1800105 (Migration) - [2019] AATA 6057

1800105 (Migration) [2019] AATA 6057 (11 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER: 1800105
MEMBER:Alison Mercer
DATE:11 September 2019
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the application for an Employer Nomination (Permanent) visa for reconsideration, with the direction that the applicant meets the following criteria for a subclass 186 - Employer Nomination Scheme visa:
·Public Interest Criterion 4020 for the purposes of cl.186.213 of Schedule 2 to the Regulations.

Statement made on 11 September 2019 at 4:29pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 Employer Nomination Scheme – false or misleading information in application – compelling or compassionate reasons – no criminal convictions declared in previous visa application – convictions previously declared to the Department in several other contexts – intention to deceive – potential impact on the applicant’s employer and its Australian employees – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 65, 501
Migration Regulations 1994, Schedule 2, cl 186.213; Schedule 4 Public Interest Criterion 4020

CASES

Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur & Ors v Minister for Immigration & Anor [2018] FCCA 1614
Lorenzo Paduano v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 211
Trivedi v Minister for Immigration and Border Protection [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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 22 December 2017 to refuse to grant the applicant an Employer Nomination (Permanent) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 2 May 2017. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.186.213 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate noted that cl.186.213(1) required that the applicant met Public Interest Criterion 4020 (PIC 4020), and that PIC 4020 in turn required there was no evidence that the applicant had given, or caused to be given, to the Minister, an officer, the Tribunal or a relevant assessing authority, a bogus document or information that is false or misleading in a material particular in relation to the visa application, or a visa that the applicant held in the period 12 months before the current visa application was made. The delegate found that the applicant was granted a subclass 457 visa on 10 March 2015, having applied for that visa on 21 February 2015. The delegate further found that the applicant did not declare any criminal convictions in his subclass 457 visa application and was not requested to provide any penal clearances. The delegate went on to find that when the applicant made the present application, he provided an…

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.

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Details

AGLC: 1800105 (Migration) [2019] AATA 6057
Case: [2019] AATA 6057
Decision Date: 11 September 2019

CaseChat Overview and Summary

The applicant, a visa holder, sought judicial review of a decision by the Minister to refuse to grant a Subclass 186 Employer Nomination Scheme visa. The refusal was based on the applicant's failure to declare previous criminal convictions in their visa application, which the Minister considered to be a provision of false or misleading information. The applicant argued that there were compelling or compassionate reasons for this omission and that the decision to refuse the visa should be set aside. The matter was heard by Mercer J in the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether the applicant had provided false or misleading information in their visa application, and if so, whether there were compelling or compassionate reasons that warranted a different outcome. This involved an assessment of the applicant's intention in failing to declare their criminal convictions and the potential impact of the refusal on the applicant's employer and its Australian employees. The court also considered the Minister's discretion in assessing such applications.

Mercer J found that the applicant had indeed failed to declare previous criminal convictions, which constituted false or misleading information. The court determined that the applicant's past declarations of these convictions in other contexts did not negate the misleading nature of the omission in the current application. While acknowledging the potential impact on the employer and its employees, the court found that the applicant had not established compelling or compassionate reasons sufficient to overcome the finding of providing false or misleading information. Consequently, the court remitted the decision to the Minister for reconsideration according to law.

Orders