KAUR (Migration) - [2024] AATA 501

KAUR (Migration) [2024] AATA 501 (12 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS: Mrs PRABHJEET KAUR
Mr CHARAN SINGH

REPRESENTATIVE:  Mr Jasminkumar Dipaklal Shah (MARN: 1808222)
CASE NUMBER:  2116660
HOME AFFAIRS REFERENCE(S):          BCC2020/1428509
MEMBER:R. Skaros
DATE:12 March 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Skilled Work Regional (Provisional) (Class PS) visas.

Statement made on 12 March 2024 at 11:32am
CATCHWORDS
MIGRATION – Skilled Work Regional (Provisional) (Class PS) visa – Subclass 491 (Skilled Work Regional (Provisional)) – state/territory nominated (regional) stream – finance manager – false or misleading information and bogus documents – employment and tasks of positions – verification checks – claimed employment some distance away while completing professional year and internship – undetailed and inconsistent evidence about tasks – references state higher tasks – no PAYG summaries provided or income declared – small businesses, COVID restrictions, change of premises and work from home – other occupations stated on incoming passenger cards – insufficient evidence to conclude documents bogus – discretion to waive criterion – compassionate or compelling circumstances – length of residence, study and work – member of family unit husband – no submissions about circumstances – baby born shortly before hearing not citizen or permanent resident – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65, 359AA
Migration Regulations 1994 (Cth), Schedule 2, cl 491.211(1), Schedule 4, criterion 4020(1), (4), (5)
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 28 October 2021 to refuse to grant the applicants Skilled Work Regional (Provisional) (Class PS) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 24 April 2020. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl 491.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate found that the applicant had not met the requirements in Public Interest Criterion 4020 (PIC 4020). A copy of the delegate’s decision record was provided with the application for review.
On 9 January 2024, the Tribunal invited the applicant to appear before it on 5 February 2024 to give evidence and present arguments. On 12 January 2024, the Tribunal received a request for postponement of the hearing because the applicant, who was pregnant at the time, was due to give birth on 15 January 2024. The Tribunal agreed to the request and the hearing was rescheduled to 29 February 2024.
On 20 February 2024, the Tribunal received confirmation from the applicant that only she would be attending the reschedule hearing. It was indicated…

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 501
Case: [2024] AATA 501
Decision Date: 12 March 2024

CaseChat Overview and Summary

This matter concerned an application for a Skilled Work Regional (Provisional) (Class PS) visa, Subclass 491, in the state/territory nominated (regional) stream. The applicant nominated the occupation of Finance Manager. The core of the dispute revolved around whether the applicant had provided a bogus document or false or misleading information in relation to her application, specifically concerning her claimed employment history. The decision was made by R. Skaros, Senior Member.

The legal issues before the Tribunal were whether the applicant met the requirements of Public Interest Criterion (PIC) 4020(1), which prohibits the provision of bogus documents or false or misleading information in relation to a visa application or a previous visa held within 12 months. The Tribunal also considered whether there were any compelling or compassionate circumstances that would justify waiving this criterion under PIC 4020(4). The definition of "bogus document" under section 5(1) of the Migration Act 1958 and "information that is false or misleading in a material particular" under PIC 4020(5) were central to the determination.

The Tribunal found that the applicant had not provided sufficient evidence to satisfy the requirements of PIC 4020(1). While the applicant claimed employment as a Finance Manager and Accountant, the evidence presented, including payslips and employment contracts, was found to be undetailed and inconsistent, particularly regarding the tasks performed. Furthermore, the applicant had not provided PAYG summaries or declared income, and her incoming passenger cards indicated occupations different from that for which she applied. Although the applicant argued that small businesses, COVID restrictions, and working from home explained these discrepancies, the Tribunal was not satisfied that the provided documents were not bogus or that the information was not false or misleading. The Tribunal also noted that no submissions were made regarding compassionate or compelling circumstances that might warrant a waiver under PIC 4020(4).

Consequently, the Tribunal affirmed the decision not to grant the Skilled Work Regional (Provisional) (Class PS) visas to the applicant and her secondary applicant, who applied as a member of the family unit.

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 PIC 4020(1) as required by cl 491.211 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). The requirements in PIC 4020(1) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). PIC 4020 is extracted in the attachment to this decision.Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular? 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. 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. 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 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.Evidence in the Department’s file The applicant applied for the Subclass 491 visa in the State/Territory Nominated (Regional) stream on 24 April 2020. She nominated the occupation of Finance Manager (132211). Relevantly, it was indicated in the visa application form that the applicant had the following employment in Australia:·Finance Manager with Ampex Chartered Accountants (Ampex) from 23 September 2019. ·Accountant with Concierge Accounting (Concierge) from 11 December 2018 to 6 September 2019. As indicated in the decision record, in July 2020, the Department wrote to the Queensland state nominator and requested copies of documents submitted for the applicant to obtain a Nomination from the state of Queensland. In July 2020, the Queensland state authority, Business and Skilled Migration Queensland (BSMQ), informed the Department of the documents that were provided with application for state nomination, which relevantly included the following:·Onshore Commitment statement from the applicant in which she declared that she was working as a Finance Manager.·Payslips: from 24 February 2020 – 22 March 2020 from Ampex.·Employment contract with Ampex, dated 1 April 2020.·Statement of service from Ampex, dated 2 April 2020.·Statement of service from Concierge, dated 2 October 2019.

Decision

Reasons for decision

The secondary applicant applied for the visa on the basis of being a member of the family unit of the applicant. As the Tribunal has found that the applicant does not satisfy a criterion for the grant of the visa, it follows that the Tribunal must also affirm the decision made in respect of the secondary applicant. DECISION The Tribunal affirms the decision not to grant the applicants Skilled Work Regional (Provisional) (Class PS) visas.R. SkarosSenior 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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