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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jani (Migration)

Details

AGLC: Jani (Migration) [2025] ARTA 449
Case: [2025] ARTA 449
Decision Date: 13 March 2025

CaseChat Overview and Summary

The case involves an application for a Skilled Independent (Permanent) visa under subclass 189 by Jani, who claimed to have worked as a Computer Network and Systems Engineer at Python Technologies in Sydney. The Federal Circuit and Family Court reviewed the decision to deny the visa application, focusing on the validity of the employment documents and the discrepancies in the evidence presented by Jani. The court was required to decide whether the delegate’s finding that the employment documents were bogus was correct and whether Jani met the eligibility criteria under the relevant provisions of the Migration Act.

The court examined the evidence presented by Jani, including payslips, superannuation forms, and a work experience letter from Python Technologies. The delegate noted inconsistencies and discrepancies, such as conflicting information about payment methods, dates of employment, and the accuracy of the ABN numbers. The court also considered Jani's explanations, which were deemed unsatisfactory due to the lack of credible evidence to support his claims. The court concluded that the delegate's findings were supported by the evidence and that Jani had not provided satisfactory evidence to meet the requirements of the visa subclass.

As a result, the court affirmed the delegate’s decision to deny the visa application. The reasoning was based on the insufficiency and inconsistencies in the evidence provided by Jani, which did not convincingly demonstrate that he met the eligibility criteria for the Skilled Independent visa. The court found that the employment documents were indeed bogus, and therefore, the applicant did not satisfy the necessary criteria under the relevant provisions of the Migration Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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