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Asif (Migration)

Asif (Migration)

Case [2024] AATA 2338 24 June 2024

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Asif (Migration) [2024] AATA 2338 (24 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Ayaz Asif
Mrs Shamaila Ayaz
Mr Muhammad Momin Ayaz
Mr Muhammad Moiz Ayaz
Mr Muhammad Muqeet Ayaz
REPRESENTATIVE:  Mrs Ayshmin Imran (MARN: 0955824)
CASE NUMBER:  2209667
HOME AFFAIRS REFERENCE(S):          BCC2019/5226327
MEMBER:George Hallwood
DATE:24 June 2024
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicants Business Skills (Provisional) visas.

Statement made on 24 June 2024 at 4:31pm
CATCHWORDS
MIGRATION – Business Skills (Provisional) (Class EB) visa – Subclass 188 Business Innovation and Investment (Provisional) – Significant Investor Extension stream – bogus document – business quotations – reconciling and correcting internal records – purposeful falsity – compelling circumstances affecting the interests of an Australian – decision under review affirmed
LEGISLATION
Administrative Appeal Tribunal Act, s 2A
Migration Act 1958, ss 5(1), 65
Migration Regulations 1994, Schedule 2, cls 188.213, 188.232, 188.233, 188.311; Schedule 4, Public Interest Criterion 4020; r 1.03
CASES
AIB16 v MIBP [2017] FCAFC 163
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Buksh v MICMA [2023] FedCFamC2G 817
Chopra v MIBP [2014] FCCA 2064
FRS17 v MIBP [2022] FedCFamC2G 808
Kaur v MIBP [2014] FCA 1276
Kaur v MIBP [2017] FCAFC 184
Mudiyanselage v MIAC [2012] FMCA 887
Patel v MIBP [2015] FCAFC 22
Plaintiff M64/2015 v MIBP [2015] HCA 50
Salopal v MIBP [2018] FCA 1308
Singh v MIBP [2015] FCCA 2776
Singh v MIBP [2018] FCAFC 52
Trivedi v MIBP [2014] FCAFC 42
Vyas v MIMAC [2013] FCCA 1226
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 June 2022 to refuse to grant the applicants Business Skills (Provisional) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The applicants applied for the visas on 18 October 2019. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl 188.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because there was evidence before the Minister that the applicant has provided, or caused to be provided, a bogus document or false or misleading information in relation to this visa application.
3. The first and second named applicants appeared before the Tribunal on 27 February 2024 and 7 March 2024 to give evidence and present arguments.
4. The applicants were represented in relation to the review on 27 February 2024.
Prior to hearing
5. On 21 December 2023 the Tribunal wrote to the applicants inviting them to attend a video hearing on 1 February 2024. On 28 December 2023 the applicant wrote to the Tribunal to request that the hearing be postponed as the applicant would be overseas from 10 January 2024 to 20 February 2024. The applicant requested that the hearing be postponed until after 22 February 2024.…

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 Asif (Migration)

Details

AGLC: Asif (Migration) [2024] AATA 2338
Case: [2024] AATA 2338
Decision Date: 24 June 2024

CaseChat Overview and Summary

The applicant, Asif, sought judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to grant a Subclass 188 Business Innovation and Investment (Provisional) visa. The visa application was made under the Significant Investor Extension stream. The Minister's decision was based on the finding that the applicant had provided a bogus document, specifically business quotations, and had engaged in purposeful falsity in reconciling and correcting internal records.

The primary legal issue before the Federal Circuit Court was whether the Minister's decision to refuse the visa was affected by an error of law. This involved determining whether the evidence supported the finding that the applicant had provided a bogus document and engaged in purposeful falsity, and whether the Minister had properly considered any compelling circumstances affecting the interests of Australia.

The Court considered the evidence relating to the business quotations and the applicant's internal records. It was found that the discrepancies and corrections made to the records, coupled with the nature of the business quotations, indicated a deliberate attempt to mislead the Department. The Court applied the principles of administrative law, including the requirement for decisions to be based on evidence and for findings of fact to be reasonably open on the material before the decision-maker. The Court found that the Minister's conclusion that the applicant had provided a bogus document and engaged in purposeful falsity was open on the evidence.

The Court affirmed the decision under review, finding no error of law in the Minister's refusal to grant the visa.

Orders