KUMAR (Migration)

[2019] AATA 6541

KUMAR (Migration) [2019] AATA 6541 (23 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Pushpender KUMAR
Mrs Unesh Devi KALARAMANA
Mr NAITIK
Mr SUBHAM

CASE NUMBER:  1824182

DIBP REFERENCE(S):  BCC2017/2675341

MEMBER:Wan Shum

DATE:23 December 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Skilled Regional Sponsored (Provisional) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 489 - Skilled - Regional (Provisional) visas:

·Public Interest Criterion 4020 for the purposes of cl.489.211(1) of Schedule 2 to the Regulations.

Statement made on 23 December 2019 at 1:06pm

CATCHWORDS
MIGRATION – Skilled Regional Sponsored (Provisional) visa – Subclass 489 – bogus document – evidence applicant employed as motor mechanic provided – proof of employment income – site visit report – Workplace Assessment Report – explanations for income discrepancies provided – work reference letter genuine – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 65
Migration Regulations 1994 (Cth), Schedule 2, cl 489.211(1), Schedule 4, Public Interest Criterion 4020

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Trivedi v MIBP [2014] FCAFC 42

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 3 August 2018 to refuse to grant the applicants Skilled Regional Sponsored (Provisional) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 27 July 2017. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl.489.211(1) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because Public Interest Criterion 4020 was not met.

3. The applicants were represented in relation to the review by a registered migration agent.

4. The applicants appeared before the Tribunal on 5 November 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Muhammad Awais, the former employer.  

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.489.211(1) for the grant of the visa. Broadly speaking, this requires that:

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

   ·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 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 an employment reference letter from Melbourne Taxi Bookings indicating that he had been employed as a motor mechanic from 16 May 2016 to 19 May 2017. He also provided copies of payslips, PAYG and full copy of his bank account statements up to 22 May 2017.

12. According to ASIC records, the ACN for Melbourne Taxi Bookings was deregistered on 1 May 2017. Based on the claimed period of employment, it appears that the applicant was working for a company for a period of 2 weeks that was not registered.

13. In addition, it was noted by the delegate that payments to the applicant’s bank account from Melbourne Taxi Bookings according to payslips amounted to $33,498.50, whereas the amount received in the applicant’s bank account was $32,786. The year to date according to the payslips for 2017 was $33,487.50 and PAYG summary total was $33,487. The PAYG summary for 2016 total was $4,218 and PAYG June 2016 total was $5,241. However, the PAYG June 2016 total recorded by the delegate is the total amount on the applicant’s Notice of Assessment for FY 2016.

14. The Tribunal has been provided with additional information as to the applicant’s claimed period of employment at Melbourne Taxi Bookings. This includes 12 ‘journal entries’ which the applicant claimed were provided to TRA as part of the Job Ready Program assessment. The applicant also told the Tribunal that payslips and other documentation were submitted on a quarterly basis. The Tribunal contacted TRA for confirmation regarding the applicant’s claims.

15. The applicant gave evidence at the hearing about his claimed period of employment. The Tribunal notes that the applicant had prior employment as a taxi driver and asked the applicant about his ABN which was registered shortly after his arrival in Australia. The applicant told the Tribunal that he had worked as a taxi driver during the period he had worked for Melbourne Taxi Bookings but had been paid in cash. The Tribunal had some concerns as to whether the payments from Melbourne Taxi Bookings were made to the applicant as a taxi driver and not as a motor mechanic.

16. The Tribunal asked whether the applicant had worked as a motor mechanic since he ceased working for Mr Awais. He said he has not. The applicant said he moved to Dubbo with his family in February 2018 and that he had tried to find work as a mechanic but not been able to do so. He currently works for an aged care provider, as does his wife.

17. Mr Awais also attended the hearing in support of the applicant’s claims to have been employed for 12 months as a motor mechanic. The Tribunal noted that the dates set out in the statutory declaration of his regarding the wage payments made on two consecutive days appeared to have an incorrect year. He agreed that this was an error. The Tribunal asked about payslips, and Mr Awais confirmed that he would transfer the wages using EFT or would pay the applicant by cash. He confirmed that the accountants issued the payslips. The Tribunal noted that the documents provided to it indicated that the final payment of 19 May 2017 received into the applicant’s bank account did not match the payslip. Copies were passed to Mr Awais and after reviewing the documents, he said that he believed that the final payment would have occurred after 23 May 2017, being the last date on the bank account statements that had been provided. The applicant then produced copies of his bank account statements until 10 November 2017, which did include a payment of $712.50 on 26 May 2017. This is now consistent with the net amounts appearing on the payslips for the claimed period of employment of $33,498.50. This is the same as the total amount received in the applicant’s bank account.

18. The year to date according to the payslips for 2017 was $33,487.50 which is the gross amount, and PAYG summary total was $33,487. This has been rounded down, which the Accountant advised is the usual practice. The PAYG summary for 2016 total was $4,218 and the NOA June 2016 total was $5,241. However, the applicant had other sources of income which would explain this discrepancy. The concern for the Tribunal was that the PAYG notice for FY 2016 does not reflect the amounts purportedly paid to the applicant as set out in the payslips issued in that financial year.

19. The Tribunal requested an explanation and was provided with a letter from the Accountant dated 2 December 2019. The accountant explained that PAYG in 2016 was calculated and issued at $18.50 instead of $18.75 as “[m]ost of the employee were paid @ $18.50 during that time which cause this error while preparing PAYG summary. We are happy to revise the PAYG summary for 2016 and lodge it with ATO if concern authority advised so.” The Tribunal accepts that the difference in hourly rate has led to the discrepancy in the FY 2016 figures appearing on the PAYG summary for 2016 and the amount in the final payslip of FY 2016 (228 hrs x $18.50 = $4,218 instead of 228 x $18.75 = $4,275).

20. In relation to the payment dates on the payslips not always matching the payment dates in the bank account statements, Mr Awais explained that his accountant prepared the payslips, and that he would then pay the applicant after that date. He said that around that time there were some personal issues in relation to his son’s health and business related issues which meant that there were delays with pay on occasion, for example if there was insufficient money in the business bank account. Mr Awais referred to taxi reforms in Victoria which he said had a significant impact on his business, and was a reason for changing the workshop to provide services to the public. He explained that previously the workshop was part of the taxi business and that they had serviced mainly taxis. He told the Tribunal that by August 2016, he had sold all the taxi vehicles and the leases for taxi plate licences. This has started in March 2016. In relation to operating with a ceased ACN, Mr Awais said that he came to know a little bit after that date that it had ceased. He was distracted at the time with personal matters. In terms of wages, Mr Awais said that whilst there were late payments on occasion, he did always pay the salary and the total amounts match what the applicant was owed.

21. The Tribunal also questioned Mr Awais about Departmental case notes recording a phone conversation between an officer and Mr Awais that occurred on or around 29 March 2018. Mr Awais confirmed that he received a phone call from a person identifying as an Immigration officer but explained that he may not have been readily giving details about his business as he regularly received scam phone calls from people claiming to be calling from Immigration, or other authorities. The Tribunal referred to a number of the responses recorded by the officer including the number of employees and the name of the business, Quick Auto Repairs. Mr Awais confirmed that he had ceased operating Melbourne Taxi Bookings and began operating Quick Auto Repairs from the same location; which he is still operating, but now at a different location. While the Immigration officer considered that the claim of employment was not genuine, the recorded responses do not specifically refer to the applicant nor did it appear that any information regarding his claimed employment was discussed. The Tribunal considers objectively that the responses neither confirm nor undermine the claimed employment. Overall, the Tribunal considered that Mr Awais gave his evidence in a forthright manner at the hearing and it considers his explanation as to the taxi business being near collapse and his reasons for changing the business to focus on repairs and servicing cars from the public to be plausible.

22. However, the most convincing information that the applicant did work as a motor mechanic at Melbourne Taxi Bookings as claimed is the additional information before the Tribunal from TRA. This confirms that a TRA Liaison Officer conducted a site visit at the business address of Melbourne Taxi Bookings (and later Quick Auto Repairs) in relation to the applicant on 8 June 2016. TRA informed the Tribunal that as a part of the Job Ready Program, an applicant is required to undertake a workplace assessment after 6 months, where an independent assessor from a TRA-Approved Registered Training Organisation visits the applicant’s workplace to conduct the assessment on its behalf. On this occasion, an assessor from Sunraysia Institute of TAFE conducted an assessment on 23 February 2017.

23. The Tribunal was provided with a Site Visit Report and the Workplace Assessment Report from TRA. The information is from a third party and the Tribunal considers it to be a reliable source. The Site Visit Report includes details of the appropriateness of the workplace, and refers to the number of mechanics and hoists located on site and confirms that the business services and repairs taxi fleet and private vehicles. The Workplace Assessment Report is more detailed and reflects observations of the applicant over a two and a half hour period. There is an assessment against capabilities and specific commentary about the applicant’s abilities, stating that he is “a great worker… and meets the requirements needed to perform mechanical tasks in the workshop”. While this assessment was undertaken prior to the last day of claimed employment, the applicant was present at both the initial site visit on 8 June 2016 and the later assessment on 23 February 2017, and the assessment includes an analysis of his skills as a motor mechanic.

24. In relation to the issue of the ceased ACN and different businesses operating from the same location, a letter from the Accountant for the Trustee for Dawn Trust dated 3 May 2018 confirmed that the trust was registered from 23 January 2013 and was still in operation as at that date. The accountant states that Melbourne Taxi Bookings Pty Ltd is the trustee of the trust and the company was active until May 2017, but that the business name was not renewed by the business owner due to an oversight. Reference is made to there being a number of business names that had been registered under the trust, including Melbourne Taxi Bookings Pty Ltd and Quick Auto Repairs. The latter is the business which the owner is currently operating. It was also confirmed that the PAYG 2016 was issued by the accountants manually and PAYG 2017 was generated from MYOB Accounting system. However, an explanation as to the discrepancy between the PAYG 2016 and the payslip was not provided until 6 December 2019, when a further letter was forwarded by the representative from the accountant. The letter confirms that the discrepancy of $57 was an error made by the accountant, based on an incorrect hourly pay rate.

25. Despite the errors contained in the payslips as to payment dates, discrepancies in total pay recorded on the PAYG 2016 and payslips, and the ACN on the letterhead having ceased prior to the final employment date, the Tribunal considers there is reliable evidence before it that the applicant was employed as a Motor Mechanic with Melbourne Taxi Bookings. While the issues with wage payments do not appear to meet Fair Work and income tax obligations, the explanations for discrepancies and payment dates are plausible. In the Tribunal’s view, having regard to all the evidence, it is prepared to accept that the applicant was employed by Melbourne Taxi Bookings. With the additional information provided, it has been possible to reconcile the PAYG 2016 and 2017 amounts with the year to date amounts shown on the payslips and the total amounts received by the applicant from the business. The bank account statements show that the final payment of $712.50 did occur, albeit at a later date than that recorded on the payslips.

26. It further considers the additional information from TRA, and oral evidence from both parties, supports his claims of employment. Given this, the Tribunal is prepared to accept that the applicant was employed by Mr Awais for the entire period claimed.

27. In the circumstances, the Tribunal does not have a reasonable suspicion that the work reference letter is a document that purports to have been, but was not, issued in respect of the person, or is counterfeit or has been altered by a person who does not have authority to do so, or was obtained because of a false or misleading statement, whether or not made knowingly. It thus considers that there is no evidence before the Tribunal that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth a ‘bogus document’, as defined in s.5(1), in relation to the visa application.

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

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

29. 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). 

30. There is no information before the Tribunal that the applicant or any member of the family unit (as defined in r.1.12) have been refused a visa in the relevant period because of a failure to satisfy PIC 4020(1).

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

    Has the applicant satisfied the identity requirements?

32. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity. The Tribunal has sighted a copy of the applicant’s passport. There is nothing before the Tribunal to suggest that the applicant is not who he claims to be. Therefore, the applicant meets PIC 4020(2A).

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

33. 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).

1. There is nothing before the Tribunal that indicates that the applicant or any member of the family unit have been refused a visa in the relevant period because of a failure to satisfy PIC 4020(2A). Therefore PIC 4020(2B) is met.

2. Given the above findings, the applicant satisfies PIC 4020 for the purposes of cl.489.211(1).

3. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

   DECISION

4. The Tribunal remits the applications for Skilled Regional Sponsored (Provisional) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 489 - Skilled - Regional (Provisional) visas:

   ·Public Interest Criterion 4020 for the purposes of cl.489.211(1) of Schedule 2 to the Regulations.

   Wan Shum
   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.