A 12-year-old document is at the heart of an Indian family's long legal battle against the Immigration Department.
An Indian family’s bid for an Australian skilled visa has been knocked back in the court over a 12-year-old document that was deemed bogus by the Immigration Department.
The full bench of the Federal Court allowed an appeal by the Immigration Minister against Ms Aulakh, her husband and two children– upholding the June 2014 decision of the Migration Review Tribunal that concluded she had used a bogus reference letter from her Indian employer as evidence of her employment as a hairdresser.
Ms Aulakh, first applied for a skilled independent visa in 2006 when she was in India. It was refused in October 2007 based on the findings of officers of the Australian High Commission who visited her place of work in the month of May that year.
She subsequently came to Australia with her husband in 2008 as an international student and applied for a skilled independent visa in 2010. In January 2014, her visa application was refused for using a “bogus document” as a work reference letter that she provided for a skill assessment in 2006.
Tribunal refuses the appeal
Ms Aulakh claimed to have worked full time as a hairdresser at a beauty parlour in Moga, Punjab from July 1998 to 2007 and to support her claim, she provided a work reference letter signed by her employer.
However, the Administrative Appeals Tribunal, on appeal by Ms Aulakh, concluded that she did not work as a hairdresser at the salon and affirmed the Immigration department’s decision to refuse her visa. The Tribunal noted there were inconsistencies in the evidence given by Ms Aulakh and her employer. It also noted that Ms Aulakh failed to provide relevant documents pertaining to her employment and the nature of her work.
“Her failure to do so raises concerns for the Tribunal in relation to whether she was employed at New Style Beauty Parlour and Coaching Centre,” the Tribunal noted.
"Illogical and irrational"
Ms Aulakh appealed against the decision in the Federal Circuit Court that overturned the decision in March 2017, saying the Tribunal’s conclusion was “illogical and irrational”.
Judge Wilson of the FCC said the Tribunal did not conduct “a fair hearing”.
“There was no evidence on the transcript that the Tribunal made available to [Ms Aulakh] the precise information obtained or supplied by the Australian High Commission officers.
“The Tribunal paraphrased the information on which those officers [of the Australian High Commission] had allegedly reported, but at no stage was the precise information laid out for the examination of [Ms Aulakh] or her solicitor.”
The Immigration Minister appealed the court’s decision in the Federal Circuit Court. One of the grounds for the Immigration Minister’s appeal was that Ms Aulakh did not list her employment at New Style Salon in India in her visa application under employment history.
Court ordered on 'factually erroneous basis'
In a decision handed down on the Immigration Department’s appeal, the Full Federal Court said on Tuesday overturned the Federal Circuit Court’s decision in favour of Ms Aulakh and her family.
Allowing the Minister’s appeal, the court said the Federal Circuit Court arrived at its conclusion on “factually erroneous basis”.
Justice Mortimer in the written judgment noted that Ms Aulakh’s representative had obtained a copy of the report of the site visit by Australian High Commission officers.
“The Federal Circuit Court findings overlook that fact,” the judgement noted.
The court also noted that according to the 2007 site visit report at Ms Aulakh’s workplace, her employer told the officers the information in the reference letter was “furnished by the applicant” and that she wasn’t fully aware of the contents of it.
The report also stated that Ms Aulakh worked only four hours per day, as opposed to her claim of full-time work as a hairdresser and that there was a low scope for hairdressing work there.
Justice Mortimer noted that the Federal Circuit Court had emphasised on evidence given by the employer to a question whether Ms Aulakh had worked for her, where she had said, “Yes. Yes. Definitely, she worked for me and she was one of the brilliant staff for me”, and that the Tribunal had ignored this evidence.
However, the Court while hearing the Immigration Minister’s appeal found that the Tribunal was “sceptical” about the employer’s evidence.
“In my opinion there is nothing apparently illogical or irrational about the course the Tribunal took,” said Justice Mortimer.
SBS Punjabi contacted Ms Aulakh’s lawyer, Nilesh Nandan. He declined to comment saying the matter was still before the court as it was still within the appeal period.
The court will conduct another hearing on the cost of the appeal to be paid by Ms Aulakh.