Raj Kumar (Migration) - [2023] AATA 4443

Raj Kumar (Migration) [2023] AATA 4443 (20 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Raj Kumar Raj Kumar
REPRESENTATIVE:  Mr Harpal Bajwa (MARN: 0955800)
CASE NUMBER:  2113228
HOME AFFAIRS REFERENCE(S):          BCC2020/1173969
MEMBER:Warren Stooke AM
DATE:20 November 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled Work Regional (Provisional) (Class PS) visa.
Statement made on 20 November 2023 at 1:55pm

CATCHWORDS
MIGRATION – Skilled Work Regional (Provisional) (Class PS) visa – Subclass 491 (Skilled Work Regional (Provisional)) – false or misleading information – claimed employment – bogus document – employer reference – payslips – bank statements – purposeful falsity – waiver of requirement – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 491.211; Schedule 4, PIC 4020
CASES
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 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 14 September 2021 to refuse to grant the applicant a Skilled Work Regional (Provisional) (Class PS) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 15 March 2020. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 491.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the department reasonably suspected that that the applicant may have given to the Minister and the skill assessing body in relation to your claim employment as a Chef with Benalla Curry House in Australia, information that is false and misleading. It is alleged that the applicant has given employment documentation in the form of a work reference issued by Benalla Curry House Indian Tandoori Restaurant dated 07 January 2020, payment summary 2018 to 2019, Notice of assessment FY 2018 to 2019, payslips 2018 to 2019, bank statement 2018 to 2019 and some evidence of superannuation statement 2016 to 2021, information that is false and misleading in terms of the claimed duration of employment, hours worked, duties undertaken and remuneration received.
The applicant appeared before the Tribunal on 25 October 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
The applicant stated that he had received the decision of the delegate relating to his visa and had read the decision.
The applicant stated that he understood his visa application had been refused on the basis that he understood his bank statement and pay slips were not genuine.
The applicant confirmed to the Tribunal that a copy of the delegate’s…

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 Raj Kumar (Migration)

Details

AGLC: Raj Kumar (Migration) [2023] AATA 4443
Case: [2023] AATA 4443
Decision Date: 20 November 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision concerning Raj Kumar's application for a Skilled Work Regional (Provisional) (Class PS) visa, subclass 491. The core of the dispute revolved around whether Mr. Kumar had provided false or misleading information or a bogus document in relation to his visa application, thereby failing to meet Public Interest Criterion (PIC) 4020.

The Tribunal was required to determine if Mr. Kumar satisfied PIC 4020, which mandates that an applicant must not have provided a bogus document or false or misleading information in relation to their current or a previous visa application. The Tribunal also considered the provisions for waiving certain PIC 4020 requirements based on compelling or compassionate circumstances, noting that such waivers do not extend to identity requirements.

The Tribunal found that Mr. Kumar had not satisfied PIC 4020. This conclusion was based on the evidence presented, including a skills assessment for the occupation of Chef and supporting employment documents such as a reference from Benalla Curry House Indian Tandoori Restaurant, payslips, and bank statements. The Tribunal's reasoning, supported by case law such as *Trivedi v MIBP* and *Vyas v MIAC*, indicated that the provision of information associated with a visa application that has the necessary quality of purposeful falsity is sufficient to establish a failure to comply with PIC 4020, without needing to prove the applicant's knowledge of the falsity.

Consequently, the Tribunal affirmed the decision not to grant Mr. Kumar the Skilled Work Regional (Provisional) (Class PS) visa.

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 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) as required by cl 491.211 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. The applicant provided evidence that he arrived in Australia on 28 June 2014 and was granted a Bridging Visa C on 15 March 2020 with no conditions. The applicant provided the Tribunal with evidence of a successful assessment from TRA for the nominated occupation of Chef for work performed in Benalla between 24 August 2018 and 1 September 2019, which was dated 3 October 2019. The applicant provided evidence of a taxation assessment from 9 July 2018 to 30 June 2019, which had a Wangaratta address. The applicant provided a reference that he worked with Benalla Curry House Indian Tandoori Restaurant [Neelanfoods Pty Ltd] with an ABN: 85 613 585 747 from 4 September 2017 to 1 October 2019 in the occupation of Chef. The applicant provided evidence of an ATO assessment dated 11 August 2018 for the period ending 30 June 2018 with an address of Werribee. The applicant provided evidence of a Certificate III in Commercial Cookery undertaken at the Front Cooking School and awarded on 29 May 2017. The applicant provided evidence of a Certificate IV in Commercial Cookery undertaken at the Front Cooking School and awarded on 7 December 2017 and a Diploma of Hospitality Management awarded on 7 December 2017.

Decision

Reasons for decision

On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl 491.211.DECISION The Tribunal affirms the decision not to grant the applicant a Skilled Work Regional (Provisional) (Class PS) visa.Warren Stooke AMMember[1] TRIVEDI V MIBP[2014] FCAFC 42; (2014) 220 FCR 169 AT [43]–[44]. CITED WITH APPROVAL IN SINGH V MIBP[2018] FCAFC 52 AT [144].[2] VYAS V MIAC[2012] FMCA 92 AT [68]. THIS VIEW WAS ENDORSED IN SRAN V MIBP[2013] FCCA 37.[3] TRIVEDI V MIBP[2014] FCAFC 42; (2014) 220 FCR 169. SEE ALSO CHUNG V MIBP [2015] FCA 163 AT [25]. IN THAT CASE THE COURT FOUND THAT THE INCLUSION OF A SKILLS ASSESSMENT REFERENCE OF WHICH THE ASSESSING AUTHORITY HAD NO RECORD, AND EVIDENCE THAT THE ASSESSING AUTHORITY HAD NO SKILLS ASSESSMENT REFERENCE REFERABLE TO THE APPELLANTS WAS SUFFICIENT FOR THE TRIBUNAL TO FIND THERE WAS INFORMATION ASSOCIATED WITH THE VISA APPLICATION WHICH HAD THE NECESSARY QUALITY OF PURPOSEFUL FALSITY. IT WAS NOT NECESSARY FOR THE TRIBUNAL TO GO FURTHER AND DETERMINE WHETHER THE VISA APPLICANTS HADKNOWINGLY BEEN INVOLVED IN THE PROVISION OF THAT FALSE INFORMATION OR DOCUMENT BEFORE FINDING THAT THERE HAS BEEN A FAILURE TO COMPLY WITH PIC 4020.ATTACHMENTMigration 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.