1509387 (Migration)

Case [2019] AATA 3255

1509387 (Migration) [2019] AATA 3255 (24 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1509387

MEMBER:John Billings

DATE:24 April 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 24 April 2019 at 2:58pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Federal Circuit Court remittal – evidence of bogus documents – work reference provided false or misleading information – skills assessment – business at which applicant claimed work experience implicated in systematic fraud – inconsistent evidence – credibility issues – long delay in application process – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 65, 359AA, 359A, 362A, 375A
Migration Regulations 1994 (Cth), r 1.03; Schedule 2, cl 485.224; Schedule 4, Public Interest Criterion 4020
Privacy Act 1988 (Cth)

CASES
Arora v MIBP [2016] FCAFC 35
Babicci v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 77
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2013] FCCA 1162
MIAC v MZYNN [2012] FCA 1177
MIBP v Singh [2016] FCAFC 183
Mudiyanselage v MIAC [2013] FCA 266
MZYPZ v MIAC [2012] FCA 478
Paduano v MIMIA [2005] FCA 211
Plaintiff M64/2015 v MIBP [2015] HCA 50
Singh v MIMAC [2013] FCCA 1435
Sun v MIBP [2016] FCAFC 52
Trivedi v MIBP [2014] FCAFC 42

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

  1. This is an application by [the first named applicant] and [the second named applicant] for review of a decision made by a delegate of the Minister for Immigration on 6 January 2012 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).  For convenience, in this decision record the Tribunal sometimes refers to [the first named applicant] even where, in the relevant context, it refers to both the applicants. 

  2. There is a separate review application by [the applicants] and their son [as] well.  That application is in relation to a refusal to grant Skilled (Residence) (Class VB) visas: AAT case number 1417925. [The applicant]’s son was born in Australia in [year], after the Class VC visas were refused but before the primary decision was made in relation to the Class VB visas).  

  3. The applicants applied for the Class VC visas on 8 March 2008. The delegate refused to grant the visas on the basis that [the first named applicant] did not satisfy the requirements of cl.485.224 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because he did not satisfy PIC (Public Interest Criterion) 4020. The precise basis for the decision is not clearly stated. The delegate recorded key findings under the sub-heading “False or misleading information provided to an assessing authority”. The delegate found that [the…

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Details
AGLC
1509387 (Migration) [2019] AATA 3255
Case
[2019] AATA 3255
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by the applicants against a decision of the Administrative Appeals Tribunal (AAT) which affirmed the refusal of their Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate) visas. The Federal Circuit Court had previously remitted the matter for reconsideration. The core of the dispute revolved around the authenticity of documents submitted in support of the visa applications, particularly a work reference and a skills assessment, which were alleged to be bogus or to contain false or misleading information.

The Tribunal was required to determine whether it was satisfied that there was no evidence that the first applicant had provided or caused to be provided to the Minister a bogus document in connection with their visa applications. This involved assessing the credibility of the evidence presented, including a skills assessment from the Trades Recognition Authority (TRA) and a work reference, in circumstances where the business at which the applicant claimed to have gained work experience was implicated in systematic fraud. The Tribunal also considered the impact of significant delays in the application process and the validity of a certificate issued under s.375A of the Migration Act 1958, which claimed that disclosure of certain information would be contrary to the public interest.

The Tribunal found that the TRA skills assessment constituted a bogus document. Applying a "relatively undemanding test," the Tribunal concluded that it was not satisfied that there was no evidence of the first applicant providing a bogus document. Furthermore, the Tribunal was not satisfied that there were relevant circumstances permitting a waiver of the requirements or that the requirements should be waived. Despite the long delays in the processing of the applications, which were acknowledged as unfortunate, the Tribunal found that these delays had not impaired its capacity to properly consider the case. The Tribunal also upheld the validity of the s.375A certificate, while noting that redacted versions of the relevant material had been provided to the applicant.

Consequently, the Tribunal affirmed the decision under review, meaning the visa applications were ultimately refused.

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 It is over 11 years since [the first named applicant] applied for the [temporary] visas. For various reasons there have been long delays, including the delay since the June 2017 hearing. These delays are obviously most unfortunate for [the applicants] and their son now aged [specified] years. It is important to record, however, that the Tribunal considers that, in the circumstances of the case, the delay has not impaired its capacity to give proper consideration to the case: see, for instance, MIAC v MZYNN [2012] FCA 1177 at [32]-[37]. There is a certificate given s.375A of the Act dated 16 August 2016 that was given to the Tribunal in case number 1417925. As to the Tribunal’s obligations with regard to s.375A certificates see generally MIBP v Singh [2016] FCAFC 183. The Tribunal provided a copy of the certificate to the applicants on 18 January 2017 and invited submissions as to the validity of the certificate. The certificate refers essentially to the material that the Tribunal attached to the April 2017 s.359A invitation. The certificate stated that disclosure would be contrary to the public interest because it contained information requested under the Privacy Act 1988 and disclosure would be detrimental to the integrity of the Department and “could raise safety issues” for the officers named in the material. By email dated 19 January 2017 [the first named applicant]’s representative made a submission to the effect that the certificate was not valid, the stated reasons for non-disclosure being insufficient as they were broad and vague. The representative further submitted that if the Tribunal found the certificate to be valid the officers’ names could be redacted if the names had not already been disclosed. The stated reasons for disclosure being contrary to the public interest are broad. Nevertheless, the Tribunal considers that the certificate is valid. In any event the Tribunal provided redacted versions of the material to [the first named applicant] as part of the s.359A invitation. On 25 October 2018, the day that the representative informed the Tribunal that he was waiting to see if [the first named applicant] would seek judicial review of the OAIC decision, the representative made submissions to the Tribunal that are related to the request for access to material referred to above, concerning the unrelated MRT [Case Number 1] in which Mr [F] gave oral evidence to the MRT. The submissions appeared to be to the effect that – whether considered under s.362A of the Act or as a matter of procedural fairness or both - the Tribunal should provide a copy of the decision record in MRT [Case Number 1] and the recording of the hearing or the transcript, if any. The material concerns another review applicant. The first request for the material was made in June 2017. The Tribunal has not provided the whole of the material to [the first named applicant]. The Tribunal considers that [the first named applicant] is not entitled to the material. The Tribunal further considers that it has given sufficient particulars of information under s.359A of the Act.

Decision

Reasons for decision

The main issue for the Tribunal is whether it is satisfied that there is no evidence that [the first named applicant] gave or caused to be given to the Minister a bogus document in connection with the applications for the visas. Applying what has been described as a “relatively undemanding test” (Singh v MIMAC [2013] FCCA 1435 at [25]), the Tribunal considers that the TRA skills assessment is a bogus document. For the reasons given, the Tribunal is not satisfied that there is no evidence that [the first named applicant] gave or caused to be given to the Minister a bogus document in connection with the applications for the visas. And the Tribunal is not satisfied that there are relevant circumstances permitting waiver, or that the relevant requirements should be waived. CONCLUSION

Ratio Decidendi

Legal Principle Established

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