Kaur (Migration)

[2021] AATA 4108

Kaur (Migration) [2021] AATA 4108 (23 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Rajnish Kaur
Mr Paramjit Singh
Miss Ram Kaur

CASE NUMBER:  1829744

HOME AFFAIRS REFERENCE(S):          BCC2016/3617829

MEMBER:Andrew McLean Williams

DATE:23 August 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the applications for Regional Employer Nomination (Permanent) visas for reconsideration, with the direction that the first-named Applicant meets the following criteria for Subclass 187 -  Regional Sponsored Migration Scheme visas:

·Public Interest Criterion 4020 for the purposes of cl 187.213 of Schedule 2 to the Regulations

Statement made on 23 August 2021 at 12:19pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Cook – false or misleading information – employment history – decision under review remitted

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

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Singh v Minister for Immigration and Border Protection [2019] FCAFC 22
Trivedi v MIBP [2014] FCAFC 42

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a Delegate of the Minister for Home Affairs on 25 September 2018 refusing to grant the Applicants Regional Employer Nomination (Permanent) visas, under s 65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The Applicants applied for the visas on 31 October 2016. 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 Applicant did not satisfy Public Interest Criteria 4020 (‘PIC 4020’), as is required under clause 187.213(1) of the Regulations.

3. The Applicants appeared before the Tribunal by means of telephone on 11 June 2021 to give evidence and make submissions.

4. The Applicants were represented in relation to the review by Ms Carina Ford of Carina Ford Immigration Lawyers, of Footscray, Melbourne  Ms Ford also appeared before the Tribunal by means of telephone, and had provided detailed written submissions, dated 4 June 2021, which have now been taken into account by the Tribunal.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this review is whether the Applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 187.213 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).

7. 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 the Applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?

8. 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.

9. 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.

10. 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.

11. On 31 October 2016 the Applicant lodged an application for a Regional Sponsored Migration Scheme (Subclass 187 visa) in the direct entry scheme.    This visa application is linked to a nomination application for a position for a cook that had been lodged on 28 October 2016 by the Applicant’s current employer in Cairns, Far North Queensland. 

12. During an assessment of the visa application, Departmental Officers undertook checks of information that had been provided by the Applicant, in support of her visa application.  Part of that supporting documentation included a resume that indicated that the Applicant had previously worked for Legion Quest Pty Ltd ATF Silvers Discretionary Trust, trading as the Marquee Entertainment Luncheon Club/Marquee Club in Melbourne in September and October 2016, and the Marquee Bar and Lounge ‘from September 2016 until present’ (‘the Marquee Club’).  Previously the Applicant had also been granted a 457 visa on the basis of her working as a cook for this particular employer.

13. In 2018 enquiries were undertaken by departmental officers to confirm the fact of this prior employment.  Enquiries made with the Marquee Club as the sponsoring employer for the 457 visa suggested that the Marquee Club was unaware of the identity of the Applicant, such that a preliminary view was formed within the Department that the Applicant’s declarations regarding her employment, and her resume, were false and misleading in a material particular.  On 27 June 2018 the Department wrote to the Applicant advising her of these things and affording her 28 days within which to provide comment.  The Applicant did so by means of a statutory declaration declared by her on 19 July 2018, and provided to the Department on 25 July 2018.  Therein, the Applicant declared the following:

    ·That she had been sponsored for a 457 visa by the Marquee Club, and that Top Career Recruitment had assisted her to find that sponsoring employer.  The Applicant was given an employment contract by Top Career Recruitment that had already been signed by a Mr Nasser, a Director of the Marquee Club on 10 September 2015.  

    ·The 457 visa application was lodged on the Applicant’s behalf by YABS Migration. Two registered migration agents a Mr Zack Ristov (AKA Zlatko Ristov) and a Mr Mubashar Ahmed Nizamani were involved with that lodgement.  These agents had provided a copy of the employment contract signed by Mr Nasser on 10 September 2015 to the department as part of the 457 visa application.

    ·After that 457 visa had been granted, the Applicant contacted the Marquee Club and arranged to meet with Mr Nasser regarding the commencement of her employment.  At that meeting Mr Nasser gave the Applicant a second contract of employment, and advised the Applicant that she would be contacted again, once she was put on the roster.  The Applicant did not look at the second contract at the time when was given to her and thought it was only for the purposes of her retaining it as part of her own records.  The second contract is the one that the Applicant subsequently provided to the Department, on 25 July 2018.

    ·The Applicant commenced her employment at the Marquee Club in the last week of September 2016.  At that time she was told that she would initially need to undertake unpaid shifts, as a form of training.  The Applicant did this unpaid work in the last week of September and the first week of October 2016 whilst remaining hopefulthat after that she would be paid.  The Applicant was then given the work roster for the next fortnight which showed the Applicant as having been rostered for a few further shifts in the second and third week of October 2016.  However, the Applicant says that Mr Nasser also told the Applicant at this time that she would have to do these further shifts on an unpaid basis as well, “until she had learned everything”.  Mr Nasser also told the Applicant that if she did not comply and work unpaid in the manner that was now expected, that her visa would be cancelled.  The Applicant complied with that direction to undertake more shifts on an unpaid basis yet continued to inquire of her employer when she would start her paid employment.  At that time Mr Nasser told the Applicant that the Marque Club could no longer afford to employ her.

    ·The Applicant’s resume was prepared by her in September 2016 and the 187 visa application was lodged on her behalf on October 2016.  At that time she was employed by the Marquee Club, yet had not been paid for any of her work.

    ·Subsequently, when contacted by the Department on 27 June 2018 about these matters the Applicant contacted Zlatko Ristov and Mubashar Ahmed Nizani, yet each of them have denied ever having previously known of her, or of their having acted for her as migration agents.

14. In her evidence before the Tribunal the Applicant stated that as soon as it became apparent to her that her employment at the Marquee Club was tenuous, she immediately commenced the process of looking for alternative employment, and prepared her resume accordingly.  The Applicant says that where her resume says that she worked for the Marquee Club ‘from September 2016 – current’ that was an accurate statement as at the date when her resume was prepared. 

15. In October 2016 the Applicant was able to secure alternate paid employment.  On 28 October 2016 the Applicant’s current employer, ‘Perrotta’s at the Gallery Pty Ltd’ located in Cairns Far North Queensland lodged a subclass 187 nomination application on behalf the Applicant.  Subsequently, on 31 October 2016, the Applicant lodged her subclass 187 visa application.

16. It is to be noted that the Department has made no findings or conclusions regarding the provision by the Applicant of bogus documents, as defined.  Accordingly, the Tribunal now approaches this review on the basis that this is not an issue of the hearing of this application for review.

17. The Tribunal accepts that the Applicant was employed by the Marquee Club for a short period yet in circumstances wherein the Applicant was treated in predatory fashion and never paid for her work by that employer.  Further, the Tribunal accepts that the Applicant immediately sought to find alternate employment when these circumstances became apparent to her and prepared her resume whilst still technically employed by the Marquee Club.  In these circumstances the Tribunal is not satisfied on the facts before it that the Applicant has not complied with PIC 4020(5) by her having provided information that was (a) either ‘false or misleading at the time when it was given’, and that is (b), ‘relevant to any of the criteria that the Minister may consider,’ when determining an application (Singh v Minister for Immigration and Border Protection [2019] FCAFC 22)

18. Therefore, the applicant meets PIC 4020(1).

    Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(1)?

19. 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 3 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).

20. There is no evidence before the Tribunal to suggest that a visa has previously been refused to the Applicant or a member of her family unit on the basis of a failure to satisfy PIC 4020(1). Therefore, PIC 4020(2) is met.

    Has the applicant satisfied the identity requirements?

21. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.  The Tribunal has seen a copy of the Applicant’s passport and is therefore satisfied as to the Applicant’s identity.  Therefore, the applicant meets PIC 4020(2A).

    Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?

22. PIC 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 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(2BA).  There is no evidence before the Tribunal that the Applicant or any member of her family unit have previously failed to satisfy PIC 4020(2A) Therefore PIC 4020(2B) is met.

23. On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl 187.213.

    DECISION

24. The Tribunal remits the applications for Regional Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 187 -  Regional Sponsored Migration Scheme visas:

    ·Public Interest Criterion 4020 for the purposes of cl 187.213 of Schedule 2 to the Regulations

    Andrew McLean Williams
    Member

    ATTACHMENT

    Migration Regulations 1994

    Schedule 4

    4020(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 1958

    s 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.

    …