Peraj (Migration)

[2018] AATA 5442

Peraj (Migration) [2018] AATA 5442 (7 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ferdinand Peraj

CASE NUMBER:  1725557

DIBP REFERENCE(S):  BCC2017/2197349

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:         7 August 2018 at 3:18 pm (VIC time)

DATE OF WRITTEN RECORD:               26 October 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – breach of PIC 4020 –non-genuine and misleading evidence provided – Decision under review affirmed

LEGISLATION
Migration Act 1958
Migration Regulations 1994, Schedule 2, cl 500.217

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 3 October 2017 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

2. At the hearing on 7 August 2018 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. MEMBER:  Mr Peraj, you have been in Australia since 25 April 2017 and this application for a student visa was lodged on 21 June 2017. 

4. To be eligible for the grant of a student visa, an applicant must satisfy a range of criteria set out in the regulations. 

5. Your application was refused on 3 October 2017 because the delegate found you did not meet clause 500.217, which deals with what are known as Public Interest Criteria (PIC). One of those is PIC 4020, which states that:,

   To satisfy this criterion 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 the application for the visa.

6. In your case, in support of your visa application, you provided an employment history stating you have been employed by Dimocart Italia as a workman/coordinator, since October 2010. 

7. In your application, in response to the question:  Has the applicant been offered a job at the completion of the course? You responded, “Yes.” 

8. Under the GTE heading you stated, “After 19 years of work in April, I proposed to my current employer a break.  I wanted to travel and explore Australia a tourist, take my time to study English” You went on to say, “Staying here made me realise how important is this experience for me.  For this reason I asked an extension from my work break to my employer.  Finalised to study English, and get an English certificate.  Since the company I work for is expanding abroad, my employer accepted my proposal.  If I can significantly improve my English level, I could aspire to manage and coordinate, directly, workmen in international projects.  When going back to Italy I will work in the same company”.  

9. A department official from the Australian High Commission in London contacted Mr Di Molfetta, the contact you provided at your employment, Dimocart Italia, to verify your employment, and the documents you provided. 

10. The verification process findings were that you were not currently employed by Dimocart Italia. 

11. Mr Di Molfetta advised you had gone on approved leave for three weeks.  You had contacted the company and advised them you would not be returning explaining you were in Australia.  You were asked to submit your resignation, but stated that you could not do so from Australia, and so the company made you redundant. 

12. Mr Di Molfetta confirmed the company planned expansion, but said there was no plan for you to be involved in that expansion.  Mr Di Molfetta said you had not been offered a promotion of any type. 

13. Invited to comment on this potentially adverse information, you provided a document signed by Mr Di Molfetta, in which he claimed he had a conversation with a department officer, and apologised if some of his answers were inaccurate, stating it was during a particularly complicated and stressful day. 

14. A further document you provided was a letter from Dimocart notifying you of their willingness to continue your collaboration, which was incorrectly interpreted as having ended in 2000 when it should have been interpreted as commenced in 2000. 

15. The delegate was not satisfied with your response, and refused your application.  You appealed to this Tribunal for review of that decision. 

16. The role of the Tribunal is to take a fresh look at your application, and to consider whether you satisfy clause 500.217, and whether you have provided information that is in breach of PIC 4020.

17. If the Tribunal finds you have provided evidence that creates a breach of PIC 4020, then the Tribunal must consider whether there are circumstances that would lead to the waiver of the criteria. 

18. The decision as to whether or not the visa application is refused when an applicant fails to meet PIC 4020 may be waived if 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, which justify the granting of a visa. 

19. In your case, in support of your application, you provided the documents that we referred to earlier about your employment.  You subsequently provided an undated letter signed by Mr Di Molfetta, claiming the call from the department came at a stressful moment, and interrupted his train of thought.  He stated that he was angry and wished to wind the call up as soon as he could.  He did not wish to interrupt his train of thought, and stated he did not think twice before answering, which was why he said the company did not have a job offer open to you.  He stated in the letter, “I know remember the third man at the management of Dimocart did have a conversation on advancing his studies in Australia.  In view of the international expansion of the company, the management made a verbal offer to Ferdinand, indicating that he could return to Dimocart to work upon completion of his studies in Australia”. 

20. Evidence before the Tribunal indicates that Mr Di Molfetta was engaged in a substantial interview with the department officer, in which he provided detailed answers to questions, and from which there was no indication that he was keen to complete the interview. 

21. The Tribunal finds it implausible that when he became aware that your visa application was refused he now provides answers that directly contradict a number of statements he made to the officer.  I give his written statement very little weight and prefer the evidence he gave to the officer over the telephone as being more believable. 

22. The Tribunal finds that in support of this student visa application you have provided evidence that was non-genuine, and that you have provided information that is false or misleading in a material particular, and therefore finds you do not satisfy PIC 4020.  

23. The task of the Tribunal is now to consider whether there are prescribed circumstances which would lead to a waiver of the requirement to satisfy PIC 4020.  So, Mr Peraj, there is nothing before the Tribunal that indicates that such circumstances exist.  Are there any circumstances that you would like the Tribunal to consider that you believe may lead to a waiver of PIC 4020?

24. MR PERAJ:  (Through interpreter) I do not know, because what I have said so far is everything when I talk to them, they say there was a job available for me, and everything else that we said, mentioned before.

25. MEMBER: I see. All right. Thank you. In the circumstances the Tribunal finds that the evidence you have presented creates a breach of PIC 4020 and there is no evidence of circumstances which mean the criteria should be waived. You therefore do not satisfy clause 500.217, and consequently it is the decision of the Tribunal to affirm the decision under review, which means that the decision under review, the primary decision stands.

26. Thank you for your time here today, Mr Peraj.  Thank you, Ms You.  Thank you, Madam Interpreter.  This hearing is concluded.  This decision was made at 3.19 pm on this, 7th of August 2018.  Thank you.

    DECISION

27. The Tribunal affirms the decision under review.

    Tim Connellan
    Member