Kaur (Migration) - [2023] AATA 4171

Kaur (Migration) [2023] AATA 4171 (6 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Sandeep Kaur
Mr Lovepreet Singh Sahota
REPRESENTATIVE:  Mr Jujhar Bajwa (MARN: 0742209)
CASE NUMBER:  2111252
HOME AFFAIRS REFERENCE(S):          BCC2019/681818
MEMBER:Antonio Dronjic
DATE:6 December 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Skilled Nominated (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 190 - Skilled - Nominated visa:
·public interest criterion 4020 for the purposes of cl 190.216 of Schedule 2 to the Migration Regulations 1994 (Cth).

Statement made on 06 December 2023 at 11:04am
CATCHWORDS
MIGRATION – Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 (Skilled - Nominated) – false or misleading information – work experience – business name cancelled but ABN remained operational during claimed employment – discrepancies in salary and superannuation not relevant to fact of employment – written and oral evidence from former employer – second job not declared – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65
Migration Regulations 1994 (Cth), Schedule 2, cl 190.216, Schedule 4, criterion 4020(1)
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Bushell v MIAC [2008] FMCA 1193
Sharma v MIMAC [2013] FCCA 1280
Sran v MIBP [2014] FCCA 37
Talukder v MIAC [2009] FMCA 223
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 13 August 2021 to refuse to grant the applicants Skilled Nominated (Permanent) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 28 May 2019. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of public interest criterion (PIC) 4020(1) for the purposes of meeting cl 190.216 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The delegate found that the applicant has given or caused to be given false and misleading information related to her Australian work experience.
The applicants sought review of the delegate’s decision on 26 August 2021 and with their applications provided a copy of the primary decision record. The applicants were represented in relation to the review by their registered migration agent.
On 28 September 2023, the Tribunal wrote to the applicants advising them that it had considered material before it and was unable to make a favourable decision on this material alone and invited the applicants to attend a hearing on 23 November 2023.
On 16 and 17 November 2023 the Tribunal received documentary evidence from the applicants’ representative. The list of documents submitted is attached to this decision record as Attachment A.
On 22 November 2023 the Tribunal received documentary evidence from the applicants’ representative. The list of documents submitted is attached to this decision…

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 Kaur (Migration)

Details

AGLC: Kaur (Migration) [2023] AATA 4171
Case: [2023] AATA 4171
Decision Date: 6 December 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision concerning a Skilled Nominated (Permanent) visa (Subclass 190). The primary applicant, Ms Kaur, had provided information regarding her work experience, which was subsequently questioned. The dispute centred on whether Ms Kaur had provided false or misleading information in her visa application, particularly concerning her employment history.

The Tribunal was required to determine if Ms Kaur had provided false or misleading information in relation to her visa application, specifically concerning her claimed work experience. This involved assessing the veracity of documents and evidence presented, including payslips, bank statements, and statutory declarations from her former employer. The Tribunal also considered whether discrepancies in salary and superannuation payments, or the operational status of a business name versus its Australian Business Number (ABN), impacted the fact of employment.

The Tribunal found that while the applicant's former employer's business name was cancelled, the ABN remained operational during the claimed period of employment. The Tribunal also noted that discrepancies in salary and superannuation payments, and the fact that penalty rates were not paid, were not relevant to the core question of whether employment had occurred. Crucially, the Tribunal accepted written and oral evidence from the former employer, Mr Bhatnagar, confirming Ms Kaur's employment. However, the Tribunal also noted that a second job had not been declared by the applicant.

Ultimately, the Tribunal remitted the applications for Skilled Nominated (Permanent) visas for reconsideration by the Department. The Tribunal directed that the first applicant, Ms Kaur, met the public interest criterion 4020 for the purposes of clause 190.216 of Schedule 2 to the Migration Regulations 1994. The application of the second applicant, who applied as a member of the primary applicant's family unit, was to be determined by reference to the outcome of Ms Kaur's reconsidered application.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Tribunal confirmed with the applicant that she had read and understood written submissions provided by her representative. The Tribunal noted that in his submissions, the applicants’ representative did not address waiver provisions and asked the applicant if there were any circumstances that she would like to bring to the Tribunal’s attention. She stated that there is nothing she would like to bring to the Tribunal’s attention.Evidence of Mr Pravin Bhatnagar Mr Bhatnagar is the applicant’s former employer. He owned and operated four motor mechanical shops in Victoria: Vserve Motors in Dandenong, Baleen and two East India shops in Croydon and Preston. The witness stated that all mechanical shops are now closed as he was diagnosed with dementia and was no longer able to operate those businesses. In his evidence, Mr Bhatnagar confirmed that he submitted to the Tribunal his statutory declaration dated 19 November 2023 and that everything stated in that declaration is true and correct. The witness stated that the applicant was recommended for the job by his friend but was no longer able to recollect the name of that friend. During the time the applicant worked at his Dandenong shop, the business employed two other motor mechanics who were obtaining work experience. When questioned by the Tribunal, Mr Bhatnagar gave evidence that his business was subject to investigation conducted by the Department related to issuance of work experience letters. According to his recollection, approximately 15 people obtained work experience as motor mechanics at his four shops. He stated that applicant worked from 7 am to 1 pm on weekdays and from 8 am to 12 pm on Saturdays. The Tribunal noted that according to payslips provided, the applicant was never paid penalty rates for working on Saturdays. The witness confirmed that he was not paying penalty rates to his employees. When the Tribunal noted that payment days recorded on payslips do not corelate to actual deposits of the applicant’s wages into her bank account, Mr Bhatnagar confirmed this to be the case. When the Tribunal noted that payslips provided do not record payment of mandatory superannuation contributions to the applicant, Mr Bhatnagar stated that the business paid the applicant’s superannuation on a lump sum basis. The applicant was granted additional time until 30 November 2023 to provide documents requested at the hearing. On 27 November 2023, the Tribunal issued a summons to produce documents to the Director of Labourpower Recruitment Services Pty Ltd, the company that issued payslips to the applicant related to her job at the North Altona bakery. The Tribunal requested confirmation of hours worked by Ms Kaur, stating the time she commenced and completed her shifts at Allied Pinnacle (bakery located in North Altona, Victoria) during the period from October 2017 to February 2019. On the same day, Mr Kurt, the National Human Resources Manager of Labourpower Recruitment Services Pty Ltd submitted to the Tribunal:·Shift log extracted from their system regarding applicant’s assignment with Allied Pinnacle; and ·Confirmation of Employment letter confirming the period of employment and start and finish time of the applicant’s shifts.

Decision

Reasons for decision

As the second named applicant applied on the basis that he is a member of the family unit of the primary applicant, his application will be determined by reference to the outcome of the applicant’s application on remittal to the Department for reconsideration.DECISION The Tribunal remits the applications for Skilled Nominated (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 190 - Skilled - Nominated visa:·public interest criterion 4020 for the purposes of cl 190.216 of Schedule 2 to the Migration Regulations 1994 (Cth). Antonio DronjicMemberAttachment A·Form 1023 – Correction to Application for points based skilled Migration Visa submitted online on 7 March 2020·Amended PAYG summary for year ending 2018·ASIC Current and Historical Extract dated 12 March 2020·Mrs Sandeep Kaur - FORM 80 – Department form·Mrs Sandeep Kaur - Individual Tax Return for year ending 2018·Mrs Sandeep Kaur -ANZ Bank Statements for the period 15/9/2017 to 15/11/2017, 15/11/2017 to 15/1/2018, 15/1/2018 to 15/3/2018, 15/3/2018 to 15/5/2018, 15/5/2018 to 13/7/2018, 13/7/2018 to 14/9/2018, 14/8/2018 to 15/11/2018, 15/11/2018 to 15/1/2019, 15/1/2019 to 15/3/2019 and 15/3/2019 to 15/5/2019·Mrs Sandeep Kaur - PAYG: 2018 and 2019·Job ready documents signed in 2019 and TRA Job Ready Final Assessment Outcome letter dated 9/4/19·Statutory Declarations signed by Work Colleague Harmandeep Kaur dated 13 November 2023·Statutory Declaration signed by Work Colleague Ramanpreet K Wahla dated 13 November 2023·Representatives’ submission dated 14 November 2023·Applicants Notice of Assessments for years ending 2018 and 2019Attachment B·Statutory Declaration by the applicant dated 17 November 2023·Letter from Mrs Sandeep Kaur’s’ former Accountant dated 22 November 2023 confirming amendments to Group Certificate·Letter from Employer dated 19 November 2023·Representatives’ submission dated 22 November 2023Attachment C·Bank of Melbourne Statement - Personal savings (applicant and her partner) The amount was credited from - Applicant’s personal account (ANZ) and Lovepreet Singh (NAB). ·NAB Statement- Personal account of Lovepreet Singh (partner) ·Commonwealth Bank – Joint bank account ·Confirmation of Employment from Labourpower Recruitment Services·Statutory Declaration from Lovepreet Singh Sahota (partner)·Employment hours record book (VSERVE)·Applicant’s Superannuation StatementATTACHMENT DMigration Regulations 1994Schedule 44020(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 1958s 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.…

Ratio Decidendi

Legal Principle Established

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