Rani (Migration) - [2024] ARTA 499

Rani (Migration) [2024] ARTA 499 (12 December 2024)
DECISION AND
REASONS FOR DECISION
Applicants:Mrs Kusum Rani
Mr Bittu Mehla
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2211045

Tribunal:General Member A. McMurran
Place:Sydney
Date: 12 December 2024

Decision: The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that:
· The first and second named applicants meet Public Interest Criterion 4020 for the purposes of cl 485.216 of Schedule 2 to the Regulations;
· The second named applicant meets cl 485.311 of Schedule 2 to the Regulations.
Statement made on 12 December 2024 at 5:25pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – bogus document – misleading information – false passport – migration history – identity requirements – administrative errors – legal proceedings to correct identity documents – purposeful falsity – unintentional error and genuine mistake – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5(1), 65
Migration Regulations 1994, Schedule 2, cl 485.216, 485.231, 485.311; Schedule 4, Public Interest Criterion 4020
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Trivedi v MIBP [2014] FCAFC 42
Zitkus v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA1881
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application lodged with the Administrative Appeals Tribunal on 1 August 2022 for review of a decision made by a delegate of the Minister for Home Affairs on 13 July 2022 to refuse to grant the applicants, who are both citizens of the Republic of India, Skilled (Provisional) (Class VC) post-study Work Stream visas under s 65 of the Migration Act 1958 (Cth) (the Act).
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. This application falls into that category.
The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal in place of the AAT.
The applicant, Mrs Kusum Rani, and her spouse, the secondary applicant Mr Bittu Mehla (“the applicants”) applied for the visas on 13 August 2021. The secondary applicant, also referred to as a dependent applicant, claims the visa as a member of the applicant’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 Rani (Migration)

Details

AGLC: Rani (Migration) [2024] ARTA 499
Case: [2024] ARTA 499
Decision Date: 12 December 2024

CaseChat Overview and Summary

The applicants in this case, a married couple, challenged a decision by the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs to refuse their applications for a Subclass 485 visa under the Post-Study Work stream. The Tribunal was tasked with determining whether the applicants met the Public Interest Criterion 4020, which includes specific requirements about providing false or misleading information, identity, and visa refusals.

The legal issues before the Tribunal centred on whether the applicants had provided false or misleading information or a bogus document in relation to their visa applications. This included assessing the nature of the information provided, whether it was purposeful or an unintentional error, and whether there were administrative errors that needed to be considered. Additionally, the Tribunal had to evaluate the applicants' identity requirements under the criterion, including whether any refusals of their visas were due to failures to satisfy the identity requirements.

The Tribunal found that there was no evidence of purposeful falsity by the applicants. Instead, the Tribunal concluded that the information provided was due to administrative errors and unintentional mistakes. It also found that the applicants had taken steps to correct their identity documents through legal proceedings, and there were no refusals of their visas due to identity issues. Given these findings, the Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal's decision focused on the distinction between intentional and unintentional errors and the applicants' proactive steps to correct their identity.

The Tribunal remitted the matter to the delegate for reconsideration in light of its findings. The Tribunal emphasized that the applicants' actions were not purposeful but rather due to administrative errors and genuine mistakes. It also noted that the applicants had taken appropriate legal steps to address their identity issues.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Background The applicants were married in India on 27 March 2016. They have relatives both in India and in Western Australia. The applicant now has a one year old child born in Australia. The applicant came to Australia as a student to study accounting. She changed careers and is now working as an enrolled nurse and intending to study to obtain her degree to become a registered nurse. The secondary applicant is working as a truck driver. The applicant arrived in Australia on 22 February 2019 on a student visa which ceased on 15 March 2021. Her student visa was renewed on 20 May 2021 and ceased on 15 August 2021. This application for a Subclass 485 (Post-Study) work stream visa was made on 13 August 2021, and the applicant has remained on a Bridging visa since that time. The secondary applicant’s visa history was not before the AAT or the Tribunal. The delegate’s decision however refers to applications for 2 student visas lodged on 4 February 2019 and 3 March 2021, with the secondary applicant as a related family member to those applications. The decision further recites that those visas were held within 12 months of the lodgement of the application under review. The Tribunal does not have before it relevant Department information from those applications or the resulting decisions, other than what is contained in the delegate’s decision and the information provided by the Department for this review from the applicant’s Subclass 485 visa application, lodged 13 August 2021. The applicant claimed in her oral evidence to the Tribunal that she had provided the information for all 3 applications. She was assisted by her representative to whom she provided the information between 2019 and 2021. The applicant provided evidence both to the Department and the Tribunal with an explanation as to the claimed false or misleading information, and the bogus document, being the secondary applicant’s passport. No information or evidence was submitted concerning any visa refusals for the dependent applicant. The applicant submitted that she was ready to proceed with this review and had provided all her information for consideration. No adjournment or deferral was sought by the applicant or her representative and none was considered necessary by the Tribunal. The applicants confirmed on conclusion of the hearing that they had understood the interpreter. Both applicants gave oral evidence. They spoke some English and used the interpreter for their Hindi language as and when they required.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this review is whether the applicants meet Public Interest Criterion 4020 (PIC 4020) as required by cl 485.216 for the grant of the visa. Broadly speaking, this requires that:·Firstly, 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·Secondly, 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·Thirdly, the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and·Fourthly, 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).Waiver

Evidence

Evidence Before The Court

Both applicants gave oral evidence. They spoke some English and used the interpreter for their Hindi language as and when they required.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this review is whether the applicants meet Public Interest Criterion 4020 (PIC 4020) as required by cl 485.216 for the grant of the visa. Broadly speaking, this requires that:·Firstly, 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·Secondly, 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·Thirdly, the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and·Fourthly, 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).Waiver 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 Tribunal has considered the information extracted from the Department file under review, the delegate’s decision, and the oral evidence from the hearing, Department Policy, and relevant court decisions. The Tribunal has also had regard to the applicant’s written submissions. No waiver information was submitted in this case, although in oral evidence the applicant told the Tribunal that she thought her circumstances might be “compelling and compassionate” and sufficient to enliven the application of public interest criteria 4020(4).Terms defined 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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