1418113 (Migration)

[2015] AATA 3071

1418113 (Migration) [2015] AATA 3071 (10 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  JENLAM PTY LTD

VISA APPLICANTS:  Mr MANJIT SINGH
Mrs KARAMJIT KAUR
Master EKNOOR SINGH

CASE NUMBER:  1418113

DIBP REFERENCE(S):  BCC2013/1587753

MEMBER:Glen Cranwell

DATE:10 July 2015

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 457 (Temporary Work (Skilled)) visas:

·Public Interest Criterion 4020 for the purposes of cl.457.224 of Schedule 2 to the Regulations.

Statement made on 10 July 2015 at 11:54am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 29 October 2014 to refuse to grant the applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 3 October 2013. The delegate refused to grant the visas on the basis that the first named visa applicant (the visa applicant) did not satisfy the requirements of cl.457.224 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the requirements of Public Interest Criterion (PIC) 4020 were not satisfied.

3. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.457.224 for the grant of the visa. Broadly speaking, this requires that:

   ·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: cl.4020(1); and

   ·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy cl.4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: cl.4020(2) and (2AA); and

   ·the applicant satisfies the Minister as to his or her identity: cl.4020(2A); and

   ·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy cl.4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: cl.4020(2B) and (2BA).

5. The requirements in cl.4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: cl.4020(4). However, this waiver does not apply to the identity requirements in cl.4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.

   Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?

6. The term ‘information that is false or misleading in a material particular’ is defined in cl.4020(5) and the term ‘bogus document’ is defined in s.5(1) of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in cl.4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Batra v MIAC [2013] FCA 274.

7. The requirement in cl.4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant: cl.4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.

8. While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42.

9. The visa applicant provided the Department with a Personal particulars for assessment including character assessment – Form 80.  This lists him as having 2 brothers and a sister, being Nirbhai (sic) Singh, Karamjit Singh and Jasprit Kaur. 

10. The Form 80 also contains details that the visa applicant worked as a self-employed farmer from May 1991 to October 2013, when the visa application was lodged.  A reference was provided from the Khuhiwala Trading Company in support of this.

11. Departmental officials conducted a site visit and purported to speak to the visa applicant, his wife, his brother Nirbhay and the village head (Sarpanch).  These persons all gave evidence that the visa applicant works as a mechanic and driver.  The Sarpanch, in particular, was recorded as stating that the visa applicant worked in Dubai as a bus driver.

12. Incomplete notes of the site visit appear at folio 161 of the Department file.  They state in part:

    PA also came to the house.  We spoke to him and he gave us the following information –

    ·He has 2 more brothers Manjit and Nirbhay.  Karamjit is in Dubai since 4 years and Nirbhay who is working as a school bus driver is also staying in the village …

13. As noted above, there are only 3 brothers – Manjit (the visa applicant), Nirbhay and Karamjit.  The above records indicate a level of confusion on the part of the Departmental officials themselves as to the identities of the brothers, as it seems unlikely that the visa applicant would have referred to one of his brother’s by his own name.

14. The visa applicant subsequently provided the Department with the following documents:

    ·Affidavit from the Sarpanch, stating that the Departmental officials spoke to his son, rather than himself.

    ·Affidavit from the Sarpanch’s son, stating that he spoke to the Departmental officials and incorrectly identified Karamjit Singh as the visa applicant.  Karamjit Singh works as a bus driver in Dubai.

    ·Affidavit from Nirbhay Singh, denying that he told the Departmental officials that the visa applicant worked as a driver.  He stated that he works as a driver.

    ·Farming records showing the visa applicant purchasing equipment and selling produce.

    ·The visa applicant’s passport, showing that he has never travelled abroad.

    ·Karamjit Singh’s passport, showing that he has travelled to Dubai.

15. It appears from these documents the Departmental officials were also confused as to the identity of the Sarpanch and spoke to his son instead.  Further, it seems clear that the Sarpanch’s son confused the visa applicant for his brother Karamjit Singh, in saying that the visa applicant worked as a bus driver in Dubai.  The visa applicant has never been abroad, whereas Karamjit Singh has travelled to Dubai.

16. The Tribunal considers that the records of the Departmental site visit are not only inconsistent with other objective evidence, such as passports, but also contain internal inconsistencies as set out above.  The Tribunal is not prepared to base a finding of a failure to meet PIC 4020 on evidence which is of questionable reliability.

17. Therefore, the applicant meets cl.4020(1).

    Has a visa previously been refused on the basis of a failure to satisfy cl.4020(1)?

18. Clause 4020(2) requires the Tribunal to be satisfied that the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy cl.4020(1) in the period commencing 3 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: cl.4020(2AA). 

19. There is no evidence that the visa applicant or any member of the family unit have been refused a visa in the relevant period because of a failure to satisfy cl.4020(1).  Therefore cl.4020(2) is met.

    Has the applicant satisfied the identity requirements?

20. Clause 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.  The visa applicant provided the Department with a copy of the identification page of his Indian  passport.  Therefore, the visa applicant meets cl.4020(2A).

    Has a visa previously been refused on the basis of a failure to satisfy cl.4020(2A)?

21. Clause 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in cl.4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: cl.4020(2BA).

22. There is no evidence that the visa applicant or any member of the family unit have been refused a visa in the relevant period because of a failure to satisfy cl.4020(2A).  Therefore cl.4020(2B) is met.

23. On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl.457.224.

    DECISION

24. The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 457 (Temporary Work (Skilled)) visas:

    ·Public Interest Criterion 4020 for the purposes of cl.457.224 of Schedule 2 to the Regulations.

    Glen Cranwell
    Member

    ATTACHMENT

    Migration Regulations 1994

    Schedule 4

    4020(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.

    (2)The Minister is satisfied that during the period:

    (a)starting 3 years before the application was made; and

    (b)ending when the Minister makes a decision to grant or refuse to grant the visa;

    the applicant and each member of a family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).

    (2AA)However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

    (2A)The applicant satisfies the Minister as to the applicant’s identity.

    (2B)The Minister is satisfied that during the period:

    (a)starting 10 years before the application was made; and

    (b)ending when the Minister makes a decision to grant or refuse to grant the visa;

    neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).

    (2BA)However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

    (3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.

    (4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:

    (a)compelling circumstances that affect the interests of Australia; or

    (b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

    justify the granting of the visa.

    (5)In this clause:

    information that is false or misleading in a material particular means information that is:

    (a)false or misleading at the time it is given; and

    (b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.

    …

    Migration Act 1958

    s.5      Interpretation

    (1) In this Act, unless contrary intention appears:

    …

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)purports to have been, but was not, issued in respect of the person; or

    (b)is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)was obtained because of a false or misleading statement, whether or not made knowingly. 

    …