Sanchez Reinoso (Migration) - [2019] AATA 2231

Sanchez Reinoso (Migration) [2019] AATA 2231 (11 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Jaime Santiago Sanchez Reinoso
CASE NUMBER:  1812211
DIBP REFERENCE(S):  BCC2017/4401354
MEMBER:R. Skaros
DATE:11 March 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled Independent (Permanent) visa.
Statement made on 11 March 2019 at 1:03pm

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 Skilled - Independent – false and misleading information in visa application – prior employment not previously reported – new information enhanced prospects of visa approval – inconsistent evidence – witness credibility – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 65, 351, 359AA
Migration Regulations 1994 (Cth), r 1.03; Schedule 2, cls 189.211, 189.224; Schedule 4 Public Interest Criterion 4020

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Nain v Minister for Immigration and Anor [2015] FCCA 2053
Plaintiff M64/2015 v MIBP [2015] HCA 50
Proudman v Dayman (1941) 67 CLR 536
Singh v Minister for Immigration and Anor [2016] FCCA 114

Trivedi v Minister for Immigration and Border Protection [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 18 April 2018 to refuse to grant the applicant a Skilled Independent (Permanent) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 22 November 2017. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.189.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate found that the applicant did not meet Public Interest Criterion 4020 (PIC 4020).
The applicant provided a copy of the delegate’s decision record to the Tribunal.
The applicant appeared before the Tribunal on 25 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence by telephone from a number of witnesses in Ecuador, including Mr Jaime Enrique Sanches Cardenas, Mr David Eduardo Cervantes and Mr Alex Lima.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the hearing.
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 PIC 4020 as required by cl.189.211 for the grant of the visa. Relevant to this case, 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…

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 Sanchez Reinoso (Migration)

Details

AGLC: Sanchez Reinoso (Migration) [2019] AATA 2231
Case: [2019] AATA 2231
Decision Date: 11 March 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered a review concerning a Skilled Independent (Permanent) (Class SI) visa, Subclass 189. The applicant, Mr. Sanchez Reinoso, sought the grant of this visa. The core of the dispute revolved around information provided in his visa application, specifically regarding his prior employment history.

The primary legal issue before the Tribunal was whether Mr. Sanchez Reinoso met the requirements of Public Interest Criterion (PIC) 4020, as stipulated by clause 189.211 of the Migration Regulations. This criterion mandates that an applicant must not have provided a bogus document or false or misleading information in relation to their visa application or a previous visa held within the preceding 12 months. The Tribunal also had to consider whether any compelling or compassionate reasons existed to justify a waiver of PIC 4020(1), as permitted by PIC 4020(4).

The Tribunal's reasoning focused on whether the applicant had provided false or misleading information. The applicant had claimed employment at Insomet in Ecuador from January 2010 to February 2013 as a Supervisor, which was used to claim points for the visa. The Tribunal noted that the definition of "bogus document" does not require the false statement to be relevant to a visa grant criterion, citing *Arora v MIBP* and *Batra v MIAC*. Furthermore, the Tribunal observed that PIC 4020 applies regardless of whether the applicant provided the information knowingly or unwittingly, although an element of fraud or deception is necessary for the provision to be engaged, as per *Trivedi v Minister for Immigration and Border Protection*. The Tribunal concluded that the decision under review should be affirmed.

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 decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this review is whether the visa applicant meets PIC 4020 as required by cl.189.211 for the grant of the visa. Relevant to this case, 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). The requirements in PIC 4020(1) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). 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 Minister for Immigration and Border Protection [2014] FCAFC 42.Evidence before the Tribunal The applicant nominated the occupation of Biomedical Engineer (233913) in his Skilled – Independent (Subclass 189) visa application. The applicant indicated in the application form that he had been employed for a period of at least three years in the last 10 years in the nominated or closely related occupation. In providing details, he claimed to have been employed at Insomet in Ecuador from 12 January 2010 to 1 February 2013 in the position of Supervisor. On the basis of this employment, the applicant claimed points towards the required pass mark.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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