Kanwar (Migration)

[2022] AATA 5031

Kanwar (Migration) [2022] AATA 5031 (21 July 2022)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Mrs Shveta Kanwar Mr Sandeep Kumar Miss Shanaya Kaith

REPRESENTATIVE:  Mr Ranbir Singh (MARN: 1069570)

CASE NUMBER:  1934851

HOME AFFAIRS REFERENCE(S):           BCC2018/2218211

MEMBER:  Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:          21 July 2022 at 4:39 pm (VIC time)

DATE OF WRITTEN RECORD:                5 August 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the decisions under review with the direction that the applicant satisfies cl.190.216.

Statement made on 05 August 2022 at 3:09pm

CATCHWORDS

MIGRATION – Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 (Skilled – Nominated) – false or misleading information – work history – honest mistake – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 190.216; Schedule 4, PIC 4020

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 3 December 2019 to refuse to grant the visa applicants Skilled Nominated (Permanent) Subclass 190 visas under the Migration Act 1958 (Cth) (the Act).

1. At the hearing on 21 July 2022 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

1. Ms Shveta Kanwar, you applied for a subclass 190 Skilled Nominated visa on 23 May 2018 with your nominated occupation as a registered nurse in community health. On 3 December 2019 a delegate of the Minister made a decision to refuse your visa on the basis she was not satisfied that you met clause 190.216, which deals with what are known as Public Interest Criteria that we abbreviate to PIC.

1. Specifically she found that you did not satisfy PIC 4020, which requires there to be no evidence before the Minister, or in this case the Tribunal, that the applicant has provided or caused to be provided a bogus document or information that is false or misleading in relation to an application for a visa or for a visa which the applicant has held in the 12 months immediately before applying for the visa. There was no evidence that you had sought a waiver of PIC 4020. Consequently the delegate found you did not satisfy clause 190.216, which is a prerequisite for the grant of a visa.

1. With your appeal to this Tribunal for review of that decision you provided a copy of the primary decision which you told the Tribunal you had read and understood. I read from that decision in very significant detail and we discussed it and it became apparent that you did understand why the decision had been made.

1. As I explained to you, the role of the Tribunal is to conduct what is referred to as a ‘de novo’ hearing, which means I consider your case afresh and make a new decision about your eligibility for a visa. While it is my role to consider your case completely afresh I must do so applying the same laws as those that were applied by the department. The Tribunal is independent of the department meaning they do not tell us how to decide cases.

1. However, it is important to understand we do not grant visas. If I find that you satisfy the requirements I will send the matter back to the department with the direction that you satisfy the regulation in question. If on the other hand, I find you do not satisfy the requirements I will send the matter back affirming the decision that they made.

1. I have before me the department file, which includes all the material you provided with and in support of your application and the Tribunal file, which includes all the information that has come in since you lodged your review application, including the substantial submission that came in from your migration agent last week.

1. In making the decision I have relied on the information on the files and what you and your agent Mr Singh have told me today. The question is whether you satisfy clause 190.216 in Schedule 2 of the Migration Regulations which, as I said, provides that there is no evidence that you have provided false or misleading information.

1. In support of your application you have provided a range of documents, including declarations regarding your overseas work experience. You provided a Declaration of Employment form lodged on 23 May 2018, a Form 80 signed on 12 September 2018 and the

information in those documents did not match the information claims and supporting documentation you had declared and provided to the department in 2015 in support of a previous visa application that you held while you lodged this application. That information was regarding your employment with a hospital called Neeraj Hospital in India.

1. The information and the form specifically relates to character claims, which means it’s a material particular, in relation to 190.216. As I say, the delegate found you did not satisfy the requirements and so refused your application.

1. There were a number of issues that revolved around conflicting statements that you provided and one of the doctors that you worked with provided. Before I go that far what I should say is that you worked as a nurse at Fortis Escort Hospital from February 2012 to February 2013 and you worked for the government of the Punjab Community Health from January 2015 to May 2015. And I accept that both of those positions were positions that you held and in those positions you worked in your nominated occupation ,of Registered Nurse in Community Health.

1. The dispute arises around the fact that in 2015 you declared you had worked for a period as a youth worker with Neeraj Hospital from November 2009 to 16 March 2015 on a part-time basis. There is very little record to support this claim. You were paid in cash. It was a small business. You were paid 8,000 rupees a month which meant that your combined annual income did not achieve the level that required you to pay tax, income tax, in India.

1. However, that employment was not mentioned in your subsequent application in 2018 and that was the basis for the decision of the delegate to refuse your application. There were a number of other issues that we discussed at length and in general you provided satisfactory answers.

1. Regarding this Neeraj Hospital as it is called you explained that it is what I think in Australia we would call a medical practice. It was owned and operated by a husband and wife team of doctors and a small nursing staff. It was and is a small business. As Mr Singh pointed out, it is not unusual in India for small businesses to act in a manner that we would not consider appropriate in Australia with regards to recordkeeping and with regards to employment records particularly and with regards to payment and payments in cash are not all that unusual. I accept that this was the case and I accept that you worked as a youth worker for Neeraj Hospital during the period 2009 to 2015.

1. You say that when filling in the visa application the migration agent you had engaged told you that as your application was for the nominated occupation of a registered nurse, you were should provide evidence of your experience as a nurse which would be sufficient to gain you the points required and, therefore, there is no need to worry about putting down your other experiences at the Neeraj Hospital.

1. I accept that you took that advice and it was on that advice that you lodged the application with what you believed was sufficient evidence of having worked in your nominated occupation. You say it was an honest mistake, you worked there part-time and all your employment was genuine. You worked there as a youth worker and there was no benefit to be gained from providing false or misleading information. I accept that to be the case.

1. Therefore I find that you have not provided evidence that is false or misleading in a material particular and therefore I find you have not breached PIC 4020 , Consequently, I find you satisfy clause 190.216. It is, therefore, my intention to remit this matter to the department with the direction, as I have stated, that you satisfy clause 190.216.

DECISION

1. The Tribunal remits the decisions under review with the direction that the applicant satisfies cl.190.216.

Tim Connellan Member