Sharma (Migration)

Sharma (Migration) [2023] AATA 805 (4 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Rachna Sharma
Mr Ashutosh Sharma
REPRESENTATIVE:  Mrs Geetanjali Sethi (MARN: 1574416)
CASE NUMBER:  1931019
HOME AFFAIRS REFERENCE(S):          BCC2019/475785
MEMBER:Warren Stooke AM
DATE:4 January 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Skilled Regional Sponsored (Provisional) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 489 - Skilled - Regional (Provisional) visas:
·Public Interest Criterion 4020 for the purposes of cl PIC4020 of Schedule 2 to the Regulations

Statement made on 4 January 2023 at 8:16am

CATCHWORDS
MIGRATION – Skilled Regional Sponsored (Provisional) (Class SP) visa – Subclass 489 (Skilled – Regional (Provisional)) – bogus document – discrepancies in payslips – waiver of requirement – compassionate or compelling circumstances – disparity of power between employer and employee – skills in high demand – Australian citizen child – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 4, PIC 4020
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
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 24 October 2019 to refuse to grant the applicants Skilled Regional Sponsored (Provisional) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 14 February 2019. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl PIC4020 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied that the information contained in the applicant’s application concerning the payment of wages given serious concerns remain with regard to the information contained in the payslips when compared to the bank statements and superannuation documentation. The delegate also found that the applicant has given to the Minister and to the assessing authority in relation to their claim of Australian employment as a Restaurant Manager with Spice Garden Restaurant in Australia information that is false and misleading.
The applicants appeared before the Tribunal on 11 November 2022 to give evidence and present arguments. The Tribunal also was presented with evidence by Mr Mandeep Singh, a former owner of Spice Garden Restaurant.
The applicant confirmed to the Tribunal that she had received a copy of the delegate’s decision and had read the decision. In this regard, the applicant stated that she understood the reason for the refusal of her visa application was because they think (‘the Department’) she did not work at Spice Garden.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
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 PIC4020 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.
The applicant is a 42 year old from India, who was granted a Bridging Visa C on 15 February 2019 with no conditions but does not permit travel.
The applicant provided evidence that she graduated from the Unijammu University with a Bachelor of Education on 18 March 2005 and a Master of Education in April 2009.
The applicant provided evidence of completion of the following courses of study:
a.Master of Information Systems at the Central University Queensland on 12 November 2012;
b.Diploma of Management on 4 April 2014;
c.Certificate III in Home Community Care on 22 June 2015;
d.Certificate III in Aged Care on 22 June 2015;
e.Diploma of Project Management on 7 December 2015;
f.Advanced Diploma of Leadership and Management on 25 June 2016.
The applicant provided evidence of the completion of a PTE English language test on 5 March 2018 with a score of 86.
The applicant provided evidence from VETASSESS dated 27 July 2018 of an invitation to complete a document to enable an assessment as a Restaurant Manager – ANZSCO Code: 141111.
The applicant provided evidence of a contract of employment with Spice Garden Restaurant dated 1 July 2016 that provided a salary of $55,000 and 9.5 per cent superannuation.
The applicant provided evidence of NAB bank deposits for employment with Spice Garden, which was summarised in the delegate’s decision and verified by the Tribunal, as follows:
“The information contained in the payslips does not match with the bank statements provided:
● The payslip dated 23 June 2017 to 29 June 2017 with payment date 27 June 2017
shows a net pay of $ 619.18 while the bank statement with entry date 27 June 2017
shows a credit of $350
● The payslip dated 03 July 2017 to 09 July 2017 with payment date 10 July 2017 shows
a net pay of $547.20 while the bank statement with entry date 11 July 2017 shows a
credit of $350
● The payslip dated 10 July 2017 to 16 July 2017 with payment date 17 July 2017 shows
a net pay of $503 while the bank statement with entry date 18 July 2017 shows a credit
of $350
● The payslip dated 17 July 2017 to 23 July2017 with payment date 24 July 2017 shows a
net pay of $590.40 while the bank statement with entry date 21 July 2017 shows a credit
of $855.70
● The payslip dated 24 July 2018 to 30 July 2018 with payment date 31 July 2018 shows
a net pay of $503 while the bank statement with entry date 01 August 2017 shows a
credit of $200
● The payslip dated 31 July 2017 to 06 August2017 with payment date 07 August 2017
shows a net pay of $517.70 while the bank statement with entry date 08 August 2017
shows a credit of $350
● The payslip dated 07 August 2017 to 13 August 2017 with payment date 14 August
2017 shows a net pay of $632.60 while the bank statement with entry date 15 August
2017 shows a credit of $350
● The payslip dated 14 August 2017 to 20 August 2017 with payment date 21 August
2017 shows a net pay of $568.80 while the bank statement with entry date 22 August
2017 shows a credit of $350
● Given the disparity in the amounts provided in the gross / net income as stated in the
payslips when compared against the credit in the bank statements from July 2017 to
August 2017, it was suspected that the gross income declared in the payment summary
for 2017 to 2018, $ 48,660 and Notice of Assessment for the year ended 30 June 2018,
have accounted with the incorrect income and therefore may be misleading. The Form
80 dated 12 February 2019 provided to the Department does not indicate that the
applicant has any other source of income aside from Spice Garden between July 2016
and 12 February 2019.
Given the above occurrences, there were further doubts about the applicant’s claimed
remuneration with Spice Garden Restaurant from July 2016 to June 2017 due to further
inconsistencies identified below:
● Pay period 10 July 2016 to 14 July 2016 with payment date 15 July 2016, total earnings
and net pay $619, YTD gross income $619, paid in cash
● Pay period 15 July 2016 to 21 July 2016 with payment date 22 July 2016, total earnings
and net pay $619.18, YTD gross income 1,238.18, paid in cash
● Pay period 05 August 2016 to 11 August 2016 with payment date 12 August 2016, total
earnings and net pay $619.18, YTD gross income $3,095.72, paid in cash
● Pay period 12 August 2016 to 18 August 2016 with payment date 19 August 2016, total
earnings and net pay $ 619.18, YTD gross $3,7714.90, paid in cash
● Pay period 19 August 2016 to 25 August 2016 with payment date 26 August 2016, total
earnings and net pay $619.18, YTD gross income $4,334.08, paid in cash
● Pay period 06 January 2017 to 12 January 2017 with payment date 12 February2017,
total earnings and net pay $619.18, YTD gross income $16,717.68, paid in cash.
● All pay stated above was paid in cash, however, there were credits made in the bank
statement dated 06 January 2017 of $350, for example on 12 and 17 January 2017
under the applicant and spouse’s names. In the Form 80 provided to the Department,
the applicant’s spouse has not declared that he worked with Spice Garden Restaurant
as well.
● The employment contract dated 01 July 2016 states that the applicant was employed on
a full time basis. However, the work reference dated 14 January 2019 states that prior to
29 October 2017, the applicant was employed on a part time basis.
● The work reference dated 14 January 2019 states the applicant worked a minimum of
38 hours a week from 30 October 2017. In the contract of employment dated 01 July
2016, it stipulates the annual gross salary at $55,000. Given this information, the hourly
rate is calculated as equivalent to $30.15 per hour. This hourly rate is not coherent with
the payslips from 2016 to 2019, at $27.83.
● The payslips provided show that weekly total earnings or gross income were all equal to
the net pay but shows tax withheld.”
The applicant stated at hearing that in 2016 she was employed with Spice Garden on a part-time basis until October 2017, when she was employed full-time and that during this period she was paid both cash and into her NAB account.
The applicant stated that she was employed full-time from October 2017 until 18 August 2019, when she left employment with the business.
The applicant stated that superannuation payments had been rectified.
The applicant provided the Tribunal with ATO returns for the taxation years from 2017 to 2020, inclusive. The recorded income for the financial year ending 30 June 2017 was $31,292; 30 June 2018 was $44,808; 30 June 2019 was $51,001 and 30 June 2020 was $42,316.
Representative Submission
Following the hearing on 14 November 2022, the Representative for the applicant made the following submission:
“1. The applicant received an invitation to apply for the Skilled Regional – subclass 489 visa on 07 February 2019 and lodged a valid application on 24 October 2019 for Subclass 489 visa and relevant supporting documents were provided.
2. The delegate refused to grant the visa on 24 October 2019 on the basis that the applicant did not satisfy cl.489.211 of Schedule 2 to the Regulations because they were not satisfied that the applicant meets the Public Interest Criterion (PIC) 4020, subclause 4020(1).
3. Hearing for the above matter was held with the Member on 11.Nov.2022, we now provide the additional information below for the Tribunal’s reference.
4. The applicant’s visa was refused on the basis of discrepancies in Superannuation payments. One of the employers Mr Mandeep Singh attended the hearing. Mr Mandeep Singh was dependant on the other employer who outsourced the pay calculations to an outside agency. The employer would not have had any accounting background and would not have been able to pick up the errors or understand what the agent had done. The applicant had submitted the documents provided by the employer and the applicant had no reason to believe were not genuine which were submitted to the Department.
5. The applicant had no knowledge or reason to question the documents provided and no one purposely provided false or misleading evidence. Therefore, the applicant does not breach PIC 4020.
6. The applicant name above and her husband have a child together Mr.Krishank Sharma, born on 02.March.2012, he is now 10 years and 8 months old.
7. Krishank Sharma is now a citizen of Australia and is currently enrolled in Grade 5 at Saint Mary’s Catholic College in South Burnett.
8. Krishank is the only child to his parents and is a dedicated and hard-working student.
9. In addition to academics, he also participates in sports activities like Basketball, swimming and cricket.
10. School reports and teacher feedback confirm that Krishank is a hardworking and diligent student who has always been respectful and polite.
11. In the above matter before the Tribunal, we would like to bring your attention to the current circumstances of the Australian citizen, Mr. Krishank Sharma.”
PIC 4020(4)(b)
Compelling and compassionate circumstances for waiver
12. In the above matter before the Tribunal, the applicant and her husband have a Bridging C visa while their son is now an Australian citizen
13. If the applicant and her husband do not have a valid visa and cannot continue living in Australia their child Krishank Sharma who is currently completing Year 5 studies will be disadvantaged.
14. In addition, a move to a new country will add immense pressure on the child
15. He is a hardworking student in his current school and has his own peer group, an upheaval could have a significant impact on the child and will also disadvantage him
16. Krishank is actively involved in his school sport activities and has been playing cricket and also enjoys swimming.
17. Any upheaval of his normal life and move out of Australia can have an impact on the child
18. As per the conventions of the rights of the child, it is requested that the Australian child does not lose his right of access to both parents. It will greatly affect the welfare of the Australian child.
19. We therefore request you to kindly consider the circumstances of Mr.Krishank Sharma who is the only child of the applicant in making the decision on her application.”
Evidence of Mr Mandeep Singh (former Director of Spice Garden Restaurant)
The witness stated that he was a former director of Spice Garden and that the applicant had been employed full-time.
The witness stated that it was a new business and that he relied upon his accountant concerning superannuation.
The witness stated that the applicant was paid $55,000 per annum and a superannuation payment of 9.5 per cent.
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.
Whilst 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 Tribunal acknowledges that the original owner of Spice Garden is no longer in business and as such, it is not possible to test the allegations concerning the Department’s decision to find that PIC4020 had been breached. This was based upon accepting that the applicant had provided misleading information in support of their claimed employment full-time as a Restaurant Manager at the Spice Garden Restaurant, however, there is uncorroborated evidence before the Tribunal that the applicant was paid in both direct credits to her bank account and in cash, which the applicant claims. As such, the Tribunal is satisfied that with the uncorroborated evidence the applicant has given, or caused to be given, to the Minister a bogus document. In making this finding, the Tribunal however, accepts that the applicant may not have been aware of the conjecture that payments in cash by the original owner of the Spice Garden Restaurant, that would subsequently arise, and the potential to be construed as a bogus document or information that is false or misleading in a ‘material particular’ in relation to the application for the visa. In such circumstances the applicant does not need to be aware the information was purposely untrue in order for PIC 4020 to be engaged.
The evidence of Mr Singh, who was also a former director in the business, at the time, has not satisfied the Tribunal other than to confirm that he had relied on a third party to carry out financial matters relating to the business and thereby was not able to confirm the circumstances relating to the payment of entitlements.
Therefore, the applicant does not meet 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 Tribunal is satisfied that there is no adverse evidence concerning the three year period immediately prior to the current declared application reting to the applicant or any family member.
Therefore, PIC 4020(2) is met.
Should the requirements of PIC 4020(1) or (2) be waived?
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 reg 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.

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.
The Tribunal asked the applicant if she had any compelling circumstances that affect the interests of Australia, which should be considered by the Tribunal? The applicant responded that she did have compelling circumstances that affect the interests of Australia.
The Tribunal asked the applicant: Do you have any compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, that you may inform the Tribunal of in the consideration of your case, justifying the grant of a visa? The applicant responded that her son is an Australian citizen and evidence was provided to the Tribunal of an Australian Citizenship certificate for Krishank Sharma dated 2 March 2022.
The applicant stated that she was the guardian of her son, Krishank Sharma, who was born 2 March 2012 in South Brisbane, Queensland.
The applicant was asked what involvement does she have with Australian citizens and she responded that she does have involvement, as the primary carer and guardian for her Australian citizen child.
Waiver
For the following reasons, the Tribunal is satisfied that the requirements should be waived.
The Tribunal acknowledges that the disparity of power can exist between an employer and an applicant in the employment relationship and that the payment of cash is frequently a method for the payment of entitlements that may not be properly recorded.
Further, the Tribunal acknowledges that the applicant has university post graduate qualifications and has skills that are in high demand in Australia and her contribution to Australian business will be materially of benefit to the Australian community.
The Tribunal accepts that the applicant has established herself and has a young child of ten years, who is an Australian Citizen and integrated into the Australian community with his family. As such, it would be detrimental to the child of the applicant and the Australian community to deny access to the child in a family united setting in Australia.
The Department provides guidance to its officers through the Procedures Advice Manual (PAM). These guidelines are not binding on the Tribunal but regard may be had to them when they're not in conflict with the legislation. Under PAM3 there may be compelling circumstances affecting the interests of Australia if:
“Australia's trade or business opportunities would be adversely affected were the person not granted the visa (Note: under policy, gaining employer sponsorship is not considered sufficient grounds for a waiver)
Australia's relationship with a foreign government would be damaged if the person is not granted the visa or
Australia would miss out on a significant benefit that the person could contribute to Australia's business, economic, cultural or other development (for example, a special skill that is highly sought after in Australia) if the person was not granted the visa.”
Overall, the Tribunal is satisfied that there are compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. As such, the Tribunal finds that the requirements should be waived, having regard to those circumstances, as presented in evidence by the applicants. As such, the Tribunal notes the comments of Buchanan J. in Trivedi v MIBP [2014] FCAFC 42:
"I would not infer any apparent intention to disqualify; a visa applicant who could explain an innocent mistake in a document or information provided by them. PIC 4020 is not directed, in my view, to innocent, unintended or accidental matters.”
Therefore the requirements of PIC 4020 (1) should be waived.
Has the applicant satisfied the identity requirements?
PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.
The delegate’s decision did not raise any issues related to identity and the Tribunal is satisfied with the information provided by the applicant through her identity documentation, including the applicant’s passport and the assessed National Police checks.
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).
There is no evidence before the Tribunal to suggest that any past visa application made by the applicant or a member of the family unit of the applicant was rejected on the basis of PIC 4020(2A).
Therefore PIC 4020(2B) is met.
On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl 489.211.
On the basis that the primary applicant has satisfied the criteria of PIC4020 for the purposes of cl 489.211, it follows that the secondary applicant is a member of a family unit that has satisfied this criteria.
The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa, which should include assessment of whether the other applicants meet the secondary criteria.
DECISION
The Tribunal remits the applications for Skilled Regional Sponsored (Provisional) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 489 - Skilled - Regional (Provisional) visas:
·Public Interest Criterion 4020 for the purposes of cl PIC4020 of Schedule 2 to the Regulations
Warren Stooke AM
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 805

4 January 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Natural Justice