Singh (Migration)

[2020] AATA 630

Singh (Migration) [2020] AATA 630 (12 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Angrej Singh
Mrs Harvinder Kaur
Miss Jasmine Kaur Hanjra

CASE NUMBER:  1720168

DIBP REFERENCE(S):  BCC2015/2367481

MEMBER:Mr S Norman

DATE:12 March 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants the Employer Nomination (Permanent) visas.

Statement made on 12 March 2020 at 11:15am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) – Subclass 187 (Employer Nomination Scheme) – bogus documents and false or misleading information provided by second applicant – education in English medium – English as a subject but other instruction in Punjabi – documents obtained by parents and translated – country information – prevalence of document fraud – long residence and plans to reside permanently – child born in Australia – associated position nomination refused and refusal affirmed on review – members of family unit – referral for consideration by minister – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 65, 349, 351, 359A

Migration Regulations 1994 (Cth), Schedule 2, cll 186.213(3), 186.223(2), 186.311, Schedule 4, criterion 4020(1), (5)

CASES

Arora v MIBP [2016] FCAFC 35

Batra v MIAC [2013] FCA 274

Gill v MIBP [2016] FCAFC 142

Maharjan v MIBP [2017] FCAFC 213

Minister for Immigration v CPJ16 [2019] FCA 2033

Trivedi v MIBP [2014] FCAFC 42

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 15 August 2017 to refuse to grant the applicants Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act).

2. The Department delegate’s decision was lodged with the Tribunal. 

3. The applicants applied for the visas on 17 August 2015. The delegate refused to grant the visas on the basis the first named applicant (the applicant) did not satisfy the requirements of cl.186.213(3) of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. The principal applicant (Mr Angrej Singh – hereafter the applicant) appeared before the Tribunal on 10 February 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant wife (Mrs Harvinder Kaur). The applicants were represented in relation to the review by their registered migration agent.

5. For the following reasons, the Tribunal has concluded that the decision to refuse to grant the applicants the Employer Nomination (Permanent) visas should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. One issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.186.213(3) 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).

7. 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).

   Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?

8. 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. 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.

9. 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.

10. 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 (which issue had been addressed in migration agent submissions dated 25 November 2019). 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.

11. On 17 August 2015, the (principal) applicant applied for a Employer Nomination (class EN) Employer Nomination (Subclass 186) visa in the Temporary Residence Transition stream. The delegate noted that it was a requirement of cl.186.213(3) that each member of the family unit of the applicant who is an applicant for a Subclass 186 visa, satisfies Public Interest Criterion (PIC) 4020. Based on the evidence before them, the delegate was not satisfied the applicant’s wife (Mrs Harvinder Kaur) satisfied PIC 4020(1); cl.186.213(3). Consequently, the application had been refused as cl.186.213 was not met.

12. Further, the delegate advised that each person (over 18 years) included in the decision, may then be subject to a provision precluding them from being granted another visa for a period of three (3) years) – see PIC 4020(2). However, and as noted by the delegate, PIC 4020(2AA) provides that PIC 4020(2), ‘does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18’.

13. The evidence giving rise to the delegate’s decision included that they were satisfied the applicant wife provided, or caused to be provided, false or misleading information, or bogus documentation to the Department, in relation to the visa application.

14. On 17 August 2015, the applicant wife provided the following evidence to the Department that was considered to be of a non-genuine nature:

    ·     Government Primary School Rogla (Sangrur), letter from Head Master[1] (regarding attendance at the school between 04/05/1990 and 04/05/1995 – and that studies were conducted in the English medium).

    ·     Government Senior Secondary School Sangrur (Punjab), letter from Head Master[2]

    [1] PDF – p.34 (‘PDF’ refers to the merged Department file in the Tribunal CASEMATE database).

    [2] PDF – p.36.

15. By (the former) migration agent letter of 25 February 2016, inter alia, with respect to the applicant wife, it was claimed:[3]

    As per the legislation, the applicant provides evidence of having completed all years of primary education and at least 3 years of secondary education at educational institutions in which all instruction was conducted in English.

    [3] PDF – p.24.

16. On 28 June 2017, the Department invited the applicant wife to provide comment on the above suspected non-genuine documents, within 28 days. On 21 July 2017, the applicant wife provided the following further information to the Department:

    I [the applicant wife] wish to provide my statement in relation to the invitation to comment on information for a [Subclass 186] visa. In the letter received from [the Department] …

    Please note that it is not my intention to provide any fraudulent or misleading information to [the Department]. Upon receiving this correspondence from [the Department], I contacted my institutions in India and found the following information:

    ·     Principal of my Govt. Primary school confirmed that [Department officer] visited the school to confirm my enrolment which the Principal confirmed to be true and correct

    ·     the Principal of my Govt. High School will confirm that [Department officer] visited the school to confirm my enrolment from Year 6 to Year 10. The Principal provided a record of Year 6,7,8 but unfortunately the Principal was unable to confirm my enrolment for Year nine and Year 10 because he was unable to find the admission register. The Principal has confirmed to me that record was actually misplaced as it was hand written in a school admission register. The record of mission was later found.

    Furthermore please also note that I was under the impression that if I had studied English as a subject during my schooling then I would be considered that my medium of instruction will be in English. Therefore upon my request to all of my schools they issued me respective letters confirming that my medium of instruction was in English.

    As I mentioned above, it was not my intention to provide any misleading information therefore I confirmed that the letters are provided to support my functional level of English are not satisfactory evidence of my English (sic).

    I am supporting now with letters from my institutions confirming my enrolments and further confirming that I have only studied English as a subject and all the other subjects taught in a language other than English. Following evidences are attached as reference to my statement:

    ·     New letters from my institutions confirming my enrolments and year of enrolments

    ·     School Register confirming my name and enrolment both in Punjabi and translated into English

    ·     my School Certificates which can also be confirmed by the School and further Punjab School Education Board

    My sincere apologies for creating such a situation which leads to a judgemental situation of providing a misleading/bogus document.

    I further wish to confirm that I do not have any evidence of a functional level of English …

    Please further note that my husband [the applicant] who is the main applicant and has been in Australia for 11 years, has worked his way to apply for a visa which leads to permanent residency, therefore at no cost we would want to provide any misleading or bogus information which would jeopardise our application.

17. For the reasons that follow, the delegate was satisfied the applicant wife had given or caused to be given a bogus document within the meaning of s.5(1) of the Act. Accordingly, they were satisfied the applicants did not meet PIC 4020(1).

18. The delegate said that on 9 March 2017, officers from the Australian High Commission in New Delhi, India, conducted a site visit to the Government Primary School and Government High School, Rogla India. During that visit, the officers found the letters provided by the applicant on 17 August 2015, and which had been purportedly issued by the Government Primary School and the Government High School. Both letters were found to be printed on false letterheads. The letters indicated the applicant spouse had studied at the schools in English. Officers also found, through interviews with staff and viewing records from both schools, that the applicant spouse had studied at these institutions, however the language of tuition for both schools was Punjabi and not English. Based on this evidence, officers from the Australian High Commission concluded that both letters from the aforementioned schools were bogus documents.

19. In response to the findings by the Australian High Commission, the applicant wife provided additional documents from the Government Primary School, the Government Senior Secondary School, and the Government High School, Rogla. These indicated the applicant wife studied in another language, with English only being taught as a subject.

20. In migration agent submissions dated 25 November 2019, it was claimed the applicant contacted his mother and father in law to arrange the letter (regarding the wife’s education) from the school. It was then submitted the relevant letter did not state the ‘only medium of tuition was English’, but that the study was ‘in the English medium’.  It was then conceded the ‘statement can be viewed as misleading, [but] it was not false. It was then claimed that ‘upon the receipt of a natural justice letter, the applicant and his wife realised their mistake, and responded accordingly. It was claimed this criteria was not clearly explained to the applicants by the previous migration agent. Therefore, the error was accidental.

21. It was further claimed the letter from the school was not within the definition of a bogus document. It was claimed the original letter was in Punjabi, but the as neither the mother or father in law can read, write or speak English, the review applicant arranged for it to be translated into English. The school’s letter-head was also translated into English. It was then said that the original letter was provided to the previous migration agent, but not then given to the Department. Without the original, it is likely the primary contributor would agree to the allegation that the letter head was false.

22. By statutory declaration dated 25 November 2019, the applicant said:

    ·     the former migration agent explained the English requirements to him but the applicant did not understand

    ·     his wife never studied in the English medium

    ·     the wife did not attempt to provide fraudulent information and it was the fault of the agent

    ·     the wife asked her (uneducated) parents to arrange for the evidence (translated letters)

    ·     the school principal prepared the letters but he was not present when the letters were being investigated

    ·     when the applicant last visited India, all the school staff had retired or moved to different schools

23. At hearing, the Tribunal noted the claim the wife’s parents were uneducated and did not understand what was being translated. The current agent thought the former agent submissions (referred to immediately below), may have constituted a ‘formulaic’ submission to the Department, but the Tribunal said it may not and now does not accept this was correct, given the way in which the evidence appeared to be tailored to the applicant’s case. The Tribunal also noted the (current) agent’s submission that the translated letter did not state the ‘only medium of tuition was English’, but that the study was ‘in the English medium’. However, and particularly given the former migration agent submission that (ie) the evidence indicated the applicant wife “completed all years of primary education and at least 3 years of secondary education at educational institutions in which all instruction was conducted in English”, the Tribunal is satisfied the relevant evidence of the wife’s education, being conducted in the English language, was false and misleading.

24. That being said, and as noted above:

    ·     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, however

    ·     an element of fraud or deception by some person is necessary to attract the operation of the provision

25. In post hearing submissions, the agent referred to relevant case law. The first being Maharjan v MIBP [2017] FCAFC 213, Gilmour, Logan and Mortimer JJ, [2017] FCAFC 213; finding (briefly) that the FCC had ‘erred by not deciding the jurisdictional fact of whether third party fraud had invalidated the visa application or the visa application process’. Second, reference was made to Gill v MIBP, Kenny, Griffith & Mortimer JJ, [2016] FCAFC 142; finding (again briefly) that the ‘primary judge erred in failing to address a question which was of central significance in the particular circumstances, namely whether the appellant’s ‘indifference’ or imputed general authority to his agent extended to whether or not the agent’s conduct in assisting the appellant to make his visa application went so far as to include unlawful or dishonest conduct.

26. At hearing, the applicant explained (words to the effect) that he only briefly spoke to his former migration agent and her subsequent submissions to the Department were then based on the written information provided to her (including from India). After discussing their evidence at hearing, and given the Tribunal was eventually satisfied they were generally credible, the Tribunal considered it was not plausible the applicant or his wife would have intentionally jeopardised their (and their seven year old daughter’s) pursuit of permanent residence in Australia, by providing the aforementioned false information. Further, the Tribunal notes the consequences of an adverse PIC 4020 finding (being a three year ban from 15 August 2017), and the fact the applicant had worked and studied in Australia (for over ten years), and that the Tribunal is not aware of any evidence that he (or his family) had come to any prior adverse attention during their time in Australia.

27. However, the Tribunal then noted evidence of high levels of document fraud in India[4], and that the provision of the false information may have been a well-intentioned effort on the part of the wife’s parents to assist their daughter and son-in-law in the pursuit of the Subclass 186 visa. If the Tribunal was satisfied of this, this would constitute the necessary element of fraud or deception. Be that as it may, after then having considered the issue, the Tribunal believed the evidence of an element of fraud by (ie) the parents, was not robust.

    [4] DFAT COUNTRY INFORMATION REPORT INDIA, 17 October 2018 ‘Prevalence of Fraud, [5.29].

28. By post hearing email of 11 March 2020, the agent stated (in part):

    The recent case of Minister for Immigration v CPJ16 [2019] FCA 2033 unanimously rejected the notion that the Tribunal has the ability to expand the scope of the review and not make a decision on the original issue for which the Delegate refused the Visa Application. It was further affirmed that the Tribunal must still “stand in the shoes” of the original decision maker; thus the Tribunal is bound by a requirement to make a finding on the original reason for the visa refusal, even if alternative grounds for affirming the original decision may not be present.

    We submit that to properly exercise its statutory power of review, the Tribunal must make a finding in relation to the original reason for the refusal; that being a perceived failure to satisfy PIC 4020. We further submit that as per the authorities submitted regarding the exoneration of applicants impacted by third party fraud; it would only be correct to return a favourable decision in relation to PIC 4020.

29. Put briefly, the Tribunal understands the above judgment (Minister for Immigration v CPJ16 [2019] FCA 2033) concerned a decision in the General Division, which may not be directly relevant to reviews in the Migration and Refugee Division (MRD). Be that as it may, it appears to be authority that where there are no relevant new facts emerging on review (unlike in the present case), the Tribunal cannot expand the review to consider aspects of the character test that were not the basis for the delegate’s decision. However, under existing authority, the central question for the Tribunal reviewing MRD matters is whether, at the time the Tribunal makes its decision, the visa applicant is entitled to the grant of, or further consideration of, the visa. Consequently, the Tribunal, having all the powers and discretions conferred on the original decision-maker under s.349(1), can consider whether any criterion for grant of the visa is not satisfied, even if it was not considered by the delegate (ie. provided it meets its procedural fairness obligations). Accordingly, the Tribunal does not accept the agent’s submission that the Tribunal (or at least the MRD) may never expand the scope of the review.

1. That being said, based on all the evidence before it, the Tribunal may not have found there existed the necessary element of fraud or deception by some person, which is required to attract the operation of PIC 4020.   

2. However, and importantly, the Tribunal’s powers on review for Part 5 reviewable decisions are set out in s.349 of the Act; and these are expressed as alternatives. After considering same, and given the Tribunal has affirmed the decision on an alternate basis, the Tribunal is not satisfied it can now make any order with respect to PIC 4020.

   Submissions related to s.376 certificate

3. In migration agent submissions dated 25 November 2019, it was claimed that ‘despite several requests, the Tribunal has refused to provide a copy of the s.376 Certificate issued to prevent the disclosure of a substantial amount of content contained within the Department file’.  This was said to have ‘immensely impeded the review applicant’s preparation’ for the hearing. The agent then suggested that a ‘proper handling of the s.376 Certificate would have resulted in the Certificate being produced for inspection upon request’. It was said the ‘concealed information goes to the very heart of the issue, that being the allegation that the letter from the school was a bogus document’ and withholding this from the applicant creates a ‘practical injustice’.

4. At hearing, the Tribunal stated that after viewing same, it was not satisfied the s.376 Certificate was valid. That was because the Certificate was said to be based on information given in confidence by ‘locally engaged or departmental staff’. The Tribunal does not accept that in this case, it is a material reason to find in favour of the validity of the Certificate.

5. Be that as it may, the Tribunal was satisfied that the relevant ‘false information’ had been provided (albeit not intentionally), that the applicant was already aware of the material information provided by the locally engaged and posted Departmental staff (inter alia as it was fully discussed at hearing), and that in the Tribunal’s view, no material disadvantage to the applicant had arisen. This was not disputed at hearing. Finally, and as the Tribunal has resolved this case on an alternative basis, none of the information would be the reason, or part of the reason, for affirming the decision under review.

   The associated nomination application

6. At hearing, the Tribunal noted it would also need to consider whether the associated nomination application had been approved. By subsequent s.359A letter of 26 February 2020 (dispatched by email to the authorised recipient), after advising the applicant about the Tribunal decision not to approve the associated nomination application of Magic Coin Pty Ltd ATF Tibor Vertes Family Trust, the Tribunal said this information was relevant because cl.186.223(2) requires that the nomination made in relation to the applicant by their nominating employer had been approved. Further, that if the Tribunal relied on this information it may find the nomination in relation to the applicant had not been approved and consequently the decision under review would be affirmed. The applicant was invited to give comments on or respond to the above information in writing; and the comments or response should be received by 11 March 2020. The applicant’s agent responded in writing to this by their aforementioned email of 11 March 2020. The material issues expressed in that email have been discussed above.

7. Based on the above information, the Tribunal is satisfied the nomination application by Magic Coin Pty Ltd ATF Tibor Vertes Family Trust, was refused by the Tribunal on 20 February 2020. As a consequence, the Tribunal is not satisfied the applicant has met cl.186.223(2).

8. Next, the Tribunal notes that as none of the secondary applicants were a member of the family unit of a person who held a subclass 186 visa granted on the basis of satisfying the primary criteria for the visa, cl.186.311 was not satisfied.

9. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Temporary Residence stream have not been met, the decision under review must be affirmed.  

   Referral to Minister

10. Having regard to the applicant’s circumstances, and in particular that the Tribunal may not have accepted any evidence of wrong doing on his part, and given he had successfully undertaken studies in Australia, that he had resided in Australia for over ten years, and that he had a seven year old daughter who was born in Australia, and after then having considered the Ministerial guidelines relating to the Minister’s discretionary power under s.351, set out in the Department’s Procedures Advice Manual (PAM3), the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention.

11. Without wishing to limit the basis for this referral, the Tribunal considers this outcome may (ie) constitute ‘circumstances not anticipated by relevant legislation’, or that the ‘application of relevant legislation leads to unfair or unreasonable results in a particular case’.

    DECISION

12. The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) visas.

    Mr S Norman
    Member