Singh (Migration) - [2024] AATA 503

Singh (Migration) [2024] AATA 503 (14 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Uttambir Singh
REPRESENTATIVE:  Ms Carina Ford, Carina Ford Immigration Lawyers
CASE NUMBER:  2103259
HOME AFFAIRS REFERENCE(S):          BCC2019/2221117
MEMBER:Amanda Mendes Da Costa
DATE:14 March 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(1) of Schedule 2 to the Regulations

Statement made on 14 March 2024 at 1.05pm

CATCHWORDS
MIGRATION – Skilled Regional Sponsored (Provisional) (Class SP) visa – Subclass 489 (Skilled - Regional (Provisional)) – false or misleading information or bogus document – employment history – border force and federal police investigation showed employer operating pay-for-visa scheme – education, employment, successful skills assessment and documentation – ceased employment before period of scheme – remittals of similar decisions not binding – decision made without hearing necessary – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65, 360(2)(a), 376
Migration Regulations 1994 (Cth), Schedule 2, cl 489.211(1), Schedule 4, criterion 4020(1), (5)
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 24 February 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 23 April 2019. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 489.211(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the applicant did not meet the requirements of Public Interest Criterion (PIC) 4020(1).
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 documents provided by the applicant for the purpose of the review includes the following:
·Timesheets for applicant’s part-time employment with Jerome Mobile Engineers between 29 August 2016 to 12 January 2017.
·Bundle of timesheets for applicant’s full-time employment with Jerome Mobile Engineers between 17 July 2017 to 8 June 2018.
·Job cards for the applicant dated 31 August 2016 to 19 April 2018.
·Skills Assessment Reports dated 3 May 2018 and 19 July 2018.
·VETASSESS outcome letter dated 6 September 2018.
·Discharge report dated 18 January 2021.
·Tax returns for Jerome Mobile Engineers for the financial years 2016 to 2021.
·Tax returns for Christy Motors for the financial years 2016 to 2021.
·Statutory declaration of Godfrey Fernandez dated 29 November 2022.
·Utilities…

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 Singh (Migration)

Details

AGLC: Singh (Migration) [2024] AATA 503
Case: [2024] AATA 503
Decision Date: 14 March 2024

CaseChat Overview and Summary

This matter concerned an application for a Skilled Regional Sponsored (Provisional) visa (Subclass 489). The applicant's eligibility was assessed against Public Interest Criterion (PIC) 4020, which relates to the provision of bogus documents or false or misleading information in relation to a visa application. The Tribunal was required to determine whether the applicant had provided such a document or information.

The central legal issue was whether the applicant had satisfied PIC 4020(1), which requires that there be no evidence of the applicant providing 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 considered the definitions of "bogus document" and "information that is false or misleading in a material particular" as provided in the Migration Act 1958 and the Migration Regulations 1994, respectively. It was noted that the provision applies regardless of whether the applicant provided the document or information knowingly or unwittingly, and whether the Minister became aware of it through information provided by the applicant.

The Tribunal reasoned that while investigations into a pay-for-visa scheme at the applicant's purported employer revealed evidence of fraudulent employment arrangements, it was not established that the applicant was aware that the employment information provided was false or misleading. The Tribunal concluded that the applicant did satisfy PIC 4020 for the purposes of the visa application. Consequently, the Tribunal remitted the application for reconsideration with a direction that the applicant meets the criteria under 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 and Christy Motors, 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 provided 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 Public Interest Criterion 4020 (PIC 4020) as required by cl 489.211(1) 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

Based on the above, the applicant does satisfy PIC 4020 for the purposes of cl 489.211(1).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(1) 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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