Ikea (Migration)

[2021] AATA 2598

Ikea (Migration) [2021] AATA 2598 (9 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Anita Oghenekevwe Ikea
Master Anderson Kamsiyochi Ikea

CASE NUMBER:  1828369

HOME AFFAIRS REFERENCE(S): BCC2017/4409129 BCC2018/5017359

MEMBER:Catherine Carney-Orsborn

DATE:9 June 2021

PLACE OF DECISION:  Sydney

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 Subclass 190 - Skilled - Nominated visas:

·Public Interest Criterion 4020 for the purposes of cl 190.216 of Schedule 2 to the Regulations

·The second named applicant satisfies the criteria as a member of the family unit of the first named applicant. 

Statement made on 09 June 2021 at 11:31am

CATCHWORDS
MIGRATION – Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 (Skilled – Nominated) – false or misleading information – employment history – credible witness – web presence of employer – electricity outages and issues with telecommunications in rural Nigeria – genuine tax certificates – 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
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 11 September 2018 to refuse to grant the applicants Skilled Nominated (Permanent) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 22 November 2017. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl 190.216 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because they were not satisfied that the first named applicant met the Public Interest Criteria (PIC) 4020 Subclause 4020 (1).

3. The applicants appeared before the Tribunal on 18 May 2021 to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (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 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).

6. 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 material particular?

7. 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.

8. 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.

9. 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.

10. The delegate was concerned about information provided by the applicant in relation to her previous employment.  The applicant claimed she was employed for seven years at St Thomas Group of Schools as a Library Technician.  She provided documents evidencing her work as a Library Technician in Nigeria.  The Department had concerns in relation to those documents.  Those concerns included that the school had no current web presence, they were named on the world school list however no rating was provided, it was not registered online, a search on google maps reveals that the address did not exist, the different colour logo on payslips and employment reference letter, a discrepancy in relation to a salary increase and phone calls made to the school were not answered.   

11. The delegate sought verification from the post.  The post found that the tax certificates were genuine, they found that any discrepancy in names was due to the applicant’s maiden name being used in earlier payslips.  There were concerns about the school’s presence on the internet.  The web page had expired.  A google search of the school did not show the school at the claimed address.  Calls were made to verify employment only one call was answered and the person who answered did not provide any further information.  There were concerns over one payslip dated 2007 but date stamped 2017.

12. The applicant provided a substantial amount of evidence to the Tribunal.  The applicant appeared before the Tribunal to give oral evidence.  The applicant provided information to show that in areas outside the major cities in Nigeria the internet can be problematic.  There can be problems with connectivity, power failures and poor internet penetration into rural parts of Nigeria.  Independent country information was supportive of there being problems with internet connectivity and electricity shortages.  The applicant at hearing went through the issues involved and how power cuts frequently disrupt services.  The applicant asserts that due to these issues it is unfair to conclude that because the school has limited or no web presence it does not exist. 

13. The applicant gave evidence in relation to the school she claims she worked at for seven years.  The Tribunal found the applicant to be a credible witness.

14. The applicant provided evidence of the school existing in a google search such as the one conducted by the department.  The Tribunal conducted an independent google search and was able to locate the school.  The school was in a Christian area as described by the applicant.  It is in a rural area and is a private school.  The Tribunal has considered the other information provided and accepts that the school is listed and registered.

15. The Tribunal accepts the evidence provided by the applicant in relation to the school logo and accepts that the letter in which the applicant was granted a pay rise was not a promotion as she was already a library Technician.

16. In relation to the phone calls the delegate of the Department conducted, the applicant has inspected the Department file and points out that the calls were made on the one day.  She provided a letter from the principal of the school.  The principal states that due to electricity shortages and outages it is her mobile phone and the mobile phone of another staff member that is used.  She states that due to it being in a rural area there is often issues with telecommunications links and outages.  The independent Country information the Tribunal has sourced supports the claim in relation to problems with outages and problems with communication being sporadic in the area where the school is located.

17. The applicant is currently working in the disability sector in Australia.  She has married an Australian citizen and they have two young children.  The youngest child is still being breastfed by the applicant. 

18. The Tribunal has considered all the evidence it has before it and is satisfied on the significant amount of evidence provided to the Tribunal by the applicant and her oral evidence that she did work at the St Thomas Group of Schools.  The Tribunal places weight on the finding of the post that the tax certificates were genuine and that any discrepancy in names was due to the applicant’s maiden name being used in earlier payslips. The Tribunal accepts the evidence of the applicant and this is supported by its own independent information.

19. The Tribunal is satisfied on the evidence that the applicant has not provided information that is false or misleading in a material particular in relation to the application for the visa.   

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

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

21. 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(2) 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).

22. There is no evidence before the Tribunal which indicates that the applicant has previously been refused a visa because of a failure to satisfy PIC 4020(2).

23. Therefore, PIC 4020(2) does not apply.

    Has the applicant satisfied the identity requirements on the basis of PIC 4020(2A)?

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

25. The applicant has provided identity documents to the Department and the Tribunal.  There is no information before the Tribunal that there are concerns or doubts about the applicant’s identity.  The Tribunal is satisfied as to the identity of the applicant.

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

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

27. 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(2B) 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).

28. There is no evidence or information before the Tribunal or held on the Department file which indicates that the applicant or any member of the family unit has been refused a visa in the relevant period because of a failure to satisfy PIC 4020(2B).

29. Therefore PIC 4020(2B) does not apply.

30. On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl 190.216.

    DECISION

31. 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 Subclass 190 - Skilled - Nominated visas:

    ·Public Interest Criterion 4020 for the purposes of cl 190.216 of Schedule 2 to the Regulations.

    ·The second named applicant meets the secondary criteria as a member of the first named applicant’s family unit. 

    Catherine Carney-Orsborn
    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.

    …