KAUR (Migration)

[2024] AATA 501

KAUR (Migration) [2024] AATA 501 (12 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs PRABHJEET KAUR

Mr CHARAN SINGH

REPRESENTATIVE:  Mr Jasminkumar Dipaklal Shah (MARN: 1808222)

CASE NUMBER:  2116660

HOME AFFAIRS REFERENCE(S):          BCC2020/1428509

MEMBER:R. Skaros

DATE:12 March 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled Work Regional (Provisional) (Class PS) visas.

Statement made on 12 March 2024 at 11:32am

CATCHWORDS
MIGRATION – Skilled Work Regional (Provisional) (Class PS) visa – Subclass 491 (Skilled Work Regional (Provisional)) – state/territory nominated (regional) stream – finance manager – false or misleading information and bogus documents – employment and tasks of positions – verification checks – claimed employment some distance away while completing professional year and internship – undetailed and inconsistent evidence about tasks – references state higher tasks – no PAYG summaries provided or income declared – small businesses, COVID restrictions, change of premises and work from home – other occupations stated on incoming passenger cards – insufficient evidence to conclude documents bogus – discretion to waive criterion – compassionate or compelling circumstances – length of residence, study and work – member of family unit husband – no submissions about circumstances – baby born shortly before hearing not citizen or permanent resident – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65, 359AA
Migration Regulations 1994 (Cth), Schedule 2, cl 491.211(1), Schedule 4, criterion 4020(1), (4), (5)

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 October 2021 to refuse to grant the applicants Skilled Work Regional (Provisional) (Class PS) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 24 April 2020. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl 491.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate found that the applicant had not met the requirements in Public Interest Criterion 4020 (PIC 4020). A copy of the delegate’s decision record was provided with the application for review.

3. On 9 January 2024, the Tribunal invited the applicant to appear before it on 5 February 2024 to give evidence and present arguments. On 12 January 2024, the Tribunal received a request for postponement of the hearing because the applicant, who was pregnant at the time, was due to give birth on 15 January 2024. The Tribunal agreed to the request and the hearing was rescheduled to 29 February 2024.

4. On 20 February 2024, the Tribunal received confirmation from the applicant that only she would be attending the reschedule hearing. It was indicated on the response to hearing form that neither the applicant’s spouse (Mr Charan Singh) or the representative would be attending the hearing.

5. The applicant appeared before the Tribunal on 29 February 2024 by Microsoft Teams Videoconference to give evidence and present arguments. The Tribunal explained to the applicant its role, the issues in the review and how the hearing would proceed. Being aware that the applicant recently had a baby, the Tribunal informed the applicant that if she wished to take a break at any time she could do so. The Tribunal observed that the applicant did not request an interpreter and asked if she could understand what had been explained to her so far and whether she was comfortable to proceed. The applicant said she understood and was happy to proceed without an interpreter. Throughout the hearing the Tribunal asked the applicant if she wished to take a break; on each occasion she indicated that she wanted to continue with the hearing.   

6. The Department’s file did not include any non-disclosure certificates, however, there was information on the file, which the Tribunal considered to be adverse, which had not been fully disclosed to the applicant in the natural justice letter sent by the Department under s 57 of the Act. During the hearing, the Tribunal provided further details of the adverse information (using the procedure in s 359AA), which the applicant was invited to comment on or respond to. The applicant did not wish to seek additional time to comment on or respond to the information and elected to respond promptly. Her responses have been considered further below.

7. Towards the end of the hearing, after the applicant was given several opportunities to make submissions regarding the waiver, the applicant said she was confused. When asked what she was confused about and whether the Tribunal could assist by explaining anything further, the applicant said she was unable to fully express herself. When encouraged to say anything she felt would assist her case, the applicant said she had worked but she is not sure how she can prove it. The Tribunal asked the applicant if she wanted to have a break to consider what else she would like to say in support of her case, the applicant said no. When asked if she felt that she had been given an opportunity to present her case and give evidence in support of her claims, the applicant said she did. When asked again if there was anything further that she wished to say before the hearing is completed, the applicant said no.

8. The Tribunal acknowledges that the applicant had a baby about a month prior to the rescheduled hearing. The applicant requested the first scheduled hearing be postponed after she delivered the baby, which the Tribunal agreed to. In respect of the rescheduled hearing, the Tribunal received a response indicating that the applicant wished to attend the hearing, which was held by video, to give evidence and present arguments. There is no information before the Tribunal (and the applicant has not claimed) that she did not have the capacity to meaningfully participate in the hearing. The applicant’s responses indicated that she understood the issues in her case, including the nature of the adverse information (and its relevance) when they were discussed with her during the hearing. The applicant was also given several opportunities to give evidence in respect of the waiver. Having regard to all the circumstances, the Tribunal is satisfied that the applicant has had a meaningful opportunity to give evidence and present arguments in support of her case.

9. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this review is whether the visa applicant meets PIC 4020(1) as required by cl 491.211 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).

11. The requirements in PIC 4020(1) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). 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?

12. 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.

13. 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.

14. 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 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.

    Evidence in the Department’s file

15. The applicant applied for the Subclass 491 visa in the State/Territory Nominated (Regional) stream on 24 April 2020. She nominated the occupation of Finance Manager (132211). Relevantly, it was indicated in the visa application form that the applicant had the following employment in Australia:

    ·Finance Manager with Ampex Chartered Accountants (Ampex) from 23 September 2019.

    ·Accountant with Concierge Accounting (Concierge) from 11 December 2018 to 6 September 2019.

16. As indicated in the decision record, in July 2020, the Department wrote to the Queensland state nominator and requested copies of documents submitted for the applicant to obtain a Nomination from the state of Queensland. In July 2020, the Queensland state authority, Business and Skilled Migration Queensland (BSMQ), informed the Department of the documents that were provided with application for state nomination, which relevantly included the following:

    ·Onshore Commitment statement from the applicant in which she declared that she was working as a Finance Manager.

    ·Payslips: from 24 February 2020 – 22 March 2020 from Ampex.

    ·Employment contract with Ampex, dated 1 April 2020.

    ·Statement of service from Ampex, dated 2 April 2020.

    ·Statement of service from Concierge, dated 2 October 2019.

17. The delegate indicated that the information relating to the applicant’s claimed employment with Ampex and Concierge was relevant because it was relied upon, in part, to meet the eligibility criteria for Nomination from the State of Queensland. 

18. The documents given to the Department in support of the applicant’s claimed employment with Ampex included the following: the statement of service dated 2 April 2020, the two payslips dated 24 February 2020 to 22 March 2020, the employment contract dated 1 April 2020, and an employment offer extended for 12 months from 1 June 2020. In relation to the claimed employment with Concierge, the applicant provided the work reference certificate dated 2 October 2019.

19. Also of relevance, was the evidence provided to the Department relating to the applicant’s completion of the Accounting Professional Year program with the Accountants Resource Centre (ARC), which the delegate considered to be relevant as the applicant had claimed points in her application for completion of that program. The evidence provided included a letter from the ARC, certificate of completion and an academic transcript. The letter stated that the applicant enrolled in the program on 18 May 2018 and completed all the requirements for the award on 6 May 2019. It also said that she completed 32 weeks of classroom-based learning and a three-month internship.

20. In July 2020, the Department sought to verify the applicant’s claims of employment with Ampex and Concierge. The information gathered by the Department during the verification checks raised concerns about the genuineness of the applicant’s claimed employment. On 11 November 2020, the Department wrote to the applicant and invited her to comment on the following adverse information:

    ·the applicant never claimed her occupation as Finance Manager on any of her incoming passenger cards.

    ·the websites for Ampex and Concierge contained evidence of plagiarism and some of the links did not work.

    ·Internet checks revealed limited evidence of either employer.

    ·Phone calls were made to neighbouring businesses and the tenancy agents for the claimed employment addresses, and none had heard of Ampex or Concierge.

    ·Ampex or Concierge were not listed on the applicant’s income tax disclosure report for the 2019/2020 financial year.

    ·The interview conducted with the applicant on 29 July 2020 raised the following concerns; the applicant was unable to name the street address of her current employer (Ampex) or name any of the surrounding businesses, she was unsure if her salary was or was not inclusive of tax, she could not recall the month she commenced at Concierge and claimed to be undertaking a full time professional year (5 days a week) at the same time as travelling one and a half to two hours each way to Maroochydore to work for 20 hours a week with Concierge.

21. The applicant responded to the adverse information by way of a submission from her representative together with the following supporting documents; letter from ARC confirming the applicant’s completion of the Accounting Professional Year program, including an internship with Global Green Tag, a forwarded email from “GM; Sai; Ampex Chartered Accounts”, a forwarded email from Alpeshkumar Patel, Director of Concierge, and a forwarded email from the applicant addressing the concerns raised by the delegate. By reference to information contained in the enclosed documents, the representative provided detailed submissions to each of the above particulars as follows:

    ·Incoming passenger cards: the applicant was working as a casual Assistant Nurse and decided to indicate that occupation on the incoming passenger card instead of Finance Manager. As the applicant was in flight and thought if someone needed medical assistance that she might be able help them.

    ·Websites of Concierge and Ampex containing evidence of plagiarism: both employers confirm that the applicant worked with them. Both firms are small businesses and are not registered for Single Touch Payroll (STP). Both employers rely on word of mouth and do not have an online marketing strategy or media platforms to expand their business and for this reason do not have much of an active online presence. In the accounting profession, they do not believe in releasing much data, content or services on the various platforms which explains why the information on the website was not accurate for both employers. The employers did not find the websites and public platforms to be useful for their small business. The employers used the website for online presence and the updating of services, content and business activities is not updated due to the lack of technical and IT knowledge. Due to the COVID-19 pandemic, Concierge permanently closed down their business and Ampex has started a virtual office.

    ·Phone calls made to neighbouring businesses: Ampex moved to a virtual office due to COVID-19 Pandemic. Prior to that they operated their business from Lawson St, Southport QLD and did not bother to update the information on the website or social media because they did not depend on an online presence. Concierge shut down their business permanently due to the COVID-19 Pandemic.

    ·Income tax disclosure: Both Concierge and Ampex are a small business and are not registered for STP. The applicant has bank statements showing her pay. The applicant waited for confirmation from both employers so she could lodge her tax returns for the two years.

    ·Applicant’s interview with the Department: the applicant was unable to name the street address or surrounding businesses because of a misunderstanding and she was nervous during the phone interview which impacted her confidence. Due to the COVID-19 Pandemic the employer announced the work from home due to government guidelines. The applicant was operating from home for so long and, due to nervousness, could not recall the street address of her current employer. The applicant provided the correct amount of her salary but was confused about her taxable income because she did not pay much attention to her payslip. The applicant had stated the month on which she commenced employment with Concierge during the interview. Regarding her Professional Year, the applicant commenced the program with ARC on 18 May 2018 and completed it on 6 May 2019. During her professional year, she also did her internship for 12 weeks at Global Green Tag from 14 Jan 2019 to 5 April 2019 (confirmation letter attached). During her internship, the applicant attended classes once a week at ARC’s Brisbane office (letter attached) and during her study she attended class 3 days a week. She was comfortable continuing with her employment with Concierge because she worked there as a casual employee, for up to 20 hours a week, and found it manageable with her Professional Year program.

22. The Tribunal has had regard to the submissions and supporting documents in its consideration of the evidence further below.

23. The representative referred to the applicant’s background, pandemic circumstances, and professional experience and submitted that the applicant’s intention of working in Australia was to gain professional experience to assist her with establishing a strong career and improve her employment prospects. The representative referred to the documents attached, which she submitted shows the applicant’s employment and professional year. It was submitted that the applicant is genuine and hardworking and wants to establish for herself a better future and career. These submissions have also been considered further below.

    Hearing evidence and responses to adverse information

24. The applicant gave evidence that she travelled to Australia in March 2015 as the holder of a student visa. She enrolled in the Bachelor of Commerce (Accounting) at Griffith University (Nathan Campus) and completed the degree in February 2018.

25. In relation to her employment in Australia, the applicant gave the following evidence. When she was at university she was worked as a sandwich artist at Subway. A few months after completing her degree, in about April/May 2018, she worked as an Assistant in Nursing (AIN) with the Churches of Christ. She worked as an AIN for about 20 hours a week. When she worked at Subway and as an AIN, she did a total of 30 hours a week. She stopped working with Subway in about May 2018. She commenced the Professional Year at ARC in May 2018 and completed the program in May 2019. For the Professional Year program, she attended classroom learning every Thursday and for the internship she attended three days a week.

26. The applicant said that she was also working as an Accountant with Concierge at the time she was completing the Professional Year. When asked for details about that employment, she gave the following evidence.  She worked with Concierge from December 2018 until September 2019. She worked at the office in the Sunshine Coast. She was living in Brisbane at the time, and it used to take her about one and a half hours to drive to the office. She worked about 20 hours a week. She did a maximum of two days. She did not have any set days as it depended on the days that she had to attend the internship.

27. In relation to Concierge and the nature of her employment with them, the applicant gave the following evidence. She said the business was a client-based firm, but that her role was limited only to the staff. She said the business employed about six or seven people. In describing her day-to-day tasks, the applicant said she did the bank reconciliation, payroll, and managed leave and pay. When asked how she undertook those tasks, she said through MYOB. She said she generated reports and payslips. She did not generate her own payslips because she was asked by management not to do it. When asked if she undertook any other tasks, she said she completed the bank reconciliation in excel and checked the incoming payments.

1. The Tribunal referred the applicant to the employment reference from Concierge which indicated that she undertook the following tasks; preparing budgets and quarterly forecasts, examining operating costs and organisations’ income and expenditure, assisting with cash flow analysis, reconciling accounts payable and receivable, preparing balance sheets, profit and loss statements and other financial reports for clients and businesses, providing assurance about the accuracy of the information contained in financial reports, handling accounts payable, verifying and performing payments, assisting with financial audits and statutory compliance. The Tribunal remarked that the tasks she described did not include any of the higher-level tasks described in the employment reference and noted that she had stated that she only undertook tasks related to the staff of the business whereas the employment reference indicates undertook work for clients and businesses. When invited to comment on the discrepancies and concerns which the Tribunal explained cast doubt over the genuineness of the claimed employment with Concierge, the applicant said she had no comments to make.

2. The Tribunal expressed the concern that she was living in Brisbane, working as an AIN for 20 hours a week and was undertaking the professional year, which required her to attend class and complete an internship, at the same time as she claims to have worked with Concierge in Maroochydore for 20 hours a week. The Tribunal noted that when considering the evidence about her work as and AIN and studies in Brisbane at the time, it raises doubt over her claim to have travelled to Maroochydore to work for Concierge. The applicant said she decreased her hours as an AIN and her internship was only three months, so she was able to easily manage.

3. When asked about Ampex and her claimed employment with that business, the applicant said it was a chartered accounting firm located in Southport. She was living nearby at Surfers Paradise. She worked full time for the business as its finance manager. When asked about her day-to-day tasks, she said it was the same as Concierge, but she did more budgeting. When asked who she did the budgeting for, she said Ampex. She said she prepared reports quarterly and that they were internal reports. When asked for details about the type or name of the reports she prepared, she said it was a “step up”. In providing further details about what the report contained, she said it was a quarterly report about the different types of expenses and profits. When asked what the turnover of the business was, she said she could not recall. The Tribunal noted that she claimed to have been the finance manager for the business and to have prepared quarterly reports on its expenses and profits, and asked if she could at least recall the approximate turnover or range of the business’ revenue. The applicant said she worked there but could not recall.

4. The applicant was referred to the employment reference issued by Ampex, dated 2 April 2020, which stated that her role was to develop and monitor financial reports, undertake payroll administration, manage all the accounting requirements, prepare and manage banking reconciliation, balance sheet management and general ledger administration. It also states that she was responsible for providing client assistance with compliance issues related to matters arising from PAYG, GST, Workcover and superannuation. The Tribunal expressed concern that her oral evidence about the tasks she undertook at Ampex did not demonstrate that she undertook the types of tasks described in the employment reference, the applicant did not respond. When asked if she wanted to comment on this, the applicant said she did not wish to do so.

5. The Tribunal discussed with the applicant the information obtained by the Department during verification checks of her claimed employment with Concierge and Ampex. The Tribunal noted that while most of the information had generally been disclosed to her in the natural justice letter (and was referred to in the decision record) some aspects of the information contained other details which the Tribunal considered should have been provided to her.

6. Prior to disclosing the additional details, the Tribunal asked the applicant whether the agent that lodged her visa application had any involvement in obtaining the work references (from Concierge or Ampex) on her behalf, the applicant said no. The Tribunal noted that there were concerns on the Department’s file about the possible involvement of the agent. The applicant indicated that the agent had nothing to do with her employment references. The Tribunal accepts the applicant’s evidence regarding this concern and notes that there is no substantive evidence before it which establishes that the agent had any involvement with the work references.

7. Using the procedure in 359AA, the Tribunal invited the applicant to comment on or respond to the following particulars, which the Tribunal explained were relevant to whether there was evidence before the Minister (or Tribunal on review) that she had given, or caused to be given, to the Department, a bogus document or information that was false or misleading in a material particular in relation to her application for the visa: PIC 4020(1). The Tribunal explained that if it relied on the information, together with other evidence before it, it may conclude that she had not worked as an Accountant with Concierge or as a Finance Manager with Ampex as she has claimed. It noted that if the Tribunal so finds, it may find that she does not satisfy the requirement in PIC 4020(1) and, if it was not satisfied that there are compelling circumstances affecting the interests of Australia, or compelling or compassionate circumstances affecting the interests of an Australian citizen, Australian permanent resident, or an eligible New Zealand citizen that justify the grant of the visa, then the decision under review may be affirmed.

8. After setting out the particulars, the relevance of the information and the consequences if the Tribunal relied on the information, the Tribunal asked the applicant whether she understood the matters discussed with her, the applicant confirmed that she understood. When asked if she wished to request additional time to commend on or respond to the information, the applicant said she did not and that she wished to proceed by responding to each of the particulars raised.

   Particulars of the information and the applicant’s responses

9. Information on the Department’s file indicated that the applicant travelled to Australia on several occasions and did not declare on her incoming passenger cards that her occupation was Accountant or Finance Manager. Relevantly, on 5 January 2019 the applicant declared that she was an assistant nurse, and on 8 January 2020 she declared her occupation as customer service. In responding to this information, the applicant said in January 2019 she was also working casually as an AIN so decided to declare that occupation. On the second occasion (in January 2020) she did not take it seriously and just put customer service, it was her mistake.

10. Information on the Department’s file indicated that the applicant filed tax returns with the Australian Taxation Office (ATO) for the 2018/2019 and the 2019/2020 financial years; for the 2018/2019 financial year she declared employment with the Trustee for Roff Investment Trust, Golding Family Trust and Churches of Christ Care and her total wages/salaries for that financial year were $49,863. In the 2019/2020 financial year she declared employment with Churches of Christ Care, Golding Family Trust, Northside Flower Market and Allity Management Services and her total wages/salaries for that financial year were $53,282.

11. In responding to the above information, the applicant said she did not declare the employment or receipt of wages from either Concierge or Ampex on her tax returns because she had not been provided with confirmation from either company as they did not have STP. The Tribunal expressed doubt about whether a business had to be set up for STP to issue PAYG payment summaries to its employees. It also expressed doubt that an accounting business would not issue a PAYG payment summary to its employees. The Tribunal further observed that the employment reference from Ampex indicates that she was responsible for assisting clients with compliance issues, including those relating to PAYG. When invited to comment on the concerns raised, the applicant said she had no comments to make.

12. In relation to the matters raised by the Department in its natural justice letter (and set out in the delegate’s decision record), the Tribunal is satisfied that sufficient particulars were provided to enable the applicant to provide a response. The Tribunal invited the applicant to comment on or respond to the following information: that the Department contacted businesses located in the same building as Concierge and Ampex. They also contacted the leasing agents for the addresses from which Concierge and Ampex claimed to operate. None of the businesses or agents contacted by the Department had any knowledge of Concierge or Ampex. When invited to explain why none of the businesses or leasing agents may have indicated they had no knowledge of the existence of Concierge or Ampex, the applicant said she could not comment on that.

13. In relation to the online checks conducted by the Department for Concierge and Ampex which indicated that the websites for both businesses contained evidence of plagiarism and, in the case of Ampex, some of the links did not work and the limited information about either business on the internet, the applicant said the businesses did not rely on an online presence and she was not involved in the website or the material on the website.

14. The Tribunal discussed with the applicant the concerns raised by the departmental officer who interviewed her on 29 July 2020 about her claimed employment with Concierge and Ampex. The matters of concern included that:

    ·she was unable to name the street address of her employment with Ampex or the surrounding businesses, despite claiming to have been working for them at the time of the interview.

    ·she provided details of her salary but did not know whether the amount was with or without tax.

    ·she was unable to recall the month she commenced employment with Concierge.

    ·her evidence that she drove one and a half to two hours each way to work with Concierge at the same time as completing a professional year while living in Brisbane and attending classes 3 days a week from 9:00 am to 5:00 pm and undertook an internship in Brisbane 5 days a week simultaneously over that same period.

15. In responding to the above concerns, the applicant said at the time of the interview she was working from home due to COVID-19. Also, there was a change of premises, and she was not sure of the address. In relation to her class attendance for the professional year, the applicant said she attended class one day a week and the internship was three days a week, so she was able to manage her employment with Concierge.

16. When asked if she wanted to say anything further about her employment claims with Concierge or Ampex, the applicant said she did not.

    Considerations

17. In considering whether the applicant has given, or caused to be given a bogus document, or information that is false or misleading in material particular, the Tribunal has carefully considered the evidence before it as follows.

18. In this case, information was given on the visa application form indicating that the applicant worked as an Accountant with Concierge from 11 December 2018 to 6 September 2019 and as a Finance Manager with Ampex from 23 September 2019 until lodgement of the visa application. Documents were also given to the Department as evidence of the applicant’s claimed employment with Concierge and Ampex. Based on information in the Department’s file, which was referred to in the delegate’s decision record (which has not been disputed by the applicant), the applicant relied on this work experience to obtain a Nomination from the State of Queensland. On this basis, the Tribunal considers that the information relating to the applicant’s work experience in Australia with Concierge and/or Ampex is relevant to the following criteria for the Skilled Regional (Provisional) (Subclass 491) visa in the State/Territory nominated stream:

    ·the applicant is nominated by a State or Territory government agency and that nomination has not been withdrawn.[1]

    ·if the applicant is nominated by a State or Territory government agency, the nomination has not been withdrawn.[2]

    [1] Schedule 1; Item 1241, Sub-paragraph (4) item 5.

    [2] Schedule 2: Clause 491.217(1)

19. There was no actual Nomination document that was provided with the visa application. The visa application form merely indicated that the applicant had been invited to apply for the visa under the State/Territory Government Nominated Regional pathway by the State of Queensland. The Tribunal is also mindful that the relevant nominating authority in Queensland (BSMQ) does not come within one of the persons or entities specified in PIC 4020(1). There is also no evidence that the applicant relied on the claimed work experience with Concierge or Ampex to obtain a skills assessment or to claim points under the points test requirements.

20. The information and documents pertaining to the applicant’s claims of employment with Concierge and Ampex were, however, also given to the Department with the visa application which was lodged via the Department’s online facility on 24 April 2020. On this basis, the Tribunal considers that the information (including that which was provided on the visa application form and contained in the employment documents), was information that had been given, or caused to be given, to the Minister or an officer.

21. Before considering whether the information relating to the applicant’s claimed employment with Concierge and Ampex was false or misleading, the Tribunal makes the following remarks regarding the delegate’s concern about the applicant’s claim of having completed the Professional Year program for which points (under the points test criterion) were sought. The Tribunal considered the evidence provided in relation to the applicant’s claimed completion of the Professional Year program, including the official academic transcript, letter and certificate of completion issued by the ARC to be probative. Accordingly, the Tribunal is satisfied that the applicant has not provided any false or misleading information regarding her completion of the Accounting Professional Year at the ARC and is satisfied that the documents provided as evidence of completion of that program are not bogus.

22. The Tribunal now turns to consider the applicant’s claims of employment. In relation to the applicant’s claim to have been employed as a Finance Manager (her nominated skilled occupation) with Ampex in the seven months preceding the visa application (i.e., from 23 September 2019 until the visa was lodged on 24 April 2020), the Tribunal is not satisfied, for reasons that follow, that she was so employed. The Tribunal is also not satisfied that the applicant was employed as an Accountant with Concierge from 11 December 2018 to 6 September 2019 as claimed.

23. The Tribunal considers significant that the applicant, when lodging her tax return with the ATO for the 2018/2019 and 2019/2020 financial years, did not declare her claimed employment with Ampex or Concierge. In submissions to the Department, the applicant said the businesses were small and not registered for STP, that her bank statement shows payments, but she was waiting for information from the company and that was why she had not lodged her tax returns for two years. The evidence before the Tribunal, however, which was disclosed to the applicant at the hearing, is that she had lodged tax returns for the 2018/2019 and 2019/2020 financial years and that she had declared receipt of wages/salaries, but they were from other employers.

24. In the 2019/2020 financial year the applicant declared employment with four other employers from whom she earned wages/salaries totalling $53,282. The fact that the applicant did not declare her employment with Ampex, with whom she claims to have worked on a full-time basis since September 2019 and from whom she claims to have received payments, casts doubt over her claim to have been employed by Ampex as a Finance Manager. There is also no mention in the tax returns of Concierge, whom the applicant claims to have worked with up until 6 September 2019, this also casts doubt over her claim to have worked for Concierge as an Accountant in that financial year and in the preceding financial year.

25. The Tribunal has considered the explanation that the applicant did not declare the employment because she was not issued with information from Ampex or Concierge as they were small businesses and were not registered for STP. In the case of Ampex, the Tribunal does not find credible that a chartered accountants business, notwithstanding its size, would not issue its employees information (such as a PAYG payment summary) regarding their earnings and the tax withheld after the end of each financial year, particularly when one of their core services (as indicated on the employment reference) was to assist clients with compliance issues, including those relating to PAYG. The applicant did not comment on these concerns, and the Tribunal is not satisfied that the applicant has adequately explained why her tax return for the 2019/2020 financial year did not indicate Ampex or Concierge as her employers or, in 2018/2019, did not indicate Concierge as one of her employers. Even if the applicant had not received information from Ampex and/or Concierge, the Tribunal is not satisfied that this prevented the applicant from declaring the wages/salaries she claims to have received from that employment. The applicant indicated that her bank statement showed the incoming pay, in the circumstances, the Tribunal considers that the applicant, who claims to have worked as an Accountant and Finance Manager in Australia, could have still declared her income from the employment with Ampex and Concierge on the tax returns she lodged with the ATO in the relevant financial years. The fact that she had not done so strongly suggests that the applicant did not work for (and had not received an income from) Ampex or Concierge as she has claimed.   

26. The Tribunal also considers that if the applicant was working as a full time Finance Manager with Ampex since September 2019, then she would have declared this as her occupation (and not ‘customer service’) on her incoming passenger card when she returned to Australia on 8 January 2020. The Tribunal has considered the applicant’s explanation that she did not take it seriously, and just put ‘customer service’, but is not satisfied that this adequately explains why she would not indicate the occupation in which she claims to have worked full time in the preceding four months. The Tribunal has formed the view that the reason the applicant did not indicate her occupation as Finance Manager in January 2020 was because she had not been employed in that occupation and was likely working in a customer service role for one of the employers that she declared on her 2019/2020 tax return. The fact that the applicant had not declared her occupation as Finance Manager on the incoming passenger card strongly suggests that the applicant had not been employed in that occupation with Ampex as she has claimed.    

27. On 5 January 2019 the applicant declared her occupation as Assistant Nurse (and not Accountant) in the incoming passenger card. The applicant explained that it was because she was also working as an AIN at the time. The Tribunal accepts that the applicant was working as an AIN in January 2019, this appears to be supported by information contained in her 2018/2019 tax return and her oral evidence that she commenced working as an AIN in about May 2018. However, this does not assist the applicant in establishing that she was also working as an Accountant for Concierge at the time. The Tribunal has also had regard to the representative’s submission that the applicant indicated her occupation as an AIN instead of a Finance Manager because she was in flight and thought someone may need assistance. The Tribunal notes, however, that the applicant indicated her occupation as AIN when she entered Australia in January 2019, which was some eight months prior to her claimed employment as a Finance Manager. The Tribunal considers the representative’s submission regarding this concern to be of limited assistance.

1. It is also of concern that neighbouring businesses and the leasing agents for the business addresses of Ampex and Concierge indicated they had not heard of Ampex or Concierge. At the hearing, the applicant did not comment on this information. The Tribunal has also considered the submissions (and accompanying emails) provided to the Department in respect of each business. In relation to Ampex, it was submitted that the business had moved to a virtual office due to COVID-19 and that prior to that the business had operated from Lawson St, Southport QLD but had not updated their address. The Tribunal considers this evidence to be highly problematic because it does not indicate when the business moved to a virtual office, how long they had been operating from the Lawson street Southport address and why the employment documents they issued, including the employment reference dated 2 April 2020 and offer of employment letter dated 1 April 2020, indicated the Scarborough St Southport address, which was also noted on the employment letter as being the applicant’s place of work. No independent evidence was provided (such as a lease, sub-lease document, rental statements) to verify any of the addresses that Ampex claimed to have operated from. These concerns cast doubt about whether Ampex had operated a chartered accountant business as claimed and casts doubt over the genuineness of the employment reference which indicated that the applicant had been employed as a Finance Manager since September 2019 and worked from the office located on Scarborough St, Southport. It also casts doubt over the genuineness of the offer of employment letter which indicated that the applicant’s place of work would be at the Scarborough St, Southport, address.

2. The Tribunal’s concerns regarding Ampex are compounded by the limited knowledge demonstrated by the applicant during the departmental interview. The applicant was unable to name the street address where she claimed to have worked with Ampex. The Tribunal has considered the explanation that the applicant had been working from home due to the COVID-19 pandemic and was nervous. It is understandable that the applicant may have been nervous during the interview, however, even considering this, the Tribunal does not find credible that because the applicant had been working from home since COVID-19 (which would have occurred in March 2020, about four months prior to the interview) that the applicant could not recall the street address of where she claimed to have worked full time since September 2019. The Tribunal considers that the reason the applicant could not recall the street address of Ampex was because she had not worked at that address as she has claimed.

3. In relation to Concierge, the only explanation that has been provided as to why neighbouring businesses or the leasing agent had not heard of them, was that the business permanently shut down due to the COVID-19 Pandemic. No substantive information or supporting evidence was provided to indicate that Concierge had operated an accounting business from the Maroochydore address nor were details provided about when the business shut down. Given that the COVID-19 pandemic was an issue only five months prior to the verification checks conducted by the Department, the Tribunal is not satisfied that an adequate explanation has been provided as why Concierge may not have been known to neighbouring businesses or the leasing agent for the building. The Tribunal is not satisfied on the evidence before it that Concierge operated an accounting business from Maroochydore as claimed. This in turn casts doubt over the applicant’s claim to have worked as an Accountant with Concierge as claimed.

4. Of further concern, was the applicant’s oral evidence at the hearing regarding her claimed employment with Concierge and with Ampex. The applicant’s description of the tasks she undertook as an accountant (with Concierge) and finance manager (with Ampex) were simplistic, lacking in detail and, in part, inconsistent with information in the employment references. Despite probing for specific examples and details, the applicant was unable to provide satisfactory responses that verified her work experience as described in the employment references. For example, in relation to her employment with Concierge, the applicant said it was a client-based business but that her role was limited to staff (or which there were about six or seven). This is inconsistent with the employment reference which indicated that the applicant undertook work for clients and businesses. She described her tasks as doing bank reconciliation, payroll and managing leave and pay, and generating reports and payslips through MYOB. This is in stark contrast with the employment reference which suggests the applicant undertook higher level tasks associated with preparing financial reports, financial analysis and planning, budgeting and advising on compliance. Based on her oral evidence, the Tribunal is not satisfied that the applicant ever worked as an Accountant with Concierge as claimed.

5. In relation to her employment with Ampex as a Finance Manager, the applicant simply described her tasks as the same as Concierge but that she did ‘more budgeting’. When probed for details about the types of budget reports, she said she prepared quarterly internal reports which contained details of expenses and profits, but when asked about the approximate revenue or the range of Ampex’s turnover, the applicant could not provide any details. The applicant’s evidence did not demonstrate that she undertook the higher-level tasks of planning, analysing, and advising on financial matters, including those associated with assisting clients on compliance issues. Based on her oral evidence, the Tribunal is not satisfied that the applicant ever worked as a Finance Manager with Ampex as claimed.

6. The Tribunal has had regard to the documentary evidence, including the payslips, offer of employment letter and employment reference, but considers that these documents were contrived for the purposes of supporting the applicant’s state/territory nomination, which in turn was relied upon by the applicant for the purposes of visa application.

7. Having carefully considered all the relevant evidence before it, including the matters discussed above, individually and cumulatively, the Tribunal concludes that the applicant was not employed by Ampex as a Finance Manager as claimed in the visa application. For the same reasons, the Tribunal also concludes that the applicant was not employed by Concierge as an Accountant as claimed in the visa application.

8. Given the above considerations, the Tribunal finds that information contained in the visa application and in documents provided with the visa application, including employment references from Ampex and Concierge, offer of employment from Ampex and payslips from Ampex, was false or misleading.

9. The requirement in PIC 4020(1) requires that there is no evidence of a bogus document or information that is false or misleading in a material particular in relation to the application for the visa. Notwithstanding the concerns and findings with respect to the employment documents (i.e., that they contain information that is false or misleading), the Tribunal does not have sufficient evidence before it to conclude that those documents are ‘bogus’ as defined in s 5(1) of the Act. There is no evidence to suggest that the documents were not issued in respect of the applicant or that they were forged or altered by someone without authority or that they were obtained because of a false or misleading statement. The employment documents may have been issued to the applicant by authorised persons of Ampex and Concierge, not because they were misled into doing this, but because they wished (for reasons unknown) to assist the applicant with her visa application. The employment documents, therefore, do not appear to come within the definition of ‘bogus document’. Even though the employment documents (which the Tribunal has found to contain false or misleading information) were relied upon by the applicant to secure the nomination from the State of Queensland, there does not appear to be a ‘Nomination’ document that was given with the visa application. Also, as noted above, there is no evidence which suggests that any document (such as a skills assessment) was obtained because of the false or misleading information contained in the employment documents.

10. The Tribunal has, however, found that the information pertaining to the applicant’s claims of employment with Ampex and with Concierge is false or misleading. Whilst that information was given to the Queensland state nomination authority, which the Tribunal acknowledges is not one of the persons or entities mentioned in PIC 4020(1), the Tribunal considers that the false or misleading information was nevertheless given (or caused to be given) to the Minister or an officer, who are one of the persons mentioned in PIC 4020(1).

11. The Tribunal has next considered whether the information given to the Department (i.e., the Minister or an officer of the Department) about the applicant’s claimed employment with Ampex or Concierge is false or misleading “in a material particular”, as defined in PIC 4020(5). In this case, the information about the employment was given (or caused to be given) in the visa application form and in the employment documents that were provided with the visa application. Given the Tribunal’s finding about the claimed employment with Ampex and Concierge, the Tribunal is satisfied that the information pertaining to that employment was false or misleading at the time it was given to the Department: PIC 4020(5)(a).

12. The Tribunal further finds that the false or misleading information was relevant to the criteria which requires the applicant to be nominated by a state or territory agency (and that the nomination has not been withdrawn).[3] As noted above, the claims of employment, including those contained in the employment documents given to the Department, were, in part, relied upon to secure the Nomination from the Queensland state agency. The information was therefore relevant to the criteria that the delegate may have considered when making a decision on the visa application. The Tribunal is mindful that the employment experience was not relied upon by the applicant for any other purpose, for example, to claim points for Australian work experience, however, as provided for in PIC 4020(5)(b) it is not necessary for a decision to have been made on the visa application because of that information. The provision plainly states that the information need only be ‘relevant to’ any of the criteria that may be considered when making a decision on the application.

    [3] Item 1241(4) item 5 and cl 491.217(1).

13. Given the above, the Tribunal finds that the information given to the Department relating to the applicant’s claimed employment with Ampex and with Concierge was information that was false or misleading in a material particular within the meaning of PIC 4020(5). As the information was given to the Department with the visa application, it follows that the information (which has been found to be false or misleading in a material particular), was given in relation to the application for the visa: PIC 4020(1)(a).

    Conclusion

14. Given the above considerations, the Tribunal finds that there is evidence before it that the applicant has given (or caused to be given via her authorised representative) to the Minister, or an officer, information (about her claimed employment as a Finance Manager with Ampex and as an Accountant with Concierge), which the Tribunal has found to be information that is false or misleading in a material particular, as defined in PIC 4020(5). Further, the Tribunal finds that the information was given in relation to the application for the Skilled Work Regional (Provisional)(Subclass 491) visa.

15. Having regard to the above findings, the Tribunal concludes that the applicant does not meet PIC 4020(1).

    Should the requirements of PIC 4020(1) be waived?

16. The requirements of PIC 4020(1) 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.

17. 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.

18. In submissions to the Department, the applicant’s representative referred to the applicant’s professional experience, background and circumstances of the COVID-19 pandemic. It was submitted that the applicant worked in Australia to gain professional experience, that she is hardworking and wants to establish a better future and career for herself in Australia. The Tribunal has considered these submissions; however, they appear to relate to the applicant, her experience in Australia and future aspirations. They do not, in the Tribunal’s view, constitute compelling or compassionate circumstances that affect the interests of Australia or of an Australian citizen or permanent resident or New Zealand citizen.

19. At the hearing, the Tribunal explained to the applicant the basis upon which it can waive the requirements in PIC 4020(1) as provided for in PIC 4020(4). The Tribunal asked the applicant if there were any circumstances that she believed could affect the interests of Australia, the applicant said no.

20. When asked if there were any compassionate or compelling circumstances that she believed may affect the interests of an Australian citizen or permanent resident, or an eligible New Zealand citizen, the applicant said no. Upon further discussion and encouragement to give any evidence she thought was relevant to the waiver, the applicant said she had worked for the employers, but she was not sure how to prove that employment or how to express herself. When given an opportunity to take a break and consider what other evidence she wished to provide in support of her claims, the applicant declined.

21. The Tribunal is satisfied that the applicant has had a reasonable opportunity to give evidence regarding her claimed employment. Concerns about the employment were discussed with her and she was given an opportunity to respond to those concerns and the Tribunal had regard to her responses in its considerations. Having carefully considered the evidence before it, the Tribunal concluded, for reasons it gave above, that it was not satisfied that the applicant had been employed either as a Finance Manager with Ampex as claimed or as an Accountant with Concierge as claimed. The Tribunal is not satisfied that the matter raised by the applicant, namely that she had worked but has been unable to effectively express herself to prove the claimed employment, constitutes compassionate or compelling circumstances that affect the interests of an Australian citizen or permanent resident, or an eligible New Zealand citizen.

22. The Tribunal has also had regard to the applicant’s circumstances generally, including that she has been in Australia since 2015 (a period of nine years), that she has completed a bachelor’s degree qualification in Australia and that she has worked in Australia. The employment which the Tribunal accepts the applicant has undertaken in Australia includes being an AIN, working in customer service and working as a sandwich artist for Subway, as well as other employment she had declared in her 2018/2019 and 2019/2020 tax returns. The Tribunal also acknowledges that the applicant recently had a baby, however, there is no evidence (and the applicant has not claimed) that the baby is an Australian citizen or permanent resident.

23. While the applicant’s circumstances, including the length of time she has been in Australia, during which she may have established emotional, social and financial ties, may be considered compelling or compassionate, the Tribunal is not satisfied on the evidence before it that those circumstances affect the interests of Australia or the interests of an Australian citizen, permanent resident or an eligible New Zealander.

24. The secondary applicant (Mr Charan Singh) did not appear before the Tribunal at the hearing and no submissions have been made about his circumstances. Though, like the applicant, the Tribunal considers that Mr Singh may have also established ties to Australia which may give rise to compelling or compassionate circumstances. However, the Tribunal is not satisfied on the limited evidence before it that the circumstances affect the interest of Australia or the interests of an Australian citizen, permanent resident or an eligible New Zealander.

25. Having considered the circumstances of the applicants overall, the Tribunal is not satisfied on the evidence before it that they constitute compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, permanent resident or eligible New Zealand citizen.

26. For the above reasons, the Tribunal concludes that the requirements of PIC 4020 (1) should not be waived.

27. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl 491.211(1). The Tribunal must therefore affirm the decision under review.

28. The secondary applicant applied for the visa on the basis of being a member of the family unit of the applicant. As the Tribunal has found that the applicant does not satisfy a criterion for the grant of the visa, it follows that the Tribunal must also affirm the decision made in respect of the secondary applicant.

    DECISION

29. The Tribunal affirms the decision not to grant the applicants Skilled Work Regional (Provisional) (Class PS) visas.

    R. Skaros
    Senior 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.

    …