Jeong (Migration)

[2022] AATA 4028

Jeong (Migration) [2022] AATA 4028 (16 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sangheon Jeong
Mrs Youngok Kim
Miss Yujeong Jeong

REPRESENTATIVE:  Mr James Jeonggoo Shin

CASE NUMBER:  2119734

HOME AFFAIRS REFERENCE(S):          BCC2019/3808934

MEMBER:Angela Julian-Armitage

DATE:16 November 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the applications for Regional Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant and the secondary applicants, Mrs Youngok Kim and Miss Yujeong Jeong meet 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

Statement made on 16 November 2022 at 1:31pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – false or misleading information – work experience – allegation that applicant worked in relevant occupation for only one month, not 18 months as claimed – allegation untested and possibly maliciously motivated – forthright and credible oral evidence from applicant and witness and documentary evidence – members of family unit – decision under review

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65
Migration Regulations 1994 (Cth), Schedule 2, cls 187.213(1), 187.234, Schedule 4, criterion 4020(1)

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 14 December 2021 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 1 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 187.213(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate found that the applicant had provided a bogus document and caused to be given information that is false or misleading in a material particular.

3. The applicants appeared before the Tribunal on 8 August 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages. Whilst the applicants had a legal representative at the time of the hearing, the representative did not appear at the hearing either in person or electronically.

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 187.213(1) 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 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. On or about 29 September 2019, Yun Wan Shin, the applicant’s representative, provided material in support of an application before VETASSESS in furtherance of that entities request checklist namely “Evidence of 3 years full-time experience at level”. The information was for the purpose of ascertaining whether the applicant met the requirement of cl 187.234. Notably, this VETASSESS request was made on 18 September 2019 and after VETASSESS had provided a positive skills assessment stating that the applicant had been assessed as having 8.6 years of employment at the skill required for the occupation of Massage Therapist.

11. The material provided to VETASSESS on that occasion to substantiate the claim that the applicant had more than 3 years of full-time employment required for the occupation was:

    ·VETASSESS Skills assessment Outcome letter

    ·Certificate of Income for 2008 to 2015 from Kang Hospital, Republic of Korea

    ·Certificate of Career-Employment Verification Certificate

12. The VETASSESS skills assessment made on 23 May 2018 assessed the applicant’s formal qualification from Korea as follows:

    ·Associate Degree awarded in 2008 by DAEGU Health College, Republic of Korea equivalent to AQF Diploma and therefore at the requisite level.

    ·Master of Physical Therapy awarded 2014 by DAEGU Health College, Republic of Korea equivalent to AQF Masters Degree and therefore at requisite level.

13. The applicant’s full-time employment as a Massage Therapist comprises from May 2009 to Jan 2015 at the Kang Hospital in Korea and from June 2015 to September 2016 at the Gangnam Hospital in Korea. He claims to have worked for KKY Australia Pty Ltd from October 2016 to April 2018.

14. The Tribunal advised the applicant of the allegations that had been made in relation to him by his previous employer’s managing director, Ki Young Kyoung, and that those allegations had been communicated to the Department of Home Affairs. The details of the communication stated that the applicant only work for KKY Australia Pty Ltd as a Massage Therapist for one month being October 2016 with the remainder of the applicant’s employ working in the company’s sushi outlet. This was put to the visa applicant who denied the allegations stating that it was on very rare occasions that he assisted in the sushi outlet and then only when the massage therapy business was experiencing a quiet time.

15. The Tribunal also heard evidence from Ms Jenny Kim who stated that she saw the visa applicant as a client of his massage therapy services regularly located at the premises of KKY Australia Pty Ltd situated at the Cairns DFO and saw him working there at work on a regular basis. Ms Kim was a credible witness who is not related to the visa applicant and whose evidence this Tribunal gives weight to.

16. The Tribunal considered the information from the previous employer’s managing director to have been untested as opposed to the evidence of the visa applicant who presented as a forthright and credible witness. It is noteworthy that in accordance with the evidence of the visa applicant, his employer’s BAS returns and end of financial year ATO records all show that the visa applicant was employed for the period stated in the VETASSESS application as a “massage Therapist” in the employ of KKY Australia Pty Ltd. It is open to the Tribunal to infer that Mr Kyoung was displeased at the fact that the visa applicant was looking at employment elsewhere which could have been the motivation to make the allegations to the Department of Home Affairs.

17. Furthermore, there is nothing contained in the Departmental file to show any level of investigation into the very serious allegations made by Mr Kyoung which, if true, would befall heavy sanctions on both the employer and the visa applicant.

18. In the circumstances, the Tribunal gives no weight to the allegations by Mr Kyoung and prefers the evidence of the visa applicant and Ms Jenny Kim.

19. Therefore, the applicant the PIC 4020(1).

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

20. 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).

21. There is nothing before this Tribunal to indicate that the applicant and/or any family members has been refused a visa due to a failure to satisfy PIC 4020(2) during the specified period.

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

    decision

23. The Tribunal remits the applications for Regional Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant and the secondary applicants Mrs Youngok Kim and Miss Yujeong Jeong, meet 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

    Angela Julian-Armitage
    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.

    …