Patel (Migration)

[2024] AATA 152

Patel (Migration) [2024] AATA 152 (17 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Khyati Tejaskumar Patel
Mr Tejaskumar Rajnikat Patel
Miss Kanthi Tejaskumar Patel

REPRESENTATIVE:  Ms Sarah Leora Frankel

CASE NUMBER:  2207702

HOME AFFAIRS REFERENCE(S):          BCC2019/5439686

MEMBER:Peter Katsambanis

DATE:17 January 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Skilled Nominated (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 190 - Skilled - Nominated visas:

·Public Interest Criterion 4020 for the purposes of cl 190.216(1) of Schedule 2 to the Regulations

In relation to the second named and third named applicants, the Tribunal remits the application for visas to the Minister to consider the remaining criteria for the grant of the visas.

Statement made on 17 January 2024 at 1:26pm

CATCHWORDS

MIGRATION – Skilled Nominated (Permanent) visa – Subclass 190 (Skilled – Nominated) – occupation of ICT Security Specialist – false and misleading information – claimed relevant employment reference and salary details – pay details supplied by related entity – updated payment summaries – lengthy ongoing employment – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 5(1), 65
Migration Regulations 1994, Schedule 2, cl 190.216; Schedule 4, Public Interest Criterion 4020

CASES

Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Trivedi v MIBP [2014] FCAFC 42      

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 May 2022 to refuse to grant the applicants Skilled Nominated (Permanent) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 29 October 2019. The delegate refused to grant the visas on the basis that the first named applicant did not satisfy the requirements of cl 190.216(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate found that the first named applicant had given to the Minister information that is false and misleading in a material particular. Accordingly, the delegate was not satisfied that the first named applicant met Public Interest Criterion 4020(1).

3. The first named applicant appeared before the Tribunal in Perth on 29 November 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Rakesh Patel, who is the applicant’s employer. The second named and third named applicants also attended the hearing but did not give witness evidence.

4. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The first named applicant

6. The issue in this review is whether the first named visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 190.216(1) for the grant of the visa. Broadly speaking, this requires that:

   ·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and

   ·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and

   ·the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and

   ·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA).

7. The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.

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

8. 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.

9. 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.

10. 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.

11. In the case of the first named applicant, the primary issue is whether she provided false and misleading information about her claimed employment as an ICT Security Specialist at a company called Computer Force from 1 December 2017 until the date of the visa application, being 29 October 2019. This information is material in this matter as the claimed employment may allow the first named applicant to claim points that go towards the assessment of her visa application.

12. In support of her claimed employment at Computer Force, the first named applicant provided the Department with a number of documents over time. These documents included an employment reference from Mr Rakesh Patel, payslips and bank statements showing payment of salary, superannuation statements, PAYG statements and income tax notices of assessment, and an income tax document from 2019 listing the first named applicant’s occupation as ‘checkout operator’.

13. The decision record notes that during a telephone interview between the delegate and the first named applicant, although the applicant was able to provide specific and detailed information regarding her employment at Computer Force, the delegate had some concerns that the first named applicant may have been reading this information from a prepared document. The delegate was also concerned that the first named applicant did not provide details of the company’s client during the interview, had been provided with maternity and annual leave despite only working with the company for a short time and other discrepancies about the first named applicant’s employment at Computer Force.

14. After this interview, the first named applicant provided the Department with a further reference letter from her employer and reference letters from two clients of Computer Force indicating that the first named applicant was providing IT support services to them through Computer Force. The decision record notes that further verification checks conducted by the delegate with the two clients who had provided reference letters raised some concerns as to whether the writers of the letters knew or were aware of the first named applicant.

15. In further correspondence with the Department, the first named applicant provided amended tax return details for the 2018-2019 tax year which listed her occupation as an ICT specialist and a further letter from her employer, Rakesh Patel, explaining that Computer Force shared premises and an ABN with another company he operated which was called Appliance Parts Centre WA under the umbrella of the APC Unit Trust. This was offered as an explanation for the first named applicant having pay slips, superannuation and other documents reflecting payment from each of these entities over time.

16. The delegate’s decision record notes that the delegate was not satisfied with the truthfulness of the first named applicant’s employment claims. Therefore, the delegate found that the first named applicant had provided information that was false and misleading in a material particular in relation to this employment and accordingly did not meet PIC 4020(1). 

17. On 26 May 2022, the applicants made a valid application to the Tribunal for a review of the delegate’s decision.

18. In a submission dated 22 November 2023, the applicants’ representative provided direct arguments against the delegate’s findings and in support of the applicants’ claims. The Tribunal has read and considered this submission prior to making its decision in this matter. 

19. At the hearing, the first named applicant stated that she first came to Australia in December 2014 on a student visa. She commenced employment as an ICT Security Specialist at Computer Force in December 2017 and had worked continuously for this employer since that time. Prior to her employment at Computer Force, the first named applicant stated that she had been working as a customer service operator and cashier for a BP service station in Scarborough. She had commended this position in 2015 and worked there until February 2018. From December 2017 to February 2018, she worked in both jobs concurrently. Prior to her employment at BP, she had worked casually at a local IGA supermarket.

20. The first named applicant claimed that she did not know why the delegate had not accepted her claims about working at Computer Force. She stated that the delegate rang her without any notice on 9 November 2020 and asked her a lot of questions, including repeating some questions on a number of occasions. She was shocked by this unexpected call and expressed some alarm at the hearing that the delegate later drew an inference that she may have been reading some prepared answers, given that she had no prior warning about the telephone call and therefore would have no reason to have any such prepared answers with her at that time.

21. At the Tribunal hearing, the representative stated that it was her understanding that the two letters from clients of Computer Force (from Unique Curtains and Fresh Start Injury Management) had been sourced by the owner of Computer Force, Mr Rakesh Patel, in a genuine but misguided attempt to support the first named applicant. The representative stated that she did not believe that the letters were false or misleading because the writers of the letters were clients of Computer Force as claimed and because the first named applicant was one of the Computer Force staff that delivered services to these clients.

22. In relation to the delegate’s concerns that the first named applicant could not name clients of Computer Force when asked to do so, the first named applicant claimed that she told the delegate that in her role as an ICT security specialist she took privacy and confidentiality seriously and did not believe that she should divulge such client information to third parties. She added that if she really was reading prepared answers as the delegate had alleged, it would have been very simple for her to read client names off any document in front of her.

23. The first named applicant stated that she completed her Bachelor of Computer Science degree majoring in computer security in July 2018 at Edith Cowan University. She only needed to finish one more unit to complete this degree when she started working at Computer Force and she also had a previous ICT diploma which she had completed in India, so she believed she was qualified for the role as an ICT security specialist when she commenced it in December 2017.

24. The first named applicant claimed that she had a child, the third named applicant, on 5 August 2018 and she was currently expecting another child. She claimed that after the birth of her daughter in 2018, her employer gave her two weeks of paid maternity leave out of compassion and because he valued her work in his business. The family were currently living in the Perth suburb of Balcatta. Computer Force was also located in Balcatta, but the first named applicant performed her work remotely from home which was convenient for her and her family. Her husband, the second named applicant, was working as a process technician for the Eastern Metropolitan Regional Council.

25. The witness, Mr Rakesh Patel, stated that he was the owner of Computer Force and that, despite the same surname, he was not related in any way to the applicants. He claimed that the first named applicant had started working for his business in December 2017 and continued to work around 20 hours a week for Computer Force, although she sometimes worked additional hours if needed.

26. The witness confirmed the claims previously made by the representative (when the witness was not in the hearing room) that he sourced the support letters from his clients and the clients wrote that the first named applicant was providing services to them on the instructions and at the direction of the witness. He indicated that this information was true and was not false in any way. He stated that his intention was to assist his staff member, but agreed that his attempted assistance was a misguided and possibly counterproductive attempt given the findings made by the delegate. The witness stated that he was very happy with the quality of the work the first named applicant had delivered for his business over the past 6 years.

27. The representative indicated that she would provide the Tribunal with Australian Taxation Office payment summaries for the first named applicant after the hearing. These were subsequently provided for the income tax years from 2017/2018 to 2022/2023 and showed that the first named applicant had been paid in each of those years by an entity called ‘the trustee for APC unit trust’.

28. The Tribunal has read and considered the delegate’s concerns about the truthfulness of the claims made over time regarding the first named applicant’s employment at Computer Force.

29. However, the Tribunal does not accept the delegate’s finding that the first named applicant was reading prepared answers during the telephone interview with the delegate because, as the first named applicant pointed out at the Tribunal hearing, she had no prior notice of this interview and she was not aware that this telephone interview was going to take place so she therefore had no reason to have prepared answers in front of her at the time of the interview.

30. The Tribunal accepts that the first named applicant, having previously completed an ICT diploma and only requiring a few subjects to complete her bachelor’s degree, was suitably qualified to be employed as an ICT security specialist by Computer Force from December 2017 as claimed. The Tribunal also accepts that the description of the first named applicant’s employment as a ‘checkout operator’ in some taxation documents was an oversight based on her previous employment in such a role and based on a short period of time when she worked concurrently in both roles, as is common with many overseas students in Australia. In addition, the Tribunal accepts the explanation about why the first named applicant received payments from various entities over time based on the explanation by the employer that he ran several different entities through the same ABN and utilising the same unit trust structure.

31. The Tribunal has some concerns that the first named applicant’s employer procured letters from two clients containing information that the clients were not personally aware of but instead were made based on details relayed to them by the employer in a misguided attempt to assist the first named applicant. However, the Tribunal accepts the explanation offered at the hearing by both the representative and the employer that the statements were not false or misleading because the first named applicant was actually the staff member who was providing those services to these clients.

32. The Tribunal notes the delegate’s concerns that the first named applicant was provided maternity leave by her employer soon after commencing employment. However, the Tribunal also notes that this maternity leave was only for a period of two weeks which is not an extended period of time and aligns with the employer’s description of the first named applicant as a valuable employee who he did not want to lose from his business. Therefore, the Tribunal places no adverse weight on the provision of this leave when considering the first named applicant’s claimed employment.

33. The Tribunal has also placed significant weight on the fact that the first named applicant continues to work in the same role at the same company and has now done so for more than 6 years. The Tribunal finds that this ongoing employment is a strong indicator that she was employed as an ICT security specialist at Computer Force as claimed from December 2017 onwards.

34. On the evidence before it, the Tribunal is satisfied that the first named applicant has been employed as an ICT security specialist by Computer Force since December 2017 as claimed. Accordingly, the Tribunal is satisfied that the first named applicant has not provided information that is false and misleading in a material particular in relation to this claimed employment. In addition, there is no information before the Tribunal to indicate that the first named applicant has provided a bogus document, as defined in s 5(1).

35. On the basis of these findings, the Tribunal finds that there is no evidence before it that the first named 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 the visa application or a visa held in the period of 12 months before the application was made.

36. Therefore, the first named applicant meets PIC 4020(1).

    Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(1)?

37. PIC 4020(2) requires the Tribunal to be satisfied that the first named applicant and each member of the family unit have not been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing 3 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2AA).

38. There is no evidence before the Tribunal to suggest that there are any issues relating to this provision in the first named applicant’s circumstances.

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

    Has the applicant satisfied the identity requirements?

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

41. The first named applicant provided the Department with a copy of her Indian passport and various other identity documents in satisfaction of this requirement.

42. Therefore, the first named applicant meets PIC 4020(2A).

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

1. PIC 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2BA).

2. There is no evidence before the Tribunal to suggest that there are any issues relating to this provision in the first named applicant’s circumstances.

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

4. On the basis of the above, the first named applicant does satisfy PIC 4020 for the purposes of cl 190.216(1).

   The secondary applicants

5. The applications made by the second named and third named applicants rely on their membership of the first named applicant’s family unit. 

6. Given the findings made above in relation to the first named applicant, the appropriate course is to remit the applications for visas to the Minister to consider the remaining criteria. This includes any claims made by the second named and third named applicants.

   DECISION

7. The Tribunal remits the applications for Skilled Nominated (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 190 - Skilled - Nominated visas:

   ·Public Interest Criterion 4020 for the purposes of cl 190.216(1) of Schedule 2 to the Regulations

   In relation to the second named and third named applicants, the Tribunal remits the applications for visas to the Minister to consider the remaining criteria for the grant of the visas.

   Peter Katsambanis
   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.

   …