Subclass 489 Skilled Regional Sponsored (Provisional) Visa Appeal
Material Facts of Applicant
19 May 2018 – applicant applied subclass 489 Skilled – Regional Sponsored (Provisional) visa on 19 May 2018.
February 2019 – a Departmental officer telephoned the Institute and spoke with a Dr Soni, who identified themselves as the principal of the Punjab Institute of Technical Education (“the Institute”) where the applicant claims he employs.
11 April 2019 – delegate of the Minister sent a natural justice letter to provide comment on the suspected ‘non-genuine’ information supplied to the Department.
08 May 2019 – the applicant provided the department with statement letters prepared by four work colleagues.
15 May 2019 – delegate refused the visa application.
19 July 2019 – The applicant seeks judicial review of the delegate’s decision to refuse his visa. It is to be noted that the application for review by this Court was filed out of time.
06 April 2020 – the original hearing date listed but the applicant has no submission filed.
14 May 2020 – The date that Counsel for the applicant, who had only recently come into the matter, made an application for an adjournment until and orders were made for the filing and serving of any additional affidavit material and submissions.
16 April 2020 – Submissions by the applicant were subsequently filed, along with an affidavit affirmed by the applicant.
Issues from the Delegate’s Decision of the Subclass 489 Visa
The applicant claimed to have five points for three in 10 years, including overseas work experience as a Network Administrator with the Institute.
In an attempt to verify this work experience, the Department of Home Affairs (“the Department”) made a series of employment verification checks based on the details provided by the applicant.
It was confirmed that the applicant commenced employment at the Institute six years ago. The person advised that the applicant teaches computers to students. The person advised the applicant is still employed with the Institute but was currently on leave.
With regards to personal statements prepared by four work colleagues, the delegate found these documents were personal statements only and without the provision of independent third-party verifiable evidence. The delegate concluded they gave little weight.
With regards to a personal statement by Dr. Anita Soni, it was noted she provided a different version of events than those provided when questioned by departmental officers by telephone in February 2019. The delegate placed greater weight on the spontaneous responses provided to departmental officers at the time of the telephone interview and therefore afforded this document little weight.
Accordingly, the delegate concluded that the applicant provided false information, including that he ceased employment with the Institute on 17 January 2018 and he was employed as a Teacher of Computing and not as a Network Administrator, as claimed in his visa application.
Grounds for Appeal
The delegate has misconstrued his claims by regarding past employment as a Network Administrator as being a statement of his current occupation (which he had never intended to convey and could not reasonably be inferred from what it claimed in his written on-line application) which the applicant says was contrary to law.
Consideration
Out of time application – the application was filed 65 days after the relevant migration decision and well outside the 35 day time limit provided by s477(1) of the Migration Act.
The applicant is and always has been outside the jurisdiction and resident in India.
It appears it has been necessary for the applicant to change legal representatives, given the failure of his first representatives to comply with Court orders.
The seriousness of the findings that the applicant gave false information, which will result in a time bar for further visa.
Hence, these are all in favor for the Applicant.
Ground for appeal – whether it is vague or have legal contention
While the respondent states that the ground put forward by the applicant is vague and particularized, the Court proposes to understand the ground as being the decision of the delegate, is legally unreasonable.
Definition of legal unreasonableness
The test for unreasonableness is stringent and extremely confined: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [11], [52] and [113];
where reasons have been provided then the reasons are the focal point for assessing whether the decision was unreasonable: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 at [46] –[ 47];
mere strong disagreement with factual reasoning does not established jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 at [40];
There must be an error so grave both as to its nature and the significance of its subject matter that it results in a decision that has been reasoned in a manner that is not authorized: Hossain at [25], [30] – [31].
Whether the delegate’s decision is legally unreasonable
The statements prepared by the four work colleagues are categorized as being “personal statements” only and without the provision of independent third-party verifiable evidence, they do little to support the applicant’s employment claims.
The Court finds this statement very difficult to accept. What verifiable third-party evidence would have been acceptable, in the applicant’s circumstances, is very difficult to understand. These were work colleagues of the applicant. Their position within the employer is verified through the attachment of their identity cards, which shows they are employees and their positions within the Punjab Institute. The conclusion that the evidence within the statements is not independent third-party verifiable evidence, is to the Court’s mind, illogical and irrational. The Department took no steps to verify the information with particular individuals and simply dismissed it and gave the statements little weight.
In the decision of the delegate, it is stated that the material provided does not address direct inconsistencies with the spontaneous responses provided by a person, the delegate described as the Principal, Ms. Soni. For instance, Ms. Soni advised, in the telephone conversation, that she had commenced work at the Institute six years ago, in approximately 2013 and not 1 August 2010, as stated by the applicant in his personal statement. Rather, the delegate prefers the material, which is recorded by the Department, in its telephone conversation with Ms. Soni. Ms. Soni, in her letter of 3 May 2019, provides an explanation as to the confusion in the conclusions of the delegate. This includes that Ms. Soni was interrupted in a meeting and that when she asked for the caller to ring back, they did not do so. The delegate says they preferred the information spontaneously provided in the telephone call.
The Court is satisfied that the finding that the applicant commenced employment at the Institute, in approximately 2013 and not in August 2010, was a central part of the decision to find that the applicant had provided material to the Department, which was false or misleading in a material particular. The Court is satisfied that the reasons for dismissing the evidence provided by the four work colleagues are irrational and illogical. The Court is satisfied that as a result, this decision is affected by jurisdictional error.
Conclusion
An order that the decision of the Tribunal, Immigration Assessment Authority or Minister be quashed.
A writ of mandamus directed to the Tribunal, Immigration Assessment Authority or Minister, requiring them to determine the applicant’s application according to law.
An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from making the future decision or taking the other action the subject of the proceedings.
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