Saini (Migration)

[2020] AATA 4069

Saini (Migration) [2020] AATA 4069 (28 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Sandeep Kaur Saini
Mr Manvir Singh Saini

CASE NUMBER:  1910099

DIBP REFERENCE(S):   BCC2018/1280739

MEMBER:Roslyn Smidt

DATE:28 August 2020

PLACE OF DECISION:  Sydney

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 of Schedule 2 to the Regulations.

Statement made on 28 August 2020 at 4:06pms

CATCHWORDS
MIGRATION –Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 – applicant has provided an honest account of her employment– applicant had worked as an accountant – evidence provided –decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cl 190.216, Schedule 4, Public Interest Criterion (‘PIC’) 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 Immigration on 8 April 2019 to refuse to grant the applicants Skilled Nominated (Permanent) visas under s.65 of the Migration Act 1958 (the Act). 

2. The applicants applied for the visas on 17 March 2018. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl.190.216 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate did not accept that she had worked as an accountant while employed by Rajeeb Panta.

3. The applicant appeared before the Tribunal on 24 August 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Rajeeb Panta and Pareshkumar Patel.

4. The applicants were represented in relation to the review by their registered migration agent. 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

6. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.190.216 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. 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. The applicant claims to have worked for Rajeeb Panta as an accountant from 3 October 2016 until 18 November 2017. In support of her initial application she provided:

    ·A reference from Mr Panta which states that she was employed an accountant and provides a detailed account of her duties.

    ·Pay slips covering the period in question which state that she was employed as an accountant.

    ·Bank statements which record those payments.

    ·An employment contract dated 4 October 2016.

    ·PAYG statements for 2017 and 2018.

    ·Superannuation statements for 2016 and 2017.

12. On 7 September 2018 the applicant was advised that checks conducted by the Department had failed to locate any record of Mr Panta’s business and suggested that no such business operated at the address provided by the applicant. It also noted that an organisation chart which had been previously provided indicated that the applicant’s position at the business was a bookkeeper.  The source of this chart was not mentioned.

13. The applicant responded on 2 October 2018. She maintained that she had worked for Mr Panta as an accountant in 2016 and 2017. She explained that the business had relocated during the time she worked there. She provided evidence that Mr Panta was Certified Practicing Accountant who was registered as a Tax Agent. Records of an ABN and registered business operated by Mr Panta during the period in question were also provided.  She also provided a reference from Pareshkumar Patel, the owner of a business called Jai Pty Ltd which states that he had been a client of Mr Panta for seven years.

14. In an accompanying submission the applicant’s representative stated that it was his understanding that neither the applicant nor Mr Panta had provided the organisational chart referred to in the delegate’s letter and asked for a copy of that chart. A copy of the chart appears not to have been provided.

15. The delegate accepted that the applicant worked for Mr Panta during the period in question, but did not accept that she had been employed as an accountant. In reaching this decision she noted that the information in the reference provided by Mr Panta could not be independently verified, that the letter from Mr Patel made no mention of the applicant and that the organisational chart referred to in her letter dated 7 September 2018 indicated that the applicant had been employed as a bookkeeper.  According to the delegate’s ecision the chart was provided by Mr Panta. However, it is not attached to the applicant’s file and it is unclear from the decision when or why it was provided to the Department.

16. The applicant applied for review of the delegate’s decision on 23 April 2019.  In support  of her application she provided a letter from Mr Panta which confirmed that she had worked for him as an accountant, not a bookkeeper. The letter also states that any organisational chart received by the Department which stated that the applicant was a bookkeeper would have been incorrect.

17. On 17 August 2020 the applicant’s representative provided a further submission. In essence it argues that the applicant has provided and honest account of her employment which has been substantiated by statements from her employer and other documents.

18. A statement from Mr Patel was also provided. It states that his earlier letter was provided only  to confirm the existence of Mr Panta’s accounting business. He said that in 2016 the applicant was assigned to handle his personal and company accounting work and set out the duties she performed on his behalf.

19. At the hearing on 24 August 2020 I noted that the delegate had refused the applicant’s application because she believed that she was employed as a bookkeeper and not an accountant. The applicant responded that she was a qualified accountant and had been employed as an accountant whose duties included preparing tax returns, financial accounts and reports and advising clients on related matters. She said that any chart or documents which suggested that she was employed as a bookkeeper was incorrect.

20. I noted that the applicant’s salary of less than $18 an hour did not appear to be appropriate for an accountant. She agreed that this was correct but said that she had been anxious to obtain  work experience in Australia and had been willing to accept this pay rate in order to gain that experience.

21. Mr Panta and Mr Patel gave evidence at the hearing. They both confirmed that the information regarding the applicant’s employment in their earlier statements was correct.

22. On the evidence currently before me I accept that the applicant was employed by Mr Panta as an accountant between 3 October 2016 until 18 November 2017 and that the payslips, references and superannuation statements provided contain an accurate account of her employment.

23. The only evidence which suggests that this is not the case is the low hourly rate which she received while working for Mr Panta. However, her evidence at the hearing regarding this was convincing. I accept that someone who was anxious to obtain local experience would be willing to accept a low rate of pay in order to achieve that goal.

24. I have also noted that delegate’s comments regarding an organisational chart which suggests that the applicant was employed as a bookkeeper. However, no such chart is attached to the Department file relating to this application. It is not clear who supplied the chart or for what purpose. I am therefore unable to give any weight to information it may contains.

25. The applicant meets PIC 4020(1).

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

26. PIC 4020(2) requires the Tribunal to be satisfied that the 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). 

27. There is no evidence before me which suggests that the applicant or any member of her family until has previously been refused a visa on the basis of a failure to satisfy PIC 4020 (1). Therefore, PIC 4020(2) is met.

    Has the applicant satisfied the identity requirements?

28. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.  I am satisfied that the applicant meets the identity requirement.   Therefore, the applicant meets PIC 4020(2A).

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

29. 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).

30. There is no evidence before me that the applicant or a member of her family unit has been previously been refused a visa on the basis of a failure to satisfy PIC 4020(2B). Therefore PIC 4020(2B) is met.

    CONCLUSION

31. On the basis of the above, the applicant satisfies PIC 4020 for the purposes of cl.190.216.

    DECISION

32. 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 of Schedule 2 to the Regulations.

    Roslyn Smidt
    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.  

    …