Shrestha (Migration)

[2020] AATA 4761

Shrestha (Migration) [2020] AATA 4761 (1 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Prabeg Shrestha
Mrs Alina Shrestha

CASE NUMBER:  1921259

DIBP REFERENCE(S): BCC2012/803507 BCC2015/1574995

MEMBER:John Cipolla

DATE:1 September 2020        

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 487 (Skilled - Regional Sponsored) visas:

·Public Interest Criterion 4020 for the purposes of cl.487.228 of Schedule 2 to the Regulations.

Statement made on 1 September 2020 at 3:55pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 487 (Skilled – Regional Sponsored) – Federal Circuit Court remittal – bogus document – employment reference – verifying details of business and employment – limited details of telephone integrity check – applicant provided other written employment details – decision under review remitted       

LEGISLATION

Migration Act 1958, ss 5(1), 65
Migration Regulations 1994, Schedule 2 cl 487.228; Schedule 4, Public Interest Criterion 4020

CASES

Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Singh v MIBP [2016] FCA 679
Singh v MIMAC [2013] FCCA 1435
Trivedi v MIBP [2014] FCAFC 42      

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 Immigration on 28 February 2017 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 19 July 2012. The delegate refused to grant the visas on the basis that the first named applicant (hereinafter referred to as the applicant) did not satisfy the requirements of cl.487.228 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate found that a reference pertaining to the applicant from Auto Goods, an automotive repair business in Nepal, was, based on Departmental integrity checks, a bogus document .

3. The applicant sought merits review of the Departmental refusal and the Tribunal differently constituted, in a decision dated 13 March 2018, determined that the applicant did not meet Public Interest Criterion (PIC 4020) as required by cl.487.228 of the Migration Regulations and further to this, that having regard to relevant considerations, there was no basis to waive PIC 4020 in this case.

4. The applicant sought judicial review of the previous Tribunal decision. The Federal Circuit Court determined that the decision of the previously constituted Tribunal was affected by jurisdictional error and the matter was remitted back to the Tribunal to be determined according to law.  The Federal Circuit Court determined that the characterisation of the witness (the applicant), as untruthful, on the basis of a significant misunderstanding of his evidence, or a characterisation that was not open on the evidence, raised doubts about whether the Tribunal discharged its statutory function of evaluating the applicant’s claims. It determined that it’s erroneous conclusion in relation to a central and key issue was a grave error which amounted to jurisdictional error.  In addition to this, that web search enquiries undertaken by the previous Tribunal pertaining to the existence of a firm of accountants and the provenance of evidence provided by them on behalf of the applicant, constituted information for the purposes of s.359A which was not put to the applicant for comment.

5. The Tribunal in the conduct of this review has had regard to the evidence that was before the Departmental delegate, the evidence that was before the previously constituted Tribunal and the evidence that has been provided o the Tribunal for the purposes of this review.

6. The applicant appeared before the Tribunal via videoconferencing facilities from Darwin on 24 August 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages. The applicant was assisted in the review by a barrister Ms Nguyen.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.487.228 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).

9. 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.

   Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?

10. 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.

11. 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.

12. While 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.

13. While the Tribunal is cognisant of the fact that PIC 4020 implies the need for probative evidence, the issue is whether there is probative evidence that the applicant gave or caused to be given a bogus document, not whether the document in question was bogus (see Singh v MIMAC [2013] FCCA 1435 (Judge Cameron, 24 September 2013) at [25])

14. Recourse to the delegates decision record indicates that the delegate concluded that the applicant had provided a bogus document, namely the reference from Auto Goods in support of his visa application and therefore he was not able to meet the requirements of PIC 4020 for the purposes of cl.487.228. That evidence is as follows:

    There is evidence before the Minister that you have provided, or caused to be provided, a bogus document or false or misleading information in relation to this visa application.

    With the application the applicant provided evidence to the department that was considered to be of a ‘non-genuine’ nature.

    The applicant claimed skilled employment as a Motor Mechanic (General) 321211 with Auto Goods.

    In an attempt to verify the claimed employment at Auto goods, DIBP officer at New Delhi conducted the check on 7 August 2013 based on the details of the work reference dated 19 September 2008 and 29 June 2012 signed by Managing Director.

    During the phone interview between a gentleman (who was working in the front desk and managed the business) and you, our officer found that:

    - there was inconsistent information between you and a gentleman about the employment period with Auto goods;

    - The applicant told our officer that the business had 4 staffs, however, they were unable to provide (or remember) their names;

    - The applicant told our officer that your duties were to check brakes, change car oils and assist the head mechanic. However, the applicant could not remember the name of the head mechanic.

    - a gentleman informed our officer that the applicant worked 6 days a week with a weekly off on Monday. Whereas the said you worked 5 days a week with weekly off on Monday and Tuesday;

    -a gentleman advised our officer that the applicant was paid NR 12000 in cash. Whereas the applicant said they were paid NR 7500. Furthermore a gentleman said that the applicant was not given any salary vouchers but the applicant said they were given salary vouchers;

    - a gentleman said the applicant was paid on the last week of every month. Whereas the applicant said they were paid every week;

    - a gentleman advised our officer that attendance register was maintained by the applicant

    . Whereas the applicant said the business had no attendance register.

15. The Tribunal has had regard to the evidence that the delegate relied upon to make an adverse decision. The decision record does not contain any reference to the measures undertaken by the officer in New Delhi to conduct the integrity checks.  The decision record indicates that the officer contacted the Auto Goods business, in an effort, to corroborate the applicant’s claimed period of employment with the business.  The decision record indicates that the gentleman who answered the phone worked on the front desk and managed the business.  There is no evidence that corroborates a finding that this person managed the business and the evidence indicates he was not the proprietor of the business, or that he was indeed the proper person to provide this information.  There is no evidence which indicates what language the officer conversed in when taking evidence from the “gentleman that answered the telephone”.  In the circumstances of a random phone call from an officer of the Australian High Commission in New Delhi, one would have expected that the officer would have gone to considerable lengths to determine whether the person who answered the telephone could converse in English or whether he needed the assistance of a Nepalese interpreter, so that one could be arranged before the call progressed.  There is no reference to any language barrier, or indeed, whether the officer could be sure that the person that answered the phone understood the questions that were being asked of him. Another unreliable aspect of the integrity check was the fact that the applicant’s employment with Auto Goods was between 2003 and 2008. The telephone call from the officer occurred some 5 years later, in August 2013.  

16. To rebut the adverse finding made as a result of integrity checks undertaken by an officer of the Australian High Commission in New Delhi that the applicant gave, or caused to be given, a bogus document, the applicant has provided a range of evidence.

17. At hearing before the Tribunal, the applicant gave evidence about his education and his work history in Nepal. 

18. The applicant advised that he completed high school studies in Nepal in 1998. The applicant advised that upon completion of his high school studies he was looking for work, he was living at home with his parents, and the applicant advised it was extremely hard to find a job in Nepal. The applicant stated that in 2001 he was able to organise voluntary work with Auto Sales, as the proprietor of this business was a friend of his father.  The applicant advised that between 2002 and 2004 he worked as a financial officer, looking after accounts in a care rehabilitation centre, the position was part-time. The applicant stated that the centre provided support to drug users and persons suffering with HIV. The applicant advised that he obtained paid work at Auto Goods in Chitwan between 2003 and 2008 and that as he earned under 125,000 rupees, an amount under the taxation threshold in Nepal, so he did not pay taxation.

19. The applicant stated that during the periods in question he worked in more than one position and that this was not uncommon in Nepal due to the unreliability and scarcity of employment.  The applicant advised that between 2006 and 2008 he undertook part time work with Recovery Nepal, whose head office was located in Kathmandu, and they also had an office in Chitwan.  This organisation provided support to drug users and undertook drug awareness programmes and provided clean syringes to IV drug users.

20. The applicant also advised that between 2005 and 2008 he undertook a Bachelor of Business Studies and that upon completion of these studies, with his parent’s support, he applied for and was granted a student visa to undertake studies in Australia.

21. The applicant advised that his parents sponsored him for the student visa, and they had to provide evidence that there were financial resources available to pay for the applicant’s cost of living and education expenses in Australia.  The applicant advised that he had initially enrolled in a Bachelor of Accounting course, as he had completed business studies in Nepal and had work experience as a financial officer.  The applicant advised that he completed one semester of this course in Australia.  The applicant then learned that a person was able to study automotive engineering in Australia.  The applicant advised that this course of study interested him, due to the fact, that he had worked for many years in the automotive sector in Nepal.  The applicant advised that in Nepal there were no automotive engineering courses and that a person who wished to pursue this career had to do so by engaging in on the job training.  The applicant advised that when he learned about the prospect of pursuing automotive studies in Australia that he decided to change courses and completed studies at AISI College located in Lonsdale Street Melbourne.  The applicant then successfully completed automotive studies in Australia and obtained work experience in the sector at an automotive workshop in Dandenong in Victoria.

22. The applicant was asked whether he had any concerns that he wished to raise about the integrity check undertaken by the Australian Embassy in New Delhi pertaining to his work at Auto Goods and the reference he provided from this employer. The applicant stated that the person who took the call from the officer, Sonu, did not speak English well and was poorly educated. The applicant advised that his answers to the questions asked of him were affected by these factors, along with the passage of time, as at the time of the telephone call, it had been 5 years since he had worked for this business.

23. The applicant advised that he was reliant on the documents that he had provided from Auto Goods which are dated September 2008, June 2012, and July 2015 which all confirm the applicants employment between August 2003 and September 2008 and provide details of his salary and an outline of his duties in the position. The applicant has advised that the supplementary letters attesting to his employment were to provide additional information about his employment such as a recitation of his duties and the salary he was paid, as the first reference did not incorporate these details.

24. The applicant advised that the adverse findings of the Department about his employment at Auto Goods was compounded by another significant factor. The applicant advised when he was telephoned by an officer of the Department to be asked questions about his employment at Auto Goods he was compromised by a range of factors.  The applicant advised that he had been working a shift from 3pm to 11pm when he fell sick, just before 4pm with nausea and a headache. The applicant left work, as he was not well enough to remain at work and commenced to drive home along the Sturt Highway and that it was peak hour and the highway was busy.  The applicant advised that at the time of the telephone call he was feeling unwell, he was forced to pull over to the side of the road to take the call, that there was significant noise from the passing traffic and the quality of the call was very poor. The applicant has advised that despite his predicament he made the best attempts to answer the questions of him, but the clarity of the call was compromised.

25. The applicant provided the Tribunal with a copy of the appeal book lodged with the Federal Circuit Court pertaining to his judicial review application.  The appeal book included the following documents.

26. A letter from Recovery Nepal dated 28 April 2008 from Mr Roshah Sapkota, which indicated that the applicant had been employed by the organisation from 2006 as a regional finance officer and noting that the applicant worked well with recovering drug addicts and drug users.

27. A letter from Pushpa Lal Shrestha, dated 8 July 2015, confirming the applicant’s employment with Auto Goods Chitwan between 7 August 2003 and 13 September 2008, and confirming that the applicant had undertaken training at the business prior to his full time engagement, which he had undertaken on a voluntary basis. This evidence was corroborative of the evidence the applicant provided at hearing

28. A document dated 3 July 2015 from the Ministry of Commerce Birgunj, certifying the registration of the business, Auto Goods.

29. A letter from Rajan Adhikari and Associates, Chartered Accountants dated 9 July 2015, confirming the applicants employment with Auto Goods from 7 August 2013 to 13 September 2008 and confirming that he was paid a monthly salary of 7500 rupees a month and confirming that as his base salary was below the tax threshold, the applicant was not required to file any tax returns.

30. A statement from Mr Sonu Shrestha dated 21 February 2017, the person who answered the phone call from the embassy official, confirming that he worked as a receptionist for Auto Goods from May 2006 through to September 2015. Mr Shrestha notes that this coincided with a 2-year overlap, when both he and the applicant were employed simultaneously by the business. Mr Shrestha provided clarification around the answers that he gave to the officer at the time of the call.

31. In the Tribunals view, the evidence in which the Department relied to ground an adverse outcome in terms of the provision of a bogus document from Auto Goods is not reliable. The impact on a visa applicant, if found to have provided a bogus document is profound, in so far as it results in the applicant not meeting the requirements of PIC 4020. This finding precludes the applicant from applying for a further visa for 3 years.    

32. The officer from the Australian Embassy in New Delhi contacted the Auto Goods business by telephone on 7 August 2013.  This phone call occurred 5 years after the applicant ceased working for this business.  There is no evidence in the recitation of this phone call or in the natural justice letter and Departmental decision record, that this officer made a number of relevant enquiries, that in the circumstances, should have been made.  Firstly, whether the person who answered the telephone in August 2013 was the person who could provide the required details pertaining to the applicant. Secondly whether the person who answered the telephone was able to understand the questions being asked of him, what language the conversation took place in, and whether there was a need for an accredited interpreter.  The evidence before the Tribunal indicates that this did not transpire. In the view of the Tribunal the collation of this evidence on these grounds was unsafe and was evidence that a decision maker could not apportion any weight to or that would arouse a suspicion of the provision of a bogus document.

1. Conversely the applicant has provided evidence under oath, that he received a phone call from the Department, asking him questions about his employment at Auto Goods whilst he was unwell, when driving home from work on a major highway and that the clarity of the call was compromised by these prevailing conditions.

2. The Tribunal accepts the applicant’s evidence that employment in Nepal is difficult to obtain, and that the applicant maintained his various positions of employment after completing his high school studies.  The applicant maintained this employment whilst he completed his undergraduate degree in Nepal.

3. The Tribunal acknowledges that the provision of fraudulent documents from certain countries, including Nepal is problematic, but each case needs to be assessed carefully based on the totality of the evidence provided.

4. In this case the applicant has given a consistent account of his employment history in Nepal.  The applicant advised that he undertook unpaid work experience, with Auto Goods, after he finished school and before he obtained paid work with this employer.  The applicant undertook studies in business and held employment as a financial officer.  The applicant gave evidence that there were no automotive mechanics courses offered in Nepal. The applicant advised that when he decided to pursue overseas studies in Australia that he initially enrolled in a Bachelor of Accounting.  Upon completing a semester of this course in Melbourne, the applicant came to learn that automotive studies were available in Australia and he applied to transfer courses and then went on to complete the automotive studies successfully. It is entirely plausible that given the applicant’s work history in Nepal that he would be interested in pursuing formal studies in automotive mechanics in Australia. The applicant whilst pursuing these studies undertook voluntary work experience in this sector in Dandenong and he has provided a reference detailing this work experience, indicative of the breadth of the experience that the applicant had in this industry. The applicant also undertook work in this sector in Alice Springs.

5. In addition to this the applicant has provided a range of independent evidence corroborative of his employment at Auto Goods which has been referenced above.

6. Having regard to the evidence before it the Tribunal finds that there is no evidence before the Tribunal that the applicant has given a bogus document as defined in s.5(1).

7. Therefore, the applicant meets PIC 4020(1).

   Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(1)?

8. 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). 

9. There is no evidence that the applicant has previously been refused a visa because of a failure to satisfy PIC 4020(1), excluding in relation to the visa application that is the subject of this review.  Therefore, PIC 4020(2) is met.

   Has the applicant satisfied the identity requirements?

10. Clause 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.  No question has been raised as to the applicant’s identity and based on the material, including a copy of the applicant’s passport, the Tribunal is satisfied as to the applicant’s identity.

11. Therefore, the applicant meets PIC 4020(2A).

    Has a visa previously been refused on the basis of a failure to satisfy cl.4020(2A)?

12. Clause 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 cl.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: cl.4020(2BA).

13. There is no evidence that the applicant or any member of the applicant’s family unit have previously been refused a visa because of a failure to satisfy PIC 4020(2A).  Therefore, PIC 4020(2B) is met.

14. On the basis of the above, the applicant satisfies PIC 4020 for the purposes of cl.487.228 of Schedule 2 to the Regulations.

    DECISION

15. The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 487 (Skilled - Regional Sponsored) visas:

    ·Public Interest Criterion 4020 for the purposes of cl.487.228 of Schedule 2 to the Regulations.

    John Cipolla
    Senior 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. 

    …