Patel (Migration) - [2024] AATA 152

Patel (Migration) [2024] AATA 152 (17 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Khyati Tejaskumar Patel
Mr Tejaskumar Rajnikat Patel
Miss Kanthi Tejaskumar Patel
REPRESENTATIVE:  Ms Sarah Leora Frankel
CASE NUMBER:  2207702
HOME AFFAIRS REFERENCE(S):          BCC2019/5439686
MEMBER:Peter Katsambanis
DATE:17 January 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Skilled Nominated (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 190 - Skilled - Nominated visas:
·Public Interest Criterion 4020 for the purposes of cl 190.216(1) of Schedule 2 to the Regulations

In relation to the second named and third named applicants, the Tribunal remits the application for visas to the Minister to consider the remaining criteria for the grant of the visas.

Statement made on 17 January 2024 at 1:26pm
CATCHWORDS
MIGRATION – Skilled Nominated (Permanent) visa – Subclass 190 (Skilled – Nominated) – occupation of ICT Security Specialist – false and misleading information – claimed relevant employment reference and salary details – pay details supplied by related entity – updated payment summaries – lengthy ongoing employment – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 65
Migration Regulations 1994, Schedule 2, cl 190.216; Schedule 4, Public Interest Criterion 4020
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Trivedi v MIBP [2014] FCAFC 42
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 9 May 2022 to refuse to grant the applicants Skilled Nominated (Permanent) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 29 October 2019. The delegate refused to grant the visas on the basis that the first named applicant did not satisfy the requirements of cl 190.216(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate found that the first named applicant had given to the Minister information that is false and misleading in a material particular. Accordingly, the delegate was not satisfied that the first named applicant met Public Interest Criterion 4020(1).
The first named applicant appeared before the Tribunal in Perth on 29 November 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Rakesh Patel, who is the applicant’s employer. The second named and third named applicants also attended the hearing but did not give witness evidence.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The first named applicant
The issue in this review is whether the first named visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 190.216(1) for the grant of the visa. Broadly speaking, this requires that:
·there is no evidence that the applicant has…

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) [2024] AATA 152
Case: [2024] AATA 152
Decision Date: 17 January 2024

CaseChat Overview and Summary

This matter concerned an appeal by the first named applicant, and by extension the second and third named applicants, against a decision regarding their applications for a Skilled Nominated (Permanent) visa (Subclass 190). The core of the dispute revolved around whether the first named applicant had provided false or misleading information in relation to their application, specifically concerning employment references and salary details, which were allegedly supplied by a related entity. The case was heard by Peter Katsambanis.

The primary legal issue before the Tribunal was whether the first named applicant met Public Interest Criterion (PIC) 4020, as required by clause 190.216(1) of the Migration Regulations 1994. This criterion broadly requires that an applicant has not provided a bogus document or false or misleading information in relation to their visa application or a previous visa held within 12 months prior. The Tribunal also considered the applicant's history of visa refusals and identity verification requirements under PIC 4020.

The Tribunal reasoned that the definition of "information that is false or misleading in a material particular" under PIC 4020(5) requires the information to be relevant to a criterion for the grant of the visa. It noted that this requirement differs from the definition of a "bogus document" under section 5(1) of the Migration Act 1958, which does not necessitate relevance to a visa criterion. The Tribunal found that the matter should be remitted for reconsideration, directing that the first named applicant be considered to meet PIC 4020 for the purposes of clause 190.216(1).

Consequently, the Tribunal remitted the applications for Skilled Nominated (Permanent) visas for reconsideration. The direction was that the first named applicant meets PIC 4020, and the Minister was to consider the remaining criteria for all applicants. For the second and third named applicants, the applications were remitted to the Minister to consider all remaining criteria for the grant of their visas.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

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 EVIDENCEThe first named applicant The issue in this review is whether the first named visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 190.216(1) 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 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.

Decision

Reasons for decision

Given the findings made above in relation to the first named applicant, the appropriate course is to remit the applications for visas to the Minister to consider the remaining criteria. This includes any claims made by the second named and third named applicants. DECISION The Tribunal remits the applications for Skilled Nominated (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 190 - Skilled - Nominated visas:·Public Interest Criterion 4020 for the purposes of cl 190.216(1) of Schedule 2 to the Regulations In relation to the second named and third named applicants, the Tribunal remits the applications for visas to the Minister to consider the remaining criteria for the grant of the visas. Peter KatsambanisMemberATTACHMENTMigration 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

Full text does not contain this section.