1502228 (Migration) - [2015] AATA 3107

1502228 (Migration) [2015] AATA 3107 (16 July 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Harwinder Singh
CASE NUMBER:  1502228
DIBP REFERENCE(S):  BCC2012/993687
MEMBER:Filip Gelev
DATE:16 July 2015
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.
Statement made on 16 July 2015 at 6:14pm

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 4 February 2015 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).
2. The applicant applied for the visa on 14 September 2012. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.485.224 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because that the applicant did not satisfy the requirements of cl.485.224 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because he did not meet the requirements of Public Interest Criterion PIC 4020(1).
3. The applicant appeared before the Tribunal on 16 June 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
4. The applicant was represented in relation to the review by his registered migration agent.
5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
6. The issue in this review is whether the visa applicant meets PIC 4020 as required by cl.485.224 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).

7. The requirements in cl.4020(1)…

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.

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Details

Case: [2015] AATA 3107
Decision Date: 16 July 2015

CaseChat Overview and Summary

The matter before the Tribunal involved an application for a Skilled (Provisional) (Class VC) visa by an individual, with the Minister having previously refused the application. The applicant contested the decision and sought a review by the Tribunal, which was tasked with determining whether the Minister’s decision was lawful and whether the requirements of relevant clauses under the Migration Regulations 1994 should be waived.

The key legal issue before the Tribunal was whether the Minister should waive the requirements under clause 4020 of the Migration Regulations 1994, particularly whether there were compelling or compassionate circumstances justifying the granting of the visa despite the applicant’s previous history of providing false information. The Tribunal had to consider the criteria set out in clause 4020, including whether the applicant had provided false or misleading information in relation to the visa application or a previous visa application. Additionally, the Tribunal examined whether there were any compelling or compassionate circumstances that would warrant a waiver of these requirements.

In its decision, the Tribunal found that the applicant had a history of providing false information, which was a significant factor in the Minister's decision to refuse the visa. The Tribunal noted that while the applicant satisfied the identity criteria, the history of providing false information did not support a waiver of the requirements under clause 4020. The Tribunal concluded that there were no compelling or compassionate circumstances that would justify a waiver of these requirements, and thus the decision of the Minister not to grant the visa was affirmed.

The Tribunal ordered that the decision of the Minister to refuse the applicant’s application for a Skilled (Provisional) (Class VC) visa be upheld. The Tribunal found no grounds to set aside the Minister’s decision and affirmed the refusal based on the applicant’s history of providing false information.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Therefore the requirements of cl.4020(2) should not be waived.DECISION The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.Filip GelevMemberATTACHMENTMigration 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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