Koppula (Migration)

[2021] AATA 2595

Koppula (Migration) [2021] AATA 2595 (9 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yashasvi Koppula

CASE NUMBER:  1832027

HOME AFFAIRS REFERENCE(S):          BCC2017/3060255

MEMBER:Catherine Carney-Orsborn

DATE:9 June 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Skilled Independent (Permanent) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 189 - Skilled - Independent visa:

·Public Interest Criterion 4020 for the purposes of cl 189.215 of Schedule 2 to the Regulations

Statement made on 09 June 2021 at 12:15pm

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled Independent) – false or misleading information – employment history – website, phone number and address of employer – ‘amalgamation’ with another company – waiver of requirement – disregard for the integrity of the Migration System – two strong references from employers in Australia – applicant’s skills in high demand – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 189.215; Schedule 4, PIC 4020

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 18 October 2018 to refuse to grant the applicant a Skilled Independent (Permanent) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 24 August 2017. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 189.215 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied the applicant met Public Interest Criterion (PIC) 4020(1).

3. The applicant appeared before the Tribunal on 16 March 2021 to give evidence and present arguments. A further hearing was held on 26 May 2021.

4. The applicant was represented in relation to the review by his registered migration agent who attended the hearing.

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 Public Interest Criterion 4020 (PIC 4020) as required by cl 189.215 for the grant of the visa. Broadly speaking, this requires that:

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

   ·the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 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.

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

8. 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.

9. 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.

10. 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.

11. The applicant provided several documents to the Tribunal, many of which are already on the Tribunal or Department file.   Prior to the hearing the applicant provided further documents.  He provided a statement.  In that statement, amongst other things, he states that he worked with Moston Soft Systems from March 2012 to April 2014.  He states that he contacted Infogrid for an updated reference letter, to explain that there was no official takeover or amalgamation of Moston Soft Systems into Infogrid.  He states he did not work for Infogrid and that they have been reluctant to provide him with any official documentation for the hearing.  He states he has been unable to obtain any formal incorporation of documents for Moston Soft Systems or any of the evidence of the transfer of projects from Moston Soft Systems to Infogrid.

12. The applicant states that he has found his letter of appointment, letter of experience, notice of revised compensation, relieving letter, and payslips from January to March 2014 from Moston Soft Systems.  He claims to have located previous bank statements of his account showing deposits of his salary with Moston Soft.  He states he is contacting the bank for copies of his bank statements showing the deposit of salary from March 2012 to April 2014. He states that this is difficult.  He claims the account was created for him by Moston Soft Systems HR team for the purpose of salary deposit.  He claims this was the standard process for Moston Soft Systems. 

13. He went on to explain the discrepancies in his addresses.  He provided statements from two persons he claims he lived with in Bangalore.  He claims he had the address in Hyderabad in his application form as he considered that was his official address.  He described the building he worked in and stated that there were only 15 to 20 people working there at the time. 

14. He claims that in the past few weeks he found that the company Moston Soft Systems had been involved in unlawful activities and that the company name has been tarnished.  He claims that it started off as any start-up and that he was employed there. 

15. He claims he was given a positive skills assessment which was detailed in a letter from Infogrid and that was enough to warrant the grant of a positive skills assessment.  He states that he was worried about the company’s credentials at the time of lodging a visa as he was eligible on his work experience in Australia.  He further stated that the Department had been satisfied with the verification of Moston Soft Systems when he lodged his application for a student visa.

16. The applicant then went on to outline his current circumstances which go to his work in Australia.

17. He provided an undated letter which claims to be from Infogrid.  In that letter it is stated that the previous letter provided to the Department was misinterpreted as it stated that Moston Soft and Infogrid amalgamated, however, it was not a takeover of the company by amalgamation, but rather the remaining projects and clientele that Moston Soft had were taken over.  The letter stated that they had no records of staff from Moston Soft.  The letter states that the applicant was an employee of Moston Soft and had no ties with Infogrid.    This contrasts starkly with the letter dated 21 January 2017 which the applicant provided to the Department in response to the natural justice letter sent.

18. In that letter it is stated that the applicant was a permanent full-time employee with Infogrid in their Bangalore office in India.  The letter listed his duties.  The applicant in his statement claims that the skills assessment was provided on the basis of this reference, however, the latest letter he provided which he claims is from Infogrid states that he never was employed by them.

19. The applicant provided a document entitled “Letter of Appointment” dated 15 February 2012, further letters from Moston Soft Systems and payslips for March 2014.  He supplied A4 pages he claims are bank statements from 2012 showing his salary deposited into a bank account.  He supplied copies of what he claims is his personal bank account, a rental agreement, Form 80, skills assessment, and references.

20. The applicant provided submissions.  In the submissions it is stated that the applicant worked for Moston Soft Systems from March 2012 to March 2014.  He was issued with a positive skills assessment from the Australian Computer Society (ACS). As part of the process, he provided a reference letter from Infogrid which detailed that the company had amalgamated with Moston Soft and confirmed his previous employment with Moston Soft.   

21. The Tribunal has carefully considered those documents, submissions, and oral evidence.

22. A summary of the evidence at hearing is as follows.

23. The Tribunal explained the purpose of the hearing and the issues to be discussed. 

24. The applicant gave some background information.  He was born in India he came to Australia in 2014 on a student visa.  He has his parents and a sibling in India.

25. He has studied Master of Information and Technology and Systems at the University of Canberra.  He finished his degree in 2016.   Since that time, he has worked in customer service.  He is currently employed at Ampol Retail as a site manager.  The applicant provided references from his employers. 

26. The Tribunal went through the issues which gave rise to the Department’s finding. 

27. As set out in the Department’s decision, the applicant claimed he had been employed in his nominated occupation as a Developer Programmer.  He provided evidence of his relevant skills to the assessing authority Australian Computer Society (ACS).  He claimed he was employed from March 2012 to April 2014 as a Software Developer for MostonSoft Systems Pvt. Ltd in India.

28. The Department conducted an investigation and found that there was no direct website for the company, the phone number provided was unavailable, and that the address given for the company was found to be the same as another company: Lansys Technologies.  The employer was not able to be located and the applicant’s employment claims were unable to be verified.

29. The Department invited the applicant to comment on its concerns.  In response, the applicant provided a document advising that the company has ceased to exist and was amalgamated into Infogrid Solutions.  He provided a reference letter from Infogrid dated 21 January 2017.  The letter stated that the applicant was an employee of Infogrid.  The Department found that the same phone number was provided which it had previously tried to use earlier to verify the applicant’s employment.

30. The applicant responded that at the time he lodged his application for the visa the company was still in operation.  The Tribunal stated that it was confused about the different information supplied on the letters which are from Infogrid.  He responded that Infogrid had supplied him with information in which they stated they had amalgamated.  He stated that Infogrid was not the company he worked for.

31. He provided copies of bank accounts.  He stated one was his personal account and the other one set up by MostonSoft for his salary.

32. The Tribunal asked why his salary would not have been paid into his personal bank account.  He responded with words to the effect that there was some sort of agreement with a bank and MostonSoft that he open an account for his salary to be deposited into.

33. The applicant then spoke of his current employment, he works as a site manager for Ampol.  He stated that he has 16 employees.  He is worried they will lose their work if he leaves.  He felt that as some of them are over 60 it would be difficult for them to find work.

34. The applicant then described how he had assisted a local farmer who had a fruit stall near the Ampol station.  He provided a letter from the fruit farmer indicating the farmer was grateful for the assistance given to him by the applicant.

35. The Tribunal asked the applicant to explain the discrepancy in the letters he provided.  He stated that Moston Soft was just a start-up company, he said that when he worked there it was a property company.  The Tribunal asked him if he was saying that it was a company when he worked there.  He stated that it was.  He indicated again that he was aware that there had been problems with the companies and there were issues, however, when he worked there it was a start-up.

36. The Tribunal then put to the applicant pursuant to s359AA that it had conducted its own research.  The information before it was that Moston Soft was not registered as a company until August 2018.  This was well after he claims to have worked for the company.   The Tribunal put to the applicant for comment that the website at Infogrid is identical to other websites for various companies that list the same directors, headquarters and information. 

37. The Tribunal stated that it had attempted to contact Infogrid, however, no contacts responded or were able to be contacted.  The Tribunal pointed out that the website for Infogrid appears to be a false website.  The Tribunal stated that Infogrid’s current status is striken off. 

38. The Tribunal explained that the applicant could respond later and could speak to his representative who was present at the hearing.  The representative indicated that they would like an adjournment to discuss the applicant’s response.  The Tribunal granted the response.

39. After the adjournment the applicant stated that he would like further time to respond in writing to the Tribunal’s concerns.

40. The Tribunal agreed and gave two weeks for the response.

41. After the hearing the Tribunal sent to the applicant adverse information in the form of a s 359A letter and invited comment on that information.

42. The Tribunal is concerned with information provided by the applicant.  The applicant in response to the Department’s natural justice letter provided a letter.  In that response he stated that the company he used to work for had ceased to exist.  He stated it was amalgamated into Infogrid Solutions, the staff and infrastructure were moved there.  He further claimed that he had spoken to Infogrid people about his predicament and they were ready to support him with any other documentation that may be needed.

43. He provided a letter he claimed was a letter from Infogrid.  It had a letterhead and dated 21 January 2017 and signed by someone who identified themselves as the HR Manager.

44. The letter stated that the applicant was an employee of Moston Soft Systems Pvt Ltd which was now amalgamated with Infogrid Technologies Pvt. Ltd.  The letter stated, “Mr Koppula was a permanent full-time employee with us at our Bangalore office in India”. The letter then listed the applicant’s roles and gave a detailed job description of his role there. 

45. The letter went on to state “During his time with us Mr Koppula performed his duties exceptionally and was a valuable asset to our company.  Please don’t’ hesitate to contact us at ……for further information.”

46. The documents provided by the applicant to the Department in response to the natural justice letter clearly state that Moston Soft Systems was amalgamated with Infogrid Technologies and that the applicant was employed by Infogrid. 

47. The definition of “amalgamation” in the Oxford dictionary is “combine or unite to form one organization or structure.”

48. On 18 October 2018, the Department made a decision that the applicant did not meet the criteria in PIC 4020.  The Department’s decision set out its concerns and the investigations it had conducted into the applicant’s claimed previous employment.

49. The applicant lodged an application for review of the Department’s decision with the Tribunal on 31 October 2018.  A copy of the Department’s decision was lodged with the Tribunal. 

50. On 15 February 2019 the applicant was granted partial access to the Tribunal and Department file.  The information relating to tax file numbers was not disclosed to the applicant.

51. Prior to the hearing the applicant provided submissions as outlined above.  In those submissions he reiterated his claim that he had work experience with Moston Soft Systems from March 2012 to April 2014. 

52. In those submissions the applicant significantly changed his evidence and assertions. In a letter dated 12 March 2021, the applicant claimed that he contacted Infogrid and they explained that there was no official takeover or amalgamation of Moston Soft Systems into Infogrid.  The applicant stated that he did not work for Infogrid and that they are reluctant to provide any official documents to him. 

53. The applicant provided documents he claims support his claim to have worked at Moston Soft Systems.  He provided documents he claims are letter of appointment, letter of experience, notice of revised compensation, relieving letter, payslips, and previous bank statements.  He claims that a bank account was created for him by Moston Soft Systems HR team for the purpose of salary deposit and as he is in Australia it is difficult to obtain evidence.

54. The applicant provided submissions on his addresses in India as he had noted from the access to the Department’s file that the delegate had concerns regarding his address. This because the applicant on his application form gave an address in Hyderabad, however, he claimed he was employed in Bangalore.  He claimed he travelled to Hyderabad on weekends to visit his family and that was why he left his official address on his application forms as Hyderabad.  The Tribunal notes that the trip from Bangalore to Hyderabad is an 8-hour drive. The applicant provided statements from friends stating that he lived in Bangalore.  The Tribunal accepts he could have lived in Bangalore.

55. The applicant stated that during the past few weeks he found information that the company had been involved in unlawful activities and its registration cancelled over the past few years.  He claimed he was unable to obtain documentation and that he accepts that the company name has been tarnished. He goes on to say that the company was a start-up company when he performed his employment there. 

56. The Tribunal finds the applicant’s submission, after the Department’s decision and his access to the Department’s file, that he accepts the company Moston Soft Systems to be tarnished to be disingenuous and self-serving. 

57. The information on the Department’s investigations on the company was set out in the delegate’s decision, the applicant sought and was granted access to the Department’s file which further detailed the investigations into Moston Soft Systems. 

1. The applicant went on to state that the requirement for a skills assessment is not that a company must exist for him to claim his work experience.  He claims that he was issued with a positive skills assessment on his work experience as detailed in the letter from Infogrid.    

2. The applicant attached a second letter which claims to be from Infogrid.  In that undated letter it is stated that the applicant was an employee of Moston Soft Systems.  That he had no ties to Infogrid.  The company has no records of the applicant as no staff was ever transferred to Infogrid and the amalgamation referred to in the previous letter was only taking over the remaining projects and clientele that Moston Soft had.  The letter states it had no obligations to support the applicant in his endeavours but goes on to say he was an employee at Moston Soft from 2012 until 2014.

3. This is in significant contrast to the earlier letter the applicant supplied to the Department in response to the natural justice letter which set out the Department’s concerns.  That letter claimed to be from Infogrid, dated 21 January 2017, and stated that the applicant was a permanent full-time employee with Infogrid at their Bangalore office in India.  The letter listed his role in detail, stated that he performed his duties exceptionally and was a valuable asset to the company.  The HR Manager who purportedly signed the letter provided his phone number and email for further information.

4. When the discrepancies were put to the applicant at hearing, he was unable to give any cogent or persuasive response for the stark difference. 

5. When presented with evidence by the Department that Moston Soft Systems was not a legitimate company he provided a letter to the Department stating that it had been amalgamated into another company Infogrid and that he worked for them.  When confronted about the information in relation to Infogrid he again changed his evidence and provided further documents he claimed are from HR Infogrid.  The Tribunal does not accept that either documents are genuine.  The Tribunal does not accept that the HR Manager would send one letter stating that the applicant was a permanent full-time employee, listing his role in detail and inviting to be contacted, and then send a further letter stating that the he  did not employ the applicant, that the company have no records, and that the amalgamation was simply a take over of clients and projects.

6. The Tribunal has formed the view that the applicant fabricated evidence to support his application for a skilled visa. When this was discovered by the Department the applicant continued to fabricate further bogus documents in the hope that his initial attempts to mislead the Department could be rectified. 

7. The applicant provided to the Tribunal documents which he claims are letters of appointment, letter of experience, notice of revised compensation, relieving letter, payslips, and previous bank statements.  There was no explanation of why he could now produce these documents, they all had a similar quality to them and were on the same typeface.  The only documents which had the appearance of being genuine were his personal bank statements and those bank statements did not link him at all to Moston Soft Systems.

8. At hearing, the Tribunal put to the applicant that Moston Soft Systems was a fake company.  His response was that he was aware there were concerns and that it was a start-up at the time he worked there.  This does not in any way explain the significant discrepancies between the two letters he claims are from from Infogrid.  One claiming to have employed the applicant as a permanent full-time employee and providing a reference, and another stating that they had never employed the applicant and had no records for him.

9. The Tribunal put to the applicant its concerns at hearing and after the hearing it followed up with a s 359A letter setting out its concerns and providing further time for comment as set out below. 

   The particulars of the information are:

    Your evidence is that you worked for Moston Soft Systems from March 2012 to April 2014.

    The domain name was registered in August 2018, prior to this the website did not exist.

    The director information available on appears to use a stock image that is widely available.

    There is no director information or company registration information available elsewhere online for Mostonsoft.

    The documents you provided contained contact information for the Human Resources Manager at Infogrid. All attempts to contact this individual, or anyone at Infogrid, have been returned to the Department as undeliverable.

    The Infogrid website is a direct clone of another website the Tribunal found online.

   This information is relevant to the review because it leads the Tribunal to believe that the company Moston Soft Systems did not exist during the time you claim to have worked there.

10. The applicant responded by providing a further statement and submissions.  The submissions asked the Tribunal to place significant weight on the bank statements the applicant claims show a salary deposited into his account.  The document that appears to be bank statements to his personal account do not show any connection to Moston Soft.  There are deposits of differing amounts listed including large amounts from 53,371 INR to small amounts including 100.00. They also include amounts listed as cheque deposits from Hyderabad and cash deposits.  They do not have the appearance of a salary being deposited or transferred from another account.  None of the deposits are listed as coming from the account he claims a salary was paid into.  The applicant provided copies of documents which are listed as SBI, those documents purport to be the copies of bank statements which show a deposit into his account of an item listed as salary 18,333.00.  On the face of those documents they are in a grid pattern.  They do not have the appearance of bank statements

11. The submissions asked the Tribunal to consider the copies of documents referred to as payslips from January to March 2014 showing an amount of 28,000.  They are on A4 paper and are listed as Mostonsoft.  They refer to other documents which could easily have been generated and produced by the applicant.  The applicant submitted two witnesses’ statements claiming to show he resided in Bangalore at the time he stated on his application for the visa that his address was Hyderabad.  The Tribunal does not consider that two written witness statements from friends of the applicant alone are sufficient to overcome the evidence of bank deposits from Hyderabad and the bulk of evidence being the applicant’s own assertions.  

12. The submissions stated that the domain name mostonsoft was registered in 2008.  They referred to searches which indicate the domain was subsequently transferred between different website hosts before being deleted and then reactivated in August 2018.  The Tribunal notes that this was during the time the Department sent a natural justice letter to the applicant outlining its concerns about the company.   The Tribunal accepts that the domain for mostonsoft could have been registered prior to August 2018.  On the information provided, the Tribunal accepts that some form of website existed prior to the registration date found by the Tribunal being August 2018.

13. The information provided in the submissions does not indicate that the company was a stable or legitimate company as there continue to be substantial concerns on the information provided.  The applicant at hearing stated that he became aware of the company’s unlawful practices and asserts that he cannot be held accountable for flaws in the company’s lack of effective management and the end of its operations. The Tribunal notes that Mostonsoft Pvt is a private company and as such should have been registered. The Tribunal considers it is also possible that the company was never registered and simply operated under a registered name in an attempt to give it some legitimacy.

14. The submissions include information from a variety of websites in which they claim information was submitted from persons who worked at Mostonsoft.  This is information that could be submitted by anyone. The information is not verified and some of it is automatically obtained from other online sources, such as the Mostonsoft website.

15. The submission from the representative asserts that the Department’s delegate’s attempts to contact the claimed employer were flawed.  The Department conducted its own enquiries and found as outlined in its decision that the applicant’s claimed employer could not be located, and his employment was unable to be verified.  The Department had information available to it that was provided to it by the applicant.  The applicant’s representative had access to the Department’s file and questions the delegate’s impartiality and reliability.  The Tribunal is not satisfied on the evidence that the Department had any motive to not act in a proper manner.  There is nothing to indicate that the Department was acting in an impartial manner and rejects those assertions.

16. The submissions assert in paragraph 34 that the Department and Tribunal have failed to comprehend and differentiate between three companies and there was, therefore, a significant error in their assessment.  They refer to a lack of care and sufficient detail regarding the application.  The Tribunal rejects this as all attempts made to determine the legitimacy of the company by the Tribunal were based around the name provided by the applicant, Moston Soft Systems. Some confusion may have been created by the applicant’s own inability to determine whether the company is called Moston Soft (two words) Systems or Mostonsoft (one word) Systems Pvt Ltd.  In the applicant’s own submissions to the Tribunal he states that Mostonsoft Pvt Ltd is the company where the applicant completed his work experience and, in the index he supplied supporting documentation the two variants of the name are used interchangeably.

17. The applicant in his statement provided after the hearing, where it was put to him that efforts to contact the company at the email address he provided have been unsuccessful, asserts that he again contacted the company Infogrid and he claims they informed him that they did not receive any emails regarding verification.  He then goes on to state that the company gave him detailed information about not operating in their office building during lockdown.  He claimed he was told that they were renovating the office, closing their operations and that they are reluctant to help him as he was never an employee of Infogrid.

18. The Tribunal does not accept this explanation as it is the applicant’s own assertion. The applicant is in contact with Infogrid, however, he has not been able to provide to the Tribunal or Department any contact details which resulted in any response or contact.  He claims that due to being in lockdown the company are not at their office building. He claims this may be why they do not answer their phone and he claims the company are closing down.  This does not explain why they did not respond to emails from the Tribunal requesting verification of the information provided by the applicant.  If in lockdown companies no longer go to a physical office, most companies have moved to a work from home set up and emails would be checked and answered.  The applicant’s evidence is inconsistent in that he claims to be able to get detailed information from the company; however, no contact details the applicant provided have successfully resulted in the Department and Tribunal being able to contact or receive any response from the company.  The applicant claims that he cannot get any more information or support as they are reluctant to help him. However, he claims to receive new information from the company which he puts to the Tribunal and Department every time adverse information on their existence was put to him either in writing or at a hearing.

19. The Tribunal put to the applicant that it appeared from searches on the internet conducted by staff at the Tribunal that the website of Infogrid was a direct clone of other websites.  It was not a similar template as claimed by the applicant but a direct copy.  The applicant in his response and submissions claimed there were a multitude of reasons for similar websites, however, the evidence before the Tribunal is that the website is a direct clone of other websites.   

20. The Tribunal accepts that the applicant would not be accountable for what he claims are illegal activities by the company; however, the Tribunal is also concerned that the applicant has continued to claim and provide information which is inconsistent and false.      

21. In submissions the applicant stated that he had done work in Australia which would have supported his skills assessment; however, detailed evidence of that work was not provided to the skills assessor.  The evidence provided to the ACS was the work experience he claimed at Moston Soft Systems Pvt. Ltd.

22. He referred to and provided several copies of the skills assessment issued by the ACS dated 4 April 2017.  He asserts that this is proof of his skills.  In that assessment it clearly states on the assessment that the assessment is based upon the documents provided.  It states, “By issuing this letter or otherwise, the ACS makes no representation regarding the authenticity of documentation provided or the veracity of content.”  The Tribunal does not accept that this document is conclusive proof that he has the claimed skills.

23. On the evidence above, the Tribunal is satisfied that the applicant provided false and misleading information to the ACS, the relevant assessing authority, in order to obtain a suitable skills assessment to present to the Department when applying for a skilled visa.  The Tribunal is satisfied on the evidence before it that without that false and misleading information the applicant would not have obtained a successful skills assessment which is a material particular for the grant of a skilled visa.  

24. Therefore, the applicant does not meet PIC 4020(1).

    Should the requirements of PIC 4020(1) or (2) be waived?

25. The requirements of PIC 4020(1) and (2) 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 r.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.

26. 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.

27. The applicant states that he is married.  His wife is in India and there is nothing to indicate that she is a citizen or resident of Australia.  The applicant gave evidence that he is employed as a site manager in a regional area and provided a reference from his employer in Australia.  The Tribunal is satisfied that the applicant is employed in Australia at a service station.  The Tribunal accepts that he is a good employee and he has provided a reference from the company which states he is one of their best employees.  At hearing the applicant’s evidence was that he has people employed under him and he feels responsible for them.  He further provided a letter of support from a local farmer he states he assisted with securing a site to continue selling his fruit when the company he is employed with no longer allowed him to use their site.

28. The Tribunal accepts that the applicant has been a good employee and may have been of assistance to a merchant selling his produce; however, there is no evidence that if the applicant were no longer employed as the station manager, the employees would lose their employment.  In the ordinary course the company would still need employees.  The Tribunal finds it commendable that the applicant has assisted a local farmer to sell his produce, but there is nothing to indicate that this could not continue in his absence.  

29. The applicant provided a letter of reference from a company GAP 3 indicating he is working for them as a database expert.  In their letter, they claim the applicant would be an asset to any Australian organisation.

30. The applicant’s representative submitted that his skills remain in high demand in Australia, and that the current crisis linked to COVID has further compounded the skill shortage.  The Tribunal accepts that there is currently a skill shortage in Australia.

31. For the following reasons, the Tribunal is satisfied that the requirements should be waived.

32. The applicant provided references from his current employers.  His employer Ampol states that the applicant is a Store Manager.  The reference states that the applicant is one of their best employees.  He provided letters of reference from persons he has assisted.

33. The Tribunal held another hearing to hear from his current employer GAP 3. The Director of that company attended and gave detailed oral evidence about the work undertaken by the applicant.

34. He asserts that the applicant’s role is pivotal to the company.  He further stated that that impact on the company without the skills and work of the applicant would be immense.

35. His evidence is that it took some time for the company to find someone with the applicant’s skills.  The Director states that the loss of the applicant would impact on the defence contracts they are undertaking.  His evidence is that they would suffer significant financial losses.  His evidence is that due to a current skill shortage it would be very difficult to replace the applicant.

36. His evidence is that his company is carrying out work which is of vital interest to Australia’s defence. 

37. The Tribunal has weighed up all the evidence.  The Tribunal is satisfied on the evidence that the applicant does have the skill set for the skilled occupation for which he obtained a positive assessment.  The Tribunal is satisfied that he has applied that skill set in Australia. 

38. The Tribunal has found that the applicant provided false and misleading evidence for his skills assessment.  The Tribunal is satisfied that this was a misconceived effort to shore up a skills assessment, especially when the evidence is that the applicant has the skills necessary for the nominated occupation.  He further has completed a Master of Information and Technology and Systems at the University of Canberra. 

39. The Tribunal is concerned that the applicant has shown a disregard for the integrity of the Migration System. However, in contrast the applicant has provided two strong references from his employers in Australia who have both found him to be a trustworthy and essential part of their business.

40. The evidence from the Director of the company GAP 3 in which he is currently employed was strong, persuasive and convincing, The Tribunal accepts that they have found the applicant to be an invaluable part of their team.  The Tribunal accepts that it took some time to find someone with the applicant’s skills and if they were to lose his skills it could result in it being difficult to fulfil their contracts with the Defence Department.

41. After careful consideration, the Tribunal is satisfied that there are compelling circumstances that affect the interest of Australia, being the applicant’s work for a business supplying services to assist with the development assurance and critical risk of vital infrastructure.      

1. Therefore, the requirements of PIC 4020(1) can be waived.

   Has the applicant satisfied the identity requirements?

100.   PIC 4020(2A) requires an applicant to satisfy the Tribunal as to his or her identity.  The Tribunal has the applicant’s identity documents before it.  There is nothing before the Tribunal to indicate that there is any concern over his identity.

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

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

102.   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).

103.   There is nothing before the Tribunal to indicate that the applicant has been refused a visa in the relevant period because of a failure to satisfy PIC 4020(2A).

104.   Therefore PIC 4020(2B) does not apply.

105. On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl 189.215.

DECISION

106.   The Tribunal remits the application for a Skilled Independent (Permanent) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 189 - Skilled - Independent visa:

·Public Interest Criterion 4020 for the purposes of cl 189.215 of Schedule 2 to the Regulations

Catherine Carney-Orsborn
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.

…