Singh (Migration) - [2018] AATA 2338

Singh (Migration) [2018] AATA 2338 (15 May 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Sukhwinder Singh
Mrs Narinder Kaur
Miss Harkamal Kaur Saini
Mr Jaskamal Singh Saini
CASE NUMBER:  1620357
DIBP REFERENCE(S):  BCC2012/1246145
MEMBER:Karen Synon
DATE:15 May 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 457 (Business (Long Stay)) visas:
·Public Interest Criterion 4020 for the purposes of cl.457.224 of Schedule 2 to the Regulations.

Statement made on 15 May 2018 at 3:55pm

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 (Business (Long Stay)) – Bogus document – False or misleading documents – Reference letters – Site visit – Employer’s inability to recognise applicant – Decision under review remitted
LEGISLATION
Migration Act 1958, s 5
Migration Regulations 1994, Schedule 2 cl 457.224, PIC 4020
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 27
Kaur v MIBP [2014] FCA 281
Kaur v MIMAC [2013] FCCA 933
Trivedi v MIBP [2014] FCAFC 42
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 14 August 2013 to refuse to grant the applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 19 November 2012. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy Public Interest Criterion 4020 for the purposes of cl.457.224 of Schedule 2 to the Migration Regulations 1994 (the Regulations). On 28 November 2014 a differently constituted Tribunal affirmed the decision under review. On 26 October 2016 this matter was remitted back to the Tribunal for reconsideration on the basis that the decision was affected by jurisdictional error.
The applicants appeared before the Tribunal on 1 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Bandhu, the applicant’s overseas employer and Mr Ulik Metohu, the applicant’s current employer and proposed 457 sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicants were represented in relation to the review by their registered migration agent who was present throughout the hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.457.224 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).
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?
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.
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.
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.
The visa application
In his visa application, in response to the instruction to provide ‘[d]etails of your employment over the past three years’ the applicant stated that he was employed as an upholsterer by Babu Ram Jangra & Sons for five years from 30 August 2002 until 30 June 2007. A curriculum vitae provided in support the application repeated this overseas employment claim and in it he listed his responsibilities at Babu Ram Jangra & Sons as:
ØMy main responsibility was followed (sic) the procedure and policy of workplace.
ØRepair upholstered furniture by replacing covers, webbing, padding and springs.
ØExamine furniture to determine the extent of damage and decide on the best method for repair.
ØMeasure and cut covering material, join sections and tack fabric onto the furniture frame.
ØKeep my workplace clean and safe.
The applicant also provided, in support of his visa application, two references from Babu Ram Jangra & Sons (Babu Ram), dated 1 July 2007 and 15 September 2011, certifying his claimed employment.
Of particular relevance on the Department of Immigration file is the report from the Department of Foreign Affairs and Trade (DFAT) dated 20 February 2013, with the names of the two officers who conducted the visit recorded, and the conclusion that the referral is ‘non-genuine’. The relevant findings are:
Interview with Referee:
The gentleman sitting behind the desk in the shop introduced himself as Mr Desh Bandhu partner in the business. Officers introduced themselves and stated purpose of their visit. Following information was gathered from the referee:
·Business is engaged in sale of wood to customers.
·Number of full time employees is 2 both looking after sale of wood.
·Business also employees few contract workers for loading purposes.
·Businesses never employed anyone on contract basis for 2 to 3 years.
·Business deals in sale of wood and accessories required like nails, gum etc. Businesses never employed anyone for upholstery work as business does not deal in furniture items.
·Referee could not recognise applicant by his photo or name.
·Referee confirmed having signed the two reference letter[s] however stated both the letters were prepared by someone he knew and he just signed it to help their relative without knowing the contents of the reference letters. Referee further stated that he had never employed applicant in the business
Referee offered to give a statement in writing stating the actual facts. Referee proceeded to write a statement stating that reference letters were issued without knowing of their contents. Referee further wrote that he takes no responsibility for the reference letters and added that the applicant has never worked in the business.
Conclusion
·Business is only engaged in sale of wood and does not deal in furniture making or sales of furniture while reference letter states that the applicant has worked as upholsterer for the business.
·Referee could not recognise the applicant either by his name or his photo.
·Referee informed officers that applicant was never employed in the business.
·Referee willingly gave a statement stating that work experience letters were issued to applicant without seeing the contents. Statement further states that referee takes no responsibility for the work reference letters signed by him. The statement was concluded by stating that the applicant was never employed in the business.
Based on the site visit conducted the offices are led to believe that the employment claims made by the applicant are not correct. Hence the site visit is concluded as Non-Genuine.
In deciding that there was evidence that the applicant had provided information that is false or misleading in a material particular the delegate relevantly recorded the following:
In the process of assessing this application, the reference letter submitted by the applicant was referred to the Australian High New Delhi for verification of authenticity. As a result of these checks we have been advised by that officer that the reference letter was found to be non-genuine based on the following information:
·Babu Ram Jangra and Sons is engaged in the sale of wood;
·The business has never employed anyone on a contract basis for 2 to 3 years;
·The business has never employed anyone for upholstery work as the business does not deal in furniture items;
·[The applicant] was not recognised within the business by photo or name;
·The contents of the letters were not known to the referee;
·The referee does not take any responsibility for the reference letter.
In response to an invitation to comment on the findings of the Australian High Commission, the applicant provided the following documentation for further consideration and assessment:
·A further letter from Babu Ram Jangra and Sons;
·A letter of support from the sponsor, View Furniture Pty Ltd.
I have considered the letter from Babu Ram Jangra and Sons dated 14/03/2013, in the letter the Partner Desh Bandhu has provided a statement regarding the visit from the AHC Officers made to his premises on 06/02/2013. In his statement he has advised that the primary applicant worked as an upholsterer (sofa maker) from 30/08/2002 to 30/06/2007 and was paid cash on hand without issuing any pay slips to him. He confirmed that the two work references that were issued to the primary applicant are genuine. Desh Bandhu has also stated that the statement he originally provided to the AHC officers during their visit had been dictated to him and he signed it and he “felt nervous and little scared when four or five peoples questioned an old man”. I do not hold much weight to this statement, the report that has been provided by the ACH Officers clearly shows that only two offices attended the site visit, which is the department’s normal practice.
The evidence that has been supplied from the AHC Officers visit is fairly conclusive that the primary applicant was not known by the business partner Desh Bandhu. When the AHC showed him a picture of the primary applicant he did not recognise him nor did he recognise the primary applicant’s name. Given the length of time the primary applicant had allegedly been employed by Babu Ram Jangra and Sons it would be expected that even after a period of time is lapsed that the primary applicant would have been recognised by Desh Bandhu. It is only after the adverse information was put to the primary applicant that Desh Bandhu recanted his original statement made to the AHC Officers. I therefore do not hold much weight to the subsequent letter that has been provided by Desh Bandhu. Furthermore the primary applicant’s claim of having worked for Babu Ram Jangra and Sons as an upholsterer is not supported by the AHC Officers evidence that the business sells wood and accessories and it does not dealing furniture making. I am therefore satisfied that the primary applicant has admitted false or misleading documents to the Department.
In a submission to the Tribunal dated 24 April 2018 the applicants’ representative provided a range of legal commentary and judicial authority on the operation of PIC 4020, made representations in relation to the waiver provisions and relevantly submitted:
·The applicant remains employed by his prospective sponsor and both a new sponsorship and nomination were approved on 8 August 2017 and 25 October 2017 respectively.
·The concerns raised by the department and the previously consisted Tribunal related almost exclusively to the information provided by Mr Bandhu during the site visit. Since that time Mr Bandu has been staunchly in support of the applicant and submitted information on multiple occasions, including in letters of reference and oral testimony corroborating the applicant’s claims. This should weigh heavily in support of the applicant and plausible reasons for the change in Mr Bantu’s evidence have already been examined at length in material before the tribunal.
·While acknowledging that Babu Ram is a timber merchant, the Department’s conclusion that the applicant did not work as an upholsterer for the business is disputed as customers purchasing wood at the business would inquire about furniture construction and would be referred to the applicant to perform this work. Babu Ram did not advertise that this work as is not a primary aspect of their business however customers would regularly inquire about furniture production services as it was common to request custom pieces using the quality timber purchased through the company
·The applicant was not the subject of a formal contract of employment but was referred work through the business and was paid by the business for the work performed for its customers.
·It is entirely reasonable that Mr Bandhu would be unable to recognise the applicant given the nature of the questions and photograph put to Mr Bandhu and the nature of the applicant’s employment with Babu Ram. The submission reiterates information provided to the previously constituted tribunal that the photograph provided to him was passport sized and quite small and that during this time the applicant wore a turban. Conversely the photograph provided pictured the applicant with a bare head thus changing his appearance significantly. Further his face-to-face contact with Mr Bandhu was limited as he undertook work off-site away from the primary Babu Ram worksite where Mr Bandhu was based. He took work on contract and was paid at the conclusion or in intervals throughout the contract and thus the period between which he would visit Babu Ram, varied significantly. For example contracts could last between one and six months. Therefore the nature of the applicant’s employment indicates that although Mr Bandhu would have been aware of the quality of the applicant’s work and his work ethic, their actual interactions were limited and this is entirely consistent with Mr Bantu’s difficulties in identifying the applicant both visually and by name.
·It was submitted that relying on the evidence provided by Mr Bandhu at the site visit is problematic because he has stated that the information he provided during the site visit was inaccurate. Mr Bandhu has admitted that he was scared of providing information to immigration officers, police and the tax department and this is reflected in the transcript of the previously constituted tribunal that he was” very nervous” or “scared” of the department offices and “didn’t know who has come to us”. It was emphasised that Mr Bandhu’s hesitancy to provide evidence to the authorities should be sufficient to draw into question the information he provided to department officials during the site visit.
·The Department placed great weight on certain aspects of Mr Bandhu’s instructions during the site visit including the candid nature of the evidence. It was submitted however that the consistent support provided by Mr Bandhu subsequently should also be weighed heavily in favour of the applicant. Further his actions subsequent to the site visit are entirely consistent with his instructions that he did not want to provide information to the authorities and that the applicant was in fact under his employment. Mr Bandhu’s support has been evident at multiple stages of the application process, including prior to the initial lodgement, at the department, before the previously constituted tribunal and now before this tribunal through his willingness to provide oral evidence.
·The applicant and his wife have been consistent and provided reasoned evidence and a supporting witness to the effect that the applicant’s work history is entirely accurate.
·It was submitted that it is possible Mr Bandhu made an innocence a mistake in relation to these letters or he may have concealed information out of fear.
Also provided throughout the course of the review were:
·A Statutory Declaration by the applicant dated 23 April 2018 in which he continues to assert that he worked for Mr Bandhu as claimed from 30/08/2002 to 30/06/2007 and people would buy wood from Babu Ram and ask if he knew anyone who could make the furniture for them at a reasonable price. Mr Bandu referred his name and sent him to their house to ask what they needed and he built furniture for them at their price. The length of contracts depended on the nature of work and could last up to 1 to 2 months or more or less dependent on the work. Mr Bandu saw him whenever he had work for him and paid him after he finished the work or sometimes in instalments. The applicant states he does not understand exactly why Mr Bandhu could not recognise his photo during the site visit but he did not have a lot of face-to-face contact with him and did not work at the shop daily. In addition he wore a turban which changes his appearance significantly. Also Mr Bandhu was shown only a passport size photo. He and his wife have lived in Australia for 9 years, are honest and truthful. He has worked at View Furniture for 8 years and is an established part of the business. He is a senior Upholsterer and his position is justified by his skills and length of employment. If he is forced to leave it would be very difficult for them to replace him and the business would suffer. Further it would be very difficult for his children if he were to leave Australia now as his son, who was two years old when they moved to Australia, is now in year 7 and his daughter was born in Australia in 2011 and is studying at Coburg North Primary School. They grew up here and it would be a shock for them if they had to move to India.
·A letter from Mr Uliks Metohu of View Furniture dated 24 April 2018 who writes that the applicant has been a valued employer of the business for approximately 8 years has been honest throughout this time. View Furniture, a family owned business, has been operating for 18 years. They have been looking for full-time upholsterers for a long time however have had very limited success; employees come and go but have not shown any consistency in working as upholstery (sic) over a long period. The applicant has been employed since March 2011 part-time and has shown a high level of skill and good progress based on the quality of products he produces. As an upholster he is in charge of creating, repairing and replacing upholstery on home and industrial furniture as well as moving and handling material and equipment used in general upholstery. During his employment he has been has demonstrated commitment, a sense of duty and responsibility as well as an ability to learn quickly. In terms of his skills he is 100% perfect for the role. When he was initially hired his skills were higher than what was expected of him which, in Mr Metohu’s opinion, he could not have gained without substantial work experience. His work quality is one of the reasons he has been kept on as an employee and they wish to sponsor him on a visa. It is very difficult to find a replacement for the applicant not just with his level of expertise and familiarity regarding their business operations but, because reliable long-term staff have been very difficult to source. With the applicant working for the business Mr Metohu has been able to spend more time in marketing and growing the business and if he were to leave the business would suffer financially until he filled the role with another person, which may not occur for a long time based on his track record. There is simply a lack of skilled labour in the area. As a person experience in this area he does not believe the applicant’s work experience was recorded fraudulently because of his skill level and his strong moral character.
·Copies of earlier letters from Mr Uliks Metohu of View Furniture dated 14 March 2013, 25 November 2014 and 19 December 2016.
·Copies of letters and references from Mr Desh Bandhu dated 1 July 2007, 15 September 2011, 14 March 2013 and 25 November 2014.
·A letter from Mr Satvir Singh (undated) whose writes that he was a regular customer of Babu Ram from 2002 to 2007 where the applicant worked as an upholsterer during this period. He bought wood from Babu Ram for furniture for his restaurant and he asked if Babu Ram knows anyone who makes furniture who referred him to the applicant. He placed these furniture orders through Babu Ram and the applicant made furniture for his restaurant. He can be contacted for confirmation of this information. Mr Satvir Singh also provided a letter dated 17 March 2015 and a declaration also dated 17 March 2015 stating that he is the owner of Anmol Palace Bar and Restaurant, Phagwara Road, Banga and he has known the applicant for 15 years (that is from 2000) and he worked as an upholsterer from the period 2002 to 2007 at Babu Ram Jangra & Sons and he renovated his restaurant with all the upholstery work.
·Statements dated 17 March 2015 from Kirpal Singh and Paramveer Singh who both state the applicant worked as an upholsterer at Babu Ram Jangra & Sons during the period 2002 and 2007 and he constructed furniture at their homes.
·A copy of the department’s notification of View Furniture Pty Ltd as a standard business sponsor for the period 8 August 2017 until 8 August 2022 and the department’s notification of approval of a nomination in respect of the applicant as an upholsterer with effect from 25 October 2017.
·Evidence of advertisements placed by View Furniture provided to the department in support of the nomination application.
·A photograph of the applicant in a turban.
The hearing

The applicant gave the following evidence:
·During the period between arriving in Australia on 4 July 2007 and starting work at View Furniture in March 2011 the applicant was looking for a job but was unsuccessful. Then he saw an advertisement in the local Coburg newspaper for an upholsterer. He came to Australia as a dependent on his wife’s student visa. After that he did some casual work in a restaurant but was looking for something related to his field of upholstery which he had learned from his parents. He did not work as an upholsterer between July 2007 and March 2011 but did a few small jobs like covering chairs for friends and via ads on Gumtree. He inherited the skills and knowledge of upholstery from his parents who did the same job; it is in his blood. He worked as an upholsterer from age 19.
·He obtained his Certificate III in Upholstery based on the recognition of his prior learning because his employer advised him to update his skills. It was issued based on his experience and knowledge.
·In India he performed upholstery jobs in clients’ homes and offices in the city of Nawanshahr. This is the standard way of doing these jobs in India and this is the only way he did these upholstery jobs.
·His father was an upholsterer and he used to watch him and go with him and help him and that is how he learnt. He started doing upholstery when he finished year 12 in 1999 when his father died. He had no option but to do upholstery as he had to support his sisters and his mother and get his sisters married. He does not know if his father worked or got jobs from Mr Bandhu as he was too young at the time. He started learning upholstery at the age of 10 and at the age of 17 or 18 started doing the upholstery. He initially worked for his father’s old clients and did this from 1999 to August 2002; effectively running his father’s business
·Asked why two of the four tasks he listed on his CV related to a workplace: following the procedure and policy of work place; and keep my work space clean and safe. The applicant said it means if someone needs a new house and needs to construct new furniture someone like him goes and makes the furniture for them as per their needs.
·He started working at Babu Ran when he went with a friend who was purchasing wood and needed some furniture and Mr Bandhu heard them talking and said “we can give you work whenever you need it” He continued working for his father’s clients too because Mr Bandhu was not giving him many jobs. He estimated that his work came two thirds from his own (his father’s) clients and one third from Mr Bandhu. After his father died, he was not making enough to sustain the family so he got extra work from Mr Bandhu. . Mr Bandhu would just call him when he was needed which was about once a month. He said that because Mr Bandhu is a rich person he knew how much time it would take to do a job and he would negotiate the price. When he was doing his own work for his father’s former clients he would do so under his father’s name, Gernalsing. He got further work through word-of-mouth. He thinks he was paid about 50% of what Mr Bandhu charged his clients. He was paid more for working for himself.
·The Tribunal noted that during the last hearing his wife gave evidence that he worked as a labourer for Babu Ram when they married in 2004 and did not said he was an upholsterer and asked the applicant to explain this. The applicant said that in India people are not recognised for their skills; he was called a labourer.
·The applicant said he did not know Mr Bandhu before he started working for him. He is unsure if his father knew him.
·The applicant said he wrote the work reference letters dated 1 July 2007 ad 15 September 2011 and Mr Bandhu signed them. Mr Bandhu asked the applicant to write the letters because he cannot write English. He read it to Mr Bandhu and then he signed it. His previous lawyer wrote the statement dated 3 April 2013 which again, Mr Bandhu signed.
Evidence of Mr Ulik Metohu
Mr Metohu, the applicant’s employer and proposed sponsor gave evidence that his company advertised, some eight or nine years ago, for upholsterers and furniture makers. The applicant came to the factory around this time looking for work. He is not sure if it was in response to the advertisement, although thinks so. Back then he needed to employ a few people (at the time he employed 17 people) as the business was growing. However after 2008 the furniture industry crashed and lot of manufactures left the country. For example, in furniture shows at the time there might have been 100 local manufactures, however, now all the exhibiters are importers. About 10 years ago Mr Metohu bought a shop and now sells direct to the public from Coburg. During this time he kept his best employees and the applicant was one of the youngest of these. His business is now booming as he has changed his focus from domestic products such as couches and chairs to commercial products. This is proving successful as lots of other manufacturers have left Australia. Mr Metohu needs additional staff but cannot find additional qualified or experienced staff. The applicant is no longer only an upholsterer but has learned to do frames, design and interprets drawings. He would be happy to have the applicant work for him for another 15 to 20 years and he is very important to their business. The applicant is the only person he has sponsored for a 457 visa. When the applicant first approached him for the position, like he did with other potential employees, he put him on a one week trial to determine what his skills were. He gave him a lounge to upholster and he was very happy with his work. The applicant represented himself to Mr Metohu as an upholsterer. His business only makes high quality items and Mr Metohu later taught the applicant the furniture making aspect of the business. The applicant did not give him a curriculum vitae, however, Mr Metohu told the applicant that he needed to satisfy him in some way about his experience. The applicant then took a course (by recognition of prior learning) and was awarded with a Certificate III in Upholstery. In the meantime he had been employed for a month and his work was of a high quality. The Tribunal asked Mr Metohu how he would describe the experience the applicant first brought to the position. He responded that the applicant knew how to work with all the upholstery tools and knew how to finish products, for example: doing a perfect line, cutting the fabric and turning fabric on the corners to get the correct finish. By example, when it comes to curves, the applicant knew exactly how to cut the fabric and he came to understand that the applicant knew about the job. He finished the lounge in the time he had allocated and expected. Mr Metohu said the applicant had good experience when he came to work for him otherwise he would not have employed him. He said that at the time it was easy to employ people because there were lots of course offered and the industry was booming, but many of the people who approached him had no idea of how to perform upholstery. The Tribunal noted that at the previous hearing his wife said that it would take at least one to three months to find a replacement employee with the same skill set and asked Mr Metohu if this was still his view. He said yes, however, he would love the employee to stay with the company for a long time as he knows what to do, is very skilled and knows all aspects of the factory, which he has taught him. In addition he has tried for a long time, without success, to find additional employees.
Evidence of Mr Bandhu
Mr Bandhu said the applicant started working for him in approximately 2001. They sold wooden blocks, and sometimes people would ask if they knew people who would make chairs and tables. He needed people and that is how they met. The applicant came to the shop with his friend to buy some wooden blocks and asked for work; he is in furniture making and does a good job. Mr Bandhu saw his work; he went to the customer’s houses were he was working and he was doing an excellent job, so he started sending more customers to him. The applicant worked at clients’ houses. Mr Bandhu negotiated the price himself; he used to make a date and talk with the clients and then decide the price based on an approximate estimate of the work time required. He paid the applicant cash based on the work which was about 25%. Mr Bandhu had lots of people, including other upholsterers and furniture makers working for him, at the same time. In any one year he probably gave the applicant 10 or 12 jobs, or perhaps a maximum of 15 jobs. He did not know the applicant or his father before he employed him. Mr Bandhu confirmed that the applicant wrote the letters of 2007 and 2011 and he signed these. He said he knew what was written in the letters because it was based on what he did, and he did a good job and was a good boy. When asked about the typed two page statement he wrote and/or signed after the DFAT officers visited him in March 2013, Mr Bandhu said he cannot write English and was not able to say who wrote this. Mr Bandhu confirmed his recollection that he is sure four officers visited him. He said the applicant worked for him in no role other than as an upholsterer.
Asked to explain the statement in his letter (written at the time of the site visit), ‘I further certify that Mr Sukhwinder Singh has never worked with our business’, Mr Bandhu said he did not recognise the applicant from either the photo or the name they used. He said there is a very big difference between a man in a turban and a man not in a turban. He said he thought they were talking about a different person.
Invited to respond to Mr Bandhu’s witness evidence, the applicant said Mr Bandhu knew him by the name of ‘Kahma’, not by his formal name of Sukhwinder Singh, and a support reference provided by a previous client (Mr Satvir Singh) also referred to him by the name ‘Kahma’. This is the name Mr Bandhu knew him by and the name he used in his local area. The applicant said he did not start with Babu Ram in 2001 but in 2002. The applicant also clarified that he did not write the statement following the visit of the DFAT officers; his old lawyer wrote it. The applicant believes there was a big misunderstanding due to the picture shown to Mr Bandhu not looking like he did when he worked for him and because he was known by a different name.
The definition of ‘information that is false and misleading in a material particular’ in cl.4020(5)(a) requires the information to be false or misleading at the time it is given. In Kaur v MIBP, the Federal Court observed that in contrast to the requirement in the same definition that the information be ‘relevant to any criteria’, which has no temporal element (and may be tested and addressed at any time), it was clear from the express terms of cl.4020(5)(a) that this question must be addressed at the time the information is given.[1]
[1] [2014] FCA 281 (Wigney J, 27 March 2014). See also Sharma v MIBP [2014] FCCA 2821 (Judge Cameron, 9 December 2014) at [30] which, while not referring expressly to Kaur, turned crucially on the time the false or misleading information was given – in that case, at a time when TRA had not yet been specified as a relevant assessing authority.
However, while it is not necessary for a visa applicant to know of, or be directly involved in, any falsehood for PIC 4020 to be engaged, an element of fraud or deception by some person is necessary to attract the operation of the provision – that is, the relevant information or document needs to be purposely untrue in that there must have been knowledge or intention on somebody’s part.[2]
[2] Trivedi v MIBP (2014) 220 FCR 169 at [28], [33] and [49].
Whether or not particular conduct is misleading is a question of fact to be determined having regard to the context in which the conduct takes place and the surrounding facts and circumstances. The question as to whether or not conduct is misleading is to be approached by asking what a reasonable person, of the class to which the conduct was directed, reasonably understands from the conduct.[3] Ultimately however, it is a question of fact for the decision maker to determine, subject to the boundaries of reasonableness.[4] Thus, there is no requirement that the information in question has in fact misled anybody and it may be the case that the information is ‘objectively’ false or misleading.[5] However, an element of fraud or deception by somebody is also necessary in order to attract the operation of PIC 4020.[6]
[3] Kaur v MIMAC [2013] FCCA 933 (Judge Driver, 23 August 2013) at [63]. Undisturbed on appeal: Kaur v MIBP [2014] FCA 281 (Wigney J, 27 March 2014).
[4] In Kaur v MIMAC [2013] FCCA 933 (Judge Driver, 23 August 2013) at [64], the Court found that it mattered not whether or not the relevant assessing authority was in fact misled by the document in question. Rather it was sufficient that the document was objectively misleading. Undisturbed on appeal: Kaur v MIBP [2014] FCA 281 (Wigney J, 27 March 2014).
[5] Kaur v MIMAC [2013] FCCA 933 (Judge Driver, 23 August 2013) at [65]. Undisturbed on appeal: Kaur v MIBP [2014] FCA 281 (Wigney J, 27 March 2014). In Singh v MIBP [2014] FCCA 510 (Judge Emmett, 18 March 2014) the applicant provided a letter of reference to TRA which was found to have erroneously stated that the applicant worked 900 hours. In these circumstances the Court held it was open for Tribunal to find that the applicant did not satisfy cl.4020(1)(a) on the basis the letter of reference submitted to TRA was false and misleading.
[6] Trivedi v MIBP (2014) 220 FCR 169 at [33].
After considering all of the evidence before it and having had the opportunity to speak with the applicant, his current employer and proposed sponsor, and his former employer in India at length during the hearing, the Tribunal has arrived at the conclusion that, while the letters signed by Mr Bandhu dated 1 July 2007 and 15 September 2011 infer that the applicant was continually in the employment of Babu Ram Jangra & Sons from 30 August 2002 to 30 June 2007, and further imply this was full time, the Tribunal reviewing the two letters in question carefully, notes that neither letter states that the applicant was employed full time or even on a permanent basis. Rather, the evidence that emerged at this hearing is that the applicant was employed on an ad-hoc, casual basis as needed, that he averaged one upholstery job each month during the period August 2002 and June 2007 and that all the upholstery work was completed in clients’ homes and commercial premises, not at the Babu Ram premises. Further, Mr Bandhu gave evidence that he also contracted several other upholsterers and furniture makes at the same time. The Tribunal notes that in fact the majority of the applicant’s upholstery work was conducted by him in his private capacity relying upon his deceased father’s customer base and word of mouth. Indeed, in retrospect, it would have been preferable for the applicant to declare to the department that he was employed as an upholsterer in his own business and that he supplemented this work with some contract work from Babu Ram. The fact that he did not do so has led to a series of complications and considerable delays. The Tribunal is satisfied that the applicant was employed on a contract, ad hoc basis by Mr Bandhu to do some upholstery work as requested by his customers who purchased wood and enquired about furniture making and upholstery services, and that he was paid in cash by Mr Bandhu for these jobs. It further accepts that the applicant learnt his trade from an early age by working with his father and that he took over his father’s clients when his father died when the applicant was in the final year of his schooling.
In relation to the DFAT officers’ site visit, the Tribunal accepts that a small photo taken at a different stage of a person’s life and without a turban can make a person look quite different and this, combined with the fact that Mr Bandhu knew the applicant by the name ‘Kahma’ rather than by his formal name, are cogent reasons why he did not recognise the applicant five and a half years after he ceased performing casual work for his business. Mr Bandhu’s inability to recognise the applicant via a small photo and by a different name would perhaps be unlikely had the applicant been employed full time for an extended period, but the evidence is to the contrary: the applicant was just one of many casual people employed on an ad-hoc basis as needed.
In addition to these reasons, The Tribunal places great weight on the consistent evidence of the applicant’s current employer, Mr Ulik Metohu, who has employed the applicant for 10 years. Mr Metohu’s evidence was that he employed him on the basis of his demonstrated skills during a one week work trial and that he is an accomplished and valued employee. Mr Metohu has consistently given evidence about the applicant’s skills as an upholsterer; skills he would not have been able to acquire had he not genuinely been working as an upholsterer in India, as he did not do any upholstery course after arriving in Australia. Further supporting the applicant’s skills he was certified as having achieved a Certificate III in Upholstery based purely on the recognition of his prior learning and knowledge as an upholsterer.
After considering all of the evidence before it and finding the explanations of both the applicant and Mr Bandhu to be feasible, the Tribunal has arrived at the view that there was not the requisite element of fraud or deception by the applicant necessary to attract the operation of this provision of PIC 4020(1) and while the letters the applicant wrote for Mr Bandhu to sign did not fully explain the limited nature of his casual employment, it is satisfied there was neither the knowledge or intention on the applicant’s part to provide information that was false or misleading in a material particular.
Therefore, the applicant meets PIC 4020(1).
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(1)?
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 three 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). As there is no evidence that the applicant has ever had a visa refused on the basis of a failure to satisfy PIC 4020(1) (other than in the matter now under review), PIC 4020(2) is met.
Has the applicant satisfied the identity requirements?
PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity. There is no evidence of any identity concerns raised in relation to the applicant or any information of this type before the Tribunal. Therefore, the applicant meets cl.4020(2A).
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?
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).
There is no evidence before the Tribunal to indicate that the applicant has been refused a visa because of a failure to satisfy PIC 4020(2A). Therefore the applicant meets PIC 4020(2B).

On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl.457.224.
DECISION
The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 457 (Business (Long Stay)) visas:
·Public Interest Criterion 4020 for the purposes of cl.457.224 of Schedule 2 to the Regulations.
Karen Synon
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.
…