Ataullah (Migration) - [2020] AATA 2545

Ataullah (Migration) [2020] AATA 2545 (4 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Ahmad Ataullah
Mrs Laila Ahmad Ataullah
Master Momin Ahmad Ataullah
Miss Emaan Ahmad Ataullah
CASE NUMBER:  1702610
DIBP REFERENCE(S):  CLF2014/143226 CLF2014/89875 CLF2014/89877 CLF2014/89882 CLF2016/55515
MEMBER:Cathrine Burnett-Wake
DATE:4 June 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Business Skills (Residence) (Class DF) visas.

Statement made on 04 June 2020 at 5:50pm
CATCHWORDS
MIGRATION – Business Skills (Residence) (Class DF) visa – Subclass 892 (State/Territory Sponsored Business Owner) – bogus document – contract of sale altered by broker – broker’s authority to act on behalf of seller – no intention by broker to mislead or deceive – applicant not aware that contract altered – waiver of requirement – compassionate or compelling circumstances – best interests of children – one child’s medical condition – socio-economic conditions and educational opportunities in home country – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 65
Migration Regulations 1994 (Cth), Schedule 2, cl 892.223, Schedule 4, PIC 4020
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Singh v MIBP [2016] FCCA 774
Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42
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 Immigration on 1 February 2017 to refuse to grant the applicants Business Skills (Residence) (Class DF) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 25 June 2014. The delegate refused to grant the visas on the basis that the primary applicant (the applicant) did not meet Public Interest Criterion 4020, cls.4020(1) or 4020(4), and therefore did not satisfy cl.892.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate found that the applicant provided a bogus document in relation to his Business Skills application. Specifically, the delegate made findings that, following a request to provide information that the business was still operating, the applicant provided a bogus document being: a Sale of Contract (contract No:S4849) from Australian Grain Export Pty Ltd (AGE) dated 05 February 2016, showing the buyer as Ozmin Trading Pty Ltd. The delegate found that this document was altered without authority to read Ozmin Trading Pty Ltd, and that the amendment was not authorised or done by AGE.
The applicants appeared before the Tribunal on 17 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Abdul Qiqdir, a business associate of the applicant, and Brett Dodson, the Sales Director from AGE.
The applicants were represented in relation to the review by their registered migration agent who attended the hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the visa applicant meets Public Interest Criterion…

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 Ataullah (Migration)

Details

AGLC: Ataullah (Migration) [2020] AATA 2545
Case: [2020] AATA 2545
Decision Date: 4 June 2020

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Mr Ataullah, against a decision to affirm the refusal of his Subclass 892 (State/Territory Sponsored Business Owner) visa. The core of the dispute revolved around a contract of sale submitted by the applicant as evidence that his business, Ozmin Trading Pty Ltd, was still operating. The delegate identified irregularities in this contract, which had apparently been altered to show Ozmin Trading Pty Ltd as the buyer instead of the original party, Yarra Victoria Pty Ltd. The delegate's verification with Australian Grain Export Pty Ltd (AGE), the seller, confirmed the contract was invalid and appeared to have been altered. The applicant contended that a broker acting on behalf of AGE had altered the contract, and that he was unaware of this alteration. The case was heard by Cathrine Burnett-Wake.

The primary legal issue before the court was whether the applicant had satisfied Public Interest Criterion (PIC) 4020, which requires that an applicant does not provide bogus documents or false or misleading information in relation to their visa application. Specifically, the court had to determine if the altered contract constituted a "bogus document" or "false or misleading information" provided by the applicant, and if so, whether there were compelling or compassionate circumstances that would justify a waiver of this requirement. The court also considered the provisions of PIC 4020(4) regarding waivers and the distinction between the general provisions of PIC 4020(1) and (2) and the non-waivable identity requirements under PIC 4020(2A) and (2B).

The court reasoned that while the applicant may not have personally intended to mislead the Department, the submission of an altered contract, regardless of who made the alteration, meant that the document provided was not genuine. The court noted that the applicant's explanation that the broker made the alteration and that AGE's records were not updated did not negate the fact that the document presented to the Department was false. The court found that the applicant had not provided sufficient evidence to establish compelling or compassionate circumstances that would warrant a waiver of PIC 4020, particularly in light of the fact that the altered document was central to demonstrating the ongoing operation of his business. The court affirmed the delegate's decision.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.Background The applicant’s business is an export business that supplies grains, pulses, legumes and tallow to the middle east. On 15 July 2016 the delegate sent a request for further information to the applicant requesting evidence that his company, Ozmin Trading Pty Ltd, was still operating. In response to this request, the applicant provided Business Activity Statements (BAS) for the period of 1 January 2016 to 31 March 2016 and 1 April 2016 to 30 June 2016. These BAS reflected that no sales were recorded for the business during these periods. The applicant outlined that there was a nil turnover due to the business not operating during that time as the grain export was seasonal, however, the business had pending future orders for grain. On 20 September 2016, the delegate requested that the applicant provide evidence of the claimed grain orders so they could be satisfied that the business was still operating. In response to the delegate’s letter of 20 September 2016, the applicant provided a Sale of Contract, contract No:S4849 from Australian Grain Export Pty Ltd (AGE) dated 05 February 2016, showing the buyer as Ozmin Trading Pty Ltd. The delegate observed that contract No:S4849 contained irregularities in that the contract was originally between AGE and Yarra Victoria Pty Ltd but was amended to reflect it was between Ozmin Trading Pty Ltd and AGE. The delegate contacted AGE to verify the contract. A representative from AGE confirmed that the contract was not valid and noted that the contract appeared to have been altered to show Ozmin Trading Pty Ltd as the buyer on the contract. The delegate sent a letter to the applicant requesting comment on the suspected ‘nongenuine’ information, being the contract, that was supplied to the Department. On 16 November 2016, the applicant responded to the Department’s letter and provided: A statement, in part claiming: “There was an original contract between AGE and Yarra Victoria Pty Ltd, which was amended earlier this year by the broker of AGE, Abdul Wahid Abdul Majid (PVT) Limited (AWAM). Unfortunately this amendment was communicated late to AGE and it seems that the system at AGE was not updated”. A letter from AWAM stating that the order was updated in Pakistan, but that this information was not communicated to AGE in Australia, and that as a consequence, the records of AGE had not been updated at the time the Department made the verification enquiry. A copy of an email from Mr. Brett Dodson from AGE dated 15 November 2016 including the email chain as follows: 06/02/2016 - email from AWAM to AGE confirming an order of chickpeas with the buyer Yarra Victoria Pty Ltd; 09/02/2016 - email from AGE to AWAM confirming the contract with Yarra Victoria Pty Ltd (contract No:S4849); 09/09/2016 - email from AWAM to AGE with the import permit for Yarra Victoria Pty Ltd attached; 12/09/2016 - email from AGE to AWAM re the contract, and confirming that the buyer is Yarra Victoria Pty Ltd; 24/10/2016 - email from AWAM to AGE asking that the buyer be changed to Ozmin Trading instead of Yarra Victoria Pty Ltd; 15/11/2016 - email from AGE confirming that the amendment to the buyer details was not approved from that office.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.892.223 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); 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 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); 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.Background The applicant’s business is an export business that supplies grains, pulses, legumes and tallow to the middle east. On 15 July 2016 the delegate sent a request for further information to the applicant requesting evidence that his company, Ozmin Trading Pty Ltd, was still operating. In response to this request, the applicant provided Business Activity Statements (BAS) for the period of 1 January 2016 to 31 March 2016 and 1 April 2016 to 30 June 2016. These BAS reflected that no sales were recorded for the business during these periods. The applicant outlined that there was a nil turnover due to the business not operating during that time as the grain export was seasonal, however, the business had pending future orders for grain. On 20 September 2016, the delegate requested that the applicant provide evidence of the claimed grain orders so they could be satisfied that the business was still operating. In response to the delegate’s letter of 20 September 2016, the applicant provided a Sale of Contract, contract No:S4849 from Australian Grain Export Pty Ltd (AGE) dated 05 February 2016, showing the buyer as Ozmin Trading Pty Ltd.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.