Hossain (Migration)

[2022] AATA 3362

Hossain (Migration) [2022] AATA 3362 (26 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Mohammad Rokib Hossain
Master Ohi Mohammad
Mrs Sharmin Akther

REPRESENTATIVE:  Mr Parul Nanda (MARN: 1170010)

CASE NUMBER:  2117302

HOME AFFAIRS REFERENCE(S):          BCC2018/270673

MEMBER:R. Skaros

DATE:26 September 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Regional Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 187 - Regional Sponsored Migration Scheme visas:

·Public Interest Criterion 4020(1) for the purposes of cl 187.213(1) of Schedule 2 to the Regulations.

Statement made on 26 September 2022 at 1:27pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Federal Court remittal – not the subject of an approved nomination – confined to the consideration of the issue in PIC 4020(1) – false or misleading information – genuineness of the nominated position – whether false or misleading at the time it was given – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 349
Migration Regulations 1994 (Cth), r 4.15; Schedule 2, cl 187.213; Schedule 4, PIC 4020

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 2 April 2019 to refuse to grant the applicants Regional Employer Nomination (Permanent) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 17 January 2018. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl 187.213(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate found that the requirements in Public Interest Criterion 4020 (PIC 4020) had not been met.

3. The applicant applied for review of that decision and provided a copy of the delegate’s decision record with the application for review.

4. The Tribunal (differently constituted) found that there was no evidence of the applicant having provided a bogus document or information that was false or misleading in a material particular in relation to his visa application. However, it affirmed the Department’s decision to refuse the grant of the visa on the basis that the applicant was not the subject of an approved employer nomination: cl.187.233.

5. The applicant sought judicial review of the Tribunal’s decision and on 17 February 2021, the Federal Circuit Court of Australia (now the Federal Circuit and Family Court of Australia (FCFCOA)) dismissed the application on the basis that the Tribunal was correct in finding that the applicant did not satisfy a primary criterion for the visa, namely cl.187.233. The Court further reasoned that it was not necessary for the Tribunal to review the findings made by the delegate in relation to the requirements of PIC 4020, given there was another basis for affirming the decision under review. The applicant appealed that decision to the Federal Court of Australia (FCA).

6. By consent, on 17 November 2021, the FCA set aside the orders and judgement of the FCFCOA. The Tribunal’s decision was quashed, and the matter was remitted for redetermination in accordance with the law. The reason for the remittal is discussed in detail below.

7. The Tribunal did not consider a hearing in this matter to be necessary, as it was able to find in favour of the applicant with respect to the issue on which the application was refused, namely PIC 4020(1).

8. In making its decision, the Tribunal has had regard to the evidence provided to the Department and to the Tribunal, including the oral evidence provided at the hearing held on 2 October 2019 before the previously constituted Tribunal.

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

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

    consideration of claims and evidence

11. As noted above, the applicant in this case was refused by the delegate on the basis that the requirements in PIC 4020(1) had not been satisfied.

12. During the review, another issue arose, namely, whether the employer nomination in relation to the applicant had been approved, as required by cl.187.233. The evidence before the Tribunal (differently constituted) was that the nomination made by the nominating employer in relation to the applicant had been refused. While an application for review of the decision to refuse the nomination was lodged with the Tribunal, the Tribunal (differently constituted) found that it did not have jurisdiction to review that decision because the nominator (AUS Bangla International Pty Ltd) had been deregistered by the Australian Securities and Investment Commission (ASIC) and by operation of s.601AD(1) of the Corporations Act 2001 had ceased to exist as a legal entity. Consequently, the nominator no longer had standing to continue with the review. This meant that the Department’s decision to refuse the associated nomination could not be reviewed. The applicant was therefore not the subject of an approved nomination and it was on this basis that the Tribunal (differently constituted) affirmed the decision to refuse the grant of the visas.

13. Even though the previous Tribunal found that the applicant had not provided a bogus document or false or misleading information relating to his visa application, the FCA noted that this did not overcome the PIC 4020(2) bar, which was still in effect at the time of the Tribunal’s decision. The FCA noted that pursuant to s 349(2)(c) of the Act and reg 4.15(1)(b) of the Regulations, the Tribunal had the power to remit the visa application to the Department with a direction that the first appellant satisfied PIC 4020(1) for the purposes of cl 187.213(1) of Schedule 2 to the Regulations.

14. The applicant in this case requested the Tribunal to make findings in relation to PIC 4020(1), being the issue on which the delegate refused the application. Having regard to the applicant’s request and the FCA’s remarks that this is permissible, and notwithstanding that the applicant does not satisfy another criterion for the grant of the visa, the Tribunal has confined itself to the consideration of the issue in PIC 4020(1).

15. Accordingly, the issue in this review is whether the visa applicant meets PIC 4020(1) as required by cl 187.213 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. 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). 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?

16. 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.

17. 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.

18. 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.

19. In this case, the applicant applied for the Regional Employer Nomination visa on 17 January 2018 based on a nomination made by Aus Bangla International Pty Ltd.

20. In the visa application, the applicant indicated that he was nominated for a position in the occupation of Café or Restaurant Manager by Aus Bangla International Pty Ltd. He also indicated, as part of the declarations, that he understands the visa may be cancelled if the employment is not commenced within six months after the visa is granted and that he understands the visa may be cancelled if any false or misleading information or a bogus document is provided with the application. In relying on information obtained by Australian Border Force (ABF) officers during a site visit, the delegate considered that the applicant, in providing these responses on the form, had provided false or misleading information about the nominated position being genuinely available.

21. During the site visit (in August 2018) to the address of the nominator’s restaurant business in Tasmania, ABF officers found a ‘For Sale’ sign posted at the premises. Following further enquiries with nearby businesses, officers were informed that the restaurant had been closed since May 2018. Further information obtained by the Department from the ASIC Register indicated that Aus Bangla International Pty Ltd had been deregistered as a company on 7 October 2018. This adverse information was put to the applicant in a natural justice letter. In responding to the Department’s letter, the applicant indicated that the nominator intended to apply for re-registration. At the hearing conducted by the Tribunal (differently constituted), the applicant’s representative advised that the director of Aus Bangla International Pty Ltd was offshore and uncontactable.

22. The applicant’s representative made detailed submissions to the previously constituted Tribunal regarding the background and history of the applicant’s interactions with the nominator. It was submitted that the applicant signed an employment agreement with the nominating entity on 8 November 2017, which indicated he would commence employment upon approval of the visa. It was submitted that the nominator obtained the required certification from the relevant Regional Certifying Body (RCB) on 28 December 2017 and that a nomination was lodged a few weeks later, on 17 January 2018, nominating the applicant in the position of Café or Restaurant Manager.

23. It was submitted that at the time of the visa application (on 17 January 2018), Aus Bangla International Pty Ltd was registered with ASIC and had an active Australian Business Number (ABN). It is submitted that at the time of the application, the applicant did not know that Aus Bangla International Pty Ltd would cease trading or be deregistered while the nomination and visa applications were being processed. It was further submitted that the applicant made the required declaration in the visa application indicating that he understood the visa may be cancelled under certain conditions, including if the employment is not commenced with six months and that he must not provide bogus documents or false or misleading information. It was submitted that that time the declarations were made they were not false or misleading. The applicant also gave evidence that he was interviewed for the position prior to the nomination being lodged and that he had never been to Tasmania and had only planned to relocate there if the visa was granted.

24. The Tribunal has carefully considered the evidence before it and, for the following reasons, has come to the same conclusion as the previously constituted Tribunal, namely, that there is no evidence that a bogus document or information that was false or misleading in a material particular had been provided in relation to the visa application.

25. There is no suggestion that a bogus document, as defined in s.5 of the Act, was provided with the visa application.

26. In relation to whether there is evidence of information that was false or misleading in a material particular that was provided with the visa application, the Tribunal has had regard to the definition in PIC 4020(5) which provides that such information must be false or misleading at the time it was given and be 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.

27. The evidence before the Tribunal indicates that the nominator’s restaurant business, that is the business for which the position of Café or Restaurant Manager was nominated, ceased to operate in May 2018. This is some four months after the visa application was lodged. The applicant gave evidence that he was interviewed for the position prior to lodgement of the nomination and visa application (in January 2018), and that he had never travelled to Tasmania and only intended to do so after being granted the visa. He also claimed that he had no knowledge of about the operation (or otherwise) of the restaurant and was informed by the director (following receipt of the natural justice letter from the Department) that he intended to re-register the company.

28. There is no evidence before the Tribunal which suggests that, at the time of the visa application, the applicant was aware, or should have been aware, that the business in which he was nominated to work would cease operating four months later.

29. On this basis, the Tribunal is not satisfied that there is evidence that the applicant had provided false or misleading information (in the application) about the genuineness of the nominated position or false or misleading information in response to the declarations pertaining to commencement of the employment within six months of the visa grant and the consequences of providing false or misleading information.

30. For the above reasons, the Tribunal concludes that there is no evidence before it that the applicant has given, or caused to be given, a bogus document or information that is false or misleading in a material particular, in relation to the visa application. Therefore, the applicant meets PIC 4020(1).

31. On the basis of the above, the Tribunal finds that the applicant satisfies PIC 4020(1) for the purposes of cl 187.213(1). The effect of this decision is that the applicants will not be subject to the bar in PIC 4020(2) in relation to future applications for a visa.

32. Given the above findings, the Tribunal considers it appropriate to remit the matter to the Department for reconsideration in relation to the remaining criteria for the visa, including the requirement in cl.187.233 relation to the nomination, which is likely to be the subject of a separate decision by the Department.

    decision

33. The Tribunal remits the applications for Regional Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 187 - Regional Sponsored Migration Scheme visas:

    ·Public Interest Criterion 4020 for the purposes of cl 187.213(1) of Schedule 2 to the Regulations.

    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.

    …