Kaur (Migration) - [2023] AATA 941

Kaur (Migration) [2023] AATA 941 (20 February 2023)

Corrigendum

DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Ranjit Kaur
Mr Sukhdeep Singh Sidhu
Mr Gurnoor Singh Sidhu
REPRESENTATIVE:  Mr Etienne de Villiers Hugo
CASE NUMBER:  1923022
HOME AFFAIRS REFERENCE(S):          BCC2018/6027822
MEMBER:Namoi Dougall
DATE OF DECISION:  20 February 2023
DATE CORRIGENDUM
SIGNED:22 February 2023
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision:

That the front page of the Decision be changed so that:

References to “Subclass 186” be replaced by “Subclass 187”, references to “cl 186.313” be replaced by “cl 187.313” and “cl 186.213” be replaced by “cl 187.213”.

That paragraphs 94 and 95 of the Decision be changed so that:

References to “Subclass 186” be replaced by “Subclass 187”, references to “cl 186.313” be replaced by “cl 187.313” and “cl 186.213” be replaced by “cl 187.213”.

Namoi Dougall
Member

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Ranjit Kaur
Mr Sukhdeep Singh Sidhu
Mr Gurnoor Singh Sidhu
REPRESENTATIVE:  Mr Ettienne de Villiers Hugo
CASE NUMBER:  1923022
HOME AFFAIRS REFERENCE(S):          BCC2018/6027822
MEMBER:Namoi Dougall
DATE:20 February 2023
PLACE OF DECISION:  Sydney
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 a Subclass 186 – Employer Nomination Scheme visa:
·public interest criterion 4020 for the purposes of cl 186.313 of Schedule 2 to the Regulations
And the secondary applicants meet the following criteria for Subclass 186 – Employment Nomination Scheme visas:
·public interest criterion 4020 for the purposes of cl 186.313 of Schedule 2 to the Regulations.

Statement made on 20 February 2023 at 8:40pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – bogus document – IELTS test report – fraudulently altered – purposeful falsity – not necessary to show knowing complicity – waiver of requirement – compelling and compassionate circumstances – Australian citizen child – ‘ordinarily resident’ requirements – impact on Australian employer – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 187.213, 187.313; Schedule 4, PIC 4020

CASES
Arora v MIBP [2016] FCAFC 35

Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
Trivedi v MIBP [2014] FCAFC 42

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 August 2019 to refuse to grant the applicants Regional Employer Nomination (Permanent) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 8 January 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 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate found that the applicant had…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kaur (Migration)

Details

AGLC: Kaur (Migration) [2023] AATA 941
Case: [2023] AATA 941
Decision Date: 20 February 2023

CaseChat Overview and Summary

The applicant, Ms Kaur, sought judicial review of a decision by the Minister to refuse her application for a Regional Employer Nomination (Permanent) (Class RN) visa, subclass 187. The refusal was based on the finding that a document provided in support of her application, an IELTS test report, had been fraudulently altered.

The primary legal issues before the court were whether the applicant had provided a "bogus document" as defined by the *Migration Act 1958* (Cth) and its associated regulations, and whether there were compelling and compassionate circumstances that warranted a waiver of the requirement for the applicant to meet certain criteria, specifically in relation to her Australian citizen child and the impact on the sponsoring Australian employer.

The court considered the meaning of "bogus document" and determined that it was not necessary to prove the applicant's knowing complicity in the fraudulent alteration of the IELTS test report. The focus was on the document itself being false and the applicant having presented it as genuine. Regarding the waiver, the court examined the evidence of compelling and compassionate circumstances, including the applicant's relationship with her Australian citizen child and the potential negative consequences for the sponsoring employer.

Ultimately, the court found that the decision under review was affected by an error of law and remitted the matter to the Minister for reconsideration according to law.

Orders