Adhikari (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme). The applicant had failed to declare a marriage and a biological son, which occurred during a Hindu cultural ceremony. The questions posed to the applicant regarding dependents were framed in a manner that the Tribunal considered potentially ambiguous.

The central legal issue before the Tribunal was whether the applicant met Public Interest Criterion (PIC) 4020, which is a mandatory requirement for this visa subclass. This criterion encompasses several aspects, including the prohibition of submitting bogus documents or false or misleading information in relation to the visa application or any previous visa held within the preceding 12 months. It also addresses past visa refusals due to PIC 4020 failures and identity verification requirements. The Tribunal noted that while waivers are available for certain PIC 4020 provisions, they do not extend to identity requirements.

The Tribunal reasoned that the applicant's failure to declare their marriage and son could constitute providing information that was false or misleading in a material particular, as defined by PIC 4020(5). The Tribunal referenced relevant case law, including *Arora v MIBP* and *Batra v MIAC*, to distinguish the definition of a "bogus document" from "false or misleading information," noting that the former does not require relevance to a visa grant criterion. Crucially, the Tribunal highlighted that the prohibition under PIC 4020(1) applies regardless of whether the misleading information was provided knowingly or unwittingly, and irrespective of how the Minister became aware of it.

Given the potential ambiguity in the questions asked of the applicant and the significant implications of PIC 4020, the Tribunal concluded that the matter should be remitted for reconsideration. This would allow for a fresh assessment of whether the applicant had indeed provided false or misleading information and whether the circumstances warranted any available waivers.