Mankoo (Migration)

[2020] AATA 5957

Mankoo (Migration) [2020] AATA 5957 (25 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Paramjit Mankoo
Mrs Avninder Kaur

CASE NUMBER:  1909684

DIBP REFERENCE(S):  BCC2018/1623613

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:         25 November 2020 at 2:33 pm (VIC time)

DATE OF WRITTEN RECORD:                11 December 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions under review.

Statement made on 11 December 2020 at 3:46pm

CATCHWORDS
MIGRATION – Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 (Skilled – Nominated) – false or misleading information – statutory declaration – employment history – worked in breach of conditions on Student visa – bogus document – work reference letters – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 190.216; Schedule 4, PIC 4020

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 4 April 2019 to refuse to grant the visa applicants Skilled Nominated (Permanent) Subclass 190 visas under the Migration Act 1958 (the Act).

2. At the hearing on 25 November 2020 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

3. Mr Mankoo, you have been in Australia since 27 April 2009 when you arrived on a Student visa. 

4. You lodged this application for a subclass 190 Skilled Nominated permanent visa on 11 April 2018.  Your application was refused on 4 April 2019 because the delegate found you did not meet a criterion in clause 190.216, which is a mandatory requirement, and which deals with what are known as Public Interest Criteria (PIC).  You appealed that decision to be reviewed by this Tribunal and with your application you included a copy of the primary decision which you told the Tribunal you had read and understood.

5. I read from that decision today in some detail and we discussed it and I am satisfied that you do have a reasonable understanding of why the delegate made the decision to refuse your application.  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 says that to satisfy this criterion there is no evidence before the Minister or in this case the Tribunal, 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 a visa. 

6. In your case the delegate found that in support of your application you had provided evidence that created a breach of PIC4020.  Reading from the primary decision which we did earlier on today, it goes through and details the fact that you provided a range of documents and a range of statements about when you worked at various properties, and when and how you were paid.  The delegate was concerned with some issues and found there was inconsistency in the evidence provided.

7. You provided work reference letters reading from that decision, the delegate says, “based on the evidence and information before me I am satisfied that the applicant has given to an officer in relation to this visa information, in the work reference letters, that is false or misleading in material, particular as it relates to the assessment of Australian employment in regards to regulation 190.216”. 

8. We had considerable discussion at today’s hearing about a number of issues and your agent Mr Gandhi has made representation on your behalf.  Mr Gandhi is a known and respected migration agent and has made representations that say that what should be taken into account is that you worked at both places, and he believes there is evidence that satisfies that you worked in those places, and therefore should be the given the credit that is required for the grant of a visa. 

9. The difficulty I have Mr Mankoo, quite frankly is that my concern and my question to myself is has there been false or misleading information provided and has there been any bogus documents provided.  There are a number of issues and questions that are raised that I raised with you today, the first (audio malfunction) that you spoke about in a recent statutory declaration: 

   While I was studying a Certificate III in Automotive on 12 September 2011.

10. Well, that is not a statement of fact as other evidence provided shows that you completed that course on 21 August 2011, but you say on that date you joined Ballarat Automobiles and started working as a motor mechanic part-time. 

11. There is a significant volume of evidence that is not in dispute that you worked at Ballarat Autos initially on a part-time basis but then you worked there on a full-time basis from July 2012 to November 2014.  You told the Tribunal that you remained on a Student visa until May 2013, at which stage you went on to a Bridging visa before applying for a 457 visa.  Which means that there was an extended period of time while you were on a Student visa that you were working in breach of conditions of that Student visa.  So, for me that raises some problems.

12. There are also other dates that concern me, but I intend restricting myself to the evidence you have provided in the form of references.  There are two references provided from employers, one from Ballarat Automobiles signed by a Chandra Ant and dated 30 November 2014.  It is a reference that goes for two-and-a-half pages and it states that he has completed all normal tasks as a motor mechanic.  His communication skills with managers, staff, customers, suppliers, they are all very good.  Besides being an efficient and quick learner, he always arrives at work on time et cetera et cetera.  You provided a reference from a Mr Tim Farley, managing director of Ultratune Corio dated September 21, 2017, some three years later. 

13. That reference stated he has completed all the normal tasks of a motor mechanic.  His communication skills with managers, staff, customers, and supplies, are very good.  Besides being efficient and quick learner, he always arrives at work on time.  This is just an example extract, the point that I am making is that these documents that are both a couple of typed pages long are identical in wording.  They go on to talk about tools and equipment used as one heading.  The next heading is safety equipment used, except instead of saying safety equipment it says safety equipments and it says safety equipments on both of them.  It goes through and talks about things that you have used, and it notes steel capped shoes, hazards sings (sic) et cetera, and you said that is supposed to be hazard signs.  However, both of them have listed exactly the same words the safety equipment used and they both refer to hazard sings et cetera. 

14. They finally both finish saying he is a person of Good character and I wish him good luck for his future.  Both of them capitalise the word good when referring to your character which is highly unusual.  The fact that these documents have identical content as far as I am concerned is not a coincidence and they lead me to the reasonable suspicion that one or both of these documents are bogus.

15. You also provided two references from supposedly independent customers at Ballarat Autos where you worked.  They are both of almost identical length and they both finish by saying, I wish him a very Bright Future.  And the unusual thing here is that in both of them bright future is capitalised.  Once again, I do not believe it is coincidence, I believe that these are bogus documents. 

16. As I said to you, in considering whether you satisfy clause 190.2160 there are two steps in the process.  Firstly, the Tribunal must consider whether you have provided evidence that has created a breach of PIC4020 and if satisfied that such a breach has occurred, it must consider whether the requirement to meet PIC4020 should be waived because it can be waived if there are compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen, a permanent resident, or an eligible New Zealand citizen which would justify the granting of a visa.  We discussed that, you said you understood it.  Mr Gandhi your agent tells me that you have discussed the waiver provisions and there are no circumstances in which there would be a waiver. 

17. Consequently Mr Mankoo, on the evidence available and what you have told me today I have reasonable grounds for suspicion that the references you have provided in support of your application are bogus.

18. Therefore, the Tribunal is satisfied that you have provided bogus documents in breach of a PIC4020 and therefore do not satisfy clause 190.216.  In the circumstances it is the decision of the Tribunal to affirm the decision under review, which means the decision of the Department remains.

19. This decision was made at 2.33 pm on 25 November 2020. 

    DECISION

20. The Tribunal affirms the decisions under review.

    Tim Connellan
    Member