Pindoriya (Migration) - [2019] AATA 6733

Pindoriya (Migration) [2019] AATA 6733 (9 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Pareshkumar Premji Pindoriya
Mr Vyom Pareshkumar Pindoriya
Mrs Neetaben Pareshkumar Pindoriya
CASE NUMBER:  1804862
DIBP REFERENCE(S):  BCC2016/2425918
MEMBER:Antonio Dronjic
DATE:9 December 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Employer Nomination (Permanent) visas for reconsideration, with the directions that
·the third named applicant meets the Public Interest Criterion 4020 for the purposes of cl.186.313(1) of Schedule 2 to the Regulations; and
·the first named applicant meets cl.186.213(3) of Schedule 2 to the Regulations.
Statement made on 09 December 2019 at 11:22am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – secondary applicant’s document false or misleading in a material particular – proof of functional English – medium of instruction at the applicant’s college – adverse effect upon sponsoring business – compelling circumstances to waive criterion – relevant to the criteria considered – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 65
Migration Regulations 1994, Schedule 1 Item 1114B; Schedule 2, cls 186.213, 186.313, 186.4; Schedule 4, Public Interest Criterion 4020
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2014] FCCA 1264
Singh v MIAC [2012] FMCA 145
Singh v MIBP [2015] FCCA 1939
Singh v MIBP [2018] FCCA 1136
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 Immigration on 8 February 2018 to refuse to grant the applicants Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 21 July 2016. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy cl.186.213(3) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the secondary applicant, Mrs Neetaben Pareshkumar Pindoriya, was unable to meet Public Interest Criterion (PIC) 4020 of Schedule 4 to the Regulations for the purposes of cl.186.313(1).
The delegate found that Mrs Pindoriya has provided false or misleading information in the form of a letter from Shri J. B. Thacker Commerce College, from India (the College) issued on 1 December 2016. The document was provided in order to satisfy the functional level of English requirement for Mrs Pindoriya. This letter stated that the medium of instruction for her Bachelor of Commerce degree completed in India was English. The Departmental checks have confirmed that the medium of instruction at the College is Gujrati and that the only English language subject was taught in English.
On 27 July 2017, the Department invited the applicants to comment on adverse information. In response to this invitation, Mrs Pindoriya submitted a letter dated 21 August 2017, stating inter alia that she was not fully aware about the fact that her entire course needed to be completed in English language…

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 Pindoriya (Migration)

Details

AGLC: Pindoriya (Migration) [2019] AATA 6733
Case: [2019] AATA 6733
Decision Date: 9 December 2019

CaseChat Overview and Summary

This matter concerned an appeal by an applicant for an Employer Nomination (Permanent) (Class EN) visa, subclass 186, against a decision of the Migration Review Tribunal. The core of the dispute revolved around whether the secondary applicant had provided a document that was false or misleading in a material particular, thereby engaging Public Interest Criterion (PIC) 4020. The Tribunal was required to determine if the applicant met PIC 4020, which encompasses requirements regarding the provision of genuine documents and accurate information, and the absence of previous visa refusals due to failures to meet these criteria.

The Tribunal's reasoning focused on the interpretation of PIC 4020, particularly the definitions of "bogus document" and "information that is false or misleading in a material particular." It was noted that the definition of a bogus document does not require the false or misleading statement to be relevant to a visa criterion, unlike the definition of "information that is false or misleading in a material particular." The Tribunal also clarified that PIC 4020 can be engaged even if the applicant was unaware the information was false or misleading, provided an element of fraud or deception by some person was present. The possibility of waiving certain PIC 4020 requirements under compelling or compassionate circumstances was also considered, though this waiver does not extend to identity requirements.

Ultimately, the Tribunal concluded that the third named applicant met PIC 4020 for the purposes of clause 186.313. Consequently, the Tribunal found that the first named applicant met clause 186.213(3). The applications for Employer Nomination (Permanent) visas were remitted for reconsideration with these specific findings.

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 PIC 4020 as required by cl.186.213 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.

Decision

Reasons for decision

As the Tribunal found that the third named applicant meets PIC 4020 for the purposes of cl.186.313, the Tribunal finds that the first named applicant meets cl.186.213(3).DECISION The Tribunal remits the applications for Employer Nomination (Permanent) visas for reconsideration, with the directions that:·the third named applicant meets the Public Interest Criterion 4020 for the purposes of cl.186.313(1) of Schedule 2 to the Regulations; and·the first named applicant meets cl.186.213(3) of Schedule 2 to the Regulations.Antonio DronjicMemberATTACHMENTMigration 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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