Lakhbir Singh (Migration)

Lakhbir Singh (Migration) [2023] AATA 494 (15 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Lakhbir Singh
REPRESENTATIVE:  Mr Rick Gunn (MARN: 5510963)
CASE NUMBER:  2002041
HOME AFFAIRS REFERENCE(S):          BCC2018/6158794
MEMBER:Stephen Witts
DATE:15 March 2023
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 15 March 2023 at 11:25am
CATCHWORDS
MIGRATION – Skilled Nomination (Permanent) (Class SN) visa – Subclass 190 (Skilled - Nominated) – false or misleading information – border force search showed applicant may entered payment for work scheme – statement by person at workplace later withdrawn – other similar decisions previously set aside – outstanding superannuation contributions paid – oral and documentary evidence – search occurred nine months after applicant ceased working there – no other official action taken – education, skills assessment and work record consistent with genuine employment – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 375A
Migration Regulations 1994 (Cth), Schedule 2, cl 190.216, Schedule 4, criterion 4020(1), (5)
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 January 2020 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 23 December 2018. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 190.216 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because of the delegate was not satisfied that the applicant met the requirements of Public Interest Criterion 4020.
The applicant appeared before the Tribunal on 15 March 2023 to give evidence and present arguments.
The Tribunal also received oral evidence Mr Fernandez from Christy Motors Pty Ltd.
The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was represented in relation to the review.
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 visa applicant meets Public Interest Criterion 4020 (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.
Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in 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 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.
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 Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at the hearing.
The Tribunal notes that it has been provided with a copy of the relevant delegate’s decision record by the applicant.
In this decision it was contended by the delegate that the applicant did not meet Public Interest Criterion 4020 in that the applicant provided 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 period of 12 months before the application is made.
In particular the Tribunal notes that it was contended by the delegate that investigations from Australian Border Force while executing search warrants on 11 September 2019 at the business premises of Jerome Mobile Engineers and Christy Motors uncovered information that the applicant may have entered into a payment scheme with the owner of the business to secure skills recognition under the ‘job ready’ program.
It was also contended by the delegate that the applicant may have made cash payments to the owner of the business, Mr Fernandez, which was then paid back to the applicant as wages, and that therefore the applicant may not actually have been employed by the business as the applicant had claimed.
The Tribunal notes that prior to the hearing a detailed submission was provided by the applicant’s representative.
Applicant’s submissions
It was stated the applicant is in Indian national born in September 1992 and that he arrived in Australia as the holder of a student visa in March 2013.
He completed a certificate III level qualification in Light Vehicle Mechanical Technology, a Certificate IV in Automotive Mechanical Diagnosis and a Diploma of Automotive Technology.
He worked casually in several roles before starting in his mechanic position with Christy Motors on 28 August 2017 and that he worked full-time for his employment with this employer until 7 October 2018.
It was stated in this submission that the investigation by Australian Border Force on 9 August 2019 and 9 September 2019 was conducted more than nine months after the applicant had ceased employment with Christy Motors, and that the refusal by the Department was based on a later ‘recanted’ statement by a person who was at the workshop on the day the business was searched wherein the applicant’s name appeared on material acquired in that investigation including on the businesses’ bank account statements between December 2016 and November 2018, which indicated that the applicant may have entered into a payment for work scheme. It was contended by the applicant’s representative that the applicant’s name only appeared on the bank statements as a paid employee.
It was stated that the review applicant did not enter a payment scheme and that he did complete his work with that employer as claimed, and they did not provide misleading information to the Department, and that there is no other evidence to support a claim that the applicant’s employment was not genuine.
Material was provided regarding the applicant’s earnings both on a full-time basis during this time including wages and superannuation and PAYG summaries and other evidence were also provided demonstrating, according to this submission, that the applicant did work for this employer.
Material was provided regarding this matter including various statutory declarations of other parties who were current and former employees of that employer noting that the employment status of these individuals was the subject of previous AAT matters which resulted in decisions being set aside on the basis that the Tribunal (differently constituted) made a finding that these individuals did work as stated for this employer.
It was noted that the department’s decision focused on the fact that there was a total of $6000 paid by the applicant to the business which it was alleged was supporting evidence of a supposed payment for work scheme. It was stated that this money was in fact paid to the business to procure tools at a reasonable price on his behalf and on a specific payment plan. The Tribunal notes the evidence in support of this including declarations detailing the circumstances in terms of how these payments operated.
It was stated that the applicant genuinely paid for these tools in order to work as noted in the evidence provided.
In regard to superannuation benefits it was stated that the applicant received consistent superannuation payments throughout his employment. Evidence and documents to this effect were provided and it was noted that the business was audited by the ATO, and it was ordered to pay outstanding superannuation contributions to employees including the applicant. It was stated that this inconsistent payment for a period does not in itself support the claim made by the Department that it was part of a fraudulent employment scheme.
It was also stated that the job cards provided in this submission for the applicant recorded the vehicles on which the review applicant worked individually or as a primary mechanic, and that the applicant also completed work on many other vehicles that may not have been listed on the particular job card in circumstances where there were many mechanics who may have worked on a particular vehicle at a particular time and that therefore the job cards did authenticate that the applicant did work in the business as a mechanic, and that the job cards represent a proportion of the work he undertook when he was working as a single mechanic. It was stated that this evidence does stand as evidence that the applicant worked consistently throughout the duration of his claimed employment.
Evidence was provided in regard to the business operation including copies of company tax returns and evidence of the businesses wages payments and monies deposited into its bank account to pay employees wages. Statutory declarations were provided by the owner of the business Mr Fernandez listing those employees who worked for the business and passed their skills assessment based on their experience and practical Trades Recognition Australia ‘Job Ready’ tests at the business premises.
Further evidence was provided regarding asserting that the available evidence supports the view that the business was and remains operational and that there is no credible evidence provided by the department to demonstrate that the applicant was not genuinely employed at the premises.
It was noted that the department based its refusal on site visits completed by the ABF consisting of two random days of observation and that they occurred nine months after the applicant had ceased working at the business.
It was noted that no other actions have been taken by other authorities regarding this matter including the Fair Work Commission, the Department of Home Affairs, the ABF, the Australian Federal Police or the Victoria Police which would suggest that they are unable to be proven.
In regard to the applicant’s experience as a motor mechanic it was noted that Trades Recognition Australia (TRA) has not taken any steps to investigate the applicant’s current skills assessment or rescinded the original assessment, which is based on practical on-site examinations which remain valid, in particular, that the applicant passed an independent test as a motor mechanic as part of the ‘job ready’ program. It was stated that subsequently the applicant has obtained another TRA job ready skills assessment through his current place of employment.
It was stated that the fact that the applicant successfully completed his practical assessment as a motor mechanic, and that the TRA have recognised this, demonstrates that the applicant was genuinely employed at this worksite for the period stated.
The Tribunal notes that a statutory declaration was provided by Mr Colin Clarke, motor mechanic, stating that he has been working for Christy Motors since 2015, that he is still employed there, and that the applicant was one of the senior mechanics who worked on various types of mechanical activities in the workshop and on job sites.
The Tribunal notes that also provided was a statutory declaration from Mr David Macrostie, a transport operations manager, who stated that the applicant has been working in his business since May 2020 and that he is now an experienced truck driver and forklift operator and that he is a suitably mechanically qualified worker.
A submission was also provided in regard to the waiver provisions of PIC 4020(4) stating that the applicant is currently working as a truck driver, that there is a high demand for truck drivers with the projected amount of 30,000 drivers being required to fill these positions by 2027 and that therefore there are compelling circumstances for the purposes of setting the decision aside based on the impact that it would have on the Australian business he works for.
A submission was also provided in regard to the nondisclosure certificates under s375A that apply to this matter stating that there is insufficient information contained in the certificates for the case to be made that the documents being disclosed would meet the threshold to harm the nation or public service. It was further stated that the certificates failed to describe the documents or information claimed to fall within it, and that they do not meet the threshold of being covered by public interest immunity. It was also stated that the applicant and the employer who was a witness at the hearing were well aware of the business being the subject of this investigation at the premises and that it is well known to all parties, and that for this and other reasons, it is not valid.
In conclusion it was stated by the applicant’s representative that:
“We submit that the Review Applicant has not provided a bogus document nor false and misleading information in a material particular as defined in PIC 4020(1). He has provided substantial documentary evidence in the form of payslips, bank statements, tax documents and statutory declarations to demonstrate that he was employed at the business for the periods claimed. We submit that the raids conducted on his former place of employment including the allegations which have arisen as a result of those raids cannot be credibly attributed to the Review Applicant’s subclass 190 visa application.
Further, the Review Applicant was able to pass a rigorous practical in-person assessment by TRA on the business premises which resulted in him being awarded a positive skill assessment as a motor mechanic. In the alternative, we submit that there are compelling and compassionate circumstances that effect the interests of the Review Applicant’s involvement with a local Australian organisation, that justify a waiver of PIC 4020.”
Hearing submissions
The applicant stated that he arrived in Australia in 2013 on a student visa and initially had an enrolment in a diploma level course in information technology while working in the cleaning sector, and for a courier company, before studying the vehicle maintenance courses referred to above. He stated that he completed these qualifications in 2017 and that for a time he also studied at diploma level in business before applying for a 485 visa.
He stated that he is in Australia by himself, and his family are back in his home country.
He stated that after his employment at Christy Motors he started a job working for a transport company where he still works and that his main duties include loading trucks via a forklift at the company’s yard before delivering and unloading material to construction sites. He also stated that he works on the trucks as well in his capacity as a qualified mechanic.
He stated that while working at Christy Motors he also worked on weekends as a truck driver.
He stated that his current job as a truck driver pays him a significantly higher salary than what he earned when he was working as a mechanic at Christy Motors.
The Tribunal had a detailed discussion with the applicant about his vehicle maintenance experience including his use of scanning tools and testing procedures and other vehicle maintenance activities such as working on driveshafts and other servicing activities that form the basis of his work in this field.
The Tribunal also had a detailed discussion with the applicant regarding his work as a truck driver during this time and other matters associated with his day-to-day life in the workplaces where he was employed.
The Tribunal also had a detailed discussion with the applicant about his skills assessment training and the tests that he had to pass to achieve his accreditation.
The Tribunal also discussed the issue of the applicant’s tools with him and how that situation developed, how the monies were exchanged for those items, and where those items were purchased and how they were utilised in the workplace.
The Tribunal also had a discussion with Mr Fernandez regarding the employment of the applicant in the business and had a general discussion about Mr Fernandez’s business interests, his other companies, including his mobile engineering business, and his farm related business and the nature of the maintenance of heavy plant and equipment in that part of his business. The Tribunal notes that he stated that at this point of time he currently employs approximately 35 employees as mechanics and associated workers and that in his workplace at Christy Motors approximately half his employees are temporary visa holders and half are Australian citizens. He acknowledged that he has a lot of temporary visa holder employees employed as mechanics but stated that it is difficult to get such employees with expertise in the field and that such workers are economically viable and particularly good employees.
In regard to the duties and responsibilities of the applicant Mr Fernandez stated that the applicant undertook specific duties for the workshop foreman, Mr Danny Westinghouse, which stood him in good stead for the specialist work involved in installing forklifts into trucks in his current employment.

The Tribunal has considered the evidence given by the parties very carefully and finds that the applicant was engaged by Christy Motors Pty Ltd for the period of time stated and that that company performs mechanical engineering and vehicle repairs with their clients and that credible evidence has been provided that the applicant has been present in the workshop engaged as a mechanic for the time specified.
The Tribunal also finds that the applicant has genuine skills as a motor mechanic, which is attested to by the skills assessment undertaken by Trades Recognition Australia under the ‘Job Ready’ scheme and that a comprehensive skills assessment was undertaken and successfully completed by the applicant. The Tribunal has viewed the evidence provided from Sunraysia Institute and VETASSESS.
The Tribunal has also considered the status of the Nondisclosure Certificates referred to above and finds that although valid they are immaterial to the merits of the case.
In summary, the Tribunal is satisfied that the applicant has not provided bogus or misleading documents to the Department in support of this application, as defined in PIC 4020(5).
Therefore, the applicant meets 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).
The Tribunal is satisfied, on the basis of the known information before the Tribunal, that there is no adverse information before the Tribunal concerning the applicant or any member of the family unit (as defined in r.1.12) as having been refused a visa in the relevant period because of a failure to satisfy PIC 4020(1).
Therefore, PIC 4020(2) is met.
Has the visa applicant satisfied the identity requirements?
PIC 4020(2A) requires an applicant to satisfy the Tribunal as to his or her identity.
On the basis of the information and evidence before the Tribunal, the Tribunal is satisfied that the applicant has met the identity requirements required under PIC4020(2A).
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 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).
As the applicant has met the requirements of PIC4020(2A) the Tribunal is satisfied that PIC4020(2B) does not apply.
Therefore PIC 4020(2B) does not apply.
On the basis of 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
Stephen Witts
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.
…

[2023] AATA 494

15 March 2023

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

Natural Justice

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