1507754 (Migration) - [2016] AATA 3405

1507754 (Migration) [2016] AATA 3405 (29 February 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Gurpreet Singh Bal
Mrs Harjit Kaur
Master Arunvir Singh Bal
CASE NUMBER:  1507754
DIBP REFERENCE(S):  BCC2012/4584
MEMBER:John Billings
DATE:29 February 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.
Statement made on 29 February 2016 at 09:25 am

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 27 May 2015 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).
The first named applicant, Mr Gurpreet Singh Bal, applied for the visas on 21 December 2011. The second named applicant, Ms Kaur, was included in the visa application. Their son, Master Arunvir Singh Bal (“Mr Bal’s son”), was born in India in October 2014 and subsequently included as a further secondary applicant. The delegate refused to grant the visas on the basis that Mr Bal did not satisfy the requirements of cl.487.228 of Schedule 2 to the Migration Regulations 1994 (the Regulations). In circumstances described below the delegate considered that Mr Bal did not satisfy PIC (Public Interest Criterion) 4020. Mr Bal applied for review on 5 June 2015.
The applicants were represented in relation to the review by their registered migration agent.
There was no hearing. On 25 January 2016 the Tribunal sent to Ms Thach an invitation to appear before the Tribunal at 11.00 am on 26 February 2016. The invitation was sent by email to Mr Bal’s representative and authorised recipient. The Tribunal received a response to the hearing invitation indicating that Mr Bal and his wife and child and the representative would attend. The Tribunal’s case management system records that on 19 and 25 February 2016 the Tribunal sent SMS hearing reminders to the mobile phone number provided by Mr Bal. The applicants did not attend on 26 February. The Tribunal has received no explanation for that. In the circumstances, pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking further action to enable the applicants to appear before it.
Mr Bal is a 30 year old national of India. He first arrived in Australia on 16 March 2006 holding an Indian passport and a Class TU Student visa. He has been granted further visas since that time including a Class VC 485 visa. Ms Kaur is a 31 year old national of India. She first arrived in Australia on 13 June 2010 as a visitor. Mr Bal and Ms Kaur were married not long before then, in February 2010.
The Department’s file includes a copy of the three applicants’ Indian passports.
Mr Bal provided a copy of the primary decision with the application for review. The primary decision includes the following information. Mr Bal made a previous…

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 1507754 (Migration)

Details

AGLC: 1507754 (Migration) [2016] AATA 3405
Case: [2016] AATA 3405
Decision Date: 29 February 2016

CaseChat Overview and Summary

This decision involves the applicants' appeal against a decision to refuse their Skilled (Provisional) (Class VC) visas. The matter was heard and determined by the Tribunal. The primary legal issue before the Tribunal was whether the applicants met Public Interest Criterion 4020 (PIC 4020) for the grant of their visas. PIC 4020 requires, among other things, that the applicants have not provided false or misleading information or documents to the Minister or relevant authorities within the specified time frames. The Tribunal considered whether the applicants had provided any false or misleading information or documents in relation to their visa applications or any previous visa applications within the relevant periods.

The Tribunal examined the evidence provided by the applicants and determined that there was sufficient evidence to conclude that the applicants had not met PIC 4020. The Tribunal found that the applicants had provided false or misleading information in their visa applications, which triggered the application of PIC 4020. The Tribunal also found that the applicants had not satisfied the identity requirements under cl.4020(2A) and (2B). Consequently, the Tribunal affirmed the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

The Tribunal's decision was based on the evidence presented and the applicable legal provisions. The Tribunal found that the applicants had not met the requirements of PIC 4020 and, therefore, the decision to refuse their visa applications was affirmed. The Tribunal did not find any compelling or compassionate reasons to waive the requirements of PIC 4020. The Tribunal's decision is final and binding on the applicants.

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 The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.487.228 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

The only other visa subclass to consider would be Subclass 485 but for that subclass there are essentially the same criteria regarding PIC 4020 and similar secondary criteria. DECISION The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.John BillingsSenior MemberATTACHMENTMigration 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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