VUPPALAPATI (Migration)

[2021] AATA 4125

VUPPALAPATI (Migration) [2021] AATA 4125 (15 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Veera Venkata Surya Appanna Chowdary VUPPALAPATI

CASE NUMBER:  1913523

DIBP REFERENCE(S):  BCC2018/5258084

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:         15 July 2021 at 4:43 pm (VIC time)

DATE OF WRITTEN RECORD:                25 August 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 25 August 2021 at 6:49pm

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled Independent) – Computer Network and Systems Engineer – false or misleading information – employment history – bogus documents – waiver of requirement – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 189.211; Schedule 4, PIC 4020

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 27 May 2019 to refuse to grant the visa applicant a Skilled Independent (Permanent) Subclass 189 visa under the Migration Act 1958 (the Act).

2. At the hearing on 15 July 2021 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. Mr Veera Vuppalapati, you lodged this application for a 189 Skilled Independent (Points-tested) visa with your nominated occupation as Computer Network and Systems Engineer on 24 November 2018. 

4. Your application was refused on 27 May 2019 because the delegate found you did not meet a criterion in clause 189.211 which is a mandatory requirement for the grant of a visa and deals with what are known as Public Interest Criteria.  (abbreviated to PIC)

5. You appealed that decision to be reviewed by this Tribunal and with your application you included a copy of the primary decision which you today told the Tribunal you had read and understood.  I read from that decision on occasions and it appears you have a good understanding of why the delegate made the decision to refuse your application.

6. To be eligible for the grant of a 189 skilled independent visa an applicant must satisfy a range of criteria set out in the regulations.  One of those is PIC 4020 which states that to satisfy the criterion there is no evidence before the Minister, or in this case the Tribunal, that the applicant has given or caused to be given a bogus document or information that is false or misleading in a material particular in relation to the application for the visa.

7. In your case the delegate found that in support of your application you provided evidence that created a breach of PIC 4020.  Reading from that primary decision it states that in your application in order to meet regulation 189.224 you claimed at last one year out of the past 10 years employment in your nominated occupation of Computer Network and Systems Engineer. You claimed to have had that employment with a company called Python Technologies.  You claimed that you were employed by that company from 29 March 2017 until 30 June 2018.

8. In support of your application you provided a letter from the accountant dated 19 November 2018.  You provided a running balance account statement from the ATO dated 19 November 2018, an individual tax return for 2018, you provided payslips from Python Technologies from 3 July 2017 to 29 June 2018.  You provided a reference letter from Python Technologies dated 19 November 2018 and all documents from Python Technologies were signed off by the director, Mr Ahmer Arif Ismail, a reference letter dated 19 November, a contract agreement dated March 2017 and your skills assessment from the Computer Society in May 2018.

9. The situation is that as it says the Department received a letter from PPB Advisory who are a bankruptcy trustee, that letter was dated 14 November 2017 and it referred to the fact that the estate of Ahmer Arif Ismail, formerly trading as Python Technologies, had been declared bankrupt on 13 October 2017.  The letter from the bankrupt trustee stated that:

   I am not trading the business in my capacity as trustee of the bankrupt estate and have terminated all employment with the business.  I have not provided the bankrupt with any authority to trade the business as an undischarged bankrupt.

10. The Department made inquiries with the Australian Tax Office to verify your employment and received a response that there was no evidence you had received salary or wages from Python Technology for the financial year ending 2017 or 2018.  So, the Department, the delegate, refused your application as I say, and you appealed that decision to be reviewed by this Tribunal.  As I said to you, when matters come here my job is to take a fresh look at your case and make a new decision. 

11. There were, and are a number of concerns and issues in your case and, as I explained, when considering if someone satisfies 189.211 there are two stages the Tribunal must consider. Firstly, whether you have provided evidence that creates a breach of PIC 4020 and if found that you have created such a breach, it must consider whether there are circumstances that would lead to a waiver of the provision.  I asked you whether there were circumstances that would lead to a waiver and your evidence in response indicated that there were no such circumstances.

12. I provided you with information pursuant to section 359AA on two separate occasions.  Firstly, about the fact that yours is not the only claim to have come before the Tribunal of having worked for Python Technologies during this period as a computer professional for times after when they had been declared bankrupt. 

13. The fact that a small business like this has multiple claimants claiming what appear to be mirror claims supported by documents provided by the managing director raises very serious concerns about the truth of the information provided and raises the question as to whether your employment with Python Technologies was an arrangement that you had set up between yourself and the employer for the purposes of claiming skilled employment points rather than a genuine employment arrangement.

14. The other evidence that was put to you under 359AA concerned three matters.  Firstly, that the bankruptcy trustee advised that he was not trading the business and terminated all employment and had not provided the bankrupt authority to trade the business and that had happened in October 2017.  You claimed to remain employed there until October 2018 which would appear to be extraordinary. 

15. You say you were a contractor to Python Technologies and were unaware of the bankruptcy,  which means the Tribunal is faced with the question of whether you would you have known of the bankruptcy.  The bankruptcy trustee is a well-known accounting practice that is a very large bankruptcy trustee, PPB Advisory, and they advised without any questions that, “We have terminated all employment with the business.”  That would have included all arrangements with contractors however you say, “I did not know anything about that.”  The Tribunal must make a decision as to which evidence it believes, and I give greater weight to the evidence PPB Advisory to the department that the company was not trading. 

16. It was also put to you under 359AA that the Department made inquiries with the tax office to verify your employment and it found there was no evidence you had received salary or wages from Python Technologies for the 2017 or the 2018 financial years.  You say, “Well, I worked there as a contractor and, you know, they might not have known or whatever, but I worked there and paid my taxes and whatever.”  There is no evidence before the Tribunal that satisfies the Tribunal that you worked for Python Technologies and the fact that the tax office declare that there is no evidence of you having earned an income from Python Technologies, leads the Tribunal to find that that is a statement of fact.

17. Evidence from the ATO reveals that during the period July 2017 to 30 June 2018, when you claimed to have been working for Python, you declared your main salary and wages to be retail assistant as a console operator in a service station.  Employment evidence provided is that you were employed by an entity called Eureka which you say was Coles Express, from 1 July 2016 to 20 January 2017, and by Karargy which you say is a company trading as Budget Petrol from 1 March 2017 to 30 June 2018.

18. You advised the tax office that your occupation was that of Retail Assistant, Console Operator with a service station and yet with your application for a visa you claim that you were employed during this time by Python Technologies.  You did not provide a satisfactory response to those concerns and there is no satisfactory evidence before the Tribunal that you received an income from Python during the period you claim you were employed.

19. What you have provided is a range of texts between yourself and this Mr Ismail, the director of the company.  Those texts are regarding unpaid superannuation, they make no reference to your employment.

20. On the evidence available I have reasonable grounds for suspicion that the evidence you have provided of employment with Python Technologies in support of your application for the purpose of gaining points under regulation 189.224 is false or misleading information.  You say there are statutory declarations from Mr Ismail, well, I believe those documents are bogus, therefore I believe that you have provided evidence in support of your application that was either bogus and/or misleading.  Therefore, I find you are in breach of Public Interest Criteria 4020. 

21. In considering whether the requirement to satisfy PIC 4020 should be waived you have provided no evidence to the Tribunal that there were compelling or compassionate circumstances that met the definition that would lead to the waive of the criterion, so there is no evidence before the Tribunal that PIC 4020 should be waived. 

22. In the circumstances it is the decision of the Tribunal to affirm the decision under review that you do not satisfy clause 189.211, therefore, the primary decision to refuse your visa stands. 

    DECISION

23. The Tribunal affirms the decision under review.

    Tim Connellan
    Member