Sanagooy (Migration)

[2019] AATA 6271

Sanagooy (Migration) [2019] AATA 6271 (15 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohammad Ali Sanagooy

CASE NUMBER:  1704895

DIBP REFERENCE(S):  BCC2016/1531187

MEMBER:John Cipolla

DATE:15 October 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 (Temporary Work (Skilled)) visa:

·Public Interest Criterion 4020 for the purposes of cl.457.224 of Schedule 2 to the Regulations.

Statement made on 15 October 2019 at 10:34am

CATCHWORDS

MIGRATION –Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – false or misleading information in a material particular – bogus document – incorrect dates of work for previous employer in curriculum vitae submitted with application –employer not meeting sponsorship obligations – monitored by department – applicant ceased employment because employer stopped paying him – no element of fraud or deception – error not intentional – CV produced by someone else – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65
Migration Regulations 1994 (Cth), Schedule 2, cl 457.224, Schedule 4, criterion 4020(1)

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 27 February 2017 to refuse to grant the applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 22 April 2016. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.457.224 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate found that a curriculum vitae submitted with the applicant’s visa application was false and misleading in a material particular. The reason for this was the curriculum vitae indicted that the applicant had worked for Marino Group Pty Ltd from April 2012 until December 2014. The evidence before the Department indicated that this was not the case and that the applicant had only worked for this business from April 2012 until March 2014.

3. Recourse to the Departmental decision record indicates that Marino Group Pty Ltd was the subject of monitoring by the Department of Immigration that commenced in May 2014 through to September 2015. During the period of monitoring the Department determined that the sponsoring business had made numerous breaches of its sponsorship obligations in relation to its employment of the applicant. The Department concluded that the sponsor had started a shelf company in order to nominate, support and invest in the applicant’s research, but was never set up to employ, control and monitor the applicant’s output; that no monies were paid to the applicant by the sponsor throughout the period of the assessment and no payslips were issued; and that the Directors of Marino Group Pty Ltd provided conflicting information as to the date that the applicant ceased employment at their business.

4. As a result of the Departmental monitoring the Department concluded that the applicant’s claims to have worked at Marino Group Pty Ltd for the period claimed were non-genuine and that the applicant’s curriculum vitae was, a bogus document, or false and misleading information.

5. During the processing of the applicant’s visa application a natural justice letter dated 8 August 2016 was sent to the applicant by the Department. In the letter the Department advised the applicant that it considered the applicant’s claimed employment experience with Marino Group Pty Ltd to be false or misleading, and the applicant was invited to provide comment on the Departmental findings and to provide a statement indicating whether compelling and/or compassionate reasons for the waiver of PIC 4020 existed.

6. The applicant provided a statement in response to the natural justice letter. The applicant stated that the contents of his curriculum vitae were correct except that he had ceased employment with Marino Group Pty Ltd in March 2014 and not in December 2014 as stated. The applicant further stated that the error was unintentional and had not been made by the applicant himself as he did not produce the curriculum vitae himself and it had been prepared on his behalf. The submission noted that the erroneous dates were only a minor error and should not be considered to be false or misleading in a material particular. Further to this that the applicant was not in a position to confirm or deny whether Marino Group Pty Ltd had been registered as a shelf company as he was not privy to this information. That the applicant ceased employment with Marino Group Pty Ltd because they stopped paying his salary and that he was only paid up until March 2014 and prior to the cessation of his employment payments to him had been made on an intermittent basis. Further to this that the research that the applicant was involved in pertaining to the encapsulation and storage of low-level nuclear waste was vital to the economic interests of Australia and in itself provided a compelling basis in the interests of Australia to waive PIC 4020.

7. The Tribunal wrote to the applicant on 25 July 2019 inviting the applicant to comment on information that the Tribunal considered could be the reason or part of the reason for affirming the decision under review the Tribunal noted as follows:

   It is a requirement for the grant of a Subclass 457 (Temporary Work (Skilled)) visa that you are the subject of a nomination by a standard business sponsor approved under s.140GB of the Act.

   A review of your file and Departmental records suggests that you are not the subject of an approved nomination by a standard business sponsor because the nomination previously approved for FLASHGEN PTY LTD in respect of you expired on 25 May 2017.

   The Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018 commenced 18 March 2018 and, among other things, repealed and replaced the criteria for nominations relating to proposed Subclass 457 (Temporary Work (Skilled)) visa applicants. The Subclass 457 (Temporary Work (Skilled)) visa was also repealed and closed to new applications.

   This information is relevant to the review because it suggests that you are not the subject of an approved nomination and that a new application for approval cannot be made. If we rely on this information in making our decision we may find that you are not the subject of an approved nomination. This would be the reason, or a part of the reason, for affirming the decision under review.

8. The Tribunal received a response from the applicant’s representative dated 7 August 2019. The submission notes that the applicant is a natural and physical science professional who [has created a patented way] to encapsulate hazardous waste, fly ash, plastic waste, and most other hazardous and harmful waste products from around the world. The submission notes that there are a number of patents in place with regard to the technology that the applicant has developed with a very wide range of applications. The submission notes that testing of the applicant’s product has been undertaken by the CSIRO, the United States Department of Energy, and the Australian Nuclear Science and Technology Organisation. In addition to this representations have also been made to Ministers from the Victorian State Government, the Federal Government, and leading environmental and waste management companies in Australia regarding the applicant’s patented products and their applicability both nationally and worldwide. The submission notes government Ministers were aware of the review that was currently before the Tribunal and that both state and federal government Ministers would be making submissions to the Australian Government in due course pertaining to the applicant and support for the applicant’s patented products which have real economic benefit to Australia. A number of supplementary documents were provided to the Tribunal in support of the submission which have been duly considered.

9. The applicant appeared before the Tribunal on 25 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Steven Lazarevic and Mr Boyd Russell. 

10. At the outset of the review hearing the Tribunal explained to the applicant the relevant issues in review. The Tribunal noted that the visa application had been refused on the basis of the applicant not meeting the requirements of cl.457.224 of the Migration Regulations and that the Department had found that the applicant had provided false and misleading information with respect to his 457 visa application. The Tribunal further noted that the applicant was currently not the subject of an approved nomination by a standard business sponsor and the Tribunal had written to the applicant inviting him to comment on information that would be the reason or part of the reason for affirming the decision under review.

11. The letter dated 25 July 2019 is replicated above.

12. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

13. The applicant provided his name and date of birth and advised that he was born in Tehran Iran but was a citizen of the United States of America.  The applicant advised that he migrated to the United States in 1976 as a student. The applicant completed studies in mechanical engineering in the United States and obtained permanent residence in that country on the basis of marriage. The applicant stated that there were no children of the marriage.

14. The Tribunal asked the applicant about his migration history to Australia. The applicant stated that he initially came to Australia as the holder of a tourist visa and that he held a number of visitor visas to Australia. The applicant stated that he was an inventor and that an Australian business had at this time expressed an interest in buying his invention for 5 million dollars.

15. The applicant stated that he held a number of Subclass 457 visas.  The evidence before the Tribunal indicates that the applicant was first granted a Subclass 457 visa on 15 March 2006 and the applicant advised that he was sponsored by Quickwall Pty Ltd.  The evidence before the Tribunal indicates that the applicant then changed nominating employers to East Coast Electrical and Refrigeration Pty Ltd and that this visa was granted on 3 April 2007 and valid until 3 April 2011. The applicant was then granted a further Subclass 457 visa on 24 April 2012 with Marino Group Pty Ltd which expired on 24 April 2016.

16. The applicant advised the Tribunal that the first position that he held as a 457 visa holder was with Quickwall Australia in the position of Chief Scientist. He advised that this company was a building company that was involved in residential and commercial building. The applicant advised that he invented a polymer formula that had a range of applications including applications relevant to the building industry and that Quickwall wanted the applicant to provide them with the formula on the basis that if he provided them with the formula they would pay him at a later date. The applicant stated that he refused this offer and as a consequence he left the company and found an alternative nominating business.  The applicant stated that his second nominating employer advised him that they would sponsor him for permanent residence but after he refused to provide them with the formula for his polymer invention that working relationship also broke down. The applicant stated that after the breakdown of this employer relationship he travelled to Melbourne and met with a new sponsoring business that promised to lodge an employer nomination application on his behalf. The applicant stated that eventually he was nominated to work as a Subclass 457 visa holder for Marino Group Pty Ltd. The applicant stated that he could not remember the exact dates that he had worked with Marino Group as he did not have a good memory for dates. The applicant stated that at the time that he was required to apply for a further Subclass 457 visa the Director of Marino Group Mr Peter Stone prepared documents for lodgement with the Department on the applicant’s behalf including updating the applicant’s curriculum vitae. The applicant stated that he failed to check the updated curriculum vitae before it was submitted. The applicant stated that the provision of the incorrect dates in the curriculum vitae was an innocent oversight and was not deliberate.

17. The applicant advised that since he had developed his polymer product that a number of patents had been developed for various applications of the product such as the containment of nuclear waste along with the encapsulation of a range of other waste products such as fly ash from coal mining, asbestos and salt that leaches out into the environment from desalination plants.

18. The Tribunal asked the applicant why he had developed his patents in Australia and not the United States. The applicant stated that his invention was patented in Australia because he loved this country and in the time he had been in Australia the country and its people had been very good to him.  The applicant added that Australia offered greater protection to the patented products than what was available to him in the United States. The applicant stated that his products have now been tested by a range of agencies in Australia including the Australian Nuclear Science and Technology Organisation based in Lucas Heights in Sydney and the CSIRO. 

19. The Tribunal took evidence from Mr Steven Lazarevic.  The witness described himself as an investor. He advised that he had assisted the applicant in having his products patented and having the various applications for the polymer products tested. He advised that there were multiple applications for the patented polymer that would have substantial economic benefits for Australia. The witness advised that the patented products had universal applications and that if the products were retained and further developed in Australia there would be substantial economic benefits for the country.

20. The Tribunal took evidence from Mr Boyd Russell.  The witness advised that he worked with Pricewaterhouse Coopers who had been engaged to assist the applicant in the rollout of his polymer patents and with his engagement with relevant industry groups. The witness advised that the patented products had multiple applications that would benefit the encapsulation of waste products worldwide and would provide an enormous economic benefit to the Australian economy over time.

21. A number of documents in support of the applicant were provided to the Tribunal at review. This included a comprehensive letter of support from Mr Marcus Tierney, a partner with Pricewaterhouse Coopers; a letter of support from Associate Professor Brad Cassels, President of the Australasian Radiation Protection Society; a letter from Mr Stephen Moulton, a Partner with Gadens Lawyers pertaining to the applicant’s inventions and the significant opportunities for Australia that they may provide; a statement from Mr Ken Jefferd Managing Director and non-executive Director of HRL Technology Group as well as Executive Director of Research Innovation and Commercialisation at the University of Melbourne attesting to the polymer technology developed by the applicant and the significant global potential in a ‘variety of industry verticals’ if it was successfully commercialised; a statement from Mr Chris Mitchell, Patent Attorney with Davies Collison Cave pertaining to the range of technologies developed by the applicant and the huge potential for commercialisation and development; and a statement from Robin Batterham from the University of Melbourne attesting to the applicant’s polymer products and their [range of universal applications.]

22. Also provided was a copy of a letter from the Honourable Peter Dutton dated 18 October 2017 and a letter from the Honourable Chris Bowen Federal Member for McMahon dated 29 August 2014.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

24. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.457.224 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).

25. 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?

26. 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.

27. 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.

28. 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.

29. 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).

30. The evidence before the Tribunal indicates that the applicant as the holder of a previous Subclass 457 visa was employed by Marino Group Pty Ltd from April 2012 until March 2014.  The evidence before the Tribunal indicates that applicant’s claim in his curriculum vitae to have worked for Marino Group Pty Ltd from April 2012 until December 2014 was not correct but there is no evidence before the Tribunal there was an element of fraud or deception by the applicant necessary to attract the operation of the provision: (Trivedi v MIBP [2014] FCAFC 42)

1. The evidence before the Tribunal indicates that Marino Group Pty Ltd was not meeting its sponsorship obligations to both the Department and to the applicant, something clearly outside the applicant’s control. The evidence indicates that Marino Group Pty Ltd was the subject of monitoring by the Department from May 2014 until September 2015.  The evidence on the Departmental file indicates that no money was paid to the applicant during the period of monitoring (May 2014 until September 2015) and that Marino Group Pty Ltd failed to provide the applicant with pay slips which it was required to do under the terms of its sponsorship. The applicant asserts and the Tribunal accepts that the applicant ceased employment with Marino Group Pty Ltd in March 2014 because they stopped paying him, and this fact is corroborated by the compliance action against Marino Group Pty Ltd that had been commenced by the Department.  In addition to anomalies regarding the applicant’s salary and the provision of payslips the monitoring also looked into Marino Group’s establishment of a shelf company to invest in the applicant’s research and the fact that the Directors of Marino Group Pty Ltd had provided conflicting information about when the applicant ceased employment with their business.

2. The evidence provided by the applicant is that the information contained in the curriculum vitae is correct except that he ceased employment in March 2014 and not in December 2014.  The Tribunal accepts that the error was not intentional and that the curriculum vitae was produced on the applicant’s behalf and accepts that the applicant failed to pick up the error.  The Tribunal accepts the applicant’s evidence that he ceased employment in March 2014 because Marino Group Pty Ltd stopped paying him.  The applicant has also submitted and the Tribunal accepts that the error in the curriculum vitae was a minor one and was not ‘false or misleading in a material particular’ and was not information that would have benefited the applicant in any way.

3. In addition to this the Tribunal accepts that the applicant did not have knowledge about whether Marino Group Pty Ltd was registered as a shelf company.

4. Therefore, having regard to the evidence before it the Tribunal finds that the applicant meets PIC 4020(1).

5. In the circumstances it is not necessary for the Tribunal to consider the waiver provisions.  That is, it is not necessary for the Tribunal to consider whether there are compelling circumstances that affect the interests of Australia, or whether 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), that justify the granting of the visa.

6. The Tribunal notes that in the event that it found that PIC 4020 applied in this case the weight of the evidence is such that the Tribunal would have waived PIC 4020 on the basis that there are compelling circumstances that affect the interests of Australia.  Indeed the polymer developed by the applicant has multiple applications and has worldwide potential and it would be in in the best interests of Australia that this technology is retained and further developed in this country.

   DECISION

7. The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 (Temporary Work (Skilled)) visa:

   ·Public Interest Criterion 4020 for the purposes of cl.457.224 of Schedule 2 to the Regulations.

   John Cipolla
   Senior 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. 

   …