Patel (Migration)

[2019] AATA 5582

Patel (Migration) [2019] AATA 5582 (21 November 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

REVIEW APPLICANT:  Mr Amitkumar Champaklal Patel

VISA APPLICANTS:  Mr Chiragkumar Champaklal Patel

Mrs Divyakumari Chiragkumar Patel
Master Shiven Chiragkumar Patel

CASE NUMBER:  1824660

DIBP REFERENCE(S):  BCC2017/3101964

MEMBER:  Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:         21 November 2019 at 1:07 am (VIC time)

DATE OF WRITTEN RECORD:                13 December 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Skilled Regional Sponsored (class SP) subclass 489 visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 489 visa:

·cl.489.211 of Schedule 2 to the Regulations.

Statement made on 13 December 2019 at 1:45pm

CATCHWORDS
MIGRATION – Skilled Regional Sponsored (Provisional) (Class SP) visa – Subclass 489 (Skilled – Regional (Provisional)) – bogus document – appointment letter – employment reference letter – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 489.211; 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 15 August 2018 to refuse to grant the visa applicants Skilled Regional Sponsored (Provisional) Subclass 489 visas under the Migration Act 1958 (the Act).

2. At the hearing on 21 November 2019 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. It is my intention to send this matter back to the department, with the instruction that you do satisfy the criterion 489.211 which was the reason your application was refused.

4. You applied for a Skilled Regional Sponsored 489 visa on 28 August 2017. Your application was refused on 15 August 2018 because the delegate was not satisfied that an appointment letter and a reference you had provided in support of your application were genuine documents.

5. The reference letter was dated 14 August 2015 and it stated that you had been employed as a light vehicle mechanic from 2 April 2012 to 2 April 2015. The delegate found this was not a genuine document and on that basis found that you did not meet Public Interest Criteria 4020 and therefore found you did not satisfy clause 489.211 and therefore refused your application.

6. There have been a substantial number of submissions, both to the department and some very good comprehensive submissions to the Tribunal by your agent, Mr Wilson. Included in those submissions are a number of documents that lead me to find that the document that you provided is not a bogus document and does not breach Public Interest Criteria 4020.

7. The situation is that you had a reference check done by VETASSESS back in October 2015, and as part of that assessment process they rang President Motors, your employer, and asked to speak to Mr Divya Fuliwallah who was the service manager that had signed the document that the department claimed was false or misleading.

8. You were given a phone number by someone at President Motors and their numbers are easy to be identified because they have a very substantial website; it is a big business. Somebody rang back and spoke to Mr Fuliwallah fellow and he claimed that you did work with that company as a motor mechanic. The delegate wasn’t satisfied and said, “The letters that he has provided could easily have been copied”. I look at the documents that are provided, including letters from Fuliwallah dated October 2015 and another dated 14 May 2018. I believe the signatures on them are the same and of those of the same person, and I am satisfied that those documents are genuine documents.

9. There has been, as I say, a substantial volume of information provided by your agent, including the fact that your assessment process was initiated and completed while you were working with President Motors.

10. You’ve had no other experience prior to this assessment process, although I’m not sure that’s exactly right because you were employed by President Motors having previously been employed as a mechanic elsewhere. However, as it says, you could not have successfully met the skills assessment requirement if you were not an experienced motor mechanic.

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1. I am satisfied that the letters and the evidence you’ve provided indicate that you were there, you did work during that time and I am therefore satisfied that the letters you provided are genuine and you did not breach Public Interest Criteria 4020.

2. Because of that, I therefore find that you do meet clause 489.211 and it is my intention to remit this matter back to the department with the direction that you do satisfy 489.211 and are not in breach of Public Interest Criteria 4020.

0.I don’t believe there is any need for me to go any further with this, but if there is anything you don’t understand, Mr Wilson will no doubt explain it to you.

DECISION

1. The Tribunal remits the application for a Skilled Regional Sponsored (class SP) subclass 489 visa for reconsideration, with the direction that the applicant meets cl.489.211 of Schedule 2 to the Regulations for the grant of a Subclass 489 visa:

   Tim Connellan
   Member

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