Gautam (Migration)

[2023] AATA 3818

Gautam (Migration) [2023] AATA 3818 (19 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Krishna Raj Gautam
[Second named applicant]
[Third named applicant]

REPRESENTATIVE:  Ms Riza Boncodin

CASE NUMBER:  2113383

HOME AFFAIRS REFERENCE(S):          BCC2019/2905359

MEMBER:Namoi Dougall

DATE:19 October 2023

PLACE OF DECISION:  Sydney

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 19 October 2023 at 4:52pm

CATCHWORDS

MIGRATION – Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 (Skilled – Nominated) – false or misleading information provided in relation to application – previous visa refusal not declared – application for review in progress when current application made – knowledge that department aware of long residence and visa refusal, and assumption that question referred to other countries – engagement of same agent for previous and current visa applications – administrative oversight by lodging staff member unfamiliar with matter – no intention to deceive and all other requirements met – ‘any country’ – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 57, 65, 359(2)

Migration Regulation 1994 (Cth), Schedule 2, cl 190.216, Schedule 4, criterion 4020(1), (5)

CASES

Arora v MIBP [2016] FCAFC 35

Batra v MIAC [2013] FCA 274

Trivedi v MIBP [2014] FCAFC 42

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 13 September 2021 to refuse to grant the applicants Skilled Nominated (Permanent) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. 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 cl 190.216 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate found that the applicant had given information that was false and misleading in a material particular in a signed Form 80 provided to the Department in relation to having been previously refused a visa.

3. The applicants appeared before the Tribunal on 19 October 2023 to give evidence and present arguments.

4. The applicants were represented in relation to the review.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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).

2. 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?

1. 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.

2. 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.

3. 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.

Migration History

1. The applicant first arrived in Australia on 30 April 2009 on a Subclass 572 which was valid until June 2011. He then remained onshore on the basis of three further student visas before he and his spouse, the second named applicant were granted Subclass 485 visas on 17 May 2016 which were valid until 17 November 2017. Since then the applicants have held a number of Bridging visas. Their son, the third named applicant, was born in Australia on [Date].

2. On 5 July 2017, the applicant obtained a skills assessment from the Australian Computer Society stating that his skills had been assessed as suitable for migration as a Developer Programmer (ANZSCO 261312) based on his Diploma of Information Technology (Multimedia) from Central College completed In April 2011 and his Bachelor of Business Information Systems from Victoria University completed in July 2013.

3. On 17 November 2017, the applicant lodged an application for a Subclass 500 visa on the basis of studying a Diploma of Information Technology in Networking.

4. On 25 January 2018, the Department refused to grant the applicant a Subclass 500 visa.

5. On 14 February 2018, the applicant lodged an application for review of the delegate’s decision to refuse the Subclass 500 visa.

6. On 5 May 2019, the applicant was invited to apply for a Subclass 190 visa on the basis of his skills assessment as a Developer Programmer and the visa application was lodged on 6 June 2019.

7. On 10 January 2020, the Tribunal (differently constituted) affirmed the delegate’s decision not to grant the applicant a Subclass 500 visa. At the time of this decision the applicant had completed his Diploma of Information Technology in Networking and had commenced studying an Advanced Diploma of Information Technology in Networking.

Subclass 190 application

1. On 6 June 2019, as referred to above, the applicant lodged a Subclass 190 visa application the subject of this review. As part of the application the applicant also lodged a Form 80 Personal particulars for assessment including for character assessment signed by the applicant on 30 May 2019 answered ‘No’ to question 39: “Have you ever been refused a visa to any country?’.

2. On 1 February 2021, the Department sent the applicant a s.57 natural justice letter (the natural justice letter) which referred to the information declared in the Form 80 as set out above and that the applicant had been refused a Subclass 500 visa on 25 January 2018.

3. On 26 February 2021, the applicant’s representative provided a submission (the 2021 submission) and supporting documentation in response to the natural justice letter. It was submitted that the applicant did not dispute that he had provided an incorrect answer as to whether he had had a visa previously refused. However, it was further submitted that PIC 4020 did not apply as although the information was objectively untrue it was not purposely untrue. In light of the facts, there is no reasonably inference of fraud and the only reasonable inference is that the applicant made a mistake.

4. It was further submitted in the 2021 submission that there is no evidence of intentional fraud on the part of the applicant who completed the Form 80 or his agent who submitted it. The submission referred to the applicant’s statutory declaration dated 24 February 2021 (the applicant’s declaration) provided with the 2021 submission and submitted that the applicant does not provide spurious reasons for his mistake and continued:

   ·     The applicant had knowledge that the Department was aware of his Subclass 500 refusal and that he had applied for review of that decision and was undecided when the Form 80 was completed.

   ·     The applicant thought it was illogical that question 39 would include Australia when the Department had knowledge of his entire immigration history since 2009.

   ·     Therefore, the applicant erroneously assumed question 39 was directed at seeking information about visa refusals in countries other than Australia about which the Department had no information.

   ·     Despite double checking the Form 80 he simply interpreted the question as excluding Australia rather than any country including Australia.

5. It was submitted in the 2021 submission that in relation to the applicant’s previous agent that:

   ·     The applicant specifically engaged the agent to ensure his application was correct.

   ·     The agent prepared and lodged the Subclass 500 visa application was the same agent who lodged the Subclass 190 visa application.

   ·     The agent was aware of the Department’s refusal of the Subclass 500 visa which was confirmed in emails between the agent and the Department.

6. The applicant in his declaration referred to the refusal of his application for a Subclass 500 and application for review and relevantly stated that the applicant:

   ·     Returned to Nepal, after applying for a Bridging B visa, while he was waiting on a Tribunal hearing. He had been advised that he had to lodge another Australia visa while outside of Australia as he had had a visa refused. Therefore, he was aware that he had to lodge his Subclass 190 visa application while he was in Nepal because he had been refused a Subclass 500 visa.

   ·     Completed his Form 80 in Nepal and he was aware at that time that his Subclass 500 visa application had been refused, however, he was also aware that the decision was under review and could be overturned and the Subclass 500 visa granted.

   ·     Had been advised that once his application had been lodged with the Tribunal, his visa application reverted to being ‘undecided’. However, the reason why he answered ‘no’ was because he misread the question

   ·     The above knowledge contributed to him choosing the wrong answer for question 39 as it did not make sense that the Department would ask a question they already knew as he had lived in Australia for 10 years and the Department had knowledge of his visa refusal. He interpreted ‘any country’ as any country other than Australia and if the question had stated ‘any country including Australia’ he would have answered ‘yes’.

   ·     His agent was engaged for both the Subclass 500 and 190 visa applications and knew that his Subclass 500 visa had been refused. His agent should have picked up the mistake and drew his attention to it so it could be corrected.

7. Also provided with the 2021 submission was the applicant’s previous agent. Mr Deepak Agrawal dated 26 February 2021 which relevantly stated that:

   ·     He lodged a Subclass 500 visa on behalf of the applicants on 17 November 2017.

   ·     He received notification of the refusal of the applicant’s Subclass 500 application from the Department by email dated 28 January 2018. He informed the applicant of the refusal decision about 10 days later. He lodged an application with the Tribunal shortly after. Provided was the email notifying the agent of the Department’s refusal of the subclass 500 visa.

   ·     Despite knowing that the applicant’s Subclass 500 visa application had been refused, he did not correct the applicant’s response to question 39. This was an administrative oversight by lodging staff unfamiliar with the matter and lack of supervision.

   ·     He failed to correct my client’s misunderstanding of the question and the answer. This is an oversight on his part and not an attempt to deceive the Department as to the applicant’s immigration history.

8. On 18 August 2023, the Tribunal invited the applicant to provide, pursuant to s 359(2) of the Act, a submission that there are compelling circumstances affecting the interests of Australia, or compelling or compassionate circumstances affecting the interest of an Australian citizen, Australian permanent residents, or an eligible New Zealand citizen that justify the grant of the visa.

9. On 28 August 2023, the applicant provided a letter of support from Dr Richard Crane dated 26 August 2023.

10. On 28 August 2023, the applicant requested additional time to provide information in response to the Tribunal’s letter of 18 August 2023, which was granted the same day.

11. On 14 September 2023, the applicant provided a submission from his representative (the 2023 submission) and supporting information. The 2023 submission summarises the submissions set out in the 2021 submission as to the applicant misinterpreting question 39. The submission then went on to provide submissions in relation to compelling circumstances affecting the interests of Australia, or compelling or compassionate circumstances affecting the interest of an Australian citizen, Australian permanent residents, or an eligible New Zealand citizen that justify the grant of the visa.

12. At the hearing the applicant stated that he appreciated the opportunity to explain his situation. In relation to the Australian visa system and the visa application process they are confusing and difficult to understand. He was afraid of making a mistake, so he sought advice from a migration agent. He was not sure ‘any country’ included Australia or not, so he asked about question 39 and 40, as they used ‘any country’, as to whether or not the questions included Australia. He was advised that as his Subclass 500 visa application was before the Tribunal, the correct answer is no. He did not have any intention to deceive the Department as he had met the required points for the 190 visa application, as well as, health, character and other requirements. He was confused about the question as he had lived in Australia for a long time and the Department was aware of that. Further, the Department was aware that his student visa application had been refused and he had sought review of that decision. His answer did not give him an advantage for his Subclass 190 visa as he had met the requirements.

Conclusion

1. The Tribunal accepts the applicant’s evidence as to the reasons why he answered no to question 39. In relation to purposeful falsity, PIC 4020 is directed at information which is false, in the sense of purposely untrue, rather than information which lacks the necessary element of fraud or deception (that is in the case of an innocent or unintended mistake).[1], The circumstances in this matter are different from those in Trivedi. The applicant has not provided a bogus document but has answered a question in the Form 80 provided to the Department in circumstances where the question was unclear as the applicant had, at that time, sought review of the decision to refuse his Subclass 500 visa application. That is, at the time he answered question 39, there was the possibility that the Department’s decision could be overturned. Further, the Tribunal accepts the applicant’s evidence that he was confused about question 39 (and question 40) as to the meaning of ‘any country’ in the circumstances of the length of time he had resided in Australia and that the Department would know his visa history, including his application for review to the Tribunal, so he sought migration advice on how to answer the questions. Therefore, the application cannot be found to have been indifferent to how he answered question 39.

   [1] Trivedi v MIBP (2014) 220 FCR 169 at [32], [54] (Trivedi).

2. On the above, the Tribunal is satisfied that the applicant’s answer to question 39, in the circumstances outlined above, was an innocent mistake and lacks purposeful falsity. Therefore, the Tribunal is satisfied that the applicant has meet the requirements of PIC4020(1).

Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(1)?

1. PIC 4020(2) requires the Tribunal to be satisfied that the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing 3 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(2AA).

2. There is no evidence before the Tribunal that the applicant or any member of the family unit (as defined in r.1.12) have been refused a visa in the relevant period because of a failure to satisfy PIC 4020(1). Therefore, the Tribunal is satisfied that PIC 4020(2) is met.

Has the applicant satisfied the identity requirements?

1. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity. The Tribunal has viewed the relevant passports, birth certificates, police certificates, and marriage certificate on the Departmental file for the applicants and the Tribunal is satisfied as to their identities. Therefore, the Tribunal is satisfied that applicants meets PIC 4020(2A).

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

1. 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).

2. There is no evidence before the Tribunal that the applicant or any member of the family unit (as defined in r.1.12) have been refused a visa in the relevant period because of a failure to satisfy PIC 4020(2A). The third named applicant was born on [Date] and the applicant’s youngest son was born on 1 August 2021 and they were, therefore, under 18 years at time of application. Therefore, the Tribunal is satisfied that PIC 4020(2B) does not apply.

3. On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl 190.216.

DECISION

1. 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

Namoi Dougall
Member

ATTACHMENT

Migration Regulations 1994

Schedule 4

1. (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.

…