Lee (Migration)

Lee (Migration) [2017] AATA 659 (1 May 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Gijung Lee
Ms Ahyoung Oh
CASE NUMBER:  1511667
DIBP REFERENCE(S):  BCC2014/3457815
MEMBER:Antonio Dronjic
DATE:1 May 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 457 (Temporary Work (Skilled)) visas:
·Public Interest Criterion 4020 for the purposes of cl.457.224 of Schedule 2 to the Regulations.
Statement made on 01 May 2017 at 9:35am

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 – Bogus document – Skills, qualifications and/or employment background – False or misleading information – Verification of applicant’s employment – Credibility of witness

LEGISLATION
Migration Act 1958, ss 5(1), 65
Migration Regulations 1994, Schedule 2, cl 457.224, 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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 11 August 2015 to refuse to grant the applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 16 December 2014. The delegate refused to grant the visas on the basis that the first named applicant (thereafter the applicant) did not meet the requirements of Public Interest Criteria (PIC) 4020 for the purposes of meeting cl.457.224 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
According to the primary decision record submitted by the applicants to the tribunal, the delegate found that the applicant provided false and misleading information in the form of an employment reference letter from Youngduk Daegae Restaurant (the restaurant) from Korea. The departmental verification of the applicant’s employment indicated that the author of the letter did not issue the certificate of employment and that the applicant had not worked in the occupation as stated in the work reference.
During the telephone conversation held on 28 May 2015 between the officer of the department and Mr Lee, who was the owner of the restaurant, Mr Lee informed the department that the applicant worked as a kitchen hand on a part time basis for around 1 year in 2013; was paid KRW 1.5 million per month in cash and that he never issued reference letter for the applicant.
On 29 June 2015, the Department invited the applicants to comment on adverse information which if accepted would lead to a finding that the applicant did not satisfy PIC 4020.
In his response, the applicant submitted statements (with translation) from Mr Lee and his wife Ms Geumok Seo dated 18 July 2015 (who works as a head chef at the restaurant). Both of them stated that the applicant worked at the restaurant as a cook for a total of 34 months, from March 2009 to March 2011 and between March 2013 and November 2013.
The applicants lodged an application for review of the delegate’s decision with the Tribunal on 26 August 2015. The applicants were represented in relation to the review by their registered migration agent.
On 14 February 2017 the Tribunal wrote to the applicants advising her that it considered material before it and was unable to make a favourable decision on this material alone and invited the applicants to attend the hearing on 6 April 2017.
On 28 March 2017, the applicant’s representative submitted the following relevant documents:
·Certified copy of Statement from Mr Lee dated 17 March 2017 (English Translation and Korean); in which he stated that he was confused at the time he received a call from the immigration department; that he mistakenly thought that the immigration officer inquired about another person who worked as a cook for 1 year; reiterating his previously provided statement that the applicant worked at the restaurant as a cook for a total of 34 months, from March 2009 to March 2011 and between March 2013 and November 2013; that he told the officer of the immigration that he had not provided certificate of employment for the applicant because he was not sure if the phone call was a scam; that, after the conversation with the department, he remembered that in October 2014, he had personally written the certificate of employment for Mr Gijung Lee and submitted it and that he realised his mistake and waited for the immigration department to call him back.
·Certified copy of Statement from Kyungsook SEO, a former employee of the restaurant who initially answer the call from the department of immigration; explaining why she stated during the telephone conversation that she did not know the visa applicant (English Translation and Korean);
·Certified copy Statement from Mr Lee regarding the spelling of his name (English Translation and Korean);
·Certified copy Certificate of Business Registration of Youngduk Daegae Restaurant;
·Bundle of photographs depicting the applicant working at the restaurant; and
·Current Organisation Chart of Youngduk Daegae Restaurant.
The applicants appeared before the Tribunal on 6 April 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Jeaboem Lee (the applicant’s former employer from Korea) who attended the hearing in person. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.
The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing. I explained the Tribunal procedures and requirements of PIC 4020(1) and PIC 4020(4) relevant to the application.
The applicant is 26 years of age citizen of Korea where he completed the equivalent of year 12 and lived with his parents. Together with his partner, he first arrived in Australia on 17 December 2013 holding a working holiday visas.
He confirmed in his evidence that he applied for a subclass 457 visa on 16 December 2014 and that, with his application, he submitted the work reference letter from Youngduk Daegae restaurant dated 25 October 2014. He explained that, prior to applying for 457 visa, he spoke to Mr Lee and asked him to provide the work reference letter. Mr Lee sent this certificate of employment to the applicant by mail and the applicant forwarded it to the department with his visa application.
He stated that he commenced his employment at Youngduk Daegae Restaurant in March 2009. I asked the applicant if he had any relevant educational qualifications to work as a cook at this restaurant and he stated that he did not. I asked the applicant of he had any prior work experience relevant for the occupation of a cook and he stated that he worked as a cook at Rimini Restaurant in Korea from 2007 to 2009. Initially he was employed as a part time kitchen hand and from 2008 he worked as a full time cook.
The applicant confirmed that he provided his Resume to the department with the visa application. I noted that in his Resume he did not mention any work experience acquired at Rimini restaurant. He stated that he attempted to obtain the work reference letter from Rimini restaurant but was unable to do so. That was the reason why he did not mention this work experience in his Resume.
He gave evidence that he completed year 12 in Korea in February 2009 and that he was a full time student. I inquired how was it possible to work as a full time cook from 2008 to 2009 and at the same time be a full time student in his final year of secondary education. He stated that he was working outside the school hours.
I inquired how he obtained a job at Youngduk Daegae restaurant considering that he had no formal qualifications relevant for this position and at best very limited work experience. He stated that he was a regular customer of Youngduk Daegae restaurant and that Mr Lee approached him and offered a job.
He gave evidence that he worked at the restaurant five days per week from 10am to 10 pm and was paid between RKW 2.5 to 3.5 million per month in cash. He never received any payslips from the employer and did not pay tax on his income. He believes that his employer deducted tax amount from his wages before paying his monthly salary. He did not have any work related insurance. At the relevant time, the restaurant employed one head chef, three cooks (including the applicant) and one kitchen hand named Mr Park.
I noted that with the review application, the applicant submitted bundle of undated photographs depicting him working at a restaurant. He stated that he does not remember when these photographs were taken. I asked him why he took these photographs. He gave evidence that Mr Lee took those photographs. I inquired why these photographs were not provided to the department with his response to the department’s invitation to comment on adverse information of 29 June 2015. He stated that he was not aware at the time that photographs exist.
I inquired if he was working as a cook during the military service he completed from May 2011 to February 2013 and he stated that he was not.
He gave evidence that Mr Lee personally signed all three statements (the original certificate of employment from 25 October 2014; Statement provided in response to departmental natural justice letter dated 18 July 2015 and Statement provided to the tribunal dated 17 March 2017). I requested and the applicant undertook to provide original statements in Korean language to the tribunal.
He stated that he cannot explain why Mr Lee stated during the telephone conversation with the department that he worked as a kitchen hand on a part time basis for around one year in 2013; that he was paid KRW 1.5 million per month in cash and that he never issued reference letter for the applicant.
I inquired if he or his partner is related to Mr Jeaboem Lee or his family and the applicant stated that they are not. I asked the applicant if he invited Mr Lee to come to Australia and give evidence in person. He stated that he did not. I asked if he paid for Mr Lee’s travel to Australia and the applicant stated that he did not. He believes that Mr Lee wanted to give evidence in person and clarify any misunderstandings.
The Tribunal invited the applicant to indicate if there were any compelling circumstances that affected the interests of Australia, or any compassionate or compelling circumstances that affected the interests of an Australian citizen, permanent resident or eligible New Zealand citizen, that are relevant to waiver provision and would justify the grant of the subclass 457 visa.
He stated that he does not wish to raise any such circumstances. He reiterated that he did not provide any false and misleading information to the department or this tribunal.
Oral evidence of Mr Jeaboem Lee
The witness confirmed his personal details. He stated that he is the owner of Youngduk Daegae restaurant located in Busan, Korea. He stated that he is not related to the applicant or his partner; that he came to Australia to give evidence in this matter and that he paid for the trave to Australia out of his own pocket. I inquired if he was aware that he could have given evidence over the phone and the witness stated that he was not informed of that option.
In his evidence he stated that in 2014, the applicant called him and asked for the work reference letter. He personally wrote and signed the certificate of employment of 25 October 2014 and sent it to the applicant by post. I presented a copy of the certificate to the witness and he confirmed that he wrote the certificate and that the signature appearing on the certificate is his signature.
The witness gave evidence that in 2009, he approached the applicant and offered him employment at his restaurant as he was his regular customer. At that time he needed additional cook. He did not ask the applicant about his formal qualifications or relevant work experience. He gave the applicant a knife and asked him to demonstrate his cookery skills.
He confirmed that the applicant was initially paid RKW2.5 million in cash and that his wages increased to RKW3.5 million. He confirmed that the applicant worked at his restaurant as a cook 5 days per week from 10 am to 10 pm.
He confirmed in his evidence that he took the photographs of the applicant working in the kitchen of his restaurant some 4-5 years ago and sent it to the applicant as additional evidence that he was employed there.
Mr Lee confirmed in his evidence that during the telephone conversation with the officer of the immigration department he informed the officer that the applicant worked as a kitchen hand on a part time basis for around one year in 2013, was paid KRW 1.5 million per month in cash and that he never issued reference letter for the applicant. He stated that he was confused and unable to fully understand the officer and his questions. He stated that he was running several businesses and was confused as to applicant’s identity. He stated that he only answered as yes and no as he was not able to understand English language.
I asked and he confirmed that conversation with the officer of the department was in Korean language. I asked why is than relevant that he was unable to understand English language at the relevant time. He stated that some words were spoken in English.
I asked and the witness confirmed that he provided a statement dated 18 July 2015. I inquired why in this statement he did not mention anything about him being confused and his mistaken belief that the departmental officer was inquiring about other person and not the review applicant. He offered no meaningful answer.
I inquired why in this statement he did not inform the department that the reason for stating that he did not provide employment reference for the applicant was his belief that the telephone call was a scam. Again, he offered no meaningful answer.
I raised the issue of Mr Lee’s credibility as a witness and explained the consequences of possible finding that he is not a credible witness.
I requested that all three of Mr Lee’s original statements in Korean language be provided to the tribunal by 18 April 2017 and indicated that I will consider sending these statements to department’s documents verification unit.
Evidence of Ms Ahyoung Oh, the secondary applicant
The witness, who is the applicant’s partner and person included in the visa application, stated that she first met the review applicant in 2008. She confirmed that he worked at Youngduk Daegae restaurant as she saw him on several occasions cutting lobsters and fish. The witness and the applicant did not live together in Korea.
On 11 April 2017, the applicant submitted the original statements from Mr Lee (the original certificate of employment from 25 October 2014; Statement provided in response to departmental natural justice letter dated 18 July 2015 and Statement provided to the tribunal dated 17 March 2017).
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.457.224 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: cl.4020(1); and
·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy cl.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: cl.4020(2) and (2AA); and
·the applicant satisfies the Minister as to his or her identity: cl.4020(2A); and
·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy cl.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: cl.4020(2B) and (2BA).
The requirements in cl.4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: cl.4020(4). However, this waiver does not apply to the identity requirements in cl.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 cl.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 cl.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 cl.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: cl.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 must make an assessment as to whether there is evidence that is sufficiently probative to lead to a conclusion that the applicant has given, or caused to be given, to the Minister, or an officer of the Department, the Tribunal a bogus document or information that is false or misleading in a material particular in relation to his application for subclass 457 visa.
The applicant conceded in his evidence that, with his visa application, he has provided the work reference letter from his past employer, Youngduk Daegae Restaurant dated 25 October 2014. In his evidence, he maintained that he was employed as a cook at this restaurant from March 2009 to March 2011 and between March 2013 and November 2013.
The documents subsequently obtained from his former employer confirmed this claim. It appears that documentary evidence submitted by the applicant in response to the department’s letter of 29 June 2015 was considered by the delegate in making the decision of 11 August 2015. According to the primary decision, it appears that the delegate was not satisfied that the adequate explanation was provided by Mr Lee in his statement of 29 June 2015, as to why he stated during the telephone conversation that he did not issue the original reference letter dated 25 October 2014.
Mr Lee provided additional explanation in his statement of 13 March 2017 and his oral evidence given at the hearing.

At the hearing, Mr Lee was presented with a copy of the certificate of employment from 25 October 2014 that the applicant submitted to the department with his visa application. The witness confirmed that he wrote the certificate and that the signature appearing on the certificate is his signature. The applicant and Mr Lee gave consistent evidence concerning the applicant’s employment at the restaurant.
The applicant provided a statement from Ms Kyungsook SEO, a former employee of the restaurant who initially answered the call from the department of immigration, explaining why she stated during the telephone conversation that she did not know the visa applicant.
The applicant’s partner stated in her evidence that the applicant was working as a cook at the restaurant.
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 his application for a subclass 457 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 paragraph 4020(1)
Public Interest Criterion 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 PIC4020(1) in the period commencing three years before the application was made to the present. There is no evidence before the Tribunal that the applicant and each member of the family unit have 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.
PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity. Having regard to the visa applicant's passport located on the Department's file the Tribunal is satisfied as to the visa applicant's identify. Therefore, the applicant meets 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 application is granted or refused. There is no evidence before the Tribunal that the applicant or members of his family have been refused a visa because of a failure to satisfy identity requirements during the relevant period. Therefore the applicant meets PIC 4020(2B).
On the basis of the above, the applicant satisfies PIC 4020 for the purposes of cl.457.224.
DECISION
The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 457 (Temporary Work (Skilled)) visas:
·Public Interest Criterion 4020 for the purposes of cl.457.224 of Schedule 2 to the Regulations.
Antonio Dronjic
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.
…

[2017] AATA 659

1 May 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction