Sanchez Reinoso (Migration)

[2019] AATA 2231

Sanchez Reinoso (Migration) [2019] AATA 2231 (11 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jaime Santiago Sanchez Reinoso

CASE NUMBER:  1812211

DIBP REFERENCE(S):  BCC2017/4401354

MEMBER:R. Skaros

DATE:11 March 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled Independent (Permanent) visa.

Statement made on 11 March 2019 at 1:03pm

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 Skilled - Independent – false and misleading information in visa application – prior employment not previously reported – new information enhanced prospects of visa approval – inconsistent evidence – witness credibility –  decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 65, 351, 359AA
Migration Regulations 1994 (Cth), r 1.03; Schedule 2, cls 189.211, 189.224; Schedule 4 Public Interest Criterion 4020

CASES

Arora v MIBP [2016] FCAFC 35

Batra v MIAC [2013] FCA 274

Kaur v MIBP [2017] FCAFC 184

Nain v Minister for Immigration and Anor [2015] FCCA 2053

Plaintiff M64/2015 v MIBP [2015] HCA 50

Proudman v Dayman (1941) 67 CLR 536

Singh v Minister for Immigration and Anor [2016] FCCA 114

Trivedi v Minister for Immigration and Border Protection [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 18 April 2018 to refuse to grant the applicant a Skilled Independent (Permanent) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 22 November 2017. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.189.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate found that the applicant did not meet Public Interest Criterion 4020 (PIC 4020).

3. The applicant provided a copy of the delegate’s decision record to the Tribunal.

4. The applicant appeared before the Tribunal on 25 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence by telephone from a number of witnesses in Ecuador, including Mr Jaime Enrique Sanches Cardenas, Mr David Eduardo Cervantes and Mr Alex Lima. 

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

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this review is whether the visa applicant meets PIC 4020 as required by cl.189.211 for the grant of the visa. Relevant to this case, 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).

8. 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). 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?

9. 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.

10. 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.

11. 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 Minister for Immigration and Border Protection [2014] FCAFC 42.

    Evidence before the Tribunal

12. The applicant nominated the occupation of Biomedical Engineer (233913) in his Skilled – Independent (Subclass 189) visa application. The applicant indicated in the application form that he had been employed for a period of at least three years in the last 10 years in the nominated or closely related occupation. In providing details, he claimed to have been employed at Insomet in Ecuador from 12 January 2010 to 1 February 2013 in the position of Supervisor. On the basis of this employment, the applicant claimed points towards the required pass mark.

13. In support of his claimed overseas employment, the applicant provided an employment reference, dated 17 May 2017, signed by Jaime Enrique Sanchez Cardenas, General Manager, Insomet Cia Ltda.

14. On 26 February 2018, the Department wrote to the applicant and invited him to comment on information which raised concerns about whether the applicant meets the requirements in PIC 4020. The delegate set out the relevant information as follows:

    Departmental records show that on 04 August 2015, the applicant applied for a temporary post-study work stream (Subclass 485) visa. In this application, the applicant submitted a Form 80 and a Form 1221.

    On the Form 80— Personal particulars for assessment including character assessment, at Part F — Employment — question 20, the applicant declared the following employment:

    ·August 2006 to December 2011 — unemployed as Bachelor student.

    ·July 2010 to May 2013 — employed at Tecnico Salesiano High School as a Teacher/ Researcher.

    ·July 2013 to July 2015 — unemployed as Masters student.

    ·August 2015 to present — employed at Life Healthcare Distributor Pty Ltd as Associate Territory Manager.

    On the Form 1221 — Additional personal particulars information, at Part E — Employment status in the last 10 years — question 25, the applicant stated his employment as:

    ·August 2006 to December 2011 — unemployed as Bachelor student.

    ·July 2010 to May 2013 — employed at Tecnico Salesiano High School as a Teacher/ Researcher / Education (teaching math, electronics and physics).

    ·July 2013 to July 2015 — unemployed as a Masters student.

    ·August 2015 to present — employed at Life Healthcare Distribution Pty Ltd as an Associate Territory Manager/Clinical support and applications.

15. The delegate also noted that on his first arrival into Australia, on 21 June 2013, the applicant indicated on his incoming passenger card that his usual occupation is ‘Teacher’.

16. The delegate further set out the following from the applicant’s Subclass 457 visa application:

    On 05 September 2016, the applicant applied for a Temporary Work, Subclass 457, application. In this application, the applicant submitted a resume, which stated his employment history as:

    ·Electronics Teacher at Tecnico Salesiano High School from September 2010 to January 2013.

    ·Associate Territory Manager at Life Healthcare from August 2015 to present.

17. The delegate raised the concern that the letter from Insomet lacked integrity as it was not issued on official letterhead and did not state the applicant’s designation or include contact information for the company. A further concern raised by the delegate is that the only overseas employment declared by the applicant in his Subclass 485 and Subclass 457 applications, was the employment at Tecnico Salesiano High School from July 2010 to May 2013 as a Teacher/Researcher. The delegate noted that the applicant had made no mention of his claimed employment at Insomet in previous visa applications.

18. The delegate was concerned that the applicant may not have been able to demonstrate that he meets the criteria in Schedule 6D (points test) and that he may have provided information that is false or misleading in a material particular, relevant to satisfying the requirements in cl.189.224, which requires the applicant to have the qualifying score.

19. On 22 March 2018, the applicant’s then representative responded to the Department by way of lengthy submissions, together with a number of supporting documents. In the submissions, the representative provided details of the applicant's education, employment and immigration history from 2006.

20. In seeking to explain why the employment at Insomet was not declared on the Form 80 provided with the Subclass 485 visa, which the applicant applied for on 4 August 2015, it was submitted that the applicant's English has improved dramatically since his study and employment in Australia. It was also submitted that the applicant did not have the primary documents with him at the time and wrongly deemed his employment with Insomet as not reportable because it was part-time casual employment and he was only employed to complete certain projects. It was submitted that the applicant’s father was the General Manager of Insomet and it would have been a conflict of interest for the applicant to be employed on a permanent basis. It was submitted that the applicant was not aware until recently that a casual position is capable of being deemed employment and that it was this confusion that restricted the applicant from disclosing his employment with Insomet in the Subclass 485 visa application.

21. It was further submitted that the applicant was confused about the employment status required to be declared to the Department which could be seen from his responses in the forms, in which he refers to being ‘unemployed’ while studying for his Bachelor and Masters degrees. It was submitted that the applicant's state of mind was one that only acknowledged employment as permanent full-time/part-time and that he did not understand how to disclose casual positions. It was submitted that the applicant declared his employment at Tecnico Salesiano High School and at Life Healthcare as both of these roles were on a permanent full-time/part-time basis.

22. In seeking to explain why the claimed employment at Insomet was not declared on the Form 1221 provided with the Subclass 485 visa, it was again submitted that the applicant did not have access to the primary document and was recalling his employment details to the best of his ability, that he was confused about the term unemployed and that he remained silent about his Insomet employment because his father was the General Manager and he was employed on a casual basis and did not deem casual employment to be reportable.   

23. In seeking to explain the response on the incoming passenger card that his usual occupation was ‘Teacher’, it was submitted that the applicant wrongly interpreted the term ‘usual’ employment as his ‘last’ employment and that he had made an honest and reasonable mistake as his last role was as a teacher on a permanent basis. It was submitted that the error was due to language difficulties and translation, and that his usual occupation was that of an ‘electrical engineer’ given his employment with Insomet on a casual basis.

24. In seeking to explain why the claimed employment with Insomet was not declared in the Temporary Work (Subclass 457) visa application, it was again submitted that the applicant misunderstood the term ‘employment’ to mean permanent positions only and that he wrongly limited his resume to include permanent positions. It was submitted that the resume did not include the employment at Insomet due to the reasons previously given, including the applicant's father being the General Manager of Insomet, being employment on a casual basis and wrongly believing that casual employment is not reportable. 

25. The representative submitted that the applicant applied for the Subclass 189 visa without the assistance of a migration agent and that he was required to obtain a score of at least seven in each of the components of the English test. It was submitted that as the required scores were not achieved on the test he completed for the Subclass 457 visa application, the applicant re-attended the English test on 14 October 2017 and achieved the required scores. It was submitted that as a result of the applicant's dramatic improvement in his understanding of the English language, which was due to his study and employment in Australia, he had come to a recent understanding that casual employment was also deemed as reportable employment. As such, the applicant requested a letter to indicate his employment status and employment period with Insomet. It was submitted that the Insomet letter provided with the application was missing the Insomet letterhead as the applicant’s father, being the General Manager of Insomet, was travelling for business and did not have access to the letterhead at the time of providing the letter. It was submitted that the applicant has since requested a formal letter regarding his employment with Insomet. The representative also indicated that a formal letter had been obtained from Insomet noting the applicant's father's position with the company and explaining that the applicant could not hold a permanent part-time position with the company as it could be viewed as a conflict of interest.

26. In summarising the response to the Department, the representative stated that at the time of completing the previous application, the applicant had only been residing in Australia for approximately four years and did not have a strong grasp of the English language. It was submitted that the applicant did not understand what the term ‘employment’ encompassed, and accordingly provided a response based on his perceived understanding. It was submitted that since having the relevant parts of the application explained to him, the applicant concedes that his responses were based on his erroneous interpretation at the time. It was submitted that the applicant’s answers in his previous applications were due to an honest and reasonable mistake regarding the meaning of the term ‘employment’. It was submitted that the applicant's father, who was the General Manager of Insomet, had the requisite authority to provide the employment reference and that the reference was submitted with bona fide intentions in its original form and is consistent with the responses in the visa application. It was submitted that this can be corroborated by the applicant's disclosure of his permanent employment positions with Tecnico Salesiano High School and Life Healthcare, which the applicant believed was the only employment he could declare as they were permanent roles.

27. The representative went on to cite a number of cases, including Proudman v Dayman (1941) 67 CLR 536, Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42, Nain v Minister for Immigration and Anor [2015] FCCA 2053 (31 July 2015) and Singh v Minister for Immigration and Anor [2016] FCCA 114, in support of the submission that the applicant’s responses regarding his past employment were due to an honest and reasonable mistake. It was submitted that the information provided by the applicant was not purposely or otherwise intentionally untrue. It was submitted that the applicant had reasonable grounds to believe that the answers and documents were true and that this is supported by the applicant’s consistent characterisation of his employment and subsequent responses contained in the application as a result of the language barrier which existed at the time.

28. It was submitted that the applicant is in highly skilled employment and that there is a need for such qualified people to remain in Australia.

29. The following documents were also provided to the Department as part of the response:

    ·Employment reference from Salesian Technical Education Unit, dated 27 February 2018, which states that the applicant worked as a teacher from 01 September 2009 to 31 August 2013. From September 2009 to August 2010, worked 12 hours per week on Mondays and Wednesdays from 7:00 to 1:00. From September 2010 to August 2013, worked 40 hours per week: Mondays and Tuesdays from 7:00 to 13:00 and 14:00 to 17:00, Wednesdays from 7:00 to 13:00 and 14:00 to 18:00 and Thursdays and Fridays from 7:00 to 13:00.

    ·Employment reference from Insomet, dated 27 February 2018, signed by David Cervantes, Head of Human Talent. It states that the applicant was an indirect employee of the company from 12 January 2010 to 01 February 2013. The applicant undertook the supervision of projects and the maintenance of machinery. The letter described two projects the applicant had undertaken. It notes that the applicant also carried out electrical maintenance programs in the afternoons and on weekends. It noted that the applicant was not on the full-time employee payroll and was paid per project, for which he received around USD150 per project depending on the duration, and that the applicant was paid in cash from the company's petty cash funds. It states that the applicant was not hired as a full-time employee because his father is the legal representative of Insomet which created a conflict of interest.

    ·Letter, dated 25 March 2013, issued by National Secretariat of Higher Education, Science, Technology and Innovation advising selection for scholarship.

    ·Letter, dated 16 September 2014, issued by La Trobe University regarding the applicant’s acceptance in student exchange program.

    ·Letter, dated 13 November 2014 from Linkoping University regarding the applicant’s admittance as an exchange student.

    ·Employment reference letter, dated 07 March 2018, confirming applicant's employment with Life Healthcare as a Service Engineer – Neurophysiology, since 24 August 2015.

    ·Letter, dated 27 February 2018, indicating that Jaime Enrique Sanchez Cardenas (the applicant’s father) is employed at Insomet as General Manager and has been Legal Representative of the Company since 06 August 1990.

    ·Letter from Guayaquil Register of Companies stating that on 02 March 2016 Jaime Enrique Sanchez Cardenas was appointed as a Manager.

    ·Resume for the applicant in which he includes his claimed employment at Insomet.

    Review application

30. On review, the applicant provided a written statement addressing the reasons given by the delegate for refusing the visa application together with supporting documents. In the statement the applicant provided a summary of his dealings with the Department and reiterated that he did not provide a bogus document or false or misleading information. He stated that his father is the General Manager of Insomet and that it was for this reason that he was not employed full-time, as it would generate a conflict of interest, and that he did not mention his employment at Insomet in previous applications because he was not aware that casual employment is considered employment.

31. The Tribunal received documents, with translations, indicating the applicant’s father’s position as the General Manager of Insomet, an explanation for why the applicant’s father provided the initial employment reference and not the Human Resources Manager of Insomet, information indicating that the Human Resources Manager was on leave at the time the employment reference was provided by the applicant’s father and three IELTS test reports for the applicant dated between 3 June 2017 and 14 October 2017. Also provided were letters of support and character references for the applicant from friends and organisations, which the Tribunal has had regard to further below in its considerations of the waiver.

1. The applicant also provided several pages of a handwritten log book, together with translations, for 12 January 2010, two other days in January (the day or year was not indicated), Friday 10 June 2011, January 2013 and two other days that were not dated. In his written statement, the applicant explained that the log book verifies the date and time he came in and out of the factory (Insomet) and records the registration of the vehicle he used to drive at that time. He provided information regarding the registration of the vehicle bearing the same number plate. The vehicle identification document, which was not translated, indicates the ‘apllidos nombres’ (names) as Sanchez Cardenas Jaime Enrique, whom the Tribunal notes is the applicant’s father. The Tribunal also received photographs of Insomet’s premises, indicating that it is a large factory with industrial machinery. 

2. On 14 May 2018, the Tribunal received a letter from the applicant requesting the review be expedited on the grounds that his Subclass 457 visa was due to cease and the applicant having to resign from his employment. The applicant stated that he has been trying to find alternative employment but has had difficulty due his residency status.

3. Further letters of support regarding the applicant’s skills and character were subsequently received and the Tribunal has had regard to these further below in its consideration of the waiver.  

4. Prior to the scheduled hearing, on 19 September 2018 the Tribunal received detailed submissions, together with supporting documents, from the applicant’s current representative.

5. In the submissions, the representative stated that the applicant’s explanations, as submitted to the Department, regarding the reasons for the discrepancies in information regarding the applicant’s past employment are not fanciful and that if the applicant’s English language skills were at a higher level he would have realised that he met the points score, as per Schedule 6D, without having to refer to his ‘casual employment’ at Insomet. It was submitted that at the time of application, in November 2017, the applicant had more than the required score of 60 points, which were itemised as follows:

   Age: 30

   English: 10
   Education: 15
   Australian employment: 5
   Australian study: 5

   Total: 65 points

6. It was submitted that the applicant had also claimed three years of employment in Australia even though he had only been employed in the relevant position since August 2015, which would have been less than three years. It was also submitted that the applicant had claimed points for other categories for which he was not entitled and that this gives weight to the explanation that there was confusion on the applicant’s part when required to provide information regarding his previous employment at Insomet. The representative provided a copy of the information provided by the applicant in his expression of interest for the visa which indicates that the applicant had claimed 70 points.

7. The representative also referred to the case of Trivedi and an AAT matter that was remitted to the Department on the basis of the reasoning in Trivedi. It was contended that the information provided by the applicant regarding his past employment was not purposefully false and therefore not false or misleading in a material particular.

8. It was further submitted that the information provided regarding the claimed work experience at Insomet is not relevant to any of the criteria the Minister may consider when making a decision on the application as the applicant was not ‘qualified’ at the time of the claimed employment. It was submitted that given the skills assessment issued by Engineers Australia indicating that the relevant qualification was completed by the applicant in December 2011, the applicant’s claimed  employment at Insomet could not count towards his points score under Schedule 6D and that the applicant could have still obtained a score of 65. 

9. It was further submitted that the applicant’s nominated occupation is on the Medium-Long Term Strategic Skills List (MLTSSL) and NSW migration occupations list. Submissions were also made in respect of the waiver, which the Tribunal has had regard to further below. It was submitted that the applicant meets the criteria for the grant of the visa. A request was also made for the Tribunal to consider referring the matter to the Minister under s.351 of the Act if it could not find in favour of the applicant.

10. The supporting documents provided also included information issued by the Department about the invitation process and the cut off score as at 18 October 2017, which states that the highest ranked clients by points are invited to apply for the relevant visa. The Tribunal also received a chain of emails regarding the applicant’s English language proficiency and his acceptance into La Trobe University for the Masters course. The information suggests that the applicant’s earlier scores were not sufficient to gain entry but that his later results, dated 23 February 2013, were sufficient to secure entry into the Masters course and he was advised of the same by the University on 7 March 2013 as indicated by the email correspondence. 

    Evidence and discussions at the hearing

11. At the hearing the applicant gave evidence about his education and employment history. He stated that he completed a degree in Electronics Engineering in Ecuador and a Master of Biomedical Engineering at La Trobe University in Australia. He stated that he received a scholarship and travelled to Sweden to complete his Masters’ thesis. He has also completed a certificate in Project Management in Australia.

12. The applicant gave evidence that he is currently in Australia on a Subclass 457 visa on the basis of a nomination made by Life Healthcare. He stated that he has not worked for Life Healthcare since May 2018 and that despite efforts to find another employer to nominate him, he has not been able to secure another nomination because no one wants to employ a person on a Subclass 457 visa. He stated that he found a company that was prepared to provide him with employment but only if he has permanent residence as they could not offer him sponsorship.

13. The Tribunal discussed with the applicant the information regarding the discrepancies relating to his claims of past employment as set out in the decision record. The applicant and the representative indicated that a Freedom of Information (FOI) request had been made to obtain the previous files, including the Forms 80, 1221 and the previous resume, but that they had still not received it. The Tribunal acknowledged this and asked the applicant if he nevertheless agrees with the detailed information in the decision record about what he did or did not declare in previous applications regarding his claimed employment with Insomet. After some discussion, the applicant conceded that he had not declared the employment with Insomet in previous applications. The Tribunal notes that after the hearing the applicant provided copies of the Forms 80, 1221 and resume, none of which made any mention of the applicant’s claimed employment at Insomet.

14. When asked about his employment history, the applicant stated that he commenced working as a casual employee for Insomet in January 2010. At that time he had finished his bachelor degree but was working on his thesis, which he completed in 2011. He gave evidence that his position at Insomet was supervisor. He stated that he was in charge of the electronic maintenance of the systems for production of fabric. He dealt with supervisors in China, checked that the systems were working properly and sometimes dealt with contractors. He stated that he worked with one of the mechanical staff and was involved in carrying out some of the repairs. 

15. When asked about the regularity of his employment at Insomet, the applicant gave evidence that it depended on the project or the system. Sometimes he had to work on the system four days or three days and sometimes he worked on weekend. He stated that although there was no specific time, he worked about three or four times a week. When asked about the total number of hours he worked in a week, the applicant stated 40. When asked if he worked all those hours at Insomet, he stated that he worked 35 hours a week at Insomet but sometimes more than that if he had to work weekends. He stated that he only worked there on a casual basis and was not full-time.

16. When asked about his hours of work, he stated that in the morning he would be at the factory by 7:00 or 8:00 am to 1:00 pm. If the system was not available he would have to go in in the afternoon around 2:00 pm or even 5:00 pm and work until 7:00 or 8:00 pm. He stated that he would normally have lunch at 1:00 pm before returning in the afternoon.

17. When asked to clarify his evidence about returning when the systems are available, the applicant stated that if the system, the machinery in the factory, stops working he needs to first get approval to start working on the system and that sometimes he has to wait until the particular process has been completed before he can attend to it. He stated that the factory has a maintenance program and that during that time he can go in at any time to check that everything is fine. If there is an issue he tries to resolve it.

18. The Tribunal asked the applicant about the hours he spent at the factory on the days that he returned at 2:30 pm, to which he stated three and a half hours. When asked what time he finished at the factory each day, he stated 6:00 or 6:30 pm, and sometimes at 7:00 pm. He gave evidence that he got paid cash in hand USD120 or USD150, depending on whether he worked weekends. He used to always get the cash from the secretary, whose name is Catalina, as she was in charge of cash payments. The applicant stated that his father is the legal representative for Insomet. He indicated that the factory has about 60 workers. 

19. When asked if he had worked anywhere else at the same time as working for Insomet, the applicant stated that he was also working as a teacher on a part-time basis. When asked how many hours a week he had worked as a teacher, the applicant gave evidence that it was 20 hours or even less. He stated that when he worked as a teacher in the morning he would go to the factory in the afternoon and that if he did not teach in the morning he used to go straight to the factory. 

20. The Tribunal received evidence from the applicant’s father, Mr Jaime Enrique Sanchez Cardenas. In his evidence, Mr Cardenas gave evidence that he has been the Managing Director of Insomet for the last 28 years. He stated that the applicant worked indirectly for the company from 2010 for over two years helping out with certain projects.  When asked about the number of days or hours in a week that the applicant normally worked there, Mr Cardenas stated that, for example, the applicant worked for a whole month on a project, then another month on another project. He stated that sometimes the applicant worked on weekends and would work approximately 12 to 14 days a month.

21. Mr Cardenas gave evidence that the applicant worked about four to five hours on the days he was there. He stated that during the time he was working on a project he would come in every day in the afternoon and on weekends. He gave evidence that the applicant got paid a small amount of cash USD150 just as help and that this would have been given to him by Catalina Harra who was the person in charge of petty cash. When asked if there was anything further he wanted to say about his son’s employment at Insomet, Mr Cardenas stated that the applicant was just practicing what he had learnt and helped when he could. He stated that the applicant sometimes revised spare parts and checked if orders were correct. When asked if the applicant had a position title, Mr Cardenas stated no and that the applicant was just helping and it was an opportunity for the applicant to practice as he was not inside the company.

22. The Tribunal also received evidence from Mr Alex Lima. Mr Lima, who stated that he holds a maintenance position and is a supervisor with Insomet, gave evidence that the applicant worked at the company for three years between 2010 and 2013. When asked about the applicant’s position at the factory, he stated that from what he knows the applicant was just doing some projects. When asked if the applicant worked there every week between 2010 and 2013, Mr Lima stated that it may not have been every week and that if there was a project he took as long as was required to do it. He stated that they could not stop the machines so the applicant would work over 20 to 30 days to get something finished. When asked about the projects the applicant worked on, he stated that each project took about a month. He stated that he worked on two projects with the applicant and that the applicant had also worked on the whole factory. He stated that during the time the applicant was working on a project he was there every day. He stated that if it was a weekday, the applicant attended for about six to eight hours and on weekends he attended about four hours.

23. The Tribunal took evidence from Mr David Eduardo Cervantes, the HR Manager at Insomet. Mr Cervantes gave evidence that he started working at Insomet in August 2012 and that when he started there the applicant was working on projects. He stated that the applicant used to work there about four to five days a week. He stated that the applicant worked on two projects. When asked how the workers at the factory were normally paid, he stated by payroll. When asked how the applicant was paid, he stated that it was from petty cash because he was just practicing. He stated that the applicant received about USD150 per month which would have been given to him by Catalina Harra. He stated that the applicant normally attended work from 3:00 pm to 6:00 pm on the days he did not have classes and that he would have worked there about 15 to 20 hours a week including weekends.

24. After taking evidence from the witnesses, the Tribunal expressed to the applicant its concern that there was very limited independent contemporaneous evidence of his claimed employment at Insomet. It noted that the persons attesting to his employment were his father and persons who work under the management of his father. The Tribunal raised the concern that the applicant was getting paid cash yet all the other workers were on the payroll. It also noted that there were inconsistencies about whether he was working there on a consistent basis or just worked on projects. It also noted that there were inconsistencies about the days and hours of work and whether he actually worked there or was just practicing. The Tribunal acknowledged that there was some consistent evidence, for example him being paid USD150 in cash by Catalina, and raised the concern that there may have been some collusion between the witnesses about the evidence they should give the Tribunal.

25. In response, the applicant stated that when he worked at Insomet he was not involved with his father as had to work independently with different people. He stated that he was not on the payroll because he was not a full-time employee and that he could not be a full-time employee because of his father’s position. He stated that the witnesses all work in different areas so they were not told to say the same thing. He just told the witnesses that someone was going to call them and that they just had to give evidence about his work. 

26. The Tribunal noted the applicant’s earlier evidence that he worked at Insomet 35 hours a week, and sometimes on weekends, and that he had worked in his teaching role for only 20 hours a week. The Tribunal expressed its concern that the applicant, in previous visa applications, declared employment that he worked in for 20 hours a week but not employment that he undertook for 35 hours a week. In response, the applicant stated that he did not know that cash employment was considered employment. He stated that he worked as a teacher in the first year on a part-time basis and then on a full-time basis, but this does not mean that he worked eight hours a day. He stated that 40 minutes was considered as one hour. He stated that in the morning when he did not have classes he worked at the factory.

27. The Tribunal put to the applicant that Forms 80 and 1221, which were provided with his previous application, requested details of ‘all’ employment in the last 10 years and further specified that this includes ‘internships, work experience, self-employment and periods of unemployment’. The Tribunal expressed its concern that the applicant’s failure to make reference to the employment at Insomet, which he claimed to have undertaken for three years for 35 hours a week in previous applications, casts doubt over whether he genuinely worked there as claimed.  In response, the applicant stated that he now understands that unemployment means when you do not actually have a job, but at that time he was actually working. He stated that when he filled out the form he indicated his employment but he was in fact doing his Masters. He stated that he did not know that cash employment was also employment.

28. The Tribunal put to the applicant that his resume, in which he could have provided any information he wished, also made no mention of his claimed employment at Insomet. In response, the applicant stated that it was his company that applied for his Subclass 457 visa. The applicant initially indicated that he could not recall providing his resume with the visa application, but after further querying how the resume, which included a substantial amount of detail about the applicant’s qualifications and employment, came to be provided with the Subclass 457 visa, the applicant then indicated that he had provided the resume to his employer (his sponsor for the Subclass 457 visa) when he commenced working for them in 2015 as a Biomedical Engineer. He confirmed that he was aware that the company, through their agent, was applying for a Subclass 457 visa on his behalf and indicated that he had to provide some documents, such as his IELTS and medical examination.

29. When asked why he did not include three years of relevant employment, namely the claimed employment at Insomet, on his resume, the applicant stated that he did not know that cash employment or part-time employment was considered employment. He stated that in Ecuador if you are not on the payroll you are not employed. He stated that if a person works on a casual basis they are paid in cash. The Tribunal asked why he decided to include the employment at Insomet in his most recent application given he had not considered it to be employment. In response, the applicant stated that before lodging his application he was talking to his friend who told him that if he worked in his home country then he can declare it as employment.

30. The Tribunal explained to the applicant that the concerns about the information relating to the claimed employment at Insomet is, in the Tribunal’s view, relevant and material because he sought to rely on it to claim additional points towards the qualifying score. The Tribunal further noted that based on the submissions provided to the Tribunal, the additional points claimed by him, which totalled 70, put him ahead in the queue and enhanced his prospect of receiving an invitation to apply for the visa. In response, the applicant stated that at the time he already had 65 points. The Tribunal acknowledged these submissions, but noted that he had claimed 70 points and that based on the information provided to the Tribunal, persons with higher points were more likely to be invited to apply for the visa. In response, the applicant indicated that he was unaware of this as he had prepared the application himself.

31. The Tribunal put to the applicant that he knowingly included information about being employed in a closely related position at Insomet for three years so as to claim additional points. In response, the applicant stated that he made other mistakes when counting the points, for example, when he claimed points for completion of a professional year, which he understood to mean employment in Australia for a company. He stated that he also made a mistake when claiming points for employment in Australia. He stated that he did not know that claiming the additional points would place him ahead in the queue. The Tribunal put to the applicant that it may consider the information regarding the claimed employment at Insomet to be material because of its relevance to the points test requirement. In response, the applicant stated that he already met the criteria because he had 65 points.

1. Using the procedures in s.359AA of the Act, which the Tribunal explained to the applicant in detail at the hearing, the Tribunal put to the applicant particulars of information which it considered may be part of the reason for affirming the decision under review. The information was particularised as follows:

   ·    Your father, who is the Managing Director of Insomet, told the Tribunal that you worked with the company for two years indirectly on projects for approximately 12 to 14 days a month and that this was just to help you practice because you were not inside the company.

   ·    Mr Lima told the Tribunal that you worked on projects for two to three weeks at a time and that during that time you would work almost every day.

   ·    Mr Cervantes told the Tribunal that you worked on projects for 15 to 20 hours a week, for four to five days a week, between the hours of 3:00 pm and 6:00 pm when you did not have classes.

2. The Tribunal explained to the applicant that the above information appeared inconsistent with his evidence, including information provided with the application and his oral evidence at the hearing, regarding the nature of his claimed employment at Insomet. The Tribunal noted that on his application he indicated that he worked as a Supervisor and was in charge of the performance, service and maintenance of the fabric machines at the factory and that he provided technical reports. The Tribunal further noted that the evidence received from the witnesses regarding his hours of work were also inconsistent with his oral evidence to the Tribunal regarding his hours of work at the factory, which he had indicated totalled in excess of 35 hours per week.

3. The Tribunal explained to the applicant that the inconsistencies in the evidence were relevant because they cast doubt over his claim to have worked for Insomet as described in the application. It explained that the information is also relevant because it casts doubt over the applicant’s credibility and the credibility of the witnesses, and the Tribunal may not consider his evidence or the evidence of his witnesses to be reliable. The Tribunal explained that if it relies on the above information, together with other evidence before it, it may not be satisfied that there is no evidence that the applicant has provided or caused to be provided information that is false or misleading in a material particular in relation to his application. The Tribunal explained that, in the circumstances, the applicant may not meet the requirements in PIC 4020(1), and that if the Tribunal is not satisfied that there are compelling circumstances affecting the interests of Australia or compelling or compassionate circumstances affecting the interests of an Australian citizen, permanent resident or an eligible New Zealand citizen that justify the grant of the visa, then the decision under review may be affirmed.

4. When asked if he wished to seek additional time to respond to the information, the representative sought a short break after which a request was made for 14 days to respond to the information. The representative informed the Tribunal that they had still not received the Forms 80 and 1221 requested under FOI, and that they wished to receive that material before providing the comments. The Tribunal agreed to grant the requested time of 14 days.

5. The Tribunal then asked the applicant about the employment reference issued by the Salesian Technical Education Unit, where he worked as a teacher, which was provided to the Department.  The Tribunal noted that according to that employment certificate, the applicant worked at the Tecnico Salesiano High School from 1 September 2009 to 31 August 2013. The Tribunal noted that the certificate goes on to provide details of the applicant’s workload, indicating that from 1 September 2009 to 30 August 2010 he worked 12 hours a week on Monday and Wednesday, from 7:00 am to 1:00 pm and that from September 2010 to August 2013 he worked 40 hours a week on Monday and Tuesday from 7:00 am to 1:00 pm and from 2:00 pm to 5:00 pm, on Wednesdays from 7:00 am to 1:00 pm and from 2:00 pm to 6:00 pm and on Thursdays and Fridays from 7:00 am to 1:00 pm.

6. The Tribunal put to the applicant that the information provided by the Tecnico Salesiano High School about his hours of work was quite detailed and appears inconsistent with his earlier evidence to the Tribunal about his hours of work at the school and the number of hours he worked for Insomet each week. In response to this concern, the applicant stated that in 2009 he was completing his bachelor degree qualification and was working as a teacher for only a couple of hours. He stated that when he started working full-time it does not mean that he was there for 40 hours and that 40 minutes or 30 minutes was counted as one hour. He stated that it was scheduled like this because he was not the main teacher and was like a replacement teacher.

7. On 10 October 2018 the Tribunal received an email from the representative together with a statement from each of the witnesses. In his statement, Mr Cardenas stated that the dates he provided during the hearing about the applicant’s employment for Insomet were not accurate because he was not directly involved in the applicant’s work and projects. He stated that as the General Manager he supervises the performance of many workers and not just one person. He stated that at the time he did not have the register of activities because the applicant was not a full-time employee and was only doing it just as a part-time job. He stated that the applicant, during his employment with the company, worked with different colleagues from various departments performing several activities which he did not have direct knowledge of at the time.

8. In his statement, Mr Lima stated he is in charge of maintenance and repair of several machines and that when the applicant started working for the company they worked on specific projects, supervising the temperature of fabric machines and repairing the maintenance of two systems. He stated that those projects took two months to complete. He stated that the information he provided to the Tribunal was based on the projects the applicant worked on and the days he used to see the applicant at the factory. He stated that apart from these projects, the applicant worked with other colleagues doing small repairs on machines. He did not know the exact number of hours a week and that the applicant used to come in and out at different times every month and did not report to him. He stated that once the applicant finished his task he left the factory and would come back when another project or repair needed to be conducted.

9. In his statement, Mr Cervantes said that he knew the applicant since commencing work at Insomet in 2012. He stated that he was responsible for going through payslips and the information relating to full-time employees. He stated that the applicant was not considered an employee of the company because he was only working part-time. He stated that he told the Tribunal that the applicant was working three to four hours a day because this is when he saw him from time to time in the factory. He stated that because the applicant did not report to him he did not have the correct information relating to the applicant’s work, working hours or the projects conducted by him with other colleagues.

   Consideration of the evidence

10. The Tribunal has carefully considered all of the evidence before it, including the information on the Department’s file, information provided to the Tribunal, the oral evidence received at the hearing, the current and former representative’s written submissions and the responses to the s.359AA information received after the hearing. However, for the reasons that follow, the Tribunal is not satisfied that there is no evidence that the applicant has given, or caused to be given, to the Department or to the Tribunal information that is false or misleading in a material particular in relation to his application for the Subclass 189 (Skilled-Independent) visa.   

11. In this case, the information that is in issue relates to the applicant’s claim to have worked overseas in a closely related occupation for a period of three years in the 10 years preceding the application against which the applicant claimed points towards the required qualifying score. In his application form, the applicant claimed to have worked for Insomet in Ecuador as a Supervisor from 12 January 2010 to 1 February 2013. He also initially provided a letter from Insomet’s General Manager, who is also his father, stating that the applicant was employed by the Company for the stated period and providing details of the duties performed in the position. Subsequently, further letters, documents and statements were provided to the Department and the Tribunal maintaining that the applicant had worked for Insomet as claimed in the application.

12. In relation to the submissions made to the Tribunal about the applicant not providing a ‘bogus document’ as part of his application, the Tribunal considers that the documents provided as part of the application in support of the applicant’s claim to have worked for Insomet, do not appear to fall within any of the definitions of ‘bogus document’ as provided for in s.5(1) of the Act. The documents issued by Insomet appear to have been issued in respect of the applicant, by a person with authority, namely his father, whom the Tribunal accepts is the General Manager, and the HR Manager, and they do not appear to have been obtained because of a false or misleading statement. The Tribunal formed the view, for reasons that are discussed in more detail below, that the employment documents were issued by Insomet to the applicant to assist him in his skilled visa application.

13. The Tribunal nevertheless considers that the information contained in those documents, together with other information provided as part of the application, regarding the applicant’s claimed employment at Insomet, is information that is false or misleading in a material particular.

14. In assessing the evidence, the Tribunal considers it significant that the applicant, despite having previously made a number of applications for visas, did not declare his claimed employment in a skilled occupation at Insomet, which he claims to have undertaken for a period of at least three years. The applicant applied for a Temporary Graduate Skilled, Subclass 485, visa on 4 August 2015, and despite being requested to provide details of ‘all’ employment in the preceding 10 years in Forms 80 and 1221, he did not do so. The applicant also applied for a Temporary Work, Subclass 457, visa on 5 September 2016 and provided, as part of that application, a resume which also made no mention of the claimed employment at Insomet.

15. The Tribunal has considered the various explanations provided for why the claimed employment at Insomet was not declared in previous applications. The explanations included that the applicant’s English language skills had dramatically improved since the lodgement of the previous applications given his study and employment in Australia, that the applicant did not have the primary documents with him and completed the forms to the best of his recollection, that the applicant was confused about the term ‘employment’ and ‘unemployment’ and wrongly believed that only permanent full-time or permanent part-time was considered employment. The Tribunal has also considered the explanations that the applicant was not aware until recently that a casual position is also employment, that the applicant could not take up a permanent position at Insomet because his father was the General Manager and that permanent employment would be perceived as a conflict of interest. The Tribunal has also had regard to the explanation that the applicant’s resume was limited to include only permanent positions as he only held a casual role at Insomet due to the conflict of interest and did not deem the employment to be reportable. It has also considered the further explanations given at the hearing that he did not consider cash employment to be reportable and that he was confused about the term employment and unemployment as can be seen from his responses when he indicated that he was ‘unemployed’ at the time he was working and studying.

16. In considering the applicant’s responses, the Tribunal notes that the Form 80 requests applicants to provide details of all employment and unemployment. Employment was further explained in the form as ‘all paid employment, self-employment / family business, work experience / internship, unpaid employment/internship’ and also provides further details of what is meant by unemployment. Form 1221 asks applicants to provide details of their employment status in the last 10 years, including internships, work experiences, self-employment and periods of unemployment. In the relevant table of responses, applicants are further asked to provide information about their occupation/position/duties and, if they were unemployed, how they spent their time. In his responses on the Forms 80 and 1221, the applicant accounted for every year from ‘August 2006 until current’. The forms were signed on 9 October 2015, which included a declaration that all the information the applicant provided in the forms are complete, correct and up to date in every detail.

17. In the context of the above, the Tribunal does not accept that the applicant’s English language proficiency, at the time he completed and signed the form, was so deficient that he misunderstood the question and the information he was being requested to provide regarding his employment, and periods of unemployment, in the preceding 10 years. The Tribunal notes that by 9 October 2015, the date the Forms 80 and 1221 were signed, the applicant had successfully completed a Master in Electronic Engineering from La Trobe University in Australia and had been working at Life Healthcare as an Associate Territory Manager for about two months. Furthermore, the applicant’s responses, in the Tribunal’s view, demonstrated that he understood that he had to provide complete, correct and up to date details regarding the history of his employment and unemployment. In his responses, the applicant accounted for every year since August 2006 and where his studies and employment overlapped, for example between July 2010 and December 2011 when he was completing his bachelor degree and working as a teacher/researcher, his responses indicated that he was employed and in part unemployed  because he was a student. The level of detail the applicant provided in the forms regarding his employment/unemployment for the preceding 10 years, in the Tribunal’s view, strongly suggests that the applicant understood that he was required to provide complete and correct information regarding all of his employment. The Tribunal considers that if the applicant was genuinely employed by Insomet from 2010 to 2013, as claimed in this visa application, then he would have provided details of that employment on the Forms 80 and 1221, even if that employment was not on a permanent basis, was only casual and he was paid in cash. The Tribunal does not accept that the applicant’s failure to declare the claimed employment at Insomet in previously submitted forms was due to confusion or a misunderstanding of the term employment. The Tribunal is also not satisfied that the applicant not having the primary documents in his possession explains why he failed to make any mention of the employment at Insomet, a position he claims to have held for over three years in Ecuador.

18. The Tribunal further notes that the applicant’s resume, in which he could have included any information he wished about his background, including his education, skills, employment experience and achievements, did not make any mention of the claimed employment at Insomet. When queried at the hearing about the resume provided with his Subclass 457 visa, the applicant sought to distance himself by suggesting that it was the employer’s agent who was responsible for providing that resume to the Department. When queried further, the applicant indicated that the resume may have been the one he provided to his employer when he commenced working. Notwithstanding how the resume came to be provided as part of the applicant’s Subclass 457 visa, the Tribunal considers it significant that the resume, which detailed the applicant’s education, course work, career summary, including a Masters project he had completed, awards and additional skills, made no mention of the employment at Insomet, which the applicant indicated on this application as being closely related employment to his nominated occupation of Biomedical Engineer, being the same occupation in which the applicant was nominated by Life Healthcare under the Subclass 457 visa programme.

19. The Tribunal has considered the explanations provided as to why the applicant did not mention the Insomet employment in his resume, including that the applicant wrongly limited his resume to include permanent position only and that he wrongly deemed the Insomet employment to be not reportable as it was on a casual basis. The Tribunal has also considered the applicant’s response at the hearing that he did not know that cash employment or part-time employment is considered employment and that in Ecuador if a person is not on the payroll they are not employed. The Tribunal is not persuaded by any of these explanations. The Tribunal considers that even if the applicant was employed on a casual basis and paid in cash, notwithstanding the meaning of employment in Ecuador, he would have still included the employment with Insomet in his resume for the purposes of his employment in Australia in a related occupation. The Tribunal does not accept that the applicant had wrongly limited his resume due to his understanding or that he did not consider the employment to be reportable. The applicant had no restrictions on the type of information he could include in his resume and the Tribunal considers that if the applicant had genuinely worked at Insomet in an occupation that was closely related to the occupation of Biomedical Engineer for a period of three years, being the same occupation that he was employed as the holder of a Subclass 457 visa, then he would have made some mention of the claimed employment in the resume.

20. Of further concern to the Tribunal is that there is limited independent evidence of the applicant’s claimed employment at Insomet. Despite other employees at Insomet being on the payroll, the applicant claims to have been paid in cash. While the Tribunal acknowledges that the witnesses gave consistent evidence that the applicant worked at Insomet and was paid in cash by the Catalina Harra, who is in charge of petty cash, the Tribunal formed the view that this evidence was likely contrived by the witnesses because their other evidence about the nature of the applicant’s employment and hours of work at Insomet was, in the Tribunal’s view, inconsistent with other evidence before the Tribunal regarding the applicant’s employment. The Tribunal has discussed the concerns with the evidence given by the witnesses in more detail further below.

21. The Tribunal considers that the inconsistencies in the evidence regarding the employment at Insomet cast further doubt over the applicant’s claims to have worked there. For example, the employment reference from the Tecnico Salesiano High School, where the applicant was employed as a teacher, states that the applicant worked 40 hours a week from September 2010 to August 2013, which includes a period of over two years during which the applicant claims to have also worked at Insomet. At the hearing however, the applicant gave evidence that he worked at Insomet for three or four days a week and sometimes on weekends. He also stated that he worked 35 hours a week and in excess of this if he worked on weekends. He gave evidence that he used to go to the factory at 7:00 or 8:00 am and work through to 1:00pm and would return in the afternoon for several more hours of work. When asked if he had any other employment during that time, the applicant then stated that he worked as a teacher, but claimed that the employment was only on a part-time basis for 20 hours a week or even less.

1. When the inconsistencies in the evidence regarding the days and hours of work between the employment at the Tecnico Salesiano High School and Insomet were discussed with the applicant at the hearing, he stated that in 2009 he was still studying and only worked a couple of hours. He then stated that when he started working full-time he was not there for the 40 hours and that 40 minutes or 30 minutes counted as one hour. He stated that it was scheduled like this because he was not the main teacher and was just a replacement teacher. The Tribunal has considered the applicant’s explanations but did not find them convincing. While the Tribunal acknowledges that lessons given by a teacher may not be for the full hour, given there may be breaks between lessons, the letter from the Tecnico Salesiano High School nevertheless specifies in some detail the applicant’s hours of work for each day of the week, which on most days included morning and afternoon sessions and totalled 40 hours a week. The information in the reference from the Tecnico Salesiano High School regarding the applicant’s hours of work as a teacher is, in the Tribunal’s view, inconsistent with the applicant’s own evidence about his hours of work as a teacher and significantly undermines his evidence about his claimed employment at Insomet.   

2. The Tribunal has also had regard to the oral evidence given by the witnesses, including the applicant’s father and the two Insomet employees, however, it considers their evidence to also be inconsistent with other evidence before the Tribunal. The inconsistencies regarding the durations of the applicant’s employment, the number of days worked, the applicant’s hours of work and the nature of his employment, as particularised at the hearing using the procedure in s.359AA, cast doubt over the applicant’s claim to have worked for three years at Insomet in a closely related occupation. The inconsistencies also raise concerns about the credibility of the applicant and the witnesses. In the post hearing response, the applicant’s father stated that he provided inaccurate information to the Tribunal because he did not have direct knowledge of the applicant’s work and that the applicant worked with different people in the company. Mr Lima, in his statement, states that he worked with the applicant on two projects which took two months to complete and that his evidence at the hearing was based on those projects. He stated that he used to see the applicant in the factory undertaking small repairs and that he does not know the applicant’s hours of work as the applicant did not report to him. Mr Cervantes stated that he told the Tribunal that the applicant worked three to four hours a day because that was when he saw the applicant at the factory. He stated that the applicant did not report to him and so he did not provide the correct information to the Tribunal about the applicant’s hours of work or projects he worked on with others.

3. In their written responses, the witnesses essentially state that they had provided incorrect information to the Tribunal at the hearing because they were either not aware of the exact nature of the applicant’s work, or did not have actual knowledge of his hours of work and that the applicant did not report to them. The Tribunal notes that none of the witnesses had indicated, when giving their oral evidence, that they were either unsure or uncertain of their responses to the Tribunal’s questions. Given their subsequent admissions that they did not provide accurate oral evidence at the hearing, the Tribunal considers that the evidence of the witnesses is unreliable and gives it no weight in support of the applicant’s claims.

4. The Tribunal has formed the view that the applicant has contrived evidence in support of his claimed employment in a closely related occupation at Insomet, together with the assistance of his father, who used his senior position at Insomet to provide reference letters on the company’s letterhead, and with the assistance of two of the company’s employees.

5. The Tribunal has had regard to the extracts from the handwritten log books detailing the vehicles that entered and left the Insomet factory on the given days and the registration documents for the vehicle the applicant claimed to have been using at the time he used to work at Insomet. The Tribunal gives limited weight to these documents, firstly, because they do not overcome the concerns raised above about the applicant not previously declaring that employment and the inconsistencies in the evidence regarding that employment, and secondly, because the dates on those documents are limited to a few days in January 2010, a day in June 2011 and a day in January 2013, there were a number of undated records. Furthermore, given the concerns the Tribunal has with the credibility and reliability of the evidence received from the applicant’s father and the employees at Insomet, the Tribunal has little confidence in the reliability of these records.

6. Having carefully considered the evidence before it, the Tribunal is not satisfied that the applicant was employed in a closely related occupation to his nominated occupation for a period of three years as he has claimed in his visa application. It follows, and the Tribunal finds, that the information provided in the Subclass 189 visa application form and associated documents regarding the employment at Insomet is false and misleading in a material particular.

7. The Tribunal considers that the information provided to the Department and to the Tribunal regarding the applicant’s employment at Insomet was false and misleading at the time it was given because the Tribunal does not accept that the applicant genuinely worked at Insomet as claimed.

8. The Tribunal further considers that the applicant intentionally and purposely included the claimed employment at Insomet in his visa application as he sought to rely on that employment to claim points for overseas employment towards the qualifying score. Whether the applicant did or did not require the additional points for overseas work experience to meet the points test at the time of the application and whether the employment could or could not count as it predated the skills assessment qualification date is, in the Tribunal’s view, irrelevant because PIC 4020(5)(b) applies whether or not the decision is made on the basis of that information. The Tribunal is satisfied on the evidence before it that the applicant intentionally provided the false information about having been employed in a closely related occupation at Insomet to enhance his visa application. The false or misleading information was relied upon by the applicant to claim points as provided for in Schedule 6D and is therefore relevant to the requirement in cl.189.224.

9. Given the above considerations, the Tribunal finds that the information given about the applicant’s claimed employment at Insomet in relation to his application is false or misleading in a material particular because it was false or misleading at the time it was provided and is relevant to one of the criteria the Minister may consider when making a decision on the Subclass 189 visa application, whether or not a decision is made because of that information.

10. Given the above findings, the Tribunal is not satisfied that there is no evidence that the applicant has given, or caused to be given, to the Minister information that is false or misleading in a material particular in relation to the application for the visa. It follows that the applicant does not satisfy PIC 4020(1).

    Should the requirements of PIC 4020(1) or (2) be waived?

11. The requirements of PIC 4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where 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. The decision-maker must first be satisfied that there are such circumstances, then must consider whether to exercise the discretion to waive the requirements, having regard to those circumstances: Kaur v MIBP [2017] FCAFC 184.

12. The expressions ‘compelling circumstances’ and ‘compassionate or compelling circumstances’ are not defined for these purposes. To be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied: see Plaintiff M64/2015 v MIBP [2015] HCA 50. The ordinary meaning of ‘compassionate’ relates to feelings of sympathy, sorrow, pity or concern for others.

13. The Tribunal has had regard to the relevant documents and submissions provided to the Department in response to the natural justice letter, which included the following:

    ·    Employment reference from Life Healthcare dated 7 March 2018, indicating that the applicant was employed by the company as a Service Engineer - providing specialised technical service support for neurophysiology equipment in Australia and New Zealand.

    ·    Employment contract with Liva Nova dated 23 March 2018, together with submissions stating that the applicant is considering taking up the role of Biomedical Engineering Support with that company.

    ·    Letters of support from the following people: Shree Lineham and Danielle Kaminski, Natalie Flecker from the Mt Isa Rotary Rodeo, Dale Rees-Bevan from the Mosman Toastmasters Club and Peter Henry Kofler. The writers of these references attest to the applicant’s good character, his involvement with various community activities and his volunteer activities for various organisations, including Redkite, his participation in numerous community activities, his dedication to his work as a Biomedical Engineer and his general contribution to the Australian community.

    ·    Letter from Redkite, a cancer charity, detailing the applicant’s volunteer activities with the organisation, which included his involvement with various fundraising activities and his contribution to the charity.

    ·    Letter from Liva Nova dated 6 August 2018 indicating that the applicant would be offered employment with the company if he is granted permanent residency. The letter states that the applicant possesses a unique skill set given his biomedical engineering and IT expertise which would be essential for supporting the company’s heart-lung machine equipment and data management. It states the applicant is qualified to provide service and support for these S5 Heart-Lung machines.

14. In his written statements, the applicant stated that when he worked for Life Healthcare he filled an important role because he was dealing with people who had experienced seizures. He was in charge of the system and provided training and assistance. He stated that there were not many qualified skilled workers who could do the type of work he did. He stated that he has been trying to use his skills to help people, especially people with cancer. He stated that he has been volunteering for a long time and has raised a considerable amount of money to help families with children who had cancer. He stated that he has contributed to the society in different ways with his skills and volunteer work.

15. At the hearing, the applicant further stated that he has been in Australia for five years. He stated that he has been through the different application processes and made an honest mistake because his English language skills were not good.

16. It was also submitted that the applicant’s occupation is on the MLTSSL and the NSW Priority Skilled Occupations List.

100.   The Tribunal accepts that Biomedical Engineer is one of the specified occupations in the current MLTSSL and the NSW Priority list. The Tribunal has also had regard to the letter from Liva Nova indicating that the applicant has a unique set of skills in IT/biomedical engineering. However, the applicant indicated at the hearing that he has been unemployed since May 2018, has not been able to find another employer to sponsor him under the 457 visa programme and that he would could only secure employment if he gets permanent residency. While the Tribunal accepts that the applicant is a competent and skilled professional who would be able to secure employment in Australia if he is granted permanent residency, the Tribunal is not satisfied on the evidence before it that the applicant’s level of skill or strong employment prospects if he secures residency establish compelling circumstances that affect the interests of Australia or compelling or compassionate circumstances affecting the interest of an Australian citizen, resident or eligible New Zealander.

101.   The Tribunal has also had regard to the glowing references attesting to the applicant’s good character, including his participation in community activities, contribution to the community and charity activities, particularly with Redkite for whom he has raised substantial funds. While the applicant’s contribution to the community and volunteer activities are highly commendable and likely to have benefited or assisted many members of the Australian community, particularly the raising of funds for charity, they do not, in the Tribunal’s view, constitute compelling circumstances affecting Australia’s interests, or compassionate or compelling circumstances affecting the interests of an Australian citizen, permanent resident or eligible New Zealand citizen.

102.   The Tribunal accepts that the applicant has resided in Australia for five years, during which he studied and worked. However, the Tribunal considers that these circumstances affect the interests of the applicant and not the interests of Australia or an Australian citizen, permanent resident or eligible New Zealander.

103.   In relation to the applicant’s claim that he made an honest mistake in his applications due to his lack of English proficiency,  the Tribunal has not accepted, for the reasons discussed in some detail above, that the applicant made an honest mistake in his previous applications.

104.   The Tribunal is not satisfied that there are compelling circumstances that affect the interests of Australia or that there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justify the granting of the visa. Therefore the requirements of PIC 4020(1) should not be waived.

105. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.189.211.

106.   The Tribunal has considered the request to refer the matter to the Minister pursuant to s.351, but has decided not to do so. The Tribunal notes however that the applicant can still make a request directly to the Minister.

DECISION

107.   The Tribunal affirms the decision not to grant the applicant a Skilled Independent (Permanent) visa.

R. Skaros
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. 

…