1417925 (Migration)

Case [2019] AATA 1362

1417925 (Migration) [2019] AATA 1362 (24 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1417925

MEMBER:John Billings

DATE:24 April 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Residence) (Class VB) visas.

Statement made on 24 April 2019 at 3:10pm

CATCHWORDS
MIGRATION – Skilled (Residence) (Class VB) visa – Subclass 886 (Skilled - Sponsored) – Federal Circuit Court remittal – evidence of bogus document – false or misleading information – skills assessment – documents supporting 900 hours of work experience – third party admitted to creating false work reference letters for international students – business at which applicant claimed work experience implicated in systematic fraud – considerable delays – no compassionate or compelling circumstances – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 65, 359AA, 359A, 362A, 375A,
Migration Regulations 1994 (Cth), r 1.03; Schedule 2, cl 886.225; Schedule 4, PIC 4020

CASES
Arora v MIBP [2016] FCAFC 35
Babicci v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 77
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2013] FCCA 1162
MIAC v MZYNN [2012] FCA 1177
MIBP v Singh [2016] FCAFC 183
Mudiyanselage v MIAC [2013] FCA 266
MZYPZ v MIAC [2012] FCA 478
Paduano v MIMIA [2005] FCA 211
Plaintiff M64/2015 v MIBP [2015] HCA 50
Singh v MIMAC [2013] FCCA 1435
Sun v MIBP [2016] FCAFC 52
Trivedi v MIBP [2014] FCAFC 42

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

  1. This is an application by [the first named applicant], [the second named applicant] and their son, [the third named applicant], for review of a decision made by a delegate of the Minister for Immigration on 15 October 2014 to refuse to grant the applicants Skilled (Residence) (Class VB) visas under s.65 of the Migration Act 1958 (the Act).  For convenience, in this decision record the Tribunal sometimes refers to [the first named applicant] even where, in the relevant context, it refers to all the applicants. 

  2. There is a separate review application by [the first and second named applicant].  That application is in relation to a refusal to grant Skilled (Provisional) (Class VC) visas: AAT case number 1509387.

  3. [The first named applicant]’s son was born in Australia in [year].  That was after the Class VC visas were refused but before the primary decision was made in relation to the Class VB visas.  

  4. The applicants applied for the Class VB visas on 26 May 2008. The delegate refused to grant the visas on the basis that [the first named applicant] did not satisfy the requirements of cl.886.225 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because he did not satisfy PIC (Public Interest Criterion) 4020. The delegate found that [the first named applicant] provided to the Department a…

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Details
AGLC
1417925 (Migration) [2019] AATA 1362
Case
[2019] AATA 1362
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by the applicants against a decision of the Administrative Appeals Tribunal (AAT) which affirmed the refusal of their Skilled (Residence) (Class VB) visa, Subclass 886 (Skilled - Sponsored). The core of the dispute revolved around the authenticity of documents submitted to support the applicants' claimed work experience, which were crucial for meeting the visa requirements. The Federal Circuit Court had previously remitted the matter for reconsideration.

The primary legal issues before the Tribunal were whether the applicants had provided false or misleading information in relation to their visa application, specifically concerning documents purporting to evidence 900 hours of work experience. This involved determining the validity of a skills assessment and the credibility of supporting documentation, particularly in light of evidence suggesting a third party admitted to creating false work reference letters for international students, and that the business where the applicants claimed to have worked was implicated in systematic fraud. The Tribunal also had to consider the impact of considerable delays in the processing of the application and whether any compassionate or compelling circumstances existed to mitigate these delays.

The Tribunal reasoned that the evidence strongly indicated the existence of bogus documents and the provision of false or misleading information. It noted that a third party had admitted to fabricating work reference letters, and the business at which the applicants claimed to have gained their experience was reportedly involved in fraudulent activities. Despite the significant delays in the case, which spanned nearly 11 years, the Tribunal found that these delays had not impaired its capacity to properly consider the evidence. The Tribunal also considered a certificate issued under s.375A of the Migration Act 1958, which restricted the disclosure of certain information, and concluded that the certificate was valid, while also providing redacted versions of the relevant material to the applicants. The Tribunal ultimately found no compassionate or compelling circumstances to justify excusing the applicants' conduct.

The Tribunal concluded that the decision under review should be affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE It is nearly 11 years since [the first named applicant] applied for the Class VB visas. For various reasons there have been long delays, including the delay since the June 2017 hearing. These delays are obviously most unfortunate for [the first and second named applicant] and their son now aged [age] years. It is important to record, however, that the Tribunal considers that, in the circumstances of the case, the delay has not impaired its capacity to give proper consideration to the case: see, for instance, MIAC v MZYNN [2012] FCA 1177 at [32]-[37]. There is a certificate given s.375A of the Act dated 16 August 2016 that was given to the Tribunal in the present case. As to the Tribunal’s obligations with regard to s.375A certificates see generally MIBP v Singh [2016] FCAFC 183. The Tribunal provided a copy of the certificate to the applicants on 18 January 2017 and invited submissions as to the validity of the certificate. The certificate refers essentially to the material that the Tribunal attached to the April 2017 s.359A invitation. The certificate stated that disclosure would be contrary to the public interest because it contained information requested under the Privacy Act 1988 and disclosure would be detrimental to the integrity of the Department and “could raise safety issues” for the officers named in the material. By email dated 19 January 2017 [the first named applicant]’s representative made a submission to the effect that the certificate was not valid, the stated reasons for non-disclosure being insufficient as they were broad and vague. The representative further submitted that if the Tribunal found the certificate to be valid the officers’ names could be redacted if the names had not already been disclosed. The stated reasons for disclosure being contrary to the public interest are broad. Nevertheless, the Tribunal considers that the certificate is valid. In any event the Tribunal provided redacted versions of the material to [the first named applicant] as part of the s.359A invitation. On 25 October 2018, the day that the representative informed the Tribunal that he was waiting to see if [the first named applicant] would seek judicial review of the OAIC decision, the representative made submissions to the Tribunal that are related to the request for access to material referred to above, concerning the unrelated MRT [Case Number 1] in which [Mr F] gave oral evidence to the MRT. The submissions appeared to be to the effect that – whether considered under s.362A of the Act or as a matter of procedural fairness or both - the Tribunal should provide a copy of the decision record in MRT [Case Number 1] and the recording of the hearing or the transcript, if any. The material concerns another review applicant. The first request for the material was made in June 2017. The Tribunal has not provided the whole of the material to [the first named applicant]. The Tribunal considers that [the first named applicant] is not entitled to the material. The Tribunal further considers that it has given sufficient particulars of information under s.359A of the Act.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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