Kulvinder Singh (Migration) - [2021] AATA 3457

Kulvinder Singh (Migration) [2021] AATA 3457 (1 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Kulvinder Singh
CASE NUMBER:  1833044
HOME AFFAIRS REFERENCE(S):          BCC2017/4624924
MEMBER:Antonio Dronjic
DATE:1 September 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for a Skilled Nominated (Permanent) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 190 – Skilled – Nominated visa:
·Public Interest Criterion 4020 for the purposes of cl 190.216 of Schedule 2 to the Regulations.

Statement made on 01 September 2021 at 11:07am

CATCHWORDS
MIGRATION – Skilled Nominated (Permanent) visa – Subclass 190 Skilled - Nominated – purposefully false and misleading information in work experience documents – skilled occupation of Chef – supporting statements by employer and work colleagues – probative evidence – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 190.214, 190.216; Schedule 4 Public Interest Criterion 4020
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Bushell v Minister for Immigration and Citizenship & Anor [2008] FMCA 1193
Kaur v MIBP [2014] FCCA 1264
Sharma v Minister for Immigration and Multicultural Affairs and Citizenship [2013] FCCA 1280
Singh v MIAC [2012] FMCA 145
Singh v MIBP [2018] FCCA 1136
Sran v Minister for Immigration and Border Protection [2014] FCCA 37
Talukder v MIAC & Anor [2009] FMCA 223
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 2 November 2018 to refuse to grant the applicant a Skilled Nominated (Permanent) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 5 December 2017. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of Public Interest Criterion (PIC) 4020(1) for the purposes of meeting cl 190.216 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The delegate formed a reasonable suspicion that the applicant gave false and misleading information in his work experience documents to the Department in relation to his visa application.
At page 7 of the primary decision record, the delegate inter alia wrote:
Due to the discrepancies and the lack of meaningful evidence provided by the applicant
in response, on balance I am not satisfied that the applicant worked at Madeline’s at Jells,
Australia as claimed. Specifically, I am satisfied the visa application form, work reference letter dated 13 July 2017 and associated evidence of remuneration such as payment summaries, superannuation statement as well payslips (amended and previous) provided contain false or misleading information. I am also satisfied this information was provided to the Department to claim for Australian skilled migration points, which is in a material particular to Regulation 190.214. Therefore, based on the evidence and information before me, I am not satisfied that 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 Kulvinder Singh (Migration)

Details

AGLC: Kulvinder Singh (Migration) [2021] AATA 3457
Case: [2021] AATA 3457
Decision Date: 1 September 2021

CaseChat Overview and Summary

This matter concerned an application for a Skilled Nominated (Permanent) visa (Subclass 190) by Kulvinder Singh. The central dispute revolved around whether the applicant had provided purposefully false and misleading information in relation to their work experience documents, which were intended to support their claim for the skilled occupation of Chef. The case was heard by the Tribunal.

The legal issue before the Tribunal was whether the applicant met Public Interest Criterion (PIC) 4020, as required by clause 190.216 of the Migration Regulations 1994. Specifically, the Tribunal had to determine if there was evidence that the applicant had provided a bogus document or information that was false or misleading in a material particular in relation to their visa application. The Tribunal also considered the definitions of "bogus document" and "information that is false or misleading in a material particular" as provided in the Migration Act 1958 and the Migration Regulations 1994, respectively.

The Tribunal reasoned that while PIC 4020 requires that no bogus document or false or misleading information be provided, it does not necessitate a finding that the applicant was aware the information was untrue. However, an element of fraud or deception by some person is required for the provision to apply. In this instance, the Tribunal concluded that the applicant did satisfy PIC 4020 for the purposes of clause 190.216.

Consequently, the Tribunal remitted the application for a Skilled Nominated (Permanent) visa for reconsideration, with a direction that the applicant meets the requirements of PIC 4020 for the Subclass 190 visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

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 PIC 4020 as required by cl 190.216 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 and marked as Attachment C.Has the applicant given, or caused to be given, a bogus document or information that is false or misleading in a 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 Attachment C 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 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

Based on the above, the applicant does satisfy PIC 4020 for the purposes of cl 190.216.DECISION The Tribunal remits the application for a Skilled Nominated (Permanent) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 190 – Skilled – Nominated visa:·Public Interest Criterion 4020 for the purposes of cl 190.216 of Schedule 2 to the Regulations. Antonio DronjicMemberAttachment A: Document List·Submissions from Kulvinder Singh’s representative dated 29 August 2018·Statutory Declaration by Kulvinder Singh dated 29 August 2018 ·Statutory Declaration by Christine Vrondis dated 27 August 2018·Statutory Declaration by Shannon James Nealon dated 27 August 2018·Letter from PND Accountants dated 23 August 2018·Letter from Christine Vrondis dated 27 August 2018·Letter from Shannon Nealon dated 27 August 2017·Commonwealth Bank Statements (Kulvinder Singh) for the period 1 November 2015 to 10 October 2017 ·Commonwealth Essential Superannuation Statement (Kulvinder Singh) for the periods: o1 January 2016 to 30 June 2016o1 July 2016 to 31 December 2016o1 January 2017 to 30 June 2017o1 July 2017 to 31 December 2017·PAYG payment summaries (Kulvinder Singh) for the years ending: o30 June 2016o30 June 2017o30 June 2018·Payroll advice from Yasoutov Pty Ltd (Kulvinder Singh) for the period 7 December 2015 to 5 February 2017·Payroll advice from Yasoutov Pty Ltd (Kulvinder Singh) for the period 27 February 2017 to 17 September 2017·Email correspondence from Kulvinder Singh’s representative to the Department of Home Affairs dated 29 August 2018·Facebook page screenshots of posts made by Madeline’s at JellsAttachment B: Document List·Submissions from Kulvinder Singh’s representative dated 21 August 2021·Statutory Declaration by Mary Kathlene Ross dated 29 July 2021 ·Statutory Declaration by Kulvinder Singh dated 22 August 2021·Letter of explanation from PND Accountants dated 7 July 2021·Payroll advice from Yasoutov Pty Ltd (Kulvinder Singh) for the periods: o20 June 2016 to 26 June 2016o19 June 2017 to 25 June 2017o11 September 2017 to 17 September 2017·PAYG payment summary (Kulvinder Singh) for the years ending: o30 June 2016o30 June 2017o30 June 2018·Individual tax return (Kulvinder Singh):o2015–16 o2016–17 o2017–18 ·Essential Superannuation Statement (Kulvinder Singh) dated 17 August 2021 ·Farewell cards·Notices of Assessment for the years ending: o30 June 2016o30 June 2017o30 June 2018·Tax return (Kulvinder Singh):o2015–16 o2016–17 o2017–18 ·Photographs of the applicant in a commercial kitchen·Group photographs including the applicantAttachment CMigration 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

Full text does not contain this section.