Deol (Migration) - [2020] AATA 2593

Deol (Migration) [2020] AATA 2593 (16 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Jaskaran Singh Deol
Mrs Karamjit Kaur Deol
Ms Gursimran Kaur Deol
Mr Prabhsimran Singh Deol
CASE NUMBER:  1820246
HOME AFFAIRS REFERENCE(S):          BCC2017/2029383, BCC2018/4201141
MEMBER:K. Chapman
DATE:16 April 2020
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants Skilled Regional Sponsored (Provisional) visas.

Statement made on 16 April 2020 at 4:32pm
CATCHWORDS
MIGRATION – Skilled Regional Sponsored (Provisional) (Class SP) – Subclass 489 visa – ‘points test’ criterion no met– legitimacy of work experience – provided false and misleading information in relation to his employment history – failed to meet requirements of PIC 4020–serious credibility concerns – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 65, 94, 96, 359, 362,376
Migration Regulations 1994, r 2.26, Schedule 2, cls 489,211, 489.224
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
Singh v MIBP [2018] FCAFC 52
Trivedi v MIBP [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 Home Affairs, on 27 June 2018, to refuse to grant the applicants Skilled Regional Sponsored (Provisional) (Class SP) Subclass 489 visas under s.65 of the Migration Act 1958 (‘the Act’). This is a ‘points based’ visa designed for skilled applicants who have submitted an expression of interest and received an invitation to apply for the visa.
The first named applicant, Mr Jaskaran Singh Deol (hereafter ‘the applicant’), was invited to apply for the visa on 7 June 2017 and applied for it on 8 June 2017. The second, third and fourth named applicants were included as secondary visa applicants. The criteria for the grant of a Skilled Regional Sponsored (Provisional) (Class SP) Subclass 489 visa are set out in Part 489 - Skilled - Regional (Provisional) of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’). The delegate refused to grant the visas because the applicant did not satisfy the ‘points test’ criterion in cl.489.224 (points were not granted for claimed Australian Employment Experience). Specifically, the delegate did not accept the legitimacy of the applicant’s claims to have worked at the Miss India Restaurant in Greenslopes, Brisbane for reasons including that the employer had received sponsorship sanctions and the General Manager denied the applicant was employed there. On 12 July 2018, the applicants applied to the Tribunal for review of the visa refusal decision, providing a copy of that decision with their application for review.
Prior to the scheduled review hearing, the applicant provided material to the Tribunal including, but not limited to, written submissions (including detailed submissions dated 12 September 2019), correspondence from the Department, taxation records, email correspondence, Statutory Declarations in support, identity documents, ASIC information, various restaurant supply orders, stock sheets, tax invoices, receipts, financial information and…

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 Deol (Migration)

Details

AGLC: Deol (Migration) [2020] AATA 2593
Case: [2020] AATA 2593
Decision Date: 16 April 2020

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Mr. Deol, against a decision of the Administrative Appeals Tribunal (AAT) which affirmed the refusal of his Skilled Regional Sponsored (Provisional) (Class SP) Subclass 489 visa. The primary dispute revolved around the applicant's claimed work experience with Miss India restaurant and his nominated regional area, which were crucial for meeting the 'points test' criterion for the visa.

The legal issues before the court were whether the AAT erred in its assessment of the applicant's claimed work experience and his regional nomination. Specifically, the court needed to consider if the AAT had properly applied the law in relation to the applicant providing false and misleading information, the validity of a non-disclosure certificate concerning departmental investigation material, and the applicant's credibility concerning his employment history and regional nomination.

The AAT had affirmed the visa refusal, finding serious credibility concerns with the applicant. The Tribunal considered a non-disclosure certificate valid, as public interest grounds for withholding certain information were properly stated, and the applicant made no submissions against its validity. The Tribunal provided the "gist" of the withheld information to the applicant under section 359AA of the Migration Act 1958 (Cth). The applicant's oral evidence regarding his employment at Miss India was inconsistent with departmental findings, and his explanation for the discrepancy was unsatisfactory. Furthermore, the applicant admitted he had never resided in or visited Armidale, the designated regional area for his nomination, and his claims about securing employment there were evasive. The AAT concluded that the applicant had failed to meet the requirements of Public Interest Criterion 4020 due to these credibility issues.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

A certificate dated 31 January 2020 pertains to Departmental file OPF2014/3975. It indicates that release of material attached to it would be contrary to the public interest because the applicant was not a subject of interest during the investigation, most documents are not relevant to the review, lawful methods for investigations would be prejudiced and in confidence information has been provided. During the review hearing, the Tribunal provided a copy of that certificate to the applicant and invited submissions upon its validity. None were made. The Tribunal advised that its preliminary view was that this certificate is valid as public interest grounds are properly stated, inviting submissions on that view. None were made. On balance, the Tribunal considers that the public interest grounds are properly stated in the non-disclosure certificate. Accordingly, the Tribunal finds the certificate to be valid and it has not released the material in full to the applicant in order to preserve the integrity of the investigation and confidentiality. Rather, the Tribunal provided ‘the gist’ of the aforementioned material to the applicant during the review hearing, utilising the procedure in s.359AA of the Act. CONSIDERATION OF CLAIMS AND EVIDENCEThe review hearing – 3 March 2020 The applicant’s oral evidence to the Tribunal may be summarised as follows. The applicant confirmed he had read the delegate’s visa refusal decision. He explained that he worked for the Miss India restaurant at Greenslopes and provided supporting documentation to the Department. He was unhappy that the Department refused his visa application despite the documentation he submitted. The applicant advised that this employer engaged a migration agent, Mr Jack Prasad, to lodge a Subclass 186 visa application for him (which subsequently did not proceed). The applicant informed the Tribunal that the only issue found by the Department regarding Miss India was that its head office changed location and had failed to update its details. He cannot understand why his employer told the Department that he did not work at Miss India. The applicant received a positive skill assessment from VETASSESS in the occupation of cook. He named the directors and other staff members of the Miss India head office. The applicant advised he is aware that Miss India is still trading, however he is not sure of its workings currently. The applicant contests the delegate’s refusal to award him points with respect to his claimed employment with Miss India. He accepts the other points awarded to him by the delegate. When asked by the Tribunal to clarify how he obtained a designated regional area nomination, the applicant advised that his invitation from the relevant body in Armidale, New South Wales was organised by his former lawyer, Mr Tonio Thomas. When asked for further particulars by the Tribunal regarding this nomination, the applicant confirmed that he has never resided in, or even visited, Armidale. When asked by the Tribunal if he has employment awaiting him in that location, the applicant initially advised that he had made contact with employers in the region, then changed tack to ultimately confirm he had merely posted his resume online for positions there. The Tribunal observed the applicant to provide his oral evidence regarding the topic of the designated regional area nomination in a defensive and evasive fashion.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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