Khaliq (Migration)

[2022] AATA 870

Khaliq (Migration) [2022] AATA 870 (17 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Talal Khaliq

REPRESENTATIVE:  Ms Aila Rose Melasecca (MARN: 1461616)

CASE NUMBER:  2001045

HOME AFFAIRS REFERENCE(S):          BCC2018/3213465

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:         17 January 2022 at 3:37 pm (VIC time)

DATE OF WRITTEN RECORD:                25 March 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 25 March 2022 at 4:34pm

CATCHWORDS

MIGRATION – Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 Skilled - Nominated – false or misleading information in the visa application – employment records – alleged payment scheme for skills recognition – Australian Border Force investigation – testimony by another employee – applicant’s concurrent work for another employer – pattern of cash withdrawals matching wages – decision under review affirmed           

LEGISLATION

Crimes Act 1914 (Vic)
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cls 190.214, 190.216; Schedule 4, Public Interest Criteria 4020, 4021, 4024

CASES

Trivedi v MIBP [2014] FCAFC 42

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 January 2020 to refuse to grant the visa applicant a Skilled Nominated (Permanent) Subclass 190 visa under the Migration Act 1958 (Cth) (the Act).

2. At the hearing on 17 January 2022 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. Mr Talal Khaliq, you have been in Australia since May 2012 when you arrived on a Student visa.  You lodged this application for a Subclass 190 Skilled Nominated Permanent Visa on 25 August 2018.  Your application was refused on 21 January 2020 because the delegate found you did not meet a criterion in clause 190.216, which is a mandatory requirement that deals with what are known as Public Interest Criteria.

4. You appealed that decision to be reviewed by this Tribunal and with your application you included a copy of the primary decision, which you told the Tribunal you had read and understood.  I read from that decision at some length, and we discussed it, and while you certainly do not agree with the decision it appears you have an understanding of why the delegate made the decision to refuse your application.

5. To be eligible for the grant of a 190 Skilled Visa an applicant must satisfy a range of criteria set out in the regulations.  One of those is Public Interest Criteria 4020 which as I explained we abbreviate to PIC 4020, which states that to satisfy this criterion there is no evidence before the Minister, or in this case the Tribunal, the applicant has given, or caused to be given, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa.

6. In your case the delegate found that in support of your application you provided evidence that created a breach of PIC 4020.  Reading from your decision, which notes that you applied for the application on 25 August 2018, claiming to have been employed with Jerome Mobile Engineers from 16 January 2017 until 11 March 2018 in your nominated occupation of Motor Mechanic (General) with the ANZSCO code of 321209. 

7. You provided a range of documents to substantiate your claims, including an employment reference stating that you were employed full-time 76 hours a fortnight from 16 January 17 until 11 March 18; payment summaries, payslips, a Form 80 personal particulars form dated 25 August 18 which declared you were employed during the dates mentioned; a TRA Job Ready Program skills assessment, which confirms the dates that you have stated; various superannuation documents; an ATO assessment, an employment reference, a settlement statement from your employer detailing your last payment date, and the ‘Letter of Offer’ dated 9 January 2017 with the terms and conditions of your employment outlined by yourself and your employer.

8. The decision goes on to state that on Wednesday 11 September 2019 investigators from the Australian Border Force, (ABF) and the Australian Federal Police, (AFP) executed Crimes Act 1914 search warrants at the business premises of Jerome Mobile Engineers and Christy Motors located at 4 Paul Court, Dandenong, Victoria.

9. Investigators uncovered information indicating that you may have entered into a payment scheme with the owner of the business to secure skills recognition under the Job Ready Program and work experience documentation.  The information indicates that you may have made cash payments to a Mr Fernandez who is the owner of the business, Mr Godfrey Fernandez, which is then paid back to you as wages to provide the appearance of being employed by the business when it is believed you were not working there as claimed.

10. It goes on to talk about the fact that earlier surveillance activities conducted by investigators on 8 August 2019 and 9 September 2019 showed minimal customer traffic entering the mechanic workshop.  On 9 September 2019 the front gates remained closed until midday.  On 11 September 2019 during warrant activity upon entry to the premises, officers observed dusty cars, an unkempt workshop.  There were no workers appearing during operating hours to commence work.  ABF officers observed the hoists were not operational and the indications were that the mechanic shop had not been functioning for some time.  CCTV footage seized also showed the five hoists were not being utilised for mechanic purposes.

11. While ABF investigators were conducting their investigation, a person approached the business and was questioned on why he was attending the premises.  He initially advised he was attending to make superannuation payments.  He was found to have an amount of cash on him.  The person eventually admitted he was attending the premises because he had a payment arrangement with the business owner that in return for monthly payments he would be provided with evidence of employment experience for his points-based skilled migration application and he was there to make his monthly payment. 

12. The person then attended the offices of the ABF and made a statement that outlined the details visa agreement.  Those details are as follows:  $6,000 in cash was to be paid in advance in return for which evidence would be provided for a 12-month period of employment.  It goes on to say the person claiming employment was required to pay their own fortnightly wage of approximately $1,900.  Tax and superannuation would be deducted, and the amount paid into the claimed employee's bank account as wages would be $1,250.  It went on and makes some other points. 

13. The decision went on to state:

    On the basis of the above information provided on 11 September it has been confirmed that the employer was/is running a payment for visa arrangement on the premises of 4 Paul Court, Dandenong, Victoria, where claimed employees of Jerome Mobile Engineers and Christy Motors pay for their false employment claims.  These documents are then used to obtain a skilled assessment for their nominated occupation of Motor Mechanic (General), ANZSCO code 321211, and in some applications claim points for Australian employment.

    Documentation pertaining to the payment for visa arrangements was also seized by the investigators at the time of their site visit.  Included in this documentation was a copy of a document with your name on top with the words "Job Ready".  Underneath there is a listing of six payments: two of $2,000 and four of $500.  Accompanying notes state "Godfrey taken, paid to the office, paid to Godfrey, paid through bank account, paid at office, paid at office."  The word "Clear" is written across the document.  These amounts total $6,000 which support the earlier statement that visa applicants pay $6,000 in return for which they were provided with evidence of 12 months employment experience. Also seized was the last page of your employment offer being between yourself and Godfrey Fernandez.

    The information above raised serious concerns regarding your employment claims with Jerome Mobile Engineers ingenuousness of the documents you have provided in support of your employment claims.  An opportunity to comment on this adverse information was provided to you by email to your authorised email address on 20 December 2019 and you were provided 28 days to provide a response.  By way of response, on 16 January 2020 you provided a Form 956 “Advice by a migration agent/exempt person of providing migration assistance, appointing Aila Rose Melasecca as your migration agent.  Also included in your response was a letter dated 15 January 2020 from your newly appointed migration agent requesting an extension of time to provide a response due to the office closure over the Christmas New Year holiday period.

    I have considered your request for further time to provide the documents requested and determined that there exist insufficient grounds on which to approve an extension.  As you have not provided any other response to the opportunity to comment I find there is no evidence provided that the outcome of the Department's investigations were incorrect.  You have not provided sufficient evidence to address my concerns that you may have been paying your own wages in order to procure a skills assessment through the Job Ready program and work experience documents for your visa application. 

    Your employment with Jerome Mobile Engineers is in a ’material particular’ as it is relevant to your Skilled Independent Subclass 190 application in which you seek to be awarded points to meet the points test requirements for this visa as per regulation 190.214.  Based on the evidence before me I find that you have given information that is false or misleading in a material particular.  I am not satisfied that you meet Public Interest Criteria 4020(1).

    No claims have been submitted that indicate you are seeking a waiver of any or all of PIC 4020.  However, I have taken into consideration the information provided by you in support of your application, the length of time you have resided in Australia, your history of visa compliance and ties to Australia. 

14. The delegate found that there were no exceptional circumstances.  You did not meet PIC 4021 or 4024, and therefore you did not meet regulation 190.214, and on that basis refused your visa application.  You appealed that decision to be reviewed by this Tribunal, and with your application you included a copy of that primary decision.

15. As I said to you the role of the Tribunal is to take a fresh look at your application and consider whether you are eligible for the grant of a Subclass 190 Skilled Nominated visa. In considering whether you satisfy clause 190.216 there are two steps in the process.  Firstly, the Tribunal must consider whether you have provided evidence that has created a breach of PIC 4020 and if satisfied that such a breach has occurred it must consider whether the requirements to meet PIC 4020 should be waived.  The requirement can be waived if there are compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, permanent resident or an eligible New Zealand citizen which justify the granting of a visa.  As I said in your case in support of your application you provided a range of documents, including employment documents.

16. Subsequent to being invited to attend today’s hearing your migration agent provided a substantial submission that went through a large number of legal issues, including the need for the Tribunal to provide natural justice, to avoid making jurisdictional error, and it went into significant detail about her views on Public Interest Criteria 4020 and made the point she believed that PIC 4020 was not applicable in this case, because the employment that you had claimed was genuine, therefore 4020 is not applicable.

17. The submission went through the range of issues including the precedent case of Trivedi which raised the requirement for there to be an element of fraud or deception to attract the operation of PIC 4020, and it raised concern that the Department had made the decision based heavily on information provided by Mr Fernandez and Jerome Mobile Engineers and Christy Motors and failed to give due consideration to the submissions of the applicant.  It also provided substantial bank documents, and it provided printouts of at least three of your bank accounts, noting that while you worked with JME you also worked on a part-time basis with 7-Eleven as a check-out service provider, and held casual employment with Uber Eats as a food delivery driver.

18. It talks about the fact that you lived in Pascoe Vale, but worked in the premises of JME in Dandenong which it is stated took about 40 minutes to drive and when the traffic was heavy it said up to an hour and 30 minutes.  It also made the point that there were times when you chose to travel on roads which did not have tolls which meant that you used Springvale Road which is a notorious high traffic route.

19. There were as I say a number of bank documents provided.  It also included your claimed living expenses. 

20. Regarding the $6,000 payment it was claimed that in order to be employed it was a pre-employment requirement to purchase tools and equipment from Mr Godfrey Fernandez, and so it was claimed that these repayments were repayments for the tools, rather than the claim that it was what he charged people to enter into this arrangement whereby he provided evidence of their employment for the purposes of gaining points for gaining a visa.

21. In the decision record it refers to an individual spoken to at the premises. In your agent's submission and indeed in your statutory declaration you state that the person involved was someone called Harmanpreet Singh and in your agent's submission it said it should be noted that what happened on the day of the raid Mr Singh was questioned by Border Force and said he was making payments for the purpose of his skilled visa application, but not in fact working there.  The statement goes on to say in this regard:

    It should be noted the following day he retracted his original statement made to Border Force on the basis that he was nervous and frightened upon being questioned by them.  In this regard we kindly ask you to refer to the stat dec sworn by Mr Singh on 12 September, being one day after the raid taking place.  It's also the applicant's understanding that Mr Singh's English set is dismissal.  No interpreter was afforded to him during the interview, he simply answered "Yes" to questions being presented by the Border Force.

22. It goes on then to quote the Evidence Act as to why he had a lack of competency to answer questions, and then it says:

    It shouldn't be given any significant weight; he was totally confused and under duress.  The applicant states he does not know Mr Singh, having only passed him a few times throughout his employment.  It's further instructed by the applicant that Mr Singh has now obtained legal advice and again affirmed his initial statement provided to the Border Force on the advice of his representatives in order to remain in Australia.

23. So, it says:

    It is respectfully submitted Mr Singh is not a reliable and credible witness based on his conduct of withdrawing and then reaffirming his statements and stat dec.  He has also allegedly withdrawn his own skilled application and has now applied for a student visa.

24. It goes on to talk about the alleged JME bank statements.

    No inference should be drawn from any statements that don't belong to the applicant given the circumstances whereby Mr Fernandez or JME is not a party to the visa in question and his and their bank statements do not need to be assessed for the purpose of the grant of a visa.

25. There are other elements of that submission that we discussed, particularly with regard to PIC 4020.

26. I comment that regarding the comments about the gentleman that was interviewed at the time of the raid by the ABF you claim was a Mr Harmanpreet Singh, his circumstances are certainly unusual given the withdrawal and subsequent reinstatement of his initial statement to the Department. 

27. In question as to whether the applicant knew this fellow, Harmanpreet Singh, there are a number of things that concern me.  Firstly, in Mr Khaliq's statutory declaration dated December 2020 he says, "I do not know Mr Singh personally.  However, I worked at JME at the same time he did."  He says that there were seven or eight guys working there as motor mechanics.  I find it very difficult to accept that someone working full-time as a motor mechanic with a group of other motor mechanics would not know one another by name or by sight.  However, that is his claim. 

28. When I put to him that these arrangements were apparently made by Harmanpreet Singh were that he worked for this JME through this Godfrey Fernandez fellow for a period of 12 months.  The raid was carried out on 11 September 2019 which was when this Harmanpreet Singh made his statement apparently.  So, if he was at the end of his employment there, he would have started there 12 months earlier which would have been September 2018.  You finished work there in March 2018, which was therefore six months before he would have started.  When I asked you how that could possibly be the case you said, "No, we never worked at the employer at the same time."  When I said to you that conflicted with what you had sworn in your stat dec in which you said you both worked there at the same time, you replied:  "I might have, I'm not sure." 

29. Your confusion leads me to have some real issues with your credibility, because I believe this issue of whether or not Harmanpreet Singh might have been telling the truth, if it were able to be validated, would be an important point. 

30. When I first asked you about your response to the primary decision you said, "Well, I worked there, customers were coming, everything was normal.  It was after I stopped working there that the Department contacted me, I don't know why, I was shocked."  At that time you referred to the statement of Harmanpreet Singh who you said, "He wasn't there when I was there. There were six or seven guys worked there. I did work there, everything was done by the book, and if this decision is being made on the piece of paper it's the wrong decision." 

31. The piece of paper you are referring to is the piece of paper the Department say they found in the file with your name on it that referred to ‘Job Ready’ and your agent says it was part of Job Ready, but it was a receipt or an indication that you had paid off tools and equipment, rather than anything else that might have been suggested.  There are a number of things that concern me.

32. I should also say with regards to Harmanpreet Singh your comments that he has withdrawn his visa application, he has now applied for a student visa, he has got a representative, you claim you know the reason why he is doing what he is doing, I give no weight to those comments because they are not substantiated, and I have nothing to indicate that they are right or wrong.

33. There are a couple of things that concern me greatly.  The first one is, and we went through it in some detail, is that while you were working full-time as a mechanic, you make no bones about the fact that you worked part-time for 7-Eleven and for Uber Eats.  Uber Eats is a business that I have fair knowledge of, and you agreed with me that Uber Eats drivers generally get paid somewhere between $6 and $10 per delivery, and you made the point that there are times when they have specials, whatever special is on where you might get paid up to $15 per delivery. 

34. However, your bank statements provided for the period November 2017 to March 2018 showed that you were being paid your full payment fortnightly by your employer as a mechanic. In your statutory declaration you said you normally worked as a mechanic Monday to Friday 9 until 4.30 and on Saturdays from 11 until 2.  So that is a full-time job, particularly given that your commute to and from work took between 40 minutes and an hour and a half each way. So you would have had to leave home presumably before 8 o'clock in the morning and not get home until after 6 o'clock at night. 

1. Your bank statements show that during that time you received weekly payments from Uber Eats, and the weekly payments for the period 27 November to 6 March were, $652, $400, $380, $410, $618, $306, $853, $802, $364, $588, $700.

2. So, you were being paid somewhere between $400 and $750 per week as an Uber Eats driver, and if we said that on average you received $10 per delivery that means that you were delivering somewhere between 40 and 75 meals per week.  I have great difficulty in working out how that would be possible given the hours you worked, and also given your statement that at the same time you were also working at 7-Eleven.  I hear your agent who says, "In his culture working hard is the norm", and I accept that may well be the case however the simple arithmetic leads me to find it almost impossible to believe that that amount of money could be earnt in the available hours. 

3. The other thing that concerns me greatly, as I have said to you, is that once again looking at the bank statements they show a pattern that went on for months and months where you would put a substantial sum of money into your bank account exactly two days before you were paid. For example, $950 deposited on 15 March, you were paid on the 16th.  $1,000 on 28 March, you were paid on the 30th.  $930 on 11 April, paid on the 13th.  $1,310 on the 25th, you were paid on the 27th.  $410 on the 9th, you were paid on the 11th. $1,000on the 23rd, you were paid the 25th.  $1,000 on the 19th, you were paid on the 22nd, and on and on it goes.  And so, there was a pattern of cash payments into your bank account two days before your wages were due. 

4. When I put this to you and say this seems to indicate that you were making payments that might validate the claim that you were paying your own wages, you say, "Well, I simply took cash out as required; I had no thought to the fact that it was two days before.  I normally keep one to two thousand dollars in my pocket or my wallet all the time, and this was just taking cash out, and I didn't recognise that it was a couple of days before I got paid."  The Tribunal finds it implausible that it was coincidental that these funds were consistently withdrawn exactly two days before you were paid your wages.

5. We went through the concept of the waiver of PIC 4020, should the Tribunal find that you have been in breach of PIC 4020.  And when asked whether there were any circumstances that you believe would lead to a waiver, your agent told the Tribunal it was a matter you had discussed.  And when I asked you whether you believed there were circumstances that may lead to a waiver, your answer was that you did not believe that PIC 4020 was relevant because you had not provided evidence that was false or misleading. 

6. Mr Khaliq, from the evidence available and what you have told me today, I have reasonable grounds for suspicion that the evidence that you have provided in support of your application in the form of payslips, bank statements and employment agreements are false and misleading in a material particular in that they are documents that were provided for the purpose of being granted a skills assessment.

7. The Tribunal therefore finds you do not satisfy PIC 4020(1).  Given your response, the Tribunal further finds that you do not satisfy PIC 4020(4).  It is therefore the decision of the Tribunal that as you do not satisfy PIC4020 and therefore do not satisfy clause 190.216 and it is therefore the decision of this Tribunal to affirm the decision under review, which means the primary decision to refuse your application stands. 

   DECISION

8. The Tribunal affirms the decision under review.

   Tim Connellan
   Member