Shrestha (Migration) - [2020] AATA 4761

Shrestha (Migration) [2020] AATA 4761 (1 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Prabeg Shrestha
Mrs Alina Shrestha
CASE NUMBER:  1921259
DIBP REFERENCE(S): BCC2012/803507 BCC2015/1574995
MEMBER:John Cipolla
DATE:1 September 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 487 (Skilled - Regional Sponsored) visas:
·Public Interest Criterion 4020 for the purposes of cl.487.228 of Schedule 2 to the Regulations.
Statement made on 1 September 2020 at 3:55pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 487 (Skilled – Regional Sponsored) – Federal Circuit Court remittal – bogus document – employment reference – verifying details of business and employment – limited details of telephone integrity check – applicant provided other written employment details – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 65
Migration Regulations 1994, Schedule 2 cl 487.228; Schedule 4, Public Interest Criterion 4020
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Singh v MIBP [2016] FCA 679
Singh v MIMAC [2013] FCCA 1435
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 28 February 2017 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 19 July 2012. The delegate refused to grant the visas on the basis that the first named applicant (hereinafter referred to as the applicant) did not satisfy the requirements of cl.487.228 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate found that a reference pertaining to the applicant from Auto Goods, an automotive repair business in Nepal, was, based on Departmental integrity checks, a bogus document .
The applicant sought merits review of the Departmental refusal and the Tribunal differently constituted, in a decision dated 13 March 2018, determined that the applicant did not meet Public Interest Criterion (PIC 4020) as required by cl.487.228 of the Migration Regulations and further to this, that having regard to relevant considerations, there was no basis to waive PIC 4020 in this case.
The applicant sought judicial review of the previous Tribunal decision. The Federal Circuit Court determined that the decision of the previously constituted Tribunal was affected by jurisdictional error and the matter was remitted back to the Tribunal to be determined according to law. The Federal Circuit Court determined that the characterisation of the witness (the applicant), as untruthful, on the basis of a significant misunderstanding of his evidence, or a characterisation that was not open on the evidence, raised doubts about whether the Tribunal discharged its statutory function of evaluating the applicant’s claims. It determined that it’s erroneous conclusion in relation to a central and key issue was a grave…

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 Shrestha (Migration)

Details

AGLC: Shrestha (Migration) [2020] AATA 4761
Case: [2020] AATA 4761
Decision Date: 1 September 2020

CaseChat Overview and Summary

The matter before the Tribunal concerned an application for a Skilled (Provisional) (Class VC) visa, Subclass 487 (Skilled – Regional Sponsored). The applicant sought review of a decision that had been remitted from the Federal Circuit Court. The central issue revolved around whether the applicant had provided a bogus document or false or misleading information in relation to their visa application, thereby potentially failing to meet Public Interest Criterion (PIC) 4020.

The Tribunal was required to determine whether the applicant had provided a bogus document or information that was false or misleading in a material particular, as defined by PIC 4020(1) and section 5(1) of the Migration Act 1958. This criterion mandates that there must be no evidence of the applicant providing such documents or information to the Minister, an officer, the Tribunal, an assessing authority, or a Medical Officer of the Commonwealth in relation to the current visa application or a previous visa held within the preceding 12 months. The Tribunal also considered the applicant's history of visa refusals related to PIC 4020 and their identity, as stipulated in PIC 4020(2), (2AA), (2A), (2B), and (2BA).

The Tribunal reasoned that, based on the evidence before it, the applicant satisfied PIC 4020 for the purposes of clause 487.228 of Schedule 2 to the Regulations. The decision notes that while the definition of a "bogus document" includes documents obtained due to a false or misleading statement, this does not necessitate that the statement be relevant to a specific visa grant criterion, unlike the definition of "information that is false or misleading in a material particular." The Tribunal concluded that the applicant had not provided a bogus document or false or misleading information in a material particular.

Consequently, the Tribunal remitted the applications for Skilled (Provisional) (Class VC) visas for reconsideration. The direction was that the first named applicant met the criteria for Subclass 487 (Skilled - Regional Sponsored) visas, specifically Public Interest Criterion 4020 for the purposes of clause 487.228 of Schedule 2 to the Regulations.

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 Public Interest Criterion 4020 (PIC 4020) as required by cl.487.228 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.

Decision

Reasons for decision

On the basis of the above, the applicant satisfies PIC 4020 for the purposes of cl.487.228 of Schedule 2 to the Regulations.DECISION The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 487 (Skilled - Regional Sponsored) visas:·Public Interest Criterion 4020 for the purposes of cl.487.228 of Schedule 2 to the Regulations.John CipollaSenior MemberATTACHMENTMigration 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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