Mall (Migration)

Case [2024] ARTA 843

MALL (MIGRATION) [2024] ARTA 843 (13 NOVEMBER 2024)

DECISION AND  

REASONS FOR DECISION

Applicant:Mr Rahul Mall

Respondent:  Minister for Home Affairs

Tribunal Number:  2214780

Tribunal:General Member A. Dronjic

Place:Melbourne

Date:  13 November 2024

Decision:The Tribunal sets aside the decision not to grant the applicant a Skilled Independent (Permanent) visa and substitutes a decision that the applicant’s Skilled Independent (Permanent) visa application was invalid.

Statement made on 13 November 2024 at 2:53pm

CATCHWORDS

MIGRATION – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 Skilled – Independent – bogus documents – education and employment documents – fraud allegations against former migration agents – natural justice not afforded – gap in studies – family illness – decision under review remitted as visa application was invalid

LEGISLATION

Administrative Review Tribunal Act 2024, s 105
Migration Act 1958, ss 5(1), 5C, 47, 57, 65, 98
Migration Regulations 1994, Schedule 2, cl 189.211; Schedule 4, Public Interest Criterion 4020

CASES

Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Gill v Minister for Immigration and Border Protection [2016] FCAFC 142
Maharjan v MIBP [2017] FCAFC 213
Palikhe v MIBP [2014] FCCA 1875
Salopal v MIBP [2018] FCA 1308
Singh v MIBP [2015] FCCA 2776
Singh v MIMAC [2013] FCCA 1435
Sran v MIBP [2014] FCCA 37
Sun v MIBP [2016] FCAFC 52
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189
Trivedi v MIBP [2014] FCAFC 42      

STATEMENT OF 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 19 September 2022 to refuse to grant the visa applicant a Skilled Independent (Permanent) Subclass 189 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

  2. The visa applicant applied for the visa on 28 April 2020. 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 189.211 of Schedule 2 to the Migration Regulations 1994 (Cth).

  3. The delegate also considered whether there are compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, that justify the grant of the visa and found that the provisions for waiving the requirements of PIC 4020(1) were not met by the applicant.

  4. According to the primary decision record, with his visa application the applicant provided documentary evidence of completing a Professional Year Program at Australian Technical & Management College on 25 September 2018. As a result of Departmental verification, it was revealed that the applicant was never enrolled in a Professional Year Program at that college.

  5. On 5 September 2021, the applicant provided a Skilled Employment Assessment from CPA Australia dated 3 September 2021, stating that between February 2019 and August 2021, the applicant obtained work experience as an External Auditor at Vaasu Tax…

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AGLC
Mall (Migration) [2024] ARTA 843
Case
[2024] ARTA 843
Decision Date

CaseChat Overview and Summary

The case involves an applicant contesting the Department's decision to deny their Skilled Independent (Permanent) visa application under subclass 189. The matter was reviewed by the Administrative Appeals Tribunal (AAT). The primary dispute centres on whether the applicant provided false or misleading information or documents, in violation of the criteria outlined in the Migration Regulations 1994, specifically PIC 4020. The applicant alleges that previous migration agents provided false information, which the Department used to deny the application. The Tribunal was tasked with determining whether the applicant's visa application was valid and if the Department's decision was justified.

The legal issues the Tribunal addressed include whether the applicant had provided any false or misleading information or bogus documents, as defined under the Migration Act 1958 and the Migration Regulations 1994. The Tribunal also considered whether the applicant's previous refusals for visa applications due to failure to meet PIC 4020 criteria should be taken into account. Additionally, the Tribunal examined whether natural justice was afforded to the applicant during the previous visa application process and if there were any compelling or compassionate reasons that should warrant a waiver of the PIC 4020 requirements.

The Tribunal concluded that the applicant's visa application was invalid due to the submission of false or misleading information by former migration agents, which the Department relied upon in denying the application. The Tribunal found that the applicant did not receive natural justice during the previous visa application process and that the allegations of fraud against the migration agents were substantiated. The Tribunal also noted that the applicant had a gap in their studies and experienced family illness, but these factors did not outweigh the primary issue of the submission of false documents. Consequently, the Tribunal set aside the Department's decision and ruled that the applicant's visa application was invalid.

The final orders of the Tribunal include setting aside the Department's decision not to grant the applicant a Skilled Independent (Permanent) visa and substituting this with a decision that the applicant's visa application was invalid. The Tribunal noted that the applicant would no longer be able to rely on the previously issued invitation to apply for this visa due to the expiration of the six-month period from the date of invitation. The applicant was advised that they may be able to submit a new expression of interest to the Department and, if successful, apply for the visa within the specified period if a new invitation is received.

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 decided that the Department’s decision of 19 September 2022 be set aside and substituted with the decision that the applicant’s Skilled Independent (Permanent) visa application was invalid.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this review is whether the applicant meets PIC 4020 as required by cl 189.211 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). 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.

Decision

Reasons for decision

The Tribunal is mindful that the applicant will no longer be able to rely on the previously issued invitation to apply for this visa, as the visa application must be lodged within six months from the date of invitation. The applicant may be able to submit a new expression of interest to the Department and if he receives a new invitation to apply, do so within the specified period.DECISION The Tribunal sets aside the decision not to grant the applicant a Skilled Independent (Permanent) visa and substitutes a decision that the applicant’s Skilled Independent (Permanent) visa application was invalid.Date(s) of hearing: 7 November 2024ATTACHMENTMigration 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 ART 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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