Patel (Migration)

[2021] AATA 4160

Patel (Migration) [2021] AATA 4160 (2 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Maitrey Bipinchandra Patel
Mrs Sapna Maitrey Patel

CASE NUMBER:  2014442

DIBP REFERENCE(S):  BCC2018/5640374

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:         2 September 2021 at 12:25 pm (VIC time)

DATE OF WRITTEN RECORD:                11 October 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions under review.

Statement made on 11 October 2021 at 12:21pm

CATCHWORDS

MIGRATION – Skilled Regional Sponsored (Provisional) (Class GK) visa – Subclass 489 Skilled - Regional (Provisional) – occupation of Production Manager – incorrect information in the visa application – false and misleading documents – employment details – Indian Income Tax requirements – compassionate or compelling circumstances – impact on current employer – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cls 489.211, 489.222, 489.224; Schedule 4, Public Interest Criterion 4020

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 11 September 2020 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 2 September 2021 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. Mr Maitrey Bipinchandra Patel, you first arrived in Australia on 30 July 2017 on a Student visa.  On 14 December 2018, you applied for a subclass 489 Skilled Regional sponsored visa, listing your occupation as Production Manager.

4. In support of your application, you provided evidence of employment in that role of production manager at a company called Di-Cal Pharma in India.  On 11 September 2020, a delegate for the Minister made a decision to refuse your application on the basis she found you had provided evidence in support of your application that created a breach of PIC 4020. There was no evidence you sought a waiver of PIC 4020, and consequently, she found you did not satisfy 489.211, which is a prerequisite for the grant of a 489 visa. 

5. You appealed that decision to be reviewed by this Tribunal, and with your application for review, you provided a copy of the primary decision, which you told the Tribunal you had read and understood. 

6. I should say that this is a resumed hearing.  The hearing was initially scheduled and commenced last Thursday, 26 August, and, unfortunately, we ran out of time, and so we resumed the hearing today.  So, there have been two hearings at which you have provided evidence to the Tribunal. And we have been through and read that decision that you provided in detail. 

7. As I explained to you, the role of the Tribunal is to take a fresh look at your application and make a new decision about whether you are eligible for the grant of a 489 visa.  While I must consider your case afresh, I must do so applying the same laws that were used by the department when they considered your application.  As I said, I have before me the department file, which includes the material you provided with and in support of your application and the Tribunal file, which contains all the information that has come in since you lodged your application, up to and including a submission that came in this morning. 

8. In making my decision, I have relied on the information in the files and what you have told me at our hearings. To be granted a 489 visa an applicant must satisfy a range of criteria detailed in Schedule 2 of the Migration Regulations. One of those is Regulation 489.211 that refers to what are known as Public Interest Criteria which we abbreviate to PIC. One of those criteria, PIC 4020 requires that there is no evidence before the Minister, or in this case the Tribunal, that the applicant has given or caused to be given a bogus document or information that is false or misleading in a material particular in relation to an application for a visa.

9. If there is such evidence, PIC 4020 will nonetheless be satisfied if there are compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen and Australia permanent resident or an eligible New Zealand citizen that justify the granting of a visa. 

10. To enable the Tribunal to make a decision in this matter, there are therefore two steps that need to be followed.  The first is to establish whether in support of your application you have provided information that has created a breach of PIC 4020, and, secondly, if the Tribunal finds that you have breached PIC 4020, it must decide whether there are circumstances that would justify the waiver of the requirement and the grant of a visa.

11. Reading from the primary decision, in support of your application, it says you provided VETASSESS skills assessment dated 29 January 2018, with evidence of employment as Production Manager at Di-Cal Pharma from February 2015 to May 2017, which was assessed as at least 20 hours a week at an appropriate level and closely related to the occupation of production manager.  In a document titled ‘My Statement’ dated 17 April 2019, you stated you were employed from 10 February 2014 to 11 January 2016 part time, and 18 January 2016 to 31 May 2017. 

12. There was a letter titled ‘Employment Statement’ confirming your employment, signed by Sharadbhai Patel, a director.  That document stated you had been employed and were paid cash.  The submission included salary slips.  There was an employment reference dated 29 June 2017 confirming your employment as a production manager, signed by Sharadbhai Patel, director.  There was a range of other documents, including an organisational chart that did not have the names of the employees, a range of salary slips. The primary decision says that the department undertook various checks to verify the applicant’s claims of employment. As a result of those checks, the following concerns were raised.  And it goes through and lists a number of concerns.

    ·     The payslips did not state the amount of hours worked in the period. 

    ·     Internet checks did not locate a website for Di-Cal Pharma. 

    ·     They could not find a landline phone number for the company. 

    ·     The reference letter and employer statement did not indicate the salary or rate of pay. 

    ·     Telephone number provided that ends in 044 listed on the employment letterhead did not work when officers attempted to call on 20 September. 

    ·     On 23 September, the department sent an email to the company and got a response that was the exact same words in English that were used in the work experience letter. 

13. On 1 October 2019, a department officer contacted Di-Cal Pharma on the phone number listed on the reference letter, which is that number that ends in 044.  It is a mobile phone number.  The department officer spoke with an individual who identified himself as Sharadbhai Patel.  The referee was unable to converse in English, raising concerns as to how he could have prepared a reference letter in English.

14. He advised that the production started in 2013.  Internet checks indicated that Di-Cal Pharma was incorporated on 6 November 2008. 

15. The referee was unable to provide any details as to what information was on the reference letter, stating that the accountant, Darshan, prepares all the documents. 

16. The department contacted the accountant to confirm the duties on the reference letter.  The accountant could not converse in English, raising concerns that he was unable to prepare a reference letter written in English.  The accountant confirmed he worked for Di-Cal Pharma, which raised further concerns as there was no accountant listed on the organisational chart.  The accountant advised that the company was established in 2013, which is contrary to the internet checks indicating the company was incorporated in 2008.

17. The accountant was unable to provide any details regarding information in the reference letter, stating that he wrote what Mr Sharadbhai asked him to type.  The accountant advised the Department officer that Mr Sharadbhai would know about your duties and responsibilities, which was not the case when the department officer spoke to Mr Sharadbhai. 

18. The accountant advised your salary was 20,000 rupees a month.  This is inconsistent with information on the salary slips provided.  On 13 May, you were provided 28 days to comment.  On 1 June, you provided a self-statement and a letter from the employer Advantmed from January 2016. 

19. The delegate goes on to say the applicant’s statements have been assessed and form the basis of the final decision together with information submitted with your application. 

20. You made the following claims: You were paid in cash under the tax threshold.  Payslips in India do not state working hours.  The variation allows work duty of being employed with two companies between 10 February ‘14 and 11 January ‘16.  The company not having a website or landline is out of your control.  It is only in recent years that India has adopted digital reform.  The rate of pay was in line with production manager. You would have had an increase in pay however you were planning to move to Australia.  The boss may have been away and therefore did not answer the phone.  It is possible some employers do not wish to retype information therefore the same information may be supplied due to copying and pasting.  The boss failed to convey the business started in 2008 however production started in 2013.  It was you who drafted the work reference, and the boss confirmed the details.  He had done this for other employees in various previous applications to other countries.  It was the same for the letter from the accountant.

21. While the accountant claimed to have been employed with the company, they are more of a bookkeeper and, therefore, not listed in the organisational chart.  The accountant’s advice that your salary was Rs. 20,000 was in fact incorrect, and possibly a roundabout figure. 

22. The delegate goes on to say:

    In the absence of documentary evidence that would support the applicant’s claims for having been employed with Di-Cal Pharma in production, the department gives more weight to the evidence found through their investigations.  I cannot be satisfied that the employment the applicant has claimed or the Skills Assessment is genuine.  The applicant therefore does not meet criterion PIC 4020, as the department has found the applicant has supplied false and misleading documents in the form of employment claims for both the skills assessing body and the Minister. 

    The information is in a material particular to your claim to meet the skills assessment requirements as per 489.222.  It is also a material particular in your claim to meet the points test as per 489.224.  Based on the evidence and information before me, I find that the applicant has provided information that is false or misleading in a material particular, I am therefore, not satisfied the applicant meets public interest criteria 4020, therefore does not meet 489.211.

23. That was the decision of the department.  We have discussed those issues in great length at two hearings, and your agent has provided responses to a range of issues that were raised.  At last week’s hearing, I put to you under section 359AA the fact that there were 375A and 376 certificates on the file.  I provided copies of those certificates to your agent, who had no questions regarding their validity.  But they were documents or evidence that had come before the department that were adverse, and I put the gist of that information to you.  And there were a substantial number of issues, including. 

    ·It was claimed that the application contained bogus documents,

    ·Bank statements had been provided that were forged,

    ·Other documents provided were false and misleading. 

    ·Your documents of work experience in India were not genuine. 

    ·The email identification provided for Di-Cal Pharma was a fake ID. 

    ·Your claims of having been paid cash of Rs.20,000 a month when you were part time, and Rs. 35,000 a month when full time was untrue as those amounts were in excess of the Income Tax Act of India threshold, which is now Rs. 10,000 a month having been reduced from Rs. 20,000 a month in April 2018. 

    ·Statements between the accountant and the director were contradictory. 

    ·There was no evidence you ever worked at Di-Cal. 

    ·The phone number provided - being the number ending in 044, was registered to an individual and not to a company. 

24. Having had this information put to you pursuant to s.359AA, immediately before the hearing was initially adjourned, on resumption in response you said:

    I would like to make it clear that I never provided any bank statements with my application, and so that allegation is clearly ridiculous.

    You say:

    I do not know the source of these, but I suspect it is someone who is not happy that I left the company that is making complaints, but the complaints are without basis.

25. You then addressed some of the other issues, and they are issues that we have addressed at some length during the hearing.  This question of the income being in excess of the Income Tax Act requirement that income not be paid in cash - income these days over 10,000 rupees a month.  You say that income was, in fact, a base income of:

    14,000 rupees when I was on 35,000, plus allowances.

    And your agent says:

    And the allowances are exempted.

    There is no evidence provided to support those claims and it is not my understanding of the situation having dealt with these issues in numerous previous cases.

26. The Tribunal believes that the Indian Income Tax Act requires an income of Rs, 35,000 to be documented, have tax withheld and paid and it is not permissible for such an income to be paid in cash. 

27. We will speak about Darshan the accountant in more detail shortly, however his evidence regarding how the reference came into existence was clearly in conflict with the evidence of the director and the fact the author remains a mystery compounded by the fact that neither man appears capable of writing in English raises serious questions about the credibility of them both as reliable witnesses.

28. You say he was not really an accountant but rather a bookkeeper who worked for firm of chartered accountants providing services to a number of companies.

29. There is no evidence before the Tribunal to support these claims and the evidence in the decision record is that when the department rang him unannounced and asked his name and what he did, he declared that he was the accountant at Di-Cal Pharma.  He did not say he was a bookkeeper who worked for a number of companies through a chartered accounting firm. The Tribunal gives that claim very little weight. 

30. The issue of the reference letter is an issue that provides me with a great deal of concern.

31. There is a reference letter provided. The delegate rings up and speaks to Mr Sharadbhai, whose signature is on the reference letter.  And in response to the question of what was in the reference letter he says: “I do not know”.

32. You say it was a pro forma letter used for providing references to staff who were leaving. It just required you to fill in their name, their job title and job description. So, it was pretty much a blank pro forma that needed some completion, but when asked about your reference which you was on this pro-forma, the managing director says: “I do not know what was in the letter at all”. 

33. When his response is put to you for comment, you say: “He is a super busy person, and he might not have at his fingertips what was on the reference letter”.

34. You have already said it is the company’s standard pro forma reference letter - and we are not dealing with someone who worked in his factory as a labourer.  We are talking about his Production Manager, a senior position in the firm, and even though it was a couple of years earlier that you had left, I would expect him to have some knowledge of what was in the reference.  But, when asked he said: “No, I would not have any details of that.  You would have to get that from my accountant, Darshan”.

35. So, the delegate rings and speaks to Darshan.  Firstly, Mr. Sharadbhai does not speak English, does not read or write English.  So an officer of the department rings and speaks to Darshan, the accountant, who also does not speak, read, or write English.  And the officer asks: I believe you wrote this letter, and can you tell us what was in it? His response is: “No, I have got no idea what was in it.  You would have to speak to Mr Sharadbhai, the director.  He knows what was in it”.  When advised the officer had spoken to Mr Sharadbhai who did not know what was in the referencece and had referred enquiries to him, he says: “I wrote what Mr. Sharadbhai asked me to type”.

36. The question is how somebody that does not speak English, read, or write English, write a reference letter in English but then have no idea what is in it?  So we have two people who both claim no knowledge of it, and then you say: “Well, yes, the reason for that is that I, in fact, drafted that reference letter myself for me and took it to the owner, and the owner got his son, who speaks English, to read it to him, and then once he was happy with it, he signed off on it’. 

37. That might seem to provide a satisfactory explanation however, the problem we have is that Darshan says he wrote it.  You say you wrote it.  The Tribunal is not satisfied that this document is not a bogus document and leads the Tribunal to be reasonably satisfied that you have provided evidence that is false or misleading in a material particular in relation to your visa application.  You say: “You know, it was a couple of years after I left, and it is no wonder that the owner would not remember the dates”.

38. I accept that he may not remember the dates, but I do not accept that he would have no idea what was written in the letter and that he would not know what was in a reference provided to a senior member of his management team.  So given the evidence available, the Tribunal finds that in support of your application, you have provided this reference letter that was false or misleading, in breach of PIC 4020. 

39. Having found a breach of PIC 4020 the Tribunal turns its attention to whether the requirement to satisfy PIC 4020 should be waived. The matter was put to you at today’s hearing, and it is something that your agent tells me you have discussed. 

40. You believe that should you not be granted a visa there are compelling or compassionate circumstances that would affect the interests of an Australian citizen/permanent resident.

41. In support of that, you have provided two letters on letterhead of your current employer, Northern Adelaide Waste Management Authority. They are both signed by a Mr Nguyen, who is your manager.  The first one is dated back in 19 August, and says: You have completed your six-month probation period.  We are happy with you and we look forward to you working with us.

42. The second one dated 24 August simply talks about the fact that you have been working there for the last couple of years.  They employed you through a labour hire company, and you have been made permanent in the last six months.  You have been working in the role of leading hand.  And it says: I have been very impressed by his hard work and determination.  I am sure he will work with NAWMA for the long term to achieve our goals.  We look forward to him working for the long term.  For further queries regarding Maitrey’s employment with NAWMA, please do not hesitate to contact myself, Mr Nguyen.

43. While I accept you are a good employee, I do not believe that the replacement of a leading hand is going to cause a company of that nature or size any great hardship or inconvenience, and I do not find that that meets the requirement or meets the definition of compassionate or compelling circumstances that would justify the granting of a visa. 

1. Consequently, it is the decision of this Tribunal that you have breached PIC 4020.  You do not satisfy 489.211, and, therefore, it is the decision of this Tribunal to affirm the decision under review. 

   DECISION

2. The Tribunal affirms the decisions under review.

   Tim Connellan
   Member