Bassi (Migration)

Bassi (Migration) [2023] AATA 4637 (29 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Karanvir Singh Bassi
REPRESENTATIVE:  Mrs Babban Sethi Lamba (MARN: 1803056)
CASE NUMBER:  2212292
HOME AFFAIRS REFERENCE(S):          BCC2022/564884
MEMBER:Peter Katsambanis
DATE:29 November 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled Regional Sponsored (Provisional) visa.

Statement made on 29 November 2023 at 3:03pm

CATCHWORDS
MIGRATION – Skilled Regional (Provisional) visa– Subclass 489 (Temporary Graduate)) visa – bogus document, or false or misleading information – the address information in the first Form 80 was incorrect – applicant failed to meet Public Interest Criterion 4020(1)– applicant applied for the visa as a secondary applicant – no compelling circumstances that affect the interests of Australia – requirements of PIC 4020(1) should not be waived – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 376
Migration Regulations 1994, Schedule 2, cl 489.313
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 18
Trivedi v MIBP [2014] FCAFC 42
Plaintiff M64/2015 v MIBP [2015] HCA 50
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 Home Affairs on 9 August 2022 to refuse to grant the applicant a Skilled Regional Sponsored (Provisional) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 7 March 2022. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 489.313(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate found that the applicant had given to the Minister information that is false and misleading in a material particular. Accordingly, the delegate was not satisfied that the applicant met Public Interest Criterion 4020(1).
The applicant appeared before the Tribunal on 27 November 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Navdeep Kaur, the wife of the applicant.
The applicant was represented in relation to the review. The representative 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 4020 (PIC 4020) as required by cl 489.313(1) 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.
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 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: PIC 4020(3). It also applies whether or not 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 issues in this case whether the applicant gave or caused to be given information that is false and misleading in a material particular. Specifically, the issue is whether the applicant provided false and misleading information to the Department about the addresses where he had resided in the past 10 years.
As discussed at the hearing, the applicant applied for the visa on 7 March 2022 as a secondary applicant on the basis that he was the husband of Navdeep Kaur, who was already the holder of a subclass 489 visa. The couple provided the Department with a marriage certificate dated 3 March 2022 which relevantly stated the applicant’s residential address on the date of the marriage as being in Langford, a suburb of Perth.
After the application was lodged, the Department requested that the applicant submit a Form 80 – Personal particulars for assessment including character assessment. The applicant submitted the requested Form 80 (‘the first Form 80’) to the Department on 13 April 2022. In this form, at questions 17 and 54, the applicant listed one address in India and multiple addresses in Australia where he claimed to have lived in the past 10 years. He specifically stated that he had lived at the residential address in Langford in January 2022. He also stated that he lived in the Perth suburb of Success in January 2022. He claimed that he had then lived in Yakamia and Collingwood Park (both suburbs of the Western Australian regional city of Albany) in March 2022.
As noted in the delegate’s decision record, there is information on the Department file that is the subject of a disclosure certificate pursuant to s 376 of the Act. The applicant and the representative indicated at the hearing that they were aware of the general nature of this information as outlined in the decision record. However, as discussed with the applicant and that representative at the hearing, the Tribunal has placed no weight on this information when making its decision in this matter as it does not consider this information is directly relevant to the issue to be determined.
On 20 November 2023, the applicant’s representative provided the Tribunal with a submission containing a written statement from the applicant, statements from the applicant’s sister and mother, joint banking statements for the applicant and his wife, health insurance and car insurance details, superannuation details and arguments from the representative in support of the applicant’s claims.
Also included in this submission was an updated Form 80 - Personal particulars for assessment including character assessment (‘the second Form 80’) which contained amended address details from the applicant. Relevantly, this second Form 80 claimed that the applicant had lived at the residential address in Langford from January 2022 to July 2022. It also claimed that he had lived in Yakamia in March 2022 and in Collingwood Park from March 2022 to July 2022. Since July 2022, it was claimed that the applicant was living at a different residential address in the suburb of Langford.
In his written statement, the applicant relevantly claimed that his wife lived and worked in the regional city of Albany whilst he was primarily working in Perth. From the time the relationship started, the applicant would juggle between Albany and Perth to balance his work and relationship commitments. He claimed that any discrepancies in the residential addresses he had provided over time were inadvertent. He apologised for any confusion caused and added that he had no deliberate intent to mislead or misrepresent his relationship with his wife.
In her submission, the representative stated that the applicant did not believe he had provided any false or misleading information and that he had made some innocent errors creating discrepancies in the first Form 80.
At the hearing, the applicant confirmed that the address information on the first Form 80 at questions 17 and 54 was incorrect and therefore false and misleading. The applicant further confirmed his claim that the address information contained in the second Form 80 represented the correct information about where he had lived in the previous 10 years before he made his application. He added that he had made a mistake and had inadvertently provided incorrect information on the first Form 80.
The applicant and the representative both agreed with the Tribunal that information about where the applicant lived over time was material in the applicant’s circumstances because it may be relevant when determining matters such as the applicant’s character and the status of his claimed relationship with his wife as he was a secondary visa applicant.
The applicant confirmed at the hearing that he had lived at the Langford address for around 6 months from January 2022 to July 2022. He added that during that period of time he regularly travelled between that address and Albany in order to spend time with his wife so that he spent time in both places. However, he confirmed that he was living at the Langford address when the couple got married and when he lodged his visa application a few days after the marriage took place. When asked why he had not simply told the Department in the first Form 80 that he had travelled between Langford and Albany during this time, the applicant stated that he had lived in Langford for only a short period of time. However, when it was pointed out to him that the second Form 80 suggested he had lived in that place for around 6 months, the applicant stated that he was travelling between the 2 addresses at that time.
The applicant’s representative stated that the applicant was a ‘young boy’ who had made inadvertent errors, but he had no intention to falsify evidence and although his errors were minor, the consequences were huge and potentially catastrophic.
In relation to whether there were any compelling circumstances relating to Australia in the applicant’s case, the representative stated that the applicant’s wife was a nurse working in a regional city. However, the representative and the applicant both agreed that the wife’s visa status was not at issue in the matter before the Tribunal. The representative suggested that there were compassionate circumstances that would affect the wife, but she was not an Australian citizen or permanent resident and she was not an eligible New Zealand citizen. The representative and the applicant indicated that there were no compassionate or compelling circumstances in the applicant’s case that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
In her witness evidence, the applicant’s wife stated to the Tribunal that the couple had been juggling between addresses in Perth (Langford) and Albany, which led to the applicant making a mistake in the first Form 80. She claimed that she worked as a nurse in Albany but stated that it was hard for her husband to find work as a truck driver in Albany. When the Tribunal questioned whether it would be overly difficult for a truck driver to find suitable employment in a large regional port city like Albany, the couple indicated that the applicant was currently not employed due to an arm injury. The wife indicated that she had now applied for a permanent resident visa. She was sponsored in this application by her employer, but she believed that the Department had not processed her application as they were awaiting the result of this review application. The representative suggested that she feared the Department may not finalise the wife’s application until the applicant’s review application had been determined.
There is no issue relating to any bogus document.
In relation to whether the applicant has given or caused to be given any information that is false and misleading, the applicant admitted that the address information he provided in the first Form 80 was incorrect and therefore false and misleading. As discussed with the applicant at the hearing, it is not relevant whether the information was provided knowingly or whether it was provided inadvertently or unwittingly. But, in the applicant’s own personal circumstances, the applicant stated that the hearing that he was living at the address in Langford when he lodged the visa application that is the subject of this review. However, he then did not state that he was living at that address at that relevant time when he lodged the first Form 80. On this basis, the Tribunal does not accept the applicant provided this false information unwittingly or inadvertently and the Tribunal therefore considers that there was some element or intent of fraud or deception involved from the applicant when he provided this information on the first Form 80.
As discussed at the hearing, and as agreed by the applicant and the representative, the relevant address information is material in the context of this application as it may be relevant in relation to both the applicant’s character and the applicant’s relationship status on which his application relies.
Accordingly, on the evidence before it, the Tribunal finds that the applicant did give or cause to be given to the Department (and therefore the Minister) information that is false or misleading in a material particular given that it was false or misleading at the time it was given and that it is 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.
Therefore, the applicant does not meet PIC 4020(1).
Should the requirements of PIC 4020(1) or (2) be waived?
The requirements of PIC 4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in reg 1.03), that justify the granting of the visa. The decision-maker must first be satisfied that there are such circumstances, then must consider whether to exercise the discretion to waive the requirements, having regard to those circumstances: Kaur v MIBP [2017] FCAFC 184.
The expressions ‘compelling circumstances’ and ‘compassionate or compelling circumstances’ are not defined for these purposes. To be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied: see Plaintiff M64/2015 v MIBP [2015] HCA 50. The ordinary meaning of ‘compassionate’ relates to feelings of sympathy, sorrow, pity or concern for others.
For the following reasons, the Tribunal is not satisfied that the requirements should be waived.
As discussed at the hearing, the applicant’s wife is a nurse which is an occupation in high demand in Australia, particularly in regional areas such as the one where she works. However, any determination on the review application would have no impact on the wife’s existing visa or any pending or future visa applications. Therefore, this does not give rise to any compelling circumstances that affect the interests of Australia in the applicant’s circumstances. In addition, although compassionate circumstances may apply in the case of the wife, she is not an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
There is no other information before the Tribunal to indicate that there are compelling circumstances that affect the interests of Australia or that there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justify the granting of a visa in this matter.
Therefore, the requirements of PIC 4020(1) should not be waived.
On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl 489.313(1).
There is no information before the Tribunal to indicate that the applicant meets the criteria of any other subclass within the class of visa sought.
DECISION
The Tribunal affirms the decision not to grant the applicant a Skilled Regional Sponsored (Provisional) visa.
Peter Katsambanis
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.
…

[2023] AATA 4637

29 November 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Appeal