Sansoa (Migration)

[2022] AATA 4295

Sansoa (Migration) [2022] AATA 4295 (18 August 2022)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Mr Hardeep Singh Sansoa Mrs Nisha Sansoa

Master Sartaj Singh Sansoa

REPRESENTATIVE:  Mr Nam Hoang (MARN: 0641294)

CASE NUMBER:  1934795

HOME AFFAIRS REFERENCE(S):           BCC2018/3361369

MEMBER:  Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:          18 August 2022 at 1:52 pm (VIC time)

DATE OF WRITTEN RECORD:                13 September 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the decisions under review with the direction that the first named applicant satisfies Public Interest Criterion 4020 for the purposes of cl 190.216(1) of Schedule 2 to the Regulations.

CATCHWORDS

MIGRATION – Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 (Skilled – Nominated) – bogus document – false or misleading information – evidence of employment – address of the employer – loan arrangement between employer and employee – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 190.216; Schedule 4, PIC 4020

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 19 November 2019 to refuse to grant the visa applicants Skilled Nominated (Permanent) Subclass 190 visas under the Migration Act 1958 (Cth) (the Act).

1. At the hearing on 18 August 2022 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

1. Mr Hardeep Singh Sansoa, you applied for a subclass 190 Skilled Nominated visa on

   5 September 2018. On 19 November 2019 a delegate of the Minister made a decision to refuse your application on the basis that you had provided evidence in support of your application that created a breach of Public Interest Criterion 4020 (PIC 4020). There was no evidence you had sought a waiver of PIC 4020 and consequently the delegate found you did not meet clause 190.216 and refused your application.

1. You appealed that decision to be reviewed by this Tribunal and with your application you included a copy of the primary decision. You told the Tribunal you had read and understood that decision and we read from it today at some length and it became apparent that you did understand why the refusal decision had been made.

1. As I explained to you, the role of the Tribunal is to conduct what is referred to as de novo hearing, which means I consider your case afresh and make a new decision about your eligibility for a visa. While it is my role to conduct your case completely afresh I must do so applying the same laws as those that were applied by the Department when they considered the matter. The Tribunal is independent of the Department meaning the Department does not tell us how to decide cases.

1. I have before me the Department file, which includes the material you provided with and in support of your visa application, and the Tribunal file, which includes all the information that has come in since you lodged this visa review application, including a substantial submission that came in last week from your migration agent, Mr Lange. In making this decision I have relied on the information in the files and what you have told me today and also what your witness your previous employer Mr Zair has told me.

1. The question is whether or not you satisfy clause 190.216(1) in Schedule 2 of the Migration Regulations, which provides that it is a requirement the applicant satisfies Public Interest 4020, which requires there is no evidence before the Minister or in this case the Tribunal, that the applicant has given or caused to be given a bogus document or information that is false or misleading in a material particular in relation to the application for the visa.

1. In support of your application you provided a range of documents, including evidence of employment with FZ Business Services and FZ Enterprises. The Department asked for further information and you provided Commonwealth Bank listings, employment reference letters showing annual income, payment arrangements, and fortnightly income.

1. The Department conducted various checks on the evidence you had provided and one of those was they did a Google search on the premises and found that it was occupied by a business called Hills and Robes. They contacted the business called Hills and Robes who confirmed that FZ Enterprises had broken their lease by not paying their rent for a month and had not operated a business from 12 Pentlands Road since December 2018.

1. It is not clear who they spoke to at Hills and Robes, what authority that person had or what knowledge that person had. However, what Mr Zair has told us here today was as is his normal practice he went overseas from November to February and so was gone from November 2018 to February 2019 during which time he had been in email contact with the landlords and explained that he would fix up the rent on his return. And that he had maintained occupation of the premises during that period despite the fact that an accounting practice during those months is having a very quiet time and some of the staff worked from home.

1. Now, the Department contacted you and it contacted Mr Zair on his mobile phone while overseas and he provided answers that were perhaps somewhat vague in terms of the number of staff, when people had been employed etcetera. However, that is not all that unusual for someone who is overseas for a few months. But the delegate went on to make some assumptions about the fact that apparently the employer had given you a loan of

   $6,500 shortly after you started there and there was an arrangement whereby that money would be repaid. The delegate commented he thought that was an unusual arrangement for somebody that had only been employed there short term.

1. Well, that may well be the delegate’s view but it is not for the delegate or the Tribunal to decide or consider what is reasonable business practice in terms of loans between employers, employees, friends or otherwise and so I consider that the whole element of the loan as being irrelevant to this consideration.

1. The question of where you work and the address being 12 Pentlands Road was asked and was answered by you in documents provided with your visa application on 5 September 2018. I believe it is from those documents that the delegate refers to when he or she says they are not happy with the documents and believe that they may have created a breach of PIC 4020.

1. As is pointed out by Mr Lange in his submissions, what is relevant here is when you lodged these documents. Were these documents false or misleading at the time they were provided? I accept the argument that at the time they were provided there appears no question that the business from which you were operating was operating out of that address. And so, I reject the argument that the letters and documents provided with your application could in any way have been bogus documents or information that was false or misleading in a material particular with relation to the address of the premises that you had worked at.

1. There are questions about the commencement date of your employment. Those questions in my opinion have been fully answered. You worked on a part-time basis with FZ Business Services from 19 June 2017 to 22 October 2017 at which time you became a fulltime employee with FZ Enterprises from 23 October 2017.

1. There were some inconsistencies in the payment of superannuation, which is not unusual, it is quite common in small businesses, and so I give that no weight and I accept that those payments were made up over time.

1. When I consider your case as a whole I am satisfied that you have not provided bogus documents or evidence that was false or misleading in a material particular in relation to your employment, in relation to references, and in relation to your claim of Australian employment as an accountant with FZ Enterprises.

1. I accept that the bank statements reconcile and are not false or misleading in terms of your remuneration received. I, therefore, find you did not breach PIC 4020 for the purposes of 190.216(1). I am, therefore, satisfied that you meet that criteria and it is, therefore, the

decision of this Tribunal to remit the matter to the Department with the direction that you satisfy PIC 4020 for the purposes of clause 190.216(1).

DECISION

1. The Tribunal remits the decisions under review with the direction that the first named applicant satisfies Public Interest Criterion 4020 for the purposes of cl 190.216(1) of Schedule 2 to the Regulations.

Tim Connellan Member