Kumar (Migration)

[2020] AATA 6065

Kumar (Migration) [2020] AATA 6065 (2 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr James Kumar
Mrs Sazeeana Shereen Ahmed
Master Jeeval Shadil Kumar
Master Jayhaan Shadil Kumar

CASE NUMBER:  2011762

HOME AFFAIRS REFERENCE(S):          BCC2019/5780172

MEMBER:John Cipolla

DATE:2 December 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 2 December  2020 at 9:00am

CATCHWORDS
MIGRATION – cancellation – 457 (Temporary Work (Skilled)) visa – incorrect information and a bogus document – subject of an application for a permanent visa – positive skills assessment – an asset to the business – best interests of any children – under review set aside

LEGISLATION
Migration Act 1958, ss 101, 103, 109

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 to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.109(1) of the Migration Act 1958 (the Act).

2. On 27 May 2020 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his Subclass 457 visa.  The NOICC indicated that the applicant had potentially breached s.101 and s.103 of the Migration Act in so far as he had provided incorrect information and a bogus document to the Department in support of his 457 visa application. The NOICC noted that the Certificate I, II and III in Fabrication and Welding at the Fiji National University /National Training and Productivity Centre in Fiji were bogus, based on integrity checks undertaken by the Department, and consequently the claims the applicant made in his visa application to have completed these courses were incorrect.

3. The integrity checks undertaken by the Department consisted of a series of e-mails sent to the Manager apprenticeships at Fiji National University and the Executive Assistant at the  National Trade Testing Department who advised that the certificates were not authentic and had been altered. These integrity checks were made in September 2019.

4. It should be noted that the applicant held his Subclass 457 visa to work as a Welder for Sydney Maintenance Pty Ltd from the 16 August 2016 through to 16 August 2020, at which time the visa expired.  The applicant has held a Bridging A visa since that time. The evidence further indicates that the applicant’s employer Sydney Maintenance Pty Ltd has nominated the applicant for permanent residence through the Employer Nomination Scheme, and he is the subject of an application for a Subclass 186 visa, yet to be finalised.

5. In response to the NOICC in June 2020 the applicant provided a letter from his employer which advised that they specialised in fabrication and repairs of metal structures and that the applicant worked with the business on a full time basis as a “highly trained welder/fitter”. The letter noted that the applicant was able to carry his work out independently to a high standard and that his contribution to the business was highly beneficial and had contributed to the procuring of more work contracts and the overall growth of the business.

6. The applicant also provided a document dated 5 June 2020 from the Fiji National University provided by Sarita Devi the Registrar which confirmed that the applicant was enrolled in the Certificate in Welding and Fabrication Programme at the National Training and Productivity Centre in 2008 and providing a transcript of the subjects completed between April 2008 and November 2008.

7. The applicant provided a submission to the Tribunal dated 12 November 2020. The applicant advised that he completed his secondary school education in 2002. The applicant initially commenced studies in 2004 in information technology. The applicant then dropped out of his study and obtained a job with Standard Concrete in Nadi Fiji. Whilst employed by Standard Concrete the applicant undertook studies in welding and fabrication. The applicant stated that at the commencement of 2008 he enrolled in a welding and fabrication training course with the Training and Product Authority of Fiji, now known as the National Training and Productivity Centre of Fiji.  The applicant provided evidence of the payment of his course fees.

8. The applicant advised that in 2015 he applied for an assessment of his skills and qualifications by VETASSESS and that he was given a positive skills assessment based on his formal qualifications and his more than 3 years of relevant work experience. A copy of the VETASSESS assessment was provided. The applicant advised that as a part of this process he had to undertake a formal assessment interview with VETASSESS which was successful and led to the issue of a positive assessment letter which he annexed to the submission.

9. The applicant advised that after receiving the NOICC he contacted the Fiji National University who were not able to deal with his enquiries on the telephone. As a consequence, the applicant’s wife travelled to Fiji on 11 November 2019, to obtain evidence to corroborate the applicant’s attendance in his welding and fabrication course. The applicant advised that when his wife first approached the head office of the Fiji National University at Nasinu in Fiji that they could not find evidence of the applicant in their system. They also informed the applicant’s wife that the Training and Productivity Authority of Fiji was changed to the National Training and Productivity Centre, affiliated with Fiji National University in 2010, and that at the time of the applicant’s studies in 2008 it was a separate entity. The applicant’s wife’s enquiries did not yield the expected result.

10. The applicant then engaged his cousin, Pritika Devi, an employee of the Fiji Broadcasting Authority to provide some help.  With an authority provided to her by the applicant Ms Devi approached the Fiji National University.  Eventually the applicant was requested to send his training certificates to the National Training and Productivity Centre in Fiji. Upon the provision of this information the applicant’s records of his attendance at university were located and the applicant’s enrolment in the Certificate in Welding and Fabrication was located and the Fiji National University issued the applicant with a letter confirming the applicant’s enrolment and completion of the courses of study.

11. The Tribunal took evidence from the applicant at a hearing convened on the 20 November 2020. The applicant advised that he first came to Australia in 2014 for a holiday. He then returned as the holder of a Subclass 457 visa in 2016. 

12. The applicant advised that he completed high school in 2002. Upon completing high school, he obtained work with McDonald’s, and he worked for this company full-time to save money to undertake further studies. The applicant stated that he initially studied information technology at the Fiji Institute of Technology now Fiji National University. The applicant advised that he completed one year of this course before he discontinued. The applicant stated that he ceased studying because he was offered a good job with Standard Concrete in Nadi. The applicant worked as a welder/fabricator for this business. The applicant completed relevant welding studies over 2008. The applicant advised that he was promoted to the role of Supervisor with Standard Concrete and that he was subject to trade testing based on his studies and experience. The testing was undertaken by the National Training and Productivity organisation in Narere Fiji.

13. The Tribunal asked the applicant how he reacted to receiving the NOICC. The applicant stated that he was shocked because it was based on wrong information. The applicant stated that he had provided genuine documents in support of his visa application. The applicant confirmed that his wife travelled to Fiji in late 2019 to seek evidence corroborative of his study. The applicant stated his wife pursued this as he was committed to work obligations in Australia.

14. The Tribunal also obtained evidence from the applicant’s wife Ms Sazeean Shereen. The witness advised that she travelled to Fiji in late 2019 to collate evidence on her husband’s behalf pertaining to his academic results. The witness attended the office of the Fiji National University and was advised that no information pertaining to another student would be provided to her without a relevant authority.  The witness advised that she had been given the relevant authority letter from her husband and showed this to the officer, another officer in the records area checked for details pertaining to her husband, but there was nothing for him in the system. The witness then when requested provided details of her husband’s postal and work addresses in Fiji and despite taking a long time to retrieve a match from the system, one was found for her husband. It was this information that led to the provision of the letter dated 5 June 2020.

15. The Tribunal also obtained evidence from Ms Namita Kumar, Manager Administration for Sydney Maintenance Pty Ltd. Ms Kumar attested to the applicant’s comprehensive skill set as a welder fabricator in the business, that the applicant had directly overseen a number of apprentices, and that he had made a significant contribution to the growth of the business, clearly reflected in the business financials over the period of employment, and met a strong need for the business, particularly due to the skill shortage of metal fabricators and welders in Australia.

16. The Tribunal also obtained evidence from Mr Bobby Narayan the owner-manager of Sydney Maintenance. The witness attested to the extensive skillset of the applicant as a metal fabricator and welder, and that the applicant’s work was at a very high standard. The witness advised that because of this he had sponsored the applicant for a Subclass 186 visa and he advised that the applicant’s skills had led to an increase in profitability since he commenced with the business in 2016 and this was borne out by the financials for the business between 2016 and 2020. The witness advised that the applicant had overseen a number of apprentices in the business, with one of the apprentices under the applicant’s direct supervision completing his apprenticeship in February 2020.

17. The Tribunal received a submission from the applicant’s representative dated 17 November 2020. Of note the applicant’s representative made particular reference to the following:

    After the receipt of s57 notices (two notices for sc186 visa application and for sc457 visa) we were involved and were aware of his efforts in obtaining the confirmations from the Fiji National University and the National Training & Productivity Centre, which were difficult and time consuming.

    At the time when the applicant tried to obtain his information from Fiji National University/National Training & Productivity Centre they informed him that they do not have any information about his enrolment/completion of his training/certificates.

    It was only after supplying them the hard copies of evidences that they could trace back his student number and confirm his enrolment and achievements.

    According to ANZSCO, the requirement for meeting the Positive Skills Assessment for the Trade of 322313 Welder was AQF Certificate Ill or 3 years of relevant experience to substitute the formal qualifications.

    At the time of his application he had more than 9 year's of experience in the trade of Welder & Metal Fabricator.

    He obtained his skill assessment with his 8 years of Trade work experience and with the technical interview, conducted by Vetassess.

    On the basis of the Recognition of Prior Learning and his Technical Interview he was given a positive Trade Assessment and a Certificate Ill in Engineering in Fabrication Trade.

    With this Positive Assessment and with the Certificate Ill in Engineering he met the requirements of sub-clause 457.227 (4) (da) & 457.227 (4) (e).

18. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

20. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

21. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

    Was there non-compliance as described in the s.107 notice?

22. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101 and s.103 of the Migration Act in the following respects:  The Departmental delegate noted that in support of his Subclass 457 visa the applicant had provided certificates pertaining to the completion of welding and fabrication studies and that integrity checks conducted by the Department led to a conclusion that the certificates provided were bogus and that in turn the applicant had provided incorrect information pertaining to his qualification in support of his Subclass 457 visa.

23. To rebut these findings the applicant has provided updated evidence from the Fiji National University dated 5 June 2020 confirming that the applicant had completed the course in welding and fabrication. He also submitted evidence from his employer attesting to his skill set as a welder/fabricator. He also submitted evidence from VETASSESS who had assessed the applicant as having the requisite skill set and level of experience to work in the occupation of welder/fabricator.

24. As has been noted the Department in undertaking integrity checks of the applicant’s qualifications contacted Fiji National University staff to verify the applicant’s attendance. This university was established in 2010 and the applicant completed his studies in 2008 when it was the Fiji Institute of Technology.  The evidence before the Tribunal indicates that the Fiji Institute of Technology had been established in 1963 to train students in technical and vocational disciplines. The applicant has provided evidence that initial attempts by him to verify his qualifications were difficult as initial enquiries in the applicant’s name yielded no results but when his employment address was provided administration staff found the applicant’s name, student identification number and academic results.  The applicant has now provided evidence from a range of sources which indicates that he did in fact complete studies in welding and metal fabrication in Fiji.  He also obtained on the job experience whilst employed by Standard Concrete in Nadi and this, along with his vocational training enabled the applicant to meet a skills shortage in an Australian business, a business which he has worked in since August 2016 and whom has sponsored him for permanent residence under the employer nomination scheme.    

25. The applicant as has been noted has provided a comprehensive statement from his nominating employer pertaining to the applicant’s employment in his nominators business Sydney Maintenance Pty Ltd.

26. The Tribunal has considered the evidence before it and finds that the applicant did not provide incorrect information to the Department nor did he provide a bogus document. The Tribunal finds that the weight of the evidence at review indicates that the applicant did undertake studies in welding and metal fabrication in Fiji and completed a range of courses to this end, that he obtained on the job experience in the field and that this training and experience has been transferrable to the Australian jobs market, where, as noted, he was engaged to meet a skills shortage, and has proved to be an asset to the business.

27. Conclusion on non-compliance

28. For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.

29. The Tribunal notes that in the event it was to find that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, and it became necessary to consider whether the visa should be cancelled pursuant to s.109(1) the Tribunal having regard to the material provided to it at review would exercise discretion.

30. The Tribunal notes that the applicant is considered to be a valuable employee of the nominating business and during his period of employment he has overseen a number of welding and metal fabrication apprentices, an area which is experiencing a significant skills shortage in Australia.  In addition to this the period of the applicant’s employment has seen an increase in business profitability, and this is corroborated in the financials for the business. In addition to this the applicant has been such a solid employee that his employer has nominated him for a Subclass 186 visa, currently before the Department for consideration.  The loss of the employee to the business would be significant in terms of the applicant’s oversight of apprentices, the applicant’s expertise and the role the applicant has played in increasing the businesses profitability. The evidence further indicates that the applicant has two young children who are currently attending primary school in Australia in kindergarten and year 2. They have been in Australia since they were infants and have integrated into the Australian school system well and do not speak Hindi which would present barriers to their respective educations if they had to return to Fiji.  The Tribunal notes that as a signatory to the Convention on the Rights of the Child (CROC) that the best interests of any children of the applicant would be a significant consideration in the exercise of discretion.

    DECISION

31. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

32. The Tribunal has no jurisdiction with respect to the other applicants.

    John Cipolla
    Senior Member

    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

    (1)In this Act, unless the 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.

    97Interpretation

    In this Subdivision:

    application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

    passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

    Note:Bogus document is defined in subsection 5(1).

    98Completion of visa application

    A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

    99Information is answer

    Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

    100Incorrect answers

    For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

    101Visa applications to be correct

    A non‑citizen must fill in or complete his or her application form in such a way that:

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    103Bogus documents not to be given etc.

    A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.

    * This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

    107Notice of incorrect applications

    (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

    (a)     giving particulars of the possible non‑compliance; and

    (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

    (i)if the holder disputes that there was non‑compliance:

    (A)shows that there was compliance; and

    (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

    (ii)if the holder accepts that there was non‑compliance:

    (A)give reasons for the non‑compliance; and

    (B)shows cause why the visa should not be cancelled; and

    (c)      stating that the Minister will consider cancelling the visa:

    (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

    (ii)if the holder gives the Minister a written response within that period—when the response is given; or

    (iii)otherwise—at the end of that period; and

    (d)     setting out the effect of sections 108, 109, 111 and 112; and

    (e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

    (f)      requiring the holder:

    (i)to tell the Minister the address at which the holder is living; and

    (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

    (1A)The period to be stated in the notice under subsection (1) must be:

    (a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

    (b)     otherwise—14 days.

    (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

    (a)     visas of a stated class; or

    (b)     visa holders in stated circumstances; or

    (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

    (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

    (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

    108Decision about non‑compliance

    The Minister is to:

    (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

    (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

    (a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

    (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

    (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.