Sharma (Migration)

[2022] AATA 2967

Sharma (Migration) [2022] AATA 2967 (7 July 2022)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Deepika Sharma
Mr Amul Sharma

CASE NUMBER:  1934780

HOME AFFAIRS REFERENCE(S):          BCC2018/5731288

MEMBER:Tim Connellan

DATE OF ORAL DECISION:  7 July 2022

DATE OF DECISION:  7 July 2022

DATE CORRIGENDUM

SIGNED:9 August 2022

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

The name of the Representative stated on the front page of the written reduction of reasons, dated 26 July 2022, should be ‘Mr Vaibhav Patel (MARN: 1466279)’, not ‘Mr Farid Varess’.

Tim Connellan
Member

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Ms Deepika Sharma Mr Amul Sharma

REPRESENTATIVE:  Mr Farid Varess

CASE NUMBER:  1934780

HOME AFFAIRS REFERENCE(S):           BCC2018/5731288

MEMBER:  Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:          7 July 2022 at 3:12 pm (VIC time)

DATE OF WRITTEN RECORD:                26 July 2022

PLACE OF DECISION:  Melbourne

DECISION:  The Tribunal affirms the decisions under review.

Statement made on 26 July 2022 at 6:22pm

CATCHWORDS

MIGRATION – Skilled Regional Sponsored (Provisional) (Class SP) – Subclass 489 Skilled – Regional (Provisional) – occupation of Accountant (General) – incorrect answers with the visa application – skilled employment experience not verified – misleading information about employment – no circumstances for a waiver – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 57
Migration Regulations 1994, Schedule 2, cls 489.211, 489.224; Schedule 4, Public Interest Criterion 4020

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 5 December 2019 to refuse to grant the visa applicants Skilled Regional Sponsored (Provisional) Subclass 489 visas under the Migration Act 1958 (Cth) (the Act).

1. At the hearing on 7 July 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. Mrs Deepika Sharma, you first arrived in Australia in September 2013 and on 19 December 2018 you applied for a subclass 489 Skilled Regional Sponsored visa with your nominated occupation being that of Accountant (General) which carries the ANZSCO code 221111.

1. On 5 December 2019, a delegate of the Minister made the decision to refuse your application on the basis she found you had provided evidence in support of that application that created a breach of what is known as Public Interest Criteria 4020. As I explained to you, to be eligible for the grant of a visa, applicants must satisfy a range of criteria, one of those is Public Interest Criteria 4020 which we abbreviate to PIC and pronounce PIC.

1. It requires that there is no evidence before the Minister, or on this case the Tribunal, that an applicant has given or cause to be given, a bogus document or information that is false or misleading in a material particular in relation to an application for a visa.

1. It is a pre-requisite for the grant of a visa. There was no evidence you had sought a waiver of PIC 4020, which I will discuss a little later, and consequently the delegate found you did not satisfy clause 489.211 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 which you told the Tribunal you had read and understood.

1. To ensure you understood why your visa application was refused I asked you to tell me why you believed they refused the visa, you went into a range of details. I read from your decision record, a copy of which you had provided with your review application to ensure that we knew exactly what it was that we were reviewing.

1. As I explained to you the role of the Tribunal is to conduct what is referred to as a ‘de novo’ hearing, which means that I consider your case afresh and make a new decision about your eligibility for a visa. While it is my role to consider your case completely afresh, I must do so applying the same laws as those that were considered by the department.

1. The Tribunal is independent of the department, meaning the department does not tell us how to decide cases, but it is important as I explained to you, to understand that the Tribunal does not grant visas. We review decisions and if we find an applicant satisfies the requirements, we send the matter back with the direction that the regulation in question is met. If we find that people do not satisfy the requirements, we sent the matter back affirming the primary decision.

1. As I told you, I have before me the department file which includes the material you provided with and in support of your application and the Tribunal file which contains all the information that has come in since you lodged your review application.

1. In making this decision, I have relied on the information in the files from what you have told me today at the hearing and I have heard from your previous employer in India.

1. The question is whether you satisfy clause 489.211 of Schedule 2 of the regulations which deals with public interest criteria, one of those being PIC 4020 that I have already discussed.

1. When I asked you about why you thought they had made the decision, you responded that they had called telephone numbers that were not working now. You said that your employer they rang was 82 years of age at that time and they were advised to call another gentleman who had joined the business since you left, who you say would have had more information, or more accurate information, about when you had worked there and what you had done.

1. The gentleman’s name was Mr Pradeep, but you say they spoke to another owner of the business, Mr Sheetal Thakur who is the son of the original owner. They did not contact Mr Pradeep and you say Sheetal Thakur told them you worked there for approximately seven years and you say that was why they refused your application.

1. The Tribunal then read from the decision and the following is what was read to you. The applicant lodged an application for a skilled nominated 489 visa on 19 December 2018, the nominated occupation was Accountant (general) 221111. In the application form, the applicant claimed the following employment position of accountant, cum finance officer with R R Thakur, T-h-a-k-u-r, Indian Revenue Service in India from April 2007 to March 2013.

1. This is relevant because the applicant made this claim in order to be awarded points for skilled employment. In support of the application there was provided CPA assessment, a work reference from R R Thakur dated 5 April 2013 with an illegible signature over the stamp stating “Taxation Advisor”.

1. On the business letterhead, Mr R.R.Thakur the older gentleman, is listed as ‘Taxation Advisor’. His son Mr Sheetal Thakur who currently runs the business told the Tribunal he is not an accountant. On the letterhead it lists his qualifications as a Bachelor of Arts and a Law degree his designation is “Advocate”. From the evidence provided it seems clear the reference was signed by Mr. R.R. Thakur the business ‘Taxation Advisor”.

1. There were play slips for various dates between 2009 and 2013 and a resume. On

   26 August 2019, an officer from this department conducted verification checks by phone, using the phone numbers provided in the above documents and obtained the following information which does not support the applicant’s claims.

1. The phone numbers on the letterhead of the reference letter were incorrect and could not be contacted. An owner of the business could not recall anyone by the applicant’s name ever working for the business. Another owner of the business stated the applicant worked for the business for two, to two and a half years, which is inconsistent with the applicant’s claim in the reference letter which stated they worked there from April 2007 until March 2013.

1. On 3 September 2019 the applicant was provided 28 days to provide comment on the suspected non-genuine information supplied to the department. On 23 and 24 September, the following response was provided.:

   ·A Statutory Declaration from the applicant dated 19 September 2019,

   ·a letter on RR Thakur Indian Revenue Service Letterhead dated

   16 September 2019, signed by RR Thakur, with Government of India ID for Rikhi Ram Thakur, spelt R-i-k-h-i R-a-m T-h-a-k-u-r.

·A letter on R R Thakur Indian Revenue Service letterhead dated

16 September signed by Vishal Garg, V-i-s-h-a-l G-a-r-g, with Government ID for him.

·A letter, on letterhead, signed by Sheetal, S-h-e-e-t-a-l, Thakur, with Government ID for him.

1. The statutory declaration dated 19 September contains statements only which do not provide independent third party verifiable evidence for the applicant’s claims.

1. Nevertheless I have taken into account the applicant’s statement in conjunction with all evidence provided and addressed those below.

1. The applicant claims the business landline number has changed, however, there was no evidence provided to support the applicant’s claim of this new number.

1. The three letters provided do not contain the number the applicant claims is the new landline in the letterhead or footer. In reviewing the referral letter, I note that among the numbers, the department attempted to call were both the owners number specified in the Statutory Declaration and the purported new landline number.

1. The applicant claims that R R Thakur is a silent partner in the business and that officers also spoke to a staff member who was new and not in a position to answer questions about the business. I find this statement does not resolve the concerns. One of the owners could not recall the applicant at all, despite the applicant’s claim to have worked there for almost six years. Or the concern that another owner stated the applicant only worked for the business for two, two and a half years.

1. I do not place any great weight on the Statutory Declaration dated 19 September 2019. I have considered the work reference originally provided against the letters on R R Thakur, letterhead dated 16 September 2019 and I find these documents to be on the exact same letterhead.

1. The letters from September 2019 have the addition of a note at the footer of the document, referring to a change of address due to renovation of the office for the next 30 to 40 days, along with a further alternative landline number.

1. The letters from September 19 do not resolve the concern that one of the owners could not recall the applicant at all and another owner stated the applicant only worked for the business for two to two and a half years, when the applicant claims to have been employed for almost six years.

1. I place more weight on the spontaneous responses provided to the department officer at the time of the call, rather than the statements provided subsequent to the check. I do not place any great weight on these items.

1. Concerns were raised about the process of this department’s verification checks regarding the applicant’s employment claims.

1. I find that although the applicant was given an opportunity to comment the supporting evidence provided has not adequately addressed all of the concerns specifically, that a long- term owner of the business could not recall the applicant ever having worked for the business and another claiming the applicant worked for the business for two to two and a half years while the applicant claims to have been employed for more than six years. I find the applicant’s response and evidence provided has not outweighed or resolved the concerns raised during the department’s checks. Given the inconsistencies, I am not

satisfied as to the truthfulness of the applicant’s claim to have performed the duties of an accountant or a closely related occupation with R R Thakur, Indian Revenue Service in India as claimed.

1. The points test is one of the mandatory criteria for the grant of a Skilled Regional State or Territory nominated (provisional) ST 489 visa. I find the applicant has given the Minister, in relation to the claim of overseas employment, as an accountant with R R Thakur in India, employment documentation in the form of a work reference dated 5 April 2013 and pay slips from various dates between 2009 and 2013, being information that is false or misleading in terms of the claimed period of employment.

1. This information is in material particular to the applicant’s claim to overseas employment points as per clause 489.224.

1. Based on the information and evidence before me, I find the applicant has given, or cause to be given, a bogus document within the meaning of section 5 (1) of the Migration Act and/or information that was false or misleading in the material particular. Therefore, I am not satisfied the applicant meets public interest criteria 4020. As a result, clause 489.211 is not met.

1. Now, as I said on 3 September 2019, you were sent a Natural Justice letter pursuant to section 57 of the Act. You went through and addressed some of the issues in that letter, the first being the phone numbers in the letterhead were incorrect and couldn’t be contacted.

1. You say, upon checking with your employer, you were advised the business landline number had changed, the business new landline number is, and you gave the number ending in 3948 and Mr Sheetal Thakur, the owner’s number is a number ending in 2187, as per the letterhead. Those issues and that response was address in the decision record.

1. The owner of the business could not recall anyone by your name ever working for the business. You go on and explain that it is a business owned and registered under Mr RR Thakur, and Mr Shefel Thakur. RR Thakur is the father and is a silent partner of the business.

1. Mr Shefel Thakur has been managing the operations of the business since 2001. Now when we took evidence from Mr Sheetal Thakur, he told the Tribunal that he had completed a Bachelor of Arts and a law degree in 2004, at which stage he had joined his father’s business, not in 2001 as you have stated.

1. According to Mr Thakur, when the representative from the department contacted him he explained he was no longer involved in the day to day operation of the business. Another owner of the business stated you work two to two and a half years, which is inconsistent with your claims.

1. In relation to this, upon speaking to Mr Sheetal Thakur, I was advised that he did not receive a phone call from a representative from the department and he did, in fact, confirm you were employed by the business as an accountant and the duration of your employment was six to seven years.

1. He also confirmed that your salary was roughly $8,000-$10,000 a month, the representative further requested details in relation to your role, to which Mr Sheetal Thakur advised it is best to call the office and ask for Mr Pradeep as hewas in a better position to answer specific questions.

1. You say that Mr Sheetal Thakur said that he had provided an employment letter detailing what your role entailed two to two and a half years ago. You say you believe the representative from the department has misunderstood Mr Sheetal Thakur’s statement.

1. During the hearing we took evidence from Mr Sheetal Thakur in India, and he provided a statement pre-hearing that says, a representative from the department contacted me on 26 August, I confirmed Deepika Sharma was employed by R R Thakur and Sheefal Thakur Taxation Advisors for the period 2 April 2007 to 31 March 2013.

1. It goes on to say, I confirmed to the department that she worked for our business from April 2007 till 31 March 2013 and at point six, it says, I confirm that Deepika Sharma was issued with a letter from our company for the duration of her employment, she worked with us from 2 April 2007 to 31 March 2013.

1. So what he says is, all those dates are consistent and that is the dates that she worked there. Yet interestingly, when I spoke to him today and ask how long did she work there? his answer was, “oh six to seven years”. Well the dates he has provided in his statement do not confirm six to seven years. He also says, in the statement, I confirmed to the representative that a letter of employment was provided to Ms Deepika Sharma, detailing what her role entailed, roughly two to two and a half years ago.

1. So that was, as I understand it, some six and a half years ago that we are talking about because you finished there in March 2013. When he is asked about someone speaking to his father, he says, R R Thakur is my father and has not been involved in the business now, therefore, he may not have such details of any of our employees handy as he was not involved in the business operation during Deepika Sharma’s employment with us.

1. The claim now, is that he left there in 2004. That is despite the fact that he appears to have provided a work referenced signed by him as a ‘Taxation Advisor” on 5 April 2013. My question was, of course, why would this Mr Pradeep, who joined the business back in 2016, have details, or be in a better position, to answer what your role was, rather than Mr Sheetal Thakur and Mr Thakur’s answer was that he is an accountant and looks after all that sort of information and would’ve had access to the files.

1. Now you told me that when you worked there, there were four employees in the place and after some considerable digging, we came up with their names. And there was no hesitation on your behalf it was just it took some time to come up with Mr Pooja Thakur who was not a relative of the business owners, and a Mr Gulshan Rama, you say they were both junior accountants and you were the senior accountant. So you say there were four of us, four people in the office. You also mentioned there was an office boy called Raj Kumar, and that Sheetal Thakur was there also, his job was arranging clients as he was not an accountant. When asked what you did, your answer was that you did tax returns and worked on tax and accounting for clients and was the senior accountant in the place.

1. When I asked Mr Thakur what your role was he said that you did tax returns and worked on the software that you were provided. When I asked him whether you were a junior or senior accountant after a little hesitation, he said you were a senior accountant.

1. And then, when I asked him how many people worked in the office, he asked when was I talking about? And I said, well I am talking about the period of employment being April 2007 to March 2013 and the question I had asked is, how many people had worked in the office?

1. His answer, after giving it some thought, that without hesitation was, well there was Pooja Thakur and Gushan Rama. I find it quite extraordinary that he would recall and provide those names so rapidly in response to a question of how many people were working in the

business. I find it surprising that he did not provide a number but rather without hesitation named people that worked there when a number of other answers were vague, or difficult to recall and this was about people working in the business more than 10 years ago.

1. The other two members of staff, Vishal Garg and Mr. Pradeep we have the documentation from, joined the business in 2016 after you left. And when I ask you about staff, you said, well I have no knowledge, I have had no contact with the office since I left, which is not quite true because you have certainly provided evidence of having had discussions with

   Mr Sheetal Thakur.

1. When I ask about his father, he says, he is currently 82 plus years of age and when I ask how is his mental health? The answer hesitatingly is not so good. When I ask how often he attends the office, I think the answer was, he comes in to visit when he comes in to get medication so not all that often.

1. This question of the letterhead is one that I find somewhat troubling, and when I asked

   Mr Thakur about the letterhead and when and how it was changed his answer was that the letterhead is changed every year. So if that is the case, my question is how and why was his father’s name and phone number listed on the letterhead in 2019 and in fact, I think, he said it’s still there? It seems extraordinary that somebody who he says ‘his mind isn’t so good’, would have his private phone number listed on the letterhead of the business. I think, it is improbable that the business would still be trading as R R Thakur with his name and phone number on the letterhead, when he left the business over 20 years ago.

1. I therefore have significant concerns about a number of inconsistencies in the answers that have been provided both pre-hearing and at today’s hearing, and there are a number of inconsistencies with the information that was gained by the department officers when they rang and spoke to your father and to Mr Sheetal Thakur who currently, well at that stage, was managing the business.

1. I place more weight on the unprepared responses, particularly those of Mr Sheetal Thakur, that were provided at the time of the call by the department officer than on subsequent statements, that I believe have been given after discussion and consideration.

1. I find the inconsistencies in the answers raises credibility regarding veracity of the information and answers provided. And I therefore find that in support of the application, documentation has been provided that is false or misleading in a material particular in breach of PIC 4020.

1. The Tribunal turns its mind to whether, or not, PIC 4020 should be waived. This is a matter that I have discussed with you at some length and you claim to have understood. When I asked you whether there were any circumstances that you believe would lead to a waiver, your response was that you have been in Australia 10 years, you have done a master’s degree, you have done a professional year, you’ve done a diploma of leadership and management, you have been an employee for most of that time and you wish to continue to contribute to this country.

1. You say, you want to buy a business and you want to buy a home in Australia, but you cannot do that without a visa. You have said on two separate occasions, you could provide more evidence if it was required, and which I interpret as a request for more time.

1. The primary decision in this matter was made more than two and a half years ago in December 2019. You applied for review in December 2019, we sent you a letter acknowledging the application and said, if there is any evidence that you wish to provide, please do so as soon as possible - but nothing was provided. You were invited to this

hearing on 21 June this year, which is more than a fortnight ago, and that letter invited you to provide any evidence that you were going to rely on in support of your claim. I believe that you have had ample time and opportunity to provide evidence and I do not believe that there is anything to be gained by granting further time.

1. I am not satisfied that there are circumstances that would lead to the waiver of the requirements on the PIC 4020, so I, therefore, find you do not satisfy PIC 4020(4), Consequently, the Tribunal finds you fail to satisfy PIC 4020 for the purposes of clause

   489.211. Which is a pre-requisite, as I said, for the grant of a visa and therefore, it is the decision of this Tribunal to affirm the decision under review.

DECISION

1. The Tribunal affirms the decisions under review.

Tim Connellan Member