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

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’).
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.
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.
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 applicant meets Public Interest Criterion 4020 (PIC 4020) as…

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.

Continue reading 1809568 (Migration)

Details

AGLC: 1809568 (Migration) [2019] AATA 5187
Case: [2019] AATA 5187
Decision Date: 29 October 2019

CaseChat Overview and Summary

This matter concerned an application for an Employer Nomination (Permanent) visa (Subclass 186) under the Employer Nomination Scheme. The applicant sought review of a decision that had not been detailed in the provided text, but the Tribunal ultimately concluded that the matter should be remitted for reconsideration.

The central legal issue before the Tribunal was whether the applicant met Public Interest Criterion (PIC) 4020, as required by clause 186.213 of the Migration Regulations 1994. This criterion encompasses several requirements, including the absence of bogus documents or false or misleading information provided in relation to the current application or a previous visa held within the preceding 12 months. It also requires that the applicant and their family unit have not had a visa refused for failing to satisfy PIC 4020(1) within a specified period, and that the applicant satisfies the Minister as to their identity, with similar provisions regarding previous identity-related visa refusals.

The Tribunal reasoned that the applicant satisfied PIC 4020(1) because there was no evidence that they had provided a bogus document or false or misleading information. Furthermore, the Tribunal found no evidence of previous visa refusals due to a failure to satisfy PIC 4020(1) or a failure to satisfy the Minister as to identity. Consequently, the Tribunal determined that the applicant met all the requirements of PIC 4020.

Accordingly, the Tribunal remitted the application for a Subclass 186 visa for reconsideration, directing that the applicant satisfies PIC 4020 for the purposes of clause 186.213.

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 matter should be remitted for reconsideration. CONSIDERATION OF CLAIMS AND EVIDENCE 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). 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? 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. 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.

Decision

Reasons for decision

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 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. ChapmanMemberATTACHMENTMigration Regulations 1994Schedule 44020(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 1958s.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. …

Ratio Decidendi

Legal Principle Established

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