Sharma (Migration)

[2020] AATA 4259

Sharma (Migration) [2020] AATA 4259 (2 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Parveen Sharma

CASE NUMBER:  1810504

HOME AFFAIRS REFERENCE(S):          BCC2016/1390637

MEMBER:Andrew McLean Williams

DATE:2 October 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Regional Employer Nomination (Permanent) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 - Regional Sponsored Migration Scheme visa:

·Public Interest Criterion 4020 for the purposes of cl.187 of Schedule 2 to the Regulations.

Statement made on 2 October 2020 at 8:58am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – bogus document – first employment certificate not impugned by department as bogus – second employment certificate impugned as bogus – authenticity of issuer verified by tribunal – false and misleading information – time period of work experience incorrect – applicant’s claim of confusion unaccepted – impugned information holds no relevance to any of the criteria – PIC 4020(5)(b) not enlivened – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 187.213, PIC 4020(5)

CASES
Palikhe v MIBP ([2014] FCCA 1875
Singh v Minister for Immigration and Anor [2012] FMCA

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 Home Affairs refusing to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa, pursuant to s.65 of the Migration Act 1958 (‘the Act’).

2. The applicant had applied for the visa on 7 April 2016. At that time, Class RN contained only one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who also happen to be applicants for the visa need only satisfy the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the 'Common criteria', as well as the criteria of one of either of two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the applicant is seeking the visa in the ‘Direct Entry’ stream.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.213 of Schedule 2 to the Regulations, because the delegate determined that the applicant could not meet the requirements of Public Interest Criteria (‘PIC’) 4020, which is one of the requirements to satisfy cl.187.213(1), and thus the requirements of cl.187 as a whole.

6. PIC 4020(1) provides that there must be no evidence before the Minister that the applicant has given, or caused to be given to the Minister, an officer, the Tribunal, a relevant assessing authority, or a Medical Officer of the Commonwealth a ‘bogus document’ or ‘information that is false or misleading in a material particular’ in relation to either the application for the visa; or a visa that the applicant held in the period of 12 months before the application was made. 

7. In the decision made by the delegate on 29 March 2018, it was noted that the applicant had specified in his visa application dated 7 April 2016 that he had worked at the Lowood Tavern Bistro from 15 February 2014 until 7 April 2016.  It was further noted that the application was accompanied by two employment certificates.  The first of these - from the Lowood Tavern Bistro and signed by a Mr Kulbir Singh Kohlon (as the owner) on 10 October 2015 - certified that the applicant had worked as a volunteer at that establishment from October 2014 until October 2015.  The second employment certificate from Dominos at Ipswich was signed by an ex-manager, on 1 May 2017.  This certified that the applicant had worked as a ‘shift runner’ for Dominos Ipswich from late 2011 until 2012.

8. As part of the visa assessment process integrity checks are undertaken by officers of the department.  Departmental officers were unable to confirm the veracity of the information contained in the employment certificate issued by Dominos Ipswich, by reason that they were unable to make contact with the author of that certificate.  Meanwhile, checks made by departmental officers with the proprietor of the Lowood Tavern Bistro on 23 November 2017 revealed that Kulbir Singh Kahlon was not the owner of the Lowood Tavern Bistro on 10 October, and that the actual proprietor did not know - and had never heard of - any person named Kulbir Singh Kahlon. 

9. After having afforded the applicant an opportunity to respond to these matters, and having received and considered the applicant’s natural justice responses (delivered to the department on 15 December 2017), the delegate formed the view that the employment certificate from the Lowood Tavern Bistro was a fraudulent document, created by someone falsely claiming to be the employer of the applicant. Accordingly, the delegate characterised that document as ‘bogus’ within the meaning of that expression as used in s.5(1) of the Act.

10. In her reasons dated 2 March 2018 the delegate further noted that the applicant had specified that he had worked in the capacity of cook/customer service at the Lowood Tavern Bistro from 15 February 2014 until 7 April 2016, yet that a statutory declaration subsequently provided to the department by the applicant as part of the natural justice process declared that the employment certificate received by the department from Kulbir Singh dated 10 October 2015 contained the correct information.  As indicated previously, that document specifies that the applicant had worked in a voluntary capacity at the Lowood Tavern Bistro as an ‘assistant manager’ during a different period, being that between October 2014 until 10 October 2015.  

11. The applicant appeared before the Tribunal on 25 June 2020 by means of a ‘MS Teams’ to give evidence and present arguments. The Tribunal also received oral evidence from Mr Kulbir Singh Kahlon and a Ms Vanessa Creer.  Statutory declaration evidence was also made available to the Tribunal from Kulbir Singh Kahlon, Ms Vicki Ellen Duncan, Ms Vanessa Creer, Mr Anju Thakur, Mr Clint Corrie, and from the applicant, Mr Parveen Sharma.

12. The applicant was represented in relation to this review by his registered migration agent Mr Narendra Kumar Sharma, of Sharma Lawyers. The representative also attended the Tribunal hearing by means of MS Teams, and submitted detailed written submissions to the Tribunal, both before, and in the aftermath of the hearing.

13. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case is whether the applicant can meet the requirements of PIC 4020, and thus satisfy the mandatory requirements in cl.187.213 in Schedule 2 of the Migration Regulations.

15. In a statutory declaration dated 27 February 2020, Mr Clint Corrie - a former manager of Dominos Ipswich - states that he did provide the applicant with a ‘proof of employment’ letter dated 1 May 2017.  That evidence is accepted by the Tribunal.  On the basis that the decision of the delegate dated 29 March 2018 did not actually ever impugn the veracity of the Dominos Ipswich letter for purposes of PIC 4020 – instead referring  only to the fact of departmental officers had not been able to confirm its accuracy prior to the time of the making of the delegate’s decision - the Tribunal did not pursue this issue any further.

16. The statutory declaration evidence and oral testimony before the Tribunal from each of Ms Vanessa Creer and Mr Kulbir Singh Kahlon reveals that they were once joint business partners, who from September 2014 until 27 September 2015 had taken up a month-to-month lease to operate the kitchen and dining room at the Lowood Tavern.  After attempting to make a going concern of that business for about twelve months Ms Creer and Mr Kahlon concluded that the business was not viable, such that they decided to give notice to their landlord, Ms Vicki Duncan (the owner of the Lowood Tavern), and close the business. 

17. The evidence from Ms Creer and Mr Kahlon also reveals that Mr Kulbir Singh Kahlon was only ever known and referred to at the Lowood Tavern by his nickname “Luckee”; and that the applicant had been employed by them - on an unpaid, volunteer ‘work experience’ basis - for about 20 hours per week, from October 2014 up until the closure of their business, which took place on 27 September 2015. 

18. In his oral evidence, Mr Kulbir Singh Kahlon explained that he had provided the applicant with the impugned employment certificate.  Although he had signed the certificate on Lowood Tavern Bistro letterhead as the ‘owner/operator’ on 10 October 2015, therein indicating that the applicant had been employed since October 2014 as a “volunteer assistant manager”, Mr Kulbir Singh Kahlon’s intention had been to say that the applicant had been employed until the cessation of that business, on 27 September 2015, rather than until 10 October 2015 as is inferred by the date of the certificate.  In point of fact, the business operated by Mr Kulbir Singh Kahlon and Ms Creer as the Lowood Tavern Bistro had already ceased operating by that date. Mr Kulbir Singh Kahlon told the Tribunal it had been an oversight by him to not mention in the employment certificate that the business had closed, on 27 September 2015.  The Tribunal accepts that explanation.

19. Statutory declaration evidence was also received by the Tribunal from Ms Vicki Ellen Duncan.  This evidence reveals that she was the owner of the Lowood Tavern and Bistro as at 10 October 2015.  Ms Duncan’s statutory declaration evidence reveals that the Kitchen and Bistro had been sublet by her to Vanessa Creer and Kulbir Singh Kahlon until the end of September 2015, yet that she had only ever known Mr Kulbir Singh Kahlon by the nickname ‘Luckee’, and did not realise that Luckee and Kulbir Singh Kahlon were one and the same person until quite recently, when told this by others.  Hence the reason why Ms Duncan had advised departmental officers on 23 November 2017 that she “did not know and had never heard of” any person by the name Kulbir Singh Kahlon.  That evidence is also accepted by the Tribunal.

20. Bogus documents for the purpose of PIC 4020(1) are defined in s.5(1) of the Act. Whether or not a document meets the definition becomes a question of fact, for the Tribunal to determine: Palikhe v MIBP ([2014] FCCA 1875 at [30] – [32] and [37] – [40]).

21. In light of the additional evidence now received before the Tribunal, the Tribunal accepts that the applicant was employed at the Lowood Tavern Bistro in a voluntary/work experience capacity by each of Ms Creer and Mr Kulbir Singh Kahlon, in the period between October 2014 until 27 September 2015.  Similarly, the Tribunal accepts that the applicant was previously employed for a period by Dominos Pizza at Ipswich as a shift runner, although again it is to be noted that the employment letter from Dominos Ipswich had not been categorised by the department as amounting to a ‘bogus’ document.

22. As well as questions going to whether there are bogus documents before the Minister, PIC 4020(1) requires that there be no evidence of information that is “false or misleading in a material particular”. 

23. As is recorded in paragraph [10] of these reasons, the applicant had declared in his visa application dated 7 April 2016 that he had worked at  the Lowood Tavern Bistro in the capacity of cook/customer service from 15 February 2014 until 7 April 2016, whereas in actuality he only worked at that establishment for a much shorter period: between October 2014 and 27 September 2015, and in the capacity described by Mr Kulbir Singh Kahlon as a volunteer assistant manager.  Questions therefore must arise as to whether the matters declared by the applicant on the visa application amount to instances of information that is false or misleading “in a material particular” in relation to either the application for the visa; or a visa held by the applicant in the 12 months prior to the making of the visa application.

24. PIC 4020(5) provides:

    (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.

25. The Tribunal concludes that the employment information given by the applicant in the visa application form completed on 7 April 2016 was undoubtedly false, as at the date when it was given.  Subsequent information produced by the applicant reveals that he did not work at the Lowood Tavern Bistro for the period declared by him in the visa application form.  The Tribunal also concludes that this information was misleading, by reason that it gives rise to a false impression that the applicant worked at the Lowood Tavern Bistro accumulating relevant work experience for a considerably longer period than was actually the case.  The applicant informed the Tribunal that this false and misleading information was provided by him unwittingly, rather than deliberately, as he could not remember the precise dates of his employment at the Lowood Tavern Bistro when completing the form.  This explanation is not accepted by the Tribunal.  Here, it is to be noted that the applicant declared employment at that establishment all the way up to the date of his completing the visa application form, on 7 April 2016.  Yet, as at that date the applicant must have known that he had not worked at that establishment for many months, as he had personally assisted in closing down that business for the final time on 27 September 2015.  Accordingly, the Tribunal finds that the information was false and also misleading at the time when given: PIC 4020(5)(a).

26. The use of the conjunctive “and” as between subclauses (a) and (b) in PIC 4020(5) directs the requirement that each limb must be satisfied before information may be categorised as having fallen foul of PIC 4020.

27. In Singh v Minister for Immigration and Anor [2012] FMCA at [67], Driver FM said of PIC 4020(5)(b) as follows:

    “Clause 4020(5) specifies that information that is false or misleading in a material particular means information that is false or misleading at the time it is given and 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.” (emphasis included here).

28. The Tribunal has had regard for the criteria – beyond PIC 4020 - that need to be satisfied before the applicant may be considered eligible for a Subclass 187 visa.  Although undoubtedly false and misleading the impugned information holds no relevance to any of the criteria that the Minister may consider when making a decision on the application.  On this basis the Tribunal concludes that PIC 4020(5)(b) is not enlivened, such that it cannot be said that the applicant falls foul of PIC4020(1). 

29. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

30. The Tribunal remits the application for a Regional Employer Nomination (Permanent) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 - Regional Sponsored Migration Scheme visa:

    ·Public Interest Criterion 4020 for the purposes of cl.187 of Schedule 2 to the Regulations.

    Andrew McLean Williams

    Member