Bhardwaj (Migration)

[2023] AATA 384

Bhardwaj (Migration) [2023] AATA 384 (24 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ankur Bhardwaj

REPRESENTATIVE:  Mr Monil Kumar Arora (MARN: 0641009)

CASE NUMBER:  1923841

HOME AFFAIRS REFERENCE(S):          BCC2017/3224527

MEMBER:De-Anne Kelly

DATE:24 February 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a  Regional Employer Nomination (Permanent) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 -  Regional Sponsored Migration Scheme visa:

·Public Interest Criterion 4020 for the purposes of cl 187.213 of Schedule 2 to the Regulations

Statement made on 24 February 2023 at 9:07am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – false or misleading information provided to medical officer of commonwealth – mental health treatment not declared – form completed by agent – discretion to waive requirements – lifestyle changes and low symptoms associated with normal life stressors – skills shortage in work sector – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cls 187.213, 187.235(1), Schedule 4, criterion 4020(1), (5)

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Plaintiff M64/2015 v MIBP [2015] HCA 50
Trivedi v MIBP [2014] FCAFC 42

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 19 August 2019 to refuse to grant the applicant a Regional Employer Nomination (Permanent) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 5 September 2017. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 187.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the applicant not meet Public Interest Criteria (PIC) 4020 as a result of providing false or misleading information in a material particular to the Medical Office of the Commonwealth when completing the health examination to satisfy cl.187.235(1).

3. The applicant appeared before the Tribunal on 29 November 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Kamalpreet Kaur Dhooria the owner and director of the childcare centre that employs the applicant.

4. There was a second hearing on 30 January 2023 in which the Tribunal requested evidence form Dr Marie- Ange NAMBIAR of Belconnen ACT [phone] the treating doctor who last saw him on 25 April 2017 or 5 years and some nine months earlier.

5. The applicant was represented in relation to the review by Mr Arora.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

7. Procedural Matters

8. The agent following the second hearing requested and was granted an adjournment for a month to seek another Doctors opinion.

   consideration of claims and evidence

9. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 187.213 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).

10. 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?

11. 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.

12. 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.

13. 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.

14. It is noted that an employer nomination was approved on 4 April 2019 nominating the visa applicant as a Child Care Worker – 421111 to work at Little Smiles Early Childhood Centre Pty Ltd on $55,000 per annum to be employed in regional NSW/ACT in postcode 2905.

15. The Tribunal does not accept the argument from the agent that the Department medical form was misleading as it is reproduced below, and the intent is clear that one is to provide the medical history.

    Medical History

    History or informed of:

    ·Prolonged medical treatment and/or repeated hospital admissions for any reason, including a - major operation or psychiatric illness

    ·Psychological/Psychiatric Disorder (including major depression, bipolar disorder or     - schizophrenia)

    ·Are you taking any prescribed pills or medication (excluding oral contraceptives…)? Please list.

16. The applicant in the hearing advised that the agent had completed the medical form and send it to him to check. He claims all of this happened a long time ago and was a brief episode furthermore he no longer needed treatment or medication.

17. The Tribunal finds that the applicant provided information that is false or misleading in a material particular to the making of a decision on the health criteria to satisfy the granting of the visa.

18. Therefore, the applicant does not meet PIC 4020(1).

    Should the requirements of PIC 4020(1) or (2) be waived?

19. 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.

20. 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.

21. It is further noted In a letter dated November 2022 from a treating doctor who has had the applicant as a patient since 2017 that he recovered from his condition by June 2017 however this Doctor was found to have based her evidence on what the applicant told her and she had no evidence of him subsequently working and having recovered since she last saw the applicant as a patient in 2017. The Tribunal could place little weight on the Doctors evidence.

22. The agent requested and was granted an adjournment for a month to seek another Doctors opinion.

23. On 11 February 2023, a second Registered Psychologist endorsed by AHPRA gave an overview of the psychological difficulties faced by the applicant due to loneliness while living in Brisbane which were alleviated when he moved to Canberra to reside with his uncle’s family and commenced a regime involving exercise, health diet and improved sleep. He decided to join the childcare sector. An assessment by the Registered Psychologist found that the applicant symptoms are low and associated with the normal life stressors. The applicant does not report any risk towards himself or others. The Registered Psychologist found, and the Tribunal accepts that the applicant does not have any current concerns regarding his mental health and presents a psychologically healthy. This was important to the Tribunal since the applicant works with young children.

24. The owner of the childcare centre states that she values the applicant, and they are running short of room leaders. The children like the applicant who has been there many years. There are not many male room leaders who can act as a role model for children from single parent families who seek a father figure.

25. The applicant stated that it was not his intention to provide false information and it was an innocent error.

26. The Tribunal considers the applicant fills an important role as a male room leader in childcare for which there is a skilled shortage, and the employer evidently has a compelling need for the applicant, and this warrants the waiver.

27. For the preceding reasons, the Tribunal is satisfied that the requirements should be waived.

28. Therefore, the requirements of PIC 4020[(1) should be waived.

    Has the applicant satisfied the identity requirements?

29. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.  

30. The applicant has satisfied the Tribunal as to his identity.

31. Therefore, the applicant meets PIC 4020(2A).

    Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?

32. 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).

33. There is no evidence that the applicant has been refused a visa in the 10 years before the application is made because of the failure to establish his identity.

34. Therefore PIC 4020(2B) is met. The  applicant does satisfy PIC 4020 for the purposes of cl 187.213.

    decision

35. The Tribunal remits the application for a Regional Employer Nomination (Permanent) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 - Regional Sponsored Migration Scheme visa:

    ·Public Interest Criterion 4020 for the purposes of cl 187.213 of Schedule 2 to the Regulations

    De-Anne Kelly
    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.

    …