Hashan (Migration)

[2018] AATA 2339

Hashan (Migration) [2018] AATA 2339 (22 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Mohammad Mahamudul Hashan
Mrs Nasrin Hasan
Ms Mohaimeen Hasan
Mr Mahmud Nahian

CASE NUMBER:  1620904

DIBP REFERENCE(S):  BCC2014/2404063

MEMBER:Kate Millar

DATE:22 May 2018

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 489 Skilled Regional (Provisional) visa.

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 22 May 2018 at 3:33pm

CATCHWORDS
Migration – Skilled Regional Sponsored (Provisional) – Subclass 489 Skilled Regional (Provisional) – Incorrect answers in application – Provision of bogus documents - Whether there was non-compliance as described in the s. 107 notice - Whether the applicant worked for a previous employer as claimed – Where authorities conducting a site visit concluded the applicant had not been employed as stated – Significant further evidence provided by the applicant – Decision set aside and substituted

LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 103, 107, 109, 140

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Mr Hashan and his family are from Bangladesh.  He came to Australia to work as an industrial sales representative in September 2014 on Subclass 489 Skilled Regional (Provisional) visas.

2. Mr Hashan’s visa was cancelled, and the visas of his family consequentially cancelled, on 7 December 2016 by a delegate of the Minister as the delegate found Mr Hashan had provided a bogus document and incorrect answers on his visa application.  In particular, on the basis of a site visit at Mr Hashan’s previous workplace in Bangladesh, the delegate found Mr Hashan’s claim to be employed at this workplace had been fabricated to mislead the Department and increase his chances of obtaining a visa. 

3. This is an application for review of the decision by the delegate of the Minister for Immigration to cancel Mr Hashan’s visa under s.109(1) of the Migration Act 1958 (the Act).  This provides a ground for cancellation where a person provides a bogus document or incorrect answers on a visa application.  If a ground for cancellation is made out, the decision must then consider if the visa should be cancelled.  It follows that the issues in this case are whether a ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to Mr Hashan The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.

5. The applicants appeared before the Tribunal on 27 March 2018 to give evidence and present arguments, and were represented in relation to the review by their registered migration agent. The Tribunal also received oral evidence from Mr Hashan’s current employer, Mr Brian Rousseau.  

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents, and to notify the Department of any incorrect information of which they become aware and any relevant changes in circumstances.

8. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

9. In the present matter, the Department had conducted a site visit. The delegate reports the outcome of the site visit was the company could not provide evidence of Mr Hashan’s employment and provided conflicting information about the conditions of his employment such as the work hours, attendance and duties with the company. The Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

10. A notice issued by the delegate that provides the following as particulars of the alleged non-compliance in relation to s.101(b) of the Act which requires that a non-citizen must fill in his or her application form in such a way that no incorrect answers are given or provided.

11. On 22 September 2013, Mr Hashan lodged an application for a points based skilled migration visa.  As part of this application, he provided the following responses to questions in his application:

    Has the applicant been employed in the last 10 years                yes

    Give details of employment undertaken in the last 10 years

    Position:   Industrial Power Tools Specialist

    Employer name:   M/S Crystal Company (Home and Overseas)

    Country:  Bangladesh

    Date from:  01 Jun 2006

    Description of duties:  Please see attached work reference

    Is the employment related to the nominated position:      yes

12. The notice states that on 16 September 2014, officers from the Australian High Commission in Dhaka visited Crystal Company at its address in Dhaka and at the showroom in Tejgaon.  It states that the company could not provide any evidence of Mr Hashan’s employment with them and provided conflicting information in regard to his work hours and attendance at the office.  Its states that on the same day Mr Hashan was interviewed and he provided conflicting information in regard to his work hours and attendance.  As a result, the delegate states the answers on the application form are incorrect.  

13. The notice also alleges a breach of s.103 of the Act, which requires that a non-citizen must not give an officer, the Minister or a tribunal performing a purpose or function under this Act, a bogus document or cause such a document to be given. In this case, the particulars are that Mr Hashan provided the following bogus documents:

    ·     An employment contract from Crystal Company dated 15 September 2006

    ·     Two work references from Crystal Company dated 4 September 2013 stating he holds a full-time position with the company as an Industrial Power Tools Specialist. 

14. These were alleged to be bogus documents on the basis of the same interviews and site visits described above. 

    Was there non-compliance as described in the s.107 notice?

15. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 and s.103 of the Act.

16. The report from the site visit was not included in the information provided to the Tribunal by the Department, but was provided following a request from the Tribunal.  Mr Hashan’s solicitor had previously seen this report, as the submission refers to the reports of the site visit.

17. In summary, the report of the sit visit was:

    ·     A visit was conducted to the head office of Crystal Company on 16 September 2014 at 11.30 am. 

    ·     The officers met with the manager and marketing officer.  They showed them a photograph of Mr Hashan and they recognised him, and the manager advised that he was one of their sales and marketing personnel and had been with Crystal Company since 2006.

    ·     On asking to meet Mr Hashan, the marketing officer said he was not available and that he works full time as a teacher at the American International School in Dhaka and goes to the Tejgaon showroom after attending school.  They were advised Mr Hashan finishes school at 2.30 pm or 3.00 pm and works in the Tejgaon showroom until 6.00 pm.

    ·     The manager is reported to have no idea as to Mr Hashan’s salary, and that their boss deals with everything related to his employment.  It was reported the boss was in the United States and would return the following week.

    ·     The manager was asked to show reports of Mr Hashan’s sales and marketing performance, as a filing cabinet and business records appeared to be at this site.  The manager had no knowledge of Mr Hashan’s sales and marketing performance and advised only their employer knows about it.  The manager said that Mr Hashan does not have a sales or marketing target.  On being asked how they would measure Mr Hashan’s performance, the manager said their boss would have that information.  The officers observed there were a lot of files, folders and documents at the office and surely they would have something on the applicant if he had worked for them since 2006.  The manager and marketing officer did not provide any further comments.

    ·     On leaving the head office, the officer contacted Mr Hashan by telephone, who said he was meeting with a client at Baridhara area.  When asked about his employer’s location, he said he normally works from the Tejgaon showroom.  On being asked about his work hours, he said he generally goes to the showroom once or twice a week.  Mr Hashan was able to give some technical specifications of the products he sells.

    ·     The officers visited the Tejgaon showroom at 1.10 pm and spoke to the manager who recognised a photograph of Mr Hashan.  The manager said Mr Hashan had worked there since 2006.  The manager said he was out of the showroom for a work engagement but could not specify what this was.  The manager said Mr Hashan’s monthly salary is BDT 28,000 and he works 10.00 am to 6.30 pm six days per week with Fridays off.

    ·     The manager said they did not keep salary records or sales and marketing reports.  They asked to see Mr Hashan’s sales vouchers and were shown a sales voucher book that had the applicant’s name handwritten on it and irregular entries which the officer stated looked hastily put together with gaps of more than a month between sales. 

    ·     The officers asked for the attendance register and the officers stated that the entries appeared to have been made at one time. A Friday’s entries incorrectly entered had been covered by white out, and the entry for September was blank despite them visiting on the 16th of September.  The site report attached photographs of the attendance record. 

18. The site visit report concluded that the employment was not genuine.

19. Mr Hashan said this conclusion was not correct, and that the officers could not meet with Mr Meer, the owner of the company, because he was overseas at the time of the site visit.  He said he was employed by Crystal Company from 2006 and provided his letter of employment.  He had a six month probation period and from 2007 was a full-time sales representative.

20. An internet search showed that Crystal Company appears in the Bangladesh Yellow Pages and has the address and telephone number that appears on the company letterhead.  It is also the address of the site visit. 

21. In 2007 he also started part-time work at the American International School.  Crystal Company supplied the tools for the workshop and he went to give safety demonstrations and to promote the brands they sold to the students.  He said this is usual practice both in Bangladesh and Australia, where sales people for the tools would also teach students as then, if they entered construction jobs, they were more likely to use the brands with which they were familiar.  He started as a teaching assistant for three to four hours a day Sunday to Thursday and had Fridays off and worked at Crystal Company all day Saturday.  He would start at 8 am at the school, and up to 2010 did one teaching block of three to four hours, which went to two teaching blocks from 2010.  He provide a letter from the American International School Dhaka stating he was employed part time as a teaching assistant four to five hours a day from 2007 to 2014.  The term time in which he worked amounted to 170 days per year, and he worked less than half a year. 

22. In 2010 he was promoted to being a senior member of the team and his job responsibility changed as his seniority increased to obtaining new customers.  Mr Hashan provided a number of letters from Crystal Company showing a salary increment to the amount reported by the manager as his monthly wages, and attesting to his work with the company as an Industrial Power Tools Specialist.  Other letters from the company attest to his promotion in 2010 to head of the Industrial Power Tools Sales Team with responsibility for sales and marketing.  He did not have a sales target but his primary responsibility was to achieve the annual turnover assigned by Black & Decker Dubai.  It is stated he worked at least 40 hours per week and his salary of BDT 28,000 per month was disbursed in cash. It is stated the company does not maintain salary records in the form of cheques, bank accounts or payslips. 

23. Mr Hashan also provided:

    ·     Letters from customers stating they bought tools through Mr Hashan

    ·     Tax records from Bangladesh stating he worked for Crystal Company

    ·     Copies of emails from this period regarding the purchase and sale of DeWalt Power Tools and Black & Decker Tools

    ·     Certificates regarding his training with DeWalt

    ·     A further letter from Mr Meer at Crystal Company stating that Mr Hashan worked at the American International School with his consent and that he continued to work 40 hours a week at Crystal Company.

24. Mr Hashan’s current employer attended to give evidence.  His employer has a franchise for Total Tools.  He said Mr Hashan was familiar with the tools, and when he commenced the majority of the training he required was on the cultural aspects of working in Australia rather than on technical matters relating to the tools.  Mr Rousseau said that it is difficult to recruit people with the required skills as tradespeople have the technical skills but no sale skills.  Mr Rousseau said he has no connection with Mr Hashan other than as his employee, and he finds Mr Hashan a diligent employee.

25. In light of the further evidence Mr Hashan has supplied regarding his work for the American International School, further information and letters from Mr Meer of Crystal Company, his tax information and in light of the fact that his knowledge and skill in his nominated occupation is acknowledged by his current employer, I am not satisfied he has provided a bogus document or has given incorrect answers on his application form.

26. As a result, I am not satisfied that there has been non-compliance in the way specified in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.

27. As I am not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

    DECISION

28. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 489 Skilled Regional (Provisional) visa.

29. The Tribunal has no jurisdiction with respect to the other applicants.

    Kate Millar
    Member

    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

    (1)In this Act, unless the 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.

    97Interpretation

    In this Subdivision:

    application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

    passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

    Note:Bogus document is defined in subsection 5(1).

    98Completion of visa application

    A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

    99Information is answer

    Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

    100Incorrect answers

    For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

    101Visa applications to be correct

    A non‑citizen must fill in or complete his or her application form in such a way that:

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    103Bogus documents not to be given etc.

    A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.

    * This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

    107Notice of incorrect applications

    (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

    (a)    giving particulars of the possible non‑compliance; and

    (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

    (i)if the holder disputes that there was non‑compliance:

    (A)shows that there was compliance; and

    (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

    (ii)if the holder accepts that there was non‑compliance:

    (A)give reasons for the non‑compliance; and

    (B)shows cause why the visa should not be cancelled; and

    (c)    stating that the Minister will consider cancelling the visa:

    (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

    (ii)if the holder gives the Minister a written response within that period—when the response is given; or

    (iii)otherwise—at the end of that period; and

    (d)     setting out the effect of sections 108, 109, 111 and 112; and

    (e)    informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

    (f)    requiring the holder:

    (i)to tell the Minister the address at which the holder is living; and

    (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

    (1A)The period to be stated in the notice under subsection (1) must be:

    (a)    in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

    (b)     otherwise—14 days.

    (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

    (a)    visas of a stated class; or

    (b)     visa holders in stated circumstances; or

    (c)    visa holders in a stated class of people (who may be visa holders in a particular place); or

    (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

    (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

    108Decision about non‑compliance

    The Minister is to:

    (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

    (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

    (a)    deciding under section 108 that there was non‑compliance by the holder of a visa; and

    (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

    (c)    having regard to any prescribed circumstances;

    may cancel the visa.

    (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.