Kim (Migration)

[2020] AATA 208

Kim (Migration) [2020] AATA 208 (28 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Taekyun Kim
Ms Seonyeong Lee
Mr Juwon Kim

CASE NUMBER:  1825098

DIBP REFERENCE(S):  BCC2017/1647249

MEMBER:Phoebe Dunn

DATE:28 January 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 (Temporary Work (Skilled)) visa:

·Public Interest Criterion 4020 for the purposes of cl.457.224(1) of Schedule 2 to the Regulations.

Statement made on 28 January 2020 at 9:31am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – false or misleading information – bogus document – job reference – former employer provided reference, then was uncooperative to department and applicant – employer’s fear of authorities over employment and tax irregularities – casual work, no contract or other documentation and cash payments widespread in sector – letter of recommendation and oral evidence from former colleague – work history in Australia – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cll 457.223(4)(da), 457.224(1), Schedule 4, criterion 4020(1)

CASES

Arora v MIBP [2016] FCAFC 35

Batra v MIAC [2013] FCA 274

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 Immigration on 8 August 2018 to refuse to grant the applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 8 May 2017. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl.457.224(1) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant had provided information that was false and misleading in a material particular in order to demonstrate the requirements of cl.457.223(4)(da): that the applicant had the necessary skills, qualifications and employment background that the Minister considers necessary to perform the task of the nominated application. As such, the delegate found that the applicant did not meet Public Interest Criterion (PIC) 4020(1), and accordingly that cl.457.224(1) was not met.

3. The applicants appeared before the Tribunal on 16 January 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Lee Hyo Seob and Park Byoungdal by telephone to Korea. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

4. The applicants were represented in relation to the review up to the date of the hearing by their registered migration agent, Mr Faisal Bakhtiar.  Mr Bakhtiar did not attend the hearing, advising the Tribunal by email dated 28 December 2019 that the applicants had instructed that his attendance was not required by them at the hearing and that his involvement in the matter had concluded.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this review is whether the visa applicant meets PIC 4020 as required by cl.457.224(1) for the grant of the visa. Broadly speaking, this requires that:

   ·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and

   ·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting three years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and

   ·the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and

   ·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA).

7. The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.

   Departmental History

8. At first instance, the delegate found that there was evidence that the first named applicant, Mr Taekyun Kim, had provided, or caused to be provided false or misleading information in relation to his visa application.  This evidence in question related to a work reference purported to be signed by Mr Kim’s former employer, Mr Youngik Cho, the CEO of ‘ICHO Design’ dated 2 May 2017, containing information about his period of employment, which the delegate considered to have been non-genuine in nature.  The concerns were based on checks conducted by the Department’s overseas post into the work reference, which concluded that the work reference was ‘non-genuine’ [DIPB file, folio 94].

9. The Department issued a natural justice letter on 20 June 2018 inviting comment on the Department’s suspicion that the information was not genuine, or to provide a statement addressing any compelling or compassionate grounds that would justify waiving the requirements of PIC 4020 [DIPB file, folio 92-95].  The natural justice letter focused on three issues:

   a.the employment reference was issued by ‘ICHO Design’, whereas the name of the business is actually ‘IJO Design’;

   b.the stated period of employment from June 2005 to October 2010 could not be corroborated; and

   c.the employment reference was not issued by Mr Cho.

10. In response the applicant provided additional information to the Department, including:

    a.A submission dated 16 July 2018 addressing the Department’s letter [DIPB file, folio 99-100]

    b.A reference letter dated 7 October 2018 from Mr HyoSob Lee, stated to be a former co-worker of  the applicant [DIPB file, folio 98];

    c.A Certificate of Current Employment dated 10 July 2018 in relation to HyoSob Lee for Daegu Opera House, Korea, confirming his employment from 1 October 2015 to the date of the letter as Stage Manager [DIPB file, folio 103];  and

    d.A reference letter from the Mr Dong Ji Kim, Senior Pastor of the Melbourne Seasoon Presbyterian Church dated 12 July 2018, attesting to the contribution made by the first named applicant and his family to the church since their arrival in Australia, and the contribution they will make to the community in Melbourne [DIPB file, folio 101].

11. No evidence was submitted to address the waiver provisions of PIC 4020.

12. The submission addressed the issue raised by the Department regarding the name of the applicant’s former employer (IJO Design, not ICHO Design), noting that it was a translation error.  This explanation was accepted by the Department.

13. The submission also addressed the concerns regarding the stated period of employment and whether the reference letter had in fact been signed by the CEO, Mr Cho. It was submitted that Mr Cho had received the phone call from the Embassy at a busy time and was unsettled, nervous and confused by the call. It was further submitted that during the phone call Mr Cho had confirmed the applicant did work for him as a carpenter, and that ‘this should attract considerable weight in the decision’ [DIPB file, folio 99].

14. The Department determined that notwithstanding this information, the applicant had failed to provided independently verifiable evidence of his former employment in Korea with IJO Design, such as payslips or tax returns, and that some of the information provided by the applicant relating to his period of employment was inconsistent.  Accordingly, the delegate was not satisfied that the applicant met the requirements of PIC 4020(1), and found that there were no grounds for waiving the requirements under PIC 4020(4).

15. The Tribunal notes that the Department’s decision record refers to ‘two reference letters from HyoSob Lee for IJO Design’, which the Department stated contained inconsistent information about the applicants period of employment with IJO Design.  On review, the Tribunal has determined that one of these letters is a reference letter (as referenced in paragraph 10(b)), whereas the other document is a ‘Certificate of Employment for Mr HyoSob Lee’ (as referenced in paragraph 10(c)), presumably to demonstrate the referee’s current employment in a similar role as evidence of the genuine nature of the reference. It is further noted that the Department apparently erroneously indicated that this amounted to the applicant providing inconsistent information regarding his period of employment with IJO Design. The Tribunal does not accept that this constitutes inconsistent information about the applicant’s period of employment with IJO Design, as it relates to the referee’s employment with another employer.

    Evidence at hearing

16. The applicants submitted a document to the Tribunal on the morning of the hearing, translated from Korean into English.  This document was a statement from Mr Youngik Cho, the applicant’s former employer, dated 8 January 2020, stating that ‘I will not any longer involve myself in the matters about certification of the contents of the documents connected with the visa application’ of the applicant [Tribunal file, folio 36-37].

    Evidence of the first named applicant at the hearing

17. At the hearing, the first named applicant outlined his understanding of the reason the Department refused the visa application, noting that the issues had shifted from those raised in the natural justice letter.  The first named applicant raised the issue regarding the Department’s erroneous treatment of the ‘Certificate of Employment of Mr HyoSob Lee’.  The Tribunal noted that the Tribunal had identified this error and that it would not be placing any weight on this issue in making a decision.

18. The first named applicant gave some background to the current situation. He stated that he started working for IJO Design in June 2005 on casual basis, which was very common in that area at that time, and is still largely the same.  He stated that most Korean carpenters work on a casual basis and do not get any employment benefits or insurances.  He stated that there was never any contract or other paperwork that could demonstrate his employment.  He stated that he received his wages in cash, and that this was common practice in that industry in Korea. 

19. The first named applicant stated that because he did not have any documentation demonstrating his work with IJO Design he needed to get a work reference from Mr Cho, his former boss, to attest to his period of employment and his skills as a carpenter.  He stated that he had sought assistance from his former employer to give the work reference to him, which he was initially happy to do.  He stated that his former employer wrote the reference and gave it to his former work colleague and friend, who scanned it and transmitted it to him by email. He stated that since that time, Mr Cho has not been cooperative, and he has not been able to reach him to seek further assistance as he will not return his calls. He stated that this is why he has to rely on the evidence from former colleagues and other witnesses.

20. The Tribunal raised with the first named applicant the statement received by the Tribunal from his former employer referenced in paragraph 16. In response, the first named applicant stated that he had been trying to reach Mr Cho, and made numerous efforts to talk to him directly, but that he hadn’t responded positively or at all. He stated that this was the reason he sought assistance from his friend and former colleague, Mr Lee, who was a freelancer subcontracted to work on stage design with him when he was a stage carpenter at IJO Design. He stated that he believed that Mr Cho didn’t want to be involved because he was concerned it could lead to taxation and financial problems with the Korean authorities, and he did not want to have to pay backdated taxes or fines. 

21. The first named applicant stated that he had worked for Mr Cho for over 10 years, and was a very diligent worker.  He stated that there were two to three others who assisted on projects some of the time, but that he was the only full-time worker.  He stated that he and Mr Cho worked together most of the time, and he would often work over 50 hours per week, from 8.00am to 5.00pm, and sometimes much later particularly if there were performances scheduled and he had to do set installations throughout the performances.  He stated that he had been paid mostly in cash and that there was no record of this.  He stated that from time to time, Mr Cho would make a bank remittance, but this was very infrequent.  He stated that he has tried to get evidence of this from his former bank, but because it is so long ago he is not able to get these records and he did not keep any bank documentation from that period.

22. The Tribunal inquired as to whether there was any independently verifiable evidence to demonstrate he worked for IJO Design for the period stated. The first named applicant stated that unfortunately there is none, and that is why he is relying heavily on the work reference from Mr Cho, and the written and oral evidence from his two witnesses. He stated that he felt very worried because he needed to rely on Mr Cho’s ‘courtesy’, and he is not being cooperative because he does not want to pay backdated tax and other fines and there is no supporting documentation to prove his employment.

23. The first named applicant stated that he first met Mr HyoSob Lee in 2004 when they were both freelancing in stage carpentry and design.  In 2005, he started working full-time for IJO Design, whereas Mr Lee continued to freelance. He stated that Mr Lee was subcontracted by IJO to assist with stage design and carpentry on a regular basis and they would work together in that context.  He stated that at that time Mr Lee could not decide whether he wanted to focus his time on being a carpenter or a designer.  Since then he has established himself as a stage manager responsible for sets and a stage director and has a very good reputation in that area.  He stated that Mr Lee is now working for the Daegu Opera House in Korea as a stage director. He stated that the letter of recommendation from Mr Lee attests to his skills and experience as a specialist carpenter for stage settings and provides independent evidence of the fact that he worked at IJO Design for the period stated. 

24. The first named applicant noted that in Korea there is a difference in cultural convention relating to reference letters.  He stated that in Korea they write letters of recommendation, not employment references, and that the concept of a reference letter is not well known. He stated that in Korea reference letters are written by university professors to assist graduating students to get employment.  He stated that they are not used for general employment purposes.  

25. The first named applicant stated he met Mr Byoungdal Park in 2005 when he first started working for IJO Design. Mr Park was a stage director at the Opera House who commissioned IJO Design to build the sets for his productions. In 2007, Mr Park moved to the Kyeoimyeong Art Centre and continued to commission IJO Design to build his sets. He stated that it was his understanding that Mr Park commissioned IJO Design to build his sets before he started working there.  He stated that he had a working relationship with Mr Park the whole time he worked for IJO Design, and that he could attest to his employment with IJO Design and his capabilities as a carpenter specialising in building stages and sets.

26. The first named applicant stated that he arrived in Australia on 25 October 2011, initially as a dependent spouse on his wife’s student visa. In 2012, he obtained a student visa and studied fabrication at the Baxter Institute on weekends until early 2017. During the week, he was working in various casual positions, including as a floor sander and carpenter, within his visa conditions, which do not permit him to undertake full-time work.  The first named applicant stated that he was nominated by Maschler Homes on a Subclass 457 visa to work in the nominated position of carpenter, but is not currently working there while the review outcome is pending.

27. The first named applicant stated that he has never fabricated or manufactured any documents or material.  He stated that he understands that the Department’s decision makes him look like that.  He stated that he was relying heavily on Mr Cho’s evidence, and that he is now being uncooperative.

28. The Tribunal asked the first named applicant for his understanding of what happened when the Australian embassy contacted Mr Cho. In response, he stated that he understands roughly what happened, through the account given by Mr Lee who still has a working relationship with Mr Cho.  He stated that it is his understanding that the Australian embassy in Korea rang Mr Cho when he was very busy and asked a series of questions such as: ‘Did you write the reference letter yourself?; Did you sign it yourself?;  How long did he work for you?, and other such questions.  He understands that Mr Cho became nervous and evasive, because he was concerned about what the Korean authorities might do because he always paid him in cash and there was no formal employment arrangement.  He said he understood that while Mr Cho confirmed he did work for him, he said he couldn’t recall if he had written the reference and said that it was not his signature.  He stated that when the Department asked him to respond to the allegations that the work reference was fake, he tried to call Mr Cho, but he would not take his calls, and that is why Mr Lee became the messenger between him and Mr Cho. He stated that Mr Lee told him that Mr Cho does not want to be involved because he is fearful of what the Korean authorities will do.

29. The Tribunal noted that the applicants had not made any submissions regarding the waiver provisions and asked the first named applicant whether he wished to raise any evidence regarding the waiver provisions.  In doing so, the Tribunal outlined at length the substance of the waiver provisions and noted that the Tribunal had not yet made up its mind as to whether or not the requirements of PIC 4020(1) were met.  In response, the first named applicant stated that he did not believe that either of the bases for seeking a waiver applied to him or his family, noting that all of his extended family and his wife’s extended family reside in Korea.  He stated that he and his wife got married in June 2011 and planned to move to Australia and build a life here, arriving in October 2011. They now have a young son who does not know any other country.  His son is looking forward to starting school this year and has been accepted into the local catholic primary school. He stated that due to the work restrictions on his visa he has had to stretch himself financially and it has not always been easy.  He stated that even though life in Australia is not affluent or comfortable for them they are happy here and hope their son can grow up in an Australian environment. 

1. The Tribunal noted the letter from Mr Dong Ji Kim, Senior Pastor of the Melbourne Seasoon Presbyterian Church dated 12 July 2018, attesting to the contribution made by the first named applicant and his family to the church since their arrival in Australia, and the contribution they will make to the community in Melbourne.

   Evidence of the second named applicant

2. The second named applicant stated that they first came to Australia on her student visa, and she studied English for five months.  She stated that before she had her son she worked on a casual basis in various roles such as housekeeping, in restaurants and packing meat at a butcher. 

3. The second named applicant stated that she met her husband approximately two years before they got married in Korea.  At the time she met him he was working for Mr Cho at IJO Design.  When they decided to get married, she introduced him to her parents who were not very happy with his profession, as carpenters are not highly regarded in Korea. She stated that he started working in the computer industry in 2011, before they came to Australia, and that is why he stopped working for IJO Design.  She stated that as far as she was aware he had worked as a carpenter for IJO Design for over 10 years.

4. The Tribunal explained to the second named applicant that the issue before the Tribunal is whether there is any evidence that her husband provided false or misleading information at the time of the visa application, and if so, whether there are any grounds for waiving the requirements of PIC 4020. In response, she stated that her husband had been a carpenter for a very long time, and that this is the truth even though her parents were not happy about this.  She stated that her husband is an honest and sincere man and that she hopes that the Tribunal can see that.  She stated that he is very skilled in carpentry and sanding and will make a very valuable contribution to Australian society.  She stated that she and her husband are very happy here and that she prays every day that they can make Australia their home.

   Evidence of Mr HyoSob Lee

5. Mr Lee attended the hearing by telephone from Korea, with the assistance of the interpreter.

6. Mr Lee stated that he has known the first named applicant for over 15 years, having first met him in approximately 2004 when they were both freelancing in stage carpentry and design.  Mr Lee stated that he was subcontracted to IJO Design from time to time and met Mr Cho before he met Mr Kim.  He stated that once Mr Kim started working full-time with Mr Cho, he would work alongside Mr Kim when he was subcontracted by Mr Cho.  Mr Cho stated that Mr Kim worked for Mr Cho from 2005 until 2010 as a stage carpenter, and that he was very good at his job. 

7. Mr Lee stated that it was his understanding that Mr Cho had become uncooperative because he was worried about the Korean authorities backdating his tax and fining him, or worse.  Mr Lee stated that in those days carpenters were paid in cash so employers could avoid paying tax and taking out insurances.  He stated that it has been that way in that industry for a very long time. He stated that ever since he has been working for a major government institution he now has a contract and is paid formally, but when he was freelancing and subcontracting it was a very different story.  He confirmed that he was never asked to sign anything, and that they were paid in cash for each day they worked. 

8. Mr Lee confirmed that Mr Kim worked for Mr Cho full-time and that his working days would vary depending on whether it was the busy season or the shoulder season. In the busy season they would work seven days per week for months.  In the shoulder season, it might be three to four days per week.

9. Mr Lee confirmed that he assisted Mr Kim to get the work reference from Mr Cho.  Mr Lee stated that he agreed to be a witness for Mr Kim because he had first-hand knowledge of Mr Kim’s employment with Mr Cho and could assist to confirm that he had worked there and attest to his skills as a carpenter.

10. Mr Lee provided his account of the process of obtaining the reference letter from Mr Cho. Mr Lee stated that he went in person to get the reference from Mr Cho for Mr Kim.  He stated that he recalls that they discussed what to put in the reference letter, that Mr Cho then typed it and signed it in front of him.  Mr Lee then stated that he scanned the letter and emailed it to Mr Kim.

11. Mr Lee provided his account of the phone call from the Australian embassy to Mr Cho.  He stated that Mr Cho told him about the phone call and that he was nervous about what might eventuate.  Mr Lee stated that Mr Cho got advice from a lawyer who told him not to provide any further evidence as it might lead to trouble with the Korean authorities, as he would not have declared any cash payments to Mr Kim.  Mr Lee stated that that Mr Cho has told him that was the reason he did not want to be involved anymore.

12. The Tribunal asked Mr Lee if he believed the letter from Mr Cho to be genuine. Mr Lee stated that everything in the reference letter was true and correct and that he could attest to Mr Kim working with Mr Cho for the period stated in the letter.  Mr Lee added that unfortunately because of the nature of the industry in Korea it is very hard to produce records.  It is a cash industry and many other companies who worked in the industry no longer exist; it is the nature of the industry. Mr Lee stated that he hoped the Australian authorities can understand the situation, and accept the evidence provided by Mr Kim as genuine.

    Evidence of Mr Byoungdal Park

13. Mr Park appeared before the Tribunal by telephone from Korea with the assistance of the Korean interpreter.

14. Mr Park stated that he was appearing before the Tribunal to be a witness for Mr Kim to attest to his employment with IJO Design and to his skills as a carpenter.  Mr Park stated that he first met Mr Kim when he started working for IJO Design in approximately 2005.  At that time, Mr Park was technical director at the Opera House and engaged IJO Deisgn as a subcontractor to build stages and sets for the Opera House. Mr Park stated that Mr Kim was the main carpenter who would work on building the stages and sets.

15. Mr Park stated that in 2007 he got a new job working for the Kyeoimyeong Art Centre, where he continued to commission IJO Design to design and build sets and stages.  Mr Park stated that Mr Kim continued to be the main carpenter undertaking this work for them.

16. The Tribunal asked Mr Park if he knew how Mr Kim was paid or whether there was any contract or paperwork for his employment. Mr Park stated that he was not aware of this, and that this was not relevant to him – he commissioned IJO Design and Mr Kim would perform the work. Mr Park added that in his experience the industry was unregulated until recently, when a formal system was introduced about three years ago requiring businesses to take out insurance and other such matters. He stated that before then, it operated on a casual basis and as far as he was aware, people were paid in cash. He stated that most companies of that nature paid in cash because they wanted to evade tax.

17. Mr Park stated that in those days there were not many companies available to commission for this kind of work, and in that province, IJO Design was the only company working in this specialised area.  Mr Park stated that he saw Mr Kim working there for a long period of time, and that he had great skills, endurance and sincerity.  Mr Park stated that Mr Kim was a great worker, and an expert in that area, and that he could highly recommend him.

18. Mr Park stated that as far has he knew, Mr Cho didn’t know how important this matter was for Mr Kim, and thought it had become a hassle and could potentially lead to trouble with the authorities and that is why he gave the evasive and random answers to the Australian embassy. He stated that he believed Mr Cho didn’t understand how foreigners overseas work in these matters. He reiterated that he could highly recommend Mr Kim, adding that he believed he would make a great contribution to Australian society.

    Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in a material particular?

19. 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.

20. 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.

21. While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42.

22. The delegate found that PIC 4020(1) was engaged in the present case in connection with the Subclass 457 visa application made by the applicants because the first named applicant provided false and misleading information in a material particular as follows:

    a.the first named applicant provided inconsistent information relating to the first named applicant’s employment history with IJO Design;

    b.the first named applicant failed to provide independently verifiable evidence pertaining to the applicant’s claimed employment with IJO Design; and

    c.checks done by the Australian embassy in relation to a work reference claimed to be from the first named applicant’s employer led to a conclusion that it was non-genuine.

23. In relation to the issues raised in paragraph 51(a), for the reasons stated above, the Tribunal does not accept that the first named applicant provided inconsistent information relating to his employment history with IJO Design, and finds that this conclusion was based on an erroneous reading of the documentation submitted to the Department.  As such, the Tribunal finds that this does not constitute evidence of false or misleading information in a material particular.

24. In relation to the issues raised in paragraph 51(b), the Tribunal has taken extensive evidence from the applicants and other witnesses regarding the nature of the industry in which the first named applicant worked in Korea, and accepts the evidence and submissions that it was a cash based industry and that little to no records were kept at that time.  The Tribunal accepts that this makes the provision of independently verifiable evidence to the Tribunal to demonstrate Mr Kim’s work with IJO Design for the claimed period to be extremely difficult. The Tribunal accepts that the applicants’ are relying on the evidence of Mr Lee and Mr Park and the work reference claimed to be from Mr Cho to demonstrate his employment for the claimed period.

25. Mr Lee and Mr Park have both provided independent evidence of the first named applicant’s employment with Mr Cho for the claimed period.  The Tribunal finds that Mr Lee and Mr Park were credible witnesses and accepts their evidence as supporting the applicants’ claims regarding the first named applicant’s work history with Mr Cho at IJO Design and his competency and skill as a carpenter.

26. In relation to the issues raised in paragraph 51(c), the Tribunal has considered carefully the evidence given by the first named applicant and Mr Lee and Mr Park at the hearing and the written submissions of the applicant.  The Tribunal considers that the account of Mr Cho’s reluctance to be cooperative is plausible and genuine. The Tribunal attaches some weight to the fact that both Mr Lee and Mr Park have each given substantially similar evidence regarding the cash based nature of the industry and the likely basis for Mr Cho’s nervousness and responses when contacted by the Australian embassy, in particular relating to the potential implications if Korean authorities are alerted to the issue.  The Tribunal notes in particular the evidence given by Mr Lee regarding the provision of the original reference letter, and that he attested to Mr Cho signing the letter in front of him, as well as his subsequent conversation with Mr Cho in which Mr Cho spoke of his concerns regarding the Korean authorities and the legal advice he had been given.  The Tribunal notes that during the conversation with Australian embassy officials, Mr Cho did confirm the first named applicant’s employment with him. The Tribunal finds that the submissions made by the applicants to be plausible and the witnesses to be credible.

27. The Tribunal considers that, on the basis of the above and taking into account the evidence of the witnesses, on balance, the evidence supports a finding that the work reference provided by the first named applicant with the Subclass 457 visa application was genuine.  The Tribunal accepts the account of Mr Cho’s reluctance to cooperate with the first named applicant. The Tribunal finds that, on balance, the evidence before it does not support the Department’s finding that the applicants did not meet PIC 4020(1).

28. Accordingly, the Tribunal finds that there is no evidence before the Tribunal that the applicant has given, or caused to be given to be given to the Minister, an officer, the Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth information that is false or misleading in a material particular as defined in PIC 4020(5).

29. Therefore, the applicant meets PIC 4020(1).

    Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(1)?

30. PIC 4020(2) requires the Tribunal to be satisfied that the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing three years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2AA). 

31. There is no evidence before the Tribunal that the first named applicant or any member of the family unit have been refused a visa in the relevant period because of a failure to satisfy PIC 4020(1).

32. Therefore, PIC 4020(2) is met.

    Has the applicant satisfied the identity requirements?

33. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.

34. There is nothing to suggest the applicant’s identity is at issue. 

35. Therefore, the applicant meets PIC 4020(2A).

    Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?

36. PIC 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused.  This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2BA).

37. There is no evidence before the Tribunal to suggest that the first, second or third named applicants’ past visa applications were rejected on the basis of PIC 4040(2A).

38. Therefore PIC 4020(2B) is met.

39. On the basis of the above, the first named applicant does satisfy PIC 4020 for the purposes of cl.457.224(1).

40. As the second and third named applicants applied on the basis of being members of the family unit of the first named applicant, their applications should also be remitted to the Department and determined by reference to the first named applicant’s application on remittal to the Department.

    DECISION

41. The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 (Temporary Work (Skilled)) visa:

    ·Public Interest Criterion 4020 for the purposes of cl.457.224(1) of Schedule 2 to the Regulations.

    Phoebe Dunn
    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. 

    …