Batra v Minister for Immigration and Citizenship

THE APPLICATION TO THE TRIBUNAL 34 On 29 September 2010 the appellant filed an application to the Tribunal seeking to overturn the cancellation of his visa. On 8 November 2010 the Tribunal wrote to the appellant and gave him an opportunity to respond to the information that underpinned the delegate's decision to cancel his visa, namely that: (a) he was never employed as a pastry cook or in any other capacity at O'heas Bakery from 24 July 2006 to 15 June 2007, or at any other time; (b) he had knowingly submitted a false work reference to TRA asserting that he had completed over 900 hours of work experience as a pastry cook at O'heas Bakery; and (c) knowing that he had obtained a favourable skills assessment from TRA on the basis of a false work reference, he had submitted this assessment to the Department in support of his visa application. 35 In its letter the Tribunal also indicated another issue for the appellant was whether he would have achieved the required qualifying score of 120 points if he had not received 60 points through the falsely obtained positive Skills Assessment. The Tribunal stated: This information would be the reason or part of the reason for affirming the decision under review because in assessing your claims is for a subclass 885 visa, the delegate assigned you 60 points in the general points test (GPT) for having a skilled occupation (Cook - ASCO Code 4513-11) which, in conjunction with points assigned for other relevant attributes, resulted in your obtaining an overall score in the GPT of 120 points, which equated with the qualifying score at the relevant time. Without the falsely claimed work experience attested to in the purported work reference mentioned above, you would not have received the favourable, but bogus, TRA skills assessment as a pastry cook. Without the bogus TRA skills assessment you would not have been awarded 60 points in the GPT, and would not have achieved the pass or pool marks. Consequently, your application for a subclass 885 visa, and indeed for any other visa within the Class VB, would not have been successful, and you would not have acquired permanent residence. You are invited to give comments on or respond to the above information in writing. 36 The appellant gave no substantive response in relation to the false work reference or its effect in relation to his achieving a qualifying score. In its decision of 3 March 2011 the Tribunal noted at [25] to [26]: [25] The applicant has, in the Tribunal's assessment, studiously avoided any direct comment on the truth or falsity of the central allegation against him, viz, that he was never employed as a pastry cook or in any capacity from 24 July 2006 to 15 June 2007 or at any other time at O'heas, contrary to the claims made in a purported work reference dated 10 June 2007, despite a direct invitation from the Tribunal to do so, and a clear indication that this matter would, subject to any comments he may care to make, be the reason or part of the reason for affirming the decision to cancel his visa. [26] The Tribunal has seen evidence that in the course of an interview with Departmental investigators in November 2009, an individual admitted to receiving cash payments of between $1,500 and $2,400 from numerous visa applicants for fabricating employment references on their behalf, and paying the owner of O'heas between $300 and $500 for his signature on each such document. Hundreds of false work references were found at the residence of this individual, who confirmed that no international students had worked at O'heas. The Tribunal attaches substantial weight to this information, particulars of which were duly provided to the applicant with an invitation under s 359A of the Act to comment on them. Despite the implications being clearly spelt out to the applicant, his agent failed to respond directly, instead busying herself with procedural and legal issues of a largely tangential, technical or irrelevant kind. 37 Instead, the appellant's arguments focussed on the fact that TRA had not been properly specified as a "relevant assessing authority" under the Regulations. The appellant argued that neither the work reference provided to TRA, or the Skills Assessment he provided to the Department, were "bogus documents" within the meaning of s 97(c) of the Act, and there was no breach by the appellant of ss 101 and 103. 38 The Tribunal rejected these contentions, noting at [29]: The Tribunal has read and considered the agent's submissions, which set forth an assortment of claims that go behind and beyond the applicant's non-compliant actions, e.g. that TRA is not a legal entity and therefore cannot be designated as a relevant assessing authority by the Minister. While the Tribunal commends the agent's diligence and creativity, it finds the bulk of her arguments misconceived, and in any event, has neither a need nor warrant to go behind the alleged breach in the way she urges. The bogus character of the TRA skills assessment is in no way altered or diminished by the alleged invalidity to which she refers; it was, in the Tribunal's view, obtained because of a false or misleading statement to the effect that the applicant had worked for 900 hours at O'heas. That is all that is required to bring it within the ambit of s97(c). Moreover, the express terms of s.103 prohibit the presentation of any such bogus document to the Department, and do not provide for any exceptions or qualifications. 39 At [30] the Tribunal said: The Tribunal is also satisfied, contrary to the agent's claims, that the 900 hours of work experience requirement was indeed a standard precondition for accreditation by TRA as a Pastry cook at the relevant time. It is also satisfied on the basis of its own examination of Departmental guidelines that a positive TRA skills assessment was in turn a condition sine qua non of an applicant being granted 60 points in the General Points Test. 40 The Tribunal dismissed the alleged breach of s 101 of the Act, but found that the appellant did not comply with s 103. The Minister's discretion under s 109(1) of the Act to cancel the appellant's visa was therefore enlivened. 41 Then, in deciding whether or not to cancel the appellant's visa, the Tribunal gave consideration to the prescribed circumstances in reg 2.41. Regulations 2.41(a), (b) and (c) required the Tribunal to consider "the correct information" or "the genuine document" and the likely effect of such information or document on the decision to grant a visa to the appellant. 42 In relation to reg 2.41(a) the Tribunal found at [35] that the "correct information" was that the appellant was never employed at O'heas Bakery and did not have 900 hours of relevant work experience. 43 In relation to reg 2.41(c) the Tribunal found at [37]: The Tribunal is satisfied that the positive TRA skills assessment would not have been issued had it been apparent that the applicant had no work experience, and that in the absence of the TRA accreditation, the applicant would not have been awarded 60 points for skill in the GPT. Without those 60 points, he would not have met the pool or pass marks in force at the relevant time, and the visa would not have been issued to him. 44 At [46] the Tribunal noted: … In the present case, it is satisfied to the required degree that the applicant committed an egregious breach of s 103 of the Act, in a premeditated and deliberate deception that was calculated to secure him a permanent visa to which he knew full well he was not entitled. His conduct involved a cynical betrayal of the trust and good faith on which the skills accreditation system, like many such administrative systems, almost inevitably relies in an era of dwindling public resources and risk management. The review applicant's misconduct represents an assault on the integrity of the Australian immigration system, and undermines the rationale for the Commonwealth's skilled migration program. In the final analysis, a scheme designed to bring skilled individuals, including pastry cooks, into Australia has netted the country a supermarket worker, who has never worked as a pastry cook, or in any other skilled capacity, since acquiring permanent residency. 45 The Tribunal affirmed the delegate's decision to cancel the appellant's visa.