so, or was obtained because of a false or misleading statement, whether or not made knowingly;
· information that is ‘false or misleading in a material particular’ as defined in PIC 4020(5), i.e. information that is false or misleading at the time it is given, and 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.
Therefore, the applicant meets PIC 4020(1).
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(1)?
PIC 4020(2) requires the Tribunal to be satisfied that the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing 3 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2AA).

There is no evidence before the Tribunal that the applicant and each member of the family unit have been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing 3 years before the application was made and ending when the visa is granted or refused.
Therefore, PIC 4020(2) is met.
Has the applicant satisfied the identity requirements?
PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.
The applicant identified herself in person to the Tribunal at the hearing and has provided copies of identification documents, including her passport. The Tribunal finds it is satisfied on the available information there is no evidence before the Tribunal that the applicant has failed to satisfy the Tribunal as to her identity.
Therefore, the applicant meets PIC 4020(2A).
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?
PIC 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2BA).
There is no evidence before the Tribunal that the applicant or any member of the family unit (as defined in reg 1.12) have been refused a visa in the relevant period because of a failure to satisfy PIC 4020(2A). Therefore PIC 4020(2B) is met.
Conclusion
On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl 482.217(1) of Schedule 2 to the Regulations.
The appropriate course is to remit the application to the Department for reconsideration and for the Department to consider the remaining criteria for the visa.
decision
The Tribunal remits the applications for GK – Temporary Skill Shortage (Class GK) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 482 - Temporary Skill Shortage visas:
·Public Interest Criterion 4020 for the purposes of cl 482.217(1) of Schedule 2 to the Regulations
The Tribunal remits the applications for GK – Temporary Skill Shortage (Class GK) visas for reconsideration, with the direction that the second named applicant meets the following criteria for Subclass 482 - Temporary Skill Shortage visas:
·cl 482.312(1) of Schedule 2 to the Regulations
Alan McMurran
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.
…

Date	Event	Note
24/03/2013	Applied for first TU-573 Higher Education Sector visa	04/04/2013: granted 19/04/2013: arrived 22/07/2013 – 31/12/2014: course 036583G 11/03/2015: ceased
14/02/2015	Applied for first BVA visa	14/02/2015: granted 11/03/2015: ceased
14/02/2015	Applied for further stay 573 visa	11/03/2015: granted 09/04/2015: departed 18/04/2015: arrived 24/03/2014 – 31/12/2015: course 055176K 31/12/2015: ceased
11/11/2015	Applied for second BVA	11/11/2015: granted 31/12/2015: ceased
11/11/2015	Applied for further stay 573 visa	31/12/2015: granted 14/01/2016: departed 16/03/2016: arrived 01/01/2016 – 31/07/2016: course 055176K 16/09/2016: ceased
11/08/2016	Applied for third BVA	11/08/2016: granted 16/09/2016: ceased
11/08/2016	Applied for VC-485 post-study work visa	16/09/2016: granted 04/04/2018: departed 16/05/2018: arrived 16/09/2018: ceased
14/09/2018	Applied for fourth BVA	17/09/2018: granted 30/10/2018: ceased
14/09/2018	Applied for TU-500 Higher ed sector visa	30/10/2018: granted 12/11/2018 – 31/12/2019: course 062951F 12/01/2020: ceased
09/05/2019	Applied for GK-482 Temp skill shortage (med term) visa - Dependent spouse	Refused: 28/01/2020 – PIC 4020 Fraud Review commenced: 13/02/2020
09/05/2019	Applied fifth BVA	09/05/2019: granted - In effect
13/02/2020	AAT review commences	05/10/2022 Member allocation for 10/10/2022
10/01/2023	Tribunal hearing	In person (Sydney)