Singh (Migration) - [2020] AATA 1178

Singh (Migration) [2020] AATA 1178 (16 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Harwinder Singh
CASE NUMBER:  1732547
HOME AFFAIRS REFERENCE(S):          BCC2013/606170 BCC2014/3536262 BCC2014/3536266 BCC2014/3536275
MEMBER:Michael Ison
DATE:16 April 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:
·Public interest criterion 4020 for the purposes of clause 187.213 of Schedule 2 to the Regulations.

Statement made on 16 April 2020 at 5:37pm
CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Federal Circuit Court remittal – Direct Entry stream – Cook – bogus document – IELTS test result – ‘reasonable suspicion’ the test was taken by an imposter – significant improvement in results – supported by probative evidence – waiver of requirement – compelling or compassionate circumstances – impact on nominating employer – senior position in the business – shortage of qualified chefs in Australia – challenging conditions faced by business due to the COVID-19 global pandemic – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.213; Schedule 4, PIC 4020
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
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 and Border Protection on 16 December 2014 to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 24 April 2013. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).
The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the 'Common criteria', as well as the criteria of one of two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.
In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Cook (ANZSCO[1] 351411).
[1] ANZSCO: Australian and New Zealand Standard Classification of Occupations First Edition, Revision 1.
Clause 187.232(a) of Schedule 2 to the Regulations requires an applicant for a Subclass 187 visa to provide evidence they have “competent English” which is defined in r.1.15C and the relevant legislative instrument. The relevant legislative instrument at the time…

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) [2020] AATA 1178
Case: [2020] AATA 1178
Decision Date: 16 April 2020

CaseChat Overview and Summary

This matter concerned an appeal by Mr. Singh against a decision to refuse him a Regional Employer Nomination (Permanent) (Class RN) visa, Subclass 187 (Regional Sponsored Migration Scheme), Direct Entry stream. The primary issue revolved around Public Interest Criterion (PIC) 4020, specifically whether Mr. Singh had provided a bogus document or false or misleading information in relation to his application. The delegate's decision had found that an International English Language Testing System (IELTS) test result submitted by Mr. Singh was not genuine, citing a previous IELTS test result that had been cancelled due to an imposter and a significant, rapid improvement in Mr. Singh's scores.

The court was required to determine whether there was sufficient probative evidence to establish a "reasonable suspicion" that the IELTS test result provided by Mr. Singh was a bogus document or constituted false or misleading information, thereby failing to meet PIC 4020(1). The court also considered the definition of "bogus document" under section 5(1) of the Migration Act 1958 and the evidentiary threshold required to engage PIC 4020.

The court reasoned that the term "evidence" in PIC 4020(1) requires more than mere suggestion of falsity; it necessitates probative information that points to the document being false or misleading. Citing cases such as *Talukder v Minister for Immigration and Citizenship* and *Sharma & Ors v Minister for Immigration and Multicultural Affairs and Citizenship*, the court emphasised that the decision-maker must be satisfied that the information is acceptable as evidence pointing to falsity or misleading information that was material to the visa application. The court found that while the cancellation of a previous IELTS test due to an imposter and the applicant's explanation for his travel and passport issues raised concerns, the evidence did not reach the threshold of being sufficiently probative to justify a "reasonable suspicion" that the specific IELTS test in question was a bogus document or that Mr. Singh had provided false or misleading information.

Consequently, the Tribunal remitted the application for reconsideration. The direction was that Mr. Singh met PIC 4020 for the purposes of clause 187.213 of Schedule 2 to the Regulations, allowing the Minister to consider the remaining criteria for the visa.

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 PIC 4020 as required by cl.187.213 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 cl.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 provided bogus document(s)? The term ‘bogus document’ is defined in s.5(1) of the Act, which is extracted in 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 applies whether or not the Minister became aware of the bogus document because of information given by the applicant: PIC 4020(3). It also applies whether or not the document was provided by the applicant knowingly or unwittingly. In addition, 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 this public interest criterion 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. In other words, there must be some element of knowledge or intention on somebody’s part because PIC 4020 is directed to information or documents which are purposely untrue, and not to innocent, unintended or accidental matters.24. In the present case, the delegate’s decision states:On 24/04/2013 Mr Singh lodged his application for a Regional Sponsored Migration Scheme (RN 187)) visa. In support of this application Mr Singh provided a scanned copy of a International English Language Testing System (IELTS) with a Test Report Form Number 12IN048695TH855G issue date of 01/09/2012 which stated he had "passed the prescribed test as follows: Listening 8.0; Reading 6.5; Writing 6.5; Speaking 6.0 and Overall Band Score 7.0, Language ability, meeting Competent.…Mr Singh was informed that it has been brought to the department's attention that PIC 4020 may not be satisfied based on the following information being submitted to the department:· "IELTS Test Report Form Number 12IN048695TH855G This document was referred to the Department's office in New Delhi for verification. New Delhi contacted IELTS who provided the Department with information that the applicant has sat an IELTS test on the following seven occasions:Test Date Test Centre Test Report Form Overall Band Passport Number Number Score Presented25/05/2006 IN122 06IN004721TH122A 4.0 F194097813/01/2007 IN122 06IN030048TH122A 5.0 F194097804/02/2012 AU307 11AU301502TH307G 4.5 F194097810/03/2012 AU175 11AU301472TH175G 5.5 F194097814/04/2012 AU080 12AU000181SINHO8OG 5.0 F194097809/06/2012 IN855 121N019194TH855G 0.0* F194097801/09/2012 IN855 12IN048695TH855G 7.0 K3274564* 09/06/202 Test result cancelled after an investigation found evidence that an imposter had taken the test.The cancellation of Mr Singh's sixth IELTS test (12IN019194TH855G) sat on 09/06/2012 on the basis that an IELTS investigation found that it had been taken by an imposter, then raises serious concerns about the genuineness of Mr Singh's most recent IELTS test (12IN048695TH855G) sat on 01/09/2012 which achieved the following scores:Listening: 8.0Reading: 6.5 Writing: 6.5 Speaking: 6.0 Overall: 7.0Mr Singh sat an IELTS test on 14 April 2012 (12AU000181SINH080G) and achieved the following scores:Listening: 5.0Reading: 4.5 Writing: 4.5 Speaking: 5.0 Overall: 5.0These results suggest that Mr Singh improved his English language skills by up to three points over the course of less than five months. Such a significant improvement, in such a short space of time, adds to my concerns that the test result dated 01/09/2012 may not be genuine.On the Test Report Form provided with this application, the answer to the question about whether the applicant is "Repeating IELTS" is No. This shows that the applicant has made a misleading statement to IELTS, possibly in an attempt to hide his IELTS history. It is also noted that the applicant presented a different passport when sitting the test dated 01/092012 which also raises suspicion that the applicant was attempting to present as an entirely different person to the one who had sat the previous six tests..On 29 April 2014, Mr Singh responded to the Invitaion (sic) to comment on suspected fraudulent information. Mr Singh states he was totally unaware about the 6th IELTS test dated 09/06/2012 being cancelled and denies the allegation that it was taken by an imposter. Mr Singh also refers to IELTS dated 01/09/2012 and acknowledges this test seems to have raised doubts and explains his situation including deciding to make as many attempts as he could to get a satisfactory IELTS outcome. This included taking an IELTS test in India when visiting family at a time between 30 May 2012 to 04 July 2012.Departmental records show the following movements for Mr Singh for the related period of 2012:· Departed Australia 30/05/2012· Arrived Australia 04/07/2012· Departed Australia 03/08/2012· Arrived Australia 10/09/2012Mr Singh advised that upon his return to India in July 2012, he was advised by the Immigration at Delhi that his old passport F1940978 was faulty due to an old photo and his passport could not be scanned properly. Mr Singh understood he needed to arrange a new passport soon. Mr Singh also advised that he needed to go back to India for a second time within a short time span to attend to family matters.Mr Singh advised he made another trip to India between 03 August 2012 to 10 September 2012 and on his exit out of Australia, he was advised at the "Check-in" counter at Perth Airport that his passport was faulty and they were havng (sic) difficulty scanning his passport. Mr Singh was again advised that he needed to organise a new passport. Mr Singh obtained a new passport K3274564 in India, issued 07 August 2012.Mr Singh advised that after obtaining his new passport, he decided to enroll quickly for another IELTS dated 01/09/2012. Mr Singh advised he attended some personal and private training in India to prepare for the IELTS test, and noted that he cannot prove this. Mr Singh states that he sat the IELTS test dated 01/09/2012.Mr Singh refers to the Test Report Form, which shows his answer as "No" to the question "repeating IELT's, claiming he was unaware of the implications of his answer and stated it was not deliberate. Mr Singh also provided a copy of his IELT test results dated 10/03/2012 as and (sic) explanation and evidence of where he actually stated as "No" to the same question in the past.On the balance of evidence, I am not satisfied that the explanation provided by Mr Singh is more credible than the IELTS investigations relating to the IELTS Test taken on 09/06/2012 for Test Report Form Number 12IN019194TH855G, Test result cancelled after an IELTS investigation found evidence that an imposter had taken the test.Accordingly, based on the evidence and information before me, I am not satisfied that the applicant meets Public Interest Criterion (PIC) 4020, subclause 4020(1).

Decision

Reasons for decision

Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.DECISION The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:·Public interest criterion 4020 for the purposes of clause 187.213 of Schedule 2 to the Regulations.Michael IsonSenior MemberATTACHMENT - MIGRATION 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

In this regard, the applicant’s representative submitted:23.The TAT related to a test taken by the Applicant on 7 June 2012. The test an imposter is alleged to have taken was on 9 June 2012. Even if an investigation by IELTS concluded that an imposter took the 9 June 2012 test, that cannot cause a ‘reasonable suspicion’ that an imposter took the 7 June 2012 test, precluding it from forming part of any misleading information provided to the delegate of the Minister or, at the very least precluding there being a ‘reasonable suspicion’ of it being misleading information.24.In the Federal Magistrate’s Court decision in Talukder v Minister for Immigration and Citizenship [2009] FMCA 223 (Talukder’s Case) the Court considered the term ‘evidence’.25.Whilst Talukder’s Case concerned a different legislative provision and is therefore not a direct authority for the interpretation of subclause 4020(1), it is important to note that Federal Magistrate Driver found that the word ‘evidence’ requires an assessment of the quality of the evidence being relied on by the Tribunal. He states at [20] of his decision:“The evidence must point to information having been false or misleading in a “material particular”. That goes to both the strength of the evidence and its relevance.[6]...The use of the word “evidence” in my view establishes that the clause requires something more than the mere existence of information suggestive of falsity. It requires some probative information...The decision maker must satisfy himself or herself that the information is acceptable as evidence pointing to false or misleading information having been given for the purposes of establishing the validity of the visa application and that the falsity or misleading information was material to the visa application.” [7] 26.The conclusion in Talukder’s Case was upheld on appeal by the Federal Court in Talukder v Minister for Immigration and Citizenship [2009] FCA 916 and further endorsed in Sharma & Ors v Minister for Immigration and Multicultural Affairs and Citizenship & Anor [2013] FCCA 1280 (Sharma’s Case).27.In Sharma’s Case the Court expressly considered the meaning of ‘evidence’ in the context of PIC 4020. The Court held that the Tribunal’s task was to:“... make an assessment as to whether there is evidence that is sufficiently probative to lead to a conclusion that the information given was a bogus document or false or misleading in a material particular.”[8] 28.We submit that the evidence on which the Tribunal is not of sufficiently probative value to justify a ‘reasonable suspicion’ that the applicant has provide false and misleading information or a bogus document. (emphasis in the original, footnotes omitted) The evidence the Tribunal relies upon to make its finding that the applicant did not sit the June 2012 test is the information provided to the Department by the IELTS test provider that an internal investigation had found an imposter sat the applicant’s June 2012 IELTS test and the applicant’s oral evidence at hearing, which the Tribunal finds to be an improbable explanation of why the applicant sat a sixth IELTS test in seven months when he claimed not to have received or sought to find out the results of his fifth IELTS test, the results of which were cancelled.