Tara (Migration)

[2020] AATA 5764

Tara (Migration) [2020] AATA 5764 (11 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Anil Kumar Tara

CASE NUMBER:  1726897

DIBP REFERENCE(S):  BCC2016/2809558

MEMBER:Jennifer Cripps Watts

DATE:11 December 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Skilled Regional Sponsored (Provisional) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 489 - Skilled - Regional (Provisional) visa:

·Public Interest Criterion 4020 for the purposes of cl.489.211 of Schedule 2 to the Regulations.

Statement made on 11 December 2020 at 4:20pm

CATCHWORDS

MIGRATION – Skilled Regional Sponsored (Provisional) (Class SP) – Subclass 489 Skilled – Regional (Provisional) – false or misleading information in relation the visa application – information in work reference letter – Departmental officers verifying employment – unidentified informants – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 5(1), 65
Migration Regulations 1994, Schedule 2, cl 489.211

CASES

Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Trivedi v MIBP [2014] FCAFC 42

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration (the delegate) on 20 October 2017 to refuse to grant the applicant a Skilled Regional Sponsored (Provisional) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 24 August 2016. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.489.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate found that the applicant did not meet Public Interest Criteria (PIC) 4020 and they were not satisfied that there were compelling or compassionate circumstances that justified the grant of the visa.

3. On 2 November 2017 the applicant applied for review and provided a copy of the delegate’s decision to the Tribunal.     

4. The applicant was invited to a hearing scheduled on 8 October 2019.  A request for postponement was received and, after considering the applicant’s reasons for the request for a two month postponement, the Tribunal agreed to postpone the hearing to 7 November 2019, which was essentially to allow time for the applicant to provide additional documents in support of the review.  The postponement request was granted and, on 7 November 2019, the applicant appeared before the Tribunal to give evidence and present arguments.  

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.  The applicant was represented in relation to the review by his registered migration agent.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.489.211 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).

8. 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.

9. Relevantly, in this case, the Tribunal must be satisfied that the applicant did not give, or cause to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, information that is false or misleading in a material particular in relation to the application for the visa: PIC 4020(1).

10. Prior to the Tribunal hearing, the applicant provided additional documents, and a statutory declaration, some of which were not provided at the time of application, including: 

    a.His Hira employment contract, dated 15 January 2013, issued by Mr Saithi Singh

    b.Hira organisation chart, not dated, but indicating the applicant to be the sole Mechanical (or any) Engineer working in the Central Manufacturing Department

    c.2014-2015 Indian tax return, total salary 102,000 rupees

    d.Affidavit of Rajinder Singh who says he worked as a mechanical engineer at Hira from 2015 to 2017, from around the time the applicant says he finished up at Hira (in 2015)

    e.Employment contract between Rajinder Singh and Hira, dated June 2015, to be paid 8,500 rupees a month, cash in hand

    f.Employment contract between Vishu Luthra and Hira, dated March 2018, to be paid 10,500 rupees a month, cash in hand; plus a copy of his engineering degree

11. Information in the applicant’s statutory declaration attaching the above documents, which was sent by email on 6 November 2019, has been considered.  These matters were discussed with the applicant in detail at the Tribunal hearing.

    Post-hearing submissions and documents

12. The applicant also provided post-hearing submissions and additional documents, including

    a.An employment contract, in which it is indicated that Hira hired the applicant as a Mechanical Engineer; and his resignation letter and salary certificate;

    b.Extract from Hira’s attendance register showing the applicant’s attendance during the relevant period;

    c.Extract from Hira’s salary record book, indicating the applicant was paid a salary of INR8,500, with the comment that Hira paid salaries in cash and employees were required to sign for their salary acknowledging receipt;

    d.Description of the applicant’s duties at Hira, that are said to require a high level of technical knowledge and skill;

    e.Positive skills assessment dated 29 October 2015 from TRA, the relevant assessing authority specified in a legislative instrument, which included the applicant’s work experience at Hira as having ‘been assessed and determined relevant in support of’ the assessment outcome;

    f.What are said to be ‘recent’ photos, and a video, of Hira, with an acknowledgment by the applicant that there is no Hira signage visible;

    g.Submission that the Departmental officer who conducted the verification check at Hira viewed the applicant’s salary as low for an engineer did not take into account that the applicant was straight out of university with no experience.

13. The information that the delegate found to have been misleading in a material particular was information contained in a work reference letter provided by the applicant in support of the visa application. On this basis, the delegate found that the applicant did not meet cl.489.211 because of a failure to satisfy PIC4020.

14. The Tribunal has considered information contained in the Department and Tribunal files, together with the applicant’s oral evidence provided at the hearing and any other information considered to be relevant.

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

15. 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.

16. 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.

17. 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.

    Background

18. The applicant is an Indian national who arrived in Australia in 2015.  He had already completed a Bachelor of Technology – Mechanical Engineering in India and Master of Science in Mechanical Engineering in Scotland.  He undertook further tertiary study in Australia, and completed a Master of Renewable Energy at Murdoch University in March 2017.

19. The applicant lodged the Subclass 489 Skilled Regional Sponsored (Provisional) visa application that is the subject of this review (visa application) on 24 August 2016, in the First Provisional Visa stream; he is sponsored by a family member, his brother and (at the time of application) Australian permanent resident, Sunil Kuma Tara.  The nominated skilled occupation is Mechanical Engineer, Australian and New Zealand Standard Classification of Occupations (ANZSCO) code 233512, Unit Group 2335.

20. In the online visa application on the Department file, generated on 24 August 2016, the applicant included copies of his academic qualifications and transcripts:

    a.19 February 2015 to 17 March 2017

    Master of Renewable Energy, Murdoch University, Western Australia

    b.1 August 2009 to 30 June 2011

    Master of Science in Mechanical Engineering Glasgow Caledonian University, United Kingdom

    c.1 May 2003 to 6 January 2008

    Bachelor of Technology – Mechanical Engineering, Punjab Technical University, India

21. In support of his visa application for the Subclass 489 visa that is the subject of this review, the applicant included in the online application that, from 15 January 2013 to 1 February 2015, he was employed as a Mechanical Engineer in India.  He submitted various documents with the visa application to support his claim of work experience relevant to the nominated skilled occupation of Mechanical Engineer, at Hira, including a work reference, payslips and tax documents.

22. In around May 2017, certain checks were undertaken by an officer from the Australian High Commission New Delhi (the officer) when the visa application was being assessed.  Notes on the Department file indicate that verification was recommended, and required, relating to the applicant’s claimed period of employment at Hira, including whether it was part-time or full-time, the duties performed, salary received consistency with the market rate, various details about the person who wrote the work reference, Mr Saithi Singh, and about the company generally. 

23. The Department notes indicate that in around May 2017 the officer conducted online searches relating to Hira and details of the company were found, including fixed line and mobile phone numbers (as they appeared in the work reference) and that the contact person was Harmander Singh.  The phone numbers were called by the officer and they recorded that both went answered.  The officer records that they located and called a ‘neighbouring company’ (name provided in the Department file and which appears to be an engineering company), which the Tribunal has identified on Google Maps as being about a kilometre from Hira Industry Corporation.  They called the number and spoke to a ‘person’ and it is recorded in notes on the file that the person said that Hira existed in the ‘’vicinity’ of his business, that Hira is a company that is more than 10 years old, with around 30 to 35 workers, managed by Zeera and Harmander Singh, and that they do not hire engineers.  The person was asked if he knew of anyone by the name of the applicant (name presumed to have been provided), and he said ‘I am not sure’.

24. The officer then called the Hira landline number again.  This time it was answered, on 25 May 2017, by ‘a worker’ who, it is noted, was ‘not willing to share his name’.  But he agreed to talk to the officer.  The worker provided information to the officer, including that he had worked at Hira for six years (estimated to be from around 2011) and that the managing director was Saithi Singh, Hira is owned by Zeera and Harmander Singh, the company is about 20 years old and said that they have never had an engineer working there.  The worker was asked by the officer if he knew the applicant (name given) and the worker said ‘no, I have never heard of this name before’.

25. It is recorded in the notes of the officer in the Department file that, on the basis of the information obtained, local knowledge and past experience in similar circumstances, they concluded that there was reason to consider that the work reference may have contained fraudulent or exaggerated information relating to the applicant’s claimed employment at Hira and that the information about the applicant working at Hira, contained in the work reference, was therefore non-genuine. 

26. The non-genuine information was put to the applicant in writing, for his comment, on 30 August 2017.  In response, the applicant provided a second work reference, dated 15 September 2017, this time signed by Harmander Singh who confirms as correct the information contained in the earlier work reference (signed by Saithi Singh), including that the applicant worked at Hira as an engineer from January 2013 to February 2015.  He gives a description of the type of work the company does and states that there is a testing department where the engineer works, and that welding electrodes are tested and certified by the engineer before being despatched from the Hira factory.  He states that Hira has ISO 9001 certification.  He acknowledges that the majority of their workforce is unskilled labour supervised by engineers and that they have a high turnover of unskilled labourers, some of whom are hired on a daily basis.  Mr Harmander Singh expresses his concern that the officer did not appear to have ensured that he spoke to a staff member who was in a position to provide accurate information relating to Anil Tara.

27. Additional documents provided by the applicant in the response to the Department’s 2017 procedural fairness letter, relating to Hira, included company, GST and ISO 9001 registrations and certifications, licensing information, photographs of what is claimed to be the premises where Hira operates its business and a statutory declaration sworn by the applicant on 22 September 2017.  In his response, the applicant essentially reiterates information previously provided relating to his period of employment, relevant qualifications and the duties he performed during the claimed two plus years he worked for Hira, from 2013 to 2015.  The Tribunal has checked the duties against the ANZSCO, and the duties the applicant claims to have undertaken during the relevant period align substantially with those included in Unit Group 2335 – Engineering Professionals.

28. At the Tribunal hearing, the applicant gave oral evidence that Harmander Singh is still the CEO and investor, his wife is a silent partner, Mr Saithi Singh is still a director and that two employees, Kulvinder and Jeevan, used to work under his supervision but he is unsure whether they still worked there in 2019.  The applicant confirmed in his oral evidence that he was paid his salary in cash when he worked for Hira, which was usual for all employees, and considers that the salary, which was at the lower end of the indicative salary for an engineer at the time, was appropriate given that he had less than five years’ experience, and in fact no experience, working as an engineer.  His salary was 8,500 rupees a month and he said that if he had been five years’ experienced he would probably have been paid closer to 15,000 rupees a month because it is usual to be given pay rises as more experience is gained in the profession.

29. At the Tribunal hearing, the applicant said that when he joined Hira in 2013 he was trained by another engineer who was leaving, Mr Robin Sharma, for about three or so weeks, before the full handover.  The applicant said that, in turn, in 2015 when he was planning to leave Hira, he trained the new engineer, Mr Rajinder Singh, in the same way.  He said he believes Rajinder worked at Hira from 2015 to 2017.

30. When concluding his oral evidence at the Tribunal hearing, the applicant said that the information obtained by the officer when they spoke to the two people, at the nearby business and Hira in May 2017, is ‘totally false’.  He said that Hira had a production line and testing department, and a set line of processes.  The applicant said that the owners and directors are not technically qualified or certified and that is why they employ an engineer, to test and certify the electrodes before they leave the factory.  They rely on the advice and technical skill of the engineer.

31. The applicant was asked why the two people the officer spoke to, at the neighbouring company and Hira, would have said that there were no engineers and responded saying that the labourers don’t know who is working in the laboratory or, more specifically, that the applicant himself was working in the lab.  He was at a loss to explain why whoever the officer spoke to would say they do not know who he is.  It was put to the applicant that the staff member at Hira that the officer spoke to said they had worked there for a number of years, but said they did not know his name.  The applicant said he could not comment on why the person said that because he did not know the name of the person who said it. 

32. The Tribunal notes that the name of the person at Hira who spoke to the officer in May 2017 is not included in the Department notes.  The reason appears to be because the person said they did not wish to reveal their name.  Additionally, there is no record of the name of the person the officer spoke to at the ‘neighbouring’ company who, it is recorded, did not say they had never heard of the applicant, but that they were ‘not sure’.

33. The Tribunal has considered the information that the Department has relied on to find that the applicant did not meet PIC 4020.  The applicant can hardly be expected comment on what a person has said, or venture an opinion as to why they may have said it, if they do not know who the person is; noting that the officer has not included notes in the file indicating that they verified the identities of the people at either company, the Tribunal can give little if any credibility to the information provided.  For this reason, the information that was considered to be false or misleading in a material particular and which was put to the applicant in writing in August 2017, is nothing more than an allegation and remains an allegation; it is only suggestive of falsity.  The information, in the Tribunal’s view, is not sufficiently probative to be evidence.  The probative value of the information gathered by the officer undertaking verification checks in 2017 was also brought into question in the applicant’s post-hearing written submissions.

1. In the factual circumstances of this case, a person who has had information they provided recorded cannot have their credibility, or strength of the information, assessed if the Tribunal cannot identify who they are.  The Tribunal accepts that the information was provided, and does not question that it was accurately recorded by the officer.  However, where written information has been provided by the applicant, owners, managers or directors of Hira, the Tribunal must consider the information they have provided to have least some probative value.  There is no information or evidence before the Tribunal to suggest the owners and managers at Hira, or the applicant himself, are not credible; other than the conclusion reached by the delegate that the information the two unnamed people provided, and clarified, in writing was inconsistent with that of two unidentified people who gave information over the phone, which has no probative value. 

2. Overall, the evidence the applicant has provided is not inconsistent with the claims he has made relating to his employment with Hira, nor has his evidence been internally inconsistent, either in writing or when appearing before the Tribunal to give oral evidence.    

3. On 20 October 2017, the visa was refused because the delegate was not satisfied that the applicant’s claims relating to his employment as a Mechanical Engineer with Hira were genuine. The finding was made that the applicant gave information that was false or misleading in a material particular and that the applicant, for that reason, did not meet PIC 4020(1) and did not satisfy the requirements of cl.489.211 of Schedule 2 to the Regulations.

4. To find that false or misleading information, in a material particular (as defined in PIC 4020(5)) was provided by the applicant in relation to the visa application, the Tribunal must be satisfied that the information relating to the applicant’s claimed work experience at Hira from January 2013 to February 2015 is, on the facts, false or misleading, that it was false or misleading at the time it was given, and that at the time it was given it was purposefully misleading.  The information given can be objectively false or misleading, but there must be an element of fraud or deception present.  The Tribunal does not consider it reasonable, in the facts of this case, to conclude that the applicant provided false or misleading information, on the basis of inconsistent information provide to a Department officer by two unnamed people, and that not only was the information false or misleading but that there was fraud or deception present.

5. The Tribunal is satisfied that there is no evidence present 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, information that is false or misleading in a material particular in relation to the application for the visa.

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

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

7. PIC 4020(2) requires the Tribunal to be satisfied that the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing 3 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2AA). 

8. There is no information before the Tribunal to suggest that the applicant or any member of the family unit (as defined in r.1.12) have been refused a visa in the relevant period because of a failure to satisfy PIC 4020(1).

9. Therefore, the Tribunal is satisfied that PIC 4020(2) is met.

   Has the applicant satisfied the identity requirements?

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

11. There is no information before the Tribunal that indicates that the applicant’s identity is in question.

12. Therefore, the Tribunal is satisfied that the applicant meets PIC 4020(2A).

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

13. 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).

14. There is no information before the Tribunal indicating the applicant has previously had a visa refused because he failed to satisfy PIC 4020(2B), in the 10 years before the visa application was made and up to the time of this decision.

15. Therefore PIC 4020(2B) is met.

16. On the basis of the above, the applicant satisfies PIC 4020 for the purposes of cl.489.211.

    DECISION

17. The Tribunal remits the application for a Skilled Regional Sponsored (Provisional) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 489 - Skilled - Regional (Provisional) visa:

18. Public Interest Criterion 4020 for the purposes of cl.489.211 of Schedule 2 to the Regulations.

    Jennifer Cripps Watts
    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. 

    …