Patel (Migration)

Patel (Migration) [2018] AATA 5119 (6 December 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Vivek Rajnikant Patel
CASE NUMBER:  1812658
DIBP REFERENCE(S):  BCC2017/1042564
MEMBER:R. Skaros
DATE:6 December 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled Independent (Permanent) visa.
Statement made on 06 December 2018 at 12:44pm

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) visa – subclass 189 – false or misleading information – claimed overseas employment non-genuine – used to obtain skills assessment – discrepancies in Australian employment documents – non-genuine employment – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 65, 359AA, 375A
Migration Regulations 1994, Schedule 2, cls 189.212, 189.214, 189.215, public interest criterion 4020(5)

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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 27 April 2018 to refuse to grant the applicant a Skilled Independent (Permanent) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 16 March 2017. In the visa application form, the applicant indicated that he had been employed with Python Technologies since 12 July 2011 as a Computer Networks and System Engineer in Australia. The applicant did not provide details of any other employment on the visa application form, though he did indicate that he had been employed overseas for a period of less than 3 years in the past 10 years. In forms 80 and 1221, which were provided to the Department during the processing of the application, the applicant indicated that he had worked with Sculptsoft-India (Sculptsoft) as Computer Network and System Support between April 2010 and January 2011.
On the basis of background checks conducted by the Department, the delegate concluded that the applicant’s claimed overseas employment was non-genuine. The delegate also found that the applicant had relied on his overseas employment to obtain a suitable skills assessment from the Australian Computer Society (ACS) which had also been provided with the visa application. The delegate considered that the applicant had provided information that was false or misleading in a material particular to the Department and to the skills assessing authority. 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 the requirements of public interest criterion 4020 (PIC 4020).
The applicant provided a copy of the delegate’s decision record with the application for review.
The applicant appeared before the Tribunal on 20 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Ahmer Arif Ismail, the Director of Python Technologies, who was noted on the hearing response form as the applicant’s employer.
Non-disclosure certificate – 375A of the Act
The Tribunal received a copy of the Department’s file which included a non-disclosure certificate under s.375A of the Act. The certificate, which covered numerous folios, stated that disclosure of the information in the stated folios is contrary to public interest because the information indicates that Python Technologies is under investigation for fabrication of payslips in an unrelated application, that Python Technologies was subject to a five year sponsorship bar, that an ACS staff member is named in one of the folios and that some folios contain internal correspondence relating to Departmental operations ‘not related to the a subject application’.
At the hearing the Tribunal informed the applicant about the certificate and the nature of the information contained in the document covered by the certificate. The Tribunal informed the applicant that it had formed the preliminary view that the certificate is not valid and that in any case, the information covered by the certificate is either not related to his application or relates to information that has been disclosed to him and formed part of the decision record. The Tribunal noted that it did not consider the information relating to documents provided by another visa applicant in another visa application, his employer’s breach of sponsorship obligations and the associated sanction and internal correspondence regarding the status of investigation in an unrelated matter, to be relevant to his application. The applicant indicated that while Python Technologies had sponsored him for a temporary business Subclass 457 visa, he was not granted that visa and his employment with Python Technologies was not under the sponsorship visa programme. The Tribunal explained to the applicant that it would be considering his case on its own merits and on the basis of information that is specific to him. It noted that information regarding investigations or allegations of other persons providing documents from Python Technologies in respect of other visa applications is not, in the Tribunal’s view, relevant to his case and that the Tribunal will disregard that information from its considerations. In relation to the reference to ACS in the certificate, the Tribunal explained that this appears to only relate to the name of the officer who communicated with the Department, though in any case, the nature of the information in the correspondence from ACS was provided to the applicant for comment and was set out in the decision record.
As noted above, the Tribunal formed the view that the s.375A certificate is not valid because it merely describes the content of the documents covered by the certificate and does not provide a valid public interest reason for the non-disclosure. The Tribunal further notes that the information referring to documents of concern being provided in support of other visa application which are unrelated to the applicant’s application and information about the employer having a sponsorship bar, do not appear to have any direct bearing on the issues in this case. There is limited evidence before the Tribunal about the pay slips or documents provided in the unrelated matters and whether they related to the documents provided with this application. There is also limited evidence about the relevance of the sponsorship bar on Python Technologies given the applicant was not employed under the sponsorship programme. For these reasons, the Tribunal does not consider the information in the documents covered by the certificate, or the information in the certificate itself, to be of any evidentiary value, and for this reason it has excluded that information from its considerations.
Invitation to comment on or respond to information – s.359AA of the Act
During the processing of the review, the Tribunal sought further information from the Department regarding previous visa applications made by the applicant. As part of its response, the Department provided to the Tribunal copies of the application forms for the applicant’s previous Subclass 457 visa applications, together with the applicant’s resume and employment reference which had been provided with one of the applications. The information contained in those documents about the applicant’s previous employment was not consistent with the information that had provided as part of this visa application or in his oral evidence to the Tribunal. The information was also inconsistent with the evidence provided by Mr Ismail about the applicant’s employment with Python Technologies. As the information may have formed part of the reason for affirming the decision under review, the Tribunal, using the provisions in s.359AA of the Act, invited the applicant to comment on or respond the information. The particulars of the information and the applicant’s responses are the subject of detailed discussions further below.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the visa applicant meets PIC 4020 as required by cl.189.215 for the grant of the visa. Relevantly, 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).
The requirements in PIC 4020(1) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). 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?
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.
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.
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.
Evidence before the Tribunal
When applying for the visa, the applicant provided information and documents regarding his employment and skills assessment. In response to the question about employment undertaken in the preceding 10 years, the applicant provided details of employment with Python Technologies as a Computer Networks and System Engineer in Australia commencing 12 July 2011. The applicant also indicated on the form that he had been employed overseas for a period of less than 3 years in the past 10 years; however, he did not provide details of that employment in the visa application form. Details of the claimed overseas employment, however, were provided in other forms provided to the Department with the application, including forms 80 and 1221, in which the applicant indicated that he had worked with Sculptsoft in Computer Network and System Support between April 2010 and January 2011.
In relation to the skills assessment, the application form included the details of a suitable skills assessment in the occupation Computer Network and Systems Engineer issued by the ACS on 6 March 2017. The applicant provided a copy of that skills assessment to the Department. The skills assessment set out details of the applicant’s qualifications and employment experience. The qualifications included the applicant’s Diploma and Advanced Diploma in Information Technology (Computing) which he completed at the Sydney College of Business and IT on March 2010 and March 2011 respectively. The employment experience included details of employment with Python Technologies and Sculptsoft in India.
In support of his employment claims, the applicant provided to the Department an employment reference from Python Technologies dated 30 January 2017 stating that he worked there as a Computer Network and Systems Engineer on a part-time basis for 20 hours a week from 12 July 2011. The applicant also provided a letter dated 7 July 2011 addressed to him from Prashant Thakkar, Managing Director of Sculptsoft, wishing him well in his migration to Australia for education purposes and stating that he had recommended the applicant to Python Technologies in Sydney for whom they have been undertaking projects. The letter goes on to state that they have informed Python Technologies to offer the applicant a job and that he should contact Mr Ismail on the details provided.
On 27 March 2017, the Department requested further information, including evidence of the applicant’s Australian employment such as payslips, contract and tax documents. In response, the applicant provided the following documents:
·An employment contract from Python Technologies dated 4 July 2011 signed by the applicant and Mr Ismail on the same day.
·Documents entitled ‘Payment Advice’ issued by Python Technologies for the following periods of payment: 7 July 2011 to 30 June 2012, 7 July 2012 to 30 June 2013, 7 July 2013 to 30 June 2014, 7 July 2014 to 30 June 2015, 7 July 2015 to 30 June 2016 and 7 July 2016 to 10 March 2017.
·Documents entitled ‘Pay Advice’ issued weekly by Python Technologies for the period between July 2016 and March 2017 indicating that the applicant’s total payment per week is $385.84 based on 20 hours of work at a rate of $19.29 per hour.
·Notice of assessment issued by the Australian Taxation Office (ATO) for the applicant for the years ended 30 June 2015 and 30 June 2016.
·An ATO itemised tax account in the applicant’s name for transactions from 1 January 2014 to 10 April 2017.
·A letter from the applicant’s accountant dated 5 April 2017 stating that the applicant has been working with Python Technologies as a contractor from July 2011 and that tax invoices were issued by Python Technologies to the applicant for his personal tax purposes. It also noted that the applicant is about to enter into an income tax and GST payment plan with the ATO for the services performed at Python Technologies as his contract payment. A document from the ATO dated 26 November 2016 was provided regarding a payment plan.
The Department sought further evidence of the applicant’s pay and superannuation for the claimed periods of employment in Australia. In response, the applicant provided the following:
·Letters from Mr Ismail dated 26 May 2017 indicating that the applicant worked for Python Technologies as a part-time contractor and was paid in cash weekly and that on their records he gets $670 per week. It also noted that it was agreed that superannuation would not be paid.
·A statutory declaration from the applicant dated 25 May 2017 in which he states that he received weekly cash payments from Python Technologies and that he did not receive superannuation as agreed to in the contract.
·A statutory declaration from Ms Hiteshreeben Patel, dated 26 May 2017, stating that the applicant works for Python Technologies as a Computer Network and Systems Engineer. Ms Patel stated that she commenced employment with Python Technologies in July 2013 and has seen the applicant work there 20 hours a week. She stated that she and the applicant are paid in cash by Python Technologies as they are part-time contractors.
On 27 July 2018, the Department wrote to the applicant and invited him to comment on information, which the officer considered to be false or misleading, or documents considered to be bogus. The applicant was also invited to provide information regarding the waiver, as provided for in PIC 4020(4).
In referring to the information and documents provided by the applicant in support of his application for the visa, which the Tribunal has already itemised above, the departmental officer set out the concerns, inconsistencies and discrepancies in the evidence pertaining to the applicant’s claimed employment with Python Technologies as follows:
·The officer was concerned that the payslips (the weekly pay advice documents) did not provide any information about the applicant’s leave as provided for in the contract of employment.
·The officer noted that it was unclear from the documents whether the applicant was working as a sole trader/part-time contractor, as he claimed to pay GST himself, or as a part-time employee, given the employment contract provided leave entitlements.
·The officer noted that while the payment advice (annual payment advice) referred to the applicant being a contractor, this was not reflected in the employment contract or work reference dated 30 January 2017. The officer further noted that the payslips specified that the applicant is paid $19.29 per hour while company records indicated that the applicant received $670 a week which is equivalent to $33.50 per hour at 20 hours a week.
·The payment advice issued by Python Technologies for the year ending 2016 showing $22,981.20 is not consistent with the calculated annual income of $19,968 at $19.29 per hour for 20 hours a week or the income declared in the ATO tax assessment notice assessment for the year ending 30 June 2016 showing $46,617, or the company’s records and recent statement made by his employer that the applicant was in receipt of $670 a week, which the officer calculated as being an annual income of $34,840.
In response to the natural justice letter, the applicant provided the following:
·A letter from Mr Ismail, dated 17 August 2017, stating that the applicant was offered an incentive of $11,850 for the financial year of 2016 which includes commission bonuses in addition to his annual salary of $34,840 and this was the reason the applicant’s notice of assessment for 2016 shows an income of $46,617.
·Letter from Mr Ismail, dated 18 August 2017, stating that it is his business’ policy since 2011 that he will pay cash in hand with the payslip attached to all employees who work on a casual or part-time basis and that they will also be eligible for leave entitlements, sick leave and accrued leave. He has also decided that part-time workers are able to work as contractors with an ABN and that they would be responsible reporting GST and dealing with the ATO. This was the option chosen by the applicant and it is the applicant’s responsibility to pay the GST and income tax directly to the ATO. He stated that they do not differentiate between part-time employees who work on a tax file number or those that work on an ABN. The contract of employment does not specify whether the person is a contractor and that he issues the same work reference to part-time employees regardless of their tax mode.
·A letter from Mr Dilwar Singh, dated 18 August 2017, stating that he is the accountant for Python Technologies. Mr Singh stated that sick and accrued leave did not show on the payslips due to his administrative error with MYOB payroll functionality. He stated that he has now generated the payslips to include sick and accrued leave. He provided a list of dates between 2013 and 2017 for payslips, which he stated were received by the applicant and show sick and accrued leave. He also stated that the hourly rate of $19.29 was an administrative error as this is the rate offered to part-time employees if they work Saturdays. He stated that he accidently used this pay rate when making the applicant’s payslips. He stated that the correct pay rate is $33.50 per hour which is a salary of $670 per week.
·Eight documents on Python Technologies’ letterhead entitled ‘Extract of Leave Record’ for each period of leave referred to in the letter from Mr Dilwar Singh.
·Spreadsheets entitled ‘Payroll Records’ for the applicant from ‘2012 FY’ to ‘2018 FY’. The spreadsheets set out the start/end dates of the pay cycle on a fortnightly basis and indicate that payment date is every fortnight on the day after the end date for the pay cycle. With the exception of a few transactions, the spreadsheets suggest that the applicant received wages of $1,340 per fortnight totalling to $34,840 per annum. The spreadsheets indicate that the total wage payments for the 2012, 2013, 2014, 2015 and 2017 financial years was $34,840 in each year. The 2016 financial year spreadsheet indicates that the total payment for that year was $46,617, which includes a performance bonus of $11,777.
·Various payslips, which appear to have been generated by accounting software, indicating that the applicant’s annual salary is $34,840.
·A letter from the applicant’s accountant, dated 17 August 2017, stating that the applicant’s taxable income for the year ended 30 June 2016 was $46,617 as confirmed by the notice of assessment and that the taxable income is derived from his assessable income during 2016 less the allowable deductions.

On 13 October 2017, the Department wrote to the ACS enquiring about the information relied on by the applicant to obtain his skills assessment. On 20 October 2017, the ACS wrote to the Department advising that as the applicant had a Diploma and Advanced Diploma, he was required to provide six years of employment to meet the requirements. As such, his employment from both Sculptsoft and Python Technologies were used for the calculation of the skilled date. Copies of the documents provided to the skills authority were provided to the Department, which included the letter of recommendation and employment references from Sculptsoft and reference from Python Technologies. The Tribunal notes that the letter of recommendation from Sculptsoft and employment reference from Python Technologies had been provided to the Department with the visa application.
On 22 January 2018, the Department sent the applicant another invitation to comment on information, which the officer explained was relevant to the requirements in PIC 4020, the effect of which were set out in the letter. In that letter, the officer set out in considerable detail the information received from the ACS, generally available information about the requirements for obtaining a skills assessment from ACS and a description of the employment references and support letters that the applicant provided with his application for skills assessment in respect of his claimed employment with Sculptsoft.
The officer noted that ACS had confirmed that the applicant had provided the following documents to them for assessment: references from Sculptsoft, indicating that the applicant’s position was Computer Network and Systems Support from 15 April 2010 to 20 January 2011, that he worked part-time at 25 hours per week, it set out the duties and noted that the applicant received INR15,000. The officer noted that two of those documents were also provided to the Department with the visa application. The letter further noted that the Department sought to verify the applicant’s work experience with Sculptsoft, India, and that the outcome of the employment verification raised the following serious concerns: that Sculptsoft’s website was created on 3 December 2013, that the company’s website states that it was founded in 2012, which conflicts with the applicant’s claims that he was employed there from 15 April 2010, that the website is registered in the name of Visu Flower and that attempts to contact the landline were unsuccessful. It was also noted that the applicant was in Australia on a student visa between 20 March 2009 and 24 March 2011, which casts doubt over his claimed employment in India from 15 April 2010 to 20 January 2011.
The applicant responded to the second natural justice letter by providing a statutory declaration and informing the Department that his employer, Sculptsoft, will be providing information directly to the Department. In his statutory declaration, dated 5 April 2018, the applicant stated that the Department should not raise credibility concerns regarding his employment with Sculptsoft. He stated that even though he was in Australia from 20 March 2009 to 24 March 2011, he was still associated with Sculptsoft as he was participating in the network design project through remote support.
The Department received an email from info@sculptsoft (Prashant Thakkar) dated 29 March 2018, and copied to the applicant, stating that the applicant was a part-time employee. The writer states that between 2010 and 2013 he was operating as a private contractor for different companies and that the applicant used to work under him. It was stated that the website of Sculptsoft was hosted in 2013 when they started to operate as a separate business entity. It was stated that all contractors, including the applicant, were moved to Sculptsoft between 2012 and 2013 as this was the period that he changed from a private contractor to a business owner and that the registration was under a friend’s name, which is common in India.
After considering the information, the delegate found that the documents in respect of the applicant’s claimed employment with Sculptsoft contain false and/or misleading information in a material particular as they were used to obtain a suitable skilled assessment in the nominated occupation as required by cl.189.212.
Prior to the hearing, the Tribunal received a letter from the applicant setting out his grievances regarding the concerns raised by the Department in its various letters about the applicant’s claimed employment. The applicant took issue with the delegate’s findings and stated that the delegate appeared to be confused, misinterpreted the information provided and did not understand the explanations provided. He believes this occurred because the delegate had maintained a suspicion about his employment throughout the processing of his visa application. The Tribunal notes that it is not bound by the delegate’s findings or reasons. As explained to the applicant at the outset of the hearing, the Tribunal is required to conduct an independent assessment of the evidence so as to determine for itself the issues in the review.
Evidence received at the hearing
At the hearing, the applicant gave evidence that he travelled to Australia in March 2009. He completed a Diploma and Advanced Diploma of Information Technology SCBIT in Sydney. He commenced a bachelor degree course at Southern Cross University, of which he completed 10 of the 12 subjects. He stated that the university refused to enrol him to complete the remaining two subjects and suggested he complete the subjects by distance from his home country. He stated that he was advised by a local agent to enrol at another university, but by that time he was already working for Python Technologies and they offered to sponsor him.
The applicant stated that his employer, Python Technologies, nominated him for a Subclass 457 visa. He recalled applying for only one Subclass 457 visa and stated that he later withdrew that application because the Subclass 457 visa was no longer available, after which he decided to apply for the skilled, points based, Subclass 189 visa, which is the subject of this review.
When queried further about his previous Subclass 457 visa applications, the applicant stated that he recalls that Python Technologies had applied to nominate him but there was an error in the documents and he was told he had to provide the documents again. He stated that the company had applied through an agent who also assisted him with his visa application. He stated that he gave the agent his qualifications, documents and evidence of English proficiency. When asked whether he provided evidence of his employment in the Subclass 457 visa application, he stated that the employer had provided that evidence. He then gave evidence that he had filled out the forms for the Subclass 457 visa and gave it to the agent. When asked if he had declared his employment with Sculptsoft in his Subclass 457 visa application, he stated that he had not. When asked why, he stated that he worked for Sculptsoft as a computer network officer assisting in IP and was working remotely. The Tribunal expressed its concern that he had not declared the employment with Sculptsoft in his Subclass 457 visa application. In response, the applicant stated because the company is in India he thought he did not have to include it.
When queried further about his claimed employment with Sculptsoft between April 2010 and January 2011, the applicant gave the following evidence. He stated that he contacted Mr Prashant after finding out through a friend that he needed someone who can do work remotely. He stated that at the time Sculptsoft was a start-up and he thought it would be good to get some experience. He was interviewed over the phone. He reported directly to Mr Prashant who was a private contractor at the time. He stated that he used to work for between 20 to 25 hours a week but there was no fixed time. He stated that he used to get INR15,000 per month and that the money was given to his mother in India. The Tribunal put to the applicant that information in the decision record indicates he was in Australia on a student visa at the time he claims to have been working for Sculptsoft and that the types of tasks carried out in the position suggest that he had to be on a client’s site.
In response, the applicant stated that his main job was to be on the intranet and create layouts because at the time the website was not live. When asked how he was able to perform the various tasks from Australia, he stated that he used to assist over the phone and they had a session about the duties mentioned. He stated that he just assisted with the queries regarding the routing and could do this over the phone. If someone was required to be at the client’s premises, for example to install hardware on the server, then he helped out that person.
The Tribunal raised the concern with the applicant as to why the employer, who would have had access to a large pool of IT professionals in India, would hire someone to undertake the task remotely, particularly when some of the tasks required someone to be onsite. In response, the applicant stated that Mr Prashant trusted him and he wanted to get some experience. He stated that because it was a start-up, Mr Prashant would not be able to get someone locally for INR15,000 per month. He stated that it was only for a very short period and he was willing to help Mr Prashant out.
The Tribunal asked the applicant about the letter of recommendation, dated 7 July 2011, from Mr Prashant. In response to the Tribunal’s queries, the applicant stated that after completing his Advanced Diploma in IT he was looking for work and was having difficulty finding a job. He was told by others that he had to show evidence of work experience so he tried to contact Mr Prashant for a reference. He stated that Mr Prashant was happy to provide him with the reference letter. He stated that he received the letter by post because he needed a hard copy, otherwise he would not be able to get copies certified by a Justice of the Peace. He stated that he did not receive an electronic copy of the letter and just waited for the hard copy to arrive in the mail. When asked if the date of 7 July 2011 on the letter was the correct date, he stated that it was. When asked how long after that date it took for him to receive the original letter by post, he stated about one week.
When asked if Mr Prashant had told him over the phone what he was going to include in the recommendation letter, he stated no. He just knew it was going to be a recommendation letter and that it would be good. When asked if he knew of Python Technologies before receiving that letter, he stated no. The applicant gave evidence that after receiving the recommendation letter by post, he then made contact with Python Technologies, after which he went to see Mr Ismail. He stated that he started working about one week after their meeting. The applicant gave evidence that he signed the employment contract with Python Technologies and was told that he would work as a contractor on an ABN and would have to pay his own GST and income tax. He was told he would not receive superannuation which he agreed to. He stated that he was paid $670 weekly in cash.
The Tribunal noted that the contract of employment does not specify an amount and indicates that his payment depends on the invoice that he provides the business. He stated that he was paid a fixed amount which included his travel expenses and food. When asked if he had to give his employer the invoices so he could get paid, he stated no because they told him it would be fixed for 20 hours per week. When asked if he had signed the contract of employment at the first meeting with Mr Ismail, he stated that he signed the contract when he started work. When asked if he got an hourly rate, he stated his hourly rate was about $33 an hour but that included everything such as travel and food expenses. He stated that he got cash and collected the payments every week.
The applicant gave evidence that he had obtained his own ABN and TFN in 2009 because when he arrived in Australia that was what his friends told him to do. When asked how often he paid the GST and income tax, he stated at the end of every year. He missed one year but had later fixed it. The applicant gave evidence that he worked exactly 20 hours every week and received $670. He stated that on one occasion he received a bonus of about $11,000 because he had introduced to clients to the company. When asked about his position with Python Technologies, he stated that he worked there as a Computer Network and Systems Engineer.
The Tribunal asked the applicant about the letter from Hiteshreeben Patel. He stated that she has been working at Python Technologies as an ICT Support Technician and looking after admin. When asked if they had worked the same hours every week, he stated that half the time he was onsite but when he was in the office he did see her. He stated that Hiteshreeben Patel was not with Python Technologies when he commenced and that she commenced about a year later.
Evidence from Mr Ismail
Mr Ismail gave evidence that Python Technologies was registered on 12 July 2011. He stated that at the time they already had some projects in place, about 5 to 10 projects, relating to network and website development. Mr Ismail gave evidence that the applicant approached him for a job opportunity. He stated that Mr Prashant was a common friend and so he made enquiries about the applicant’s employment after which he decided to employ the applicant. Mr Ismail stated that he employed the applicant in July 2011 and that there were two employment contracts provided, one at the start and another on renewal.
When asked about the nature of the applicant’s employment with Python Technologies, Mr Ismail stated that the applicant was employed on a contract basis and was responsible for paying his own GST and income tax. When asked if the applicant had to provide invoices to the business before getting paid, he stated that this was the case. He gave evidence that prior to the company engaging Mr Dilwar Singh as their accountant, he (Mr Ismail) was the person responsible for paying the applicant. Mr Ismail gave evidence that the applicant gave him the invoices, which included the applicant’s ABN and GST information, for payment. Mr Ismail gave evidence that the applicant would normally go and see him, sign the timesheet and would get paid in cash. He stated that the applicant worked 20 hours per week.
When asked about the applicant’s position with Python Technologies, Mr Ismail gave evidence that he hired the applicant as a Computer Network and System Support Engineer. He stated that some of the tasks also included ICT support. When asked if he was primarily employed as an ICT Support Technician, Mr Ismail stated no. He stated that the applicant was employed as a Network Engineer and that only some of the basic duties overlapped.
Mr Ismail gave evidence that Python Technologies used to be an approved business sponsor and that they were audited by the Department. He gave evidence that the business was barred for five years from nominating anyone under the employer nomination programme. He confirmed that the applicant was not employed under that programme.
When asked if the applicant was paid cash every week, he stated that he was flexible, and sometimes he was paid weekly and other times he was paid fortnightly. He then stated that the majority of the time the applicant was paid fortnightly. He stated that the applicant had an hourly rate of $33.
When asked whether he had previously sponsored the applicant to work for Python Technologies, he confirmed that he had. When queried further, Mr Ismail gave evidence that he had nominated the applicant for a position as an ICT Support Technician because he wanted to offer him that position. He recalls providing one nomination in the occupation of ICT Support Technician. The Tribunal asked Mr Ismail why he would nominate the applicant for the Subclass 457 visa in the occupation of ICT Support Technician if the applicant had been employed with him as a Computer Network and System Engineer. In response, he stated because at the time they had projects and thought that an ICT support person would be required for those projects. When asked again about the applicant’s role with Python Technologies, he reiterated that at all times the applicant’s duties during his employment with the business was as a Network and System Engineer and that this was never altered.
He stated that a number of concerns were raised by the Department regarding the rate, sick and accrued leave and that they provided payslips and other relevant information showing the correct hourly rate. He stated that they offered the explanation that they normally offer a flat weekly rate. He stated that even if the hours worked were less in each week they still paid the applicant the same amount every week. The Tribunal noted that the payslips subsequently provided to the Department were quite different than those originally provided, to which Mr Ismail responded that they had maintained different templates for payslips depending on the type of employee. He stated that they decided to provide the payslips in a different format to satisfy the departmental officer. When asked if the applicant has been working with him since July 2011, he stated yes.
The applicant’s further evidence
The Tribunal asked the applicant if he wished to comment on any of the evidence provided by Mr Ismail. The applicant stated that regarding him raising invoices and the payment being made fortnightly or weekly, he did not actually give Mr Ismail the invoices at the time he got paid and he just gave it to him when it was time to do the GST registration.
The Tribunal explained to the applicant that it had a number of concerns, which casts doubt over his claimed employment, which it wished to put to him for comment. The Tribunal noted the numerous inconsistencies in documents he provided to the Department. It noted that the initial payslips provided to the Department were on Python Technologies’ letterhead and showed he was getting paid $19.29 per hour and was in receipt of $385.84 per week. It noted that the pay advice provided for each year, from 2011 through to 2017, and the ATO income assessment notices for 2015 and 2016 were not consistent with the payslips or the annual pay advices issued by Python Technologies. The Tribunal noted that these inconsistencies were identified by the Department and set out in its first natural justice letter.
The Tribunal further noted that in response to the Department’s first natural justice letter, further documents were provided to the Department, including a spreadsheet for each financial year and different payslips. The Tribunal noted that the subsequent payslips and spreadsheets indicated that he was getting paid $34,840 a year with the exception of 2016 which indicates that he received a performance bonus of $11,777. The Tribunal noted that the subsequent documents also appeared to be inconsistent. Firstly, because they did not accord with amounts on the annual payment advice documents and secondly, because they also did not correspond to the ATO assessment notice for 2015, which showed a taxable income of $17,167. The Tribunal further noted that the applicant had provided the ATO assessment notices only for 2015 and 2016, and had not provided any notices for the other years. The applicant stated that he thought he provided the 2013 and 2014 tax assessment notices. The Tribunal explained to the applicant that there is no record of him having provided those years.
When asked to comment on the above inconsistencies in the documents, the applicant stated that the initial payslips came from the company’s accountant, who admitted that this was his mistake. He stated that they got his information mixed up with someone else. The Tribunal expressed its doubt that he would not have realised that the initial payslips were incorrect when he provided them to the Department, to which the applicant responded that he only had 28 days to provide the information, and because he did not want to be late he did not have a chance to go through the documents to check if they were correct.

The Tribunal noted that the later payslips show that he was getting paid $33.50, but that even on that amount there were still inconsistencies with the payment advice and with the ATO 2015 tax assessment notice, which shows that he earned $17,167 in that financial year. In response, the applicant stated that the payment advice was done on the basis of the incorrect payslips.
The Tribunal then discussed with the applicant the 2016 ATO notice of assessment, which noted his taxable income as $46,617, and noted that the letter from his accountant states that the amount on that assessment is his income less deductions. The Tribunal brought to the applicant’s attention that the subsequent employment documents provided to the Department, including the spreadsheet and payslips, indicate that the total of his wages for the ‘FY 2016’ was exactly $46,617 and explained that this appeared inconsistent with the accountant’s letter that the amount on the 2016 tax return is his earnings less claimed deductions. The Tribunal noted that it may form the view that the accountant’s letters are unreliable. In response, the applicant stated that the accountant prepares his tax documents and looks after his accounts. He just gives the accountant the documents.
The Tribunal brought to the applicant’s attention that his 2016 ATO assessment notice shows a PAYG withholding of $4,834, which appears to have been withheld by an employer. The Tribunal also noted the transactions on his itemised tax account, which notes the applicant’s ABN/TFN details, shows regular amounts received by the ATO, which suggests that tax was being withheld by an employer. The Tribunal referred the applicant to the relevant item on the 2016 notice of assessment. The Tribunal asked the applicant if he had worked for anyone else during that time, to which the applicant responded that he used to work through another agency. When asked about the type of work he undertook with the other agency, he stated that it was warehousing work and that it was not fixed work. When asked if it was the warehousing employer that would have been withholding the PAYG tax on his behalf, he stated yes it could be. The applicant stated that his employment in the warehousing job was on his tax file number and the employment with Python Technologies was done through an ABN. He stated that he gave the paperwork to his accountant to sort out and that he has paid tax on both.
The Tribunal noted that if the amounts on the 2016 notice of assessment included his income from both jobs, then that was inconsistent with the subsequent information provided to the Department indicating that his total wages for the 2016 financial year from Python Technologies alone was $46,617. The applicant then stated that he may not have declared the $11,000 of incentives or bonuses because on his understanding he does not have to declare that in his tax return.
The Tribunal put to the applicant that the inconsistencies in the documents and evidence provided regarding his claimed employment with Python Technologies raises the concern that the employment contract, employment references, payslips and other documents issued by Python Technologies may have all been contrived for the purposes of the skilled migration visa application. In response, the applicant stated that he has worked 20 hours a week with Python Technologies and that he has always declared the income earned from that employment. He stated that the company’s accountant has admitted that it was a mistake. In relation to Sculptsoft, he stated that Mr Prashant has already verified all of the information.
The Tribunal discussed with the applicant the concerns and inconsistencies regarding his claimed employment with Sculptsoft as set out in the second natural justice letter and detailed in the delegate’s decision record. The Tribunal further noted its concern about the reliability of the letter of recommendation, dated 7 July 2011, from Mr Prashant given subsequent correspondence with the Department, details of which were set out in the decision record, indicating that the applicant was working for Sculptsoft as a contractor and that his employment was transferred to Sculptsoft between 2012 and 2013 after it started to operate as a separate business entity. The Tribunal also noted that the recommendation letter dated 7 July 2011, which included the details of Mr Ismail so that the applicant can contact him about employment with Python Technologies, is also inconsistent with the employment contract with Python Technologies which was dated and signed on 4 July 2011.
The applicant stated that in 2013 the webpage for Sculptsoft went live and prior to that they were working on the intranet so the domain name was not available to the public. He stated that the Department may have been referring to the date the website was updated. He stated that prior to that time, Sculptsoft was not a company and that he worked for Mr Prashant when Mr Prashant was just a private contractor. He stated that when he asked for the references, at that time, Sculptsoft existed. When asked why Mr Prashant had stated that he and other contractors were transferred to Sculptsoft between 2012 and 2013 when he was not working there at the time, he stated what was meant is from that date they would use the letterhead for all of their employees including him, because he used to work there and was there for a short period of nine months.
Section 359AA information
The Tribunal explained to the applicant that it had information before it which may, subject to his comments or response, be the reason or part of the reason for affirming the decision under review. The Tribunal explained to the applicant that it was required to put to him the information in accordance with the procedure described in s.359AA of the Act. The Tribunal explained the procedure to the applicant in detail and informed him that he could seek additional time to comment on or respond to the information.
The particulars of the information put to the applicant follows:
- That the Tribunal recently requested information from the Department about whether the applicant had, in any previous applications for a visa, declared his claimed employment with Sculptsoft in India.
- On 11 September 2018, the Tribunal received a response from the Department advising that the applicant had previously applied for eight visas: six student visas and two Subclass 457 visas.
- The Department advised that generally employment documents are not required for student visas.
- In relation to the applicant’s Subclass 457 visa applications, the officer advised as follows:
- A copy of the application forms for the Subclass 457 visas, resume for the applicant, and employment references from Python Technologies dated 9 October 2014 were provided to the Tribunal. All those documents referred to the applicant’s employment with Python Technologies, but as an ICT Support Technician, on a casual/part-time basis, commencing 3 April 2014.
- Neither of the forms or the applicant’s resume made any mention of the claimed employment with Sculptsoft.
- Furthermore, the employment reference provided with the Subclass 457 visa application from Mr Ismail, dated 9 October 2014, states that the applicant had worked there as an ICT Support Technician since 3 April 2014 on a casual part-time basis. The types of tasks set out in that reference were markedly different from the employment references provided with this visa application, which were also signed by Mr Ismail, indicating that the applicant’s employment with Python Technologies was in the position of Computer Network and System Engineer since July 2011.
- Mr Ismail, in his oral evidence to the Tribunal, stated that you provided him with invoices which indicated your ABN and that he paid you according to the invoice as per the contract. This appears inconsistent with your evidence that you did not provide regular invoices.
The Tribunal explained to the applicant that the above information is relevant because it casts doubt over his claim to have worked at Python Technologies in the nominated occupation of Computer Network and Systems Engineer since July 2011. The Tribunal explained that the information is also relevant because it casts doubt over his claim to have worked for Sculptsoft between April 2010 and January 2011. The Tribunal explained that the information is also relevant because it casts doubt over his and Mr Ismail’s credibility more generally, and that the Tribunal may not be satisfied that he and Mr Ismail have provided truthful evidence about the applicant’s employment experience.
The Tribunal explained to the applicant that if it relies on the above information, it may go on to find that there is evidence that the applicant has provided, or caused to be provided, a bogus document and/or false or misleading information in a material particular in relation to his application for the skilled visa. The Tribunal explained to the applicant that it may then go on to find that he does not meet the requirements of PIC 4020(1).
The Tribunal further explained that if it found that the applicant does not meet PIC 4020(1) and is not satisfied that there are compelling circumstances affecting the interests of Australia, or compelling or compassionate circumstances affecting the interest of an Australian citizen, Australian permanent residents, or an eligible New Zealand citizen that justifies the granting of the visa, the decision under review may be affirmed.
The applicant responded to the information by stating that he did not mention his employment with Sculptsoft because, as he had indicated earlier to the Tribunal, when he was given the Subclass 457 visa form to complete he was under the impression that he could only include his Australian work experience. Regarding the Subclass 457 visa application indicating that he worked as an ICT Support Technician, he stated that in 2014 when Python Technologies decided to sponsor him, as Mr Ismail explained, the ICT tasks are a prerequisite to the position of Network Engineer and he started doing some of those duties. He stated that this was the reason the previous role was not included in the application form.
Consideration of the evidence
The Tribunal has carefully considered the evidence before it and, for the reasons that follow, has concluded that there is evidence before it that the applicant has given, or caused to be given, to the Minister a bogus document and/or information that is false or misleading in a material particular.
The applicant claims to have been employed with Python Technologies in the nominated of Computer Network and Systems Engineer since July 2011. The applicant provided details of that employment in the visa application form and sought to rely on the duration of that employment, which he claimed was for a period of 5 years in the past 10 years, to claim points. It is also not in dispute that the applicant relied on his claimed employment with Python Technologies to obtain a suitable skills assessment from ACS in his nominated occupation of Computer Network and Systems Engineer. The skills assessment from ACS, a copy of which was provided to the Department with the visa application, set out the qualifications and work experience on which the assessment was based, which included employment in the position of Computer Network and Systems Engineer with Python Technologies from July 2011 to January 2017.
Publicly available information, details of which were set out in the delegate’s decision record, regarding the requirements for a skills assessment from ACS for persons who hold Diploma level qualifications with an ICT major that is not closely related to their nominated occupation indicates that six years of relevant work experience is required to meet the suitability criteria. It was also noted in the decision record that ACS had confirmed that the applicant was required to show six years of employment to meet the requirements. Given the information contained in the skills assessment issued by the ACS, which indicates that the applicant relied on nine months of employment with Sculptsoft and five years and six months with Python Technologies, to obtain a suitable skills assessment, the Tribunal is satisfied that the applicant obtained the skills assessment because of information provided to ACS indicating that he had at least six years of relevant work experience, which included his claimed employment with Python Technologies.
The Tribunal now turns to consider the evidence regarding the applicant’s claimed employment with Python Technologies in the position of Computer Network and Systems Engineer since July 2011.
The evidence before the Tribunal regarding the applicant’s employment with Python Technologies was inconsistent, unreliable and unsubstantiated. Significantly, in his previous applications for a temporary work (skilled) Subclass 457 visa, the applicant indicated that he had been employed with Python Technologies since 3 April 2014 as an ICT Support Technician. The applicant recalls having only lodged one Subclass 457 visa, however, the evidence received from the Department, which the Tribunal considers to be accurate and reliable, indicates that two Subclass 457 visas were lodged, the first in 3 December 2014 and the second on 28 April 2015. In both these applications, the information on the forms and the supporting documents, which included the applicant’s resume and an employment reference from Python Technologies signed by Mr Ismail, indicated that the applicant’s employment with Python Technologies commenced on 3 April 2014 on a casual/part-time basis in the position of ICT Support Technician. This information significantly undermines the applicant’s claim to have been employed as a Computer Network and Systems Engineer with Python Technologies since July 2011. The Tribunal has considered the applicant’s explanation that when Python Technologies decided to sponsor him in 2014 he was undertaking some of the duties of an ICT Support Technician which Mr Ismail indicated are a prerequisite to the position of Network Engineer. The Tribunal is not satisfied with the applicant’s explanation and considers that if the applicant was genuinely employed as a Computer Network and Systems Engineer with Python Technologies from July 2011, then he would have declared this on the Subclass 457 visa application forms, and the supporting documentation for that visa would have reflected this.
Further to the above, the supporting documents provided to the Department regarding the claimed employment with Python Technologies also contained significant inconsistencies. For example, the contract of employment indicated that the applicant was a part-time employee with leave entitlements, whereas other documents indicated that he was a contractor and was responsible for paying his own GST and income tax. The first lot of payslips provided to the Department, of which there were about 35, showed that the applicant worked exactly 20 hours every week at a rate of $19.29 per hour and that his total income was $385.84 weekly. The information on these payslips did not record any leave entitlements, as provided for in the contract of employment, and the rate of pay and wage details appeared inconsistent with information in other documents provided, such as the annual payment advice documents, the tax assessment notices and the letter from his employer. When these inconsistencies were brought to the applicant’s attention in the first natural justice letter, the applicant provided a second lot of payslips showing a different rate of pay ($33.50), leave entitlements and spreadsheets indicating the applicant’s annual salary as $34,840. To explain the differences in the employment records, letters were provided from the company’s accountant stating there had been an administrative error with the MYOB functionality and that the rate of $19.29 was for part-time employees that worked on Saturdays which was accidently used for the applicant. To explain the discrepancy in the 2016 tax assessment notice, which showed that the applicant had a taxable income of $46,617, a letter was provided from Mr Ismail stating that the applicant was in receipt of a performance bonus of $11,850 in addition to his $34,840 salary. A letter from the applicant’s accountant was also provided stating that the amount noted on the 2016 assessment notice was the applicant’s taxable income after deductions.
When asked about the discrepancies between the first and second lot of employment documents, the applicant explained that it was due to an error by the company’s accountant, who mixed up his information with someone else and that the accountant had admitted his mistake. The Tribunal is not satisfied with that explanation and finds it difficult to accept that the applicant would not have noticed, when providing the initial documents to the Department, which included 35 ‘pay advice’ and six ‘annual payment advice’ documents, that they contained significant errors about his rate of pay, weekly wages and annual salary. When this concern was put to the applicant at the hearing, he stated that he did not check the information because he only had 28 days to provide it and did not want to be late. The Tribunal is not satisfied with that explanation and considers that, if the information about his income in the first lot of documents was due to a genuine administrative error, the applicant would have promptly identified the errors before the information was provided to the Department.
Of further concern, is that the second lot of employment documents highlighted further inconsistencies in the information provided. For example, the spreadsheets and payslips showing that the applicant’s annual salary was $34,840 for the 2015 financial year was inconsistent with the annual payment advice document and the ATO tax assessment notice for 2015, indicating that the applicant’s income for the same period was $17,167. When this was brought to the applicant’s attention at the hearing, he stated that the payment advice was incorrect because it was based on the incorrect payslips. This however does not explain why a taxable income of only $17,167 is shown on the ATO notice of assessment for 2015, which the Tribunal notes would have been issued after the applicant lodged his tax return in which he would have had to declare his actual earnings for that year.
A further concern are the inconsistencies in the employment documents for the 2016 financial year, which cast further doubt over the reliability of the documents provided in support of the applicant’s claimed employment with Python Technologies. The initial annual payment advice for the period ending 30 June 2016 indicated that the applicant was paid a total of $22,981, including $2,089 GST. This appeared inconsistent with the initial payslips suggesting that the applicant was in receipt of $385.84 per week, which the delegate calculated to be an annual amount of $19,986, and was also inconsistent with the information on the 2016 ATO assessment notice indicating the applicant’s taxable income for that year was $46,617. To explain the discrepancies, the applicant provided, in the second lot of documents, a letter from his employer stating that in that year the applicant was offered an incentive of $11,850, which included commissions and bonuses in addition to his annual salary of $34,840. An internally generated spreadsheet was provided indicating that the applicant was paid a performance bonus of $11,777 and that his total wages for the ‘2016 FY’ was $46,617. The Tribunal notes that this is the exact amount, to the dollar, of the applicant’s taxable income as indicated on the 2016 ATO assessment notice. This appeared to be inconsistent with the information in the letter from the applicant’s accountant indicating that the taxable income on the 2016 assessment notice is after tax deductions. The Tribunal notes that if the applicant’s income from Python Technologies in that period was $46,617 and his taxable income was also $46,617, then no tax deduction would have been claimed in that year. The applicant was unable to satisfactorily explain the discrepancies in the documents stating that he just gave his accountant the documents. The Tribunal has been unable to reconcile the information contained in the various employment documents, the accountant’s letter and the documents issued by the ATO.

The Tribunal also observed that the 2016 notice of assessment indicates that PAYG income tax of $4,834 was withheld by an employer. When these concerns were discussed with the applicant at the hearing, he indicated that the tax withheld may have been in respect of income earned from his warehousing employment. The applicant’s admission that he had been engaged in other employment casts further doubt over the accuracy of the second lot of documents issued by the Python Technologies indicating that the applicant’s income in the 2016 financial year, which included a bonus of $11,777, was equivalent to the amount shown on the applicant’s 2016 assessment notice. When this further discrepancy was discussed with the applicant at the hearing, he stated that he may not have declared the $11,000 of incentives/bonuses for that year because on his understanding he does not have to declare it in his tax. The Tribunal did not find the applicant’s explanation to be convincing, particularly given that the information provided in the second lot of documents regarding the applicant’s earnings in 2016 was, in part, for the very purpose of explaining why the applicant’s assessment notice for that year showed an income of $46,617. For example, Mr Ismail, in his letter dated 17 August 2017, stated that the reason the applicant’s 2016 assessment notice reflects an income of $46,617 is because the applicant was offered total incentives of $11,850 in that financial year. The applicant maintained this evidence in his oral evidence to the Tribunal, but sought to change it after admitting that he had earned income from other employment in the same financial year.
The Tribunal notes that there were numerous other inconsistencies in the evidence regarding the applicant’s claimed employment with Python Technologies, including the commencement date of that employment, whether or not the applicant had to provide weekly invoices to get paid, the frequency of payment and the nature of the employment relationship. The Tribunal, however, does not consider it necessary to delve into the minutiae of each and every inconsistency in this case. In the Tribunal’s view, the above considerations of the major inconsistencies in the evidence provide a strong basis on which to conclude that the applicant has provided, or caused to be provided, a bogus document or information that is false or misleading in a material particular in relation to his visa application.
There is very limited independent credible evidence before the Tribunal to substantiate the applicant’s claim that he worked for Python Technologies in the nominated occupation of Computer Network and Systems Engineer from July 2011. The Tribunal considers that the employment records and documents from Python Technologies indicating that the applicant has worked there since July 2011 as a Computer Network and Systems Engineer have been contrived for the purpose of the skilled visa application.
The Tribunal has considered the letter provided from the applicant’s accountant dated 5 April 2017 stating that the applicant worked with Python Technologies from July 2011, tax invoices that were issued by Python Technologies to the applicant for his tax purposes, and that he had entered into a payment plan with the ATO. The Tribunal notes that this information is inconsistent with the other evidence before the Tribunal, including information in the applicant’s Subclass 457 visa application indicating that his employment with Python Technologies commenced on 3 April 2014 and inconsistencies in the employment documents regarding the applicant’s income. Given these inconsistencies, and the inconsistencies identified above in the accountant’s letter dated 17 August 2017 regarding the 2016 assessment notice, the Tribunal does not consider the information in the accountant’s letters to be reliable or credible. The Tribunal is concerned that the accountant’s letters may have also been contrived for the purpose of the visa application.
The Tribunal has also had regard to the statutory declaration from the Hiteshreeben Patel, dated 26 May 2017, who claims to have been employed with Python Technologies since July 2013, stating that the applicant has worked for Python Technologies as a Computer Network and Systems Engineer as a part-time contractor. Firstly, the Tribunal notes that this declaration does not overcome the concerns discussed above regarding the inconsistencies in the applicant’s employment documents. Furthermore, Ms Patel’s assertion that the applicant worked as a Computer Network and Systems Engineer is inconsistent with the information provided with the Subclass 457 visa applications indicating that he worked as an ICT Support Technician from 3 April 2014. The Tribunal is not satisfied that Ms Patel’s statutory declaration contains credible information about the nature of the applicant’s employment with Python Technologies.
On the totality of the evidence before it, the Tribunal has formed the view that the applicant, after failing to secure a Subclass 457 visa so as to remain in Australia, sought to contrive employment evidence, with the assistance of Python Technologies, so as to qualify for a points based skilled migration visa. Given the concerns discussed throughout this decision, the Tribunal is not satisfied that the applicant worked as a Computer Network and Systems Engineer with Python Technologies from July 2011.
The Tribunal considers that the employment documents provided with the visa application indicating that the applicant worked as a as a Computer Network and Systems Engineer with Python Technologies from July 2011, is information that is false or misleading in a material particular, as defined in PIC 4020(5). The Tribunal is satisfied that the information was false or misleading at the time it was given to the Department and was relevant to the criterion in cl.189.212, as the information was relied upon by the applicant to obtain a suitable skills assessment from ACS in the nominated occupation of Computer Network and Systems Engineer. The Tribunal also considers the information to be relevant to the criterion in cl.189.214 and the points test in Schedule 6D, as the applicant sought to rely on that employment experience to claim points, as indicated in the visa application form, towards the applicable score.
Further to the above, and in the alternative, the Tribunal also finds that the suitable skills assessment issued by ACS in the occupation of Computer Network and Systems Engineer is a bogus document, as defined in s.5(1)(c) of the Act, because the Tribunal reasonably suspects, for the reasons stated above, that the skills assessment was obtained because of a false or misleading statement about the applicant having worked as a Computer Network and Systems Engineer with Python Technologies from July 2011 to January 2017, as indicated on the skills assessment document.
Given the above findings, it follows that the Tribunal is not satisfied that there is no evidence that the applicant has given or caused to be given a bogus document or information that is false or misleading in a material particular to the Minister in relation to the visa application. Therefore, the applicant does not meet PIC 4020(1).
Should the requirements of PIC 4020(1) or (2) be waived?
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 of the Regulations), 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.
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.
The Tribunal notes that in his responses to the natural justice letters, which set out the effect of PIC 4020 and the waiver provision, the applicant did not make any claims regarding compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen or permanent resident or eligible New Zealand citizen. At the hearing, the Tribunal explained to the applicant the waiver provision and asked if there were any such circumstances that justify him being granted the visa, to which the applicant responded that his employer will be affected. He stated that his employment is genuine and he has provided an explanation to the Tribunal’s concerns. He stated that the audit on his employer does not relate to him.
The Tribunal accepts that the audit conducted on Python Technologies did not relate to the applicant as he was not employed by Python Technologies under the employer sponsorship programme. The Tribunal does not accept, for the reasons set out above, that the applicant’s employment with Python Technologies in the position of Computer Network and Systems Engineer with Python Technologies from July 2011 is genuine, and nor is the Tribunal satisfied that the applicant has provided satisfactory explanations to the concerns discussed regarding his claimed employment. The Tribunal is also not satisfied on the limited evidence before it that the effect on the employer, if the applicant is not granted the visa, constitutes compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen, permanent resident or New Zealand citizen that justify the grant of the visa.
For the above reasons, the Tribunal is not satisfied that there are 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 granting of the visa. Therefore the requirements of PIC 4020(1) should not be waived.
On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.189.215.
DECISION
The Tribunal affirms the decision not to grant the applicant a Skilled Independent (Permanent) visa.
R. Skaros
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.

[2018] AATA 5119

6 December 2018

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Remedies

Jurisdiction