Lenin Sha Latheef (Migration)

[2022] AATA 2635

Lenin Sha Latheef (Migration) [2022] AATA 2635 (28 April 2022)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Mr Lenin Sha Latheef Mrs Rubiya Lenin Sha Miss Jewel Lenin

REPRESENTATIVE:  Mr Kenneth Yau (MARN: 1569582)

CASE NUMBER:  1927602

HOME AFFAIRS REFERENCE(S):           BCC2016/3221009

MEMBER:  Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:          28 April 2022 at 3:44 pm (VIC time)

DATE OF WRITTEN RECORD:                13 May 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the decisions under review with the direction that the first named applicant satisfies PIC 4020 for the purposes of cl.190.216.

Statement made on 13 May 2022 at 2:46pm

CATCHWORDS
MIGRATION –Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 – Computer Network and Systems Engineer – Offer of Employment was false and misleading – form of payslips and the offer of employment are genuine documents– decision under review remitted

LEGISLATION
Migration Act 1958, ss 65
Migration Regulations 1994, Schedule 2, cl 190.216

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 26 September 2019 to refuse to grant the visa applicants Skilled Nominated (Permanent) Subclass 190 visas under the Migration Act 1958 (Cth) (the Act).

1. At the hearing on 28 April 2022 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

1. Mr Lenin Sha Letheef, you lodged this application for a subclass 190 skilled independent visa on 28 September 2016, nominating your occupation as Computer Network and Systems Engineer.

1. Your application was refused on 26 September 2019 because the delegate found you did not meet a criterion in 190.216 which deals with a mandatory requirement and what are known as Public Interest Criteria that we refer to as PIC and pronounce PIC. You appealed that decision to be reviewed by this Tribunal, with your application you included a copy of the primary decision which you initially told the Tribunal you had read and understood, but then claimed you did not have an understanding, so I read from that decision at some length and we discussed it and it appears you now have a good understanding of why the delegate made the decision to refuse your application.

1. To be eligible for the grant of a 190 skilled visa, an applicant must satisfy a range of criteria set out in the regulations, one of those is PIC 4020 which states that to satisfy this criterion, there is no evidence before the Minister, or in this case the Tribunal, that the applicant has given, or caused to be given, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa.

1. In your case, the delegate found that in support of your application, you provided evidence that created a breach of PIC 4020. The delegate found that the Offer of Employment provided on 19 December 2005 from Maifloer Marketing Services, misrepresented your actual work experience and was therefore false and misleading in a material particular.

1. It found that that was a bogus document and subsequently found that your skills assessment dated 24 June 2015 issued by the Australian Computer Society, which included evidence of that employment from Maifloer Marketing Services was also a bogus document. In summary, your situation is that you claim you were employed in this business Maifloer Marketing Services from 2006 to 2011 in the position of Network and Systems Engineer.

1. And that was until 30 March 2011. In support of that, you provided a range of evidence including an Offer of Employment signed by Sanal V Thomas, a salary increase letter signed by the same fellow and a resignation acknowledgement signed by the same fellow. The department conducted integrity checks in 2018. Given that your employment ceased in 2011 these verification attempts were clearly a number of years after the event.

1. And those verification attempts involved a number of phone calls. The department rang and spoke to a fellow called Mr Lenu George, who advised he was a director of the company. The department states that they rang a phone number they say was listed as the number for the company.

1. Well having done some research, I have got to say, the number they rang is not the number listed on any of the documentation provided from Maifloer Marketing Services, which was the company that stated you worked for.

1. In brief history, Maifloer Marketing Services transitioned at some stage towards the end of 2010 to 2011 and changed its name to Maifloer (spelt the same way) Technologies. And also changed directors. The Tribunal is unable to determine exactly when that happened however it was at some stage around then.

1. The result was that the company Maifloer Marketing Services with a sole director Sanal Thomas changed to Maifloer Technologies with the sole director Mr Lenu George.

1. I suspect that when the department rang Maifloer Technologies, as it has become, and spoke to somebody who declared himself to be a director, they spoke to Mr Lenu George who was a director of the company at that time but had not been a director or involved with the company Maifloer Marketing Services when you worked there.

1. Mr George told the Department officer they had never had an employee of your name and did not have a position with the title of Network and Systems Engineer.

1. Following that, when that was put to you under a Natural Justice letter you provided a statutory declaration from the older director, Mr Thomas. You provided a statutory declaration of your own and a letter from the solicitor that pointed out that you believed, or your lawyer believed, that your client had no relationship with the new business or its employees or directors, the business structure and operations had changed due to the changeover and the department’s investigations were carried out with a different company and business.

1. The department then contacted both the old director and the new director. The old director Mr Thomas confirmed that he had left the business and the new director said that he had spoken to the old director and confirmed that you were a former employee but he did not share any details about your employment. It was noted that you had provided payslips for 2011 when Mr Lenu George confirmed that Marketing Services Proprietary Limited was closed down in 2010.

1. The Tribunal has a number of concerns about the dates of events however, you provide an explanation that says in December 2010 you were approached by Mr Sanal Thomas who advised you that he was selling the business which would cease trading and he suggested you should look for another job.

1. There were a number of clients to whom you were providing services and so from December 2010 to March 2011, you worked from home for Maifloer Marketing Services and were paid by them and received a resignation letter at the end of March and a letter of thanks in early April 2011.

1. You accepted a job in Saudi Arabia which you commenced in early April 2011 meaning you left India and went to Saudi Arabia and have had no contact or any involvement with the company since that time.

1. The Tribunal finds that story makes sense and I believe that what you say is probably correct, that the Department contacted the company they looked up as Maifloer, spoke to the director Lenu George who had no idea who you were and that is what he told them. It was primarily on the basis of that conversation they made the decision that the evidence you had provided was bogus and/or false or misleading.

1. As I say, I believe the story that you have told me, I believe to be true, I believe that the evidence you have provided in the form of payslips and the offer of employment dated 19 December 2005, are genuine documents and I do not believe that you have provided any evidence that is either bogus or false and misleading.

1. Consequently the Tribunal finds that you have not breached PIC 4020(1) and therefore, find that you do satisfy clause 190.216. Given those findings, the Tribunal will remit the matter to the Department for reconsideration with the direction that you satisfy clause 190.216.

1. Having found that the primary applicant meets the essential criteria referred to above, the appropriate course is to remit the application of the secondary applicants for reconsideration.

DECISION

1. The Tribunal remits the decisions under review with the direction that the first named applicant satisfies PIC 4020 for the purposes of cl.190.216.

Tim Connellan Member