1420159 (Migration) - [2015] AATA 3910

1420159 (Migration) [2015] AATA 3910 (22 December 2015)
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DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mistyak Pty Ltd
VISA APPLICANT:  Mr Kaashif Abdul Salam Ansari
CASE NUMBER:  1420159
DIBP REFERENCE(S):  BCC2014/18896
MEMBER:Lesley Hunt
DATE:22 December 2015
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 (Temporary Work (Skilled)) visa:
·Public Interest Criterion 4020 for the purposes of cl.457.224 of Schedule 2 to the Regulations.

Statement made on 22 December 2015 at 4:50pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 18 September 2014 to refuse to grant the applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 3 January 2014. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.457.224 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant did not met Public Interest Criterion 4020 as there was evidence before the department that the visa applicant has given or caused to be given information that is false or misleading in a material particular.
The review applicant was represented in relation to the review by its registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1420159 (Migration)

Details

AGLC: 1420159 (Migration) [2015] AATA 3910
Case: [2015] AATA 3910
Decision Date: 22 December 2015

CaseChat Overview and Summary

The matter before the Tribunal involves a visa applicant seeking a Temporary Business Entry (Class UC) visa. The Tribunal has reviewed the application and concluded that the matter should be remitted for reconsideration. The primary issue before the Tribunal was whether the visa applicant met the Public Interest Criterion 4020 (PIC 4020) as required by cl.457.224 for the grant of the visa. This criterion includes ensuring that the applicant has not provided false or misleading information or bogus documents in relation to the visa application or any previous visa applications within the last 12 months. It also ensures that the applicant and their family unit members have not been refused a visa due to non-compliance with PIC 4020 in the past three years, and that the applicant's identity has been satisfactorily verified.

The Tribunal considered whether the applicant had provided false or misleading information or bogus documents, as defined under cl.4020(5) and s.5(1) of the Act. The Tribunal noted that while the definition of 'bogus document' includes documents obtained through false or misleading statements, it does not necessarily need to be relevant to the visa application criteria. The requirement in cl.4020(1) applies regardless of whether the Minister became aware of the false information or bogus documents through the applicant. The Tribunal found that the applicant met PIC 4020, and thus, the matter was remitted for reconsideration with a direction that the applicant satisfies the criterion for a Subclass 457 (Temporary Work (Skilled)) visa.

The Tribunal's reasoning was based on a detailed examination of the evidence and the legal criteria outlined in cl.4020. The Tribunal concluded that the applicant did not provide any false or misleading information or bogus documents, and that there were no previous visa refusals due to non-compliance with PIC 4020 in the past three years. The applicant's identity was also satisfactorily verified. The Tribunal's decision to remit the application for reconsideration was based on the finding that the applicant met the necessary criteria for a Subclass 457 visa.

The final order of the Tribunal was to remit the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the applicant meets the Public Interest Criterion 4020 for the purposes of cl.457.224 of Schedule 2 to the Regulations. This decision ensures that the application will be reviewed with the appropriate criteria in mind, providing the applicant with a fair opportunity to demonstrate their eligibility for the visa.

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 matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE 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). 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? 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. 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. 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.

Decision

Reasons for decision

On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl.457.224.DECISION The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 (Temporary Work (Skilled)) visa:·Public Interest Criterion 4020 for the purposes of cl.457.224 of Schedule 2 to the Regulations.Lesley HuntMemberATTACHMENTMigration Regulations 1994Schedule 44020(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 1958s.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. …

Ratio Decidendi

Legal Principle Established

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