Shiva Global Pty Ltd (Migration)

[2022] AATA 4533

Shiva Global Pty Ltd (Migration) [2022] AATA 4533 (28 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Shiva Global Pty Ltd

VISA APPLICANTS:  

Mr Pardeep Kumar

Miss Durin Garg

Master Panshul Garg

REPRESENTATIVE:  Mr Nitin Malik (MARN: 0956987)

CASE NUMBER:  1922488

HOME AFFAIRS REFERENCE(S):          BCC2018/2927055

MEMBER:Wan Shum

DATE:28 October 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicants Temporary Skill Shortage (Class GK) visa.

Statement made on 28 October 2022 at 11:59am

CATCHWORDS 
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – Signwriter – necessary skills, qualification and experience – genuineness of claimed work experience – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 482.212

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 on 2 August 2019 to refuse to grant the visa applicants Temporary Skill Shortage (Class GK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 4 August 2018. At that time, Class GK contained Subclass 482 (Temporary Skill Shortage) for which the criteria are set out in Part 482 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Applicants seeking to satisfy the primary criteria for the visa must meet the ‘Common criteria’ and the criteria of one of three alternative streams: the Short-term stream, the Medium-term stream, or the Labour Agreement stream. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. In this case, Mr Pardeep Kumar, the primary visa applicant (the visa applicant) is seeking the visa in the Short-term stream to work in the nominated occupation of Signwriter.

3. The delegate in this case refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of cl 482.212 of Schedule 2 to the Regulations because the delegate was not satisfied on the evidence that the visa applicant had the necessary skills, experience or qualifications for the nominated occupation.

4. The review applicant sought review of that decision and was represented in relation to the review.

5. Ms Rakhi Garg appeared before the Tribunal on 6 September 2022 on behalf of the review applicant in her capacity as a Director of the company to give evidence and present arguments. The Tribunal also received oral evidence from Mr Pardeep Singh, as the applicant.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the primary visa applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of Signwriter (ANZSCO code: 399611) as required by cl 482.212(3). In addition, under cl 482.212(4), if required by the Minister, the applicant must demonstrate that he or she has the skills that are necessary to perform the occupation in the manner specified by the Minister.

8. The primary visa applicant (the visa applicant) in this case claims to have nearly 11 years of relevant work experience in the nominated occupation of Signwriter and has been nominated for that position by the review applicant. He is the brother-in-law of Mrs Garg, the Director of the review applicant.

9. When the visa application was lodged, the information provided to the Department was that the visa applicant had worked full-time in the Sales and Service Team at H.S Computers until December 2011 in the IT Hardware Domain and had been working full-time at Amrit Enterprises since December 2011.

10. Following attempts to verify his claimed employment at Amrit Enterprises, the delegate was not satisfied that the applicant had the skills, qualifications and employment background necessary to perform the tasks of a Signwriter and was not satisfied that cl 482.212(3) was met.

11. Having considered all the evidence before it including the additional information provided on review, the Tribunal has also reached the same conclusion. Of particular concern to the Tribunal is what occurred during the attempts made to verify employment by the overseas visa officer. The recorded outcomes of the attempts do not in the Tribunal’s view reflect that the claimed employment was genuine and, while having regard to the explanations and submissions, was not persuaded that the applicant had the skills, qualifications and employment background necessary.

12. The visa officer who conducted the phone calls recorded that on 10 January 2019 at 12:12 he/she telephoned [phone] and the person who answered the call identified himself as Maninder Singh. It is recorded that when asked about his company he stated that he was a student and currently pursuing a diploma in Computers from Bathinda. The officer introduced themself and asked him about his claimed company Amrit Enterprises. It is recorded that Mr Maninder Singh stated that he could not hear the officer and disconnected the call, and that several attempts were made to contact him from the official landline number, however he kept disconnecting the calls.

13. In respect of Mr Maninder Singh not identifying themselves appropriately, the submissions agree that this was the case; however, submits that this was because the Departmental Officer did not identify themselves during the first phone call that was made from a landline phone from New Delhi. It was said that this lead Mr Maninder Singh to believe that it was a spam call from a financial organisation to sell them a Credit Card or from an Insurance Company to sell them an insurance policy, and they disconnected after stating that they were a student and stating an incorrect age. The multiple attempts that were made to contact them from the same number went unanswered as Mr Maninder Singh claims to have recognised the same number which they related to a supposed spam call. It was submitted that this could have been easily avoided had the officer identified themselves at the beginning of the first call. In terms of the call to the same phone number but from the mobile phone being returned, the explanation given was that being a businessman, Mr Maninder Singh returned the call as he did not suspect that it was a spam call.

14. The officer recorded that they then attempted to call from the official mobile number at 12:18 and that the phone went unanswered but then immediately received a call back from the mobile number. The officer introduced themself and stated the purpose of the call, recording that “at first he was very hesitant in talking to me but then when I told him about the reference letter and how important it was to have this discussion he agreed to speak to me.” Mr Maninder Singh is recorded as having stated that he was the managing partner of Amrit Enterprises which is taken care of by his elder brother but he also is fully involved in the running of the business. In response, it was submitted that Mr Maninder Singh remembers making a statement claiming for the business to be ‘run’ by their brother, Manpreet and refers to evidence provided to the Department of ownership of Amrit Enterprises in the form of GST Registration Certificate for the business, which it is “assume[d] is official evidence of ownership of the business and [further assumed] that it should have removed any ambiguity with regards to the ownership of the business. However, the statement with regards to the ‘running’ of the business was made prior to the Officer identifying themselves, once again this was an attempt by the employer to end what they suspected to be a spam call”. However, the records before the Tribunal do not reflect that the statement was made prior to the officer identifying themselves, as it was recorded as a response during the second successful call. The Tribunal does not accept that this discrepancy arose due to the officer not identifying themselves.

15. One of the responses given to the questions asked about the company and the alleged employment of Mr Pardeep Kumar was that Mr Kumar is the foreman.

16. During this second conversation, Mr Maninder Singh is recorded as having stated that the company was established in the year 2004-05; he had joined the company 4 years back since he himself was only 23 years old and the company was primarily run by his elder brother Mr Manpreet and since he is a partner, he is also involved in day to day running of the business. The response to the Tribunal’s letter agrees that the claimed employer of the applicant would have been almost 33 years of age at the time of the call from the Department. It was submitted that the ID Card provided to the Department was provided as supporting evidence of their correct age. Again, it is reiterated that the employer stated an incorrect age as they suspected the call to be a spam call. The Tribunal does not accept that Mr Maninder Singh was withholding information or providing incorrect information for that reason, as the response of having been 23 years of age when he joined the company four years prior, was recorded as given during the second phone call when the visa officer had identified themselves.

17. The officer has recorded that before they ended the call, they asked for Mr Kumar’s phone number as the number recorded on the ICSE database was not working. It was recorded that the officer called the number [phone] immediately after finishing the call with the referee, but that “the phone went constantly busy and could not be connected. The call went through after a long time, the applicant picked up the phone and identified himself, and I in turn introduced myself asked him about the company Amrit Enterprises.” In addressing this, the submission refers to the applicant having stated that this might have been the case, as when they hung up a call from a customer and answered the call from the officer, they were asked why they weren’t answering the phone and if they had been talking to Maninder Singh. To this the applicant responded that they were talking to a customer and that it had been two days since they had spoken to Maninder Singh, employer of the business. The applicant was also asked where they were and informed the officer that they were at a site installing signs.

18. It is recorded that the visa applicant gave the same information as Mr Maninderpal Singh (referred to as the referee) and “sounded tutored as if he had been tutored about the questions I would ask him.” The following discrepancies were recorded from the conversation with Mr Pardeep Kumar:

    ·The owner of the business is Mr Amritpal, elder brother of Mr Maninderpal;

    ·Manpreet is not the owner of the business but an employee just like himself;

    ·Maninderpal is around 30 years of age and his elder brother should be around 32 years of age.

19. It is recorded by the visa officer that the officer then requested for the telephone number of Mr Amritpal, the owner of the business and called the number [phone] from the official mobile phone to speak to Mr Amritpal, a true caller search indicated that the number belonged to Navjot Amrit.

20. It is recorded by the visa officer that the gentleman who picked up the phone identified himself to be Mr Navjot and confirmed that he was a road contractor and had no other business. When asked about Amrit Enterprises he said that it was run by his elder brother Maninderpal Singh. Mr Navjot Singh is recorded as stating that he himself was taking care of the installation of hoarding and glow signs and procurement of orders, besides his own road building business; that he visits the business premises on regular basis and is also involved in running of the business. However, he failed to recognise the visa applicant. When told about the reference letter and doubts about it being non-genuine to which he said that it should be non-genuine as no one by the name was employed with their company.  It is recorded that Mr Navjot confirmed that Maninderpal Singh is the owner of the business and the business address of Amrit Enterprises.

21. In response to this, it was submitted that the visa applicant stated this to be correct as they were told by the visa officer that Maninder Singh mentioned that their brother also works for the business and, knowing that Maninder’s brother Navjot owns another business and visits the office of Amrit Enterprises as well, shared Navjot’s number with the visa officer. It was claimed that this was done with an intention to assist the visa officer. In respect of Navjot Singh not recognising the visa applicant as an employee, it is claimed that Navjot Singh’s response should be taken as confirmation that the visa applicant was not working for Amrit Contractors. The Tribunal is not persuaded that Mr Navjot Singh was referring to his own business of Amrit Contractors given that the record of the conversation was focused on Amrit Enterprises. Even if there was any doubt, the Tribunal would have expected Mr Navjot Singh to recognise the name of the visa applicant, as the visa applicant is claimed to have been employed in his brother’s business and Mr Navjot Singh’s telephone number was provided to the visa officer by the visa applicant when asked for the number of the owner of the business.

22. In respect of the confusion regarding the use of the names Amrit and Amritpal Singh during the phone calls, during the hearing Mr Pardeep Kumar said that Amritpal is Maninder’s nickname. He had initially said to the visa officer that Mr Amritpal is the owner and is the elder brother of Mr Maninderpal, then later the same day on a separate phone call, that he is the father, then at the hearing on 6 September 2022 he said that Amritpal is Maninder’s nickname and that they are the same person. In response, it was submitted that there is no one by the name of Amritpal Singh and the visa applicant claims never to have given the name Amritpal Singh to the officer. It was agreed that upon being asked about the brother, the visa applicant provided the name and number of Navjot Singh (owner of Amrit Contractors). However, the Tribunal’s concern remains, noting that when asked about Mr Amritpal Singh by the Tribunal, the visa applicant did not correct the alleged mistake, but instead stated that it is the nickname of Maninder Singh. It is now claimed that Amrit is Maninder Singh’s nickname, and that sometimes he is referred to as Amrit by customers being the owner of the business Amrit Enterprises. This is yet a further explanation for the use of the names Amrit and Amritpal Singh, and does not accord with any of the earlier explanations.

23. Furthermore, during the hearing when asked about his work experience, the visa applicant stated that he worked in IT from 2003 to 2011 and then from 2011 he worked at Amrit Enterprises. Then, when asked about his experience with signwriting prior to starting at Amrit Enterprises, he claimed that he started training there in 2010 to 2011 for around 9 to 10 months. This appeared to be the first time that this claimed training was mentioned, as the information provided to the Department, which includes a copy of his resume and a 2-page response to the request for further information, was that he had worked full-time in the Sales and Service Team at H.S Computers until December 2011 in the IT Hardware Domain and had been working full-time at Amrit Enterprises since December 2011. There is no mention of the training period of 9 to 10 months at Amrit Enterprises prior to working full-time there, noting that he claims to have been working full-time elsewhere concurrently.

24. In response to this information, the Tribunal was provided with a statement from the visa applicant stating the reasons that his training period with Amrit Enterprises had not previously been mentioned was that he had worked part time with Amrit Enterprises while being trained for the role, and that it was an unpaid position at the time so he did not put it on the copy of his Resume that was submitted to the Department. The Tribunal was also forwarded a new letter from Maninder Singh which now refers to a period of unpaid training from February to November 2011. The Tribunal has considered the explanation provided but is not persuaded that the visa applicant failed to mention the unpaid work with Amrit Enterprises as it was part-time training and unpaid. It notes that his resume includes both part-time and full-time positions, as well as a trainee position as an Engineer. Given the relevance of the claimed training as a signwriter with Amrit Enterprises to the nominated occupation, the Tribunal considers that it would have been mentioned either to the Department or at the very least, some time prior to the hearing, and appears to have only been offered as an explanation when the Tribunal questioned the visa applicant about his switch from IT to working for a signwriting business.

25. The representative submitted during the hearing that some of the discrepancies which arose could be related to the officer’s recollection of the phone calls as there was no recording or transcript of what occurred, suggesting an additional possible complication as to whether the interviews were conducted in Hindi or Punjabi. However, in the response to the Tribunal’s letter, it appears that the content of the recorded responses was generally accepted as correct other than the reference to Amritpal Singh which was said to have arisen out of confusion. As noted above, the Tribunal would have expected that the visa applicant inform it during the hearing when asked about Amritpal Singh that there was no such person.

26. In considering the records of the interviews and the explanations provided, the evidence of Mr Maninder Singh raises doubts in the Tribunal’s mind as to whether he was who he claimed to be, noting that the age he gave is different to that on the copy of the ID card provided. The Tribunal has considered the explanation and the reasons for the inconsistent responses given during the verification checks but was not convinced that the repeated explanation that the claimed owner of Amrit Enterprises, Mr Maninder Singh, gave those responses because the visa officer did not properly identify themselves. As outlined above, the record of the conversations reflect that the officer had identified themselves during the second phone call during which many of the discrepancies arose, and only after doing so were able to discuss the content of the employment reference properly with the person who identified themselves as Mr Maninder Singh. The recorded responses did not reflect that the evidence from Mr Maninder Singh regarding the visa applicant’s claimed employment experience as a signwriter was reliable.

27. The Tribunal has considered the explanations provided for the other discrepancies outlined in its letter inviting comments on or response to the adverse information but is not convinced that the reasons given sufficiently explain the discrepancies and anomalies which arose from the visa applicant’s recorded responses at interview and at the hearing, as well as Mr Navjot’s responses given to the visa officer for the reasons outlined above.

28. Other evidence of the visa applicant’s employment at Amrit Enterprises has been presented including letters from claimed customers of Amrit Enterprises stating that their signage needs have been met through dealing directly with the visa applicant and the more recent letter from Mr Maninder Singh. However, the Tribunal does not consider that the other evidence outweighs the serious concerns referred to above and, having reviewed all the evidence provided, it does not accept that Mr Kumar was employed as a full-time signwriter at Amrit Enterprises since 2011 as claimed.

1. The Tribunal has also considered whether the visa applicant’s qualifications in the field of Electrical Engineering and other work/employment experience would meet the requirement of having the skills, qualifications and employment background for the occupation of Signwriter. In this regard, the applicant claims his qualifications and other work experience involved computers and was in this way relevant to his claimed job as a signwriter. The Tribunal accepts that signwriting would involve the use of computers, as do many occupations. But, having regard to the skill level and duties set out in the ANZSCO description for Signwriter, the evidence of Mr Pardeep Kumar’s experience with computers and electrical engineering qualifications and experience does not in the Tribunal’s view reflect that he has the skills, qualifications and employment background considered necessary to perform the tasks of a Signwriter.

2. The Tribunal is not satisfied that the visa applicant has the skills, qualifications and employment background necessary to perform the tasks and finds that the visa applicant does not meet the requirements of cl 482.212(3).

3. As one of the essential requirements for the visa is not met, the decision under review must be affirmed

   decision

4. The Tribunal affirms the decision not to grant the visa applicants Temporary Skill Shortage (Class GK) visas.

   Wan Shum
   Member