Dorji (Migration) - [2023] AATA 3550

Dorji (Migration) [2023] AATA 3550 (16 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Chimi Dorji
Mrs Chencho Dema
Miss Kinley Mendrel Dema
Master Keelay Phuntsho Dorji
REPRESENTATIVE:  Ms Rosemary Lynne Acutt (MARN: 1461394)
CASE NUMBER:  2113034
HOME AFFAIRS REFERENCE(S):          BCC2019/2907719
MEMBER:Antonio Dronjic
DATE:16 October 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Skilled Nominated (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 190 - Skilled - Nominated visas:
·Public Interest Criterion 4020 for the purposes of cl 190.216 of Schedule 2 to the Regulations.

Statement made on 16 October 2023 at 3:36pm
CATCHWORDS
MIGRATION – Skilled Nomination (Permanent) visa – Subclass 190 (Skilled – Nominated) – false or misleading information given in relation to application for visa – work experience – promotion dates in work reference letter do not match those verified by employer – later letter confirms correct dates – materiality of information which will or might determine outcome of application – period and duties of employment undisputed and dates of promotion not material – decision made without hearing necessary – members of family unit decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65, 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 2, cl 190.216, Schedule 4, criterion 4020(1), (5)(b)
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Bushell v MIAC [2008] FMCA 1193
Sharma v MIMAC [2013] FCCA 1280
Sran v MIBP [2014] FCCA 37
Talukder v MIAC [2009] FMCA 223
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 16 September 2021 to refuse to grant the applicants Skilled Nominated (Permanent) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 6 June 2019. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of Public Interest Criterion (PIC) 4020(1) for the purposes of meeting cl 190.216 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The delegate formed a reasonable suspicion that the applicant gave false and misleading information in his work experience documents to the Department in relation to his visa application.
The applicants sought review of the delegate’s decision on 27 September 2021 and with their applications provided a copy of the primary decision record. The applicants were represented in relation to the review by their registered migration agent.
On 7 September 2023, the Tribunal wrote to the applicants advising them that it had considered material before it and was unable to make a favourable decision on this material alone and invited the applicants to attend a video hearing on 17 October 2023.
On 19 September 2023, the applicant’s representative provided legal submissions and documentary evidence in support of the…

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 Dorji (Migration)

Details

AGLC: Dorji (Migration) [2023] AATA 3550
Case: [2023] AATA 3550
Decision Date: 16 October 2023

CaseChat Overview and Summary

This matter concerned an application for a Skilled Nomination (Permanent) visa (Subclass 190) by Mr Dorji and his family. The primary issue before the Tribunal was whether the applicant had provided false or misleading information in relation to his visa application, specifically concerning his work experience and promotion dates, which would have triggered Public Interest Criterion (PIC) 4020.

The legal issue before the Tribunal was to determine whether the applicant had provided information that was false or misleading in a material particular, as defined by PIC 4020(1) and PIC 4020(5) of the Migration Regulations 1994. This criterion requires that there be no evidence of the applicant providing a bogus document or false or misleading information in relation to the visa application or a previous visa held within 12 months prior. The Tribunal also considered the applicant's compliance with other aspects of PIC 4020, including previous visa refusals and identity verification.

The Tribunal reasoned that while there was a discrepancy in the promotion dates provided in a work reference letter compared to information later verified by the employer, this information was not material to the assessment of the applicant's eligibility for the visa. The period and duties of employment were undisputed, and the specific dates of promotion were not relevant to the criteria for the visa grant. Consequently, the Tribunal found that the applicant did satisfy PIC 4020.

The Tribunal remitted the applications for Skilled Nominated (Permanent) visas for reconsideration, with a direction that the first applicant met the requirements of PIC 4020 for the purposes of clause 190.216 of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Under subsection 360(2)(a) of the Act the Tribunal considered that it should decide the review in the applicants’ favour based on the material before it.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 190.216 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 B 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.

Decision

Reasons for decision

Based on the above, the applicant does satisfy PIC 4020 for the purposes of cl 190.216.DECISION The Tribunal remits the applications for Skilled Nominated (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 190 - Skilled - Nominated visas:·Public Interest Criterion 4020 for the purposes of cl 190.216 of Schedule 2 to the Regulations Antonio DronjicMemberAttachment A: Document List·Submissions from Rosemary Acutt from Queensland Migration Practice dated 18 September 2023.·PRA’s passport issued 23 June 2015.·Department of Home Affairs decision and notification letter dated 16 September 2021.·Public Interest Criteria [clause 4001 to 4022] from Legend.com undated.·Proof of employment letters from Sherubtse College signed by Tshering Wangdi dated 22 December 2020 and 20 September 2021. ·Statutory declaration made by Mr Dorji dated 5 March 2022. ·Skills assessments for ANZSCO 263111 (computer Network and System Engineer) from Australian Computer Society Inc. (ACT) dated 13 December 2018 and 29 November 2021.·Screenshot of ACS skills assessment application undated.·ACS summary of criteria requirements for a suitable ICT skills assessment result undated.·Pages from ACS migration skills assessment guidelines for applicants dated April 2023.·Proof of employment letter from APNIC (Asia Pacific Network Information Centre) signed by Stephanie Davies dated 12 September 2023.·Payslips for Mr Dorji from APNIC dated 28 November 2021 to 2 September 2023. ATTACHMENT BMigration Regulations 1994Schedule 44020(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 1958s 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.…

Ratio Decidendi

Legal Principle Established

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