1809568 (Migration)

[2019] AATA 5187

1809568 (Migration) [2019] AATA 5187 (29 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1809568

MEMBER:K. Chapman

DATE:29 October 2019

PLACE OF DECISION:  Brisbane

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 29 October 2019 at 11:41am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) – Subclass 186 Employer Nomination Scheme – bogus documents – criminal convictions – credible oral evidence – no fraud or deception – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 186.213, Public Interest Criterion (PIC) 4020

CASES
Singh v MIBP [2018] 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 for review of a decision made by a delegate of the Minister for Immigration on 23 March 2018 to refuse to grant the applicant an Employer Nomination (Permanent) visa under s.65 of the Migration Act 1958 (‘the Act’).

2. The [applicant], , applied for the visa on 14 July 2017. The delegate refused to grant the visa on the basis that the applicant did not meet the requirements of cl.186.213 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’) because he did not satisfy Public Interest Criterion 4020 (‘PIC 4020’) and there were no compassionate or compelling circumstances to warrant waiver of this criterion. The delegate assessed that the applicant failed to declare criminal convictions from Ireland arising from 2008 in a prior Subclass 457 visa application. Further, the delegate determined that the applicant failed to declare convictions for driving offences in 2012 and 2013 in his Subclass 186 visa application.

3. On 6 April 2018, the applicant applied to the Tribunal for review of the visa refusal decision, providing a copy of that decision with his application. The applicant appeared before the Tribunal on 27 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence in person from the applicant’s partner, [Ms A]. Additionally, the Tribunal received oral evidence by telephone from [Mr B] of the nominating employer, and from [Mr C] and [Mr D] who are the applicant’s co-workers. The applicant was represented in relation to the review by his registered migration agent. Post-review hearing written submissions were received by the Tribunal on 24 October 2019. All submitted material has been duly considered by the Tribunal.

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 applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.186.213 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 Tribunal also notes the guidance concerning these matters from the Full Federal Court in Singh v MIBP [2018] FCAFC 52. In particular, the Tribunal has paid careful regard to the following guidance in that decision [at 144]:

    “Where an issue of the proper construction or application of PIC 4020 is raised, Trivedi and Patel authoritatively state that where a visa applicant has given or caused to be given to a relevant decision-maker a document which is a “bogus document” as defined, or information that is false or misleading in a material particular as defined, to determine whether PIC 4020 is satisfied or not, it is not necessary to show knowing complicity by the visa applicant as long as the material is purposely untrue.”

11. The Tribunal received documentary material such as written submissions, Statutory Declarations of the applicant and third party supporting statements. In summary, the documentary material outlines that the applicant was convicted of drug offences in Ireland in 2008 at the age of 20 years and he received advice from a registered migration agent that he did not have to declare such convictions in his prior temporary Subclass 457 visa application. Further, it is contended that the applicant genuinely believed these convictions did not have to be declared as they are effectively spent convictions and in any event he was advised that as no Police clearances were required for the temporary visa application there was no need for them to be declared. Additionally, it is contended that with respect to driving offences in Western Australia arising from 2012 and 2013, the applicant believed them to be civil and not criminal matters hence they were not declared in his Subclass 186 visa application. It is further contended that the applicant is of good character. Documentary material was also submitted contending that in any event compelling and compassionate reasons justify the granting of the visa.

12. The applicant gave oral evidence consistent with submitted documentary evidence regarding the reasons for failing to declare the relevant convictions. The applicant expressed regret that he had followed the initial advice of a registered migration agent not to declare any convictions in the prior Subclass 457 visa application, as it was a temporary visa application with Police clearances not being required. The applicant maintained that this was an honest mistake and when he applied for the Subclass 186 visa he duly declared his Irish drug convictions. The applicant also informed the Tribunal that he did not declare his driving convictions from Western Australia as in Ireland such matters are considered civil and not criminal. He accepts that he now knows such matters are criminal and need to be disclosed in visa applications.

13. The applicant advised the Tribunal that he is not well versed in migration law and was confused with the visa application processes. He indicated that with the benefit of hindsight he would have done things differently. For the sake of completeness, pursuant to s.359AA of the Act, the Tribunal raised the contents of a Statutory Declaration from the applicant’s former partner, where she indicated she was unaware of his Irish convictions. The applicant responded that she knew of such convictions, particularly given that the Irish Police clearance was received at their address in the post. On balance, the Tribunal accepts the explanation of the applicant regarding this matter.

14. The Tribunal had the benefit of observing the applicant provide his oral evidence in person. He was regretful for having caused difficulties with his reliance on initial migration agent advice. The applicant accepted that he had committed wrong doing in the past and noted that he had worked very hard in his occupation as a brick layer and was trying to put the past behind him. The Tribunal was impressed with the applicant’s demeanour during the review hearing, particularly with regard to his admissions of error and willingness to take responsibility for his actions. Having taken the applicant’s evidence in person, the Tribunal is satisfied that he is a truthful witness who provided credible oral evidence.

15. The Tribunal also had the benefit of taking oral evidence from [Mr B] of the nominating employer. [Mr B] spoke highly of the applicant’s skillset and his desire to have him commence work upon grant of the Subclass 186 visa. [Mr B] was unconcerned with the applicant’s criminal convictions given their particulars and passage of time since the offending. The Tribunal also took oral evidence from co-workers of the applicant, [Mr C] and [Mr D]. Both of these witnesses spoke in the most glowing terms regarding the applicant’s character, work ethic and technical ability. They too were unconcerned with the applicant’s criminal convictions given their observations of his upstanding conduct whilst knowing him in Australia. The oral evidence of [Ms A] also pointed to the applicant being of good character, not being involved in drug use in Australia and generally being an honest person. The Tribunal has no hesitation in accepting the veracity of the oral evidence of the witnesses given the straight forward manner in which it was provided. On balance, the Tribunal is satisfied that the applicant has turned the corner on his past indiscretions and is now an honest, hardworking person.

16. Having paid careful regard to the evidence before it, the Tribunal accepts that the applicant genuinely believed he did not have to declare his Irish convictions in relation to his Subclass 457 visa application and his Western Australian convictions in his Subclass 186 visa application. The Tribunal has reached these conclusions given its assessment of the applicant as a credible witness, which is buttressed by the evidence of the supporting witnesses. Accordingly, the Tribunal is satisfied that there was no element of fraud or deception in the applicant’s conduct. Further, the Tribunal finds that the applicant did not provide information in those visa applications which is purposely untrue.

17. The Tribunal notes the Judicial guidance referred to above indicating that the provisions of PIC 4020 are engaged only where the submitted material is ‘purposely untrue.’ In the circumstances of the present matter, the Tribunal finds that the applicant did not submit any material which was purposely untrue and therefore he did not submit either false or misleading information (or any bogus document) to the Department in connection with his Subclass 457 or Subclass 186 visa applications.

18. For the reasons outlined above, the applicant satisfies the requirements of cl.4020(1). Further, the Tribunal notes it has no evidence before it to suggest that the applicant has previously been refused a visa pursuant to cl.4020(1), nor that he has failed to satisfy the Minister of his identity at any time. Therefore, the Tribunal finds that the applicant satisfies all of the requirements of cl.4020. Accordingly, the applicant satisfies PIC 4020 for the purposes of cl.186.213.

    DECISION

19. 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.

    K. Chapman
    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. 

    …