Alam (Migration) [2021] AATA 3155 (29 July 2021)

DECISION RECORD

DIVISION:	Migration & Refugee Division

APPLICANTS:	Dr Mohammed Khurshedul Alam Master Mohammad Zabir Zubaeer Alam Ms Israt Afroz Elora
CASE NUMBER:	1923989

DIBP REFERENCE(S):	BCC2017/1874878

MEMBER:	Tim Connellan

DATE AND TIME OF
ORAL DECISION AND REASONS:	29 July 2021 at 3:29 pm (VIC time)

DATE OF WRITTEN RECORD:	20 August 2021

PLACE OF DECISION:	Melbourne

DECISION:	The Tribunal remits the decisions under review with the direction that the applicant meets cl.
189.215.

Statement made on 20 August 2021 at 2:07pm

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled – Independent) – false or misleading information in visa application – employment in home country before studying in Australia and later work as part-time volunteer – verification check – general manager confirmed work as volunteer, but did not know about earlier employment – letters from managing director and general manager provided to tribunal – decision under review remitted

LEGISLATION
Migration Regulations 1994 (Cth), Schedule 2, cl 189.215, Schedule 4, PIC 4020

APPLICATION FOR REVIEW

1.	This is an application for review of decisions made by a delegate of the Minister for Immigration on 19 August 2019 to refuse to grant the visa applicants Skilled Independent (Permanent) Subclass 189 visas under the Migration Act 1958 (the Act).

2.	At the hearing on 29 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.	Dr Alam you lodged an application for a 189 skilled independent permanent visa back on 26 May 2017 nominating your skilled occupation as primary health organiser and manager, which is number 134213 on the ANZSCO code.

4.	On 19 August 2019 the delegate made the decision to refuse your application on the basis that you did not satisfy a requirement for the grant of a visa. The delegate found you did not satisfy clause 189.215 because you had provided evidence that was false or misleading in a material particular in relation to your visa, specifically your claim to have worked at New Star Laboratories from the period 1 July 2009 to 12 July 2012. The delegate therefore refused your application and you appealed that decision to be reviewed by this Tribunal.

5.	As I said, the role of the Tribunal is to take a fresh look at your application and to make a new decision. You have provided a very substantial range of documents and evidence and at today’s hearing I have questioned you at length on the issues raised by the delegate in the primary decision.

6.	As a result of the evidence that you have provided particularly documents from a Mr Ahmed, the general manager, and Dr Sirazee, the managing director of New Star Laboratories where you worked, that detailed and clarified your employment circumstances, I am satisfied you worked there from 2006 until July 2012 when you left Bangladesh to come to Australia to study.

7.	You returned to Bangladesh between January 2016 and July 2017 when you worked in a voluntary capacity on a part-time basis. The investigating officers referred to in the primary decision attempted to verify the evidence and the documents provided. From the evidence now available to the Tribunal, I believe there were some communication problems leading to misunderstandings.

8.	The General Manager who was questioned had not been employed by New Star laboratories when you worked there full time and I believe he responded to questions about your employment that he was aware of, which was when you had gone back and worked as a volunteer between January 2016 and July 2017.

9.	He provided honest answers that there were no salary records, you were not paid a salary. There were no payslips, you were not an employee, so there were no employment records. He was not referring to the period when you had worked there as a full-time employee, and I believe that was a misunderstanding that led to the decision of the primary decision maker to refuse your application. As I say, I am satisfied from the evidence provided that you did work for the company for the periods as claimed. I am satisfied that you have not provided any bogus or documents that are false or misleading in a material particular in relation to your visa.

10.	I am therefore satisfied that there is no breach of PIC 4020 and that you do satisfy clause
189.215. It is therefore my decision to remit this matter to the Department with directions that you satisfy clause 189.215.

DECISION

11.	The Tribunal remits the decisions under review with the direction that the applicant meets clause 189.215.

Tim Connellan Member