Singh (Migration) - [2020] AATA 2204

Singh (Migration) [2020] AATA 2204 (24 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Harmanpreet Singh
CASE NUMBER:  1803735
DIBP REFERENCE(S):  BCC2011/482567
MEMBER:K. Chapman
DATE:24 January 2020
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 24 January 2020 at 3:59pm
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) –bogus document or false or misleading information – skills assessment – Trades Recognition Australia advised department it has no record of applicant – no compassionate or compelling circumstances to waive requirement – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 359A, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 485.224, Schedule 4, criterion 4020

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v MIBP [2017] FCAFC 184
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Plaintiff M64/2015 v MIBP [2015] HCA 50
Singh v MIBP [2018] FCAFC 52
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 20 March 2012 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (‘the Act’).
The applicant, Mr Harmanpreet Singh, applied for the visa on 17 October 2011. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.485.224 of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’) because he did not satisfy Public Interest Criterion 4020 (‘PIC 4020’) and there were no compassionate or compelling circumstances to warrant waiver of this criterion. The delegate determined that the applicant provided false and misleading information in his visa application by falsely claiming that he obtained a Skills Assessment from Trades Recognition Australia (TRA).
On 12 February 2018, the applicant applied to the Tribunal for review of the visa refusal decision providing copies of that decision and the Departmental notification correspondence dated 9 February 2018 with his application. It is apparent the Department determined that the applicant was initially incorrectly notified of the visa refusal decision. The Department therefore notified the applicant again of the visa refusal decision by its correspondence dated 9 February 2018, given to him by hand whilst he was held in immigration detention at that time. Following careful consideration, the Tribunal is satisfied that the applicant has been properly notified of the Subclass 485 visa refusal decision.
On 9 January 2020, the Tribunal wrote to the applicant pursuant to s.359A and s.359(2) of the Act, inviting him to comment on or respond to the following information:
“Your visa application for the Subclass 485 visa lodged on 17 October 2011 indicates that you received…

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 2204
Case: [2020] AATA 2204
Decision Date: 24 January 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking a Skilled (Provisional) (Class VC) visa, subclass 485 (Temporary Graduate). The core of the dispute revolved around whether the applicant had provided a bogus document or false or misleading information in relation to their visa application, thereby failing to meet Public Interest Criterion (PIC) 4020.

The Tribunal was required to determine if the applicant had satisfied PIC 4020, which broadly prohibits the provision of bogus documents or material that is false or misleading in a material particular to the Minister, an officer, or the Tribunal. The Tribunal also had to consider whether any refusal of a visa due to a failure to satisfy PIC 4020 had occurred within the preceding three years. Furthermore, the Tribunal was to assess if there were any compelling or compassionate circumstances that would justify waiving these requirements.

In its reasoning, the Tribunal noted that the definition of a "bogus document" does not require the false or misleading statement to be relevant to a visa criterion, unlike the definition of "information that is false or misleading in a material particular." The Tribunal also highlighted that PIC 4020 applies regardless of whether the applicant provided the document or information knowingly or unwittingly, although an element of fraud or deception by some person is necessary. Citing guidance from the Full Federal Court, the Tribunal emphasised that it is not necessary to prove the applicant's knowing complicity if the material provided is purposely untrue. In this instance, Trades Recognition Australia advised the department that it had no record of the applicant, indicating a potential issue with the submitted skills assessment.

Ultimately, the Tribunal concluded that the applicant did not satisfy PIC 4020 for the purposes of the visa subclass. Finding no evidence that the applicant met the criteria for any other visa subclass within Class VC, and no compassionate or compelling circumstances to waive the requirements, the Tribunal affirmed the decision not to grant the applicant 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 decision under review should be affirmed. CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this review is whether the applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.485.224 for the grant of the visa. Broadly speaking, as is relevant to the present review, 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 that ·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: PIC 4020(2). 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). 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 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. 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. 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. The Tribunal also notes the guidance concerning these matters from the Full Federal Court in the matter of Singh v MIBP [2018] FCAFC 52. In particular, the Tribunal has paid careful regard to the following guidance in that decision [at 144]:“Where an issue of the proper construction or application of PIC 4020 is raised, Trivedi and Patel authoritatively state that where a visa applicant has given or caused to be given to a relevant decision-maker a document which is a “bogus document” as defined, or information that is false or misleading in a material particular as defined, to determine whether PIC 4020 is satisfied or not, it is not necessary to show knowing complicity by the visa applicant as long as the material is purposely untrue.”

Decision

Reasons for decision

On the basis of the above reasons, the applicant does not satisfy PIC 4020 for the purposes of cl.485.224. Further, there is no evidence before the Tribunal that the applicant satisfies the criteria for any other visa subclass within Class VC.DECISION The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.K. ChapmanMember

Ratio Decidendi

Legal Principle Established

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