Gurung (Migration)

[2023] AATA 2590

Gurung (Migration) [2023] AATA 2590 (31 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Krishna Bahadur  Gurung
Ms Bishnu Maya  Gurung
Master Krivin  Gurung
Miss Krisby  Gurung

REPRESENTATIVE:  Mr Tonnou  Ghothane (MARN: 0743937)

CASE NUMBER:  2109965

HOME AFFAIRS REFERENCE(S):          BCC2019/4329412

MEMBER:Noelle Hossen

DATE:31 July 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the applications for Skilled Regional Sponsored (Provisional) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 489 - Skilled - Regional (Provisional) visas:

·Public Interest Criterion 4020 for the purposes of cl 489.211 of Schedule 2 to the Regulations

·The second, third and fourth named applicants meet the criteria for subclass 489- Skilled- Regional (Provisional) visa.

Statement made on 31 July 2023 at 3:56pm

CATCHWORDS
MIGRATION – Skilled Regional Sponsored (Provisional) (Class SP) visa – Subclass 489 (Skilled – Regional (Provisional)) – bogus document or false or misleading information provided in relation to visa application – dates of employment – paid in cash towards end of employment because company undergoing liquidation – poor documentation – supporting evidence from employer – qualifications, experience and positive skills assessment – members of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65
Migration Regulations 1994 (Cth), Schedule 2, cl 489.211, Schedule 4, criterion 4020(1), (3), (5)

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Trivedi v MIBP [2014] FCAFC 42

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 27 July 2021 to refuse to grant the applicants Skilled Regional Sponsored (Provisional) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 30 August 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 489.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the Delegate found that there was evidence before the Minister that the applicant has provided, or caused to be provided, a bogus document or false or misleading information in relation to his visa application.

3. The applicants appeared before the Tribunal on the 27 July 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Asm Saddin Hossain. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

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

6. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 489.211 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).

7. 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.

8. In his statement provided to the department by the first named applicant, hestated the following:

   His work at Auscabs Payment Solutions Pty Ltd was genuine and that he worked in the position of accountant from 2 October 2013 to 7 October 2016.

   He applied for skilled employment assessment on 1 March 2019, and it was a conscious decision to apply those employment dates as he was aware the company was undergoing liquidation.

   He provided bank statements from 2 October 2013 to 26 August 2016 as evidence of work experience with the employer, but was paid in cash, along with a few other loyal staff, from the 26 August 2016 to 7 October 2016 due to the company undergoing liquidation.

   The applicant was informed of the company undergoing liquidation around mid-August 2016, but that he was assisting the company with paperwork to provide to the liquidator.

   The applicant has been positively assessed by Chartered Accountants Australia and New Zealand (CAANZ) and stated that his employment is suitable and meets the job description as an accountant.

   The applicant had no intention to provide false and misleading information to the Department and that just because the company closed post his work experience, it cannot be inferred that he did not work there.

9. The Tribunal was provided with a copy of the assessment from Chartered Accountants Australia and New Zealand.

10. The first named applicant confirmed at the hearing that he had worked for the employer as an accountant for the entire time, as set out in his Application. He said that after he was told about the liquidation of the company that he was asked to help and continued in the employment, after the 26 August 2016 because he felt that the employer had been loyal to him. He felt a sense of responsibility towards his employer. He said that for those few weeks he was paid in cash. He said that the payslips were printed from the software and did not reflect that it was cash payments but that was not the truth of the matter and that there was no intention to mislead the Department but an error. At the time it was very stressful for the employers and he could see the frustration that they were suffering because of the liquidation.

11. The Tribunal also heard evidence from Asm Saddin Hossain who was the employer, who confirmed the evidence of the first named applicant. He said that he was mentally upset, and he was grateful of the help of the first named applicant at the time from 26 August 2016 to October 2016. He said that his business partner had provided the cash for payment to the employee as they wished to ensure that the employees were paid as it was a time of great confusion for the business.

12. The employer’s evidence was clear and was accepted by the Tribunal as it confirmed what was stated in his previous Statutory Declarations filed with the Tribunal and the Department.

13. The evidence confirmed that the first named applicant had worked for the organisation for 3 years.

    Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?

14. 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.

15. 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.

16. 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.

17. Based on the evidence the Tribunal is satisfied of the following key points in consideration of this matter:

    A) The first named applicant has genuine qualifications as an accountant, which is evidenced by the assessment from Chartered Accountants of Australia and New Zealand and that a comprehensive skills assessment was undertaken.

    B) The first named applicant was engaged by Aus Cabs Payment Solutions Pty Ltd as an accountant and the evidence of Mr. Hossain confirmed the presence of the first named applicant as an employee, who worked in the capacity of an accountant.

    C) The documentation of the transactions for payment for services rendered by the first named applicant, after the 26 August to the 3 October 2016 was poorly documented and did not reflect that the first named applicant was paid in cash and not to a nominated bank account.

    D) The first named applicant is a genuine applicant, who possesses the requisite skills and experience to meet the criteria.

18. Therefore, the applicant meets PIC 4020(1).

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

19. 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).

20. The Tribunal is satisfied, on the basis of known information before the Tribunal, that there is no adverse information before the Tribunal concerning the first named applicant or any member of the family unit (as defined in r1.12 as having been refused a visa in the relevant period because of a failure to satisfy PIC4020(1)

21. Therefore, PIC 4020(2) is met.

    Has the applicant satisfied the identity requirements?

22. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.

23. On the basis of the information and evidence before the Tribunal, the Tribunal is satisfied that the applicants have met the identity requirements required under PIC 4020(2A).

24. Therefore, the applicant meets PIC 4020(2A).

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

25. 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).

26. As the applicant has met the requirements of PIC 4020 (2A) the Tribunal is satisfied that PIC4020(2B) does not apply.

27. Therefore PIC 4020(2B) is met.

28. On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl 489.211.

    DECISION

29. The Tribunal remits the applications for Skilled Regional Sponsored (Provisional) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 489 - Skilled - Regional (Provisional) visas:

    Public Interest Criterion 4020 for the purposes of cl 489.211 of Schedule 2 to the Regulations

    The second, third and fourth named applicants meet the criteria for subclass 489-Skilled- Regional (Provisional) Visa.

    Noelle Hossen
    Member

    ATTACHMENT

    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.

    …