Patel (Migration)

[2021] AATA 3453

Patel (Migration) [2021] AATA 3453 (23 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Dishank Natvarlal Patel
Mrs Kinjal Vishnubhai Patel
Mr Dwij Dishank Patel

CASE NUMBER:  1914070

DIBP REFERENCE(S):  BCC2017/4497561

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:         23 August 2021 at 1:59 pm (VIC time)

DATE OF WRITTEN RECORD:                3 September 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Subclass 190, Skilled Nominated (Permanent) (Class SN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 190 visa:

·cl.190.216 of Schedule 2 to the Regulations.

Statement made on 03 September 2021 at 2:02pm

CATCHWORDS

MIGRATION – Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 Skilled - Nominated – bogus documents with the visa application – current letterhead on back dated employment letters – original letters lost and misplaced upon request – letters not false or misleading in a material particular – decision under review remitted           

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 190.214, 190.216; Schedule 4 Public Interest Criterion 4020

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 31 May 2019 to refuse to grant the visa applicants Skilled Nominated (Permanent) Subclass 190 visas under the Migration Act 1958 (the Act).

2. At the hearing on 23 August 2021 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. Mr Dishank Patel, you applied for a subclass 190 Skilled Nominated visa which is a permanent visa on 28 November 2017. On 31 May 2019, having considered your application, the delegate refused your visa application on the basis that she found that you had provided bogus documents in relation to your application.

4. The bogus documents she referred to were an “Offer” letter dated 28 December 2012 and a “Confirmation of Employment” letter dated 5 August 2013. The major reason for the delegates decision was that when asked to provide evidence of copies of that document, what were provided were documents that were on current letterhead but which were back dated to when the documents were initially written.

5. There are specified reasons for a document to meet the definition of a bogus document. It must, “purport to have been but was not issued in respect of the person involved”  which is not the case here,  “Is counterfeit or has been altered by a person who does not have the authority to do so,” is not applicable here and, “was obtained because of a false or misleading statement,” is also not appliable here.  Therefore the Tribunal questions whether the documents meet the definition of ‘bogus’.

6. However, having spoken to you and read all the submissions that were made, I am satisfied that what happened was you had lost those two documents. You contacted your previous employer and asked for copies of the offer letter and the confirmation letter. 

7. What somebody has done is simply taken new letterhead, put it into the printer and printed out the original documents which were Word documents that included the original dates. 

8. In my opinion, those documents are legitimate copies of what was provided to you back in 2012 and 2013 and, therefore, I find that you have not provided bogus documents or information that is false or misleading in a material particular.

9. The delegate found because of those documents she believed that you had breached Public Interest Criteria 4020 for the purposes of gaining points under 190.214 and so found that there was a breach of PIC 4020 relevant to Regulation 190.216.  As I said, I find that those documents were not bogus documents.  I therefore find that you have not provided bogus documents and there is no breach of PIC 4020.  Consequently, I find that you satisfy Regulation 190.216 and will remit this matter to the Department so that they may continue considering your application. 

10. It is, therefore, the decision of this tribunal to remit the application with the direction that you satisfy clause 190.216. 

    DECISION

11. The Tribunal remits the application for a Subclass 190, Skilled Nominated (Permanent) (Class SN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 190 visa:

    ·cl.190.216 of Schedule 2 to the Regulations.

    Tim Connellan
    Member