1700321 (Migration)

[2020] AATA 699

1700321 (Migration) [2020] AATA 699 (9 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1700321

MEMBER:Nicola Findson

DATE:9 March 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 (Temporary Work (Skilled)) visa:

·Public Interest Criterion 4020 for the purposes of cl.457.224 of Schedule 2 to the Regulations.

Statement made on 09 March 2020 at 11:17am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – false or misleading information in previous visa applications – criminal conviction – matters dealt with as a minor – innocent or unintended mistake – lacks the necessary element of fraud or deception – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 457.224, Schedule 4, PIC 4020

CASES

Arora v MIBP [2016] FCAFC 35

Batra v MIAC [2013] FCA 274

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 for review of a decision made by a delegate of the Minister for Immigration on 16 December 2016 to refuse to grant the applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 8 July 2016. The delegate refused to grant the visa on the basis that the applicant did not satisfy Public Interest Criteria (PIC) 4020 for the purposes of cl.457.223(4) of Schedule 2 to the Migration Regulations 1994 (the Regulations), because the delegate was satisfied that the applicant had provided false or misleading information to the Minister when he applied for the visa held in the period of 12 months before the application was made.

3. The applicant appeared before the Tribunal on 28 October 2019, to give evidence and present arguments. The Tribunal also received oral evidence from a representative of [the company sponsoring the applicant], Director, [Mr A].

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.4020(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: PIC 4020(1); and

   ·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 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: PIC 4020(2) and (2AA); and

   ·the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and

   ·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 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: PIC 4020(2B) and (2BA).

6. The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 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?

7. The term ‘information that is false or misleading in a material particular’ is defined in PIC 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 PIC 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.

8. The requirement in PIC 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: PIC 4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.

9. 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.

10. The applicant is a [age] year-old citizen of the United Kingdom.  He made the current application for a Subclass 457 visa on the basis of being nominated by his sponsor to work in the position of [Occupation 1].

11. Relevantly, the applicant arrived in Australia [in] November 2014 as the holder of a [working holiday] visa granted on 15 June 2014.   He applied for, and was granted, an extension to his working holiday visa [in] October 2015.  The delegate’s decision records that the applicant declared he had no criminal convictions in these [visa] applications.  When he made the visa application for the Subclass 457 visa on 8 July 2016 the applicant did declare a prior criminal history, which was inconsistent with the information he had provided when applying for the visa he held in the 12 months before the Subclass 457 visa application was made.

12. The delegate’s decision records the delegate’s concerns as follows:

    On 8 July 2018, the applicant provided evidence to the Department that was considered to be of a ‘non-genuine’ nature.

    Material accompanying the Subclass 457 visa application, including a Police Certificate from the National Police Chief’s Council ACRO Criminal Records Office dated 7 April 2016, as well a National Police clearance from the Australian Federal Police dated 30 June 2016, discloses that the applicant has criminal convictions in both the United Kingdom and Australia, and that he failed to declare these in any of his previous visa applications.

    -    On his application for a Working Holiday visa, on 15 June 2014, the applicant’s character declarations were answered ‘no’ including to the question: ‘Have you ever been convicted of a crime or offence in any country (including any conviction which is now removed from official records)?

    -    On his application for an extension of his Working Holiday visa, on 11 October 2015, the applicant’s character declarations were answered ‘no’ including to the question: ‘Have you ever been convicted of a crime or offence in any country (including any conviction which is now removed from official records)?

    -    On his Temporary Work (Skilled)(subclass 457) Visa application the applicant answered ‘Yes’ to the following Character declaration: Has any applicant ever been convicted of an offence in any country (including any conviction which is now removed from official records)?

13. On 7 September 2016, the delegate invited the applicant to comment on the suspected ‘non-genuine’ information supplied to the Department. On 3 October 2016, the applicant submitted the following information to the Department:

    -    Statutory Declaration sworn by the applicant

    -    Statutory Declaration sworn by [Mr A], Director of the sponsor

14. In his statutory declaration, the applicant provided his response to the delegate’s concerns.  He stated (among other things) that when he applied for his Working Holiday visas, he did not declare any convictions because he simply did not believe he had any to declare.  He indicated that he did have three criminal matters dealt with as a minor in the United Kingdom.  However, he also indicated that he had no intention of misleading the Department – he genuinely believed that these matters were dealt with by way of a caution and/or did not “carry forward” on his record.

15. Notwithstanding the additional information provided in support of his claims, the delegate ultimately concluded that the applicant did not satisfy PIC 4020 for the purposes of cl.457.223(4). Also, the delegate was not satisfied that there were grounds to justify the waiver of PIC 4020 and the granting of the visa.

16. The Tribunal notes that is a requirement of cl.457.224, not cl.457.223(4), for an applicant to satisfy public interest criteria, including PIC 4020. Additionally, the decision record reflects that the delegate undertook an assessment of whether the applicant met PIC 4020 as required by cl.457.224, and ultimately refused to the grant the visa on the basis of this subclause not being met. It appears, therefore, that the delegate has mistakenly referred to the applicant not meeting cl.457.223(4) rather than cl.457.224 in her decision record.

17. The applicant gave evidence at his hearing about the circumstances surrounding the matters disclosed on his UK Police Certificate and AFP Police Clearance as well as his circumstances in Australia.

18. The applicant said it was not until he obtained the police clearances to submit with his Subclass 457 application that he realised he had offences recorded against his name.  He indicated that had made mistakes in the United Kingdom when he was younger, but honestly did not appreciate that any of his dealings with the law were ever recorded as convictions.

19. The applicant expressed his upset to the Tribunal at the impact of this mistake on his current visa application.  He said it was always a dream for him to work and live in Australia.  He told the Tribunal he has learned from his past mistakes and considers himself to be a good, hard-working citizen. The applicant is in a de facto relationship with [Ms B], a Subclass 457 visa holder also from the United Kingdom, whom he met in Australia.  [Ms B] has been in Australia for the last few years, working as [an Occupation 2].  The parties have resolved that if the applicant’s visa application is unsuccessful, they do not want to live apart, and so will both leave Australia together.

20. As to the waiver provisions, the Tribunal received oral evidence from Australian citizen, [Mr A], representing the applicant’s proposed sponsoring employer.  The Tribunal observes that [Mr A] presented as a persuasive, reliable witness. He gave evidence of the nature of the applicant’s role within the company over the last four years and the direct and immediate quantifiable impact it would have on the company to lose his services. The Tribunal was told the applicant commenced with the company – after an extensive search for a suitable person - with a unique skillset, and that he is a highly valued and highly regarded employee.  The Tribunal was told that the applicant leads a team of workers, is trustworthy, and has a strong work ethic.

21. Following his hearing, the applicant engaged a registered migration agent to provide a post-hearing submission on his behalf.

22. On 18 February 2020, the Tribunal received a written submission from the applicant’s representative.  It is submitted that, in this case, the applicant satisfies PIC 4020.  It is submitted that the applicant did not provide false or misleading information to the Department that at the time he applied for his Working Holiday visa(s), because he genuinely believed he had no convictions recorded against him. 

23. As to the applicant’s UK Police Certificate, it is submitted that this document discloses three matters - a reprimand in 2005, a referral order in [year], and a caution in 2012.  It is submitted (and legal commentary provided to the Tribunal supports the submission) that in the United Kingdom, minor offences can be disposed of, without the need for court proceedings, by way of caution or reprimand.  And, further, neither a caution or a reprimand is regarded as a criminal conviction.  It is also submitted that while the applicant was made the subject of a referral order – a community sentence imposed on young offenders - in respect of an offence he committed at the age of 15, he genuinely did not appreciate that this matter resulted in a recorded conviction against him.

24. It is submitted, that although the Australian Federal Police Clearance discloses dealings with the law in 2015 (resulting in forfeiture of a recognizance), the applicant has no convictions recorded against him in Australia.  A National Criminal History Check, obtained by the applicant for work purposes on 26 March 2019 and provided to the Tribunal during the review process, confirms: “At the date of issue, there were no disclosable outcomes recorded against the abovenamed”.

25. It is submitted that the delegate may have treated he applicant as having several undisclosed convictions, “whereas the reality is that the majority of the items disclosed on the UK and Australian police clearances were not convictions and did not need to be declared”.

26. It is submitted that there was no intention to provide false or misleading information to the Department.  It is submitted that the applicant made an honest mistake when he declared that he had no convictions on his second working holiday visa application – because, he genuinely believed he had no convictions.  It is also submitted that even if the matters on his UK Police Certificate had been disclosed in the applicant’s working holiday visa application, it is unlikely that the visa would have been refused by the Department on character grounds.

27. It is submitted that the applicant is an honest, open, hardworking and highly respected tradesman.  It is also submitted that the applicant has [a condition], which impacts on his ability to understand (legal) documents as well as his understanding of the legal implications of past behaviours and interactions with the criminal justice system. 

28. The submission reiterates the significant impact a refusal of the applicant’s visa would have on his sponsoring employer.  Evidence from community members of compelling and compassionate reasons affecting the interests of Australian citizens and/or permanent residents, also accompanied the submission. 

29. The Tribunal has considered the documentary and oral evidence provided by the applicant, as well as the written submissions.  On the basis of the evidence before it, the Tribunal has formed the view that there is one recorded conviction against the applicant, which was not declared in relation to the visa he held in the period of 12 months before the Subclass 457 visa application was made.  However, the Tribunal is persuaded by the applicant’s consistent evidence that he honestly believed he did not have any convictions to declare at the time he applied for his working holiday visa.  The Tribunal notes that his conviction was recorded in [year] when the applicant was only 15 years old.  The Tribunal is of the view, in the circumstances of this case, that it is plausible that the applicant did not understand the implications of the outcome of this matter at the time.

30. The question of what constitutes false or misleading information is directed at information which is false, in the sense of purposely untrue, rather than information which lacks the necessary element of fraud or deception (e.g. in the case of an innocent or unintended mistake).  Having regard to the totality of the presented evidence in this case, the Tribunal accepts the applicant’s explanation that he had no intention to be purposely untrue and that there was no intention to mislead or deceive.

31. The Tribunal finds that even though the applicant failed to declare that he had a conviction  when applying for his [working holiday] visa, there was not the element of fraud or deception necessary to attract the operation of the provision.

32. Therefore, the applicant does meet PIC 4020(1).

    Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(1)?

33. PIC 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 PIC 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: PIC 4020(2AA). 

34. There is no evidence before the Tribunal to suggest that the applicant and/or each member of the family unit has been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing 3 years before the application was made and ending when the visa is granted or refused.

35. Therefore, PIC 4020(2) is met.

    Has the applicant satisfied the identity requirements?

36. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.  The applicant’s identity documents have been provided with the application.  No issue with his identity has been raised by the delegate.  The Tribunal is satisfied that the applicant meets cl.4020(2A)

    Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?

37. 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 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: PIC 4020(2BA).

38. There is no evidence that the applicant or any member of his family unit has been refused a visa because of failure to satisfy the identity requirement.

39. Therefore PIC 4020(2B) is met.

    Conclusion

40. On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl.457.224.

    DECISION

41. The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the applicant meets the following criteria for Subclass 457 (Temporary Work (Skilled)) visa:

    ·Public Interest Criterion 4020 for the purposes of cl.457.224 of Schedule 2 to the Regulations.

    Nicola Findson
    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 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. 

    …