Macatangay (Migration) - [2021] AATA 3492

Macatangay (Migration) [2021] AATA 3492 (27 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Joel Macatangay
Mrs Susan Macatangay
Mr Mark Justine Macatangay
Miss Shane Jewel Macatangay
Mr Bryle Dustin Macatangay
Miss Mikaela Sandy Macatangay
Miss Samantha Jill Macatangay
CASE NUMBER:  1836655
HOME AFFAIRS REFERENCE(S):          BCC2017/814926
MEMBER:Penelope Hunter
DATE:27 August 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) visas.
Statement made on 27 August 2021 at 2:10pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) visa – Subclass 187 Regional Sponsored Migration Scheme – bogus document with the visa application – false educational qualifications – compelling or compassionate circumstances – financial hardship – paying income tax – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 65, 359
Migration Regulations 1994, Schedule 2, cls 187.213, 187.223; Schedule 4, Public Interest Criterion 4020; r 1.03
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Mudiyanselage v MIAC [2012] FMCA 887
Trivedi v MIBP [2014] FCAFC 42
Vyas v MIMAC [2013] FCCA 1226
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 10 December 2018 to refuse to grant the applicants Regional Employer Nomination (Permanent) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 1 March 2017. 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 delegate found that Public Interest Criterion (PIC) 4020 was not met. A copy of the delegate’s decision was provided to the Tribunal with the application for review.
The first named applicant (the applicant) is the primary applicant for the visa. The remaining applicants had applied for the visa on the basis of being a member of his family unit. The applicant appeared before the Tribunal on 20 August 2021 by video conference to give evidence and present arguments. The applicant was supported at the hearing by his friend, Peter Trewick.
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 applicant meets 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).
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 Macatangay (Migration)

Details

AGLC: Macatangay (Migration) [2021] AATA 3492
Case: [2021] AATA 3492
Decision Date: 27 August 2021

CaseChat Overview and Summary

This matter concerned an application for a Regional Employer Nomination (Permanent) visa (Subclass 187). The applicant sought review of the decision to refuse the visa. The primary issue before the Tribunal was whether the applicant had provided a bogus document or false or misleading information in relation to the visa application, thereby engaging the requirements of Public Interest Criterion (PIC) 4020.

The Tribunal was required to determine whether the applicant had given, or caused to be given, a bogus document or information that was false or misleading in a material particular, as defined by PIC 4020(1) and section 5(1) of the Migration Act 1958. The Tribunal also had to consider whether any compelling or compassionate circumstances existed that would justify waiving the requirements of PIC 4020(4).

The Tribunal found that the applicant had provided a transcript of record and a letter from Golden Gate College, Philippines, as evidence of English language ability. However, departmental checks revealed that the applicant was not recorded as a student at the college and the documents were not authentic. The Tribunal noted that the definition of a bogus document does not require the false statement to be relevant to a visa criterion, and that PIC 4020 applies regardless of whether the applicant provided the document knowingly or unwittingly, provided an element of fraud or deception by some person is present. The Tribunal was not satisfied that the requirements of PIC 4020(1) should be waived, finding no compelling or compassionate circumstances that justified granting the visa.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Regional Employer Nomination (Permanent) visa.

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 applicant meets 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). 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). 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 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 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 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. As part of the Subclass 187 visa application the applicant provided evidence of his English language ability which included some educational qualifications including a transcript of record from Golden Gate College, Batangas City, Philippines dated 8 April 2010 and a letter from the college Registrar confirming his enrolment and that his language of instruction was English. Departmental checks and investigations with Golden Gate College, revealed that there was no record of the applicant in the college records and the transcript of record was not authentic/genuine.

Decision

Reasons for decision

For the above reasons, the Tribunal is not satisfied that the requirements of PIC 4020(1) should be waived pursuant to PIC 4020(4). DECISION The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) visas.Penelope HunterMemberATTACHMENTMigration 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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