Kulvinder Singh (Migration)

Kulvinder Singh (Migration) [2021] AATA 3457 (1 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Kulvinder Singh
CASE NUMBER:  1833044
HOME AFFAIRS REFERENCE(S):          BCC2017/4624924
MEMBER:Antonio Dronjic
DATE:1 September 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for a Skilled Nominated (Permanent) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 190 – Skilled – Nominated visa:
·Public Interest Criterion 4020 for the purposes of cl 190.216 of Schedule 2 to the Regulations.

Statement made on 01 September 2021 at 11:07am

CATCHWORDS
MIGRATION – Skilled Nominated (Permanent) visa – Subclass 190 Skilled - Nominated – purposefully false and misleading information in work experience documents – skilled occupation of Chef – supporting statements by employer and work colleagues – probative evidence – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 190.214, 190.216; Schedule 4 Public Interest Criterion 4020
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Bushell v Minister for Immigration and Citizenship & Anor [2008] FMCA 1193
Kaur v MIBP [2014] FCCA 1264
Sharma v Minister for Immigration and Multicultural Affairs and Citizenship [2013] FCCA 1280
Singh v MIAC [2012] FMCA 145
Singh v MIBP [2018] FCCA 1136
Sran v Minister for Immigration and Border Protection [2014] FCCA 37
Talukder v MIAC & Anor [2009] FMCA 223
Trivedi v MIBP [2014] FCAFC 42
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 November 2018 to refuse to grant the applicant a Skilled Nominated (Permanent) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 5 December 2017. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of Public Interest Criterion (PIC) 4020(1) for the purposes of meeting cl 190.216 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The delegate formed a reasonable suspicion that the applicant gave false and misleading information in his work experience documents to the Department in relation to his visa application.
At page 7 of the primary decision record, the delegate inter alia wrote:
Due to the discrepancies and the lack of meaningful evidence provided by the applicant
in response, on balance I am not satisfied that the applicant worked at Madeline’s at Jells,
Australia as claimed. Specifically, I am satisfied the visa application form, work reference letter dated 13 July 2017 and associated evidence of remuneration such as payment summaries, superannuation statement as well payslips (amended and previous) provided contain false or misleading information. I am also satisfied this information was provided to the Department to claim for Australian skilled migration points, which is in a material particular to Regulation 190.214. Therefore, based on the evidence and information before me, I am not satisfied that the applicant meets subclause 4020 (1).
The applicant sought review of the delegate’s decision on 9 November 2018 and with his application provided a copy of the primary decision record. The applicant was represented in relation to the review by his registered migration agent.
On 25 February 2021, the applicant’s representative provided legal submissions and documentary evidence in support of the application. The list of documents is attached to this decision record and marked as Attachment A.
On 6 July 2021, the Tribunal wrote to the applicant advising him that it had considered material before it and was unable to make a favourable decision on this material alone and invited the applicant to attend a hearing on 26 August 2021.
On 23 August 2021, the applicant’s representative provided legal submissions and documentary evidence in support of the application. The list of documents is attached to this decision record and marked as Attachment B.
The applicant appeared before the Tribunal on 26 August 2021 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
The applicant is a citizen of India. He is not married, and his girlfriend lives overseas. His parents live in India. His younger brother is in Australia but is neither an Australian citizen nor an Australian permanent resident. The applicant is not certain what type of visa his brother holds. In India he was enrolled in a Bachelor of Arts degree but never completed the course.
He first arrived in Australia in May 2008 as a holder of a Student visa. He completed several courses in Australia including Certificate III and IV in commercial cookery, Diploma in hospitality and Bachelor of tourism and hospitality management. His last Student visa ceased on 15 March 2016. On 25 November 2016, the applicant was granted a Subclass 485 visa which remained valid until 25 May 2018.
On 3 July 2017, he obtained a job ready final skills assessment from Trades Recognition Australia (TRA) for his nominated occupation of Chef.
The applicant gave evidence that he commenced his part-time employment at a restaurant Madeline’s at Jells located in Wheelers Hill, Victoria in November 2015. He continued to work there as a part-time cook until March 2016, approximately 20–30 hours per week.
He started working as a full-time cook in March 2016. On 13 June 2016 he was promoted to a position of a chef. At that time, he signed an employment agreement with the owners of the restaurant according to which his annual salary was set to be $54,000. He continued to work as a full-time chef at Madeline’s at Jells until 25 June 2017.
He reiterated that both his employer and a head chef under whose supervision he worked at Madeline’s at Jells provided several work reference letters and statutory declarations in support of his claim that he did work at the restaurant as claimed. The Tribunal noted that he also provided a statutory declaration from his work colleague, Ms Ross, who at the relevant time worked at the same restaurant as a sous chef.
The Tribunal further noted that Mr Nealon made himself available to give evidence at the Tribunal hearing and confirm the applicant’s employment at Madeline’s at Jells. The Tribunal indicated to the applicant that Mr Nealon provided a statutory declaration (and work reference letter) and that the Tribunal is prepared to accept that the statements in that declaration are true and correct.
The Tribunal observed that in the visa application form the applicant claimed five points for his Australian work experience (as per Schedule 6D.41). To do so, he needed to be employed in Australia in his nominated or closely related occupation for 12 months in the 10 years immediately before he was invited to apply for this visa. The employment in this context is defined as ‘engaged in an occupation for remuneration for at least 20 hours a week’.
The Tribunal explained to the applicant that any false and misleading information must be relevant in a ‘material particular’. The Tribunal further noted that PIC 4020(1) is directed at information which is false, in the sense of purposely untrue, rather than information which lacks the necessary element of fraud or deception and that there must have been knowledge or intention on somebody’s part to provide false and misleading information.
The Tribunal observed that some information that has been provided to the Department may objectively be false (such as a statement about the number of hours the applicant was paid for contained in the payslips initially submitted to the Department) but that the Tribunal is still required to consider if that information is ‘purposefully false or misleading’.
The applicant gave evidence that in September 2017, he started working as a truck driver and continues to do so until the present time. He stated that in the future he intends to return to the hospitality industry and open his own restaurant.
The applicant’s representative submitted that the applicant is not seeking that the Tribunal waive the PIC 4020(1) requirements as there are no compelling circumstances that affected the interests of Australia, or compassionate or compelling circumstances that affected the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen, that would justify the grant of the visa to the applicant. He reiterated that the applicant did not provide a false and misleading statement to the Department and that he continues to rely on his submissions dated 29 August 2019 and 21 August 2021.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the applicant meets PIC 4020 as required by cl 190.216 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 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).
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 and marked as Attachment C.
Has the applicant given, or caused to be given, a bogus document or information that is false or misleading in a material particular?
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 Attachment C 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.
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.
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.
The concept of ‘no evidence’ in PIC 4020(1) is not defined in the legislation. However, the Tribunal notes that in Bushell v Minister for Immigration and Citizenship & Anor [2008] FMCA 1193, Scarlett FM found there was jurisdictional error in a finding by the Tribunal (differently constituted) that there was ‘no evidence’ in circumstances where there was some evidence, albeit relatively slight, that supported the applicant’s claim. Accordingly, the Court held that in such a situation, it was not correct for the Tribunal to say there was no evidence.
The Tribunal notes that in Talukder v MIAC & Anor [2009] FMCA 223 (‘Talukder’s case’) Driver FM found that the word ‘evidence’ requires an assessment of the quality of the evidence being relied on by the Tribunal before finding whether an applicant fails to satisfy the criterion. The Court stated that the use of the word ‘evidence’ in cl 880.224 (as it was prior to 2 April 2011):
… establishes that the clause requires something more than mere existence of information suggestive of falsity. It requires some probative information. In other words, a decision maker cannot simply take any information suggestive of falsity as sufficient for the purposes of the clause. The decision maker must satisfy himself or herself that the information is acceptable as evidence pointing to false or misleading information having been given for the purposes of establishing the validity of the visa application and that the falsity or misleading information was material to the visa application.[1] [emphasis added]
[1] [2009] FMCA 223 at [20]
This approach was endorsed in Sharma v Minister for Immigration and Multicultural Affairs and Citizenship[2] (‘Sharma’s case’) where the Court expressly considered the meaning of ‘evidence’ in the context of PIC 4020. Specifically, the Court in Sharma’s case held that the word ‘evidence’ is used to impose a requirement that whatever facts are conveyed by the material relied upon to establish that information given in connection with the application for a visa was false or misleading in a material particular, they must be facts that are sufficiently probative to lead to that conclusion.
[2] [2013] FCCA 1280 (Judge Manousaridis, 6 September 2013) at [33]–[37]
Further, in Sran v Minister for Immigration and Border Protection[3] (‘Sran’s case’) the Court held that what a third party may have done in other cases could not:
… be a basis for establishing such a serious matter as fraud in the current case. While the circumstances may be “suspicious”, it is evidence about the applicant’s case that is necessary, not simply the drawing of inferences from the circumstances in other cases.
[3] [2014] FCCA 37 (Judge Nichollas,17 January 2014) at [71]
As such, the Tribunal must make an assessment as to whether there is evidence that is sufficiently probative to lead to a conclusion that the information given was a bogus document or false or misleading in a material particular.
Whether the applicant provided a bogus document
When considering whether a document is a ‘bogus document’, it is necessary to address the elements of the definition in s.5 of the Act. According to the definition, a ‘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.
In support of his visa application, the applicant provided a work reference letter dated 13 July 2017 and various pieces of evidence of remuneration such as payment summaries, superannuation statements and payslips.
Based on the evidence before the Tribunal, the Tribunal finds that the work reference letter dated 13 July 2017, and associated evidence of remuneration are not counterfeits and were issued in respect of the applicant by a person with the authority to do so.
The Tribunal further finds that the work reference letter was not obtained because of a false and misleading statement made by the applicant. Based on the evidence before it including the applicant’s oral evidence, statutory declarations provided by the applicant’s employer, Ms Christine Vrondis, head chef, Mr Nealon and the applicant’s co-worker, Ms Ross, the Tribunal accepts that the applicant worked at Madeline’s at Jells as stated in the visa application form and work reference letter of 13 July 2017.
Accordingly, the Tribunal finds that the applicant has not given or caused to be given a bogus document to the Department with his visa application.
Whether the applicant provided information that was false or misleading in a material particular
For information to be ‘false or misleading in a material particular’ in the context of PIC 4020, there must be a visa criterion upon which the allegedly false information could materially bear.[4] The definition in PIC 4020(5)(b) focuses upon the materiality of the information. It applies to information which goes to something which will or might determine the visa application and is not concerned with information that is irrelevant to the visa requirements.[5]
[4] Singh v MIAC [2012] FMCA 145 at [68].
[5] Kaur v MIBP [2014] FCCA 1264 at [80]–[81]. See also Singh v MIBP [2018] FCCA 1136.
In addition to the statutory declaration referred to above, the applicant provided independently verifiable evidence in the form of his bank statements, PAYG payment summaries and ATO assessment notices as evidence of his employment at Madeline’s at Jells.
In order to claim five points for his ‘Australian work experience’ the applicant was required to provide evidence that he was employed in Australia in his nominated or closely related occupation for 12 months in the 10 years immediately before he was invited to apply for this visa. The employment in this context is defined as ‘engaged in an occupation for remuneration for at least 20 hours a week’. The applicant gave evidence that he was invited to apply for a Subclass 190 visa on 4 December 2017.
The Tribunal acknowledges the delegate’s concerns regarding the discrepancies related to the associated evidence of remuneration during the relevant period. However, as long as the applicant was ‘engaged in an occupation for remuneration for at least 20 hours a week’ he was entitled to claim five points for his Australian work experience. In this context it is immaterial whether the applicant worked 38 hours per week or whether he worked as a cook or as chef (as cook is closely related to the applicant’s nominated occupation of chef). As long as he worked as a cook or chef for 20 hours or more and regardless of how much money he was paid for those hours, he is entitled to claim five points for his Australian work experience.
Based on the evidence before it, the Tribunal is satisfied that the applicant worked at Madeline’s at Jells as a cook or chef for at least 20 hours per week during the period from November 2015 to 25 June 2017.
The information provided by the Department does not in the Tribunal’s view provide probative information sufficient to satisfy the Tribunal that false or misleading information has been used in the application at hand; rather it is merely suggestive of falsity. As was reasoned by Driver FM in Talukder’s case, referred to above, to be probative, the information must be more than suggestive of falsity; the information must be acceptable as evidence pointing to false or misleading information having been given for the purposes of the application.
As a result, the Tribunal is not satisfied that there is sufficiently probative evidence that the applicant has given, or caused to be given, to the Minister, or an officer of the Department, the Tribunal or a relevant assessing authority a bogus document or information that is false or misleading in a material particular in relation to the application for a Subclass 190 visa or in relation to a visa held in the 12 months before the visa application was made. Accordingly, the Tribunal finds that the applicant meets the requirements of PIC 4020(1).
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(1)?

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 3 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).
There is no evidence before the Tribunal that the applicant has been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing three years before the application was made to the present.
Therefore, PIC 4020(2) is met.
Has the applicant satisfied the identity requirements?
PIC 4020(2A) requires an applicant to satisfy the Tribunal as to his or her identity. Having regard to the applicant’s passport located on the Department’s file the Tribunal is satisfied as to the applicant’s identity. Therefore, the applicant meets PIC 4020(2A).
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?
PIC 4020(2B) requires that neither the applicant nor any family unit member has 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).
There is no evidence before the Tribunal that the applicant has been refused a visa because of a failure to satisfy identity requirements during the relevant period. Therefore, the applicant meets PIC 4020(2B).
Based on the above, the applicant does satisfy PIC 4020 for the purposes of cl 190.216.
DECISION
The Tribunal remits the application for a Skilled Nominated (Permanent) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 190 – Skilled – Nominated visa:
·Public Interest Criterion 4020 for the purposes of cl 190.216 of Schedule 2 to the Regulations.
Antonio Dronjic
Member
Attachment A: Document List
·Submissions from Kulvinder Singh’s representative dated 29 August 2018
·Statutory Declaration by Kulvinder Singh dated 29 August 2018
·Statutory Declaration by Christine Vrondis dated 27 August 2018
·Statutory Declaration by Shannon James Nealon dated 27 August 2018
·Letter from PND Accountants dated 23 August 2018
·Letter from Christine Vrondis dated 27 August 2018
·Letter from Shannon Nealon dated 27 August 2017
·Commonwealth Bank Statements (Kulvinder Singh) for the period 1 November 2015 to 10 October 2017
·Commonwealth Essential Superannuation Statement (Kulvinder Singh) for the periods:
o1 January 2016 to 30 June 2016
o1 July 2016 to 31 December 2016
o1 January 2017 to 30 June 2017
o1 July 2017 to 31 December 2017
·PAYG payment summaries (Kulvinder Singh) for the years ending:
o30 June 2016
o30 June 2017
o30 June 2018
·Payroll advice from Yasoutov Pty Ltd (Kulvinder Singh) for the period 7 December 2015 to 5 February 2017
·Payroll advice from Yasoutov Pty Ltd (Kulvinder Singh) for the period 27 February 2017 to 17 September 2017
·Email correspondence from Kulvinder Singh’s representative to the Department of Home Affairs dated 29 August 2018
·Facebook page screenshots of posts made by Madeline’s at Jells
Attachment B: Document List
·Submissions from Kulvinder Singh’s representative dated 21 August 2021
·Statutory Declaration by Mary Kathlene Ross dated 29 July 2021
·Statutory Declaration by Kulvinder Singh dated 22 August 2021
·Letter of explanation from PND Accountants dated 7 July 2021
·Payroll advice from Yasoutov Pty Ltd (Kulvinder Singh) for the periods:
o20 June 2016 to 26 June 2016
o19 June 2017 to 25 June 2017
o11 September 2017 to 17 September 2017
·PAYG payment summary (Kulvinder Singh) for the years ending:
o30 June 2016
o30 June 2017
o30 June 2018
·Individual tax return (Kulvinder Singh):
o2015–16
o2016–17
o2017–18
·Essential Superannuation Statement (Kulvinder Singh) dated 17 August 2021
·Farewell cards
·Notices of Assessment for the years ending:
o30 June 2016
o30 June 2017
o30 June 2018
·Tax return (Kulvinder Singh):
o2015–16
o2016–17
o2017–18
·Photographs of the applicant in a commercial kitchen
·Group photographs including the applicant
Attachment C
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.
…

[2021] AATA 3457

1 September 2021

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Immigration

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Statutory Interpretation

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