Adhikari (Migration)

Adhikari (Migration) [2021] AATA 2999 (27 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Mahesh Adhikari
CASE NUMBER:  1824080
HOME AFFAIRS REFERENCE(S):          BCC2017/734095
MEMBER:Andrew McLean Williams
DATE:27 July 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the application for a 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(1) of Schedule 2 to the Regulations

Statement made on 27 July 2021 at 2:12pm
CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – applicant failed to declare marriage and biological son – Hindu cultural ceremony – questions framed confined to dependents – dependent family members – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 65
Migration Regulations 1994, Schedule 2, cl 186.213; Schedule 4, Public Interest Criterion 4020; rr 1.05, 1.12
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Trivedi v MIBP [2014] FCAFC 42

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made on 1 August 2018 by a delegate of the Minister for Home Affairs refusing to grant the Applicant an Employer Nomination (Permanent) visa, under section 65 of the Migration Act 1958 (Cth) (‘the Act’).
The Applicant applied for this category of visa on 23 February 2017. The Delegate refused the application on the basis of determining that the Applicant did not satisfy the requirements of clause 186.213(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’), because the Applicant had failed to declare that he has a biological son, BA, who resides with his biological mother BD; or to declare that he was married to BD at the time of the visa application. The Delegate took the view that by his having answered ‘no’ to the question ‘Does the applicant have any dependent family members not travelling to Australia who are not Australian citizens or Australian permanent residents?’, the Applicant had provided information that was ‘false or misleading in a material particular’; thus placing the Applicant in breach of Public Interest Criteria (‘PIC’) 4020, and thereby unable to meet the requirement in cl. 186.213(1) that the Applicant satisfy PIC 4020.
The Applicant appeared before the Tribunal on 8 July 2021 to give evidence and make submissions. The Tribunal also received oral evidence from a Mr Pradeep Nuepane, who is the Director of the ‘Vibrant Ayurveda Wellness Centre’, and the Applicant’s Australian employer. For reasons that will become apparent, it has become unnecessary for the Tribunal to consider the evidence of Mr Pradeep Nuepane, which goes to a consequential issue now unnecessary for determination on this application for review.
The Tribunal hearing was conducted with the assistance of an interpreter in the Nepalese and English languages, although ultimately the Applicant did not require the assistance of the interpreter.
The Applicant was represented in relation to this review by Ms Catherine Bloor, solicitor of Timpson Immigration Lawyers, Brisbane. Ms Bloor prepared detailed written submissions (those dated 1 July 2021) that were filed in the Tribunal registry prior to the hearing. Ms Bloor also made further oral submissions during the hearing.
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 as required by cl 186.213(1). Broadly speaking, this requires that:
·there be no evidence that the Applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, 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 the application for the visa, or any visa that the Applicant had 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 was either granted or refused, unless the Applicant was under 18 at the time the application for the 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 irrespective whether 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 irrespective of whether the document or information was provided by the Applicant knowingly, or unwittingly.
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.
The Applicant is a citizen of Nepal and is a massage therapy practitioner of Ayurveda medicine, originally trained as such in Nepal. The Applicant arrived in Australia on 18 November 2012 as the holder of a Class TU Subclass 573 (Student) visa, initially to undertake a Diploma in Health Science, which was later followed by a Diploma in remedial (Western) massage. The Applicant was later joined in Australia by his wife GR, to whom the Applicant had been married in Nepal, on 23 November 2010.
Initially, the Applicant found part-time (student) employment in Australia at ‘Vibrant Ayurveda’ (an alternative medicine and wellness centre), as a massage therapist. Even after the completion of his Australian studies the Applicant remains employed by Vibrant Ayurveda, although now on a full-time basis.
On 9 December 2014 the Applicant and GR applied for a UC 457 visa on the basis of this employment. A subclass 457 visa was granted to each of them on 20 January 2015. On 23 February 2017, the Applicant applied for an EN 186 Visa in the Temporary Resident Transition scheme. This EN 186 visa application further included GR as a secondary applicant.
On 2 August 2018 a Delegate of the Minister refused to grant the Applicant an EN 186 Visa, specifically by reason that the Applicant had answered ‘no’ to the question: “Does the applicant have any dependent family members not travelling to Australia who are not Australian citizens or Australian permanent residents?”. Departmental enquiries conducted in Nepal had revealed evidence suggesting that as at the date of the EN 186 Visa application (9 December 2014), the Applicant had been married to another woman, BD, and that the Applicant was the father of a male child, BA, still living with BD in Nepal.
The evidence before the Tribunal in relation to the Applicant’s marriage to GR on 23 November 2011 and subsequent ostensible marriage to BD in June 2012 and the birth of BA, in May 2013, may be summarised as follows:
·The Applicant was originally a student undertaking a business course in Nepal, and had met BD during those studies, in early 2010. The Applicant and BD became friends. The Applicant did not enjoy studying business and dropped out of that course, and also lost regular contact with BD at around that same time.
·On 23 November 2010 the Applicant married GR, whom he had originally met whilst working as a massage therapist in Nepal. At the time of their first meeting GR was a student undertaking massage therapy training, and the Applicant was one of her course instructors.
·In early 2012, the Applicant decided to travel to Australia in search of better remunerated employment. He and GR agreed that, GR would initially remain in Nepal while the Applicant travelled to Australia to ascertain whether their relocation to Australia was a viable long-term proposition. Around this same time BD initiated re-contact with the Applicant. It became clear that she had become aware that the Applicant intended to re-locate to Australia. BD then started to contact the Applicant more frequently, and was persistently interested to seek out information regarding the Applicant’s progress, in terms of his obtaining an Australian visa.
·In about May 2012, BD suggested that the Applicant should come and meet and have dinner with another friend of BD, one who had apparently recently returned to Nepal from Australia. BD suggested that this friend could give the Applicant useful advice regarding what he may expect when he arrived in Australia.
·The Applicant went to dinner with BD, yet there was no friend of BD for him to meet. Instead, BD proceeded to ply the Applicant with alcohol and seduce him, informing the Applicant at the time that she was unable to fall pregnant.
·In mid June 2012, BD contacted the Applicant and informed him that she was by now pregnant. BD also informed the Applicant that she expected him to divorce GR and to marry her, instead. The Applicant refused, and suggested that BD should terminate the pregnancy. BD refused to do this and threatened to commit suicide.
·The Applicant says that over the ensuring weeks he faced enormous pressure from BD to support her and to divorce his wife, GR. At various times BD demanded money from him, or conversely demanded the opportunity to travel to Australia as his spouse, in lieu of GR. At the same time, the Applicant says that he felt a cultural anxiety at the prospect of the unborn child being born into Nepalese society as an illegitimate. None of this had been revealed to GR. Circumstances give rise to the logical inference that the Applicant was keeping all of this a steadfast secret from his wife.
·Eventually, in June 2012, the Applicant agreed to partake in a Hindu cultural ceremony organised by BD and her family so as to avoid the unborn child being born illegitimate. The Applicant says that he was content to do this for the sake of the innocent unborn child, and whilst of the express understanding that this ceremony was not a marriage ceremony, and that he would remain married to GR. The Applicant says that he participated in a ceremony, but did not sign any paperwork. The evidence available before the Tribunal is to the effect that it is not possible to validly marry another in Nepal if already married.
·The Applicant saw BD on a few more occasions in the later half of 2012, and engaged in further acts of intimacy, after BD had again plied him with alcohol.
·The Applicant departed for Australia in November 2012 and has not seen BD at any stage since that time.
·The child BA was born in May 2013. In hindsight, the Applicant suspects that BD was not pregnant with his child when first claimed in June 2012, as this would have meant a gestation period of 12 months.
·The Applicant has never met, nor ever seen BA. The Applicant and his family in Nepal have never provided any financial or other support to BD, or to BA. Despite his having requested it, BD has avoided ever showing the Applicant BA’s birth certificate. The Applicant assumes his paternity of BA, but cannot be certain of it.
·GR separated from the Applicant and returned to Nepal in 2018. They were divorced in June 2019.
·On 16 March 2020 the Applicant returned to Nepal and obtained a further divorce, from BD. When asked by the Tribunal why this was even necessary, given the Applicant’s evidence that he had never married BD and could not marry BD by reason of his pre-existing marriage to GR, the Applicant explained that he had done this purely as a precaution, in order to prevent BD from making any further claims against him in Nepal.
The question on the EN 186 Visa application form said to have been falsely answered by the Applicant is contained on page 7 of the form and is expressed as follows:
‘Does the applicant have any dependent family members not travelling to Australia who are not Australian citizens or Australian permanent residents?’
The manner in which the question had been framed on the form therefore confined the enquiry to dependent family members, only. It is to be noted that the question on the form has changed, more recently.
“Dependency”, for migration purposes, is defined in Regulation 1.05A of the Regulations. At the time when it is necessary to establish whether a person is a dependant (being the time when the form was completed and the declaration as to truthfulness was made), the putative dependant must be one who:
(i)“…is, and has been for a substantial period before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and
(ii) [their] reliance on the other person is greater than any reliance ….on any other person or source of support, for financial support to meet [their] basic needs for food, clothing and shelter”
In light of the evidence received before the Tribunal the child BA living in Nepal is not and has never been a “dependant family member” of the Applicant. Nor for that matter has been BA’s mother, BD.
In light of that, the answer ‘no’ as given by the Applicant on his EN 186 Visa application is not an answer that is either false or misleading in any material particular.
Therefore, the applicant meets PIC 4020(1).
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(1)?
PIC 4020(2) requires the Tribunal to be satisfied that the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing 3 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2AA).
There is no evidence before the Tribunal suggesting that the Applicant or any member of the Applicant’s family unit (as defined in reg 1.12) have been refused a visa in the relevant period because of a failure to satisfy PIC 4020(1).
Therefore, PIC 4020(2) is met.
Has the applicant satisfied the identity requirements?
PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity. The Tribunal is satisfied as to the identity of the Applicant on the basis of passport documentation contained on the original file pertaining to the EN 186 visa application.
Therefore, the applicant meets PIC 4020(2A).
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?
PIC 4020(2B) requires that neither the Applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2BA).
There is no evidence before the Tribunal indicating that the Applicant or any member of the family unit (as defined in reg 1.12) have been refused a visa in the relevant period because of a failure to satisfy PIC 4020(2A).
Therefore PIC 4020(2B) is met.
On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl 186.213(1).
DECISION
The Tribunal remits the application for a 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(1) of Schedule 2 to the Regulations
Andrew McLean Williams
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.
…

[2021] AATA 2999

27 July 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction