Travasso (Migration)

Travasso (Migration) [2020] AATA 4131 (4 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Stenol Travasso
Ms Lizle Braganza
CASE NUMBER:  1725369
DIBP REFERENCE(S):  BCC2017/1301819
MEMBER:Roslyn Smidt
DATE:4 August 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Skilled Independent (Permanent) visas.

Statement made on 4 August 2020 at 5:37 pm

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled Independent) – false or misleading information – past employment experience – problems with payslips, contracts and payroll records – disclosure of income in tax returns – sponsorship ban on former employer for providing false sponsorships – grounds for disqualification as a result of bias or apprehended bias – verbal abuse – natural justice – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 189.211, 189.214, 189.215; Schedule 4, PIC 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 Immigration on 13 October 2017 to refuse to grant the applicants Skilled Independent (Permanent) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 6 April 2017. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl.189.215 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
The first named applicant (the applicant) appeared before the Tribunal on 2 December 2019 to give evidence and present arguments.
The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.
BACKGROUND
The applicant first arrived in Australia on 14 February 2009 on a student visa. On 28 April 2011 he applied for a 485 Graduate visa which was granted on 23 May 2012. On 16 December 2014 he applied for a 457 visa which was sponsored by Python Technologies. This application was withdrawn on 23 May 2017.
On 6 April 2017 the applicant applied for a Skilled Independent (Permanent) (Subclass 189) visa. To obtain this visa he needed to achieve a certain score on a test which awards points for a range of factors, including past employment experience. In support of his application the applicant stated that he had worked for Python Technologies as a Developer Programmer from February 2012 to April 2017.
The delegate refused the application because he found the applicant’s evidence regarding his employment at Python Technologies was false or misleading and that he therefore did not meet Public Interest Criterion 4020 (PIC 4020) as required by cl.189.211 of Schedule 2 to the Regulations.
THE RELEVANT LAW
Broadly speaking PIC 4020(1) 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.
The requirements in PIC 4020(1) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). PIC 4020 is extracted in the attachment to this decision.
CLAIMS AND EVIDENCE
The applicant’s 457 application was sponsored by Python Technologies. According to his application he was to be employed in a full-time capacity and paid a salary of $64,000. In response to a request for additional information from the delegate considering that application he provided completed a form 1221 dated 14 January 2015 which stated that he worked as a storeman at Momentum Consultancy from August 2011 until December 2014. While this form and his application form name Python Technologies as his sponsor for the 457 visa, neither states that the was working for the company at the time he lodged his application.
In his 189 visa application the applicant stated that he had worked for Python Technologies as a C# Net Developer Programmer since 6 February 2012. In support of that application he provided:
·Five blank Business Activity Statements (BAS) covering the following periods:
·A work experience certificate from Python Technologies, dated 18 April 2017 which states that he had worked as a Developer Programmer for 20 hours per week, from 6 February 2012. The letter included a detailed description of his duties.
On 19 April 2017 the applicant was asked for additional information regarding his employment. In response he provided:
·A CV which states that he had worked for Python Technologies since February 2012.
·Employment contracts issued by Ahmer Arif Ismail, Director of Python Technologies, on 25 January 2012 and 25 January 2016. Both state that he was employed 20 hours a week as a Developer Programmer in C#.Net, that his salary was to be paid fortnightly in cash and that he was entitled to four weeks paid annual leave and 10 days paid sick leave per year.
·A statutory declaration dated 12 May 2017 which states that he worked as a C#.Net Developer Programmer at Python Technologies, that he received his salary fortnightly in cash and that his employer did not pay any superannuation on his behalf.
·Copies of payslips issued by Python Technologies covering the period from 7 April 2017 to 12 May 2017. They all state that the applicant was paid $670 every week and cover a period beginning on a Saturday and ending the following Saturday. For example, the first payslip begins on Saturday 7 April 2017 and ends on Saturday 14 April 2017. The next begins on Saturday 14 April 2017.
·A statutory declaration dated 14 May 2012 signed by Vivek Patel who stated that he had worked with the applicant at Python Technologies since February 2012.
On 9 June 2017, the Department asked the applicant to provide additional evidence of his work experience, for example PAYG certificates, Notices of Assessment in relation to taxation or superannuation documents.
The applicant responded on 13 June 2017. He stated that he had already provided evidence regarding his work experience. He said that he received his salary in cash and this income would be reported to the Australian Tax office (ATO) shortly using his ABN and the BAS statements provided earlier. He said that he and his employer had an agreement that no superannuation was to be paid on his behalf. No supporting documents were provided.
The 9 June 2017 letter also invited the applicant to provide a statement setting out any compelling or compassionate reasons relevant to PIC 4020(4). No submissions were made in relation to PIC 4020(4).
On 18 July 2017 the delegate wrote to the applicant inviting him to comment on several issues which appeared to suggest that he may have provided false or misleading information in support of his application. The letter noted that:
·The evidence that the applicant was an independent contractor who paid his own tax was at odds with the evidence in his contracts suggesting that he was a part time employee who was entitled to annual and sick leave.
·While payslip usually include information on leave entitlements and other matters, no such information was included on the payslips provided by the applicant.
·The start and end dates of the payslips provided overlapped.
·The contracts provided state that the applicant would be paid fortnightly while his payslips indicated that he was paid weekly.
·The BAS provided were blank and did not support the claim that he declared his income to the ATO and paid tax on that income.
The applicant responded on 14 August 2017 by providing the following documents:
·A letter from Mr Ismail dated 11 August 2017 which stated that it was company policy to pay casual or part time employees in cash. It states that the applicant had recently requested payment summaries relating to his ABN from the company accountant as he had begun to pay GST on his income to the ATO.
·A letter from the Python Technologies accountant which states that the applicant should have been provided with payslips fortnightly and these payslips should have included information on his leave entitlements. However, due to his (the accountant’s) administrative mistake on MYOB functionality the payslips were issued weekly with overlapping start and end dates and without any mention of leave. He said that he had now generated accurate payslips and asked that the Department overlook the human error that had caused the problem. He said that the applicant had taken accrued annual leave from 13 March 2013 to 9 May 2013, from 17 November 2015 to 9 January 2016 and from 6 December 2016 to 17 February 2017.
·Copies of Payroll records covering the period 6 February 2012 to 13 August 2017 which describe the applicant as a contractor. Entries cover two-week periods commencing on Monday and ending the following Sunday, with the following exceptions.
·A copy of an extract of leave record dated 11 March 2013 which states that the applicant was granted leave from 13 March 2013 to 9 May 2013 to travel overseas. It states that he had accrued this leave and invites him to collect his holiday pay.
·A copy of an extract of leave record dated 16 November 2015 which states that the applicant was granted leave from 17 November 2015 to 9 January 2016 to travel overseas. It states that he had accrued this leave and invites him to collect his holiday pay.
·An extract of leave record dated 5 December 2016 which states that the applicant was granted leave from 6 December 2016 to 17 February 2017 to travel overseas. It states that he had accrued this leave and invites him to collect his holiday pay.
·Seventeen payslips issued between the 11 June 2012 and 16 June 2017. Apart from the pay slips listed below they cover a two-week period beginning on a Monday and ending on a Sunday. They state that the applicant was paid $1,340 in cash for 40 hours work and that he accrued 3.077 hours holiday leave per fortnight. They also provide year to date totals for pay and leave entitlements.
·A copy of information on the applicant’s payments to the ATO accessed through a Tax Agent Portal on 14 August 2017. The document states that the ATO received five GST payments of $378 from the applicant on 10 April 2017. It indicates that these payments were based on the applicant’s self-assessment for quarterly periods ending 28 April 2016, 28 July 2016, 28 October 2016, 28 February 2017 and 28 April 2017. It also states that the self-assessed amounts for each of those periods was $0.00.
The applicant stated that errors in the payslips provided earlier such as the overlapping start and end dates were due to administrative errors in the MYOB software used by the company.
The delegate did not accept that applicant’s explanation for the errors and inadequacies in the evidence he had provided regarding his employment at Python Technologies.
With regard to the applicant’s claim that he had paid GST on his income directly to the ATO, she noted that this was not reflected in the BAS statements provided with his initial application. She also noted that the Tax Portal entry which purported to show payments made between April and August 2017 related to a period after the applicant had applied for a 189 visa.
The delegate noted that the information contained in the leave records provided by the applicant appeared to be at odds with information on his payslips. For example, payslips for the period 9 November 2015 to 10 January 2016 stated that he had been paid for 160 hours work and had a leave deficit of 24.62 hours, which was at odds with the evidence that he was on leave from 17 November 2015 to 9 January 2016. With regard to the payroll information for financial years 2012 to 2018, she noted that the information had been recorded manually on an excel spreadsheet and was not supported by any official documentation. She also noted that the information provided by the applicant’s accountant was not supported by documented evidence.
In these circumstances the delegate was not satisfied that the applicant had worked for Python Technologies. She found that information in the applicant’s application regarding his employment and the documentary evidence provided in support of this contained false and misleading information in relation to a material particular relating to his claim for skilled migration points as per cl.189.214 of Schedule 2 to the Regulations.
The applicant applied for review of the delegate’s decision on 17 October 2017. The applicant provided a copy of the delegate’s decision, but no further submissions were received at that time.
On 29 November 2019 the applicant’s representative provided:
·online exchanges between the applicant and colleagues at Python Technologies between 22 September 2015 and 28 January 2016 regarding job assignments, salary payments and other matters;
·a copy of his 2016 tax return which states that the applicant had a taxable income of $47,860, that $8,432 tax had been withheld from his wages and that total tax due that year was $7,101. It gives no indication of the source or sources of his income;
·a copy of his 2017 tax return which states he had a taxable income of $46,634, that $6,787 tax had been withheld from his wages and that total tax due that year was $6,307. It gives no indication of the source or sources of his income;
·a copy of his 2018 tax return.
The applicant attended a hearing of the Tribunal on 2 December 2019. The applicant provided completed copies of the BAS and receipts for $378 for tax he had paid for each of the five activity statements at the Post Office.
I asked the applicant for more information about his role while working for Python Technologies. His response was general in nature. He named three clients he had worked for, but had difficulty recalling or describing in detail the work he had done for them.
With regard to his pay and work conditions between 2012 and 2017, the applicant confirmed that he had worked for Python Technologies from February 2012 to September 2017. He was paid fortnightly in cash. No tax was deducted from his pay and Python Technologies did not contribute superannuation on his behalf. He was entitled to four weeks annual leave and he had never taken unpaid leave. He used his pay from Python Technologies for living expenses and never deposited it into a bank account. He also worked for Momentum Consultancy in a customer service capacity for about 20 hours from February 2012 to September 2017. He said that he was paid $22 an hour for this work and earned between $600 and $700 a week. Tax and superannuation were deducted from his pay.
The information on the BAS and tax returns provided by the applicant was discussed. His responses were somewhat confused. However, it appears that while he lodged tax returns throughout the period in question, he did not declare his income from Python Technologies or pay any tax on that income until financial year 2016. It also appears that he obtained an ABN in 2012, but he did not lodge any BAS or pay GST until after he applied for a 189 visa in 2017.
I asked the applicant if he had declared his total 12 months income from his work with Python Technologies in his tax return for the financial year which ended on 30 June 2016. He said that he could not recall, but he had included the income he declared in his BAS statements. I noted that the tax return did not provide any information on the source of his income and indicated that his total income was about $47,000. I asked if this was the total of his gross income that year from both the jobs he held during the year. He said that was correct. I noted that the BAS statements he provided appeared to cover only the period from February 2016 to June 2016 and it appeared that he had only declared about half of his income from Python Technology in his tax return for that year. The applicant confirmed that this was correct.
I noted that the applicant’s evidence suggested that his 2017 tax return should include 12 months income from Python Technologies and 12 months income from his second job. He confirmed that was correct. I observed that in that case the income recorded in that tax return should have been significantly larger than the income recorded in his 2016 return, but it was slightly less. I also noted that if he had earned and declared an income of about of $46,000 and if I deducted the approximately $35,000 he claimed to have earned from Python Technologies, this suggested he had only earned around $10,000 from his second job, which was at odds with his earlier evidence that he earned $600 to $700 a week from that job. He said that the second job was always up and down.
I observed that the applicant’s failure to declare his income from Python Technologies until 2016 or to pay any tax on that income appeared to suggest that he was not always honest in his dealings with the Australian government which did not reflect well on his overall credibility. He said that he regretted his decision not to declare his income, but he had tried to rectify the situation to some degree in 2016.

I noted that the 2016 and 2017 tax returns provided by the applicant stated that tax had been withheld from his wages but did not include an entry of tax paid as a result of other payments. I also observed that the tax returns did not state the source of his income. He said that he had provided all of the relevant information to his tax agent.
I observed that it appeared that his tax returns may not be genuine or may not contain accurate information. The applicant said that the documents were genuine. He added that after the Department of Home Affairs had pointed out that he had not paid tax he wanted to do the right thing so he had amended his 2016 return to include the income from Python Technologies, but his tax agent told him that it was only possible to amend his personal tax for the previous three years so he could not do anything about the years before that.
The applicant said that he had lodged the 2016 tax return sometime after July 2016 and he had lodged the 2017 and 2018 returns at the same time in 2018.
I asked the applicant to explain the information on the Tax Agent Portal extract provided. He said that he had obtained this information from the Python Technologies accountant in order to overcome the problems pointed out by the Department in relation to evidence regarding his employment at Python Technologies. When asked if he had paid GST later in the hearing, the applicant said that he had never paid GST and the tax paid was income tax.
The applicant’s payslips were also discussed. I noted that they suggested that he had been paid weekly, which was at odds with the evidence that he had been paid once a fortnight. I also noted that the payslips he had initially provided failed to provide details of his leave and the start and finish dates of the pay period overlapped, which suggested that they were not genuine. The applicant said that when he lodged his application for a 189 visa he requested copies of his recent payslips and the payslips he was given stated incorrectly that he had been paid weekly. However, this problem had been resolved in the corrected payslips provided after this problem was pointed out by the delegate.
I observed that some of the more recent payslips appeared to contain errors. For example, the year to date total income on some payslips appeared to be incorrect. For example, the payslip dated 14 April 2017 YTD total was $25,460 which appeared to represent 38 weeks work, but there had been 42 pay periods during the relevant period.
I also observed that it seemed unlikely that a company which employed 20 people and presumably provided them all with payslips would make such an error and observed that it appeared that the second set of payslips which the applicant had submitted were provided to overcome problems with the first payslips which suggested that neither were genuine. The applicant maintained that he had worked for Python Technologies from 2012 to 2017.
When asked, the applicant confirmed that Python Technologies was no longer in business. He said that he did not know why they had ceased to operate. I observed that it appeared that the owner of the business may have had problems in regard to his role sponsoring a number of applicants for visas and asked if he had any knowledge of these problems. He said that he had learned of this from his representative. He said that he was told the owner had been banned for providing false sponsorship for some applicants. He did not know the details of these false sponsorships, but he was concerned because these applications were lodged during the period he worked for the company. I observed that in light of this information and given the problems with some of the documents which the applicant had provided I had concerns about the genuineness of these documents. The applicant said that he understood that the fact that his former employer had engaged in what appeared to be fraudulent activities raised concerns, but maintained he had worked for the company during the period in question.
I advised the applicant that while I had not reached a conclusion regarding his application, as already discussed I had concerns about a number of issues including the fact that the information on his tax returns did not appear to reflect the income he claimed to have earned during the period in question and the problems related to the payslips he had provided.
I asked the applicant if he would like to add anything. He acknowledged that he had made a mistake by not informing the tax agent who prepared his tax returns about all of his income, but he did not mean that he had not worked for Python Technologies. He also acknowledged that there had been mistakes in his payslips, but said the Python Technologies accountant was responsible for these errors and he should not be held accountable for them.
The applicant’s representative submitted that it was not uncommon for people who were paid in cash to fail to declare their income to the ATO and while this was wrong, it did not mean that the applicant had not worked at Python Technologies. He also submitted the error in the applicant’s payslip was the responsibility of the Python Technologies accountant, not the applicant. He observed that most of the communications with the Department were managed by Mr Ismail, which suggested that Mr Ismail exercised a certain amount of control over the information provided to the Department, and given Mr Ismail’s background that this could account for some of the problems which had arisen in relation to the applicant’s evidence.
Following the hearing the Tribunal obtained additional information on the reasons Mr Ismail had been banned from acting as a sponsor for visa applicants in Australia. This included evidence that he had provided false and misleading information in the form of pay advices and invoices which were supposedly obtained from companies in order to make it appear that he had a portfolio of current clients and was providing ongoing paid services to such clients. The Tribunal wrote to the applicant pointing out that this information suggested that the errors in the documents he had provided were not inadvertent errors and that the payslips are not genuine documents related to payments made for work which he had performed.
On 20 July 2020 the applicant’s representative responded on his behalf. He referred to r.2.90 of the Regulations and related Department policy which covers situations in which a sponsor has provided false or misleading information. It is not clear how these provisions are believed to relate to the applicant’s situation.
The applicant’s representative also submitted that it would be unreasonable to expect the applicant to notice or complain about minor errors in payslips which were provided to him by his employer. He submitted that the errors in the applicant’s payslips were due to human error related to the use of the MYOB accounting software and that the applicant should not be held accountable for these mistakes which were innocent, unintended or accidental in nature. Finally, he submitted that a key and principal consideration in assessing the applicant’s case was his intentions. He submitted that there was no evidence which suggested that the applicant had intended to deceive the Department and he should not be held accountable for any errors in his payslips.
Finally, he submitted that the applicant should not be held accountable for the misconduct of his former employer in relation to other matters.
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.
For the following reasons I have formed the view that the applicant did not work for Python Technologies between April 2012 and September 2017 as claimed.
In the first place, I found his account of his work during his time at Python Technologies at the hearing to be vague and unconvincing.
Secondly, his evidence regarding his work for Momentum Consultancy was confused and unpersuasive. At the hearing he said that he had worked 20 hours a week in that job and earned $22 an hour, which would have given him a weekly wage of about $440 not between $600 and $700 a week or as little as about $10,000, as he also suggested during the hearing.
Third and more significantly, I found his evidence regarding his lodgement of BAS and tax returns and payment of tax to the ATO to be lacking in credibility.
The applicant claims that he was always paid in cash by Python Technologies and that he did not declare any of that income to the ATO until after he lodged his application for a 189 visa in April 2017, apparently to avoid paying the relevant tax. However, these claims are at odds with information in the documentary evidence which he has provided.
On 6 April 2017 he provided five blank BAS covering the period 8 February 2016 to 28 April 2017. In a submission dated 9 June 2017 he said that his income from Python Technologies would be reported to the ATO shortly. However, on 14 August 2017 he provided information apparently accessed by the accountant for Python Technologies which states that he had paid $1,890 in GST to the ATO on 10 April 2017.
In my view the fact that the applicant lodged several BAS and paid GST relating to a period beginning over a year earlier several days after applying for a 189 visa strongly suggests that these forms were lodged and tax was paid to provide evidence to support the applicant’s claim that he had worked for Python Technologies for several years. This finding is supported by the fact that, based on the available evidence, the applicant was not required to pay GST for the periods covered the BAS. According to his evidence, he earned about $35,000 a year while working as a contractor for Python Technologies. There is no suggestion that he earned money elsewhere as a contractor or from other business activities. Businesses with a turnover of less than $75,000 were not required to register for or pay GST on their earning during the period in question. In reaching this conclusion I have noted the applicant’s evidence at the hearing that the tax paid was income tax. The information from the Tax Portal clearly states that payments were for GST. While I acknowledge that some people are confused about their tax obligations, it appears that the applicant had the assistance of a tax agent or accountant when preparing his tax returns and I do not accept that he would have been unaware of his obligations or the nature of the payments made.
Despite being requested to do so the applicant provided no information regarding payment of income tax to the Department. On 29 November 2019 he provided the Tribunal with partial copies of 2016 and 2017 tax returns which were prepared by a tax agent. At the hearing he said that he had lodged the 2016 tax return sometime after July 2016 and he had lodged the 2017 and 2018 returns at the same time in 2018.
According to the applicant the 2016 return included about half of his income from Python Technologies, while the 2017 return included a full 12 months income. This suggests that the applicant’s taxable income in 2017 should have been significantly higher in 2017 than 2016, but it is slightly lower. When asked to explain this apparent discrepancy the applicant said that his income from his second job with Momentum Consultancy varied. I do not accept this explanation. If the applicant’s income from Momentum Consultancy had varied to such a significant extent, I believe he would have mentioned this when first asked about his income from that job. I find this to be a strong indication that the applicant had not provided an honest or accurate account of the source of the income included in his tax returns.
The tax returns provided by the applicant state that his taxable income in 2016 was $47,860, that $8,432, tax had been withheld from his wages and that total tax due that year was $7,101. For 2017 his taxable income was $46,634, $6,787 tax was withheld from his wages and tax payable amounted to $6,307. No PAYG instalments were received during either year. Information on the ATO website confirms the taxable recorded on these returns is correct. This indicates that the applicant’s entire income for those years came from a job or jobs for which an appropriate amount of tax was withheld by his employer. If a significant portion of the applicant’s income had been derived from income received as a self-employed contractor the amount of tax withheld from wages would have been significantly less. In reaching this conclusion I acknowledge that the single page extract from the applicant’s returns may not provide a full picture of his income and expenses during those years. However, when advised of my concerns regarding the information in the returns, the applicant suggested that the apparent discrepancies where caused by variations in his income from Momentum Consultancies. It is not plausible that Momentum Consultancies would have withheld over $6,000 in tax from the applicant’s income in 2017 if he only earned about $10,000, as suggested by his evidence at the hearing.
After considering all the applicant’s evidence, I do not accept that he failed to declare income earned form Python Technologies to the ATO prior to lodgement of his 189 visa application to avoid paying tax owed or because he was confused about his obligations. I believe that he failed to declare any income from Python Technologies to the ATO prior to April 2017 because he had never worked for Python Technologies and had never earned any income from them.
Fourth, while this alone would be sufficient to satisfy me that the applicant has provided false and misleading information regarding his employment for Python Technologies, there are also a number of problems with the payslips, contracts and payroll records he has provided which I find to be further indications that he had not provided an accurate account of his employment between 2012 and 2017.
The contracts provided by the applicant state that he was entitled to annual leave and sick leave, which suggests that he was an employee for Python Technologies, which does not sit well with the other evidence provided which describes him as a self-employed contractor. While it is plausible that the applicant himself might have been confused about the distinction between an employee and a self-employed contractor it is not plausible that someone with a workforce of 20 people and the services of an accountant would not have been aware of the differences between these categories.
I find the evidence regarding the applicant’s leave during his time at Python Technologies implausible. As a self-employed contractor the applicant would usually have been entitled to annual or sick leave. While it is possible that some businesses provide paid leave to self-employed contractors, I do not accept that Python Technologies would have paid the applicant significant amounts of money for leave to which he was not yet entitled according to the terms of his contract. For example, according to the payslips and payroll record provided he was paid in advance for 180 hours leave on 8 March 2013 when he had been working for business for slightly less than a year, and would have accrued slightly less than 80 hours leave.
The payslips which the applicant first provided in support of his application had overlapping start and finish dates, lacked details commonly recorded on these documents and indicated that was paid weekly rather than fortnightly as stated in the contracts provided. When these problems were pointed out by the delegate the applicant obtained a number of payslips, most of which covered a two-week period and included details of accrued leave and year to date income. He also provided a statement from the Python Technologies accountant which stated that the errors and omissions in the earlier payslips were the result of errors on his part when obtaining this information from the MYOB software used by the business. I do not accept this explanation. I do not accept that an accountant working for a company with a workforce of 20 people would have provided the applicant with flawed payslips and find that the payslips in response to the delegate’s letter setting out his concerns regarding these and other matters were manufactured in order to overcome these problems.
Fifth and finally, I note that Mr Ismail has a record of providing false or misleading information in relation to migration matters. It appears that Mr Ismail did operate a business which no doubt had some genuine employees and I would not have rejected the applicant’s claim that he worked for Python Technologies for this reason alone. However, it casts further doubt on the veracity of the information in the documents provided by Mr Ismail.
While some of the matters raised above are relatively minor and considered in isolation would not have caused me to reject the applicant’s claims regarding his employment, others are more significant, and after considering all of the relevant evidence I did not find him to be a credible witness. I do not accept that he was employed for 20 hours a week by Python Technologies between February 2012 and April 2017 when he applied for a 189 visa, and while I accept that the contracts, payslips and payroll records provided by the applicant were supplied by Python Technologies, I find that they were provided to assist the applicant with his 189 visa application and contain information which is not true.
I find that the work contracts, payslips, payroll records and the statements and letters signed by the applicant, Mr Ismail and the Python Technologies accountant in support of the applicant’s application contain false and misleading information, namely that the applicant worked for Python Technologies from February 2012 to April 2017. I find that this information was false and misleading at the time it was given and that it was relevant in a material particular to the applicant's claim for the Australian skilled migration points as per cl.189.224 of Schedule 2 to the Regulations.
Accordingly, I am not satisfied that there is no evidence that the applicant has given, or caused to be given, to the Minister, or an officer of the Department, the Tribunal or a relevant assessing authority, a bogus document or information that is false or misleading in a material particular in relation to his application for a Skilled Independent (Permanent) Subclass 189 visa. I therefore find that the applicant does not meet the requirements of PIC 4020(1)(a).

In reaching this conclusion I have also considered the statutory declaration dated 14 May 2012 signed by Vivek Patel and the online exchanges between the applicant and colleagues at Python Technologies between 22 September 2015 and 28 January 2016. The former was provided by a friend of the applicant. The latter could easily have been manufactured by anyone with a computer and some IT knowledge. Both of them purport to confirm claims which I have found to lack credibility. I have given little weigh to both of these documents.
Submission from the applicant’s adviser including submissions relating apprehended bias
On 25 September 2019 the applicant’s representative requested a copy of the applicant’s Department file. According to Tribunal records this file was forwarded on 25 September 2019. On 22 October 2020 the representative advised that the file had not been received and expressed concern that the Tribunal did not have a copy of the file and therefore could not have considered the material relevant to the applicant’s case prior to inviting him to a hearing. It appears that due to an inadvertent error a copy of a file relating to a different visa application lodged by the application may have been forwarded to the applicant on the 25 September 2019. A copy of the Department’s file relating to his 189 visa was subsequently forwarded to his representative.
On 12 June 2020 the applicant’s representative responded to a letter inviting the applicant to comment on information from the Department regarding Mr Ismail’s dealings with the Department by asking for clarification of the information. He also stated that the applicant had lodged a complaint regarding the hearing and issues of apprehension of bias.
In response additional information on the evidence regarding Mr Ismail was provided to the applicant. He was also advised that I had not been advised of any complaint regarding the conduct of the hearing and that I did not intend to withdraw from the case.
On 20 July 2020 the applicant’s representative advised that the complaint referred to in his letter dated 12 June 2020 was sent out in correspondence to the Tribunal dated 9 December 2019.
I have reviewed the applicant’s submissions of 9 December 2019. In this submission he stated that the applicant had felt that he was verbally abused and denied his natural justice rights and that I had not brought an impartial mind to the consideration of his case. While the submission does not specifically request that I disqualify myself on the grounds of apprehended bias, I have assumed that this was the intention of the letter.
The complaint of abuse appears to relate primarily to a discussion of the applicant’s evidence that he had not declared any income from Python Technologies to the ATO prior to lodging his application for a 189 visa and had only ever declared part of that income to the ATO. During the hearing I observed that this appeared to suggest that the applicant had not been honest in his dealings with the ATO which did not reflect well on his credibility. The issue before me related to the applicant’s credibility and whether he had provided false or misleading evidence in support of his 189 visa application. In this context I do not accept that my questions and observations were inappropriate or amounted to abuse or bias. Furthermore, as set out above, while I have found that the applicant provided false and misleading evidence to the Department and the Tribunal in support of his 189 visa application, after considering all of the evidence, I have concluded that he was not dishonest in his dealing with the ATO.
With regard to the issue of natural justice this relates to a discussion of information which the applicant provided in his 457 visa application regarding the nature of his employment with Python Technologies and the ban imposed on Mr Ismail. In essence, he submitted that both of these matters should have been put to the applicant in accordance with s.359AA or s.359A of the Act, and with regard to the latter he also suggested that this information had been withheld from the applicant when he applied for a copy of the Department and Tribunal files prior to the hearing.
With regard to the former point, I asked the applicant about the information in his 457 visa as it appeared that he may have given differing accounts of the nature of his work at Python Technologies. However, this was not put to him in accordance with s.359A of the Act because on reflection it did not appear to be significantly at odds with his later evidence.
With regard to the latter point, I was alerted to the possibility that Mr Ismail had been banned from sponsoring applicants for migration because it was mentioned in other Tribunal decisions. I requested specific information on the reasons Mr Ismail was banned from acting as a sponsor by the Department, but this was not received prior to the hearing. As noted above, after this information was received the applicant was of advised of the issues relevant to his application and provided with an opportunity to comment. I took account of his comments in my consideration of his application.
After considering the submissions relating to this issue, I do not accept that there are grounds for disqualification as a result of bias or apprehended bias.
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 r.1.03 of the Regulations), 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.
No evidence has been provided which suggests that that the requirements of PIC 4020(1) should be waived for the reasons set out above.
CONCLUSION
On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.189.215.
DECISION
The Tribunal affirms the decision not to grant the applicants Skilled Independent (Permanent) visas.
Roslyn Smidt
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 4131

4 August 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction