Singh (Migration)

[2019] AATA 2291

Singh (Migration) [2019] AATA 2291 (31 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kawaljit Singh

CASE NUMBER:  1806659

DIBP REFERENCE(S):  BCC2008/46002

MEMBER:Michael Ison

DATE:31 May 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Skilled (Residence) (Class VB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 885 (Skilled - Independent) visa:

·Public Interest Criterion 4020 for the purposes of cl.885.224(a) of Schedule 2 to the Regulations.

Statement made on 31 May 2019 at 4:24pm

CATCHWORDS

MIGRATION – Skilled (Residence) (Class VB) – Subclass 885 (Skilled – Independent) – Federal Circuit Court remittal – not satisfied applicant meets requirements – bogus documents– inconsistencies – concerns about critical details in applicants work reference – superannuation payments –  no evidence the applicant has given bogus document – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 65, 97, 375A, 359A
Migration Regulations 1994 (Cth), Schedule 2 cl 885.224(a), Schedule 4 Public Interest Criterion (PIC) 4020

CASES

Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274

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 8 August 2012 to refuse to grant the applicant a Skilled (Residence) (Class VB) (Subclass 885) visa under s.65 of the Migration Act 1958 (the Act).

2. The background to the application is that the applicant claims, supported by a written work reference dated 30 November 2007[1] provided by Mr Golam Sarwar as the owner and Head Chef of Amania Indian Cuisine restaurant (the restaurant), to have worked 980 hours at the restaurant. The work reference states the applicant worked at the restaurant as a part time volunteer from 11 December 2006 to 30 July 2007 and then as a paid part time employee from 1 August 2007 to the date of the reference. The applicant also claims in oral and written evidence, including a statutory declaration made on 28 May 2012,[2] to have worked as a volunteer at the restaurant from 11 December 2006 to 30 July 2007, generally working 20 hours per week.

   [1] Tribunal file for Tribunal case number 1212490, folios 83 and 84.

   [2] Department file, folio 96.

3. This led to the applicant applying for and receiving a skills assessment as a Cook (4513-11) on 3 January 2008,[3] based on the applicant having obtained a Certificate III in Hospitality (Commercial Cookery) on 6 July 2007 and then having completed at least 900 hours of relevant work experience.

   [3] Department file, folios 64 and 65.

4. After the applicant obtained the skills assessment he applied for the Subclass 885 visa.

5. The applicant applied for the visa on 2 September 2008. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.885.224(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant met the requirements in Public Interest Criterion 4020 (PIC 4020) in Schedule 4 of the Regulations. The delegate considered that the skills assessment document issued by Trades Recognition Australia (the TRA) dated 3 January 2008 and submitted by the applicant to the Department as part of the applicant’s visa application process was a bogus document under s.97 of the Act and therefore the applicant did not satisfy the requirements in PIC 4020(1). The delegate was not satisfied that there were any compassionate or compelling reasons within PIC 4020(4) to waive the requirement in PIC 4020(1).

6. On 17 August 2012 the applicant lodged an application for review with the Tribunal. The applicant appeared before the Tribunal, differently constituted, on 30 July 2014 to give evidence and present arguments. The applicant was represented in relation to that review and this review by his registered migration agent.

7. On 10 August 2015 the Tribunal affirmed the decision of the delegate under review to not grant the applicant the Subclass 885 visa.

8. The applicant appealed the Tribunal’s decision to the Federal Circuit Court which on 21 February 2018 ordered, by consent, that the applicant’s application for review be remitted back to the Tribunal for reconsideration according to law.

9. The Tribunal’s 2015 decision was found to be in error because the Tribunal as then constituted had not disclosed to the applicant a certificate issued by a delegate of the Minister in accordance with the procedure set out in s.375A of the Act on 29 August 2012. That certificate was revoked by a delegate of the Minister on 17 April 2019 and on the same day the delegate issued a new s.375A certificate in relation to specific documents on the Department’s file that was provided to the Tribunal.

10. On 8 May 2019 the Tribunal wrote to the applicant and provided a copy of the 29 August 2012 s.375A certificate, the notice of revocation of the 29 August 2012 certificate dated 17 April 2019 and the new s.375A certificate also issued on 17 April 2019, set out the particulars of the information covered by the 17 April 2019 s.375A certificate and invited the applicant to make submissions in relation to the 17 April 2019 s.375A certificate, including about its validity.

11. On 23 May 2019 the applicant’s representative wrote to the Tribunal requesting release of all documents the s.375A certificate applies to, including in particular documents containing photos of volunteers who had allegedly worked at the restaurant the applicant claims to have worked at and a list of names of those volunteers. The photos were shown to the owner and head chef of the restaurant, Mr Sawar, during an interview with Departmental officers conducted on 10 June 2011. The Tribunal notes that the applicant’s representative had obtained a copy of all documents other than the pages of photos and list of names through Freedom of Information laws in 2014.

12. The Tribunal released all documents covered by the s.375A certificate other than the pages of photos and list of names as the Tribunal was satisfied that there remained a public interest, as stated in the s.375A certificate, in not releasing those documents. The Tribunal did confirm to the applicant’s representative when advising the representative of the Tribunal’s decision that the applicant’s photo was not included in the photos shown to Mr Sarwar and the applicant’s name was not in the list of names that were part of the Department’s operational report covered by the s.375A certificate. The Tribunal invited the applicant to make further submissions based on this information.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. On 2 April 2011 the Migration Regulations were amended by Migration Amendment Regulations 2011 (No 1). These amendments included the introduction of PIC 4020. The transitional provisions provided that the amended regulations applied to any pending visa applications that had been lodged prior to 2 April 2011 but had not yet been decided. The Tribunal finds, based on the delegate’s decision record, that the applicant’s Subclass 885 visa was lodged on 2 September 2008 and was still pending and no decision had been made in respect of the visa application as at 2 April 2011. Therefore the applicant must meet the requirements in PIC 4020.

15. The issue in this review is whether the visa applicant meets PIC 4020 as required by cl.885.224(a) of Schedule 2 to the Regulations 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).

16. 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?

17. 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.

18. 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.

19. 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.

20. The Tribunal has had the benefit of listening to the recording of the hearing conducted by the Tribunal as previously constituted on 30 July 2014 and reading the previous decision of the Tribunal dated 10 August 2015, the Department’s file and the numerous submissions made on behalf of the applicant by his representative both before and after the 2014 hearing. These submissions included an October 2014 response to a letter sent in accordance with the procedure set out in s.359A of the Act by the Tribunal in September 2014.

21. The key findings the Tribunal as previously constituted made in its 10 August 2015 decision include the Tribunal:

    ·did not find the applicant a compelling witness as it found his explanations as to how he came to work at the restaurant and how he negotiated pay and a pay rise were not persuasive;

    ·found inconsistencies in the applicant’s oral evidence and written submissions about who he worked with at the restaurant;

    ·had concerns about the reliability of statements made in the applicant’s work reference provided by Mr Sarwar;

    ·found discrepancies in the documents provided by the applicant compared to other documents provided by the restaurant on the Department file including material differences between the work reference and payslips from the restaurant the applicant provided and the work reference and payslips from the restaurant for another alleged employee whose employment at the restaurant overlapped with the applicant’s, with the applicant’s work reference and payslips being in a materially different format and showing a different rate of pay for the same position as the other person as that held by the applicant, being a cook. Mr Sarwar, when interviewed by the Department in 2010, confirmed the work reference and payslips for the other employee were genuine;

    ·had concerns about the evidence the applicant provided to support his claims of having worked at the restaurant as a volunteer between December 2006 and July 2007;

    ·Mr Sarwar denied meeting with and being interviewed by Department officers in June 2010, which the Tribunal found was false and misleading and reflected adversely on the credibility of the applicant who caused that information to be put to the Tribunal;

    ·Mr Sarwar failed to attend the 2014 Tribunal hearing to support the applicant;

    ·the documentation the applicant provided to the Tribunal as evidence of his employment with the restaurant after July 2007 does not verify the applicant worked 980 hours at the restaurant between December 2006 and November 2007 and establishes only that the applicant worked at the restaurant sometime after 1 August 2007; and

    ·Australian super has no record of any contemporaneous superannuation payments by the restaurant, other than reference to a superannuation guarantee charge payment, for the period the applicant was allegedly in paid employment at the restaurant.

22. From listening to the recording of the 2014 Tribunal hearing the applicant is not a compelling witness, although the Tribunal recognises he was being asked to recall in detail events, such as who he worked with, that had occurred six to seven years earlier. The applicant was not compelling, even though his answers were predominantly spontaneously given, because either his recollection was poor or his answers were vague on critical questions, causing the Tribunal as previously constituted to have to often repeat questions or be more specific in its questioning of the applicant to illicit a meaningful response from the applicant.

23. There is a natural concern that Mr Sarwar had so many international student volunteers work at his restaurant and appears, from the most positive perspective, to be very disorganised, to have kept few independent records and to have poor recollection of the volunteer students who worked at his restaurant despite providing them with detailed references which included specific claims about the number of hours they worked for him. Mr Sarwar told the Departmental officers he did not keep records and could not verify the number of hours the students who volunteered with him worked the hours he stated in references that they did. In the Tribunal’s view, while this causes the Tribunal concern about these critical details in the applicant’s work reference, these issues reflect on Mr Sarwar and not on the applicant.

24. Mr Sarwar’s failure to fully co-operate with the Department in its 2010 investigation reflects poorly on him, particularly when he would have been aware what was at stake in terms of potential visa cancellations for many of the student volunteers who worked for him. Similarly, his refusal of the applicant’s request to appear at the 2014 hearing to give evidence to explain the critical documents he had provided to the applicant – particularly the work references and pay slips - and the circumstances of the applicant’s work for him also reflects poorly on him in the circumstances given what was at stake for the applicant. In making these observations the Tribunal recognises that Mr Sarwar was running a restaurant that was operating seven days a week, although Mr Sarwar told the Departmental officers during their 10 June 2010 interview with him that the restaurant only served evening meals and not lunches.[4] 

    [4] Department file, folio 113.

25. Much of the Tribunal’s questioning of the applicant in the 2014 hearing was about Mr Sarwar’s actions, particularly in relation to the different format of records, his participation in the 2010 interview with Departmental officers and inconsistencies between Mr Sarwar’s statements to the Department and the applicant’s evidence. The applicant explained how he came to work at the restaurant, his transition from voluntary to paid work, a change to his rate of pay, how he received his pay and pay advice and obtained the work references from Mr Sarwar but repeatedly told the Tribunal as then constituted he could not comment on what happened at the restaurant after he left there in September 2008 or why there were differences in the documents he had from the restaurant and the documents others had received other than to say the documents he received were genuine.

26. The Tribunal as previously constituted attached significance to the applicant not recalling the names of other volunteer students when evidence on the Department file indicated there was at least one other volunteer student working at the restaurant at the same time as the applicant. Under questioning the applicant did state there were other students working at the restaurant at the same time as the applicant but could not specifically identify which of those employees he could name were students or not or whether those employees he could name were working as volunteers or paid staff as he worked on rotating shifts. This poor recollection from the applicant supports the Tribunal’s earlier finding that the applicant was not a compelling witness, but in the Tribunal’s view this is not fatal to his application.

27. The Tribunal as previously constituted also attached significance to Mr Sarwar telling the Departmental officers during the 2010 interview that the restaurant employed “basically 4 full time chefs”[5] and that this was materially different to the applicant’s evidence that when he worked he worked mainly with Mr Sarwar as the Head Chef or with Ms Sharmila Sarwar who was also a chef (and to whom Mr Sarwar was married) and a backup chef. The notes of the Departmental officers interview with Mr Sarwar do not clarify Mr Sarwar’s evidence whether there were four chefs at the restaurant who could be rostered on or whether four chefs would be at the restaurant each evening service. It seems to the Tribunal as presently constituted that the former is the likely explanation as according to the Departmental officers notes Mr Sarwar prefaced his answer with “… it would depend on the night and how busy it was…”. The Departmental officers noted this answer as “GS [Mr Sarwar’s] response appeared somewhat vague.”[6] There is no explanation in the notes as to whether or why the Departmental officers did not seek clarification from Mr Sarwar on this evidence. The Tribunal as previously constituted also did not explore these issues with the applicant.

    [5] Department file, folio 113.

    [6] Department file, folio 113.

28. The Tribunal as presently constituted finds there are alternate interpretations of the evidence available that could be consistent with the evidence of the applicant. In those circumstances the Tribunal as presently constituted is not prepared to make adverse findings against the applicant arising from these apparent but not proven inconsistencies.

29. The Tribunal as previously constituted found the method the applicant obtained work at the restaurant to be “not persuasive”, yet the applicant’s evidence on this aspect is consistent with the evidence the Departmental officers obtained from Mr Sarwar in 2010.

30. The Tribunal as previously constituted did not find the applicant’s evidence about why he was retained as a paid cook and how he negotiated a large pay rise (from $10 to $15.75 per hour) to be “compelling”, on the basis Mr Sarwar had the services of other volunteers available to him at the time. However, the evidence of the work reference and payslips for another international student on the Department file and referred to above shows Mr Sarwar also employed at least one other international student as a paid cook at the time of the applicant’s employment and paid that cook $15 per hour, a not dissimilar hourly rate to that the applicant claims he was being paid. It seems at least possible to the Tribunal as presently constituted that someone who needed to fill seven to fourteen cooking shifts per week may seek to retain the better performing volunteers as paid cooks, particularly in what appears to be a restaurant where there was a high turnover of staff. The Tribunal notes these matters were not put to Mr Sarwar by the Departmental officers and were not put to the applicant by the Tribunal as previously constituted.

1. The Tribunal as previously constituted also had concerns about the evidence of the amount of hours the applicant could have worked at the restaurant, in part based on Mr Sarwar’s evidence to the Department students would work their 900 hours in six months, when based on working the permissible 40 hours a fortnight under a Student visa, at least when class are in session, it would take at least 45 weeks for such students to work 900 hours. The Tribunal as previously constituted attached some weight to the available wages payment and tax evidence indicating that the applicant earned “… a relatively small income of $11,105… in the 2008 financial year”.[7] The applicant’s Notice of Assessment for the 2007 - 2008 financial year from the Australian Taxation Office shows a taxable income of $11,293.[8] The applicant’s evidence is he was paid $10 per hour from 1 August 2007 to 31 December 2007 and $15.75 per hour from 1 January 2008 to 30 June 2008. Excluding semester breaks when the applicant was not restricted in the hours he could work and assuming the applicant’s evidence of working 20 hours per week on average is correct, there are 21 weeks to 31 December 2007 and then 26 weeks to 30 June 2008. 21 weeks x 20 hours per week at $10 per hour equals 420 hours paid at $4,200. 26 weeks x 20 hours per week at $15.75 per hour equals 520 hours paid at $8,190. This totals $12,390 which is $1,097 more than what is shown on the applicant’s Notice of Assessment. The Tribunal, whilst unable to reconcile the hours worked and total income earned exactly, accepts that the hours claimed and the income earned are sufficiently close for the Tribunal to find that evidence credible and consistent with the oral evidence of the applicant, who stated he averaged working 20 hours per week, not that he worked exactly 20 hours per week.

   [7] Paragraph 34 of the Tribunal decision dated 10 August 2015.

   [8] Tribunal file for Tribunal case number 1212490, folios 160 and 161.

2. The Tribunal as previously constituted was also concerned that the applicant failed to provide contemporaneous records of the payment of his superannuation by the restaurant for the 2008 financial year, when the applicant was a paid employee. The applicant’s representatives provided the Tribunal with a letter from the applicant’s nominated superannuation fund that did not record the receipt of any superannuation contributions from the restaurant for the applicant during the relevant period.[9] The Tribunal as previously constituted specifically referred to this situation in its decision in the following terms:

   The Tribunal also received a letter from the ATO stating that for the period between 21 November 2008 and 27 August 2014 superannuation guarantee charge payments were received from Golam Sarwar and Shamila Sarwar. The Tribunal notes the statement in the representative’s letter dated 15 August 2014 this contribution may have been paid late. The Tribunal also received information that Australian Superannuation received payments for Mr Singh from 1 July 2008 to 30 June 2009 which were minimal. The Tribunal also received correspondence dated 7 August 2014 stating that Australian Super did not receive any payments from Amania Indian restaurant.[10]

   [9] Letter from the applicant’s superannuation fund dated 7 August 2014, Tribunal file for Tribunal case number 1212490, folio 129.

   [10] Paragraph 16 of the Tribunal decision dated 10 August 2015.

3. The applicant did provide evidence of $1,092.08 having been paid in superannuation contributions to his nominated superannuation fund, but this was for the first six months of the 2008 – 2009 financial year.[11] The Australian Taxation Office confirmed in writing these contributions were from Mr and Mrs Sarwar.[12]

   [11] Tribunal file for Tribunal case number 1212490, folios 156 to 158.

   [12] Tribunal file for Tribunal case number 1212490, folio 159.

4. An alternate explanation to that found by the Tribunal as previously constituted is that Mr and Mrs Sawar paid the applicant’s superannuation payments in their names rather than in the restaurant’s name and did so late, meaning the payments were made through the Australian Taxation Office rather than direct to the applicant’s nominated superannuation fund. The superannuation fund guarantee payment in 2008 was 9%. On an income of $11,293 the superannuation guarantee payments were $1,016.37. The Tribunal has not been able to reconcile the salary and superannuation payments for the applicant exactly, with the applicant receiving an additional $75.71 in superannuation above his reported 2007 – 2008 income from the restaurant. The Tribunal notes the applicant earned income beyond the 2007 – 2008 financial year from the restaurant, based on his evidence of leaving the restaurant on 28 September 2008. There is no evidence before the Tribunal as to how many hours the applicant worked in the 2008 – 2009 financial year for the restaurant.

5. In those circumstances, the Tribunal as presently constituted is not prepared to make an adverse finding against the applicant that there is no evidence of superannuation payments matching the applicant’s income, even though on the information provided by the applicant to the Tribunal the Tribunal is unable to fully reconcile these figures. Again, the Tribunal accepts that the evidence of superannuation paid against the evidence of the income earned are sufficiently close for the Tribunal to find that evidence credible and consistent with the oral evidence of the applicant.

6. The Tribunal also notes the significant concerns of the Tribunal as previously constituted about the number of hours the applicant had worked when the applicant obtained his skills assessment. As noted above, the applicant obtained his skills assessment on 3 January 2008 and so was not relying on the in excess of 500 hours he worked for the restaurant in 2008. From the Tribunal’s analysis at paragraph 31 of these reasons the Tribunal finds that the applicant worked approximately 420 paid hours at the restaurant between 1 August 2007 and 31 December 2007.

7. The applicant’s evidence is he worked as a volunteer at the restaurant from 11 December 2006 to 31 July 2007 and the work reference Mr and Mrs Sawar provided him dated 30 November 2007 notes the applicant has:

   … been employed with us since 11 December 2006 to 30 July 2007 on voluntary basis and from 01 August 2007 to present he continues to work with on paid part time basis (20 hours a week). He joined us on Voluntary basis to gain practical experience and he continues to work with us. He has obtained a total of more than 980 hours of experience as a cook. (sic) [13]

   [13] Tribunal file for Tribunal case number 1212490, folios 83 and 84 at 84 (back).

8. As Mr and Mrs Sawar’s record keeping practices for volunteers seem either exceptionally poor or non-existent the Tribunal as previously constituted reasonably asked the applicant what evidence he had to support this claim of the voluntary hours worked, including how he or the restaurant kept records that supported what was stated in the work reference above. The applicant says he maintained a log book of his hours in a book where he also recorded recipes but he has not kept that record. This approach to keeping a record of hours worked in an informal log book is consistent in the Tribunal’s experience with the practice of other students seeking work experience for the purpose of obtaining a skill assessment prior to seeking a Subclass 885 or similar visa. The Tribunal notes that a skills assessment does not require evidence of hours of experience gained to be recorded in a specific manner or format that is then, for example, signed off each time by the relevant employer or by an authorised representative of the student’s education provider or similar approach. In summary, the applicant has very little evidence of his voluntary work. As a volunteer he obviously received no payment and did not pay tax and Mr Sarwar did not provide any support evidence such as of shift records or similar documents to support the applicant’s claims.

9. This casts doubt over the details provided in the work reference by Mr Sarwar dated 30 November 2007. The subsequent reference Mr Sarwar provided the applicant on 4 September 2008 is of little relevance as this was provided after the applicant had already obtained his skills assessment on 3 January 2008.

10. There are 33 weeks between 11 December 2006 and 31 July 2008. Based on the applicant’s evidence of working a consistent 20 hours a week this totals 660 hours of relevant voluntary work experience. When combined with the applicant’s paid work from 1 August 2007 to 31 December 2007, being his work prior to obtaining his skills assessment, which totals 420 hours for a total of 1080 hours of alleged work experience. As the reference was provided on 30 November 2007 approximately 5 weeks or 100 hours of work experience in December 2007 must be discounted from the Tribunal’s calculation. This leaves a total of 980 hours of relevant work experience, which is the amount stated in the reference and which the applicant has given oral evidence of having worked.

11. In these circumstances, the Tribunal finds the applicant worked the 980 hours he claimed as a cook and recorded in the reference dated 30 November 2007 provided to the TRA prior to the TRA issuing the applicant with a skills assessment as a cook on 3 January 2008.

12. This means the Tribunal finds that there is no evidence to suggest the applicant has given, or caused to be given to the Minister, a bogus document or information that is false or misleading in a material particular in relation to his application for the Subclass 885 visa.

13. The Tribunal finds therefore that the applicant meets PIC 4020(1).

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

14. 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). 

15. There is no evidence before the Tribunal that the applicant or any member of his family unit has been refused a visa in the relevant period because of a failure to satisfy PIC 4020(1).

16. The Tribunal finds therefore that the applicant meets PIC 4020(2).

    Has the applicant satisfied the identity requirements?

17. PIC 4020(2A) requires an applicant to satisfy the Tribunal as to his or her identity. The copy of the Department file made available for the 2015 Tribunal decision includes a certified copy of extracts of the applicant’s Indian passport. Details recorded in these extracts match with details provided in the applicant’s visa application and review application to the Tribunal.

18. The Tribunal finds therefore that the applicant meets PIC 4020(2A).

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

19. 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).

20. There is no evidence before the Tribunal that the applicant or any member of his family unit has been refused a visa in the relevant period because of a failure to satisfy PIC 4020(2A).

21. The Tribunal finds therefore that the applicant meets PIC 4020(2B).

    Conclusion

22. On the basis of the above, the applicant satisfies PIC 4020 for the purposes of cl.885.224(a).

    DECISION

23. The Tribunal remits the application for a Skilled (Residence) (Class VB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 885 (Skilled - Independent) visa:

    ·Public Interest Criterion 4020 for the purposes of cl.885.224(a) of Schedule 2 to the Regulations.

    Michael Ison
    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.