Manjinder Singh (Migration)
[2021] AATA 3858
•20 September 2021
Manjinder Singh (Migration) [2021] AATA 3858 (20 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Manjinder Singh
CASE NUMBER: 1833573
HOME AFFAIRS REFERENCE(S): BCC2016/2178821
MEMBER:John Cipolla
DATE:20 September 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) visa.
Statement made on 20 September 2021 at 3:54pm
CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – misleading information with the visa application – no approved nomination – sponsor’s ownership changed – stated purpose of a Bridging B visa – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 65, 359
Migration Regulations 1994, Schedule 2, cls 187.213; Schedule 4, Public Interest Criterion 4020; rr 1.03, 1.13, 5.19CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
Trivedi v MIBP [2014] FCAFC 42STATEMENT 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 7 November 2018 to refuse to grant the applicant a Regional Employer Nomination (Permanent) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 27 June 2016. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 187.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the Department found that the applicant had provided false and misleading information to the Department when he applied for a Bridging B visa in 2016.
The Department noted that a Bridging B visa is granted to a person when there is an important reason for a visa applicant to leave Australia, such as the serious illness of a family member. The applicant stated in his Bridging visa application that the reason he sought a Bridging B visa was to visit his seriously ill mother in India. The applicant did not travel to India, but travelled to Fiji, for the purpose of lodging his Subclass 187 visa which he needed to lodge off-shore. This fact came to the attention of officers at Sydney airport upon his return to Australia. The applicant is recorded to have said to Border Force officers at the airport that he travelled to Fiji as he needed to lodge a visa application offshore.
The applicant appeared before the Tribunal on 6 August 2021 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent.
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 visa applicant meets Public Interest Criterion 4020 (PIC 4020) of Schedule 4 to the Regulations 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); 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 three 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.
Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in 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.
The applicant advised at the review hearing that he has been in Australia since 2009. The applicant advised that he came to Australia as the holder of a Student visa and that he studied hospitality management and commercial cookery. The applicant advised that in 2011 he made an application for a Subclass 485 Skilled visa with the assistance of a lawyer and that the visa was refused. The applicant advised that he applied for review to the then Migration Review Tribunal and that the Departmental decision was affirmed at review. The applicant then applied for a Subclass 457 visa in approximately 2013 to work as a Cook in an Indian Restaurant in Quakers Hill. The applicant advised that the business then closed down. The applicant advised that he applied for a Student visa which was granted and that he completed a Diploma of Human Services. The applicant applied for an extension of his Student visa which was refused and the applicant sought merits review in the AAT. As his application was lodged out of time it was refused on the basis of lack of jurisdiction.
The applicant stated that he lodged an application for a Subclass 187 visa in 2016 to work for Indian Pantry in Florey in the Australian Capital Territory. The applicant stated that he worked for this business between June 2016 and August 2019. The applicant advised however that in August 2019, the business was sold, and he ceased working for the business. The Tribunal questioned the applicant about his work history from August 2019 and the applicant advised that he worked for Australia Post as a Courier in the Australian Capital Territory until February 2021. The applicant then recommenced work as a Cook for the new owner of Indian Pantry restaurant in March 2021.
The Tribunal discussed with the applicant the PIC 4020 issue. The applicant advised that he regularly communicated with his family in India. His mother advised that she was ill in 2016 and may require surgery. The applicant advised that he applied for a Bridging B visa on that basis to enable him to travel to India to visit his mother. The applicant advised that his mother told him just prior to his departure that she had improved and did not need an operation at that point in time. The applicant stated that he went to Fiji to prepare and lodge his Subclass 187 visa application. The applicant stated that his mother recovered and had indeed visited him in Australia in 2019. The Tribunal noted that Departmental records indicated that when the applicant returned to Australia from Fiji he was questioned by Departmental officers at Sydney airport. The Tribunal noted that the applicant was recorded as saying that he went to Fiji to lodge his Subclass 187 application. The applicant was invited to comment on this. The applicant stated that he could not remember the conversation properly.
The Tribunal discussed with the applicant the waiver of PIC 4020. The applicant stated that he worked for an extended period for Indian Pantry under its former owner. The applicant stated that because of COVID-19 it was difficult for businesses to access qualified Cooks. The applicant stated that he commenced working for the new owner of Indian Pantry in February 2021. The applicant believed that the business would struggle if he was no longer able to be employed by it.
The Tribunal noted that it had received a submission pertaining to the review on the morning of the hearing from the applicant’s representative and that the Tribunal had reviewed and considered the submission. The Tribunal noted that the submission indicated that the applicant had ceased working for the nominating business, Indian Pantry Pty Ltd, in 2019 and that the business had been sold and changed hands. The applicant only recommenced working for the new business as a Cook in March 2021. The Tribunal raised with the applicant and his representative at the hearing that the Regulations pertaining to the grant of a Subclass 187 visa specify that the position to which the application relates is the position nominated in the application for approval by the nominating business and identifies the applicant in relation to that position. The Tribunal advised that if the business had been sold and indeed changed hands since the time of application that this meant the applicant may not meet relevant time of decision criteria relevant to the grant of the visa. The Tribunal advised that in this respect that it would write to the applicant post hearing inviting him to comment on adverse information that may lead the Tribunal to affirm the decision under review.
The Tribunal wrote to the applicant under s 359A of the Act on 10 August 2021.
The letter made reference to time of decision criteria that requires that the position to which the application relates is the position nominated in the application for approval by the nominating business. The Tribunal in its letter of 10 August inserted cl 187.223 of Schedule 2 to the Regulations which relates to the Temporary Transition stream. The applicant’s application for a Subclass 187 visa was made in the Direct Entry Stream and thus the applicable regulation is cl 187.233. The letter was re-sent to the applicant inserting the correct regulatory provision, namely cl 187.233, on 31 August 2021. A response to the re-issued letter was due on 14 September 2021. The Tribunal received a response on 14 September 2021 in which the applicant’s representative stated that the applicant relied on his earlier response along with an additional submission dated 10 September 2021 which has been duly considered. The updated response conceded the following:
It is accepted that Visa applicant may not be able to meet criteria relevant to the grant of a Subclass 187 visa in the Direct Entry Stream under cl.187.233. It is noted that same nominated position of Cook in the same restaurant is currently filled by the visa applicant and available for him permanently, but through a new owner. Visa applicant is confident to meet the new nomination requirements under the same visa stream, but Visa Subclass 187 is closed for new nominations and visa applications.
Clause 187.233 requires as follows:
(1) The position to which the application relates is the position:
(a) nominated in an application for approval that:
(i) identifies the applicant in relation to the position; and
(ii) is made in relation to a visa in a Direct Entry stream; and
(iii) seeks to meet the requirements of subregulation 5.19(12); and
(b) in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.
(2) The person who will employ the applicant is the person who made the nomination.
(3) The Minister has approved the nomination.
(4) The nomination has not subsequently been withdrawn.
(4A) Either:
(a) there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or
(b) it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.
(5) The position is still available to the applicant.
(6) The application for the visa is made no more than 6 months after the Minister approved the nomination.
The 359A letter noted that this information may lead the Tribunal to affirm the decision under review as it indicates that as a result of the change of ownership of the business, the position to which the application relates for the Subclass 187 visa was no longer available to the applicant as a consequence of the change of business ownership.
The evidence before the Tribunal indicates that the applicant has held multiple visas in Australia since 2009. The evidence indicates that the applicant applied for a Bridging B visa in 2016 with the sole purpose of travelling overseas to visit his mother in India who was ill at the time. The applicant did not travel to India as per the purpose of his visa. The applicant departed Australia to Fiji for the sole purpose of lodging his Subclass 187 visa offshore as he was precluded from lodging it from within Australia. The applicant has claimed that his mother improved at this time and did not require surgery, and for this reason he did not travel to India. The Tribunal does not accept this evidence.
The Bridging B visa was only granted on the basis that the applicant had an important reason for leaving Australia and the Department accepted that the illness of his mother in India was such a reason. The evidence indicates that when the applicant re-entered Australia from Fiji he was questioned by Departmental officers and he is recorded as saying that he went to Fiji to lodge his Subclass 187 visa. It is highly unlikely that a Bridging B visa would be issued on the basis of the applicant wishing to lodge a visa application offshore. The Tribunal accepts that evidence has been provided which indicates that the applicant’s mother had medical issues in India in June 2016, but those issues were not of the gravity expressed by the applicant when he applied for the Bridging B visa and the evidence indicates that the applicant’s sole objective in applying was to enable him to lodge a visa application offshore. This is confirmed by the short duration of time the applicant spent in Fiji (two days) and is corroborated by Departmental officers’ notations upon the applicant’s re-entry to Australia where he was questioned at the airport.
The Tribunal finds that there is evidence before it that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth information that is false or misleading in a material particular and this was clearly relevant to the criteria that the Department considered when they granted the applicant a Bridging B visa.
Therefore, the applicant does not meet PIC 4020(1).
Should the requirements of PIC 4020(1) or (2) be waived?
The requirements of PIC 4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in reg 1.03 of the Regulations), that justify the granting of the visa. The decision-maker must first be satisfied that there are such circumstances, then must consider whether to exercise the discretion to waive the requirements, having regard to those circumstances: Kaur v MIBP [2017] FCAFC 184.
The expressions ‘compelling circumstances’ and ‘compassionate or compelling circumstances’ are not defined for these purposes. To be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied: see Plaintiff M64/2015 v MIBP [2015] HCA 50. The ordinary meaning of ‘compassionate’ relates to feelings of sympathy, sorrow, pity or concern for others.
It is immaterial in the context of this case as to whether or not the requirements of PIC 4020 should be waived as the applicant is not able to meet other time of decision criteria relevant to the grant of the visa for the reasons that follow.
Clause 187.233 as applicable in this case requires that the position to which the application relates is the subject of an application for approval of a nomination in the Direct Entry stream that identifies the visa applicant. The position must be the one that was the subject of the declaration made as part of the current visa application.
Nomination of a position
Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.
In addition, this criterion also requires that:
·the person who will employ the applicant is the person who made nomination; the nomination has been approved and has not been subsequently withdrawn; there is no 'adverse information' known to Immigration about the person who made the nomination or a person 'associated with' that person (within the meaning of reg 1.13A and reg 1.13B of the Regulations); or it is reasonable to disregard any such information;
·the position is still available to the applicant; and
·the visa application was made no more than six months after the nomination of the position was approved.
The Tribunal notes that it is a requirement for the Direct Entry stream (cl 187.233) that the position to which the visa application relates is the position in relation to which the declaration mentioned in cl 1114B(3)(d) of Schedule 1 to the Regulations was made. It is clear that this requirement could not be satisfied by a later nomination made by a different employer.
On the basis of the above, the applicant does not satisfy the requirements of cl 187.233 of Schedule 2 to the Regulations.
DECISION
The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) visa.
John Cipolla
Senior MemberATTACHMENT
Migration Regulations 1994
Schedule 4
4020(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 1958
s 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.
…
187.233
(1) The position to which the application relates is the position:
(a) nominated in an application for approval that seeks to meet the requirements of:
(i) subparagraph 5.19(4)(h)(ii); or
(ii) subregulation 5.19(4) as in force before 1 July 2012; and(aa) in relation to which the applicant is identified in the application under subparagraph 5.19(4)(a)(ii); and
(b) in relation to which the declaration mentioned in paragraph 1114C (3)(d) of Schedule 1 was made in the application for the grant of the visa.
(2) The person who will employ the applicant is the person who made the nomination.
(3) The Minister has approved the nomination.
(4) The nomination has not subsequently been withdrawn.
(4A) Either:
(a) there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or(b) it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.
(5) The position is still available to the applicant.
(6) The application for the visa is made no more than 6 months after the Minister approved the nomination.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Natural Justice
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Jurisdiction
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