Shrestha (Migration)

This matter concerned an appeal by Mr Sunil Shrestha against a decision to refuse him a Temporary Business Entry (Class UC) visa, subclass 457 (Temporary Work (Skilled)). The primary issues before the Tribunal were whether Mr Shrestha met the requirements of Public Interest Criterion (PIC) 4020, which relates to the provision of bogus documents or false or misleading information, and whether an approved nomination for his occupation had ceased.

The Tribunal was required to determine if Mr Shrestha had provided a bogus document or information that was false or misleading in a material particular in relation to his visa application, as stipulated by cl 457.224 and PIC 4020(1). It also had to consider whether an approved nomination for his occupation remained valid, as required by cl 457.223(4)(a). The Tribunal noted that the definition of a "bogus document" in s 5(1) of the Migration Act 1958 does not require the document to be relevant to a criterion for the visa grant, unlike the definition of "information that is false or misleading in a material particular" in PIC 4020(5). Furthermore, PIC 4020 applies regardless of whether the Minister became aware of the false information due to the applicant's disclosure, and it does not necessitate the applicant's knowledge of the falsity, although an element of fraud or deception by some party is required.

In applying these principles, the Tribunal found that Mr Shrestha had provided an employment reference from Weizen Bakery & Restaurant, dated 18 May 2013, stating he worked there as a bakery cook from 13 July 2009 to 12 May 2013. However, verification checks revealed that Mr Shrestha was not employed at the business during that period. The reference was prepared by the Managing Director, not the owner, and Mr Shrestha was known by a nickname during the alleged employment. Additionally, his employment was not declared in his spouse's student visa application. The Tribunal concluded that the provided employment reference constituted a bogus document or false information. As Mr Shrestha failed to meet PIC 4020 and the waiver provisions were not applicable, the Tribunal affirmed the decision under review.