Kharbanda (Migration)

This matter concerned an application for a Skilled Nominated (Permanent) visa (Subclass 190) by Mr. Kharbanda. The core dispute revolved around whether the applicant had provided false or misleading information in relation to his overseas employment experience, thereby potentially failing to meet Public Interest Criterion (PIC) 4020. The decision was made by a member of the Tribunal, Roslyn Smidt.

The legal issue before the Tribunal was whether the applicant met PIC 4020(1), which requires that there be no evidence of the applicant having provided a bogus document or information that is false or misleading in a material particular in relation to the visa application or a previous visa held within 12 months. The Tribunal was required to consider the applicant's claimed employment at three dental clinics in India and the evidence gathered by the Department, including departmental site visits and inquiries made to the applicant's claimed employers.

The Tribunal reasoned that while the definition of a "bogus document" includes documents obtained due to a false or misleading statement, regardless of relevance to a visa criterion, PIC 4020(1) specifically refers to information that is false or misleading in a material particular in relation to the application. The Tribunal noted that for PIC 4020 to be engaged, an element of fraud or deception by some person is necessary. In this instance, the Tribunal found that the applicant satisfied PIC 4020(1).

Consequently, the Tribunal remitted the applications for Skilled Nominated (Permanent) visas for reconsideration, directing that the first named applicant meets PIC 4020(1) for the purposes of clause 190.216 of Schedule 2 to the Regulations.