Juru (Migration)

[2019] AATA 3545

Juru (Migration) [2019] AATA 3545 (21 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Esabel Juru
Mr Kuzivakwashe Emmanuel Sadomba
Mr Lushacy Sadomba

CASE NUMBER:  1720937

DIBP REFERENCE(S):  BCC2016/1566464

MEMBER:Sheridan Lee

DATE:21 June 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for  Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 186 -  Employer Nomination Scheme visas:

·Public Interest Criterion 4020 for the purposes of cl.186.213(1) of Schedule 2 to the Regulations.

Statement made on 21 June 2019 at 12:54pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) – Subclass 186 Employer Nomination Scheme – false or misleading information – criminal convictions – grounds for refusal not made – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 186.213(1), 457.224, 457.325, Public Interest Criterion (PIC) 4001, 4020

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 24 August 2017 to refuse to grant the applicants Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act).

2. Mrs Juru applied for the visa with her husband and son on 27 April 2016. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy Public Interest Criterion 4020 for the purposes of cl.186.213(1) of Schedule 2 to the Migration Regulations 1994 (the Regulations). Consequently, the delegate found that the second and third named applicants did not satisfy the requirements of cl.186.311, as they were not the member of a family unit of a person who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria.

3. The applicants appeared before the Tribunal on 7 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s friend, Ms Margaret Patterson.  

4. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

6. The applicant arrived in Australia in 2008 on a Subclass 573 Higher Education Sector visa to study Certificate IV in Nursing at Holmesglen, followed by a Bachelor of Nursing at RMIT University.

7. On 19 April 2013, the applicant was granted a Subclass 457 visa to work as a Registered Nurse (Aged Care). Her husband and son were included as secondary applicants and joined her in Australia shortly after the grant of the visa. On the visa application form, Ms Juru responded ‘no’ to the following question:

   Have you, or any person included in this application to apply for this visa ever been convicted of a crime or offence in any country (including any conviction which is now removed from official records)?

8. She also affirmed the following declaration:

   I understand that this declaration relates to all persons included in this application seeking to enter Australia. I understand that the visa application may be refused where bogus documents or information that is false or misleading is presented to the Department, including by a third party acting on our behalf. I understand that this also applies to a previous application relating to myself, or a member of my family unit included on this application. I also understand that if information or documents submitted in support of an application are found to be fraudulent or misleading after the grant of a visa, it may subsequently be cancelled. More information is available on the Department of Immigration and Citizenship website.

9. On 27 April 2016, Ms Juru submitted an application for a Subclass 186 visa. As part of the visa application, she submitted a Police Certificate for Immigration Purposes, created on 3 November 2015 by the National Police Chiefs’ Council – ACRO Criminal Records Office in respect of her husband, Lushacy Sadomba. The certificate sets out a summary of convictions for 25 offences committed in the United Kingdom from January 2002 until January 2012. The offences primarily relate to driving whilst unlicensed, uninsured and under the influence of alcohol. Penalties included fines, disqualification of licence, community rehabilitation orders and a number of custodial sentences.

10. On 24 August 2017, the applicant’s Subclass 186 visa was refused on the basis that Ms Juru provided false and misleading information on her Subclass 457 visa application in respect to Mr Sadomba’s criminal history. The decision of the delegate did not set out the material particular, or which visa criteria, the information relates to.

    Public Interest Criterion 4020

11. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.186.213(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).

12. 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?

13. The relevant consideration in the current matter is whether the applicant has given, or caused to be given, information that is false or misleading. Recourse to the decision of the delegate does not raise any concerns in respect of bogus documents.

14. The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) as 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.

15. 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.

16. At the hearing, the applicant gave evidence that when she completed the Subclass 457 visa application she was unaware of her husband’s criminal convictions in the United Kingdom. She had been living and studying in Australia while he had been living in the United Kingdom. She became aware of his convictions when he arrived in Australia and was questioned by immigration officials. The applicant wondered why he had taken so long to pass through security and when she questioned him about it, he told her about his criminal history. When the applicant submitted her next visa application – the Subclass 186 visa application currently before the Tribunal – she provided a copy of her husband’s criminal record.

17. 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. In the circumstances, the Tribunal is satisfied that the information was withheld from Ms Juru by Mr Sadomba and that this represents the necessary element of deception.

18. On the available evidence, the Tribunal is satisfied that the answer in relation to criminal conduct outlined in the background to this decision, provided by Ms Juru on her Subclass 457 visa application, was untrue. Persons included on the visa application had been convicted of a crime or offence in another country. However, for the following reasons, the Tribunal is not satisfied that the information relates to a material particular.

19. At the relevant time, the primary criteria for the grant of the Subclass 457 visa were set out in cl.457.2 of Schedule 2 to the Regulations. It was a requirement for the primary criteria to be satisfied by at least one applicant. Ms Juru was selected as the primary applicant for this purpose. Other applicants who are members of the family unit of the applicant who satisfies the primary criteria need satisfy only the secondary criteria.

20. At the time of the decision to grant Ms Juru a Subclass 457 visa, cl.457.224 required that the primary applicant satisfy PIC4001, which contains the character test. The expression ‘character test’ is not defined in the Regulations, but is taken to be a reference to s.501(6) of the Act. Relevantly, s.501(6) stipulates that a person does not pass the character test if they have a ‘substantial criminal record’. There is no evidence before the Tribunal to suggest that Ms Juru has ever been convicted of a criminal offence in any country.

21. It was not a criteria for the grant of a Subclass 457 visa to the primary applicant that the secondary applicants also satisfy PIC4001, or that any related applicants be without criminal convictions. Clause 457.325 separately required that each secondary applicant satisfy PIC4001 for the grant of their dependant visa. This might be contrasted to the requirement set out in cl.186.213(3) for each member of the family unit of the primary applicant to satisfy the Public Interest Criteria in order for the primary applicant to be granted the visa.

22. As previously outlined, PIC4020(5) stipulates that ‘information that is false or misleading in a material particular’ must 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. In the current matter, Ms Juru provided false information that was not relevant to any of the criteria that may have formed a consideration for the grant of her visa.

23. The information was relevant to the criteria the Minister may consider when making a decision on the grant of the dependant visa to Mr Sadomba. If Mr Sadomba had not met the character test, it would not have had a critical effect on Ms Juru’s application. Therefore, the Tribunal finds that the applicant has not given, or caused to be given, information that is false or misleading in a material particular in relation to a visa that the applicant held in the 12 months before the application was made.

24. The Tribunal has also considered whether the applicant has given, or caused to be given, information that is false or misleading in a material particular in relation to the current application. The Tribunal has before it a copy of the applicant’s Subclass 186 visa application form. On the application form, the applicant has responded ‘yes’ to the following question:

    Has any applicant ever been convicted of an offence in any country (including any conviction which is now removed from official records)?

25. As such, the applicant has not submitted false and misleading information in relation to a material particular in respect of the current Subclass 186 visa application and meets the requirements in PIC4020(1).

26. There is no evidence before the Tribunal to indicate that the applicant or any member of the family unit has previously been refused a visa because of a failure to satisfy PIC4020(1). Therefore, PIC 4020(2) is met.

27. The applicant has supplied the Department with a copy of her birth certificate, Australian qualifications and Passport issued by the Republic of Zimbabwe. The Tribunal is satisfied as to her identity and no concerns have been raised by the Department of Minister in that regard. Therefore, the applicant meets PIC4020(2A).

28. Departmental records show 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(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused. Therefore PIC 4020(2B) is met.

29. On the basis of the above, the applicant satisfies PIC 4020 for the purposes of cl.186.213(1).

30. The Tribunal notes that Mr Sadomba’s criminal record may raise further issues for the family in trying to satisfy the requirements of their Subclass 186 visa applications. Nevertheless, the Tribunal President’s Direction on Conducting Migration and Refugee Reviews, issued under s.18B of the Administrative Appeals Tribunal Act 1975, states that as a general rule, where the Minister for Immigration (Minister) or delegate has made an adverse decision on particular criteria or issues, the Tribunal should restrict its review to those matters.

31. In this matter, the Tribunal cannot be satisfied that the grounds for refusal on the basis of the criteria raised by the delegate were made out. As such, the appropriate action is to remit the application to the Department to consider the remaining criteria for a Subclass 186 visa.

32. As the second and third named applicants applied on the basis of being a member of the family unit of the first named applicant, their application will be determined by reference to the outcome of the first named applicant’s application on remittal to the Department for reconsideration.

    DECISION

33. The Tribunal remits the applications for  Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 186 -  Employer Nomination Scheme visas:

    ·Public Interest Criterion 4020 for the purposes of cl.186.213(1) of Schedule 2 to the Regulations.

    Sheridan Lee
    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.  

    …