Kaur (Migration) - [2024] AATA 3709

Kaur (Migration) [2024] AATA 3709 (1 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Gagandeep Kaur
REPRESENTATIVE:  Mr Jujhar Bajwa (MARN: 0742209)
CASE NUMBER:  2214490
HOME AFFAIRS REFERENCE(S):          BCC2022/3194208
MEMBER:Jade Murphy
DATE:1 October 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 1 October 2024 at 12:43pm
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – previous student visa application refused because of false or misleading information or bogus document – discretion to waive criterion – compassionate or compelling circumstances – actions of previous agent – employer may be affected – three-year period now passed – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cl 485.216, Schedule 4, criterion 4020(2)

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 16 September 2022 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 12 August 2022. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 485.216 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied the applicant met the requirements of Public Interest Criterion (PIC) 4020(2).
The applicant appeared before the Tribunal on 1 October 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was represented in relation to the review, and at hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 485.216 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…

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) [2024] AATA 3709
Case: [2024] AATA 3709
Decision Date: 1 October 2024

CaseChat Overview and Summary

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, subclass 485, by the applicant, Ms Kaur. The dispute arose because the applicant's previous application for a Subclass 500 student visa was refused on 30 September 2021 due to the provision of a bogus document or false and misleading information. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the applicant met Public Interest Criterion (PIC) 4020, which is a mandatory requirement for the grant of the subclass 485 visa.

The primary legal issue before the Tribunal was whether the applicant satisfied PIC 4020, specifically subclauses (1) and (2). PIC 4020(1) prohibits the grant of a visa if the applicant has provided a bogus document or false or misleading information in relation to the current application or a previous visa held within the preceding 12 months. PIC 4020(2) requires that the applicant has not been refused a visa due to a failure to satisfy PIC 4020(1) within the three years prior to the current application. The Tribunal also considered the possibility of a waiver under PIC 4020(4) for compelling or compassionate circumstances.

The Tribunal affirmed the delegate's decision to refuse the visa. It found that the applicant had indeed been refused a previous visa on 30 September 2021 for providing a bogus document or false and misleading information, and this refusal fell within the three-year period stipulated by PIC 4020(2). The Tribunal noted that the applicant was provided with an opportunity to comment on the information but did not respond, nor did they make submissions for a waiver of the requirement. As the applicant failed to satisfy PIC 4020(2) and no waiver was applicable or sought, the Tribunal concluded that the applicant did not meet the criteria for the grant of the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 485.216 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). 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 a visa previously been refused based on a failure to satisfy PIC 4020(1)? 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 three 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). As set out in the delegate’s decision, the delegate found that the applicant did not meet the requirements of PIC 4020(2) because departmental records indicated that on 12 October 2020 the applicant lodged a Subclass 500 student visa and on 30 September 2021 the visa application was refused. The delegate noted that the previous visa refusal was in the period commencing three years before lodging this visa application and further, that the applicant had been refused this previous visa on the grounds of providing a bogus document or false and misleading information in relation to the application for that visa. The Department notified the applicant of their concern and provided her with 28 days to provide a comment on the information to which the delegate stated they did not receive a response. The delegate also noted that no submissions regarding a waiver of the requirement were made either.

Decision

Reasons for decision

Based on the above, the applicant does not satisfy PIC 4020 for the purposes of cl 485.216.DECISION The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.Jade MurphyMemberATTACHMENTMigration Regulations 1994Schedule 44020(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 1958s 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.…

Ratio Decidendi

Legal Principle Established

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