Providing correct information for skills assessment
The decision by the Federal Magistrates Court of Australia in Batra v Minister for Immigration & Anor [2012] FMCA 544 shows the importance of providing correct employment details for skills assessments.
The applicant in Batra applied for a Skilled – Independent (Residence), Subclass 885, visa in February 2008. He claimed to have worked as a pastry cook.
A skills assessment, carried out by Trades Recognition Australia (“TRA”), was submitted to the Department of Immigration and Citizenship. It indicated that the applicant had the requisite experience of 900 hours as a pastry cook to qualify for the visa.
TRA based its skills assessment on a work reference supplied by the applicant, to the effect that he had performed over 900 hours of unpaid work as a pastry cook with O’Hea’s Bakery & Deli. Unbeknown to TRA, the work reference was false. It appeared Mr. Batra had not been employed at the subject bakery.
The applicant was issued a visa in December 2008, partly on the basis of the skills assessment of TRA. After investigating the applicant’s employment history, the Department realized that the work reference he presented to TRA was not genuine.
Visa cancellation
As a consequence, the applicant’s visa was cancelled in September 2010 pursuant to section 109(1) of the Migration Act. That provision effectively allows the Minister to cancel a visa where information submitted in an application is incorrect.
Federal Magistrate Riley found that the applicant’s TRA skills assessment had no legal effect, as a skills assessment. However, that did not mean the skills assessment should be treated as if it had never existed, or as not being submitted to an officer or an authorised system.
In fact, the TRA skills assessment was obtained due to a false or misleading statement, namely, that the applicant had worked 900 hours with O’Hea’s Bakery & Deli. The skills assessment of the applicant was therefore a bogus document for the purposes of section 97(c) of the Act.
By sending the skills assessment to a visa officer, or an authorised system, the applicant breached section 103 of the Act, thereby triggering provisions authorising cancellation of the visa.
Her Honour said that it was immaterial whether or not the skills assessment was classified as an administrative decision, and whether or not the skills assessing body had power to perform functions under the Act. It was also immaterial whether the skills assessment could be seen as an assessment altogether. Thus, the question of whether the TRA skills assessment was a valid skills assessment was irrelevant.
Notwithstanding, because the TRA skills assessment was a physical document, and since it was obtained on the basis of false or misleading information, it was a bogus document.
If the skills assessing body had known that the applicant lacked work experience, it would not have issued the positive skills assessment. Furthermore, the applicant would not have received sufficient points for skill to qualify for the sought visa without the TRA accreditation.
In the circumstances, it was reasonable to rely on the submitted TRA skills assessment, which was a bogus document within the meaning of the Act, in order to cancel the applicant’s visa.
The Court’s decision in Batra illustrates that a visa may be cancelled after it is issued where the visa applicant submits incorrect work experience records to a skills assessing body, and the resulting skills assessment, a bogus document, is used for awarding points to meet relevant visa requirements.
