1508742 (Migration)

1508742 (Migration) [2016] AATA 3048 (18 January 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Mohammad Ziaur Rahman
Mrs Syeda Sultana Razia Begum
Mrs Afroza Ashraf
Ms Tahia Tasnim Zia
Mr Aiman Tausif Rahman
CASE NUMBER:  1508742
DIBP REFERENCE(S):  BCC2014/2665186
MEMBER:Bruce Henry
DATE:18 January 2016
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the applications for Employer Nomination (permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 186 - Employer Nomination Scheme visas:
·Public Interest Criterion 4020 for the purposes of cl.186.213(1) of Schedule 2 to the Regulations.

Statement made on 18 January 2016 at 4:46pm

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 12 June 2015 to refuse to grant the applicants Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 10 October 2014. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl.186.213(1) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because he did not satisfy Public Interest Criterion 4020.
The applicant appeared before the Tribunal on 15 January 2016 to give evidence and present arguments.
The applicants were represented in relation to the review by their 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.186.213(1) 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.
Background
The applicant was born in Bangladesh in September 1973 and is a citizen of that country. The remaining applicants are his wife and their three children, who applied for the visa as members of his family unit.
The applicant came to Australia on 15 April 2011 as the holder of a short term business visa, subclass 456, and was granted a subclass 457 temporary business visa on 19 October 2011 that was valid until 31 October 2014. Before applying for the subclass 456 visa in Bangladesh he had lodged an earlier application for a temporary skilled visa, attaching various documents including an employment reference stating that he had worked at the Office of the Thana Health and Family Planning Officer in Dhaka, Bangladesh, during 2009 and 2010.
The background to this case is set out in the decision record of the delegate for the decision under review, a copy of which has been provided to the Tribunal by the applicant. The delegate states:
On 21/04/2011 the Adelaide Skilled Migration section made a referral for a Stream 2 Integrity check with regard to the applicant’s employment reference claims that he had worked at Office of the Thana Health and Family Planning Officer in Bangladesh. Only a mobile number was included on the reference and the reference was unable to be verified.
A followup site visit was requested on 03/02/2013 by Adelaide Skilled Migration section to verify the same employer reference and the outcome received was non-genuine. On 16/05/2013 the Adelaide Skilled Migration section sent a natural justice letter to the applicant.
No response was received and departmental records show that a decision was made by the delegate on 07/08/2013 to refuse the applicant’s VF475 application under PIC 4020(1).
With regard to the current 186 visa application, a Natural Justice letter was sent to the applicant on 13/03/2015 advising him that Departmental records indicated that he had been refused a visa (class VF 475) on 07/0/2013 under PIC 4020(1). The applicant was given an opportunity to comment on this adverse information. This letter also invited the applicant to present any compelling or compassionate circumstances in relation the adverse information and the applicant was given a prescribed 28 days to respond.
On 16/03/2015 a response was received from the applicant’s current migration agent advising that the applicant had instructed his previous migration agent twice to withdraw his application. This submission also claimed that the applicant was not aware that his VF 475 has been refused until the decision record was sent to his current migration agent on 13/03/2015.
The response referred to by the delegate included a statutory declaration sworn by the applicant on 4 May 2015 in which he sought to argue that PIC 4020 should be waived. Submissions to that effect were also made by the applicant’s representative.
In the submissions that accompanied this statutory declaration the applicant’s representative argued that the Tribunal should ‘revisit’ the refusal of the subclass 475 visa to the applicant on the basis that he should not have been found to be in breach of PIC 4020 because he had not supplied false or misleading information or a bogus document to the Department in connection with that application.
The representative also argued, in the alternative, that if the applicant was found to have been refused a visa on the grounds set out in cl.4020(2), the requirements of those clauses should be waived because of compassionate or compelling circumstances affecting the interests of a number of Australian citizens and permanent residents in the Bundaberg area where the applicant practices medicine.
This submission was supported by a letter from Dr Speight, the Director of Burnett Medical Centre, a letter from Associate Professor Strahan of Bundaberg Health Promotions regarding the applicant’s work for the Bundaberg Friendly Society Private Hospital’s Coronary Care Unit and his work for hospital’s after hours medical service, letters from two Blue Care Aged Care facilities in Bundaberg about his provision of medical care at these facilities, and several letters from the applicant’s patients in Bundaberg. The submission also included reference to material regarding the ongoing shortage of medical practitioners in areas of need such as Bundaberg.
At the hearting the applicant told the Tribunal that he had decided not to proceed with that earlier subclass 475 visa in about 2009, and had instructed his previous representative to withdraw the application. He had been unaware that the application had continued, and was not aware that it was refused on the basis of PIC 4020 until he received the invitation to comment on the matter in connection with his current application. By that time he had already been living and working in Australia with his family for two years as the holder of a subclass 457 visa. He said that the agent he had consulted about that subclass 475 visa application had appeared dishonest, and that he was not surprised that false documents or information had been provided with the application, but insisted that he had at no time agreed for that to be done.
The applicant said that his response to the Department’s letter about PIC 4020 did not take issue with the allegation that he had worked at the Office of the Thana Health and Family Planning Officer in Bangladesh because he was told that as his previous visa application had already been refused on the basis of PIC 4020 it was too late to argue that he had not provided false or misleading information. He said that he had in fact worked at that clinic as claimed, as part of the public hospital system work required of him in order to obtain his medical registration in Bangladesh. He said that he had worked as a GP in the afternoon and evening in Bangladesh, and worked at public hospitals and clinics in the morning.
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.
As noted above, the applicant has provided the Tribunal with additional information, both documentary and in evidence at the hearing, as to his work history in Bangladesh. On the basis of that evidence the Tribunal accepts that he did work at the Office of the Thana Health and Family Planning Officer in Bangladesh from 2007 to 2009. The Tribunal notes that the applicant provided to the Tribunal at the hearing a copy of the record of the Department’s site visit to the clinic in 2011, and that the notes of the visit include an acknowledgement that ‘Applicant is a government doctor and this is a government healthcare facility. Thus it is likely that he might have been posted here at some point in his career’, before going on to conclude that ‘we are not satisfied that applicant performed the duties and responsibilities listed for him on the supplied reference letter’.
The Tribunal accepts the applicant’s explanations of the reasons for the confusion about his work history as credible, and accepts that the information as to his work history that has been provided with the current application is correct. This does not mean that his earlier subclass 475 visa was incorrectly refused, as the Department did not have before it the evidence that has been provided during the course of this review. Given the material on the departmental file, it is readily apparent why the Department reached the conclusion that it did on the earlier application.
Accordingly, the Tribunal is satisfied that the applicant has not provided either a bogus document or ‘information that is false or misleading in a material particular’ as defined in cl.4020(5) in connection with the application under review.
Therefore, the Tribunal is satisfied that cl.4020(1) does not apply to the applicant.
Has a visa previously been refused on the basis of a failure to satisfy cl.4020(1)?
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).
Notwithstanding the Tribunal’s findings above as to the accuracy of the information provided by the applicant about his work history, on the evidence before the Tribunal it is clear that the applicant was refused a subclass visa 475 visa in the period commencing 3 years before the application under review was made and that he was refused that visa because the Department determined that he had failed to satisfy cl.4020(1). It is equally clear that the applicant was over the age of 18 at the time the application for the refused visa was made.
Therefore, the Tribunal must find that cl.4020(2) is not met.
Should the requirements of cl.4020(1) or (2) be waived?
The requirements of cl.4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in r.1.03), that justify the granting of the visa.
For the following reasons, the Tribunal is satisfied that the requirements should be waived.
As noted above, the applicant has provided evidence that he has been working as a medical practitioner in Bundaberg since 2011. The evidence establishes that he has been granted an exemption to work there by the Australian government while he completes his registration with the Royal Australian College of General Practice on the basis that it is an area of demonstrated need and that there are no Australian graduates available to meet the need. The applicant is providing a valuable service to the community in Bundaberg, as demonstrated by the support letters from the two aged care facilities, the Private Hospital, and Dr Speight.
In these circumstances, and taking into account the evidence noted above as to his work history, the Tribunal is satisfied that there are compelling circumstances that affect the interests of Australia that justify the granting of the visa.
Accordingly, the Tribunal is satisfied that the requirements of cl.4020(2) should be waived.
Has the applicant satisfied the identity requirements?
Clause 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.
There is no evidence before the Tribunal to suggest that there is any question as to the identity of any of the applicants, and the Tribunal is therefore satisfied that they meet cl.4020(2A).
Has a visa previously been refused on the basis of a failure to satisfy cl.4020(2A)?
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).
Again, there is no evidence to the contrary the Tribunal is satisfied that cl.4020(2B) does not apply.
On the basis of the above, the applicant satisfies PIC 4020 for the purposes of cl.186.213(1).
Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa. As the other applicants applied on the basis of being members of the family unit of the applicant, their applications will be determined by reference to the applicant’s application on remittal to the Department.
DECISION
The Tribunal remits the applications for Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 186 - Employer Nomination Scheme visas:
·Public Interest Criterion 4020 for the purposes of cl.186.213(1) of Schedule 2 to the Regulations.
Bruce Henry
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.
…

[2016] AATA 3048

18 January 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Appeal