The recent Federal Court appeal case of Fati v Minister for Home Affairs examined issues relating to an employment reference letter prepared by an employee of a business in the context of an Australian visa application, and whether that letter was a bogus document or information that is false or misleading in breach of public interest criterion 4020 (“PIC 4020”) under the Migration Act 1958 (Cth).
This case provided some interesting learnings for visa applicants and employers, which we summarise below.
Background
The Department of Home Affairs refused a subclass 572 student visa application lodged by Mr Fati, on the basis that it believed that the applicant had provided an employer reference letter which was bogus, or contained information that was false or misleading. Mr Fati appealed that refusal decision, and the matter was heard by the Federal Court on appeal.
The document in question was an email employment reference from Mr Gatti, an employee of the Italian pizzeria business where Mr Fati had previously worked. The reference stated that Mr Gatti was aware of Mr Fati’s intended course of study in Australia, that he had worked at the restaurant in the past and that there was a position available for Mr Fati to work for his new pizzeria in Turin, Italy.
The email was sent from what appeared to be a company email address and the email was signed off by “The Pizzeria I DUE MORI” with contact details for “Mr Roberto Gatti”.
This reference was provided to the Department in support of a student visa application, to show that Mr Fati had a genuine intention to stay in Australia temporarily and return to Italy for employment opportunities.
Public Interest Criteria 4020
For the grant of a visa, an applicant must satisfy PIC 4020 which states as follows:
(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.
The Department conducted integrity checks of the reference and the owners of the business, and deemed that the email received was a bogus document. It was identified that Mr Gatti was not known to the current operators of the business.
Given that the email purported to be a genuine letter from the owners of the pizzeria, however it was not in fact a genuine letter from the owners and had been sent without the owners’ authorisation, the Department found that the document was not genuine and refused the student visa application.
What to take note of
PIC 4020 is important – it is applied to almost every Australian visa application and requires that the information and documents provided for every applicant is true and correct.
The PIC 4020 has three components:
- An applicant must not give, or cause to give, a bogus document or information that is false or misleading in a visa application OR in any previous application for a visa held by the applicant in the previous 12 months
- A person is barred from applying for a visa for 3 years, if they or any dependent family member was refused a visa for not satisfying PIC 4020 on the basis of providing a bogus document or false or misleading information.
- A person is barred from applying for a visa for 10 years if they or a dependent family member was refused a visa for failing to provide genuine identity documents.
This case is a reminder that applicants and employers must be careful of the information and documents that are being provided to the Department of Home Affairs, particularly under the current climate which is moving towards increased scrutiny. The Department of Home Affairs will consider all evidence provided in previous applications when evaluating whether an applicant meets PIC 4020.
Recommendations for Employers
Employers should particularly take note that when providing employment references for current or previous employees, it is important to ensure that the details of employment are correct and could be verified, if required.
Record keeping of foreign employees is critical to ensure that where necessary, you can provide accurate information relating to the duties the employee performed.
While record keeping is mandatory as a Standard Business Sponsor of a Subclass 457/482 visa, this is not the case for employers of non-sponsored employees. However, it is worthwhile maintaining the same level of record keeping of foreign employees within the business who are undertaking an fixed term or ongoing role.
We suggest that you keep a record of the following:
- Copy of passport photo page
- Copy of the position description of the role being performed. Update this as necessary.
- Copy of the employment contract
- Copy of visa approval and information of conditions attached
- Copy of any employment reference or confirmation of employment provided
- Details of any leave taken
Applicants or employees should be careful in instances where documents are being presented by third parties, such as employer, particularly in cases where applications are being ‘split’ and managed by separate providers or parties for the lodgement. Inconsistent information presented to the Department of Home Affairs could create issues under PIC 4020.
While there are provisions for the PIC 4020 to be waived, this will require compelling and compassionate circumstances to be demonstrated and the success of this application will be highly discretionary.
If you have any questions or concerns about how PIC 4020 impacts you or your business, please contact us at info@themigrationagency.com.au.
Reference: http://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2019/2019fca0052
