Harpreet Singh Saini (Migration)

Harpreet Singh Saini (Migration) [2023] AATA 1953 (6 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Harpreet Singh Saini
Ms Ramanjit Kaur
REPRESENTATIVE:  Mr Rick Gunn
CASE NUMBER:  2102002
HOME AFFAIRS REFERENCE(S):          BCC2019/3939485
MEMBER:Amanda Mendes Da Costa
DATE:6 June 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Skilled (Residence) (Class VB) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 887 (Skilled - Regional) visas:
·Public Interest Criterion 4020 for the purposes of cl 887.223 of Schedule 2 to the Regulations.
The Tribunal considers that the application of the second named applicant should be reconsidered on the basis she meets the secondary criteria for the grant of a Skilled (Residence) (Class VB) visa.

Statement made on 6 June 2023 at 3.42pm

CATCHWORDS
Skilled (Residence) (Class VB) visa – Subclass 887 (Skilled – Regional) – false or misleading information or bogus document given in visa application – employer later found to be operating ‘pay for visa’ scheme – documentation, skills assessment and statutory declarations – payment to employer for tools – no sufficient nexus between later findings and applicant’s employment – decisions of other employees remitted in separate reviews – decision made without hearing necessary – member of family unit – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65, 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 2, cl 887.223, Schedule 4, criterion 4020(1), (5)
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Trivedi v MIBP [2014] FCAFC 42
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 February 2021 to refuse to grant the applicants Skilled (Residence) (Class VB) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 8 August 2019. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl 887.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because he did not meet the requirements of PIC 4020.
In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.
The applicants were represented in relation to the review.
The documents provided to the Tribunal for the purpose of the review include the following:
·Job cards for the period 31 August 2015 to 1 December 2016.
·Timesheets for the period 31 August 2015 to 2 December 2016.
·Tool’s invoice dated 26 August 2015.
·Bank statement analysis by applicant.
·Statutory declaration of Parvinder Singh dated 15 March 2023.
·Statutory declaration of Sukhwinder Singh, dated 15 May 2023.
·Skills Assessment Provisional Outcome dated 7 July 2015.
·Skills Assessment dated 14 October 2016.
·Skills Assessment Outcome dated 23 December 2016.
·Statutory declaration of Godfrey Fernandez dated 29 November 2022.
·Company taxation returns for Jerome Mobile Engineers Pty Ltd (Jerome Motors) and Christy Motors Pty Ltd (Christy Motors) for the financial years 2015 to 2021.
·Written submissions dated 17 May 2023.
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 887.223 for the grant of the visa. Broadly speaking, this requires that:
·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and
·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and
·the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and
·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA).
The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.
Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?
The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and the term ‘bogus document’ is defined in s 5(1) of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.
The requirement in PIC 4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant: PIC 4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.
While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42.
Background
On Wednesday 11 September 2019 investigators from the Australian Border Force (ABF) and the Australian Federal Police (AFP) executed a search warrant under the Crimes Act (Cth) 1914 at the business premises of Jerome Mobile Engineers and Christy Motors, located at 4 Paul Court, Dandenong, Victoria, 3175 (the premises).
Earlier surveillance activities undertaken by the investigators on 8 August 2019 and 9 September 2019, the front gates of the premises remained closed until midday. Upon entering the premises on 11 September 2019 (pursuant to the warrant) officers of the ABF and AFP observed dust covered vehicles, an unkempt workshop and no workers present, despite the search taking place during operating hours of the business. The officers further observed that the hoists were not operational and the mechanics shop appeared to have not been functioning for some time. CCTV footage taken by the investigators showed that the five hoists in the mechanic’s shop were not being utilised for mechanical purposes.
Whilst the investigators were conducting their investigation at the premises, a person approached the business and was questioned about their attendance at the premises. This person initially told investigators that he was attending to make superannuation payments and was found the have a large amount of money in his possession. During his discission with the investigators, this person admitted that he was attending the premises because he had an arrangement to with the business owner to provide him with employment experience for his points based skilled visa application and he was there to make his monthly payment for this purpose.
This person subsequently attended the offices of the ABF where he provide the following further information regarding his payment arrangement with the business owner:
·He paid $6,000 in cash to be paid in advance for a 12-month period of employment. The employer would only provide work experience for a 12-month period.
·He was required to pay their own fortnightly salary of $1,900 for full-time employment with tax and superannuation with tax and superannuation payments deducted from this amount, This left the sum of $1,250 which was paid into his bank account as salary.
·He was advised that if he wished to have part-time employment, he would be required to pay a monthly fee of $650, to be paid in cash and handed to the son of the business owner. He would then be required to pay his own wage of $920 per fortnight, which would be deposited into the business, owner’s account with a transaction reference of “training” or “cars”. He would then receive $750 in wages.
·He told the investigators that he never worked on a full-time basis for the employer on either a full-time or part-time basis and the payslips generated for him by the employer were incorrect. He explained that the monthly fees he paid were for the employer to provide him with false employment claims or bogus payslips.
On the basis of the above information, the delegate wrote to the applicant on 18 February 2020, noting that he claimed to have been employed by Jerome Mobile Engineers from 31 August 2015 to 4 December 2016 in his nominated occupation of Motor Mechanic (General) ANZSCO Code 321211.
The delegate set out the above information regarding the execution of the search warrant by ABF and AFP investigators and the information obtained in the interview.
The delegate advised the applicant that on the basis of the above information provided on 11 September 2019 to the ABF, the delegate had confirmed that the employer was/is operating a payment for visa arrangement from the premises at 4 Paul Court, Dandenong, Victoria, where claimed employees of Jerome Mobile Engineers and Cristy Motors pay for their false employment claims. These employment documents were then used to obtain a skills assessment for their nominated occupation and in some applications, claim points for Australian employment.
The delegate further advised that the claimed employer’s bank statements were also seized by the ABF investigators on 11 September 2019 and the evidence in the bank statements supported the earlier statements regarding deposits made by applicants to provide wages. The delegate stated that analysis had determined that large cash deposits were made directly before wages were paid, in some instances between 2016 and 2019, up to 20 employees were paid on the same day. The delegate advised the applicant that his name appeared consistently on the statements provided for November 2015 to August 2016 and that the ABF officers also sighted a tax invoice dated 25 June 2019 with payment to Godfrey Fernandez of $2,200. This amount was for “consultation fees”.
The delegate informed the applicant that the information suggested that cash deposits were made by the applicants in order to pay their own wages.
The delegate further noted that during the search of the premises at 4 Paul Court, Dandenong, investigators located a filing cabinet containing individual files and that many of these files were labelled with individual names in addition to the words “payment records”, although investigators did not read the contents of the files. The delegate advised the applicant that she suspected the applicant may having been paying his own wages to the business owner in exchange for work experience in order to obtain his visa.
The delegate advised that as the ABF reported that the business did not appear to be an operational workshop, it raised concerns that Jerome Mobile Engineers would have the capacity to employ the large number of workers paid and supported the position that the business owner was operating a payment for work experience scheme.
The delegate advised the applicant that this information raised serious concerns regarding his employment claims with Jerome Mobile Engineers and the genuineness of the documents provided in support of the employment claims in his visa application. The delegate said that they reasonably suspected that he may have been paying his own wages in order to procure a skills assessment through the Job Ready Program and work experience documents for his visa application.
The delegate informed the applicant that there was evidence suggesting that he had provided a bogus document or false or misleading information in relation to the visa application to satisfy the requirements of PIC4020(1) with the result that the visa application may be refused. The delegate invited the applicant to respond (in writing) to the above matters.
In response, on 17 March 2020 the applicant provided the Department with documentation supporting his employment with Jerome Mobile Engineers, including photographs of job cards, statutory declaration of applicant, bank statements, ATO notices of assessment, emails regarding the Trades Recognition Job Ready Assessment program for the applicant, statutory declarations of fellow employees of Jerome Mobile Engineers and an incomplete statutory declaration of Godfrey Fernandez.
The delegate was not satisfied that the information provided by the applicant in support of his employment claims and the information in response demonstrated that the applicant was employed by Jerome Mobile Engineers, as claimed. The delegate gave greater weight to the information obtained from the execution of the warrant at the premises of Jerome Mobile Engineers and the interview with the person located at the premises on 11 September 2019.
The delegate found that the applicant had provided information that was false and misleading in a material particular in relation to reg 489.224 and therefore was not satisfied that he met the requirements of PIC4020(1).
The delegate was not satisfied that there were compelling circumstances affecting 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 that justify the granting of the visa.
Applicant’s circumstances
The applicant is a national of India, born in Karnal, Haryana on 16 November 1987. He arrived in Australia in December 2008 as the holder of a Student visa.
The applicant originally lived in Perth, Western Australia, before moving to Melbourne in order to complete an automotive course, which was not available at the time to International students.
After he had completed his studies, the applicant undertook work in various automotive workshops in Dandenong on a voluntary basis. He was introduced to Mr Godfrey Fernandez (the owner of Jerome Mobile Engineers) by a friend who had purchased a car from Mr Fernandez. The applicant’s friend had noticed the size of the workshop at Jerome Mobile Engineers and the number of employees, which led him to suggest to the applicant that there may be a job for him there.
The applicant subsequently attended the premises of the business at 4 Paul Court, Dandenong, Victoria and asked for a job. During his interview with Mr Fernandez, the applicant was questioned about various mechanical tasks (including the changing of a draft drive) and was subsequently offered a position as a Motor Mechanic with the business. He commenced full-time employment with Jerome Mobile Engineers on 31 August 2015.
The applicant continued to work for the business (on a full-time basis) until 4 December 2016 when he obtained alternate employment which was better paying than his employment with Jerome Mobile Engineers.
The applicant denies that he was involved in paying his own wages in order to obtain work experience for the purpose of his visa application. He asserts that his employment with Jerome Mobile Engineers was legitimate and that he worked as a Motor Mechanic in a full-time capacity for 16 months.
Findings regarding PIC4020(1)
The Tribunal has considered the events detailed by the delegate in her decision regarding the execution of the search warrant on 11 September 2019 and the observations made by ABF and AFP investigators of the premises at 4 Paul Court, Dandenong. The Tribunal finds the allegation made to investigators by the unnamed informant to be serious and concerning.
The Tribunal considers that schemes involving visa applicants paying money in order to obtain documentary evidence of employment and work they have not actually undertaken has the potential to undermine the skilled visa program in Australia.
However, in relation to the applicant’s potential involvement in such a scheme, the Tribunal considers the following matters support his submission that his employment was legitimate:
·The applicant’s denial of any involvement in a pay for visas scheme operated by Mr Fernandez.
·The applicant’s successful completion of a Skills Assessment on 14 October 2016, which involved him in demonstrating his technical skills as a mechanic in performing tasks chosen by the assessor and the answering of questions regarding his work. These tasks included the replacement of a drive shaft, the fitting of brake pads and the removal and replacement of a rocker cover gasket and the installation of a new one. The Tribunal notes that there is no evidence before it of the assessor (Mr Anthony Letto of the Sunraysia Institute of TAFE) raising any concerns about the applicant’s work environment or the genuineness of his employment.
The Tribunal has further considered the job cards and time sheets which are consistent with the applicant’s full-time employment for Jerome Mobile Engineers between 31 August 2015 and 4 December 2016.
The Tribunal has taken into account the statutory declarations of Parvinder Singh, Sukhwinder Singh, and Godfrey Fernandez; the financial documentation for Jerome Mobile Engineering; and the company taxation returns for Jerome Mobile Engineers and Christy Motors which the Tribunal has given some weight.
Whilst the Tribunal acknowledges that investigators searching the premises at 4 Paul Court, Dandenong found a file with contained the applicant’s name and the words “payment records” there is no information regarding the contents of this file and the nature of any payments to which the words “payment records” apply. The Tribunal considers that these words do not indicate whether the payments were made by applicant or to him. However, the Tribunal notes that the applicant concedes that he purchased tools through his employer for the sum of $6,000. The Tribunal has been provided with an invoice for this purchase which is dated 26 August 2015. Although the delegate found that this payment was likely to have been made as a wage payment in order to obtain work experience, the Tribunal finds that the payment is also consistent with the applicant purchasing the necessary tools for his employment through his employer.
The Tribunal has considered the applicant’s bank account statements which cover the period of his employment for the period of his employment, which suggest that he was paid fortnightly wages by his employer.

The Tribunal further acknowledges that previous review applications by other employees of Christy Motors and Jerome Mobile Engineers involving the refusal of their visa applications on the basis that their claimed employment was not legitimate, were remitted by the Tribunal (differently constituted) on the basis that they did in fact work at the businesses. However, this Tribunal member is not bound by those decisions and has made this decision on the basis of the evidence and submissions before it in this case.
The Tribunal notes that the allegations made by the unnamed informant do not refer to the pay for visas scheme taking place during the period of the applicant’s employment (i.e., between 31 August 2015 and 4 December 2016) and he makes no specific allegations against the applicant.
Whilst the information obtained by ABF and AFP investigators raises doubts about the business practices of Mr Fernandez and the operation of his businesses, the Tribunal is not satisfied that there is any explicit evidence before it which links the applicant to a pay for visas scheme.
On balance, the Tribunal is not satisfied that the applicant’s employment with Jerome Mobile Engineers was part of a pay for visas scheme and was not legitimate. In making this finding, the Tribunal has given significant weight to the fact that the applicant’s employment ceased, some four years before the execution of the search warrant on 11 September 2019. The Tribunal is not satisfied that there is a sufficient nexus between the concerns raised by ABF and AFP investigators regarding the operation of the Jerome Mobile Engineers business in September 2019 and during the applicant’s period of employment, to warrant a finding that his employment was not legitimate.
Conclusion
The Tribunal is not satisfied that there is evidence before the Tribunal that the applicant has:
·given or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a ‘bogus document’ as defined in s 5(1); or
·information that is false or misleading in a material particular as defined in PIC 4020(5),
in relation to the visa application or a visa held in the 12 months before the visa application was made.
Therefore, the applicant meets PIC 4020(1).
On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl 887.223.
Given the above findings, the Tribunal is satisfied that the second named applicant meets the secondary criteria for the grant of the visa.
DECISION
The Tribunal remits the applications for Skilled (Residence) (Class VB) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 887 (Skilled - Regional) visas:
·Public Interest Criterion 4020 for the purposes of cl 887.223 of Schedule 2 to the Regulations.
The Tribunal considers that the application of the second named applicant should be reconsidered on the basis that he meets the secondary criteria for the grant of a Skilled (Residence) (Class VB) visas.
Amanda Mendes Da Costa
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.
…

[2023] AATA 1953

6 June 2023

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

Statutory Construction

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