Katragadda (Migration)

The Administrative Appeals Tribunal considered an application for a Regional Employer Nomination (Permanent) visa (Subclass 187). The applicant had previously had a Subclass 485 visa refused due to providing a bogus document, and subsequently, his Subclass 187 visa application was refused on the basis that he had not satisfied Public Interest Criterion (PIC) 4020(2) due to the prior refusal. The applicant was arguing before the Federal Circuit Court that the earlier Subclass 485 visa application was invalid as it was lodged by migration agents with fraudulent content not consistent with his instructions.

The Tribunal was required to determine whether the applicant met PIC 4020 for the grant of the Subclass 187 visa. This criterion broadly requires that an applicant has not provided false or misleading information or bogus documents in relation to a visa application or a visa held within the preceding 12 months, and has not had a visa refused due to a failure to satisfy PIC 4020(1) within the preceding three years. The Tribunal noted that the applicant's current representatives had sought an adjournment of the Tribunal hearing pending the outcome of the Federal Circuit Court matter concerning the validity of the Subclass 485 application.

The Tribunal reasoned that regardless of the Federal Circuit Court's eventual finding on the validity of the Subclass 485 application, the issue before the Tribunal was whether the applicant had provided false or misleading information in response to the question regarding previous visa refusals. The Tribunal concluded that previous visa refusals had occurred at the time the information was provided, irrespective of the legal validity of the visa that was refused. On this basis, the Tribunal found that the applicant satisfied PIC 4020 for the purposes of the Subclass 187 visa application.

Consequently, the Tribunal remitted the application for a Regional Employer Nomination (Permanent) visa for reconsideration, with a direction that the applicant meets PIC 4020 for the purposes of cl.187.213(1) of Schedule 2 to the Migration Regulations 1994.