2107289 (Migration) - [2022] AATA 2911

2107289 (Migration) [2022] AATA 2911 (29 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Felice Chen
CASE NUMBER:  2107289
MEMBER:R. Skaros
DATE:29 July 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 186 - Employer Nomination Scheme visas:
·Public Interest Criterion 4020 for the purposes of cl 186.213(1) of Schedule 2 to the Regulations.

Statement made on 29 July 2022 at 4:31pm
CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – false or misleading information and bogus documents given with previous visa application – work history and employment reference – department’s verification checks found limited independent evidence of employment –discretion to waive criterion – non-compliance admitted – claim to have been unaware of information and document provided by agent – compelling circumstances affecting interests of Australia – labour and skills shortages in work sector – applicant’s demonstrated skills and experience and value to employer – members of family unit – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65, 375A
Migration Regulations 1994 (Cth), Schedule 2, cls 186.213(1), 457.223(2)(d), Schedule 4, criterion 4020(1), (3), (5)
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
Trivedi v MIBP (2014) 220 FCR 169
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 Home Affairs on 21 May 2021 to refuse to grant the applicants Employer Nomination (Permanent) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 20 April 2020. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl 186.213(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate found that Public Interest Criterion 4020 (PIC 4020) had not been met.
The applicant provided a copy of the delegate’s decision record with the application for review.
The Department’s file includes a non-disclosure certificate issued under s.375A of the Act in relation to various documents. The reasons contained in the certificate for the non-disclosure (in respect of each specified document) is that disclosure would prejudice a current or pending investigation of a possible breach of the law or enforcement of the law in a particular instance. The Tribunal notes that the information covered by the certificate relates to general allegations received by the Department that persons sponsored by [Company 1] had provided fraudulent documents. The information also relates to the process of commencing investigation…

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 2107289 (Migration)

Details

AGLC: 2107289 (Migration) [2022] AATA 2911
Case: [2022] AATA 2911
Decision Date: 29 July 2022

CaseChat Overview and Summary

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), by an applicant nominated by [Company 1]. The central dispute revolved around whether the applicant satisfied Public Interest Criterion (PIC) 4020, which requires that an applicant has not provided false or misleading information or bogus documents in relation to a visa application or a previous visa held within the preceding 12 months. The case was heard by R. Skaros, Senior Member, of the Tribunal.

The Tribunal was required to determine whether the applicant had provided, or caused to be provided, a bogus document or information that was false or misleading in a material particular in relation to their visa application or a previous visa. This involved considering the definitions of "bogus document" and "information that is false or misleading in a material particular" under the Migration Regulations 1994 and the Migration Act 1958. The Tribunal also had to assess whether the applicant met the requirements of PIC 4020(1) and (2), and whether any waiver under PIC 4020(4) was applicable, noting that such waivers do not extend to identity requirements under PIC 4020(2A) and (2B).

The Tribunal reasoned that, based on the evidence before it, the applicant satisfied PIC 4020 for the purposes of clause 186.213(1). While the case text indicates that departmental verification checks had found limited independent evidence of employment and that non-compliance was admitted, the Tribunal's conclusion suggests that either the information provided was not considered false or misleading in a material particular, or that the circumstances warranted a waiver. The Tribunal noted that the nomination by [Company 1] was approved and the position remained available, and that recent evidence from the company's executive managers supported the applicant's claims. The Tribunal applied the principles established in cases such as *Arora v MIBP* and *Batra v MIAC* regarding the interpretation of "bogus document" and "information that is false or misleading in a material particular."

Consequently, the Tribunal remitted the applications for Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets Public Interest Criterion 4020 for the purposes of clause 186.213(1) of Schedule 2 to the Regulations.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

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 applicant was nominated by [Company 1] for the Subclass 186 visa (Labour Agreement Stream) for a position. Departmental records indicate that the nomination to which the position relates was approved by the Department on 23 April 2020. Departmental records do not indicate that the nomination associated with this visa application has been withdrawn. It appears, on the records available to the Tribunal, that the associated nomination has been approved and has not been withdrawn. Further, based on the recent supporting written and oral evidence received from the executive managers of [Company 1], details of which are discussed further below, it appears that the position to which the nomination relates remains available to the applicant. Does the applicant satisfy the requirements of PIC 4020? The issue in this review is whether the visa 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). It also requires that 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). The applicant must also satisfy 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.

Decision

Reasons for decision

On the basis of the above, the Tribunal finds that the applicant satisfies PIC 4020 for the purposes of cl 186.213(1).decision The Tribunal remits the applications for Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 186 - Employer Nomination Scheme visas:·Public Interest Criterion 4020 for the purposes of cl 186.213(1) of Schedule 2 to the Regulations. R. SkarosSenior MemberATTACHMENTMigration 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

Full text does not contain this section.