Katragadda (Migration)

[2019] AATA 1166

Katragadda (Migration) [2019] AATA 1166 (2 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Narendra Katragadda

CASE NUMBER:  1611318

DIBP REFERENCE(S):  BCC2015/3491824

MEMBER:Wan Shum

DATE:2 April 2019

PLACE OF DECISION:  Sydney

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

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

Statement made on 02 April 2019 at 3:05pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – information that is false or misleading in material particular – responses to questions in Form 80 – previous visa refusals – debt to the Commonwealth – no element of fraud or deception – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.213, Schedule 4, PIC 4020

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Khan v MIAC [2011] FCA 75
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 Immigration on 22 July 2016 to refuse to grant the applicant a Regional Employer Nomination (Permanent) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the Subclass 187 visa on 24 November 2015. The delegate found that the applicant did not satisfy Public Interest Criterion 4020 and refused to grant the visa.

3. The applicant has sought review of that decision and is represented in relation to the review by a registered migration agent.

4. The applicant appeared before the Tribunal by video conference on 12 February 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Telugu and English languages where required. The representative was present.

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

   BACKGROUND

6. The applicant entered Australia on 15 November 2008 as the holder of a student visa. On 9 March 2011, an application for a Subclass 485 visa was made for the applicant. That visa was refused on 20 April 2012 on the basis that PIC 4020 was not satisfied because that delegate found that he had provided a bogus document. This was based on information from Trade Recognitions Australia that the applicant had not applied for a skills assessment as was claimed on the visa application form.

7. The applicant then made a Subclass 187 visa application. This was refused because PIC 4020(2) was not satisfied because he had previously been refused a visa on that basis that PIC 4020(1) was not met, and 3 years had not passed.

8. The applicant then applied for the visa the subject of this review.

9. The applicant has sought merits review in relation to the refusal of his Subclass 485 visa. The Tribunal (differently constituted) affirmed the decision under review. That decision is currently the subject of judicial review by the Federal Circuit Court (court file number MLG1304 of 2014). According to the submissions made by the current representative, the applicant is arguing before the Court that the application for the Subclass 485 visa was not valid as the migration agents, S & S Migration, had lodged an application for him containing fraudulent content that was not consistent with his instructions. The applicant has provided the Tribunal with a copy of a news article in relation to these migration agents. The article alleges that Mr Ajjan and Mr Sodhani, with assistance from Mr Ajjan’s wife who worked at the Department, made over 1000 fraudulent visa applications. It appears that the Ajjans left Australia shortly after investigations began and have not been prosecuted to date. There is some evidence before the Tribunal which confirms that the 485 application made in the applicant’s name was lodged by S & S Migration. However, the Court has not made a finding in relation to the validity of the 485 application to date. The current representatives had requested a postponement of the Tribunal hearing on the basis that the outcome of the Court matter would have a bearing on the Tribunal’s decision in respect of this application. The Tribunal did not agree to the adjournment because, irrespective of whether the Court accepted that the 485 application was not a valid application, the issue in this review relates to whether he had given false or misleading information in response to the question regarding previous visa refusals. The Tribunal’s view is that there were previous visa refusals at the time the information was given, regardless of whether there was in law, a visa (or visas) that could be refused. It has thus proceeded to a decision in this matter.

   CLAIMS AND EVIDENCE

10. 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).

11. 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.

12. 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.

13. 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.

14. 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.

    Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?

15. The delegate considered that the applicant had failed to answer a question on Form 80 regarding whether he had previously had a visa refused correctly. The Tribunal raised concerns that the applicant had failed to answer the question as to whether he had a debt to the Commonwealth correctly as well. While the applicant contended that the first visa application was not valid, it appears to the Tribunal that he concedes that there were two decisions to refuse to grant him visas and on this basis it could be said that the question was answered incorrectly. The applicant concedes that he did have a debt to the Commonwealth at the time the application was made and that it was answered incorrectly.

16. As the applicant did not hold a visa in the period of 12 months before the application was made, the Tribunal is only considering whether these is evidence that he had given information that is false or misleading in a material particular in relation to the application for the current Subclass 187 visa. There is no evidence before the Tribunal that he has given a bogus document.

17. The Tribunal will deal with each question and his response in turn.

    Response to question regarding previous visa refusals

18. On the Form 80 (design date 12/14) completed by the applicant and signed on or around September 2015, under the section ‘Part N –Visa refusals’ question 40 states: “Have you ever been refused a visa to any country?”. The possible answers are ‘No’ or ‘Yes - Give details of refusal, countries and circumstances of refusal’. The applicant answered ‘no’ to this question. However, at the time he completed the form, the applicant had two previous visa refusals, the 485 application which was refused on 20 April 2012 and the first 187 application which was refused on 10 June 2014.

19. The applicant claims that he had misunderstood the question, being of the belief that he was being asked whether he had been refused a visa of any other country, and not whether he had previously been refused a visa to Australia. In support of this claim, the Tribunal’s attention was drawn to the wording used in ‘Part K – Character’ for which a number of questions use the following phrase “from any country (including Australia)”. In addition, the applicant gave evidence that he had answered a similar question in a previous version of Form 80 in the positive. A copy of the completed Form 80 which is signed by the applicant and dated 19 March 2014 was provided. It is claimed that this Form was given for the previous Subclass 187 application. On this version of Form 80, design date 11/13, the question is framed as “have you… ever… been refused a visa for Australia or any other country?”. The question appears under ‘Part I – Character Details’. In response to that question, while originally indicating ‘no’ and then correcting the response to ‘yes’, he had provided the following details of previous visa refusals: “Skilled (Provisional)(Class VC) Subclass 485 (Skilled Graduate)”. The Tribunal accepts on this evidence that the applicant had given details of the visa refusal in the Form 80 given with his first Subclass 187 application.

20. The applicant further claims that he believed that the Department would have been aware of his previous visa refusals, and had no reason to hide this information. While this may be true, the question appears on the form and should be answered correctly.

21. In considering whether there is evidence that the applicant gave ‘information that is false or misleading in a material particular’, the Tribunal has had regard to the definition of this term in PIC 4020(5), being information that is “false or misleading at the time it is given, and 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”.

22. The Tribunal considers that the response ‘no’ to the question was false at the time it was given, as he had had visas refused to Australia.

23. As to whether it meets the definition in PIC 4020(5), it was submitted by the representative that this information is not relevant to any of the criteria the Minister may consider when making a decision on an application and that the previous visa refusals could have had no bearing on the decision. The representative submitted that a decision-maker should set out the specific visa criteria to which the information is relevant and how the information is relevant to that criterion, stating that this approach is endorsed in the decision of Khan v MIAC [2011] FCA 75. However, the Court in Khan was focused on the operation of cl.880.230(1) and the Tribunal considers that the use of “false or misleading information in a material particular” in that context can be distinguished. The term is defined for the purposes of PIC 4020 being information that is “relevant to any of the criteria the Minister may consider when making a decision on an application whether or not the decision was made because of that information” (emphasis added). Having regard to the definition, that it be relevant to any of the criteria, the Tribunal does not consider that it is necessary to identify a single specific visa criterion which would have been the reason for refusing the visa for the purposes of PIC 4020(5).

24. As to the question of whether it is relevant, the Tribunal considers that the question regarding previous visa refusals is relevant to the consideration of whether the schedule 4 public interest criteria have been satisfied. This is because the Tribunal considers that information that there had been a previous visa refusal may be relevant where the previous visa was refused, for example, on character grounds (PIC 4001) or health criteria (PIC 4005 or 4007), and even PIC 4020, as a visa refused on PIC 4020(1) or PIC 4020(2B) is subject to restrictions in terms of when a further application for a visa can effectively be granted. Thus, the fact of a previous visa refusal would alert a decision maker to investigate further the reasons for that refusal and consider whether it is relevant to the application under consideration. The representative has submitted that there are specific questions directed at character and health, and that a previous refusal for these reasons does not indicate that the applicant does not meet either of these criteria and that to suggest otherwise is completely unreasonable and illogical.

25. The Tribunal accepts that there are questions directly related to character and health and that it is necessary to assess each of these matters for the specific application in consideration, but does not consider that it precludes the relevance of the question of whether a previous visa had been refused on these criteria. While a person may be asked to submit a fresh criminal records check or undergo medical checks, the requests for certain checks to be carried out are based on the information provided on the forms. If a person has not completed the form correctly based on, for example, a misunderstanding of the question asked, then it may not be apparent to the decision maker that further enquires or investigations are required. The existence of a previous visa refusal effectively puts the decision maker on notice that there may be additional matters to be taken into account. The Tribunal thus considers that the response to the question is relevant to the public interest criteria and could on this basis meet the definition of ‘false or misleading information in a material particular’.

26. Lastly, it was submitted that in the applicant’s case, the information could not be said to be purposefully untrue and that the applicant’s failure to answer the question correctly was an “innocent mistake”.

27. The Tribunal has considered this submission. It is persuaded that the applicant did not intentionally give an incorrect response in answer to the question: “Have you ever been refused a visa to any country?”. This is because it accepts that the wording used could be misunderstood, given that a number of other questions do use the wording “Australia or any other country” or “any country (including Australia)”. Moreover, it has given weight to the applicant having previously given a positive response in his first Subclass 187 visa application. It is thus prepared to accept that the applicant had mistakenly answered “no” to the question and had not done so with any intention to deceive. In these circumstances, it does not consider that there was an element of fraud or deception in respect of his answer to whether he had previously had any visas refused.

28. It will now turn to consider whether his failure to declare that he had outstanding debts to the Commonwealth is ‘information that is false or misleading in a material particular’.

    Debt to the Commonwealth

29. On Form 80, design date 12/14, under the section ‘Part K – Character’, the applicant answered “no” to the question “have you… ever… had any outstanding debts to the Australian government or any public authority in Australia?”. This form is signed and dated 21 September 2015. The Subclass 187 visa application form was completed electronically and included a similarly worded question to which his response was ‘no’. Both forms were submitted to the Department on 24 November 2015 when the visa application was lodged with the Department.

30. However, there is information before the Tribunal that the applicant did have a debt to the Commonwealth arising from the initial unsuccessful outcome of Federal Circuit Court file number MLG1304 of 2014. The debt was raised on the Department’s financial system on 24 September 2015 and the invoice was posted to the applicant at this time.

31. The applicant submitted an application for an instalment plan to the Department by 14 October 2015.

32. The applicant concedes that, while the form 80 was completed prior to the debt arising, the information was incorrect when given as the visa application was not lodged until 24 November 2015. In relation to this information, the relevant criterion is PIC 4004.

33. The applicant claims that he believed that the Department would have been aware of his debt, and had no reason to hide this information. It was further submitted that the applicant has not been aware that the debt arising from the litigation was considered a “debt to the Commonwealth”. The Tribunal acknowledges that this term is not used in any of the correspondence which the applicant and/or his legal representative would have received around the time the costs were awarded against him. The representative further submitted that the applicant did include details of the debt in the amended Form 80 when responding to the invitation to comment about his failure to respond correctly to the question about prior visa refusals. This was the case even though he had not been put on notice of this incorrect answer by the delegate, which the Tribunal accepts.

34. The Tribunal has considered the applicant’s claims and evidence. It notes that Form 80 was completed prior to his having receiving notification of the debt, which could explain his failure to tick “no” to this question. However, as the same question appears separately on the visa application form and both forms were not submitted until 24 November 2015, after he became aware of the debt, the Tribunal considers that he was aware of the debt by the time he gave the response. Having regard to the circumstances of his having entered into an instalment plan to pay the debt and the wording used in the letters communicating the existence and amount of his debt, it is persuaded that the applicant did not intentionally give an incorrect response in answer to the question.

    Conclusion on PIC 4020(1)

1. The Tribunal acknowledges the delegate’s concerns that the applicant has previously been involved in lodging an application for a visa that he was not entitled to. However, it is persuaded that the applicant did not intentionally provide an incorrect response to the above-mentioned questions for the current application. Therefore, although the responses to the questions were false at the time they were given, the Tribunal finds that there was no element of fraud or deception in this case. Given this, it concludes that there is no evidence that the applicant has given a bogus document or false or misleading information in a material particular in relation to the application for the visa and finds that he does satisfy PIC 4020(1).

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

2. 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). 

3. The applicant has previously had two visas refused for failing to satisfy PIC 4020, the first was refused on the basis of a failure to satisfy PIC 4020(1) on 20 April 2012 and the second was refused on the basis of a failure to satisfy PIC 4020(2) on 10 June 2014. This application was made on 22 July 2016. The Tribunal finds that more than 3 years have passed between the making of this application and the refusal for failure to satisfy PIC 4020(1).

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

   Has the applicant satisfied the identity requirements?

5. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity. The Tribunal is satisfied on the information before it of his identity.

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

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

7. 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(2A) 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).

8. As noted above, the applicant has previously been refused visas because of a failure to satisfy PIC 4020(1) and (2). The Tribunal is not aware of any refusal on the basis of PIC 4020(2A).

9. Therefore PIC 4020(2B) is met.

10. On the basis of the above, the applicant satisfies PIC 4020 for the purposes of cl.187.213(1).

    DECISION

11. The Tribunal remits the application for a  Regional Employer Nomination (Permanent) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 -  Regional Sponsored Migration Scheme visa:

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

    Wan Shum
    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.

    …