KAUR (Migration) - [2017] AATA 389

KAUR (Migration) [2017] AATA 389 (9 March 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms GAGANDEEP KAUR
CASE NUMBER:  1516336
DIBP REFERENCE(S):  BCC2015/1555663
MEMBER:Miriam Holmes
DATE:9 March 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for a Skilled Regional Sponsored (Provisional) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 489 - Skilled - Regional (Provisional) visa:
·Public Interest Criterion 4020 for the purposes of cl.489.211 of Schedule 2 to the Regulations.

Statement made on 09 March 2017 at 3:41pm
CATCHWORDS
Migration – Skilled Regional Sponsored (Provisional) visa – Subclass 489 – Bogus documents/misleading information – IT Engineer – Work references – Department verification – Inconsistent information – No evidence of bogus document/misleading information

LEGISLATION
Migration Act 1958, ss 65, 359AA
Migration Regulations 1994, Schedule 2, Schedule 4, cl 489.211, Public Interest Criterion 4020
CASES

Sharma v MIMAC [2013] FCCA 1280
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 Immigration on 20 November 2015 to refuse to grant the applicant a Skilled Regional Sponsored (Provisional) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 31 May 2015. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.489.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant met the requirement in Public Interest Criterion 4020. In effect, the delegate was not satisfied 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: cl.4020(1).
The applicant appeared before the Tribunal on 8 March 2017 to give evidence and present arguments.
The applicant was represented in relation to the review by her registered migration agent, Mr Chug.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.489.211 for the grant of the visa.
Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?
PIC 4020 has a number of aspects, and in this case the critical requirement is whether the Tribunal is satisfied that the applicant meets the requirement in PIC 4020(1). Is essence, the Tribunal must be satisfied that there is no evidence that the applicant has given, or caused to be…

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.

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Details

AGLC: KAUR (Migration) [2017] AATA 389
Case: [2017] AATA 389
Decision Date: 9 March 2017

CaseChat Overview and Summary

This matter concerned an application for a Skilled Regional Sponsored (Provisional) visa (Subclass 489). The applicant sought review of a decision by the Administrative Appeals Tribunal (AAT) concerning whether the applicant met Public Interest Criterion (PIC) 4020, which requires that an applicant has not provided a bogus document or false or misleading information in relation to their visa application or a previous visa.

The primary legal issue before the Tribunal was whether the applicant had provided a bogus document or information that was false or misleading in a material particular, as defined by PIC 4020 and section 5 of the Migration Act 1958. The Tribunal was required to be satisfied that there was no evidence of such conduct in relation to the current application or a visa held within the preceding 12 months. The Tribunal also considered the definition of "bogus document" and "information that is false or misleading in a material particular," noting that an element of fraud or deception by some person was necessary to attract the operation of PIC 4020, as per *Trivedi v MIBP* [2014] FCAFC 42.

The Tribunal reasoned that, based on the evidence before it, it was satisfied that the applicant met PIC 4020. The Tribunal concluded that there was no evidence that the applicant had provided a bogus document or false or misleading information.

Consequently, the Tribunal remitted the application for reconsideration with a direction that the applicant satisfies PIC 4020 for the purposes of clause 489.211 of Schedule 2 to the Regulations.

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 matter should be remitted for reconsideration. CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this review is whether the applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.489.211 for the grant of the visa. Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular? PIC 4020 has a number of aspects, and in this case the critical requirement is whether the Tribunal is satisfied that the applicant meets the requirement in PIC 4020(1). Is essence, the Tribunal must be satisfied 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: cl.4020(1). A copy of PIC 4020 is attached. The requirements in cl.4020(1) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: cl.4020(4). The term ‘information that is false or misleading in a material particular’ is defined in cl.4020(5). It states – “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. …” The term ‘bogus document’ is defined in s.5 of the Act (see the attachment to this decision). It states –‘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. The requirement in cl.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: cl.4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly. 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.

Decision

Reasons for decision

On the basis of the above, the Tribunal is satisfied that the applicant does satisfy PIC 4020 for the purposes of cl.489.211.DECISION The Tribunal remits the application for a Skilled Regional Sponsored (Provisional) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 489 - Skilled - Regional (Provisional) visa:·Public Interest Criterion 4020 for the purposes of cl.489.211 of Schedule 2 to the Regulations.Miriam HolmesSenior MemberATTACHMENTMigration 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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