Jani (Migration) - [2025] ARTA 449

JANI (MIGRATION) [2025] ARTA 449 (13 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Raj Bankim Jani
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2403956

Tribunal:Kira Raif
Place:Sydney
Date:13 March 2025
Decision:The Tribunal affirms the decision not to grant the applicant a Skilled Independent (Permanent) visa.

Statement made on 13 March 2025 at 9:12am
CATCHWORDS
MIGRATION – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled – Independent) – Federal Circuit and Family Court remittal – occupation of Computer Network and Systems Engineer – bogus documents – employment details – Australian skilled employment – payments in cash – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 65
Migration Regulations 1994, Schedule 2, cls 189.215, 189.224; Schedule 4, Public Interest Criterion 4020; r 1.03
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
Trivedi v MIBP [2014] FCAFC 42
Umer v MIBP [2017] FCCA 2934
STATEMENT OF REASONS
Application for review

This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs on 14 July 2017 to refuse to grant the applicant a Skilled Independent (Permanent) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a national of India born in April 1990. He applied for the visa on 5 January 2017. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 189.215 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied the applicant met Public Interest Criterion (PIC) 4020. The applicant seeks review of the delegate’s decision.
In November 2018 the Tribunal (differently constituted) affirmed the delegate’s decision. The applicant sought judicial review and in February 2024 the matter was remitted to the Tribunal for reconsideration.
The applicant appeared before the Tribunal on 12 March 2025 to give evidence and present arguments. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Relevant law
The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 189.215 for the grant of the visa. 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).
Primary decision
The applicant provided to the Tribunal a copy of the primary decision record which offers the following information.
The applicant made the application for the Skilled visa in January 2017 and he nominated the occupation of Computer Network and Systems Engineer (ANZSCO 263111). The applicant claimed in his application that between November 2013 and the date of application he worked as a Computer Network and Systems Engineer at Python Technologies, Sydney (Python). The applicant provided a number of documents in support of these claims, including
-a work experience letter dated 5 January 2017 confirming the applicant’s employment on a part-time basis (20 hours a week)
-a number of payslips for the period from September 2016 to January 2018
-ATO slips
-Evidence of bank transfers
-Superannuation form with a particular ABN number
The delegate notes that verification checks were conducted relating to the applicant’s claimed employment which raised concerns. The delegate notes that
-the referee confirmed the applicant’s employment but stated that the applicant received his salary in cash and that superannuation contribution was made on a periodic basis with reference to a company with different ABN,
-the payslips show that the salary is paid via electronic transfers and not in cash,
-the claimed commencement dates are different as the applicant stated in his visa application that he commenced employment on 9 November 2013 while the work referee report states that he commenced in December 2012,
-the ABN shown on the ATO remittances relates to Jani, Raj Bankim, individual / sole trader active from 13 July 2012, not registered for GST and with the main business location in Victoria,
-the bank transfers made in 2017 which refer to Python Super appear to have been made from one personal account to another personal account,
-the Super Choice Form with the stated ABN relates to a different entity and not Python Technologies.
The delegate wrote to the applicant in March 2017 seeking his comments on the above information. In response, the applicant provided a number of documents concerning his employment and a copy of the ACS skills assessment which refers to his work experience at Python Technologies. (There is no evidence before the Tribunal, however, that the ACS had conducted any verification of the applicant’s claimed employment in conducting its assessment and the skills assessment forms expressly states that the authenticity of documents had not been verified. As such, the Tribunal does not consider the ACS assessment to be probative evidence of the applicant’s employment).
The delegate noted that some of the documents presented by the applicant did not address the concerns noted above and that there were further discrepancies in the presented evidence. Ultimately, the delegate found that the employment documents provided with the application were bogus documents and found that the applicant did not meet PIC 4020.
Summary of evidence before the first Tribunal
On 21 November 2018 the first Tribunal made its decision to affirm the delegate’s decision. In oral evidence, the applicant, essentially, referred to confusion and mistakes in the information supplied by the employer. He could not explain why the employer referred to cash salary payments rather than bank transfers and could not offer a persuasive explanation as to why the payslips were inconsistent, suggesting it was an error by the accountant. The Tribunal notes that the applicant was unable to name any clients of Python Technology despite claiming he built their websites and stated that the work was supplied by the agency, yet the applicant could not name the agency that supplied him with work. When he later did provide the names of two clients, the Tribunal noted that one of the clients was a training provider rather than a client.
The Tribunal noted that the superannuation records showed transfers from a personal account and while the employer confirmed he transferred superannuation payments from his personal bank account, the Tribunal noted that in the absence of financial documents or evidence of lodgements with the ATO, these claims were unverifiable. The Tribunal also noted that the applicant presented evidence relating to the superannuation payments with Hostplus, which is a fund for the hospitality industry and the applicant told the Tribunal he had been working in the hospitality industry because of problems with his visa. The Hostplus statements shows that the applicant had been receiving payments since 2016, in apparent contradiction of the claims he made in the application form that when the application was made, he was working as a computer network and systems engineer.
The Tribunal noted that the tax assessment notices from 2013 to 2016 do not show who the applicant’s employer was while the 2016 and 2017 PAYG statements had little detail and did not show the superannuation payments. The Tribunal formed the view that these were manufactured to assist the applicant.
The Tribunal noted that the applicant presented a number of payslips but these had no dates and showed electronic payments [of salary] while the applicant’s employer told the delegate that the applicant was paid in cash.
The applicant also presented statements from the employer, dated October 2017, in which the employer refers to ‘administrative errors’. In an earlier correspondence the employer also suggested there was an error when using MYOB software to claim EFT payments were made rather than cash. However, in an earlier correspondence the employer stated it was an error made by the accountant.
With respect to the different commencement dates on the application form (November 2013) and in the employment reference (December 2012), the applicant explained that the ACS assessed his work experience with Python after graduation, which was in November 2013 and that is the date he put as the commencement of his employment, as suggested by the case officer. In response to concerns that his ABN was registered as being active from December 2012, the applicant stated that he was working in Victoria (Python was located in NSW) and after completing his education in November 2013 he moved from Victoria to Sydney. The Tribunal noted that these dates were inconsistent with the addresses the applicant previously gave to the Department as he claimed he lived in Victoria until November 2014. (The applicant then presented to the Tribunal Notification of Incorrect Answers in relation to his addresses).
The Tribunal noted that the employment documents were not corroborated by independent credible evidence. The Tribunal noted the inconsistencies in the applicant’s evidence. The Tribunal had formed the view that the applicant had manufactured documents to corroborate his claim of employment. The Tribunal concluded that the applicant did not meet PIC 4020(1) and found that there was no basis to waive that provision.
Summary of oral evidence to the present Tribunal
The applicant told the Tribunal that he started at Python in December 2012 and his employment has been consistent. He was involved in different projects but his role was the same. He was working and studying at the same time and once he finished his study, he worked more hours but his designation had not changed.
The applicant states that on the application form he mentioned that he started employment in November 2013 because the ACS guidelines required him to finish his degree before being considered as a qualified professional. The applicant states that he discussed this with his employer and because he was working prior to completing his degree, he wanted to make sure he was qualified to work and he gave the date of commencement as the day after he completed his degree.
The applicant states that he was studying in Melbourne and was doing work at Python that did not require his presence in the office. Once in a while he would travel to the office in Sydney to do some tasks. The applicant states that he used to drive between Sydney and Melbourne and stayed at his sister’s home, so he could not provide evidence of such travel.
The applicant states that he obtained the ABN number in July 2013. He said he was doing some hospitality work from 2016 which was not consistent, but from about 2018 he spent more time in hospitality. The applicant states that his work at Python was project based and did not require his presence in the office, so he was able to work on his own time. The applicant states that he was working in the hospitality sector at the same time as at Python but the work at Python was not reliable, so he needed another job to pay his expenses. (This seems to contradict the applicant’s earlier evidence that he worked consistently 20 hours a week at Python and more once he finished his degree.) The applicant could not recall when he started the hospitality work but thought it may have been around 2016 and he claims to have finished at Python around May 2017.
The applicant states that work at Python was paid by the hour and his payslips show that he was paid for the same number of hours throughout. The applicant states that he believes there is a more reliable future in hospitality and that is why he took the extra jobs in hospitality. He started working in hospitality 5 to 10 hours a week after completing his degree and later on moved to work entirely in hospitality. He moved to Sydney once he completed his degree in 2013 and made a mistake about the dates of his residences.
With respect to the method of payment, the applicant states that initially he was paid in cash but at some point, he told his employer that he needed documents in support of the visa application and the employer told him not to worry about it. The applicant states that the payslips referring to EFT payments was due to a ‘technical glitch’ or an error by an accountant and it was not an error by him. With respect to the superannuation payments made from a personal account, the applicant states that he did not think that would be a problem as it was done by his employer and he believed his employer.
In relation to why he could not recall the names of clients, the applicant stated that he was involved with technical support and security compliance and network systems design and he received only basic information from the client and that greater details were confidential and not disclosed. (The first Tribunal noted that the applicant claimed he could not name clients because work was supplied by the agency.)
The applicant confirmed that he had not referred to his hospitality work (which he claims was overlapping with the IT work) on either the application form or Form 80.
Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?
The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and the term ‘bogus document’ is defined in s 5(1) of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.
The requirement in PIC 4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant: PIC 4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.
While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42.
The applicant claims that he did not provide any bogus documents. He states that he was young when he made the application and did not have any professional guidance. The applicant’s representative submits that there is evidence that the applicant did work at Python even if there may have been false information provided by another employee. The representative submits that none of the documents are bogus. The issue is whether the applicant had given information that was false or misleading. The representative submits that there is nothing in the information submitted by the applicant that is false (in the sense of being untrue). It is submitted that there is omission in terms of hospitality work which can be construed as misleading but the applicant had a rational reason for not including hospitality work in the application (by limiting the stated experience to IT work when applying for the visa on the basis of an IT qualification) and therefore the information was not misleading in a material particular.
The Tribunal does not accept that argument. A determination whether information is false or misleading in a material particular is by reference to its relevance to a visa criterion, not through a subjective assessment of whether the applicant genuinely believed the information to be relevant and not on the basis of whether the applicant believed there was a rational basis for providing particular information in a particular manner. The fact that the applicant was seeking a visa on the basis of his IT qualification does not preclude (nor make it irrational to present) evidence in relation to other employment. This is particularly so as the applicant was required to obtain a certain number of points and employment was relevant to that assessment.
The applicant’s evidence is that he has been working in hospitality industry, 5 to 10 hours a week, since about 2016. That employment was not mentioned on any application forms. By limiting his answer to employment in the IT sector and failing to mention not insignificant employment in the hospitality sector, the information supplied by the applicant conveyed a misrepresentation about the state of facts that was misleading. [1]
[1] In Umer v MIBP [2017] FCCA 2934 at [46]–[47] the Court confirmed that an omission is capable of amounting to false or misleading information.
The Tribunal finds that the information the applicant gave on the application form concerning his employment was misleading.
Clause 189.224 relevantly required the applicant to obtain a number of points under Subdivision B of Division 3 of Part 2 of the Act. The allocation of points must have been not less than stated in the Invitation to Apply and not less than the prescribed qualifying score. Subdivision B of Division 3 of Part 2 sets out a number of factors under which points are allocated and these include, relevantly, Australian skilled employment in a skilled or a closely related occupation for at least 20 hours a week. The applicant relied on his employment at Python Technologies in the skilled occupation of Computer Network and Systems Engineer. The applicant would have to establish that he worked in that occupation, or a closely related occupation, for at least 20 hours a week and for a certain number of years. The applicant’s present evidence is there was an overlap between his job at Python and his work in the hospitality industry which he commenced in 2016 and for a period of time he may have held more than one job.
The fact that the applicant may have held more than one job simultaneously would have been relevant to assessing whether he had worked in the skilled occupation, or a related one, for at least 20 hours weekly. In the Tribunal’s view, the applicant’s employment was relevant to the allocation of points and relevant to the assessment for the purpose of cl. 189.224. It was relevant to a visa criterion and was thus misleading in a material particular.

The applicant also concedes that the information on the application form concerning the duration of his employment at Python was inaccurate as he stated on the application form that he commenced his employment there from November 2013 while in other evidence the applicant claims to have commenced in December 2012. The Tribunal notes that the application form is not concerned with the applicant’s employment at a particular level (noting the applicant’s evidence that he referred to employment after he completed his degree) but with the fact of employment itself. The question on the application form required the applicant to ‘give details of employment undertaken during the 10-year period before the invitation to lodge this application’. Nothing in that question would have directed the applicant to qualify the information on the basis of his skill level and to limit the information to only skilled employment (as perceived by the applicant). Again, the Tribunal is of the view that the overall employment history and the length of employment would have been relevant to the allocation of points for Australian employment for the purpose of cl. 189.224 and such information was relevant to a criterion for the visa. The information was misleading in a material particular.
The Tribunal retains many of the concerns that were raised by the delegate and the first Tribunal in relation to other documents submitted by the applicant. Thus, the Tribunal does not consider that the applicant has offered a satisfactory and persuasive explanation as to why his payslips refer to EFT payments while he claims he was paid in cash (and why the applicant submitted these payslips if he felt these contained incorrect information), the applicant’s inability to name any of the clients of the business, the apparently incorrect ABN numbers on the superannuation slips, the superannuation payments being made from a personal bank account, etc. These issues raise serious concerns for the Tribunal about the applicant’s employment at Python, in the claimed occupation and for the claimed period. However, given the Tribunal’s findings above, it is not necessary for the Tribunal to conclude whether the applicant gave bogus documents or presented other information that was false or misleading.
The Tribunal finds that there is evidence that the applicant has given, or caused to be given, to the Minister or an officer, information that is misleading in a material particular in relation to the visa application. Therefore, the applicant does not meet 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 to suggest the applicant had previously been refused oa visa for failure to satisfy PIC 4020. Therefore, PIC 4020(2) does not apply.
Should the requirements of PIC 4020(1) or (2) be waived?
The requirements of PIC 4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in reg 1.03), that justify the granting of the visa. The decision-maker must first be satisfied that there are such circumstances, then must consider whether to exercise the discretion to waive the requirements, having regard to those circumstances: Kaur v MIBP [2017] FCAFC 184.
The expressions ‘compelling circumstances’ and ‘compassionate or compelling circumstances’ are not defined for these purposes. To be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied: see Plaintiff M64/2015 v MIBP [2015] HCA 50. The ordinary meaning of ‘compassionate’ relates to feelings of sympathy, sorrow, pity or concern for others.
For the following reasons, the Tribunal is not satisfied that the requirements should be waived.
The applicant’s representative submits that it has taken Australia a substantial amount of money to educate the applicant and it would be in Australia’s interest to utilise his skills. The applicant states that he has acquired transferrable skills through his studies of IT. The Tribunal notes however, the applicant’s evidence that he does not work in the IT industry and that he has been working in an entirely different field of hospitality. He told the Tribunal that his passion is in hospitality where he believes he would have a better future. The applicant told the Tribunal that he is well considered in his role. While the applicant may have acquired generic and transferrable skills, it is not apparent that the applicant intends to work in the IT industry or in the occupation for which he was assessed by the ACS. In any case, the Tribunal does not consider that the fact that the applicant holds an Australian degree, which may have taken a substantial sum to administer, constitutes a compelling circumstance that affects the interests of Australia.
The applicant told the Tribunal that his sister, brother-in-law and his niece live in Australia. The applicant states that if he lives in Australia, he and his sister can support each other as their parents are no longer alive. The applicant states that it was always his intention to live in Australia and not in Canada and that was the last wish of his mother.
The representative submits that the applicant wants to pursue this case, despite acquiring permanent residence in Canada, as ‘he is in the right’. It is submitted that if the applicant cannot reside in Australia, this could financially affect his sister and it is culturally the applicant’s responsibility to care for his sister. The Tribunal is mindful that this claim is entirely unsupported by probative evidence. There is no evidence that the applicant has provided financial support to his sister, nor that she requires such support or that she is in any way reliant on the applicant. There is no evidence before the Tribunal about the applicant’s own, and his sister’s financial affairs and no evidence to support any claim of dependence of one on the other. There also is no evidence as to whether the applicant can provide financial support to his sister if he continues to live outside of Australia. On the limited evidence before it, the Tribunal does not accept that the applicant’s sister is in any way financially reliant on the applicant or that the claimed inability of the applicant to support his sister in the future is a compassionate or a compelling circumstance.
As for emotional support, the Tribunal does not accept that such support can only exist if the applicant holds an Australian permanent visa and resides in Australia. The Tribunal is of the view that the applicant and his sister (and her family) can maintain a meaningful relationship with the applicant through electronic contact and future travel.
The Tribunal finds that none of the factors put forward by the applicant, whether considered singularly or cumulatively, establish the existence of compelling or compassionate 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. Therefore, the requirements of PIC 402(1) should not be waived.
On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl 189.215.
DECISION
The Tribunal affirms the decision not to grant the applicant a Skilled Independent (Permanent) visa.
Date(s) of hearing 12 March 2025
Representative for the Applicant: Mr Nilesh Nandan