Patel (Migration) - [2023] AATA 3932

Patel (Migration) [2023] AATA 3932 (19 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Niravkumar Kishorbhai Patel
Mrs Tejaswini Niravkumar Patel
Master Rooshab Nirav Patel
Master Poorab Nirav Patel
REPRESENTATIVE:  Mr Navjot Kailay (MARN: 1790701)
CASE NUMBER:  2017214
HOME AFFAIRS REFERENCE(S):          BCC2018/160096
MEMBER:Antonio Dronjic
DATE:19 October 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Skilled (Residence) (Class VB) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 887 (Skilled – Regional) visa:
·Public Interest Criterion 4020 for the purposes of cl 887.223 of Schedule 2 to the Regulations.
·The Tribunal does not have jurisdiction in respect of the third named applicant.

Statement made on 19 October 2023 at 4:58pm
CATCHWORDS
MIGRATION – Skilled (Residence) (Class VB) visa – Subclass 887 (Skilled – Regional) – false or misleading information and bogus documents given in relation to visa application – work in specified regional area while holding previous visa – first applicant husband’s claimed employment in second applicant wife’s sole trader business – reference letter, payslips and PAYG statements – own part-time business with incomplete records – compelling or compassionate reasons to waive – current employment and skilled labour shortages – members of family unit – older child now Australian citizen and application withdrawn – best interests of child – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65, 376
Migration Regulations 1994 (Cth), Schedule 2, cls 887.213, 887.223, Schedule 4, criterion 4020(1)(a), (5)
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Bushell v MIAC [2008] FMCA 1193
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
Sharma v MIAC [2013] FCCA 1280
Sran v MIBP [2014] FCCA 37
Talukder v MIAC [2009] FMCA 223
Trivedi v MIBP [2014] FCAFC 42
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 November 2020 to refuse to grant the applicants Skilled (Residence) (Class VB) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 10 January 2018. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of Public Interest Criterion (PIC) 4020(2) for the purposes of cl 887.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
According to the primary decision record submitted by the applicant with his review application, the applicant was refused a visa because the delegate found the applicant has given to the Minister information that is false and misleading in relation to his claim of having worked full-time in a specified regional area for a total…

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 Patel (Migration)

Details

AGLC: Patel (Migration) [2023] AATA 3932
Case: [2023] AATA 3932
Decision Date: 19 October 2023

CaseChat Overview and Summary

The matter before the Tribunal concerned an application for a Skilled (Residence) (Class VB) visa, Subclass 887 (Skilled – Regional). The applicants were Mr. Patel and his wife, who sought to have the decision reviewed. The core of the dispute revolved around whether the first applicant had provided false or misleading information or bogus documents in relation to his visa application, specifically concerning his claimed employment in a specified regional area while holding a previous visa.

The Tribunal was required to determine whether the first applicant met Public Interest Criterion (PIC) 4020, which mandates that an applicant must not have provided false or misleading information or bogus documents in relation to their current or previous visa applications. The Tribunal also considered the provisions for waiving PIC 4020 requirements based on compelling or compassionate reasons, and the specific definitions of "bogus document" and "information that is false or misleading in a material particular" under the Migration Act 1958 and Migration Regulations 1994.

The Tribunal reasoned that, after considering the evidence presented, including updated forms, pay slips, tax documents, and business records, the first applicant satisfied PIC 4020 for the purposes of the Subclass 887 visa. The Tribunal noted that while there were initial concerns regarding employment claims, the subsequent submissions and documentation provided by the applicant addressed these issues. The Tribunal also indicated it did not have jurisdiction concerning a third applicant.

Consequently, the Tribunal remitted the applications for Skilled (Residence) (Class VB) visas for reconsideration. The direction was that the first applicant met the criteria for the Subclass 887 visa, specifically PIC 4020.

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 matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 887.223 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 Attachment B 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.

Decision

Reasons for decision

Based on the above, the applicant satisfies PIC 4020 for the purposes of cl 887.223.DECISION The Tribunal remits the applications for Skilled (Residence) (Class VB) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 887 (Skilled – Regional) visa:·Public Interest Criterion 4020 for the purposes of cl 887.223 of Schedule 2 to the Regulations. ·The Tribunal does not have jurisdiction in respect of the third named applicant.Antonio DronjicMemberATTACHMENT A1.Submission explaining the applicant’s current and previous circumstances2.Copy of the applicant’s eldest son’s Australian Passport3.Reference letter by the Director of Crusader Caravans4.The applicant’s pay slips dated 29/4/2020 & 25/9/235.The applicant’s and partner’s ATO Notice of Assessments for year ending 20226.Profit & Loss statement for year ending 30 June 2023 (Design Crave)7.Joint Commonwealth Bank Statements for 1 June 2015 to 31 August 2015, 1 June 2016 to 31 August 2016, 1 June 2017 to 31 August 2017 and 1 June 2018 to 31 August 20188.Residential lease agreement showing the applicant’s and his family’s current residence in designated regional area post code9.List of evidence with attachments submitted to the Department of Home Affairs on 13 April 2020, including a submission in response to section 57 notice:· Updated form 80 by Mr Patel showing all the employment and correct details.· Updated from 80 by Mrs Patel showing accurate and updated details.Financial year 2015/2016· Applicant’s corrected pay slips for the financial year 2015-2016 showing total salaried earning as $16,550;· An updated PAYG summary showing the correct income from salaried work;· Copy of the applicant’s amended income tax return for the year 2015-2016 showing his salaried income and income from his business (under Corio Cleaners); and· A copy of updated ATO notice of assessmentFinancial year 2016/2017· Copy of correct PAYG summary for the year 2016-2017;· Pay slips as evidence of salaried income;· Copy of tax return submitted to the ATO for year 2016-2017 which clearly shows that the applicant has earned a total of $53, 451 from his salaried job and self-employment; and· A copy of ATO notice of assessment for year 2016-2017Financial year 2017/2018· Copy of ATO notice of assessment for 2017-2018;· Pay slips as evidence of salaried income;· Copy of tax return showing his income from his salaried job and self-employment;· The applicant’s ABN history showing the change of his business location to Corio, VIC 3214 in June 2015 after grant of Subclass 489 visa;· Copy of referral letter from Auto Spa as evidence that the applicant was their contractor (not employee) in Geelong yard;§ Referral letter from Zeal CAD services confirming change in their business logo;§ Zeal CAD Facebook post with original logo; and§ ABN history of Mrs Tejaswini Niravkumar Patel showing her business name registration date.ATTACHMENT BMigration 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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