The Union Pastoral Company Pty Ltd (Migration)

The Union Pastoral Company Pty Ltd (Migration) [2020] AATA 2618 (27 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  The Union Pastoral Company Pty Ltd
VISA APPLICANT:  Mr Oybek Niyazov
CASE NUMBER:  1820552
DIBP REFERENCE(S):  BCC2018/1261454
MEMBER:Amanda Mendes Da Costa
DATE:27 May 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 (Temporary Work (Skilled)) visa:
·Public Interest Criterion 4020(1) for the purposes of cl.457.224(1) of Schedule 2 to the Regulations.

Statement made on 27 May 2020 at 1.43pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – bogus document/false information – work reference – consistent evidence – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 20, 65, 351
Migration Regulations 1994, Schedule 2, cl 457.224; Schedule 4, PIC 4020
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Khan v Minister for Immigration and Citizenship [2011] FCA 75
Trivedi v MIBP [2014] FCAFC 42

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 26 June 2018 to refuse to grant the applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 16 March 2018. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.457.224 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant met Public Interest Criteria (PIC) 4020(1).
The review applicant was represented at the hearing on 29 January 2020 by Mr Barry Crimmins, the Human Resources Manager of the review applicant. Mr Crimmins gave evidence and presented arguments on behalf of the company. The Tribunal also received oral evidence from Mr Oybek Niyazov (the visa applicant). A further hearing took place on 3 April 2020 to enable Mr Bahtiyor Mavlyanov (the owner and manager of the farm in Uzbekistan where the visa applicant is employed) to give evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Uzbek and English languages.
The review applicant was represented in relation to the review by its registered migration agent.
Given that Mr Crimmins was located in Warrnambool, the migration agent was in Adelaide and the visa applicant and Mr Mavlyanov were located in Uzbekistan, both hearings were conducted by telephone. Mr Crimmins chose not to participate in the second hearing (due to work commitments) but provided the Tribunal with prior written consent to the review applicant’s migration agent representing the company at the second hearing.
The documents provided by the review applicant for the purpose of the review included the following:
·Statement of Oybek Niyazov dated 21 January 2020.
·Statements of Bahtiyor Mavlyanov (with translation) dated 6 July 2018 and 21 January 2020.
·Letter of support (with translation) of Lochinbek Iminov dated 31 July 2018.
·Letter of support (with translation) of Holmatov Avazbek dated 31 July 2018.
·Letter of support (with translation) of Ergashev Golib dated 30 July 2018.
·Statement of Hoa Oan (applicant’s previous migration agent) dated 17 January 2020.
·Employment contract dated 3 January 2018.
·Salary certificate (with translation) for visa applicant for the period 2017 to 2018.
·Curriculum vitae of visa applicant.
·Farm registration document dated 5 January 2011.
·Birth certificate for the visa applicant.
·Photographs of the visa applicant at work on the farm.
·Marriage certificate for the visa applicant dated 22 August 2016.
·Legal submissions dated 21 January 2020.
The Tribunal has also considered the information contained in the Department’s file for the review applicant, and in particular the reference letter of Mr Mavlyanov, the head of Kelajak Avlod dairy farm, dated 6 February 2017.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.457.224 for the grant of the visa. Broadly speaking, this requires that:
·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority or Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and
·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and
·the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and
·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA).
The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.
Has the applicant given, or caused to be given, a bogus document or information that is false or misleading in a 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.
Background
On 16 March 2018 the applicant provided an employment reference from the Kelajak Avlod dairy farm (in Andijan, Uzbekistan) in support of his visa application. This reference was purportedly authored and signed by the head of the farm, Bahtiyor Mavlyanov. In this reference, Mr Mavlyanov attested to the visa applicant’s employment at the farm. The reference was referred to the Department office overseas for verification of authenticity.
On 17 May 2018 a Departmental officer attempted to contact the telephone number listed on the employment reference. The call was answered by a man who could not speak either Russian or English. On the same day, the Departmental officer contacted the applicant to conduct an interview in relation to the applicant’s employment claims. The officer had the following concerns about the applicant’s responses:
·The applicant stated the Kelajak Avlod farm was 20 hectares in size, when in the employment reference Mr Mavlyanov stated it was 16.3 hectares.
·The applicant stated the farm had 200 sheep and 500 milking cows, when the employment reference stated that there were 200 cattle and 1,000 sheep.
·The applicant stated there were 8–9 employees at the farm and during the morning shift, he worked with 2 other employees. However, the employer stated there were two shifts with 10 employees in each shift.
·The applicant stated he worked 38 hours per week, whilst the employer stated 45 hours per week.
·The applicant stated the farm was located 15 minutes by car from Andijan (20 km) but according to a map and open sources, the journey was 33 km from Andijan, a journey of 37–40 minutes by car.
- The applicant claimed he was employed at the farm in September 2016 and attended weekly meetings with the head of the farm but was unable to recall the man’s name.
- The applicant stated he worked with his immediate supervisor, Lochinbek, and provided his telephone number. However, this number belonged to the head of the farm, whose name the applicant could not recall. The Departmental officer called this number but it was out of service.
Based on the results of the interview, the Departmental officer found that the reference document provided by the applicant was ‘non-genuine’, given the contradictions between the document and the applicant’s account in his interview.
The delegate found that the applicant had provided a document which was bogus and had provided false and misleading information to the Department.
On 23 January 2020 the Department provided a certificate to the Tribunal pursuant to s.376 of the Act, in which it certified that the disclosure of the information contained in folios ADD2020/366309 of its file for the applicant would be contrary to the public interest because it would disclose the Department’s investigation planning and methods to detect breaches of the law. This information consists of notes taken by a Departmental officer of an interview with the applicant which took place on 17 May 2018 and information regarding the Department’s internal investigation methods.
Given that the contents of the interview have been summarised by the delegate in his decision, the Tribunal considers that this information is already known by the applicant and can be disclosed to the applicant without the Department’s internal methods of investigation being compromised. However, it is satisfied that the disclosure of the information regarding the Department’s planning and methods of investigation of migration fraud as contained in the Department’s file notes would be contrary to the public interest and on that basis should not be disclosed.
Evidence of Barry Crimmins
Mr Crimmins is the Human Resources Manager of the review applicant and has held that position for the past 15 years. The company employs approximately 1,300 employees over multiple sites in western Victoria and South Australia. These sites include a milk drying plant, dairy, beef and sheep farms, and a meat processing plant in Warrnambool which employs 900 workers. In addition to its own stock, the review applicant buys livestock throughout Australia. The company’s milk processing plant has been recently established with the intention of selling dried milk powder (for baby formula) for sale in China. In addition to sales of its meat products in Australia, the company sells products to 80 countries worldwide including prime cuts to the United States of America (USA), Asia and the Middle Eastern countries, by-products to Asia and ground beef to the USA. The review applicant also provides calf serum for medical research to companies in Sweden.
Mr Crimmins explained to the Tribunal that it was very difficult for the review applicant to recruit employees to work in the dairy and meat industries, despite considerable efforts to advertise and recruit employees who are Australian citizens and permanent residents. The company was forced to recruit backpackers and to seek workers from Timor Leste due to its difficulties in finding local workers. He said that there was under 3% unemployment in the region and that many locals do not wish to work in abattoirs and meat processing plants and on farms. The work is physically difficult and repetitive. In meat processing plants, employees are required to work on their feet for 45 hours per week which means a 9–hour working day. Mr Crimmins said that the company had previously had success with a Danish backpacker who has stayed with the company, but she grew up on a farm and was accustomed to the work. The review applicant had also successfully employed workers from Uzbekistan as they had experience in farm work.
Mr Crimmins told the Tribunal that the visa applicant was an experienced farm worker who had been employed in both Australia and Uzbekistan. The reports received by the review applicant regarding the visa applicant’s work performance in Australia demonstrated that he was a skilled and hardworking dairy farm hand and would be an asset to the company’s business.
Visa applicant’s evidence
The visa applicant told the Tribunal that he had been employed as a farm hand at the Kelajak Avlod farm since September 2016. Prior to this he had been employed in Australia on an agricultural exchange program by the review applicant. During this exchange program he worked on a dairy farm, looking after the dairy herd and milking cows. Whilst in Australia he obtained a qualification in agricultural studies. Prior to this the visa applicant had been employed in similar work in various dairy farms in Uzbekistan.
The visa applicant explained that his current role involved him preparing stock for milking, milking and feeding cattle, and caring for calves. His experience in Australia had given him significant training in caring for cattle, particularly dairy herds. The stock on the Kelajak Avlod farm was comprised of a local breed and some from Poland. There were 250 milking cows and approximately 350 sheep. There are 11 employees working on the farm – working in two shifts with 5 employees in each shift. He is currently working the night shift.
The visa applicant told the Tribunal that the farm is approximately 20 hectares in size and although his employment contract provides for him to work a minimum of 38 hours per week, he currently works between 40 to 45 hours per week. The applicant said that he has always worked more than 38 hours per week.
The applicant said that his immediate supervisor was Lochinbek Iminov and his employer was Bahtiyor Mavlyanov. They had held those positions throughout the period of his employment.
The Tribunal questioned the applicant about the distance of the farm from the closest large town, Andijan City. The visa applicant explained that it was approximately 25 kilometres from his home.
The Tribunal further questioned the visa applicant about the extent of his fluency in the English and Russian language. The applicant explained that although he understood Russian, he did not speak it as well as English.
The Tribunal notes that the Department’s file notes show that the Departmental officer who interviewed the applicant did so by telephone and in the Russian language. After the applicant identified himself, the interview commenced in the Russian language. Afterwards, the applicant told the officer that his ability to speak Russian was poor and he preferred English.
During the hearing, the Tribunal advised the review and visa applicants that the Department had provided it with a copy of the case notes of the interview with the visa applicant which took place (by telephone) on 17 May 2018 and a separate call to the visa applicant’s employer on that date. These notes were provided pursuant to a certificate under s.376 of the Act, in which the Department certifies that the disclosure of the material contained in the notes would be contrary to the public interest because it would enable a person to know the Department’s internal investigation planning and methods to detect breaches of law. The Department further certifies that disclosing lawful methods would be likely to prejudice the effectiveness of these methods.
The Tribunal informed the applicants that it had considered the contents of the case notes and was satisfied that the contents of notes regarding the 2 telephone calls were already known to the applicants as reference was made to that information in the delegate’s decision. The Tribunal further advised that it considered that the only methods of detecting potential breaches of law disclosed in the case notes of the telephone calls was the fact that the Department had attempted to speak to the visa applicant’s employer and did speak directly to the visa applicant. These methods were likely to already be known to visa applicants. Accordingly, the Tribunal was satisfied that it was appropriate to disclose such information to the applicants.
The Tribunal also advised the applicants that in addition to the above information, the case notes contained information about more general investigative methods of detecting migration fraud which are not specific to the applicants in this case. The Tribunal advised the applicants that it was satisfied that the disclosure of this information would be contrary to the public interest because it would enable a person to know the Department’s internal planning and methods to detect breaches of law. Accordingly, the Tribunal advised the applicant that it would not disclose this information to them. This approach was accepted by the applicants and their migration agent.
The Tribunal discussed with the visa applicant the information in the case notes regarding his conversation with the Departmental officer, including the name and size of the farm where he was employed, stock numbers, milk yield, hours of employment, salary details, the distance of the farm from Andijan City and the names of his immediate supervisor and employer. The applicant conceded during the hearing that he had given the answers set out in paragraph 15 of this decision.
The Tribunal further discussed with the visa applicant the discrepancies in the information he provided during this interview with the information provided to the Department by his employer Mr Mavlyanov in his written reference in February 2017. The applicant explained as follows:
·He was not aware of the exact size of the farm and had given the officer who interviewed him an approximation.
·He told the officer he was responsible for caring for and milking the dairy cows on the farm.
·The size of the herds on the farm changes from time to time, depending on whether animals are sold, die or are purchased.
·He couldn’t remember telling the officer that the farm had 8 to 9 employees.
·The working hours he described in the interview reflected his hours at that stage. If needed, he worked longer than the 38 hours per week specified in his employment contract.
·He had never measured the distance between the farm and Andijan City and thought it was a 15-minute drive. He understood that the Department said it was more like a 37-40 minute drive – he wasn’t sure what type of vehicle they used. From his home to the farm was 20 kilometres.
·He was nervous and confused when interviewed and it was at the end of his night shift and he forgot the name of his employer. At that time, Mr Lochinbek was his immediate supervisor.
·He had spoken honestly with the Department about his employment at the farm.
·He did not receive the s.57 notice and had no awareness of its contents until after the delegate’s decision had been made.

The Tribunal notes that consistent with the visa applicant’s oral evidence, the case notes record that the interview with the Departmental officer on 17 May 2018 commenced in Russian but the visa applicant said his understanding of that language was poor and he preferred to speak to the officer in English.
Statement of Bahtiyor Mavlyanov
Mr Mavlyanov states that the visa applicant has been employed as a farm worker at the Kelajak Avlod farm since September 2016. He previously provided a written reference dated 6 February 2017 (regarding the visa applicant’s employment) for the Department’s consideration. The following changes have been made at the farm since that statement was provided:
·Until 2018 the total land area of the farm was 16.3 hectares. Since 2018 he has been renting and using an additional 3 hectares of land, increasing the total land area of the farm to 19.3 hectares.
·The farm is presently stocked with a mixture of Holstein-Friesian cattle with other domestic breeds. The total stock is 500 cattle and 200 domestic sheep.
·The farm’s employees currently work in shifts and the visa applicant works 45 hours per week, although his contract specifies 38 hours per week and extra hours in his spare time. Presently, 9 employees are working as a team. This change is due to seasonal requirements for workers.
·He was on annual leave during May 2018 and his leading hand (Lochinbek Iminov) was using the farm’s mobile phone. As he cannot speak Russian, he was unable to speak to the Departmental officer who telephoned to speak to the farm owner.
Oral evidence of Bahtiyor Mavlyanov
Mr Mavlyanov is the owner and manager of the Kelajak Avlod farm which is situated in the Andijan region of Uzbekistan, which is in the south-eastern edge of the Fergana Valley near the border with Kyrgyzstan.
Mr Mavlyanov attested to the truth of the contents of his statement to the Department dated 6 February 2017 and his statements to the Tribunal dated 6 July 2018 and 21 January 2020.
He has owned and operated the farm since 2010, which is 19.3 hectares in overall size. When Mr Mavlyanov initially purchased the farm it was smaller, at 16.3 hectares, but he has since increased its size. He currently employs 11 employees on the farm, including the visa applicant who commenced his employment in September 2016.
The farm is currently stocked with 250 cows and 350 sheep. These numbers vary from time to time, depending on stock prices, seasonal variations and stock sales. The cattle on the farm are a mixture of dairy and beef cattle. The breeds include Holstein-Friesian and local breeds.
The visa applicant’s role involves him in looking after the cattle and includes caring for cattle, supervising the birth of calves, milking the dairy herd and general maintenance about the farm such as mending fences. Mr Mavlyanov described the visa applicant as educated, hardworking, punctual and able to innovate and complete tasks in a timely manner.
The visa applicant’s hours of employment are currently 40 to 45 hours per week which is more than the 28-hour minimum specified in his employment contract. His hours of employment vary depending on the amount of work required on the farm and seasonal differences such a winter weather which makes outdoor work more difficult.
The Tribunal questioned Mr Mavlyanov about the distance of the farm from Andijan City. He explained that it was a 25-minute drive by motor vehicle and approximately 25 kilometres from Kelajak Avlod farm.
The Tribunal also questioned Mr Mavlyanov about the telephone call to the farm’s mobile phone in May 2018. He confirmed that he had been on leave when that call was made and Mr Lochinbek Iminov had been acting as farm manger in his absence. He further confirmed that Mr Iminov does not speak either English or Russian.
Statement of Hoa Oan (registered migration agent)
Mr Oan is the visa applicant’s previous migration agent. He states that the Department issued his client with an s.57 notice (inviting him to comment on adverse information) prior to the delegate’s decision to refuse his visa application. Due to a server error, the email containing the s.57 notice was not received by him. This meant that the visa applicant did not have an opportunity to respond to the notice. Although Mr Oan attempted to communicate this to the Department, the delegate’s decision had already been made and it was too late for the visa applicant to explain his position to the Department.
Statement of Lochinbek Iminov
Mr Iminov has been employed at the Kelajak Avlod farm since 2013 in the position of shift leader. He was managing the farm in the absence of the owner (Bahtiyor Mavlyanov) in May 2018 when he received a telephone call from a person (female) from Russia. Due to his inability to speak either the English or Russian languages, he could not understand this person and thought she telephoned the farm by mistake.
Mr Iminov states that the visa applicant has been employed on the farm since September 2016. His duties are the feeding and milking of cows, preparing cows for milking, caring for newborn calves, mending broken fences and taking care of ill animals.
Mr Iminov describes the visa applicant as a curious and purposeful worker.
Statement of Ergashev Golib
Mr Golib has been employed at the Kelajak Avlod farm and has been working with the visa applicant since 2016. He and the visa applicant work the same shift and complete their work tasks together. The visa applicant has taught him many things as he is a more experienced farm worker. Mr Golib describes the visa applicant as a diligent worker who is conscientious, innovative and never quits his tasks.
Holmatov Avazbek
Mr Avazbek has been employed at the Kelajak Avlod farm since 2017 and has been working with the applicant during that period. Due to his relative inexperience, the visa applicant has been responsible for training him. They work together on the same shift – performing the same tasks which include milking cows in the morning and evening, feeding stock and caring for newborn calves.
Review applicant’s submissions
The review applicant’s submissions may be summarised as follows:
·In his interview with the Departmental officer, the applicant indicated that he could not recall the exact size of the farm and was then asked to provide an approximate answer and gave the response of approximately 20 hectares. The farm’s size increased in 2018 to 19.3 hectares.
·Although the reference letter of Mr Mavlyanov was provided to the Department in 2018, the letter was actually written in 2017. This explains the difference in the number of animals on the farm, which changed in the 15 months between the writing of the reference and its submission to the Department. This also applies to the differences between the information given by the visa applicant regarding the number of employees on the farm and the figures given in the reference of Mr Mavlyanov.
·The visa applicant’s assessment of the distance of the farm from the town of Andijan was an approximation, and the difference between his information and that contained in other sources is explainable given the size of the town and the region in which it is situated.
·The visa applicant referred to Mr Mavlyanov as “boss” and did not know him by name.
·The phone number given by the visa applicant to the Departmental officer in the interview was for the farm management. Given that Mr Lochinbek (who does not speak English) was the shift supervisor when the Departmental officer made the telephone call to the farm on 17 May 2018, it is understandable that Mr Lochinbek was unable to communicate with them.
·The delegate does not identify the ‘bogus’ document or documents which he finds have been provided by the visa applicant nor does he articulate which of the information provided by the applicant was false or misleading and how that information is relevant to any of the visa criteria.
·When interviewed by the Departmental officer, the visa applicant was employed on a full-time basis at the Kelajak Avlod dairy farm as a farm worker and had been employed in that position since September 2016.
·The visa applicant’s employment history is supported by the letters of support from his work colleagues (including Mr Mavlyanov) and contract of employment and salary certificate.
·The inconsistencies in the information provided in the reference letter and the visa applicant’s interview with a Departmental officer do not amount to the provision of false or misleading information by him.
·The statements of Mr Mavlyanov dated 6 July 2018 and 21 January 2020 confirms that the visa applicant’s current employment is at Kelajak Avlod farm.
Despite the review applicant’s comments about the delegate’s findings, it acknowledges in its submission that a merits review by this Tribunal is “effectively a de novo review” and consequently additional material has been provided in relation to the visa applicant’s employment to enable the Tribunal to determine the question of whether the provisions of PIC 4020 apply to the visa applicant’s actions. The Tribunal accepts that its role is to determine the review application on a de novo basis and not to conduct a review of the delegate’s actions or methods of determining the visa application.
Bogus document
Section 5(1) of the Act defines ‘bogus document’ as a document that the delegate or Tribunal reasonably suspects is a document that:
·purports to have been, but was not, issued in respect of the person; or
·is counterfeit or has been altered by a person who does not have authority to do so; or
·was obtained because of a false or misleading statement, whether or not made knowingly.
False or misleading information
In Khan v Minister for Immigration and Citizenship [2011] FCA 75, the Full Federal Court considered the phrase ‘material’ in the context of s.20 of the Act. The Court stated (at p.352):
The term ‘material’ requires no more or no less than that the false particular must be of moment or significant, not merely trivial or inconsequential.
Section 20(1) does not apply to statements that are merely false or misleading; there is the added requirement that the statement be false or misleading in a material particular … a statement will be false and misleading in a material particular if it is relevant to the purpose for which it is made …
The Tribunal acknowledges that what was relevant in assessing the visa applicant’s nominated skilled occupation was his qualifications and work experience. The relevant work experience included the visa applicant’s work at the Kelajak Avlod farm. Therefore, the Tribunal finds that the written statements by Messrs Mavlyanov, Iminov, Avazbek and Golib were relevant to an assessment of the visa applicant’s skills, including his work experience, and are a material particular in relation to his visa application.
The Tribunal is satisfied that Mr Mavlyanov is the owner and operator of the Kelajak Avlod dairy farm in the Andijan region in the Republic of Uzbekistan. The Tribunal is further satisfied that he is the author of the reference letter dated 6 February 2017 regarding the visa applicant’s employment by the farm and the further references dated 6 July 2018 and 21 January 2020.
The Tribunal also acknowledges that it has been provided with a farm registration document, a contract of employment for the visa applicant and a salary certificate which evidence the applicant’s employment at the Kelajak Avlod farm since September 2016.
The Tribunal further accepts that the visa applicant was employed as a farm worker in Australia during the period 2015 to 2016 and that reports of his work performance were very good.
The Tribunal does have some concerns about the discrepancies in Mr Mavlyanov’s statement dated 6 February 2017 and the information provided to the applicant in his interview with a Departmental officer on 17 May 2018.
In making its findings, the Tribunal has also taken into account that the applicant’s interview with Departmental staff was conducted in the Russian and English languages, which are not the applicant’s first language i.e. Uzbek.
Upon a consideration of the evidence of the visa applicant and Mr Mavlyanov, the Tribunal is satisfied of the following, in relation to the suggested differences in their respective accounts of the visa applicant’s employment, that:
·The size of the Kelajak Avlod farm was originally 16.3 hectares and was later increased to 19.3 hectares. The visa applicant’s estimation of the size of the farm was broadly consistent with that of Mr Mavlyanov.
·The oral evidence of the visa applicant and Mr Mavlyanov regarding the current number of employees on the farm was consistent. In his original written statement, Mr Mavlyanov states that the number of employees in February 2017 was 10 whilst in May 2018 the visa applicant stated in his interview that the number of employees was 8 to 9. The Tribunal accepts that the number of employees on the farm may change from time to time and the difference in the figures over a period of 12 months in such circumstances is not significant.
·The applicant’s employment contract provides for a minimum of 38 hours per week. This is consistent with his account in the interview with the Department, where he stated that he does work up to 45 hours per week and the original statement of Mr Mavlyanov in which he states that the visa applicant works 45 hours per week.
·The Tribunal notes that the size of the Andijan region (covering an area of 4,200 km²) of which the Andijan District covers an area of 400 km² and the capital (Andijan City) covers an area of 74.3 km². The Tribunal further notes that in the interview with the visa applicant, the Departmental officer asked him about the distance between the farm and ‘Andijan’ without specifying whether this was the District or City. In the absence of such information, the Tribunal does not consider that a difference of 13 kilometres is significant.
The Tribunal is satisfied that the suggested differences in the evidence of the visa applicant and Mr Malyanov in respect of the above matters do not constitute false or misleading information nor leads the Tribunal to believe the reference provided by Mr Malyanov was a bogus document.
Whilst it causes the Tribunal some concern that the visa applicant was unable to recall the name of his employer Mr Malyanov when interviewed by Departmental staff, the Tribunal accepts his explanation that he forgot the name because he was nervous and confused when interviewed and it was at the end of his night shift.
The oral evidence of the visa applicant and Mr Mavlyanov at the hearing regarding the current size of the farm’s herd was consistent (i.e. 250 milking cows and 350 sheep). In Mr Mavlyanov’s original statement dated 6 February 2017, he states that whilst the capacity of the farm is over 200 cattle and approximately 1000 sheep, the actual size of the herd is 60 dairy cows and 600 sheep. In his interview with the Department on 17 May 2018, the visa applicant said that the farm had 200 sheep and 500 milking cows.
The Tribunal accepts that the size of the herds on the farm have fluctuated from time to time, and it considers it unlikely given the figures given by Mr Mavlyanov for February 2017 and April 2020 that the size of the milking herd in May 2018 was 500 cows as stated by the visa applicant in his interview in May 2018. However, the Tribunal is not satisfied that the information provided by the applicant in the interview was purposely untrue or that there was an element of fraud or deception involved in the provision of the information.
The Tribunal is satisfied that there is no evidence that in relation to the current visa application, the visa applicant has given or caused to be given to the Department or Tribunal a document that:
·purports to have been, but was not, issued in respect of the visa applicant; or
·is counterfeit or has been altered by a person who does not have authority to do so; or
·was obtained because of a false or misleading statement, whether or not made knowingly.
The Tribunal consider further considers that in relation to the current visa application, there is no evidence that the visa applicant has provided to either the Department or Tribunal information that is false or misleading in a material particular.
The Tribunal also considers that there is no evidence that the visa applicant provided to the Department a bogus document or false or misleading information in relation to a visa that he held in the period of 12 months before the current visa application was made.
Based on the above, the applicant does satisfy PIC 4020(1) for the purposes of cl.457.224(1).
DECISION
The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 (Temporary Work (Skilled)) visa:
·Public Interest Criterion 4020(1) for the purposes of cl.457.224(1) of Schedule 2 to the Regulations.
Amanda Mendes Da Costa
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.
…

[2020] AATA 2618

27 May 2020

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