Thapaliya (Migration)

Thapaliya (Migration) [2023] AATA 2801 (30 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Prakash Thapaliya
Mrs Saraswati Upreti Thapaliya
Miss Sagarika Thapaliya
REPRESENTATIVE:  Mr Derrick Peters (MARN: 1175659)
CASE NUMBER:  2014473
HOME AFFAIRS REFERENCE(S):          BCC2018/1410579
MEMBER:Noelle Hossen
DATE:30 June 2023
PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the applications for Skilled (Residence) (Class VB) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 887 (Skilled - Regional) visas:
·Public Interest Criterion 4020 for the purposes of cl 887.213 of Schedule 2 to the Regulations
·The second named and third named applicant’s meet the criteria for Subclass 887 (Skilled Regional) Visas.

Statement made on 30 June 2023 at 5:10pm
CATCHWORDS
MIGRATION – Skilled (Residence) (Class VB) visa Subclass 887 visa – false and misleading information – applicant does not meet PIC 4020 – specified regional area –daughter is now an Australian citizen – compelling circumstances – requirements of PIC 402(1) should be waived – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, cl 887.213, Public Interest Criterion 4020

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
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 Home Affairs on 17 September 2020 to refuse to grant the applicants Skilled (Residence) (Class VB) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 26 March 2018. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl 887.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the first named applicant provided information to the Department that was false and misleading in a material. Therefore, the Delegate was not satisfied that that applicant meets Public Interest Criterion 4020.
The applicants appeared before the Tribunal on the 28 June 2023 to give evidence and present arguments.
The applicants were represented in relation to the review and provided submissions prior to the hearing which has been read and considered by the Tribunal.
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 887.213 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.
·whether there is evidence before the Tribunal that the applicant 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:
On the 26 March 2018 the applicant lodged an application for a Skilled Residence Class VB (Subclass 887) Visa. He included in his application information that the delegate of the Department found to be false or misleading. He had claimed that he worked for New Kalika International trading as T/A Shangrila Nepalese Cuisine (ABN 37 605772218) in the position as Restaurant All-rounder from December 2016 to June 2017 and from June 2017 for Himshikhar Pty Ltd T/A Crystal Nepalese Indian Restaurant and Café (ABN 90608290357) in the position of Restaurant All-rounder.
He provided 10 documents to the Department which included Pay slips, Contract of Employment from the 2 organisations, notice of assessment, Print out of ATO online services, Letters from both directors of both organisations and PAYG summaries in support of his Application.
The Delegate stated in the Decision that:
This information may be considered false and misleading due to the following:
The payslips provided:
are identical in format for both New Kalika International Pty Ltd and Himshikhar Pty Ltd
Himshikhar Pty Ltd has 10/10 in the title.
For New Kalika International Pty Ltd, list leave details however these remain at 0 hours and NA on each payslip provided. I questioned this as the contract provided indicates that you were employed by New Kalika International Pty Ltd as a full-time ongoing employer and were therefore entitled to leave and this should have been reflected on your payslip.
For Himshikhar Pty Ltd the PAYG component of these pay slips appears very high and is more than the super payment listed on these documents,
indicate that you were paid in cash for both of these positions and is therefore unable to be verified.
The Delegate said further in respect of the Contracts of Employment:
appear to be identical only having necessary information changed for each position on page 17 and 18 of each contract
have identical sections on page 17 which appear to be blocking out information. These are on the table under employer signature and over parent – guardian consent table
both have a different coloured pen used to date the employee’s signature box.
In respect of the payment summary PAYG the Delegate found:
It is for the dates 01/07/2017 to 20/02/2018 you claim to still be working for this organisation. I questioned why you would have a PAYG only until 20/02/2018 when you have submitted payslips until17/03/2018.
Gross payments $16,872 for 01/07/2018 to 20/02/2018
Payer’s name is Himshikhar Pty Ltd (10/10). I questioned why (10/10) appears here as it is not part of the businesses name
This PAYG is dated 31/01/2019. Again, given you have provided payslips until 17/03/2018 and claimed to still have been working for the organisation I questioned why the PAYG was prepared only until 20/02/2018.
In respect of the notice of assessment for the applicant for the year ending 30 June 2018 the delegate stated as follows:
I questioned this notice of assessment as it shows your gross wage for the year ending 2018 as $16,872. However, you have submitted payslips that indicate that you have earned $19,684 as at 17/03/2018. You also claimed on the form 80 that you were still currently employed by Himshikhar pty Ltd. Therefore, I questioned why the income you would have earned between 20/02/2018 and 30/06/2018 does not appear in your notice of assessment.
In respect of the printout of ATO online services super clearinghouse for Himshikhar Pty Ltd payment instructions for 01/07/2017-31/12/2017 the delegate questioned if this document had been altered given that both other entries have $0.00 under Additional employer, Salary Sacrifice and the Employee voluntary column. However, the row with the applicant’s entry did not.
The delegate went on to compare the signatures of the Directors signing on behalf of New Kalika International Pty Ltd to verify the authenticity of the letter dated 25 June 2019. The delegate compared the signature across the documents provided with a signature held by the Department for the director. The delegate questioned why the signatures in the documents provided by the applicant was so different from the signatures held within departmental records. On 8 June 2020 suspected information was put to the applicant for comment. A response was received by the delegate on 21 July 2020 and 30 July 2020. The applicant provided further information including 5 statutory declarations. He also provided further payslips transaction details for Essential Super account dated 21 July 2020
The delegate came to the following conclusion:” Based on the evidence and information before me I find that the applicant has information that is false or misleading in a material particular. Therefore, I am not satisfied that the applicant meets public interest criterion 4020 sub clause 4020(1).”
The applicant’s migration agent has provided a submission to the Department. The agent’s letter claimed that the issues identified were because both organisations used the same accountant. They stated that the accountant used QuickBooks online software and their accounts for the payslips had identical formatting. They blamed the accountant for the errors in the payslips.
In support of his claim the applicant provided a letter from his accountant and new copies of his payslips. The delegate gave this letter little weight as it was from third party and although purported to be from a credible source, he questions its credibility as outlined in the decision.
The Delegate found that it was difficult to accept that experience accountant who uses QuickBooks would make such errors as found in the payslips originally submitted. The tribunal agrees with the Delegate’s observation.
The first named applicant provided replacement and additional payslips, but the Delegate found that the errors in the previous places had been corrected however it was noted that only annual leave been included. The delegate accepted some of the claims made regarding the issues raised regarding the payslips provided but did not find it plausible that an accountant would produce official documents such as payslips with issues as raised with the applicant.
The first named applicant’s accountant has also advised that the reason the applicant PAYG component of the payslips for Himshikhar Pty Ltd appear very high and is more than the super payment listed on these documents is due to an agreement with the employer for upward PAYG variation for some period of the applicant’s employment. The accountant provided a link to the delegate. The link stated that if they agreed to this, both the applicant and the payee would enter into a written agreement. The delegate rightly commented that this written agreement was not provided in support of this claim and therefore the delegate refused to accept the explanation given as to why the payslips appeared very high. The Tribunal agrees with the delegate’s finding.
It was also submitted that the employment contracts provided appeared to be identical is because the directors of both companies are very close friends. They also use the same accountant and that was the claimed reason for the layouts for their employment contracts being the same. They submitted that they would provide new copies of employment contracts, but this was never provided to the Department at the time that the application was heard. The applicant did not provide any further employment contracts to the Tribunal and the Tribunal agrees with the findings of the Delegate.
In the delegate’s decision he states as follows:” The applicant’s migration agent has claimed that the reason for the issues with the applicant’s PAYG payment summary for the 2017/ 2018 fiscal year was due to an error made by the accountant as the accountant issued an additional 2 payslips.” The migration agent then claimed that the applicant was on unpaid leave from 20 February 2018 to end of June 2019.
In support of this claim the accountant had indicated that the employer sent timesheets with wrong hours for 2 fortnights after 17 February 2018 and that the applicant was on unpaid leave at this time. Additionally, the applicant has provided a statutory declaration from Mr Chapagai attesting to the applicant being on unpaid leave from 20 February 2018 returning June 2019.
The delegate placed little weight on the statutory declaration from Mr Chapagai because it was not a requirement in Western Australia for a person signing a statutory declaration to show photo identification. They were unable to verify who in fact, made the declaration. The second reason was that that the signature on the document, appeared to be the same signature that appeared, on other documents purported to be signed by Mr Chapagai, in this application. These signatures have been brought into question as they did not match the signatures held in departmental records from Mr. Chapagai.
The delegate questioned why the first named applicant would have taken unpaid leave given he had 70.15 hours of annual leave owing to him as 20 of February 2018. He noted that the payslips provided for a pay period ending 6 July 2019, listed 76 hours of annual leave. Given that the applicant was employed by a small business he found it unlikely that they could afford to provide 16 months of unpaid leave. He found that the fact that the applicant took unpaid leave was questionable as he had unpaid annual leave to take.
In response to the concern raised regarding the ATO online services super clearinghouse document the agent has claimed that the voluntary column are optional boxes hence it is $0 or left blank. Whilst the delegate accepted that this may be the case, he questioned why in one statement this would vary.
The first named applicant then claimed that he provided a transaction detail for essential super account number06 7979002099369. However, the delegate gave this information little weight as there was no name or way to identify that this is in fact the applicant’s document.
The delegate reviewed all claims made by the first named applicant to refute the suspect false or misleading information. He found that the information provided to be implausible. There has been minimal supporting evidence provided to support the claims made. He therefore found that there is evidence before the delegate that the applicant has given information is false or misleading in regard to clause 887.213. Consequently, the applicant did not meet PIC 4020(1).
The Tribunal has reviewed all the information included in the delegate’s decision and agrees that the documents provided and that the explanations are implausible. The Tribunal asked the applicants whether they could provide the following which was referred to in the delegate’s decision being copies of the employment contracts which were to be resubmitted and the written agreement between the employer and the applicant to have additional tax withheld.
In the Submissions filed with the Tribunal the first named applicant claimed that the employers prepared and kept employment records which were matters beyond his personal control. He said that he had attempted to approach the employers to attend as witnesses for the AAT hearing. Both employers had ceased operating their businesses and have deregistered their companies. They were not available to provide insight into or explain these discrepancy/ anomalies in the documents that were identified by the case officer. He therefore claimed that his employment records as presented, in his Visa application were indeed genuine and he was unable to explain the discrepancies/ anomalies in the documents in the absence of the employers.
He stated that he could not corroborate the genuineness of the documents provided.
The Tribunal has considered all the information and finds that there are too many discrepancies and anomalies. The explanations are not sufficient to convince the Tribunal that the documents are genuine, absent any further evidence from the employers or accountants in person at the hearing, and therefore the Tribunal finds that the first named applicant provided false and misleading documents in support of his application to the Department.
Therefore, the applicant does not meet PIC 4020 (1).
Should the requirements of PIC 4020(1) or (2) be waived?
The requirements of PIC 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 reg 1.03), that justify the granting of the visa. The decision-maker must first be satisfied that there are such circumstances, then must consider whether to exercise the discretion to waive the requirements, having regard to those circumstances: Kaur v MIBP [2017] FCAFC 184.
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.
For the following reasons, the Tribunal is satisfied that the requirements should be waived.
compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen,
The first named applicant gave evidence that the family excluding his child, would have to return to their country of Nepal.
Their daughter who was included in the Visa application is now an Australian citizen. She’s 10 years of age and attends full-time school in Australia. She has no formal status in Nepal as she was born in Australia. She has no one to take care of her in Australia if they were required to leave Australia. She presently suffers from a chronic eating disorder requires ongoing personal and medical attention.

The Tribunal was provided with a copy of her citizenship document. It was submitted that the departure of his wife and himself would be detrimental to his daughter. The Tribunal has considered the fact that it would be in the best interests of his daughter to waive the PIC40201.
The Tribunal considers that the fact that his daughter is an Australian citizen who has an eating disorder requires ongoing personal and medical attention is the reason why there is compassionate or compelling circumstances to waive the requirement.
The first named applicant also submitted that his wife’s past and present future contribution must be considered. His wife has been employed within the health care and aged care sector for many years in Australia. She has nearly completed a qualification of Diploma of Nursing to continue to serve in this sector.
He submitted that the current lack of skilled workers within the health sector, taking into consideration that the experience and qualification of his wife, presented a compelling case for a waiver on the basis that Australia would lose a skilled worker i a high job demands sector.
The applicants are currently the holders of bridging visas. They have lived in a specified regional area for a total of at least 2 calendar years whilst holding provisional visas.
The primary applicant has worked full-time in a specified regional area for a total of at least one calendar year. He stated that his wife is a Director of a family business which was formally trading as” All at once cleaning services”. She is employed on a full-time basis in the healthcare sector and so he’s been working in the business on a full-time basis for 2 years or more. He provided various documents to support his application being utility bills, letters from site managers, remittance advices from 2 principal agencies and business bank statements where payments are received.
The Tribunal is of the view that there are compelling circumstances to waive PIC4020(1)
Therefore, the requirements of PIC 402(1) should be waived.
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 before the Tribunal that the applicants do not satisfy the identity requirements.
Therefore, the applicant meets PIC 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).
The applicants nor his family members have not been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) in the 10 years before the application was made.
Therefore PIC 4020(2B) is met.
On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl 887.213.
DECISION
The Tribunal remits the applications for Skilled (Residence) (Class VB) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 887 (Skilled - Regional) visas:
·Public Interest Criterion 4020 for the purposes of cl 887.213 of Schedule 2 to the Regulations
·The second named and third named applicants meet the criteria for subclass 887(Skilled Regional) Visas.
Noelle Hossen
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.
…

[2023] AATA 2801

30 June 2023

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

Statutory Construction

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