Parker (Migration)

[2019] AATA 6567

Parker (Migration) [2019] AATA 6567 (20 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Vera Parker

VISA APPLICANT:  Mr Sergei Kotov

CASE NUMBER:  1809929

DIBP REFERENCE(S):  BCC2017/4286046

MEMBER:Ian Garnham

DATE:20 November 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a subclass 600 (Visitor) visa:

·Public Interest Criterion 4020 for the purposes of cl.600.213 of Schedule 2 to the Regulations.

Statement made on 20 November 2019 at 3:56pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 – decision under review remitted – bogus document – false and misleading in material particular – allegedly provided false employment information – extensive, compliant travel history to Australia – established financial and employment history – no benefit to falsifying employment information – no evidence of non-compliance with previous visas – credible witness – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.213, 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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 15 February 2018 to refuse to grant the applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2.    The applicant applied for the visa on 15 November 2017.

3. The Departmental (Department of Home Affairs (DOHA)) delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.600.213 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because they found that:

• The visa applicant had provided a bogus document (work reference letter) to the Minister;

• and/or information (information about his employment) that is false and misleading in a material particular,

• and there were not  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; that justify the waiving of the requirements and the granting of the visa.

4.    The review applicant appeared before the Tribunal on 23 August 2019 to give evidence and present arguments. The visa applicant who is a brother of the review applicant gave evidence by conference telephone.  The Tribunal also received oral evidence from the review applicant’s daughter, Anastasia Alexeenko. 

5.    The Tribunal hearing was conducted with the assistance of an interpreter in the Russian and English languages.

6.    For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.600.213 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).

8.    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?

9.    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.

1. 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.

2. 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.

Background:

1. The provenance of this matter is a tourist visa application made by the visa applicant and lodged in November 2017.  The visa applicant is the 56yo brother of the 65yo review applicant.  His niece, Ms Alexeenko; organised the application to coincide with her mother’s recuperation from bunion surgery and also so the visa applicant could attend other family reunion events in January and February 2018.  The visa applicant nominated a visa period of up to 3 months in early 2018 for these purposes. 

2. At the hearing the visa applicant said that he now seeks the visa to come to Australia at any time in the short term future.  He also said he is not able to come immediately because he is working (and only has available annual holidays) and has other commitments that would prevent immediate travel.       

3. The visa applicant was born in Uzbekistan and travels on a passport issued by the Russian Federation.  He has travelled to Australia many times.  He first came on a Tourist visa in March 1995.  Since then he has visited Australia on at least 10 occasions.  From June 1997 until late 2011 he came on subclass 456 Business (Short Stay) visas.  At the hearing he told the tribunal he imported Australian meat to Russia during this period. 

4. Since 2012 he has again visited Australia 3 times on tourist visas.  On 2 of these occasions he has come with his family, with the last visit occurring for six months from October 2014 to April 2015.  There is no evidence in the Movement Details of the visa applicant or before the tribunal that he has failed to comply with his visa conditions throughout any of his numerous previous trips to Australia.

Information provided by the applicant concerning his employment:

1. With the application the visa applicant provided the following employment information:

• A translated copy of his resume/work history[1];

• A translated copy of a letter from his then employer (Limited Liability Company, Trade World) dated 10 November 2017[2] stating that he works as a sales manager and has leave for the period; 01/02/2018 – 01/04/2018.

  [1] At FF: 27 – 32 (DOHA)

  [2] At F: 47&48 (DOHA)

1. According to the DOHA delegate the visa applicant also provided the following document:

• A reference letter from his employer indicating that the visa applicant had; …been employed there as a commercial director in Blagoveshchensk since 15 December 2015.

1. The delegate sought to clarify the visa applicant’s employment details and conducted a telephone interview with the visa applicant on 8 January 2018.  The visa applicant stated that he could not remember when he commenced work with his current employer.

2. In response to a request from the delegate, on 19 January 2018 the visa applicant provided the following document:     

• An untranslated copy of a Pension Fund Certificate for the visa applicant indicating the visa applicant has had no paid employment since 2014[3];

  [3] At FF: 39 – 46 (DOHA)

1. On 2 February the visa applicant provided the following documents:

• A translated copy of a service agreement dated 12 May 2015[4];

  [4] At FF: 34 – 37 (DOHA)

1. A translated copy of a reference letter from the visa applicant’s employer “Trade World” dated 31 January 2018 stating he had been employed under a paid service agreement dated 12 May 2015[5].  This letter also states: …with current legislation, premium payments to Pension Fund are not transferred under such agreements.[6]  (emphasis added)

   [5] At FF: 33&38 (DOHA)

   [6] At F: 29 (AAT)

2. Based on the delegate’s consideration of these documents and the visa applicant’s responses at interview as well as their understanding of Russia’s employment and Pension Fund laws the delegate concluded that;

• The Pension Fund certificate indicates [the visa applicant] had no paid employment since 2014.

• The original work reference letter referred to in paragraph 17 does not indicate the visa applicant’s regular salary.

• The service agreement indicated that the visa applicant offered a one off service for fixed payment and the visa applicant had no entitlement to recreational leave.

1. The delegate stated:

   According to Russian labour legislation, an official position of company commercial director implies on-going employment with the regular salary stream and mandatory deductions to the Pension Fund made by employer on employee’s behalf.

2. The delegate went on and found, based on the evidence before them the original employment reference and the visa applicant’s statements at interview contradicted the terms of the service agreement.  They therefore considered that the visa applicant had not been employed by the employer on a regular basis as commercial director since 15 December 2015.  Based on this information the delegate found that the visa applicant had …given a bogus document within the meaning of section 5(1) of the Migration Act or information that is false or misleading in a material particular…

3. At the hearing the visa applicant provided the tribunal with the following further information:

• When the visa applicant lodged his application he was unaware that his employer was not paying benefits to his pension benefit scheme.

• When he entered into the employment contract with employer he believed his pension entitlements were being paid.

• He worked at Torgovyy Mir from May 2015 until June 2018.

• It is a construction company and his title was commercial director but he was a salesman and was paid by commission on sales.

• The visa applicant is a qualified motor mechanic and claims he was doing extra mechanic jobs to supplement his income during his employment at Torgovyy Mir because he was so lowly paid by them.  For example he did such employment in the period; 21/06/2018 – 12/09/2016 for which he was paid pension fund payments.

• In June 2018 the visa applicant left Torgovyy Mir and moved to Moscow where he is employed as an auto mechanic and his pension entitlements are paid into the fund.

Consideration:

1. Having considered closely all of this information and the delegate’s Decision Record I am not satisfied that they have correctly analysed this matter.  None of the documents or the evidence of the visa applicant before the tribunal contradicts his account of his employment that has been under consideration.   

2. In addition, based on the background of the visa applicant that I have set out above, he had absolutely no reason to, or very little to gain, by falsifying his employment information.  He has an extensive, compliant previous travel history to Australia.  He is 58yo, and clearly has his own established financial and employment history that is closely associated with Australia and he had nothing, or very little, to gain by falsifying his employment information.  He also has a family in Russia with whom he has previously travelled to Australia. 

3. All of the indicators are that he merely wishes to visit his sister for a short, temporary period, whilst on leave from his employment, to assist her with her recuperation, before returning to his employment and family.  There is simply no reason for him to submit bogus documents or provide information that is false or misleading in a material particular.

4. The visa applicant and the review applicant and her daughter were credible witnesses and the evidence before me does not support a finding that the visa applicant has submitted bogus documents or provided information that is false or misleading in a material particular.

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)?

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).

2. There is no evidence before the tribunal that the visa applicant or any members of his family unit  have been refused a visa in the relevant period because of a failure to satisfy PIC 4020(1)

3. Therefore, PIC 4020(2) is met.

Has the applicant satisfied the identity requirements?

1. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.

2. With the application the visa applicant provided various identity documents, including; his police check certificate[7], a translated copy of his birth certifcate[8], a translated copy of his Military Service Record Card[9], a translated copy of his Marriage Certificate[10] and a copy of his passport[11].  I am satisfied as to the identity of the visa applicant.  

   [7] At F: 15&16 (DOHA)

   [8] At FF: 48&49 (DOHA

   [9] AT FF: 53 – 55 (DOHA)

   [10] At FF: 56&57 (DOHA)

   [11] At F: 52 (DOHA)

3. Therefore, the applicant meets PIC 4020(2A).

Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?

1. 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).

2. There is no evidence before the tribunal that the visa applicant or a member of his family unit has been refused a visa in the relevant period because of a failure to satisfy PIC 4020(2A).

3. Therefore PIC 4020(2B) is met.

4. On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl.600.213.

DECISION

The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a subclass 600 (Visitor) visa:

·Public Interest Criterion 4020 for the purposes of cl.600.213 of Schedule 2 to the Regulations.

Ian Garnham
Member

ATTACHMENT

Migration Regulations 1994

Schedule 4

1. (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. 

…