1513637 (Migration)
[2016] AATA 3834
•3 May 2016
1513637 (Migration) [2016] AATA 3834 (3 May 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS: Mr Rameshbhai Gangarambhai Suthar
Mrs Gitaben Rameshbhai Suthar
Miss Hritvi Rameshbhai Suthar
Master Ved Rameshbhai SutharCASE NUMBER: 1513637
DIBP REFERENCE(S): BCC2013/1533838
MEMBER:Antonio Dronjic
DATE:3 May 2016
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 457 (Temporary Work (Skilled)) visas:
·Public Interest Criterion 4020 for the purposes of cl.457.224 of Schedule 2 to the Regulations.
·The Tribunal does not have jurisdiction to review applications in respect of the secondary applicants.
Statement made on 03 May 2016 at 3:06pm
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 25 March 2014 to refuse to grant the applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 25 September 2013. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not meet the requirements of Public Interest Criteria (PIC) 4020 for the purposes of meeting cl.457.224 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
In his decision of 25 March 2014, the delegate concluded that the first named visa applicant provided evidence to the department that was considered to be of ‘non-genuine nature’.
On the same day the applicants’ representative wrote to the case officer and asked that the decision be vacated because the delegate had failed to consider the documents provided on 7 March 2014.
On 11 April 2014 the applicant lodged an application for review with the Tribunal (Tribunal case number 1406935).
On 14 April 2014 the delegate decided to vacate the decision because of the failure to consider the documents submitted to him on 7 March 2014 which he had failed to take into account.
On 28 November 2014, some six months later, a different delegate purported to refuse the application a second time (the November decision). An application was made to the Tribunal on 3 December 2014 for review of the November decision. (Tribunal case number 1420226)
On 6 May 2015, the Tribunal (differently constituted) has found that it has no jurisdiction in respect of this application. On appeal to the Federal Circuit Court, the tribunal decision related to file number 1420226 was upheld.
The decision in the Tribunal case number 1406935 was made on 6 May 2015. The tribunal (differently constituted) concluded that it does not have jurisdiction to review this matter. On 30 September 2015 the Federal Circuit Court made consent orders remitting the matter to the tribunal.
Accordingly, the primary decision of 25 March 2014 is the subject of the current review. Regardless of rather ambiguous findings made by the delegate that the first named visa applicant (the applicant) provided evidence to the department that was considered to be of ‘non-genuine nature’ it appears that the allegation was that the applicant submitted to the department with his application for a subclass 457 visa, a false and misleading statement in a material particular in the form of non-genuine work reference letter from his past employer, Prajas Automobiles from India dated 4 September 2013.
Relevantly, the reference letter of 4 September 2013 stated that the applicant has been working as a full time Marketing Officer in this company from 23 December 2003 to 6 April 2009. With his application, the applicant submitted a copy of his Resume which stated that he worked as a Marketing Officer for the above mentioned Indian company from December 2003 to April 2009.
This letter was referred by the DIBP to Australian Embassy at New Delhi for verification. The employer confirmed that the applicant worked from 2003 to 2009 selling tractors and undertaking some marketing duties. He also stated that the applicant worked fixed hours.
When contacted by the department, the applicant stated that he was helping his father at the farm from 2003 to 2005. He freely volunteered this information to the department. In his response to the Departmental letter of 11 February 2014, the applicant maintained that he did work as a Marketing Officer for Prajas Automobiles from 2003 to 2005; provided evidence that he was employed in a trainee and probationary capacity and explained that he had flexible instead of fixed hours as that was the nature of the job. (Department folios 136-140).
Mr Pravinkumar Chaudhari provided further explanation related to the applicant’s employment at Prajas Automobiles in his letter submitted to the department (department folios 169-170).
The applicant appeared before the Tribunal on 15 April 2016 to give evidence and present arguments. Mr Shun Kinli, the applicant’s prospective employer from Sealane (VIC) Pty Ltd attended the hearing and offered to give evidence in support of the review application relevant to waiver provisions s in PIC 4020(4). The Tribunal hearing was conducted with the assistance of an interpreter in the Gujarati and English languages. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.
I explained the Tribunal procedures and requirements of PIC 4020(1) and PIC 4020(4) relevant to the application. At the commencement of the hearing, the applicant’s representative submitted DIBP acknowledgment letter dated 8 April 2016 as evidence that the applicant’s prospective employer applied for approval of business nomination, nominating the applicant for the position of a Marketing Officer.
I explained to the applicant why I took the preliminary view that this tribunal has no jurisdiction to review applications made by the secondary applicants.
The applicant is 36 years of age citizen of India. He is married and has two children who are living in India. He first arrived in Australia in April 2009 as a holder of a Student visa. In India he has completed a Bachelor of Commerce Degree. In Australia he had completed a Diploma in Business and Marketing from July 2009 to August 2010.
He conceded that with his application for a subclass 457 visa, he submitted both the work reference letter from his past employer, Prajas Automobiles from India dated 4 September 2013 and copy of his Resume. He reiterated that he did not provide false and misleading information or bogus documents to the Department. In his evidence he maintained that he did work as a Marketing Officer for Prajas Automobiles from 2003 to 2005 and referred to the documentary evidence provided to the department with his response to the invitation to comment on adverse information. He stated that he worked as a marketing Officer for Prajas Automobiles from 2003 to 2005 and was employed in a trainee and probationary capacity.
The applicant’s representative submitted that according to ANZSCO Dictionary, a Marketing Officer in Australia is expected to have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification. He submitted that in India, the applicant completed a Bachelor of Commerce Degree and would be able to meet the requirements of cl.457.223 (da) even without providing any evidence of work experience. He further submitted that the documentary evidence submitted by the applicant on 7 March 2014 was not considered by the delegate in making the decision of 25 March 2014. The documents obtained from the applicant’s former employer are evidence that the applicant was in fact working as a Marketing Officer from 2003 to 2005 as a trainee and in probationary capacity, but nevertheless as a Marketing Officer. There are no issues with his work experience as a Marketing Officer at Prajas Automobiles during the period from 2005 to 2009. He submitted that the information provided was not false and misleading and in any case not relevant in material particular.
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: Arora v MIBP [2016] FCAFC 35; 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.
The Tribunal must make an assessment as to whether there is evidence that is sufficiently probative to lead to a conclusion that the applicant has given, or caused to be given, to the Minister, or an officer of the Department, the Tribunal a bogus document or information that is false or misleading in a material particular in relation to his application for subclass 457 visa.
The applicant conceded in his evidence that, with his visa application, he has provided both the work reference letter from his past employer, Prajas Automobiles from India dated 4 September 2013 and a copy of his Resume. However, he maintains that he worked as a Marketing Officer for Prajas Automobiles from 2003 to 2005 as a Marketing Officer and was employed in a trainee and probationary capacity. The documents subsequently obtained from the applicant’s former employer confirmed this claim. It appears that documentary evidence submitted by the applicant on 7 March 2014 was not considered by the delegate in making the decision of 25 March 2014.
I note that the applicant completed a Bachelor of Commerce Degree in India and, on the basis of his formal qualifications alone, most likely would have been able to meet the requirements of cl.457.223 (da) related to skills and experience necessary to perform the nominated occupation.
The documents obtained from the applicant’s former employer are evidence that the applicant was in fact working as a Marketing Officer from 2003 to 2005 as a trainee and in probationary capacity, but nevertheless as a Marketing Officer.
As a result, the Tribunal is not satisfied that there is sufficiently probative evidence that the applicant has given, or caused to be given, to the Minister, or an officer of the Department, the Tribunal or a relevant assessing authority a bogus document or information that is false or misleading in a material particular in relation to his application for a subclass 457 visa or in relation to a visa held in the 12 months before the visa application was made. Accordingly, the Tribunal finds that the applicant meets the requirements of paragraph 4020(1)
Public Interest Criterion 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 PIC4020(1) in the period commencing three years before the application was made to the present. There is no evidence before the Tribunal that the applicant and each member of the family unit have been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing three years before the application was made to the present.
PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity. Having regard to the visa applicant's passport located on the Department's file the Tribunal is satisfied as to the visa applicant's identify. Therefore, the applicant meets PIC 4020(2A).
PIC 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 PIC 4020(2A) during the period starting 10 years before the application was made and ending when the application is granted or refused. There is no evidence before the Tribunal that the applicant or members of his family have been refused a visa because of a failure to satisfy identity requirements during the relevant period. Therefore the applicant meets PIC 4020(2B).
On the basis of the above, the applicant satisfies PIC 4020 for the purposes of cl.457.224.
Tribunal’s lack of jurisdiction in respect of the secondary applicants
Based on the departmental records the Tribunal finds that the second named applicants were not physically present in the migration zone at the time of the visa application. As the Tribunal reviewable decision is covered by s 338(2), an application for review may only be made by a non-citizen who is physically present in the migration zone at the time of visa application. Accordingly the Tribunal has no jurisdiction to review the application in respect of the secondary applicants.
DECISION
The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 457 (Temporary Work (Skilled)) visas:
·Public Interest Criterion 4020 for the purposes of cl.457.224 of Schedule 2 to the Regulations.
·Tribunal has no jurisdiction to review the applications in respect of the secondary applicants.
Antonio Dronjic
MemberATTACHMENT
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 the 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.
…
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Jurisdiction
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Judicial Review
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Procedural Fairness
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Statutory Construction
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