Sandhu (Migration) - [2024] AATA 1612

Sandhu (Migration) [2024] AATA 1612 (1 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Lakhwinder Singh Sandhu
REPRESENTATIVE:  Mr Amber Gupta (MARN: 0533773)
CASE NUMBER:  2103239
HOME AFFAIRS REFERENCE(S):          BCC2019/5214594
MEMBER:Amanda Mendes Da Costa
DATE:1 May 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for a Skilled Regional Sponsored (Provisional) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 489 - Skilled - Regional (Provisional) visa:
·Public Interest Criterion 4020 for the purposes of cl 489.211 of Schedule 2 to the Regulations.

Statement made on 1 May 2024 at 12.44pm

CATCHWORDS
MIGRATION – Skilled Regional Sponsored (Provisional) (Class SP) visa – Subclass 489 (Skilled – Regional (Provisional)) – false or misleading information – employment claims – Motor Mechanic (General) – ABF and AFP investigations – pay for visas schemes – successful completion of a Skills Assessment – absence of any direct evidence against the applicant – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 489.211; Schedule 4, PIC 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 11 March 2021 to refuse to grant the applicant a Skilled Regional Sponsored (Provisional) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 17 October 2019. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 489.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because he did not meet the requirements of Public Interest criterion (PIC) 4020.
In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant based on the material before it, pursuant to s.360(2)(a) of the Act.
The applicant was represented in relation to the review.
The documentation provided to the Tribunal for the purpose of the review includes the following:
·Employment reference dated 2 May 2019, which states that the applicant was employed full-time as a Motor mechanic for 76 hours per fortnight for the period February 2018 to 21 April 2019.
·Australian Taxation Office (ATO) notices of assessment for the years ending 30 June 2018 and 30 June 2019.
·Various payslips covering the period February 2018 to April 2019.
·Banks statements issued by the ANZ Banking Corporation covering the period February 2018 to June 2019.
·Superannuation statement issued by ANZ Smart Choice covering the period 30 June 2018 to 30 June 2019, showing deposits made to the applicant’s fund.
·Form 80 dated 11 May 2020 in which the applicant states (question 19) that he was employed by Christy Motors Pty Ltd from June 2017 to…

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 Sandhu (Migration)

Details

AGLC: Sandhu (Migration) [2024] AATA 1612
Case: [2024] AATA 1612
Decision Date: 1 May 2024

CaseChat Overview and Summary

This matter concerned an appeal by a visa applicant against a decision that engaged Public Interest Criterion (PIC) 4020. The applicant sought a Skilled Regional Sponsored (Provisional) visa (Subclass 489). Investigations by the Australian Border Force and Australian Federal Police uncovered a "pay for visas" scheme operating at a motor mechanic business, where individuals paid for fabricated employment experience and payslips to meet visa requirements.

The primary legal issue before the Tribunal was whether the applicant had provided, or caused to be provided, a bogus document or information that was false or misleading in a material particular, thereby failing to satisfy PIC 4020 as required for the grant of the visa. This criterion requires that there be no evidence of the applicant providing such documents or information to the Minister, an officer, the Tribunal, or a relevant assessing authority in relation to the visa application or a previous visa held within the preceding 12 months.

The Tribunal reasoned that while PIC 4020 applies to information that is false or misleading, it is not necessary for the Minister or Tribunal to conclude that the applicant was aware the information was untrue. However, an element of fraud or deception by some person is necessary for the provision to be engaged. Despite the evidence of a broader scheme involving fraudulent employment claims, the Tribunal found that there was an absence of direct evidence demonstrating that the applicant themselves had provided false or misleading information or a bogus document. Consequently, the Tribunal concluded that the applicant did satisfy PIC 4020.

The Tribunal remitted the application for reconsideration with a direction that the applicant meets the criteria for the Subclass 489 visa, specifically PIC 4020.

Orders

Orders of the court

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Background

Background to the litigation

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.Background On Wednesday 11 September 2019 investigators from the Australian Border Force (ABF) and the Australian Federal Police (AFP) executed a search warrant under the Crimes Act (Cth) 1914 at the business premises of Jerome Mobile Engineers Pty Ltd and Christy Motors Pty Ltd, located at 4 Paul Court, Dandenong, Victoria, 3175 (the premises). Earlier surveillance activities undertaken by the investigators on 8 August 2019 and 9 September 2019, the front gates of the premises remained closed until midday. Upon entering the premises on 11 September 2019 (pursuant to the warrant) officers of the ABF and AFP observed dust covered vehicles, an unkempt workshop and no workers present, despite the search taking place during operating hours of the business. The officers further observed that the hoists were not operational, and the mechanics shop appeared to have not been functioning for some time. CCTV footage taken by the investigators showed that the five hoists in the mechanic’s shop were not being utilised for mechanical purposes. Whilst the investigators were conducting their investigation at the premises, a person approached the business and was questioned about their attendance at the premises. This person initially told investigators that he was attending to make superannuation payments and was found the have a large amount of money in his possession. During his discission with the investigators, this person admitted that he was attending the premises because he had an arrangement to with the business owner to provide him with employment experience for his points based skilled visa application and he was there to make his monthly payment for this purpose. This person subsequently attended the offices of the ABF where he provides the following further information regarding his payment arrangement with the business owner:·He paid $6,000 in cash to be paid in advance for a 12-month period of employment. The employer would only provide work experience for a 12-month period.·He was required to pay their own fortnightly salary of $1,900 for full-time employment with tax and superannuation with tax and superannuation payments deducted from this amount, This left the sum of $1,250 which was paid into his bank account as salary.·He was advised that if he wished to have part-time employment, he would be required to pay a monthly fee of $650, to be paid in cash and handed to the son of the business owner. He would then be required to pay his own wage of $920 per fortnight, which would be deposited into the business, owner’s account with a transaction reference of “training” or “cars”. He would then receive $750 in wages.·He told the investigators that he never worked on a full-time basis for the employer on either a full-time or part-time basis and the payslips generated for him by the employer were incorrect. He explained that the monthly fees he paid were for the employer to provide him with false employment claims or bogus payslips.

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 489.211 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.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.Background

Decision

Reasons for decision

Based on the above, the applicant does satisfy PIC 4020 for the purposes of cl 489.211.DECISION The Tribunal remits the application for a Skilled Regional Sponsored (Provisional) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 489 - Skilled - Regional (Provisional) visa:·Public Interest Criterion 4020 for the purposes of cl 489.211 of Schedule 2 to the Regulations Amanda Mendes Da CostaMemberATTACHMENTMigration 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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