Sanchez Moreno (Migration)

Sanchez Moreno (Migration) [2023] AATA 4608 (21 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Maria Camila Sanchez Moreno
REPRESENTATIVE:  Mr Antony Amhurst Wallace (MARN: 0965140)
CASE NUMBER:  2119634
HOME AFFAIRS REFERENCE(S):          BCC2019/5235997
MEMBER:C. Packer
DATE:21 December 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for a GK – Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 482 - Temporary Skill Shortage visa:
·Public Interest Criterion 4020 for the purposes of cl 482.217 of Schedule 2 to the Regulations

Statement made on 21 December 2023 at 4.52pm
CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – false or misleading information – work reference – discrepancies with information in student visa application – Overseas Post verification – work in a family business – open source information checks – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 482.217; Schedule 4, 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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 December 2021 to refuse to grant the applicant a GK – Temporary Skill Shortage (Class GK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 18 October 2019. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 482.217 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate found that the applicant had provided false or misleading information in a work reference.
The applicant appeared by video before the Tribunal on 15 December 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Stephane Meyer and Dave Ansett.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 482.217 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).
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?
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.
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.
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.
The applicant made the application for a 482 visa on 18 October 2019. In the application she gave her employment history that included:
Position: Head Chef
Position type:
Full-time
Employer name: San Nicolau Mansion
Country: COLOMBIA
Date from: 01 Nov 2015
Date to: 31 Mar 2019
Description of duties: Head Chef
Position: Head Chef
Position type:
Full-time
Employer name: Hotel Cabanas Pedro D Merchan
Country: COLOMBIA
Date from: 01 Feb 2018
Date to: 31 Mar 2019
Description of duties: Chef
A Form 80 stated the same employment- and that both positions were ‘Head Chef’.
The applicant’s CV/resume listed the same employment, albeit the Hotel Cabanas work was described as a “Casual job”.
With the application she provided two references (in Spanish and with English translation):
·Hotel Casa San Nicolas, dated 13 September 2019, signed by Manager Cecilia Del Consuelo Sanchez Lucas. This stated in part that the applicant had “…worked at our Hotel Casona San Nicolas from the 01 November 2015 to the 31 March 2019 performing the role of Chef”.
·Hotel Cabanas, dated 13 September 2019, signed by Manager and owner Heynner Humberto Suarez Suarez. This stated in part that the applicant had “…worked in our hotel from the 1 February 2018 to the 31 March 2019 performing the role of CHEF”.
The Department, in a letter dated 6 January 2020, invited the applicant to comment on information. The letter stated in part:
It has been brought to the department's attention that PIC 4020 may not be satisfied based
on the following information being submitted to the department by the applicant.
As part of the application, the applicant has submitted an employment reference from
Hotel Casona San Nicholas and Hotel Cabannas which claimed that the applicant had
been employed from November 2015 to March 2019 and February 2018 to March 2019
respectively.
The above employment reference were referred to the Australian Embassy in Santiago. On
verification of the documents provided with the previous student visa and noted significant
discrepancies in employment claims and supporting evidence. The department concluded
that the above employment reference was non-genuine.
The above employment reference is considered to be information that is false or misleading
in a material particular as it was relevant to assessing whether the applicant met the skills
requirements under Migration Regulation 482.212. The applicant is therefore likely to fail to meet PIC 4020(1)(a) in the application currently under assessment.
Departmental systems show that the Overseas Post had reviewed the references from Hotel Casa San Nicolas and Hotel Cabanas, provided in the applicant’s Student visa application:
·19/11/2015 to 21/11/2016, Hotel Casona San Nicolas, cook. Then 15/6/2017 to 2019 (January) administrator and occasional cook (only in peak seasons and events).
·[dates not specified] Don Pedro de Merchan Hotel Cabins, Occasional administrator and cook (only in peak seasons and events)
The applicant’s response included a submission of 30 March 2020 that submitted in part:
The applicant had requested the Freedom of Information (FOI), and it has been released in full. As seen in the FOI document, the delegate did not conduct an integrity check on the references provided by the applicant as requested by Parammatta Business Centre to the Australian Embassy in Santiago. The Australian embassy staff were supposed to contact Hotel Casona San Nicolas and Hotel Cabanas. A list of Questions was even provided to them to ask the employers. (please refer to the FOI document provided).
The Embassy deduced without contacting the employers that references are not genuine due to the discrepancies with the student visa. In addition to the same family name of the employer and the father of the applicant. Therefore the opinion was based on an assumption and not fact check and verification of the references.
In this s57 notice, Ms Sanchez Moreno’s Employment from Hotel Casona San Nicholas is in dispute.
According to delagtes’ letter, the applicant’s Employment reference from Hotel Casona San Nicholas and Hotel Cabannas is considered as false or misleading material for the purpose of PIC 4020(1). According to Ms Sachez Moreno, her employer would have confirmed the genuineness of the relevant reference if the Department had contacted the author as initially requested by the relevant processing area.
Moreover, it was deduced that the reference provided for the role as a chef at Hotel Casona San Nicolas should be regraded as the false/misleading information due to the possibility of having a family relationship with the legal representative of the Hotel. The does not deny the family relationship and the owner of the Hotel is indeed her aunt, however to our knowledge there is no restriction of working overseas in a family business and using the experience of such kind of employment.
The applicant has provided us with the employment references and their translation, provided a salary certificate from an accountant and the details of the accountants. Her references and resume are in line.
She believes that the Student Visa agent who processed her visa application could have downgraded her experience, skills and qualifications for the student visa. To her knowledge Ms Sanchez Moreno did not provide any false or misleading information, she resubmits the references insisting on them being genuine as her work experience and hence satisfied PIC 4020 (1).
The applicant also provided another reference from Hotel Cabanas, dated 7 January 2020, signed by Manager Heynner Humberto Suarez Suarez. This stated in part that the applicant had “…worked in our hotel from the 1 February 2018 to the 31 March 2019 performing the role of CHEF, earning a monthly salary for services rendered of $1,000,000 (One million Colombian pesos)”.
Following the response and submissions, the Department conducted another check. On 14 September 2021 the Overseas Post provided advice that stated in part:
Dear colleague,
Please find at the end of this email Santiago post’s answers to your questions following our interview with one of the referees. Please note that as the post that owns risk in the Colombian caseload, we also reserve the right to conduct further checks and offer further insight into transactions linked to our caseloads, in addition to, or in place of, phone calls, especially when based on local expertise of the Latin American reality a phone call is considered to offer little or no value to the assessment of the legal requirements of a visa subclass.
While I am satisfied that the applicant worked at HOTEL CABANAS PEDRO D MERCHAN as claimed, and likely did work at CASA SAN NICOLAS in some capacity and for some length of time, I am concerned that the applicant might have heavily embellished her work experience at CASA SAN NICOLAS for the purpose of strengthening the current skilled visa application.
There are enormous inconsistencies between her CASA SAN NICOLAS work experience claims as provided in her student and skilled visa application, including:
 The nature of the position:
o Student visa: administrator/cook
o Skilled visa: chef/head chef
 The length of employment:
o Student visa: 19 November 2015 to 21 November 2016, and then 15 June 2017 to 10 January 2019
o Skilled visa: 1 November 2015 to 31 March 2019
 The type of employment contract:
o Student visa: ‘occasional work’ (peak seasons and events)
o Skilled visa: suggests full time work, uninterrupted
…
HOTEL CABANAS PEDRO D MERCHAN
Santiago post contacted Mr Heynner Humberto SUAREZ SUAREZ (the referee) via the phone number listed on the website for this business.
 Is the business registered? Yes.
 Please confirm contact details in employment reference matches those found in local phone/address guides. Contact details in reference letters match those found on open source.
 Confirm the occupation/role held by the applicant. Chef/admin assistant.
 Confirm the duration of employment and the salary made for the applicant. Mr SUAREZ was unable to provide exact dates as he was not at the hotel at the time, but his estimated timeframe matched the one provided in the reference letter. Monthly salary was estimated to be around COP 1,000,000.
 Confirm the tasks and duties undertaken and held by the applicant in relation to those claimed on the evidence provided. The duties listed by Mr SUAREZ the matched those in the reference letter.
 Is there any family relationship between the business and the applicant? No.
 Who provided this information for the referral check, how long have they worked at the business? Mr SUAREZ, owner of the business for 20+ years.
 Are they allowed to provide a reference/employment check on behalf of the business? Yes.
 Did you identify any other concerns from the referral check? See above.
CASA SAN NICOLAS
Santiago post attempted to contact this business multiple times by phone; however, their phone number appears to have been disconnected as the calls go straight to voice mail. Open source checks appear to confirm that this business is registered and the contact details provided to us by the applicant are correct. However, even if I were able to get through to the referee, and even if the referee were to confirm all the claims made in the reference letter, my concerns re the genuineness of these claims would not be dispelled as I have concerns about the credibility of the information provided by the referee. While the fact that the referee is affected by a conflict of interest (being the applicant’s aunt) does play a minor part, my misgivings are mostly due to the fact that the referee has produced two reference letters with different claims about the applicant’s work experience, which is particularly concerning in the absence of robust third-party evidence to evidence the referee’s ‘second’ set of claims (e.g., official tax return records). Please also note that there is nothing on the website of CASA SAN NICOLAS to suggest they have a restaurant. In fact, their Booking.com webpage states they have a ‘snack bar’, which raises concerns as to whether they could and would have employed someone full time as a ‘head chef’ for such a long period of time.
The Department, in a letter dated 1 October 2021, invited the applicant to comment on information, and stated in part:
You have provided evidence in your previous 500 TU Student Visa application that you worked for San Nicolas Mansion - Villa De Leyva (Colombia) in the positions of administrative personnel, cook and pastry cook from November 2015 until November 2016. You have stated that this position was a casual position during high season and events.
In this visa application you have claimed to have worked at San Nicolas Mansion - Villa De Leyva (Colombia) in the position of chef from 1 November 2015 until 31 March 2019 and have provided a work reference as supporting evidence.
The discrepancies in the information provided to the Department in your previous application and this application have been noted.
The Department has conducted an integrity check with San Nicolas Mansion - Villa De Leyva (Colombia) to verify your employment history.
The Overseas Post in Santiago attempted to contact the business multiple times, however the phone number appears to be disconnected. Open source material confirms that the contact details for the business match those that were included on the employment reference. Open source material also states that the business has a ‘snack bar’, which raises concerns as to how someone would be employed in the position of chef in the business.
The Department has found that you have provided conflicting information on your previous visa application and this visa application.
Therefore the Department has formed an initial conclusion that you have provided false and misleading information in the form of the employment reference to satisfy the criteria for the grant of this visa application.
The information is material particular to the assessment of clause 482.212 and 482.231 of the Migration Regulations 1994 which require that the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated position, and that the applicant has worked in the nominated occupation or a related field for at least two years.
You may provide comment on the information that is suspected to be false or misleading in a material particular, and specify if you believe there are any compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, to justify the waiver of any or all of PIC 4020(1) to justify the grant of the visa.
The applicant’s response included a submission of 26 October 2021 that submitted in part:
…
Ms Sanchez Moreno response to the discrepancies between her student visa and the current visa application were discussed in the previous submission. She believes that the Student Visa agent who processed her visa application could have downgraded her experience, skills and qualifications for the student visa. To her knowledge Ms Sanchez Moreno did not provide any false or misleading information, she resubmits the references and salary certificates insisting on them being genuine as her work experience and hence satisfying PIC 4020 (1).
In addition, we are providing with this submission a new letter from the employer confirming her work experience between November 2015 and March 2019.
The Department has conducted an integrity check with San Nicolas Mansion - Villa De Leyva (Colombia) to verify your employment history.
The Overseas Post in Santiago attempted to contact the business multiple times, however the phone number appears to be disconnected. Open source material confirms that the contact details for the business match those that were included on the employment reference.
We refer the delegate to the letter from the employer attached to IMMI account (4515-A), where they have explained the technical difficulties, they experience while using Telephone communication due to the rural Location of the Hotel. The Business have provided WhatsApp numbers as all their communication are done through Internet such as WhatsApp, Zoom or skype. In order to remove the doubt and not to base the decision on an assumption, we kindly request the delegate to contact the Business one more time to verify the references with the phone number provided by the Manager via WhatsApp. The Business Manager is available to answer any calls, and we request the Department to take this technical difficulty in consideration before deciding on the application.
Open source material also states that the business has a ‘snack bar’, which raises concerns as to how someone would be employed in the position of chef in the business.
The restaurant of the hotel used to provide Breakfast, lunch, dinner and cater for special events. Due to the pandemic and the restriction caused by the Bio-security measures, the Hotel is now just offering Breakfast, snacks and special meals as is shown in internet search. The focus on the breakfast in online search is because it is offered for free with the Wi-Fi to all visitor and is shown in all the websites featuring the Hotel. However, plenty of sites mention the Restaurant and that food is provided too and it is great.
…
The Department has found that you have provided conflicting information on your previous visa application and this visa application.
Therefore, the Department has formed an initial conclusion that you have provided false and misleading information in the form of the employment reference to satisfy the criteria for the grant of this visa application.
As discussed above Ms Sanchez Moreno’s explains the discrepancies on her previous student visa application and this visa application to be due to her student agent downgrading her skills and experience.
In this s57 notice, Ms Sanchez Moreno’s Employment from Hotel Casona San Nicholas is in dispute. According to delegates’ letter, the applicant’s Employment reference from Hotel Casona San Nicholas is considered as false or misleading material for the purpose of PIC 4020(1). According to Ms Sachez Moreno, her employer would have confirmed the genuineness of the relevant reference if the Department contact with the author went through.
As this incident has been questioned by the DoHA as a breach of 4020, We kindly request the Department not to classify this as providing false and misleading information in the form of the employment reference, before verifying the references.
We believe that the applicant has provided the evidence to prove that she did not provide
false/misleading information at the time of application and; hence applicant satisfies PIC4020.

Further information provided to the Tribunal included:
·Details online [cleartrip.com] that showed Casona San Nicolas. This showed photos, the property location in the suburbs, and its amenities that included ‘restaurant’.
·Details online [zenhotels.com] that showed Casona San Nicolas. This showed photos, 4km from city centre, and its amenities that included ‘bar or restaurant’.
·Details online [booking.com] that showed Casa San Nicolas. This showed photos, and its amenities that included ‘Great food: meals here are highly recommended’.
·A menu (in Spanish and English) that showed a comprehensive selection of dishes
·Photos of a kitchen with workers, and restaurant
The applicant provided another reference from Hotel Casa San Nicolas, dated 21 October 2021, signed by Manager Cecilia Del Consuelo Sanchez Lucas. This stated in part:
… from the 01 November 2015 to the 30 March 2019, performing the role of Chef.
He duties as a Chef involved carrying out the following activities:
• Main kitchen support, performing tasks such as preparing dishes for breakfast, lunch, dinners, snacks to serve to guests, clients and at different hotel events.
• In baking, making certain type of cakes, shortbreads, puff pastry, and other types of cakes. (Angel cake, angel, devil cake, cheese cake, Genoese, heavy cake, etc.)
• In the restaurant events, she was the organiser and director of the kitchen operations, and of the work team, coordinating everything related to the service and the dishes that were served to the attendees.
• Highly knowledgeable in HACCP standards, controlling, undertaking and perfecting the kitchen's operation and hygiene.
• In the hotel kitchen, she managed, controlled and reviewed the orders for the different à la carte dishes that were offered to the restaurant's guests, clients and diners, with the quality of the food served being under her responsibility.
• In the social events that were held at the hotel, she was the director responsible for the preparation, plating and service of all the meals that had to be served to the participants.
Currently, due to bio-security measures relating to the Covid-19 pandemic, the restaurant offers only breakfast and snacks, and occasionally restaurant service for very special guests who request it.
We are aware that communicating with us by telephone has created doubts, unfortunately we are located in a rural area of the Municipality of Villa de Leyva - Boyaca, since our hotel is in the countryside, where the cell phone signal is very weak.
However, we have an advanced Wi-Fi system which facilitates communication with us through calls using Whatsapp, Zoom or Skype. We are at your disposal to answer any questions regarding the work of Ms. Maria Camila Sanchez Moreno.
In a letter dated 14 August 2023 the Tribunal noted the member’s concerns with the differences between the references over time.
First, the Tribunal considered the applicant’s claimed work at Hotel Cabanas. In the application she stated she worked as a chef in a full-time position of Head chef from February 2018 to March 2019. The Form 80 stated the position had been ‘Head chef’. The applicant’s CV/resume described the work as a ‘Casual job’.
A reference provided in the application from Hotel Cabanas, dated 13 September 2019, signed by Manager and owner Heynner Humberto Suarez Suarez, stated in part that the applicant had “…worked in our hotel from the 1 February 2018 to the 31 March 2019 performing the role of CHEF”. The applicant’s responsibilities ostensibly were those of a chef who managed a kitchen team- particularly during events and functions (as summarised):
·Implement HACCP standards
·Direct and perfect the dishes offered in the restaurant
·Demonstrate leadership in the events taking place at the hotel
·Manage a team for functions
·Create new dishes for the restaurant
The Department requested the Overseas Post question the business about the applicant’s work and actual tasks. The Overseas Post then compared the reference with the earlier reference from Hotel Cabanas provided in the applicant’s Student visa application:
·[dates not specified] Don Pedro de Merchan Hotel Cabins, Occasional administrator and cook (only in peak seasons and events)
In response to the Department’s concerns, the applicant provided another reference from Hotel Cabanas, dated 7 January 2020, again signed by Manager Heynner Humberto Suarez Suarez. This stated in part that the applicant had “…worked in our hotel from the 1 February 2018 to the 31 March 2019 performing the role of CHEF, earning a monthly salary for services rendered of $1,000,000 (One million Colombian pesos)”.
In light of the submissions and reference, the Department went back to the Overseas Post that was then able to contact the business and speak to the referee who confirmed that: the applicant had worked at the business as a chef/admin assistant; although unsure of exact dates of employment his estimate matched the reference timeframe; she undertook the tasks listed in the reference; she was paid a monthly salary. Based on this conversation, the Overseas Post was satisfied that the applicant had worked at Hotel Cabanas as claimed.
At the hearing the applicant confirmed she had worked at Hotel Cabanas as a chef and administrator/organiser of the kitchen; the employment had been constant and she was paid a monthly salary, but it had not been her primary job and she viewed the employment as being more casual. The tasks she had performed have been variously described as those of a chef, head chef, and cook/administrator. At the hearing the applicant explained that as an administrator she administered and organised the kitchen operations. The changeable descriptions of the occupation/position as cook, chef, or head chef appears to be a loose use of job titles in the references from Colombia. Significantly, when questioned by the Overseas Post, the referee had described the duties of a chef.
The Tribunal notes that despite the differing descriptions of the applicant’s work at Hotel Cabanas as discussed in the foregoing discussion, in the delegate’s decision the delegate ostensibly accepted as genuine the applicant’s claim to have worked as a chef/head chef at Hotel Cabanas. At the hearing the applicant gave credible explanations about the work and tasks she had performed at Hotel Cabanas. She explained that in Colombia and in particular in an area away from Bogota, it was usual to work at more than one business and to juggle the work and tasks in order to earn a living in the restaurant industry.
In sum, the Tribunal accepts that the references from Hotel Cabanas, dated 13 September 2019 and 7 January 2020, signed by Manager Heynner Humberto Suarez Suarez, are accurate and do not contain information that is false or misleading in a ‘material particular’ as defined in PIC 4020(5).
Second, the Tribunal considered the applicant’s claimed work at Hotel Casa San Nicolas. In the application she stated she worked as Head chef in a full-time position of Head chef from November 2015 to March 2019. The Form 80 and her CV/resume consistently showed the same employment.
A reference provided in the application from Hotel Casa San Nicolas, dated 13 September 2019, signed by Manager Cecilia Del Consuelo Sanchez Lucas, stated in part that the applicant had “…worked at our Hotel Casona San Nicolas from the 01 November 2015 to the 31 March 2019 performing the role of Chef””. The applicant’s responsibilities ostensibly were those of a chef who managed a kitchen team (as summarised):
·Leadership of the main kitchen
·Management of the team
·Organiser/director of kitchen during events
·Good knowledge of HACCP standards
·Reviewing food orders
·Management of the restaurant dishes
The Department requested the Overseas Post question the business about the applicant’s work and actual tasks. The Overseas Post then compared the reference with the earlier reference from Hotel Casa San Nicolas provided in the applicant’s Student visa application:
·19/11/2015 to 21/11/2016, Hotel Casona San Nicolas, cook. Then 15/6/2017 to 2019 (January) administrator and occasional cook (only in peak seasons and events).
In response to the Department’s concerns, the applicant confirmed that the hotel owner is an aunt but submitted that working in a family business did not make her employment less genuine.
In light of the submissions, the Department went back to the Overseas Post. However, the Overseas Post was not able to contact the business by phone. The Overseas Post raised additional concerns that:
…there is nothing on the website of CASA SAN NICOLAS to suggest they have a restaurant. In fact, their Booking.com webpage states they have a ‘snack bar’, which raises concerns as to whether they could and would have employed someone full time as a ‘head chef’ for such a long period of time.
At the hearing the applicant confirmed she had worked at Hotel Casa San Nicolas as Head chef. This position was her main job from November 2015 to March 2019. She explained that although she had worked as a cook at Andres Carne de Res for a few weeks in December 2016 and January 2017 she had nonetheless continued working at Hotel Casa San Nicolas. She took several weeks leave in late 2017 and early 2018 to travel to Spain and Brazil. Then from February 2018 she juggled work for Hotel Casa San Nicolas and Hotel Cabanas. The Tribunal accepts as plausible that the applicant was able to maintain her employment with Hotel Casa San Nicolas while doing other work for restaurants and while taking holiday leave.
The Overseas Post had concerns that the business was uncontactable by phone, although the Post acknowledged that open source checks confirmed the business was registered and the contact details provided by the applicant were correct. The applicant’s submission of 26 October 2021 addressed the Overseas Post’s concern that the business was uncontactable, in part:
We refer the delegate to the letter from the employer attached to IMMI account (4515-A), where they have explained the technical difficulties, they experience while using Telephone communication due to the rural Location of the Hotel. The Business have provided WhatsApp numbers as all their communication are done through Internet such as WhatsApp, Zoom or skype.
The reference dated 21 October 2021, signed by Manager Cecilia Del Consuelo Sanchez Lucas, also addressed the communication issue:
Currently, due to bio-security measures relating to the Covid-19 pandemic, the restaurant offers only breakfast and snacks, and occasionally restaurant service for very special guests who request it.
We are aware that communicating with us by telephone has created doubts, unfortunately we are located in a rural area of the Municipality of Villa de Leyva - Boyaca, since our hotel is in the countryside, where the cell phone signal is very weak.
However, we have an advanced Wi-Fi system which facilitates communication with us through calls using Whatsapp, Zoom or Skype. We are at your disposal to answer any questions regarding the work of Ms. Maria Camila Sanchez Moreno.
At hearing the Tribunal did not seek to contact the business to confirm employment details. However, the referee’s explanation and the submission that the hotel mainly uses other forms of communication is plausible.
The Overseas Post had concerns that the hotel only had a snack bar, and did not have a restaurant or any need to employ a chef. The applicant’s submission of 26 October 2021 addressed this concern by providing: copies of online information about the hotel’s restaurant (listed above); a menu; photos of a kitchen with kitchen staff; photos of the restaurant. The submission submitted that at the time the pandemic had curtailed the hotel’s restaurant:
The restaurant of the hotel used to provide Breakfast, lunch, dinner and cater for special events. Due to the pandemic and the restriction caused by the Bio-security measures, the Hotel is now just offering Breakfast, snacks and special meals as is shown in internet search. The focus on the breakfast in online search is because it is offered for free with the Wi-Fi to all visitor and is shown in all the websites featuring the Hotel. However, plenty of sites mention the Restaurant and that food is provided too and it is great.
In light of the material before it, the Tribunal accepts that the Hotel Casa San Nicolas had a restaurant in the period of November 2015 to March 2019 and had employed staff to operate the restaurant.
Ostensibly, the Overseas Post accepted that it was likely the applicant had worked at Hotel Casa San Nicolas, but had concerns that she had embellished her work experience there. The Post’s similar concerns about the applicant’s work at Hotel Cabanas had been allayed after they spoke to the referee at Hotel Cabanas. At hearing, the Tribunal had the opportunity to question the applicant about her work experience and references, and found her answers to be forthright and credible. The Tribunal gave great weight to the applicant’s evidence at hearing.
In light of: the second reference dated 21 October 2021, signed by Manager Cecilia Del Consuelo Sanchez Lucas that detailed the applicant’s tasks as a chef; the statements at hearing of the applicant’s current employers about her skills as a chef; and the applicant’s consistent evidence in the application and review about the periods of her past employment – the Tribunal accepts that the references from Hotel Casa San Nicolas are truthful. The Tribunal considers that the references provided in the student visa application had been poorly prepared.
In sum, the Tribunal accepts that the references from Hotel Casa San Nicolas, dated 13 September 2019 and 21 October 2021, signed by Manager Cecilia Del Consuelo Sanchez Lucas, are accurate and do not contain information that is false or misleading in a ‘material particular’ as defined in PIC 4020(5).
The Tribunal therefore finds that the applicant has not given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a ‘bogus document’, as defined in s 5(1), or ‘information that is false or misleading in a material particular’ as defined in PIC 4020(5), in relation to the visa application or a visa held in the 12 months before the visa application was made.
Therefore, the applicant meets PIC 4020(1).
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(1)?
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).
The applicant has not been refused a visa in the relevant period because of a failure to satisfy PIC 4020(1). Therefore, PIC 4020(2) does not apply.
Has the applicant satisfied the identity requirements?
PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity. Based on the material in the application the Tribunal is satisfied as to her identity. Therefore, the applicant meets PIC 4020(2A).
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?
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).
The Tribunal finds the applicant has not 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. Therefore PIC 4020(2B) does not apply.
Conclusion
On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl 482.217.
DECISION
The Tribunal remits the application for a GK – Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 482 - Temporary Skill Shortage visa:
·Public Interest Criterion 4020 for the purposes of cl 482.217 of Schedule 2 to the Regulations
C. Packer
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.
…

[2023] AATA 4608

21 December 2023

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

Statutory Construction

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