Garside (Migration) - [2022] AATA 3309

Garside (Migration) [2022] AATA 3309 (17 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr James Edward Garside
REPRESENTATIVE:  Mr Justin Browne (MARN: 1169631)
CASE NUMBER:  1926062
HOME AFFAIRS REFERENCE(S):          BCC2018/4551774
MEMBER:K. Chapman
DATE:17 August 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a GK – Temporary Skill Shortage (Class GK) visa.

Statement made on 17 August 2022 at 12:17pm

CATCHWORDS
MIGRATION –Temporary Skill Shortage (Class GK) visa – Subclass 482– applicant failed to provide requested information – applicant failed to meet Public Interest Criterion 4020 – applicant had failed to declare his criminal record – no compassionate or compelling circumstances – requirements of PIC 4020(1) should not be waived – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363
Migration Regulations 1994, Schedule 2, cl 482.217
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
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 August 2019 to refuse to grant the applicant a GK – Temporary Skill Shortage (Class GK) visa under s.65 of the Migration Act 1958 (Cth) (‘the Act’).
The applicant applied for the visa on 17 October 2018. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.482.217 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’), because he did not satisfy Public Interest Criterion 4020 (‘PIC 4020’) and there were no compassionate or compelling circumstances to warrant waiver of this criterion. In particular, the delegate determined that the applicant had failed to declare his criminal record in the Subclass 482 visa application and in a previous application for a Subclass 457 visa.
On 17 September 2019, the applicant applied to the Tribunal for review of the visa refusal decision, providing a copy of that decision with his application. On 28 July 2022, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting him to provide the following information:
“Information regarding whether you satisfy Public Interest Criterion 4020 or whether there are compelling or compassionate circumstances which justify the granting of the visa and the waiver of the relevant requirements of that Criterion.”
The Tribunal is satisfied that this invitation was properly despatched to the email address of the applicant’s representative. On 28 July 2022, the Tribunal received an automatic response indicating the representative was out of the office ill but would check his emails daily. The due date for response to the above invitation was 11 August 2022. At the time of this decision, no substantive response to the invitation has been received by the Tribunal.
Where an applicant is invited to provide…

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 Garside (Migration)

Details

AGLC: Garside (Migration) [2022] AATA 3309
Case: [2022] AATA 3309
Decision Date: 17 August 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal, constituted by K. Chapman, considered the case of an applicant seeking review of a decision not to grant a Temporary Skill Shortage (Class GK) visa (subclass 482). The core of the dispute revolved around the applicant's failure to meet Public Interest Criterion (PIC) 4020, a requirement for the visa grant.

The Tribunal was tasked with determining whether the applicant satisfied PIC 4020, which broadly requires that an applicant has not provided bogus documents or false or misleading information in relation to their visa application or a previous visa held within the preceding 12 months. It also considers whether the applicant has had visas refused due to a failure to satisfy PIC 4020 in the past, and whether the applicant satisfies identity requirements. The Tribunal also had to consider whether any compelling or compassionate circumstances justified waiving the requirements of PIC 4020(1) and (2).

The Tribunal reasoned that the applicant had failed to declare a criminal record, which constituted providing information that was false or misleading in a material particular. The Tribunal noted that while an element of fraud or deception is necessary for PIC 4020 to apply, it is not required that the applicant was aware the information was untrue. Furthermore, the Tribunal found that there were no compassionate or compelling circumstances that would justify waiving the requirements of PIC 4020.

Consequently, the Tribunal affirmed the decision not to grant the applicant the visa, concluding that the applicant did not satisfy PIC 4020 for the purposes of the visa application.

Orders

Orders of the court

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Background

Background to the litigation

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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 applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.482.217 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.

Decision

Reasons for decision

On the basis of the above reasons, the applicant does not satisfy PIC 4020 for the purposes of cl.482.217. decision The Tribunal affirms the decision not to grant the applicant a GK – Temporary Skill Shortage (Class GK) visa.K. ChapmanMemberATTACHMENTMigration 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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