Grover (Migration)

Grover (Migration) [2021] AATA 4960 (7 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Dr Charu Grover
Mr Kulbeer Singh
Mr Dharamveer Singh
CASE NUMBER:  1828610
HOME AFFAIRS REFERENCE(S):          BCC2017/2298123
MEMBER:Antonio Dronjic
DATE:7 September 2021
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 a Subclass 190 – Skilled – Nominated visa:
·Public Interest Criterion 4020 for the purposes of cl 190.216 of Schedule 2 to the Regulations.

Statement made on 07 September 2021 at 10:35am
CATCHWORDS
MIGRATION – Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 (Skilled – Nominated) – false or misleading information in previous visa application – ongoing judicial review application – waiver of requirement – compassionate or compelling circumstances – unique skills highly sought after in Australia – Welfare Centre Manager – respiratory diseases specialist – relevant to the COVID-19 pandemic – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 190.216; Schedule 4, PIC 4020
CASES
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50

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 14 September 2018 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 28 June 2017. 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(2) for the purposes of cl 190.216 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
According to the primary decision record submitted by the applicants with their review application, on 14 May 2018, the applicant’s spouse, Mr Kulbeer Singh, was refused a business innovation and investment visa, Subclass 188 for not meeting PIC 4020(1). Dr Grover was included in that application as a member of Mr Singh’s family unit.
As the current visa application was lodged at the Department on 28 June 2017, the delegate found that PIC 4020(2) is engaged. The delegate further found that waiver criteria as per PIC 4020(4) were not met and proceeded to a decision on 14 September 2018.
The applicants lodged the applications for review with the Tribunal on 30 September 2018. On 27 September 2019, the applicants departed Australia. On 2 July 2021, the Tribunal wrote to the applicants advising them that it considered material before it and was unable to make a favourable decision on this material alone and invited the applicants to attend the video hearing on 24 August 2021.
On 12 August 2021, the applicants provided additional documentary evidence and submissions. The list of documents submitted to the Tribunal is attached to this decision record as Attachment A.
The applicants appeared before the Tribunal on 24 August 2021 to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent who attended the Tribunal hearing.
The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conferencing.
Dr Grover gave evidence that her brother is a USA citizen and has been living in the USA for the past 20 years. Her brother-in-law is an Australian permanent resident. He is married, has two children, and operates a land development and liquor business in Australia. Dr Grover stated that in October 2020, her son was granted a Student visa and is currently studying a Bachelor of Commerce degree at Sydney University. Her husband, Mr Singh, is a successful businessman who operates a garment business in India.
In her evidence Dr Grover confirmed that on 14 May 2018, her husband, Mr Kulbeer Singh, was refused a business innovation and investment visa, Subclass 188 for not meeting PIC 4020(1). She reiterated that her husband did not provide false or misleading information to the Department. They are challenging this decision before the Federal Circuit Court in Australia. The Tribunal noted that a directions hearing was held in September 2019 and enquired as to whether any progress was made in respect of that judicial review application. The applicant stated that they are still waiting to hear from the Federal Circuit Court.
The Tribunal noted that in her submissions, the applicant disputes that her husband provided false or misleading information to the Department with his application for a Subclass 188 visa, in which she was included as a member of her husband’s family unit. The Tribunal explained to the applicants that it is not reviewing the decision to refuse a Subclass 188 visa application.
The Tribunal explained to the applicants the requirements of PIC 4020(2) and cl 190.216. The Tribunal explained that, based on the evidence before it, the Tribunal is satisfied that the applicant has been refused a visa because of a failure to satisfy the criteria in PIC 4020(1) during the period starting three years before the application for a Subclass 190 visa was made (on 28 June 2017) and ending when the Minister made a decision to refuse the application (on 14 September 2018) and that the applicant is therefore affected by PIC 4020(2).
The Tribunal explained the requirements of PIC 4020(4) and noted that, with their review application, no submissions were provided addressing the waiver provisions. The Tribunal invited the applicants to raise any compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen, that justify the granting of the visa.
Dr Grover stated that she is a respiratory specialist and homeopathic doctor. She currently works at Bakson’s Multi Specialty clinic in New Delhi. She has completed her PhD (Pharmacy) at University of Sydney. She stated that she had employment offers from Australia but was unable to travel because of the current travel restrictions imposed in response to the COVID-19 pandemic. She stated that she has unique skills that are highly sought after in Australia, particularly during the COVID-19 pandemic. She holds a positive skills assessment for the occupation of Welfare Centre Manager and was nominated for a Subclass 190 visa by the NSW Government.
Mr Singh stated that his brother is operating a successful business in Australia and that he invested approximately $1.5 million in his brother’s business. He stated that if he is not granted a visa, the business will be adversely affected. When asked by the Tribunal, Mr Singh stated that he is not a director or shareholder of the business owned and operated by his brother and that he is unable to provide documentary evidence to substantiate his claim that he invested $1.5 million in the Australian business. He stated that he provides business advice to his younger brother and that, for that reason, he needs to be in Australia. The Tribunal observed that he is still able to provide advice to his brother via phone and/or video communication.
The applicant’s representative requested that the Tribunal waive the requirements of PIC 4020(2) and if the Tribunal is not willing to do so, refer the matter to the Minister for the exercise of his discretion under s 351 of the Act.
The Tribunal explained to the applicants that the Tribunal had regard to the Minister’s Guidelines on ministerial powers and will not refer the matter to the Minister. According to the Minister’s Guidelines, amongst cases that should not be brought to his attention are cases where a person was found not to satisfy a fraud-related PIC for the grant of a visa and persons who have left Australia. In addition, the Tribunal noted that the applicants have an ongoing judicial review application before the Federal Circuit Court of Australia.
On 27 August 2021, the applicants’ newly appointed representative requested additional time to provide post-hearing submissions and documentary evidence. On the same day the Tribunal granted additional time until 1 September 2021.
On 1 September 2021, the applicant provided additional documentary evidence and submissions. The list of documents submitted to the Tribunal is attached to this decision record as Attachment B.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the applicant meets 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 three 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 a material particular?
There is no evidence before the Tribunal that the applicant has given, or caused to be given, to the Minister, or an officer of the Department, the Tribunal or a relevant assessing authority a bogus document or information that is false or misleading in a material particular in relation to her application for a Subclass 190 visa or in relation to a visa that the applicant held in the period of 12 months before the application was made.
Accordingly, the Tribunal finds that the applicant meets the requirements of PIC 4020(1).
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(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 three 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).
Based on the evidence before it, including the applicant’s oral evidence, the Tribunal is satisfied that the applicant has been refused a visa because of a failure to satisfy the criteria in PIC 4020(1) during the period starting three years before the application for a Subclass 190 visa was made (on 28 June 2017) and ending when the Minister made a decision to refuse the application (on 14 September 2018).
Should the requirements of PIC 4020(1) or (2) be waived?
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.
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.
In deciding whether to waive PIC 4020(2), the Tribunal did not consider how its decision will affect the applicants as only the circumstances affecting Australia, Australian citizens or permanent residents or eligible New Zealand citizens, are relevant for the Tribunal’s consideration of PIC 4020(4). Although the Tribunal is not bound by policy, it has had regard to the elements emphasised in PAM3 in terms of the exercise of discretion.
On 1 September 2021, the applicant’s representative submitted several documents evidencing that Dr Grover has skills that are highly sought after in Australia and that, if she is not granted the visa, Australia would miss out on a significant benefit. (See documents listed in Attachment B.)
After completing a Bachelor of Homoeopathic Medicine and Surgery at New Delhi University, in 2014 Dr Grover completed her PhD (Pharmacy) at Sydney University. From April 2014 she has been employed as a Health care Manager at Bakson’s super-specialty clinic for allergic diseases. Details of Dr Grover’s educational achievements and work experience are summarised in her resume that was provided to the Tribunal.
It was submitted that as a respiratory diseases specialist, Dr Grover has extensive training and experience in COVID-19 tracing, management, and prevention. The applicant submitted several certificates of participation and appreciation in support of this claim.
Because of her specific set of skills, Dr Grover was offered employment in Australia by Resolve Medical Centre. In the letter from Dr Anwer Saeed dated 9 September 2020, it was inter alia stated that:
The wide range of research and critical skills possessed by Dr Grover will help in training and preparing junior doctors, pharmacists, and allied health with critical skills to diagnose and refer patients for COVID-19.
Based on the evidence before it, the Tribunal is satisfied Dr Grover possesses a unique set of skills that are highly sought after in Australia, particularly relevant to the COVID-19 pandemic and that, if she is not granted the visa, Australia would miss out on a significant benefit that she would be able to bring to Australia.
It was further submitted that there are compassionate or compelling circumstances that affect the interests of an Australian permanent resident and that justify the granting of the visa. The applicant’s brother-in-law, Mr Taranpal Singh, operates several businesses in Australia. Some of those business ventures are conducted with his brother’s financial support. It was submitted that the applicant’s husband invested and will continue to invest significant funds into Australian businesses.
It was further submitted that if the applicant and her husband are not granted a visa, Mr Taranpal Singh would be adversely affected as he would not be able to complete development projects without the financial support of his brother. Mr Taranpal Singh submitted his statutory declaration confirming that if his brother is not granted a visa, he may not be able to complete the current development projects.
The Tribunal is satisfied that the claims and evidence before it, on a cumulative basis, constitute compelling circumstances that affect the interests of Australia and/or compassionate or compelling circumstances that affect the interests of an Australian citizen, permanent resident or eligible New Zealand citizen that would justify the granting of a Subclass 190 visa to the applicant.
Therefore, the Tribunal finds that the requirements of PIC 4020(2) should be waived.
Has the applicant satisfied the identity requirements?
PIC 4020(2A) requires an applicant to satisfy the Tribunal as to his or her identity. Having regard to the applicant’s passport located on the Department’s file the Tribunal is satisfied as to the applicant’s identity. Therefore, the applicant meets PIC 4020(2A).
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?
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).
There is no evidence before the Tribunal that the applicant or members of her family unit have been refused a visa because of a failure to satisfy identity requirements during the relevant period. Therefore, the applicant meets PIC 4020(2B).
Based on the above, the first named applicant satisfies 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 a Subclass 190 – Skilled – Nominated visa:
·Public Interest Criterion 4020 for the purposes of cl 190.216 of Schedule 2 to the Regulations.
Antonio Dronjic
Member
Attachment A: Document List
·Copy of Charu Grover’s passport
·Copy of Kulbeer Singh’s passport
·Copy of Dharamveer Singh’s passport
·Certificate of marriage between Charu Grover and Kulbeer Singh (29/07/2001)
·Legal submissions from applicant’s representative
·Charu Grover application for points based Skilled migration Visa
·Education documents for Charu Grover 1990-2016
·Assessment of skills for migration documents
·IELTS Test report form for Charu Grover (05/11/2016)
·Certificate of employment for Charu Grover (29/05/2016)
·Service certificate for Charu Grover 26/07/2017
·Appointment letter for Charu Grover dated 21/10/2002
·Letters from Bakson’s Homoeopathy advising pay rise and promotion
·Pay slips from Bakson’s Homoeopathic Centre for Allergy for the period November 2007 to April 2009
·Employment Provident Funds Scheme for the period 2007 to 2008
·Indian overseas bank statements
·Indian income tax return (Charu Grover) for the years 2015-21
·Indian overseas bank statement of account for the period 01/04/2018 to 08/06/2021
·Birth Certificate (Unnamed male child) registered on 21/05/2002
·Unique identification issued by the Government of India for Dharamveer Singh
·Joint Statutory declaration by Charu Grover and Kulbeer Singh verified on 21/07/2017
·Letter from Sri Aurobindo College dated 29/11/2016
·Notice of Filing and Hearing lodged on 18/06/2018
·Letter from Nicholas Pyonder dated 03/04/2020
·Indian civil lawsuit documents (Kulbir Singh v Axis Bank)
·Dharamveer Singh education documents 2020
Attachment B: Document List
·Copy of Charu Grover’s CV
·Reference letter from Bandana Saini dated 29 August 2021
·Certificate of participation for COVID-19 online training for AYUSH Doctors dated 03/06/2020
·Acknowledgement of completion of Essentials of COVID dated 04/06/2020
·Certificate for completing COVID-19 Contact Tracing dated 06/01/2020
·Certificate for completing Clinical Management COVID-19 dated 09/06/2020
·Certificate of appreciation COVID-19 Awareness Program
·Certificate for completing Basics of COVID-19 dated 05/06/2020
·Letter from Nehaal Mayur
·Letter from Answer Saeed dated 09/09/2020
·Employment agreement (Resolve Medical and Dental Coburg)
·Job offer from Westmead Medical & Specialist Centre dated 29/08/2021
·Letter from Gurpreet Singh dated 14/09/2020
·Certificate of employment for Charu Grover dated 09/06/2021
·Document titled ‘Register of Unit Holders’
·Financial report for Melton Highway Unit Trust for the year ended 30 June 2020
·Documents relating to the sale of land for 1557 Melton Highway, Bonnie Brook, Vic 3335
·Certificate from Chartered Accountants dated 30/08/2021
·Conveyance deed dated 26/02/2002
·Sale deed and related documents (Janak Puri)
·Copy of Kiran Grover’s passport
·Copy of Subhash Chander Grover’s passport
·Statutory declaration by Subhash Grover
·Affidavit by Harjeer Kaur verified on 25/9/2020
·Statutory declaration by S. Davinder Singh dated 27/08/2021
·Death certificate (Harjeet Kaur)
·Davinder Singh ID card
·Copy of Harjeet Kaur’s passport
·Indian Overseas Bank deposit receipts in 2017,2019,2020 and 2021
·Financial documents from Axis Bank
·Financial documents from Indian Overseas Bank relating to account number: 054401000029303
·Indian Overseas Bank deposit receipts for 2017, 2019, 2020, and 2021
·Letters from Deepak Agarwal HUF
·Ledger account statements from Deepak Agarwal HUF
·Letter from Sanjeev Agrawal (Tarang Infrastructure Ltd) dated 26/08/2021
·Ledger account from Tarang Infrastructure Ltd
·Letter from Sanjeev Agrawal (SD Precision Tech Pvt Ltd) dated 26/08/2021
·Ledger account from SD Precision Tech Pvt Ltd
·Document titled ‘Occupation Certificate’ from Haryana Urban Dev Authority
·Deed of conveyance dated 29/3/2000 and related documents
·Valuation report dated 28/08/2018
·Documents relating to the transfer of property at Urban Estate, Faridabad
·Civil lawsuit documents (Harjeet Kaur Chatwal v Kulbeer Singh)
·Sale deed made on 16/11/2004
·Valuation report for property in Faridabad dated 28/08/2021
·Documents relating to the sale of 7 Palam Marg, Vasant Vihar, New Delhi
·Valuation report dated 01/10/2020
·Sale deed of No 263, Sector-15, Faridabad dated 30/3/2006
·Valuation report by Shiv Singla & Associates dated 25/09/2020
·Letter from Sarkis Yelandjian dated 30/08/2021
·Documents relating to the sale of 130 Bodycoats Road, Wollert 3750
·Documents relating to the sale of land for 25 Horseshoe Bend Road, Marshall 3216
·Documents relating to the sale of land for 64-70 Foster Street, Dandenong, Vic 3175
·Documents relating to the sale of business for Truganina Liquor
·Documents relating to the agreement to lease a shop in Opalia Plaza
·Letter from Pauline Madden dated 31/08/2021
·Letter from Greg Bettiol dated 30/08/2021
·Letter from Rob Melnjak dated 30/08/2021
·Letter from Akhil Kansal dated 31/08/2021
·Feasibility report by Akhil Kansal dated 31/08/2021
·Letter from Vittesh Lilani dated 31/08/2021
·Statement of recent transactions Westpac Bank (Taranpal Singh) for the period from 08/6/2021 to 25/6/2021
·Statutory declaration from Taranpal Singh dated 31 August 2021
·Copy of Taranpal Singh’s passport
·Copy of Karandeep Kaur’s passport
·Copy of Gursharan Singh’s passport
·Copy of Rehet Singh’s passport
·Copy of Business Innovation and Investment visa grant letter (Taranpal Singh)
·Copy of Business Innovation and Investment visa grant letter (Karandeep Kaur)
·Copy of Business Innovation and Investment visa grant letter (Gursharan Singh)
·Copy of Business Innovation and Investment visa grant letter (Rehet Singh)
·Representative submissions dated 31 August 2021
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.
…

[2021] AATA 4960

7 September 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies