2107454 (Migration)

This matter concerned an application for an Employer Nomination (Permanent) visa (Class EN) Subclass 186 (Employer Nomination Scheme). The applicant sought review of a decision concerning the application of Public Interest Criterion (PIC) 4020. The dispute centred on whether the applicant had provided a bogus document or false or misleading information in relation to a previous visa application.

The Tribunal was required to determine whether the applicant had provided a bogus document or information that was false or misleading in a material particular, as defined by PIC 4020(1) and section 5(1) of the Migration Act 1958. This criterion requires that there be no evidence of such documents or information being provided in relation to the current visa application or a visa held in the 12 months prior to the application. The Tribunal also considered the definitions of "bogus document" and "information that is false or misleading in a material particular," and the requirement for an element of fraud or deception.

The Tribunal reasoned that while the department's verification checks found limited independent evidence of the applicant's employment history, and noted factors such as cash payments and high worker turnover at the previous employer, this lack of independent evidence did not, in itself, establish that the applicant had provided a bogus document or false or misleading information. The Tribunal applied the principle that an element of fraud or deception is necessary to engage PIC 4020, and that the mere absence of corroborating evidence does not equate to the provision of false or misleading information.

Consequently, the Tribunal concluded that the applicant satisfied PIC 4020(1) for the purposes of the Subclass 186 visa. The application was remitted for reconsideration with the direction that the applicant meets this criterion.