Haque (Migration) - [2023] AATA 127

Haque (Migration) [2023] AATA 127 (13 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Afroza Haque
Mr Mohammed Obaidur Rahaman
REPRESENTATIVE:  Mr Nigel James Dobbie (MARN: 9370721)
CASE NUMBER:  2002519
HOME AFFAIRS REFERENCE(S):          BCC2019/2450318
MEMBER:Alan McMurran
DATE:13 January 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for GK – Temporary Skill Shortage (Class GK) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 482 - Temporary Skill Shortage visas:
·Public Interest Criterion 4020 for the purposes of cl 482.217(1) of Schedule 2 to the Regulations

The Tribunal remits the applications for GK – Temporary Skill Shortage (Class GK) visas for reconsideration, with the direction that the second named applicant meets the following criteria for Subclass 482 - Temporary Skill Shortage visas:
·cl 482.312(1) of Schedule 2 to the Regulations

Statement made on 13 January 2023 at 1:04pm

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – accountant – false or misleading information provided with visa application – previous employment – during site visit, managing director failed to identify applicant from photo shown – passage of time and unscheduled and unexplained visit at busy time – later attempt to correct evidence and provide documentation rejected – consistent oral and documentary evidence – intended employment not proceeding and applicant currently not working but refusal would remain on visa history – utility in continuing review – member of family unit – second applicant’s continuing work – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A

Migration Regulations 1994 (Cth), Schedule 2, cls 482.217(1), 482.312(1), Schedule 4, criterion 4020(1), (2), (3), (5)
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Hossain v MICMSMA [2021] FCCA 247
Trivedi v MIBP [2014] FCAFC 42
statement of decision and reasons
application for review

This is an application lodged 13 February 2020 for review of a decision made by a delegate of the Minister for Home Affairs on 28 January 2020 to refuse to grant the applicants GK – Temporary Skill Shortage (Class GK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, Ms Afroza Haque, (the applicant), is a 37-year-old citizen of Bangladesh. The second named applicant, Mr Mohammed Obaidur Rahaman (secondary applicant), is the spouse and member of the family unit of the applicant. He is dependent in this review upon the outcome of the applicant’s review in respect of his own visa application. The applicants applied for the visas on 9 May 2019.The applicant is seeking the visa to work in the nominated occupation of Accountant (General)[1].
[1] ANZSCO 221111
The delegate refused to grant the visas on the basis that the first named applicant did not satisfy the requirements of cl 482.217(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the applicant did not meet the public interest criteria 4020 of…

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 Haque (Migration)

Details

AGLC: Haque (Migration) [2023] AATA 127
Case: [2023] AATA 127
Decision Date: 13 January 2023

CaseChat Overview and Summary

This matter concerned an application for a Temporary Skill Shortage (Class GK) visa, Subclass 482, by the first applicant, with the second applicant being a member of the family unit. The core dispute revolved around whether the first applicant had provided false or misleading information regarding previous employment in their visa application, thereby potentially failing to meet Public Interest Criterion 4020. The case was heard by Alan McMurran of the Tribunal.

The primary legal issue before the Tribunal was whether the first applicant met Public Interest Criterion 4020, which mandates that an applicant must not have provided false or misleading information in relation to their current or previous visa applications, and that they and their family unit members have not had visas refused due to a failure to satisfy this criterion. The Tribunal also considered the relevance of the second applicant's employment circumstances in the context of potential waiver provisions under clause 4020(4).

The Tribunal reasoned that while the managing director of the applicant's previous employer failed to identify the applicant from a photograph during a site visit, this failure was attributed to the passage of time and the unscheduled nature of the visit. Despite the applicant's later attempts to correct the evidence and provide documentation, these were rejected. The Tribunal found that the applicant's oral and documentary evidence remained consistent. Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration, directing that the first applicant met Public Interest Criterion 4020 for the purposes of clause 482.217(1) and that the second applicant met the criteria under clause 482.312(1).

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 matter should be remitted for reconsideration.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 4020 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). As noted above, PIC 4020 is extracted in the attachment to this decision.Background The applicant’s history for her Australian migration is set out in the following chronology: At the time of the hearing, the applicant was not working. The secondary applicant is employed as an electrical engineer for GRS, an international entity carrying on business as Gransolar on various continents and is reputed to be a global market leader in the growth and development of solar farms. The secondary applicant works as an employee for GRS at a development location, Walla Walla Solar Farm, near Albury in New South Wales. The secondary applicant has provided a reference from GRS attesting to his importance for that project. Clause 482.312 provides that in order to be eligible for the visa, the secondary applicant must be a member of the family unit of the primary applicant who has satisfied the primary criteria for a 482 Temporary Skill Shortage visa. Accordingly, the employment circumstances of the secondary applicant are not considered relevant other than where those circumstances may arise were the Tribunal to consider the waiver provision in cl 4020(4). For the following reasons, the Tribunal has not considered the waiver provision.

Decision

Reasons for decision

The appropriate course is to remit the application to the Department for reconsideration and for the Department to consider the remaining criteria for the visa.decision The Tribunal remits the applications for GK – Temporary Skill Shortage (Class GK) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 482 - Temporary Skill Shortage visas:·Public Interest Criterion 4020 for the purposes of cl 482.217(1) of Schedule 2 to the RegulationsThe Tribunal remits the applications for GK – Temporary Skill Shortage (Class GK) visas for reconsideration, with the direction that the second named applicant meets the following criteria for Subclass 482 - Temporary Skill Shortage visas:·cl 482.312(1) of Schedule 2 to the RegulationsAlan McMurranMemberATTACHMENTMigration 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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