SOODA (Migration)

[2017] AATA 1902

SOODA (Migration) [2017] AATA 1902 (22 September 2017)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Darshan SOODA
Mrs Deeksha Nagesh ATTAVAR

CASE NUMBER:  1619826

DIBP REFERENCE(S):  BCC2015/2540877

MEMBER:Katie Malyon

DATE OF DECISION:  22 September 2017

DATE CORRIGENDUM

SIGNED:27 September 2017

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

1.    At paragraph 33, the words ‘Ms Deeksha Attavar has worked as a Computer Programme with house from June 15, 2012 to January 15, 2014’ should be replaced with ‘Ms Deeksha Attavar has worked as a Computer Programmer with us from June 15, 2012 to January 15, 2014.’

2.    At paragraph 50, the words ‘She was paid in cash Rs.15,0000 rupees on a monthly basis’ should be replaced with ‘She was paid in cash Rs.15,000 rupees on a monthly basis.’

Katie Malyon
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Darshan Sooda
Mrs Deeksha Nagesh Attavar

CASE NUMBER:  1619826

DIBP REFERENCE(S):  BCC2015/2540877

MEMBER:Katie Malyon

DATE:22 September 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Skilled Independent (Permanent) visas for reconsideration, with the direction that the applicants meet the following criteria for Subclass 189 - Skilled - Independent visas:

·the first named applicant meets Public Interest Criterion 4020 for the purposes of cl. 189.215(1) of Schedule 2 to the Regulations;

·the first named applicant meets Public Interest Criterion 4020 in respect of the second named applicant for the purposes of cl.189.215(3) of Schedule 2 to the Regulations; and,

·the second named applicant meets Public Interest Criterion 4020 for the purposes of cl.189.312(1) of Schedule 2 to the Regulations.

Statement made on 22 September 2017 at 9:54 am

CATCHWORDS
Migration – Skilled Independent (Permanent) visa – Subclass 189 – Public Interest Criterion 4020 – Bogus document or information that is false or misleading – Compassionate or compelling circumstances that justify waiver of requirements

LEGISLATION
Migration Act 1958, ss 5(1), 65, 359AA, 375A

Migration Regulations 1994, r 1.03, Schedule 2, cl 189.215, cl 189.312, Schedule 4, PIC 4020

CASES

Batra v MIAC [2013] FCA 274

Plaintiff M64/2015 v MIBP [2015] HCA 50

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 November 2016 to refuse to grant the applicants Subclass 189 Skilled Independent (Permanent) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 1 September 2015. The delegate refused to grant the visas on the basis that the first named applicant, Indian national Mr Darshan Sooda, did not satisfy the requirements of cl.189.215 of Schedule 2 to the Migration Regulations 1994 (the Regulations) as the delegate was not satisfied that each member of his family unit included in his application satisfies Public Interest Criterion (PIC) 4020.  Essentially, the delegate refused Mr Sooda’s Subclass 189 visa application because Department records show his wife, the second named applicant Mrs Deeksha Nagesh Attavar, had been refused a Subclass 600 Visitor visa on 14 August 2013 (the First Visitor visa) for failing to meet PIC 4020 because she provided fraudulent documents in support of her First Visitor visa application.  As a result, Mr Sooda did not meet PIC 4020(2) in the period starting 3 years before his Subclass 189 application (which included his wife) was made. 

3. A copy of the delegate’s decision was provided to the Tribunal.  The delegate expressly notes that it is not open to the Department to revisit refusal of Mrs Attavar’s First Visitor visa as part of the couple’s Subclass 189 visa application. 

4. The applicants appeared before the Tribunal on 3 August 2017 to give evidence and present arguments.  Mr Sooda appeared in person before the Tribunal and his wife appeared by way of teleconference from India.  The Tribunal also received oral evidence from Mr Sooda’s brother, Mr Akarsha Akarsha.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.  The Tribunal notes it has the benefit of considerably more evidence than that which was available to the delegate in Australia considering the current application, including files obtained from India regarding Mrs Attavar’s prior visa applications for Australia and oral evidence from her former employer, Mr Nidish Shetty, Vice Chairman of the Shree Devi Institute of Technology (the Institute). 

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this review is whether the applicant meets PIC 4020 as required by cl.189.215(1) and cl.189.215(3) of Schedule 2 to the Regulations for grant of the visa. Broadly speaking, this is a ‘one fails, all fail’ test which requires that:

   ·there is no evidence that the primary 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: cl.4020(1); and,

   ·the primary applicant and each member of the family unit has not been refused a visa because of a failure to satisfy cl.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 (emphasis added): cl.4020(2) and (2AA); and,

   ·the applicant satisfies the Minister as to his or her identity: cl.4020(2A); and

   ·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy cl.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: cl.4020(2B) and (2BA).

7. The requirements in cl.4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: cl.4020(4). However, this waiver does not apply to the identity requirements in cl.4020(2A) and (2B). Relevant provisions from the Act and the Regulations are extracted in the Attachment to this decision.

8. In summary and having regard to the delegate’s decision referred to above, although the issue is whether Mr Sooda meets PIC 4020 as required by cl.189.215(1) the Tribunal must also make findings in relation to whether his wife meets PIC 4020 for him to meet cl.189.215 including whether application for the Subclass 189 visa has been made at least 3 years after his family unit member’s earlier visa application was refused on cl.4010(1). In the circumstances, the Tribunal has initially considered whether Mr Sooda meets PIC 4020 and then it has considered whether his wife Mrs Attavar meets PIC 4020.

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

9. The term ‘information that is false or misleading in a material particular’ is defined in cl.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 cl.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: Batra v MIAC [2013] FCA 274.

10. The requirement in cl.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: cl.4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.

11. 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.

12. There is no evidence before the Tribunal that Mr Sooda has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth the ‘bogus document‘ as that term is defined in 5(1) of the Act or ‘information that is false or misleading in a material particular’ as that term is defined in cl.4020(5) of Schedule 4 to the Regulations. Accordingly, the Tribunal finds that he meets cl.4020(1) for the purposes of cl.189.215(1) of Schedule 2 to the Regulations.

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

13. Clause 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 cl.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: cl.4020(2AA) of Schedule 4 to the Regulations.

14. There is no evidence before the Tribunal that Mr Sooda has been refused a visa in the relevant period because of a failure to satisfy PIC 4020(1). 

15. However, as noted in the delegate’s decision, on 14 August 2013 Mrs Attavar was refused her First Visitor visa.  The delegate refused Mr Sooda’s Subclass 189 visa application on the basis that his wife had failed to meet PIC 4020 because she provided fraudulent documents in support of her First Visitor visa application and, on that basis, found Mrs Attavar did not satisfy PIC 4020(2). 

16. As noted above, the Tribunal has the benefit of considerably more evidence than that which was available to the delegate in Australia considering the current application.  This included files obtained from India regarding Mrs Attavar’s prior visa applications for Australia.  Having considered information in the files from India it is clear to the Tribunal that Mrs Attavar’s First Visitor visa was not refused on the basis that she had provided fraudulent documents: rather, her First Visitor visa was refused on the basis that she provided inconsistent information in a telephone conference with the case officer.  In the interests of thoroughness and justice the Tribunal has considered Mrs Attavar’s immigration history in some detail. 

    Background

17. By way of summary, Mrs Attavar has made 5 applications for visas for Australia of which 3 have been refused, including the current Subclass 189 application under review, because she failed to meet PIC 4020.  Mrs Attavar’s First Visitor visa application was refused on 14 August 2013, that is, within 3 years of the date of Mr Sooda’s current Subclass 189 visa application (including his wife) was lodged on 1 September 2015.  Following refusal of her First Visitor visa application, Mrs Attavar has had 2 applications for Visitor visas approved: the first in November 2013 and another in June 2015.  Visa grant in both of these cases was facilitated on the basis of exercise of the waiver provisions in PIC 4020(4). 

18. It is necessary to consider each of Mrs Attavar’s visa applications in chronological order to understand the history of the issue at the heart of this review, namely, whether Mrs Attavar meets PIC 4020(1) and PIC 4020(2) and, if not, whether the waiver provisions in PIC 4010(4) should be engaged.  Based on the Tribunal’s examination of the Department’s files from India, it is clear that later files contain references to her providing fraudulent documents, that is, a fraudulent employment letter from the Institute.  However, no such findings were made in relation to Mrs Attavar’s First Visitor visa application, or indeed her second Visitor visa which contains an almost identical letter from her employer, the Institute.  Furthermore, the Tribunal notes its examination of the Department’s files raises serious doubts in relation to the basis of the original findings in relation to her First Visitor visa regarding her failure to meet PIC 4020(1). 

    (1)  First Visitor visa application – lodged 8 August 2013

19. Mrs Attavar first applied to come to Australia on 8 August 2013.  She applied for a Subclass 600 Visitor visa application for the express purpose of accompanying her parents to visit her Australian citizen sister and 7 year old niece (whom she had never seen) in Melbourne.  Her niece was barred from leaving Australia due to a Family Court Order.  In support of her application, Mrs Attavar lodged a letter from the Institute signed by the Vice-Chairman, Mr

    Shetty, dated 31 July 2013 (the Institute’s First Letter) which states:

    This is to certify that Ms Deeksha Nagesh Attavar has been working with us since June 15, 2012 and her current designation is Computer Preogrammer (sic).  She is drawing a monthly salary of Rs.15,000/– (Rupees fifteen thousand only).  Her leave for the period from September 11, 2013 to November 28, 2013 has been approved for her travel along with her parents to Australia to visit her sister.

20. Mrs Attavar’s First Visitor visa application was refused on 14 August 2013 on the basis that she did not satisfy PIC 4020(1) because of inconsistent oral evidence given during a telephone conversation with a case officer regarding her employment in India.  In refusing the application, the delegate stated:

    Decision

    Generally, offers of support or guarantees given by family and friends in Australia are not sufficient evidence of a genuine visit.  The onus is on the applicant to satisfy the decision-maker that he or she intends to only visit Australia. 

    Regarding your personal circumstances, I note you have claimed to be employed as a computer programmer with Shree Devi Institute of Technology and have provided a letter in support of that.

    The department conducted an interview wherein you mentioned that you are employed with the Shree Devi Institute of Technology on a full-time basis.  On further probing you admitted that you are known to the Dean of the Institute; your job does not demand you be employed with the institute on a full time basis and that your salary is not paid on a monthly basis.

    You had contradicted your own statements and the information as per the document provided by you.  This leads me to conclusion (sic) that your expressed intention to only visit Australia is not genuine.

    As I have assessed that you do not satisfy Public interest criteria (PIC) 4020 therefore I am not satisfied you meet clause 600.213 in Schedule 2 of the Regulations. As you do not meet one or more clauses in Schedule 2 of the Regulations, I find that you do not meet the criteria for the grant of a VISITOR (Class FA) VISITOR (Subclass 600) visa lodged at New Delhi.

21. The Tribunal notes that its examination of the Department’s file confirms there is no record of any enquiries being made to the Institute and, importantly, no findings were made in relation to the authenticity or otherwise of the Institute’s First Letter.  Furthermore, the Department’s file does not contain a Transcript of the telephone conversation made between the case officer and Mrs Attavar on 14 August 2013.  Although the delegate does not expressly state in the decision that Mrs Attavar had given false or misleading information in a material particular such that her application was refused under PIC 4020(1) all subsequent applications by Mrs Attavar has been treated by the Department as if the delegate’s findings had been made on this basis.

22. In response to Mrs Attavar sister’s emailed complaint regarding refusal of Mrs Attavar’s First Visitor visa application, a case officer states in an email dated 22 August 2013 that ‘as a lawful decision has been made on the application, it is not legally possible to revisit that decision. The option is open for the applicant to apply again’ and address the waiver provisions.  In her complaint, Mrs Attavar’s sister confirms that Mrs Attavar works at the Institute in the lab as a Computer Programmer and gets paid 15,000 per month.  She says she ‘had to start somewhere to get experience’ after returning from France (where she had undertaken a Masters degree in computer programming).  She invites the case officer to ring and speak to an authoritative individual in the College to be given the right information. 

    (2)  Second Visitor visa application – 26 August 2013

23. Within a fortnight, Mrs Attavar applied for another Visitor visa on 26 August 2013 which was granted on the basis of the waiver provisions in PIC 4020(4).  Accompanying her application were numerous documents including:

    ·a new letter from the Institute dated 23 August 2013 signed by Vice Chairman Mr Shetty (the Institute’s Second Letter) which is identical to the First Institute Letter apart from a new date and correction to the typographical error in relation to the word ‘programmer’ referred to above in para [19];

    ·Affidavit from Mrs Attavar confirming her employment by the Institute consistent with the terms of the Institute’s Second Letter and noting that the Department may wish to contact the Vice Chairman by calling the telephone number provided at the top of the letter; and,

    ·a cover letter from Mrs Attavar noting that when the case officer called to interview her on 14 August 2013 in relation to her First Visitor visa application she was driving back home from work.  She clarified her work with the Institute involves debugging and solving computer related problems at any of the Institute’s sites when called upon to do so.  Mrs Attavar also reiterated she is paid Rs.15,000 per month and, in relation to the telephone conversation with the case officer, added that ‘perhaps I did not use the right words to explain myself and I got misinterpreted. Also, I was driving back from work and did not expect such suspicious questions and got nervous. The (enclosed) letter (from the Institute) will merely repeat what I said to the case officer but in better words.’

24. In the Department’s file from India a Minute dated 30 October 2013 states in the Recommendation regarding suitability of a waiver of the exclusion period in this case that:

    ‘Applicant has provided (a) plausible explanation for the miscommunication during the telephonic conversation.  In this application she has shown employment claims from the same employer.  Also she has provided compassionate reasons for her travel to Australia to visit her sister and niece’ (emphasis added).[1] 

    [1]  N13/04001329 at f.7

25. The exclusion period was waived and, on 20 November 2013, Mrs Attavar was granted a Visitor visa for Australia.

    (3) Third Visitor visa application – 4 June 2015

26. Mrs Attavar made an application for a third Visitor visa application on 4 June 2015.  Since her last successful Visitor visa application, she had changed jobs and was required to travel to Singapore for meetings and training.  In addition to a letter from her new employer Tetherfi Technologies Pvt Limited (Tetherfi) dated 12 May 2015 confirming her employment as a Business Analyst since 2 June 2014, Mrs Attavar also provided evidence of recent pay slips from Tetherfi. 

27. A file note dated 16 June 2015 in the Department’s file from India notes that ‘Applicant was refused in August 2013 for providing fraudulent employment letter. Since 3 years exclusion period applies, letter of invitation to comment sent’[2]  (emphasis added).  The Tribunal observes that no documents in the Department’s files in relation to Mrs Attavar’s First Visitor visa application or her second Visitor visa application make any comments or findings regarding provision by her of a fraudulent employment letter from her then employer, the Institute. 

    [2]  N15/04019990 at f.89

1. In response to the Department’s invitation to comment, Mrs Attavar observes in her letter of 19 June 2015 that ‘it was a misunderstanding which was later resolved’.  Her sister echoed these comments in her response also dated 19 June 2015 in support of Mrs Attavar’s sister’s Third Visitor visa application. 

2. A further file note dated 22 June 2015 addressed to the Senior Migration Officer considering application of the waiver to PIC 4020 states as follows:

   1. Background/immigration history:
   - Applicant was refused with PIC 4020 in August 2013 for providing fraudulent employment letter and exclusion period for 3 years applies till 14/08/2016 (emphasis added).
   - She was granted a visitor visa in November 2013 when she supplied information to meet her sister who is an Australian citizen and is also a single parent. 
   - Inviter’s daughter is a minor and she has no right to visit India after her divorce.
   - Compelling and compassionate circumstances were noted by CO.

   2.  Nature of false or misleading information and/or bogus document:
   - Employment documents and subsequent to interview with contradictory information was supplied by the applicant.
   - currently she has changed her job and salary credits in bank with an NOC from new company sighted.

   3.  Circumstances surrounding the giving of the false or misleading information and/or bogus document
   - During previous application, applicant admitted that she is known to the Dean of the Institute where she claimed she was employed and she is paid as per the work she delivers.

   4.  Claims put forward by the applicant regarding compelling or compassionate circumstances affecting an Australian citizen, permanent resident, eligible New Zealand citizen or Australia’s interests (please attach statement provided by the client)
   

   [3]  N15/04019990 at f.87

   - Applicant intends to visit her sister as she has moved to a new house.[3]

3. As noted above, no documents in the Department’s file in relation to Mrs Attavar’s First Visitor visa application record findings regarding provision by her of a fraudulent employment letter.  It is the view of the Tribunal that, significantly, no such findings were made in the context of her second Visitor visa application when she lodged the Institute’s Second Letter in support of that application and, as observed above in para [23], the Institute’s Second Letter is identical to the Institute’s First Letter apart from the change of date as well as correction of the typographical error in the first letter. 

4. The decision record in relation to Mrs Attavar’s third Visitor visa application notes PIC 4020 was waived and the visa was granted on 22 June 2015. 

   (4) Subclass 189 visa application – 1 Sept 2015

5. Mr Sooda lodged an expression of interest to apply for a Subclass 189 visa application on 22 May 2015. He received the invitation to apply on 6 July 2015 and lodged his application on 1 September 2015. Because his Subclass 189 visa application included his wife and the application was lodged within 3 years of refusal of Mrs Attavar’s First Visitor visa the Subclass 189 application was refused. As noted above, the delegate was satisfied that PIC 4020(2) was not met because the departmental records indicate Mrs Attavar provided fraudulent documentation in an application for a visitor visa lodged in New Delhi. As a result, the delegate found that Mr Sooda did not meet cl.189.215 of Schedule 2 to the Regulations. It is this decision which is the subject of the Tribunal’s review.

6. In support of her husband’s Subclass 189 visa application, Mrs Attavar lodged a number of documents including a new letter from Mr Shetty, Vice Chairman of the Institute, dated 9 April 2016 ((the Institute’s Third Letter).  The letter states:

   ‘It has been brought to my notice that there has been a miscommunication regarding Deeksha’s past work experience with us, which then lead to a visitor visa refusal in mid-2013.  However, the case was revisited and her visitor visa was granted later that year. 

   This is to reconfirm that Ms Deeksha Nagesh Attavar has worked as a Computer Programme with house from June 15, 2012 to January 15, 2014.  I assure you of the genuineness of this document. 

   Please feel free to contact me regarding any clarification.’

7. Whilst acknowledging receipt of the supporting documents including the Institute’s Third Letter, the delegate’s decision notes it is not open to the Department to revisit refusal of Mrs Attavar’s First Visitor visa as part of the current Subclass 189 application.

   (5) Fourth Visitor visa application – 31 January 2017

8. Mrs Attavar made application for a fourth Visitor visa application on 31 January 2017.  She did so with the assistance of a registered migration agent based in India.  Application was made for 12 month visit to Australia from 28 February 2017 to 27 February 2018. 

9. Although the application was lodged outside the 3 years following refusal of her First Visitor visa application on 14 August 2013, Mrs Attavar was unemployed at that time and, having regard to the period of stay as well as Mrs Attavar’s employment status, the delegate refused the application on the basis that she had not established intentions of being a genuine visitor. 

   Hearing

10. At the commencement of the hearing, Mr Sooda provided the Tribunal with assorted documentation including, relevantly:

    ·     further copies of the Institute’s First Letter, the Institute’s Second Letter and the Institute’s Third Letter; and,

    ·     an Experience Certificate provided by the Institute to Mrs Attavar dated 15 January 2014 certifying her work with the Institute as a Computer Programmer and detailing her duties.  This was provided to Mrs Attavar when she left employment with the Institute on 15 January 2014 prior to commencing work with Tetherfi.

11. The Tribunal noted at the outset that the Department’s file contains a Certificate issued pursuant to s.375A of the Act (s.375A Certificate) which relates to one document that contains information and evidence of Departmental processes. It also noted the effect of a s.375A Certificate is that the Tribunal is prohibited from disclosing to anyone the information or document in the Department’s file which are the subject of the certificate. The Tribunal observed that the gist of information the subject of the s.375A Certificate related to the registered migration agent who assisted Mrs Attavar with her fourth Visitor visa application lodged on 31 January 2017. The Tribunal informed Mr Sooda and Mrs Attavar that the nature of the information covered by the s.375A Certificate is irrelevant to the Tribunal’s consideration of whether Mrs Attavar had provided false or misleading information or a bogus documentation to the Department in relation to Mrs Attavar’s First Visitor visa application – or in any subsequent visa application - and, accordingly, the Tribunal has had no regard to the information the subject of the s.375A Certificate in its consideration of the issue under review. Mr Sooda and Mrs Attavar made no comments in response to the Tribunal’s invitation to comment on the validity of the s.375A Certificate.

12. The Tribunal noted that, in anticipation of the hearing, it had contacted Mr Shetty to discuss with him the particular issues outlined in the letter refusing Mrs Attavar’s First Visitor visa since this had been the reason why both her First Visitor visa application and the current Subclass 189 visa application were refused.  Further, it was the reason the Department had needed to consider the appropriateness of a waiver of PIC 4020 criteria to grant both her second and third Visitor visa applications to Australia. 

13. Asked about her role at the Institute and how she secured the job, Mrs Attavar told the Tribunal that Mangalore is a smallish town and, basically, everyone knows each other.  Her father knew Mr Shetty’s father and so she managed to secure an interview after coming back from France where she had completed her Masters degree in programming.  Mrs Attavar said the Institute has multiple campuses but she was based at the Computer Science Department and was required to maintain lab and computer support for classes as well as train lab assistants and then assist in any way that the Institute’s students required.  She added that, although she was based with the Computer Science Department, she was on standby at all times to service other campuses, as required.  This included students studying courses such as Interior Design and Hotel Management. 

14. Questioned about the telephone call from the delegate Mrs Attavar told the Tribunal that, having spent the day working at the Institute, she had gone out.  It was the day before Indian Independence Day on 15 August and so classes had finished a bit earlier than usual.  She was driving when the case officer called and spoke to her on loudspeaker whilst driving - she added this is permitted under Indian law.  Mrs Attavar said that, at the beginning of the conversation, the case officer told her that she had called the Institute and the document provided about her employment was ‘bogus’ so she was ‘going to ban’ her unless she ‘told the truth’.  Mrs Attavar said she denied it saying ‘No!’  The case officer did not say with whom she had spoken and Mrs Attavar told the Tribunal that she did not have the presence of mind to ask about this, because she really did work there.  She had just finished working there for the day.  The case officer appeared to her to be rude. 

15. The Tribunal then spent some time discussing with Mrs Attavar the 3 inconsistencies raised by the delegate that resulted in refusal of her First Visitor visa application on the basis that she did not satisfy PIC 4020.  As indicated above, the decision makes no reference to Mrs Attavar lodging a bogus document.  Nor does it make reference to a telephone conversation between the case officer and anyone at the Institute.  Furthermore, there is no file note of the case officer’s telephone conference with Mrs Attavar, or anyone at the Institute.

16. First, the delegate states that Mrs Attavar had indicated that she was known to the Dean of the Institute.  Mrs Attavar explained the term Dean is interchangeable with Vice Chancellor. 

17. The Tribunal observed that this did not present a concern to the Tribunal as it expected most employers would know their staff.   Mrs Attavar told the Tribunal that, in 2013 when she was at the Institute, there were about 300 staff working there.  This was confirmed by Mr Shetty in his conversation with the Tribunal the day before the hearing: he said there are currently about 350 staff working for the Institute.  Mr Shetty also told the Tribunal that after Mrs Attavar returned from France she really did not know what to do.  Her family were family friends of Mr Shetty and so he offered her employment for a short period of time, which eventually extended for 18 months from 15 June 2012 to 15 January 2014. 

18. In light of the explanations provided by Mrs Attavar and Mr Shetty, the Tribunal has no concerns in relation to the fact that Mrs Attavar told the case officer that she knew the Dean.  Had she said she did not know the Dean, she would have been providing false information. 

19. Second, the delegate states that, in her interview, Mrs Attavar said she was employed with the Institute on a full-time basis but, on ‘further probing’, she admitted her job does not demand that she be employed with the Institute on a full-time basis. 

20. Mrs Attavar told the Tribunal that when the Institute was in session she worked full-time but, when students were on vacation – that is, when the Institute was not in session - she was called upon to come into work only when required.  Mrs Attavar told the Tribunal that, prior to a semester, she ‘would be called in to prep the labs and check that everything was all working but, for the most part, when the Institute was on vacation’ she was ‘mostly on leave’.  This was independently confirmed for the Tribunal in its conversation with Mr Shetty.  He told the Tribunal that Mrs Attavar worked full-time but, when students are on study breaks, most staff are also given holidays.  He added that while Mrs Attavar worked full-time there were extended holiday periods during the time that she worked with the Institute. 

21. The Tribunal accepts that Mrs Attavar worked full-time at the Institute and that during vacation periods along with other staff she would be afforded the opportunity to take a holiday.  The Tribunal is satisfied that Mrs Attavar’s explanation to the case officer during her telephone conversation is not inconsistent with the statement that she worked full-time. 

22. Third, the delegate states that Mrs Attavar had said her salary was ‘not paid on a monthly basis’.  By contrast, the Institute’s Frist Letter states that she is drawing a monthly salary of Rs.15,000/-‘. 

23. Mrs Attavar told the Tribunal that she was paid on a monthly basis, usually on the first day of each month. She told the Tribunal that she was also paid during vacations except when she went on a holiday. Mr Shetty told the Tribunal that Mrs Attavar was paid monthly. He noted that, while she worked full-time, when students had their study breaks the Institute staff would also be given vacation so that, while Mrs Attavar worked full time, there were extended holiday periods. He added she would be paid for the work she had done. The Tribunal considered whether Mr Shetty’s statement that Mrs Attavar was paid for the work she had done was inconsistent with being paid on a monthly basis. It put this inconsistency to Mrs Attavar pursuant to s.359AA of the Act. Mrs Attavar requested a short adjournment and told the Tribunal when the hearing was resumed that she was paid in cash Rs.15,0000 rupees on a monthly basis and the only time that she did not get paid was when she took holiday leave such as that planned to visit Australia. The Tribunal does not find any inconsistencies in the evidence provided by Mrs Attavar and Mr Shetty to the Tribunal or any inconsistencies with statements in the First Institute Letter.

24. The Tribunal asked Mrs Attavar why the delegate states in the decision record refusing her First Visitor visa that she had told the case officer she was ‘not paid on a monthly basis’.  Mrs Attavar told the Tribunal that she is ‘not sure how that statement could have been provided’.  She re-iterated that she ‘did not say that to the case officer’: rather, she had told the case officer she was paid monthly because that is how she was paid.  At the time of the conversation, she had been at the Institute for more than 12 months following her return from France so was well aware of how she was paid.

25. Having regard to the absence of any file note of the case officer’s telephone call to Mrs Attavar on 14 August 2013 and in light of consistent evidence provided by both Mrs Attavar and Mr Shetty - not only in his oral evidence to the Tribunal in anticipation of the hearing but in the Institute’s First Letter, the Institute’s Second Letter and the Institute’s Third Letter - in relation to payment of Mrs Attavar’s salary whilst working at the Institute, the Tribunal is not satisfied that Mrs Attavar provided the Department with inconsistent information regarding payment of her salary.

26. By way of summary, it appears to the Tribunal that there is no evidence to support the finding made by the delegate considering Mrs Attavar’s First Visitor visa application that she had provided false and misleading information.  It is unfortunate that Mrs Attavar did not seek review of refusal of her First Visitor visa. 

27. While the Department’s file in relation to Mrs Attavar’s third Visitor visa application lodged 4 June 2015 notes that her First Visitor visa application was refused for ‘providing fraudulent employment letter’ the Tribunal observes that there is no such finding by a delegate in any decision in respect of either Mrs Attavar’s first or her second Visitor visa applications.  Following refusal of her First Visitor visa application on 14 August 2013, Mrs Attavar lodged a further application for a Visitor visa application within a fortnight.  In support of her second Visitor visa application, she lodged the Institute’s Second Letter which, as noted above, is identical to the Institute’s First Letter apart from the date and the correction to the typographical error.  If the Department had concerns regarding the lodgement of a fraudulent employment letter from the Institute in the context of Mrs Attavar’s First Visitor visa application, it would have been open to the Department to refuse her second Visitor visa application on that same ground.  This did not occur and, as noted by the Department when Mrs Attavar’s sister complained about the decision regarding her First Visitor visa application, the case officer observed it was not open to the Department to revisit its decision regarding the first application.  This is consistent with the Department’s Policy and Procedure Manual 3: once made, decisions are final.[4]  The Tribunal notes that the Institute’s Third Letter and Mr Shetty’s evidence to the Tribunal merely confirm evidence available to the Department in support of Mrs Attavar’s First Visitor visa application.  The Tribunal finds that Mrs Attavar has not given, or caused to be given, a bogus document to the Minister.

    [4] made, decisions are final"

28. The fact remains that her First Visitor visa application was refused on the basis of failure to satisfy PIC 4020(1) and that has had an enduring effect for 3 years until 14 August 2016. Accordingly, Mrs Attavar does not meet cl.4020(2) of Schedule 4 to the Regulations.

    Should the requirements of cl.4020(1) or (2) be waived?

29. The requirements of cl.4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in r.1.03 of the Regulations), that justify the granting of the visa.

30. The expressions ‘compelling circumstances’ and ‘compassionate or compelling circumstances’ are not defined for these purposes.  To be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied: see Plaintiff M64/2015 v MIBP [2015] HCA 50. The ordinary meaning of ‘compassionate’ relates to feelings of sympathy, sorrow, pity or concern for others.

31. Following the hearing, Mr Sooda’s brother Akarsha and Mrs Attavar’s sister, Divyamani Nagesh Attavar, provided information to show why the requirements of PIC 4020 should be waived.  Both Mr Akarsha and Divyamani Attavar also provided certified copy evidence of their Australian citizenship. 

32. Mr Akarsha expresses concern for Mr Sooda and Mrs Attavar regarding the uncertainty that refusal of Mrs Attavar’s First Visitor visa has created.  He points out that both his brother and Mrs Attavar are highly educated with double degrees in their respective fields of study but this process has put a standstill to their careers and kept them apart.  He said it really saddens him to see the effect on his brother.  It has also caused both him and his family to go through a very stressful phase of their lives. 

33. Divyamani Attavar notes that she has been living in Australia for the past 14 years and, in that time, her sister has visited just twice.  Her daughter will be 12 years old this year and has not had the benefit of a family get-together with her grandparents and her aunt.  She notes that Mr Sooda and Mrs Attavar have been married for over 2 years now and still not able to live together.  She says it is heartbreaking to see the 2 of them going through this and it is emotionally affecting her entire family.  Divyamani Attavar says that she has been hoping every year for the last 4 years that she will be able to have her entire family visit her in Australia to celebrate her daughter’s birthday: however, Mrs Attavar’s visa problems have carried on for all this time and has put all their lives on hold.  She said the last time she planned a family holiday was 4 years ago but, given refusal of Mrs Attavar’s First Visitor visa and then the processing delays for her second Visitor visa, only her parents were able to visit for her daughter’s birthday in 2013.  She is just longing for a family reunion to celebrate her daughter’s birthday. 

1. In her supporting statement regarding Mrs Attavar’s request for waiver in connection with her second Visitor visa application, Divyamani Attavar states that she is unable to travel to India with her daughter as her daughter is the subject of a Family Court custody order which precludes her leaving Australia.  As a result, there is no choice but to hope her family can come to Australia.  

2. Mr Sooda and Mrs Attavar have also made submissions that there are compelling or compassionate circumstances which justify granting the visa, namely, the fact that the exclusion period was previously waived on 2 occasions when Mrs Attavar applied for her second and third Visitor visas. 

3. The Tribunal is satisfied that there are compelling or compassionate circumstances within the meaning of PIC 4020(4)(b) which justify granting of the visa within 3 years after refusal of Mrs Attavar’s First Visitor visa. The first and principal reason is that the Department has already decided on 2 occasions that there were compelling or compassionate circumstances which justified the grant of a visa to Mrs Attavar. Those circumstances have not changed. The Tribunal has also considered the apparent injustice suffered by Mrs Attavar in terms of the quality of the refusal decision regarding her First Visitor visa as it has impacted her sister and her niece in Melbourne, in particular, the inability of Divyamani Attavar to facilitate a family reunion to celebrate any of her daughter’s birthdays to date. The Tribunal sympathises with Divyamani Attavar’s circumstances and acknowledges the stress experienced by both Divyamani Attavar and Mr Akarsha arising from refusal of Mrs Attavar’s First Visitor visa application. For these reasons, the Tribunal is satisfied that there are compassionate or compelling circumstances that affect the interests of an Australian citizen such that the requirements of cl.4020(2) of Schedule 4 to the Regulations should be waived.

   Has the applicant satisfied the identity requirements?

4. Clause 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.

5. Mr Sooda has produced identity documents, including a copy of his Birth Certificate.  He has satisfied the Tribunal as to his identity.  Mrs Attavar has produced identity documents, including a copy of her Birth Certificate.  She has satisfied the Tribunal as to her identity.

6. Therefore, the applicants meets cl.4020(2A) of Schedule 4 to the Regulations.

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

7. 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).

8. There is nothing in the evidence before the Tribunal to suggest that Mr Sooda or Mrs Attavar has ever been refused a visa because of a failure to satisfy the identity requirements in cl.4020(2A). Therefore the applicants meet the requirements in cl.4020(2B)

9. On the basis of the above, the Tribunal is satisfied that Mr Sooda meets PIC 4020 for the purposes of cl.189.215(1) of Schedule 2 to the Regulations. The Tribunal is also satisfied that Mrs Attavar meets PIC 4020 for the purposes of cl.189.312 of Schedule 2 to the Regulations. In the circumstances, the Tribunal is also satisfied that Mr Sooda meets cl.189.215(3) of Schedule 2 to the Regulations in relation to the requirement that each member of his family unit included in the application must satisfy PIC 4020

10. Given the findings above, the appropriate course is to remit the application to the Department to consider the remaining criteria for grant of the visa.

    DECISION

11. The Tribunal remits the applications for Skilled Independent (Permanent) visas for reconsideration, with the direction that the applicants meet the following criteria for Subclass 189 - Skilled - Independent visas:

    · the first named applicant meets Public Interest Criterion 4020 for the purposes of cl.189.215(1) of Schedule 2 to the Regulations;

    · the first named applicant meets cl.189.215(3) of Schedule 2 to the Regulations in relation to the requirement that each member of his family unit included in the application must satisfy Public Interest Criterion 4020; and,

    · the second named applicant meets Public Interest Criterion 4020 for the purposes of cl.189.312 of Schedule 2 to the Regulations.

    Katie Malyon
    Member

    ATTACHMENT
    Extracts from the Migration Act 1958 and the Migration Regulations 1994

    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. 

    …

    
    Migration Regulations 1994

    Schedule 2

    Part 189 – Subclass 189 – Skilled – Independent 

    189.2  Primary criteria

    Note     The primary criteria for the grant of a Subclass 189 visa must be satisfied by at least one member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.
    All criteria must be satisfied at the time a decision is made on the application.
    
    

    189.21  Criteria

    …

    189.215 (1)  The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4010, 4020 and 4021.
    
    

    (2)  If the applicant had turned 18 at the time of application, the applicant satisfies public interest criterion 4019.
    
    

    (3)  Each member of the family unit of the applicant who is an applicant for a Subclass 189 visa satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4010 and 4020.
    
    

    (4)  Each member of the family unit of the applicant who:

    (a)  is an applicant for a Subclass 189 visa; and

    (b)  had turned 18 at the time of application;

    satisfies public interest criterion 4019.
    
    

    (5)  Each member of the family unit of the applicant who:

    (a)  is an applicant for a Subclass 189 visa; and

    (b)  has not turned 18;

    satisfies public interest criteria 4015 and 4016.
    
    
    (6)  Each member of the family unit of the applicant who is not an applicant for a Subclass 189 visa:

    (a)  satisfies public interest criteria 4001, 4002, 4003 and 4004; and

    (b)  satisfies public interest criterion 4005 unless it would be unreasonable to require the member to undergo assessment in relation to the criterion.

    ….

    189.3  Secondary criteria

    Note     These criteria are for applicants who are members of the family unit of a person who satisfies the primary criteria. All criteria must be satisfied at the time a decision is made on the application.

    
    189.31  Criteria

    
    189.311   The applicant:

    (a) is a member of the family unit of a person who holds a Subclass 189 visa granted on the basis of satisfying the primary criteria for the grant of the visa; and

    (b) made a combined application with that person.
    
    

    189.312 (1) The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4010, 4020 and 4021.
    
    (2) If the applicant had turned 18 at the time of application, the applicant satisfies public interest criterion 4019.
    
    (3) If the applicant has not turned 18, the applicant satisfies public interest criteria 4017 and 4018.

    
    ….

    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.

    oOOo