HENRIQUES DE OLIVEIRA (Migration)

[2019] AATA 5143

HENRIQUES DE OLIVEIRA (Migration) [2019] AATA 5143 (20 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ricardo HENRIQUES DE OLIVEIRA

CASE NUMBER:  1712219

DIBP REFERENCE(S):  BCC2016/3561646

MEMBER:R. Skaros

DATE:20 November 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.

Statement made on 20 November 2019 at 12:06pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Public Interest Criterion 4020 – false or misleading information on visa application form – previous exclusion from entering New Zealand not declared – element of fraud or deception – no purposeful falsehood or deception – standard business sponsor stream – subject of approved nomination of occupation – amendment to regulations – no approved nomination – subsequent approved nomination of position for Subclass 482 program cannot support Subclass 457 visa application – decision under review affirmed

LEGISLATION

Migration Act 1959 (Cth), ss 5(1), 65, 140GB, 359A
Migration Regulations 1994 (Cth), r 2.75(2)(b), Schedule 2, cl 457.223(4)(a), 457.224(1), Schedule 4, criterion 4020
Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018, cl 6704(15)

CASES

Arora v MIBP [2016] FCAFC 35

Batra v MIAC [2013] FCA 274

Trivedi v MIBP (2014) 220 FCR 169

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 Immigration on 30 May 2017 to refuse to grant the applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 26 October 2016. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.457.224(1) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant had met Public Interest Criteria 4020 (PIC 4020). The applicant provided a copy of the delegate’s decision record to the Tribunal.

3. During the processing of the review, it came to the Tribunal’s attention that the applicant was no longer the subject of an approved nomination that is capable of supporting his application for the Subclass 457 visa. Also, due to the legislative changes which came into effect on 18 March 2018,[1] (the Amending Regulations) it was no longer possible for the applicant to secure a 457-nomination.

   [1] Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (F201800262)(the Amending Regulations).

4. On 2 August 2019, the Tribunal sent the applicant an invitation pursuant to s.359A of the Act. The Tribunal invited the applicant to provide comments on or respond to information which would, subject to the applicant’s comments or response, be the reason, or part of the reason, for affirming the decision under review. The information related to the Department’s electronic records which indicated that the applicant is not the subject of an approved nomination made by a standard business sponsor as the nomination that was previously approved for Pacific Formwork Employment Pty Ltd, in relation to the applicant, ceased on 16 March 2019.  The Tribunal explained the relevance of this information and the consequences if the Tribunal relied on that information.  Further, the Tribunal informed the applicant about the Amending Regulations that came into effect on 18 March 2018 which repealed and replaced the criteria for nominations relating to Subclass 457 visa applicants.

5. On 15 August 2019 the Tribunal received a response to its s.359A letter, details of which are discussed below, and a request was made for the Tribunal to proceed to a hearing.

6. On 28 September 2019 the applicant provided the Tribunal evidence of a nomination approval for a Subclass 482 visa made by Pacific Formwork Employment Pty Ltd in relation to the applicant for the occupation of Carpenter.

7. The applicant appeared before the Tribunal on 17 October 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages.

8. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing by telephone.

9. For the following reasons, the Tribunal has concluded that the decision under review must be affirmed as the applicant is unable to satisfy one of the primary criteria for the grant of the visa, namely cl.457.233(4)(a). However, the Tribunal nevertheless found that the applicant satisfied the requirements in PIC 4020(1).

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. There are two issues that arise in this case. The first, is whether the applicant meets PIC 4020 as required by cl.457.224(1), and the second relates to whether the applicant meets the requirement of cl.457.223(4)(a). The Tribunal has considered each of these requirements in turn as follows.

11. Clause 457.224(1) requires, among other things, that the applicant meets PIC 4020. Relevant to this case, PIC 4020(1) 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.

12. When applying for the Subclass 457 visa, the applicant indicated on the application form that he had never been removed, deported or excluded from any country (including Australia). Information on the Department’s records indicated that the applicant departed Australia and attempted to enter New Zealand on 22 March 2016 on a visitor visa but was refused entry and had to return to Australia the following day. Departmental records also indicate that the applicant departed Australia on 23 June 2016 and that when he returned to Australia on 29 June 2016 he was counselled by a border officer that he must declare that he was denied entry into New Zealand when entering Australia otherwise he would be refused entry into Australia. It was recorded that the applicant confirmed that he understood the border officer’s advice.

13. The Department invited the applicant to comment on the above information, which the delegate relied on to form the view that the applicant had provided information that is false or misleading in a material particular in relation to his application.

14. The applicant provided a number of supporting documents in response to the Department’s natural justice letter, which relevantly included a submission, dated 23 July 2017, and statutory declaration from the applicant, detailing the circumstances surrounding his attempted entry into New Zealand and his discussions with the border officer upon his return to Australia on 29 June 2016.

15. The statutory declaration and submission state that on 22 March 2016 the applicant and his sister travelled from Australia to New Zealand but were denied entry as they did not meet the financial requirements. They each had EUR 1000 however to be allowed entry into New Zealand they were required to have at least $3000, which they did not have at the time, and consequently they were informed that they would not be able to enter New Zealand. The applicant and his sister returned to Australia on 23 March 2016.

16. It was submitted that the applicant then travelled to Fiji on 23 June 2016 and returned to Australia on 29 June 2016.  Upon his return to Australia, he was interviewed by an immigration officer who discussed with him the incident in New Zealand. It was submitted that the applicant’s understanding, following the interview with the border officer, was that the circumstances of what occurred in New Zealand had been recorded on the applicant’s Australian Immigration profile and that each time the applicant entered Australia he was required to disclose that information to border officers. The applicant stated that he did not intentionally withhold any information from the Department as he did not believe that he had been excluded or deported from New Zealand. He stated that he returned from New Zealand in March 2016 as he did not have the required funds for entry into New Zealand and was of the understanding that he would be able to visit New Zealand in the future if he could show that he had the required funds.

17. The delegate was not satisfied with the applicant’s explanations. In the delegate’s view, the question asking if the applicant ever been removed, deported or excluded from any country (including Australia), is clear and the applicant was fully aware, as advised by the border officer, that he had to declare the incident in New Zealand to immigration staff in future.

18. In submissions to the Tribunal, the representative contended that the applicant had genuinely misunderstood what the officer had told him during the interview at the airport and that he believed that he needed to declare the incident in New Zealand upon entering Australia. It was submitted that the applicant had made a mistake when not including on the 457 visa application form information regarding the incident in New Zealand. It was submitted that the applicant would be eligible to be granted the 457 visa if he had declared the incident in New Zealand on 22 March 2016, and that it was not the fact that he feared that he would not have been granted the 457 visa had he declared that information.

19. The Tribunal notes that information can still be false or misleading in a material particular whether or not the applicant would have been granted the visa had that information been known to Immigration. It is therefore not relevant that the applicant would have met the requirements for the 457 visa had he declared his return from New Zealand.

20. At the hearing, the Tribunal queried the applicant about his travel to New Zealand on 22 March 2016 and the advice he received from the border officer when he returned from Fiji on 29 June 2016. The applicant’s evidence was entirely consistent with the information provided in his statutory declaration to the Department. The applicant informed the Tribunal that he was represented by a registered migration agent when he lodged the 457 visa. He gave evidence that the former agent had completed the application on his behalf, but that he did not inform the agent about the incident in New Zealand as he did not understand that what occurred in New Zealand was considered removal or deportation. He stated that he returned to Australia because he did not have the level of funds required to visit New Zealand. He genuinely thought that the question related to a formal process to remove or deport him.

21. At the hearing, the Tribunal also discussed with the applicant the waiver provision in PIC 4020(4), however, it was ultimately not necessary for the Tribunal to consider the waiver.

22. The Tribunal has carefully considered all of the evidence before it as follows.

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

23. 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.

24. 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.

25. There is no suggestion in this case that the applicant has provided any bogus documents.

26. The issue in this case is whether there is evidence that information that is false or misleading in a material particular has been provided to the Department in relation to the visa application.

27. The question of what constitutes false or misleading information involves several considerations. Most importantly, 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 (e.g. in the case of an innocent or unintended mistake).[2] While it is not necessary for a visa applicant to know of, or be directly involved in, any falsehood for PIC 4020 to be engaged, there must have been knowledge or intention on somebody’s part.[3]

    [2] Trivedi v MIBP (2014) 220 FCR 169 at [32] and [54].

    [3] Trivedi v MIBP (2014) 220 FCR 169 at [28], [33] and [49].

28. On his own evidence, the applicant acknowledges that he did not inform his representative about the incident in New Zealand as he did not understand that this information was required in response to the questions asked in the application form. Having queried the applicant at the hearing, the Tribunal accepts that the applicant did not appreciate that what occurred in New Zealand was him being excluded from a country, which was information that he should have declared on the visa application form in response to the question about whether he had ever been removed, deported or excluded from any country (including Australia).

29. It is not in dispute that the information, that is, the applicant answering “No”, to the question regarding whether he had ever been removed, deported or excluded from any country (including Australia) is ‘objectively’ false. This is because the applicant had in fact been refused entry into New Zealand when he attempted to visit on 22 March 2016. However, an element of fraud or deception by somebody is also necessary in order to attract the operation of PIC 4020.[4]

    [4] Trivedi v MIBP (2014) 220 FCR 169 at [33].

30. In considering whether the information, in the particular circumstances of this case, was purposefully false, the Tribunal accepts that the applicant genuinely believed that he had truthfully answered the question about whether he had been removed, deported or excluded from any country. The evidence before the Tribunal indicates that the applicant voluntarily returned to Australia when he was informed that he did not have the required level of funds to enter New Zealand. The Tribunal accepts that the applicant genuinely believed that he would be able to visit New Zealand, in other words, that he has not been excluded from visiting New Zealand, as long as he could show that he had the required level of funds. When read collectively, it is credible that the applicant, in his particular circumstances, understood the question about having been deported, removed or excluded, as referring to a formal removal or deportation process resulting in him being excluded from entry to a particular country.  

31. Also in favour of the applicant’s contentions is that the incident in New Zealand was known to the Department, this is a fact that the applicant was well aware of as he had been counselled by a border officer and advised that he had to declare it. In light of this, the Tribunal formed the view that if the applicant had properly appreciated the scope of the question in the form, that he would have provided the full details about his attempt to visit New Zealand and having to return to Australia because he did not have the level of funds required to enter New Zealand. The Tribunal has formed the view that the applicant indicating ‘No’ to the question about having been removed, deported or excluded was not intentionally untrue.  The Tribunal also formed the view that the applicant was not being careless or unconcerned about the truthfulness of the information provided in response to the question on the form and that he genuinely understood the question as referring to a formal removal or deportation process which resulted in him being excluded from travelling to a particular country.

32. In relation to the evidence that the applicant had been counselled upon return to Australia by a border officer and advised that must declare the incident in New Zealand upon entry to Australia, the Tribunal accepts the applicant’s explanation that he understood this advice as requiring him to declare his return from New Zealand to an Immigration officer upon each entry into Australia. This is consistent with the information recorded by the Department when the applicant was counselled. The Tribunal reviewed the questions on the application form and notes that there is no additional information which explains what being ‘removed’ or ‘excluded’ entails and there is also no specific question which asks about whether an applicant has previously been refused a visa or entry into any country (including Australia). The Tribunal considers that if the question on the 457 visa application form had specifically requested information about previous visa refusals or previous entry refusals to any country, or if further information had been provided about the breadth and scope of the question about being removed, deported or excluded from a country, it is likely that the applicant would have provided information about the incident in New Zealand in the application form. The applicant was well aware that Immigration had knowledge of him having to return to Australia from New Zealand in March 2016 and there is nothing to suggest that he had carelessly or deliberately omitted to provide details of this on the visa application form.       

33. Having carefully considered all of the evidence, the Tribunal is satisfied that, in the circumstances of this particular case, there was no purposeful falsehood or deception involved on the part of anyone. The Tribunal is accordingly satisfied that there is no evidence that the applicant has given, or caused to be given, information that is false or misleading in a material particular in relation to his application.

34. Therefore, the applicant meets PIC 4020(1) for the purposes of cl. 457.224(1).

    Approved nomination

35. Clause 457.223(4)(a) requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.

36. The applicant applied for the visa on the basis of a 457 nomination made under s.140GB of the Act by Pacific Formwork Employment Pty Ltd (the sponsor). That nomination was approved by the Department on 17 December 2016. By operation of r.2.75(2)(b), as in force immediately before 18 March 2018, that nomination ceased 12 months after approval. During the processing of the review, the sponsor applied for another nomination in respect of the applicant which was again approved by the Department on 16 March 2018.

37. On 18 March 2018, the amendments to the Temporary Work (Subclass 457) visa program came into effect. This meant that the sponsor could no longer apply for any further nominations under the 457 program to support the applicant’s pending application for the Subclass 457 visa.

38. By operation of r. 2.75(2)(b), as in effect immediately before 18 March 2018, the second approved nomination in respect of applicant ceased on 16 March 2019, being 12 months after nomination’s approval. The Tribunal notes that the second nomination, despite being valid on the day the Amending Regulations came into effect, namely 18 March 2018, its validity could not be extended as provided for in cl.6704(15) of the Amending Regulations, as the circumstances of the applicant were not covered by that savings provisions. For the nomination’s validity period to be extended for the duration of the review, as provided for in cl.6704(15), it had to be ‘the nomination’ on the basis of which the applicant had made the visa application and the applicant had to have applied for review of his visa refusal within 12 months after the approval of ‘that’ nomination. As the applicant had applied for review of his visa refusal before the second nomination was approved, he is unable to benefit from the savings provision in cl.6704(15). The Tribunal also notes that the applicant’s first approved nomination had ceased before 18 March 2018 came into effect and there is nothing in the savings provisions of the Amending Regulations which retrospectively revives a nomination that ceased before the commencement day.

1. In this case, the applicant is not able to rely on either the first or the second approved 457 nominations as neither are current as at the time of this decision.

2. The Tribunal acknowledges that a nomination under the Subclass 482 program has been approved in respect of the applicant, however, as that nomination was made after 18 March 2018 and as the applicant was not the holder of a Subclass 457 visa at the time that nomination application was made, as provided for in the relevant provisions of the post 18 March 2018 version of r.2.72 for approval of nominations, the applicant cannot rely on the approved 482-nomination to support his pending application for a Subclass 457 visa.

3. For all the above reasons, the Tribunal finds that the applicant is not the subject of a current approved nomination of an occupation that is capable of supporting his Subclass 457 visa. It follows, that the applicant does not meet the requirements in cl.457.223(4)(a).

4. For the reasons above, the Tribunal finds that the requirements for the standard business sponsor stream have not been met. No claims have been made in respect of the other streams in cl.457.223 and there is no evidence that the visa applicant would be able to satisfy the specific criteria for those streams. In the circumstances, the Tribunal must affirm the decision under review.

   DECISION

5. The Tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.

   R. Skaros
   Senior 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. 

   …