Maduagwu (Migration) - [2024] AATA 3194

Maduagwu (Migration) [2024] AATA 3194 (6 August 2024)
DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Mr Ikenna Nnamdi Maduagwu
CASE NUMBER:  2303177
HOME AFFAIRS REFERENCE(S):          BCC2021/1356350
MEMBER:Kate Millar
DATE:6 August 2024
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the application for a Skilled Work Regional (Provisional) (Class PS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 491 - Skilled Work Regional (Provisional) visa:
·Public Interest Criterion 4020 for the purposes of cl 491.211 of Schedule 2 to the Regulations

Statement made on 06 August 2024 at 10:56am
CATCHWORDS
MIGRATION – Skilled Work Regional (Provisional) (Class PS) visa – Subclass 491 (Skilled Work Regional (Provisional)) – Glazier – bogus document – Nigerian bank account statements – false or misleading information – work reference – waiver of requirement – compelling or compassionate circumstances affecting Australian citizens – employment as a disability support worker – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 491.211; Schedule 4, PIC 4020
CASES
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

Mr Maduagwu is a citizen of Nigeria who first came to Australia in 2016 as a student. He applied for a Skilled Work Regional (Provisional) (Class PS) visa on 3 July 2021 the basis of his skills as a glazier. In his visa application, he claimed to have at least 36 months of overseas employment experience as a glazier in the period June 2011 to June 2021.
His visa application was refused by a delegate of the Minister for Home Affairs because the delegate found there was evidence that Mr Maduagwu had provided bogus documents in the form of Nigerian bank account statements showing deposits of purported wages from Stainless Villa Fabrications, and false or misleading information in a work reference from Stainless Villa Fabrications. These documents and the information contained in them are relevant to his experience as a glazier.
Mr Maduagwu argues that these are not bogus documents and that he has not provided false and misleading information. In the alternative, he submits that, if he has provided impugned documents or information, there are compassionate or compelling reasons that affect the interests of Australian citizens that justify the grant of the visa.
Mr Maduagwu appeared before the Tribunal on 10 July 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Maduagwu’s friend Ms Jamila Hussain, and parents of children for whom he provides care, Ms Anita Joslin and Ms Alicia Brown.
CONSIDERATION OF CLAIMS AND EVIDENCE
This is an application for review of a decision made by a delegate of the on 27 February 2023 to refuse to grant Mr Maduagwu a visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Mr Maduagwu applied for the visa on 3 July 2021, and the requirements for the grant of a Subclass…

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 Maduagwu (Migration)

Details

AGLC: Maduagwu (Migration) [2024] AATA 3194
Case: [2024] AATA 3194
Decision Date: 6 August 2024

CaseChat Overview and Summary

This matter concerned an application for review of a decision by a delegate of the Minister to refuse Mr Maduagwu a Skilled Work Regional (Provisional) (Class PS) visa, Subclass 491. Mr Maduagwu had applied for the visa on 3 July 2021, and the delegate's refusal on 27 February 2023 was based on the applicant's failure to meet Public Interest Criterion (PIC) 4020, as required by clause 491.211 of Schedule 2 to the Migration Regulations 1994. The central issue before the Tribunal was whether Mr Maduagwu met PIC 4020.

The Tribunal was required to determine whether there was evidence that Mr Maduagwu had provided a bogus document or information that was false or misleading in a material particular in relation to his visa application. PIC 4020, as it applied to Mr Maduagwu, stipulated that there must be no such evidence, unless the requirement could be waived based on compelling circumstances affecting Australia's interests or compassionate or compelling circumstances affecting an Australian citizen, permanent resident, or eligible New Zealand citizen. The definition of a "bogus document" under section 5 of the Migration Act 1958 was also relevant, encompassing documents that purport to have been issued but were not, are counterfeit or altered without authority, or were obtained due to a false or misleading statement, irrespective of the applicant's knowledge.

The Tribunal considered the evidence presented, including Nigerian bank statements provided by Mr Maduagwu to support his claim of three years of overseas employment as a glazier. These statements showed monthly deposits from "Stainless Villa Fab." for various periods between 2013 and 2016. The Tribunal noted that it was not necessary for an applicant to have "knowing complicity" for PIC 4020 to be met, but the documents must possess a purposeful falsity. However, the Tribunal found no information before it indicating that Mr Maduagwu had previously been refused a visa due to a failure to meet PIC 4020(2A), and PIC 4020(2B) was not applicable.

Consequently, the Tribunal remitted the application for reconsideration with a direction that Mr Maduagwu met the criteria for the Subclass 491 visa, specifically PIC 4020 for the purposes of clause 491.211 of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Maduagwu appeared before the Tribunal on 10 July 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Maduagwu’s friend Ms Jamila Hussain, and parents of children for whom he provides care, Ms Anita Joslin and Ms Alicia Brown.CONSIDERATION OF CLAIMS AND EVIDENCE This is an application for review of a decision made by a delegate of the on 27 February 2023 to refuse to grant Mr Maduagwu a visa under s 65 of the Migration Act 1958 (Cth) (the Act). Mr Maduagwu applied for the visa on 3 July 2021, and the requirements for the grant of a Subclass 491 visa at that time are set out in Part 491 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate refused to grant the visa on the basis that Mr Maduagwu did not meet the requirements of cl 491.211 of Schedule 2 of the Regulations because he did not meet Public Interest Criterion 4020 (PIC 4020). The issue in this review is whether Mr Maduagwu meets PIC 4020 as required by cl 491.211. As it applies to Mr Maduagwu, PIC4020 requires that:(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) .. This requirement may be waived in accordance with PIC 4020(4) where the Minister, and the Tribunal in the place f the Minister, is 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. The first issue to be decided is whether there is no evidence Mr Maduagwu has provided a bogus document or information that is false or misleading in a material particular.Has Mr Maduagwu provided a bogus document? The term ‘bogus document’ is defined in s 5 of the Act as: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. It is not necessary to having “knowing complicity” on the part of a visa applicant for PIC 4020 to be met,[1] however the documents must have the necessary quality of purposeful falsity, whether or not the applicant has knowledge that the information is untrue.[1] Ibid [43] and [49]. Mr Maduagwu was asked to provide further information to establish his claims that he had 3 years of overseas employment as a glazier. He provided bank statements for an account with account number ending 9974 from the United Bank of Africa (UBA) showing monthly deposits from “Stainless Villa Fab.” for the periods:· 2 October 2013 to 29 December 2013; · 2 October 2014 to 28 December 2014;· 2 October 2015 to 28 December 2015; and· 2 January 2016 to 29 March 2016.

Decision

Reasons for decision

There is no information before me to show Mr Maduagwu has previously been refused a visa because of a failure to meet PIC 4020(2A), and PIC 4020(2B) does not apply.DECISION The Tribunal remits the application for a Skilled Work Regional (Provisional) (Class PS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 491 - Skilled Work Regional (Provisional) visa:·Public Interest Criterion 4020 for the purposes of cl 491.211 of Schedule 2 to the Regulations Kate MillarDeputy PresidentATTACHMENTMigration 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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