O'SHEA (Migration)

[2018] AATA 5627

O'SHEA (Migration) [2018] AATA 5627 (2 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Alan O'SHEA

CASE NUMBER:  1719784

DIBP REFERENCE(S):  BCC2016/3171782

MEMBER:Jennifer Cripps Watts

DATE:2 October 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled Independent (Permanent) visa.

Statement made on 02 October 2018 at 1:34pm

CATCHWORDS
MIGRATION – Skilled – Independent (Permanent) (Class SI) visa – Subclass 189 – provide a bogus document or false or misleading information – lack of reliable or corroborative evidence of employment – carpenter – non-appearance at hearing – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 362A

Migration Regulations 1994, Schedule 2, cls 189.214, 189.215, PIC 4020

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
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 11 August 2017 to refuse to grant the applicant a Skilled Independent (Permanent) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 23 September 2016. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.189.215 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant met Public Interest Criteria (PIC) 4020 because he provided or caused to be provided a bogus document or false or misleading information in relation to his visa application.

3. The applicant applied for the subclass 189 visa on 23 September 2016.  It was refused on 11 August 2017 and he applied for merits review with the Tribunal on 29 August 2017.  He provided the Tribunal with a copy of the Department’s decision to refuse his 189 visa that is the subject of this review.  His matter was constituted to this member on 19 July 2018 and, on the same day, an invitation to attend a hearing was sent to the applicant’s migration agent, Mr Denis Larkan (MARN 1387248), relying on the information that had been provided to the Tribunal when the review application was lodged.  The hearing was scheduled at 10:00am on 13 August 2018.

4. The applicant requested a postponement of his hearing due to his being overseas for personal reasons and has, since then, on 29 July 2018, withdrawn Mr Larkan’s representation.  He provided a form by email on that date notifying the Tribunal of a change to his contact details and these details have been used by the Tribunal when contacting him (directly).  The Tribunal granted the postponement and, on 2 August 2018, the applicant was sent a second invitation for him to attend a re-scheduled hearing at 12:00pm on 2 October 2018. 

5. The applicant informed the Tribunal that he returned to Australia from Ireland on 29 August 2018.  He requested and was granted, on 30 August 2018, full access to documents under s.362A of the Act.  On 7 September the applicant requested a second postponement of his hearing, essentially on the basis that he needed to appoint a migration agent and prepare for his hearing.  The request for postponement was considered and not granted.  Reasons were given.  They were that the hearing was still some three or so weeks away and the Tribunal’s view was that the applicant had already had a significant amount of time to prepare for his hearing and would also still have three weeks before the hearing to prepare and provide information, including appointing a new migration agent if he wished to.

6. The Tribunal has not, since the letter refusing the second postponement request was sent directly to the applicant at his nominated email address on 10 September 2018, received any response from the applicant.  He has not returned the response to the hearing invitation, as was requested, or advised whether he would attend his hearing.  He has not provided any additional documentary evidence as requested.  He has not informed the Tribunal that he has appointed a new migration agent, or that any of his circumstances or contact details have changed since he last provided changes to his details in July 2018. On 24 and 29 September 2018 the applicant was sent SMS hearing reminders.  They are taken to have been delivered to him, as they were not returned as undelivered.

7. The Tribunal is satisfied that the applicant was properly invited to his hearing and that the response to his second postponement request was notified to him in writing to his email address informing him that the postponement was not granted and giving reasons why.  The applicant was also reminded, in the letter sent to him on 10 September 2018 that the hearing would go ahead as scheduled and that he should provide any documents he wished to rely on.

8. The applicant did not appear before the Tribunal at 12 midday on 2 October 2018 and, at the time of this decision, has given no reason for the non-appearance.   

9. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.189.215 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).

11. 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.  Identity is not in issue and PIC 4020(2A) and (2B) do not apply.

12. The applicant did not attend his scheduled hearing at 12 midday on 2 October 2018.  The Tribunal is satisfied that he was properly notified of the hearing and made aware of the time and place of the hearing and also that he was invited to provide additional information in support of his review application.  In the circumstances which have been detailed above, the Tribunal has proceeded to make a decision on the information before it.

    Background

13. The following facts and matters relating to the applicant are not in dispute and have been provided by the applicant directly or are contained in the delegate’s decision, a copy of which was provided by the applicant when he lodged his review application.  The applicant:

    a.Is a 31 year old citizen of Ireland who was granted a subclass 417 visa in July 2015 ceasing on 26 September 2016

    b.First arrived onshore on 26 September 2015

    c.Has included in his application three dependants, Dearbhail Kenny born 1990 and Cian O’Shea, born 2015, and Daragh O’Shea, born 2012

    d.And the dependants included in the visa application are all citizens of Ireland

    e.On 23 September 2016, applied for the 189 visa that was refused and is the subject of this review

    f.Was offshore in July/August 2018 due to the death of his grandmother in Ireland

    g.Returned to Australia from Ireland on 29 August 2018.

14. The applicant’s skills and qualifications are not in dispute with regard to the review application.  The Tribunal accepts that the applicant satisfies English requirements and that he has a successful TRA assessment for the occupation of Carpenter.  However, without documentary evidence that supports the claim that the applicant worked full-time for ENCON and was paid a salary commensurate with that of a Carpenter working full-time, the Tribunal is not satisfied that it can be reliably found that the applicant did work for ENCON during the claimed period “and” was paid for 38 hours’ a week work from April 2013 to August 2015.

15. The applicant provided documents that indicate he and his family lived in Ireland before coming to Australia.  The documents have been considered.  None of the matters relating to their residence in Ireland are in dispute.  In his visa application, he provided the following work history, from 2007 to 2016:

    Ireland

    a.Carpenter, William Mullally Carpentry, 02/09/2007 to 31/08/2010

    b.Carpenter, ENCON, 01/04/2013 to 26/08/2015

    Australia

    c.Carpenter, Reliance Recruitment, 12/10/2015 to 16/12/2015

    d.Carpenter, Catalpa Group, 17/12/2015 to 28/02/2016

    e.Carpenter, Monford Group, 21/03/2016 to 17/04/2016

    f.Carpenter, Reliance, 18/04/2016 to 22/05/2016

    g.Carpenter, Duratec, 24/05/2016 to 30/07/2016

    h.Carpenter, Builder NSW, 15/08/2016 to 23/09/2016

16. The applicant indicated in his September 2016 application that for five years in the past 10 he had worked in the nominated occupation of Carpenter. 

17. The applicant provided evidence of having been awarded a Certificate III in Carpentry from Australian Construction Training Services on 22 July 2016.  He provided evidence of a satisfactory skills assessment from TRA for the nominated occupation of Carpenter (331212), also dated 22 July 2016.  The applicant provided an IELTS test indicating that on 21 February 2017 he achieved an overall band score of 8.0.

18. The letter on ENCON letterhead signed by Mr Walsh, Managing Director, dated 17 May 2016, indicates that the applicant was employed as a permanent full-time Carpenter and Joiner (38 hours per week) from 1 April 2013 to 26 August 2015 at ENCON and that he performed the following tasks and duties:

    a.Preparation and installation of doors and window frames

    b.Installation of floor boards, skirting boards, door saddles, window boards and architrave

    c.Hanging, hinging and locking of doors

    d.Making out, setting, cutting and erection of cut roofs

    e.Cutting, laying, levelling and bridging of floor joists

    f.Battening and flashing of roofs

    g.Tiling and slating of roofs

    h.Preparation of formwork for concreting

    i.Ensuring that all work is plumb and true and carried out to a high level of trade standards

19. The letter further states that the applicant, daily, used tools such as circular saws, jigsaws, routers, electric drills, tech gun, framing gun, pin gun, laser level and a range of wood cutting chisels, hammers, spirit level and plumb lines.  In the letter, Mr Walsh recommends the applicant to any future employer as a valuable employee.  In a phone call with a departmental officer, Mr Walsh told the officer that the company has records of the applicant’s employment.  Since then, despite being provided with an invitation to do so, the applicant has not provided any supporting evidence, such as records of employment that Mr Walsh says were available, or any additional documents that reliably indicate that the applicant worked for ENCON in a full-time position as a Carpenter during the claimed period of employment or that he was paid a salary by ENCON.

    Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?

20. 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.

21. 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.

22. 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.

23. In support of his skilled visa application, the applicant claims to have obtained overseas work experience as a Carpenter with CK Management (ENCON) from April 2013 to August 2015.  He provided some documents in support of his visa application, including the work reference letter date 17 May 2016, referred to above, signed by Managing Director Conor Walsh (Mr Walsh).

24. On 10 January 2017, when assessing the visa application, the delegate requested that the applicant provide additional documents in relation to his visa application, including additional evidence of employment.  The applicant responded on 1 March 2017 by way of a statutory declaration.  In the statutory declaration the applicant says that he was unable to provide any payslips for his period of employment with ENCON in Ireland.  He said that he was able to provide some payslips for various periods of employment with William Mullally Carpentry in Ireland (in 2007 and 2008), but not for all periods he says he was employed there.  He provided payslips for William Mullally Carpentry for three periods in October and November 2008, which are accepted by the Tribunal.  The applicant says that he was paid in cash by both these employers.

25. On 13 May 2017, a departmental officer sought to verify the applicant’s claimed work history with ENCON.  They spoke to Mr Walsh who confirmed he had provided the work reference referred to above (dated 17 May 2016).  Mr Walsh was asked whether he himself had written the reference and he said he had.  He said that the applicant had worked for him as a Carpenter, but he was not able to tell the officer, when asked, how long the applicant had worked for ENCON.  Mr Walsh was asked how the applicant was paid, whether it was in cash and whether payslips were issued.  Mr Walsh asked the officer to call him at a later time so he could provide the information. 

26. About a week after the officer’s first conversation with Mr Walsh, on 19 May 2017 they called him again (as Mr Walsh had requested) and again asked whether the applicant had been paid in cash and whether payslips were issued when he worked for ENCON during the claimed period of employment.  It is noted in the decision that the officer says Mr Walsh appeared hesitant to answer and said that the applicant would have been issued payslips as there are records of his employment with the company.  It is noted in the decision that this response was inconsistent with the applicant’s earlier claim that he was not issued payslips, which is the reason he gave for not being able to provide payslips from ENCON. 

27. Due to the conflicting nature of the information provided by the applicant and Mr Walsh regarding how they say the applicant was paid by ENCON and a lack of corroborative or reliable evidence as to the manner in which the applicant was paid, the delegate was not satisfied the applicant was employed by ENCON as a Carpenter during the claimed period, April 2013 to August 2015 as stated in the work reference and included in the applicant’s visa application.

28. At the time of this decision, there is no documentary evidence before the Tribunal that corroborates the information in Mr Walsh’s letter about the applicant’s employment with ENCON. 

29. Essentially, the applicant has stated that he was not issued payslips when he worked at ENCON and said that he was paid in cash.  The Managing Director has said that the applicant worked for ENCON and that he would have been issued payslips because the company has records of the applicant’s employment.  The delegate considered this inconsistency to be adverse information and, on 22 June 2017, invited the applicant to comment or respond within 28 days.  When the decision was made to refuse the visas that are the subject of this review, on 11 August 2017 (some 50 days later), the delegate has noted that there had been no response and no comments received from the applicant with regard to the adverse information.

30. The Tribunal has reviewed the available evidence.  The applicant and his former boss, Mr Walsh, gave opposite accounts as to whether he was provided payslips when he worked for ENCON between April 2013 and August 2015.  The applicant said he had been paid cash and had not been provided with payslips.  Mr Walsh said that the applicant would have been given payslips for his work.  Neither provided any corroborative evidence that demonstrated reliably that the applicant had worked for and been paid by ENCON during the relevant period from 2013 to 2015.  The applicant was invited by the delegate, before a decision was made about his visa, to respond to this adverse information within 28 days.  He did not respond or ask for any extension of time to respond.  Fifty days after he was invited to comment or respond, and with response or comment having been received, the delegate made a decision to refuse the visas because the applicant did not satisfy PIC 4020. 

31. At the time of application, the applicant did not claim there were any compelling circumstances that affect the interests of Australia; or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen:  PIC 4020(4).  Accordingly, the delegate found that the applicant did not meet PIC 4020(4).

32. In July 2018 the applicant was invited to his scheduled Tribunal hearing.  Due to the death of his grandmother in Ireland, he was granted a postponement and a second hearing was scheduled on 2 October 2018, which allowed the applicant time to travel to and return from Ireland and also to provide the Tribunal with any additional documents he wished to be considered.  The applicant has provided no additional documents.  He made a second postponement request three weeks prior to the re-scheduled hearing, which was not granted.  He did not attend the scheduled hearing and gave no reason for the non-attendance.

33. The Tribunal has had regard to all relevant facts and matters and does not accept, due to a lack of reliable or corroborative evidence, that the applicant worked for ENCON as indicated in his visa application and in Mr Walsh’s letter of reference, that is, as a full-time employee (38 hours per week) from April 2013 to August 2015, or that he was paid a salary by ENCON.

1. The Tribunal finds that the applicant provided, or caused to be provided, false or misleading information in his visa application and the work experience letter referring to his period of employment with ENCON as a full-time Carpenter.  It is required for the grant of the visa that the applicant meets the overseas points test criteria in cl.189.214, which is a material particular.

2. Therefore, the applicant does not meet PIC 4020(1).

   Should the requirements of PIC 4020(1) or (2) be waived?

3. The requirements of PIC 4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in r.1.03), that justify the granting of the visa. The decision-maker must first be satisfied that there are such circumstances, then must consider whether to exercise the discretion to waive the requirements, having regard to those circumstances: Kaur v MIBP [2017] FCAFC 184.

4. The expressions ‘compelling circumstances’ and ‘compassionate or compelling circumstances’ are not defined for these purposes. To be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied: see Plaintiff M64/2015 v MIBP [2015] HCA 50. The ordinary meaning of ‘compassionate’ relates to feelings of sympathy, sorrow, pity or concern for others.

5. At the time of this decision, the applicant has not claimed or provided any evidence indicating that there are any compelling circumstances that affect the interests of Australia; or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen:  PIC 4020(4). 

6. Therefore the requirements of PIC 4020(1) and (2) should not be waived.

7. On the basis of the above, the applicant does not satisfy satisfy PIC 4020 for the purposes of cl.189.215.

   DECISION

8. The Tribunal affirms the decision not to grant the applicant a Skilled Independent (Permanent) visa.

   Jennifer Cripps Watts
   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. 

   …