Singh (Migration) - [2018] AATA 5800

Singh (Migration) [2018] AATA 5800 (10 December 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Gurpreet Singh
CASE NUMBER:  1600087
DIBP REFERENCE(S):  BCC2011/355307
MEMBER:Amanda Mendes Da Costa
DATE:10 December 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.
Statement made on 10 December 2018 at 11:37am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 – migration agent purposely provided false and misleading information – false reference number for skills assessment – indifference of applicant – fair opportunity to provide relevant information – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 65, 359, 363, 376
Migration Regulations 1994, r 1.03, Schedule 2, cls 485.214, 485.224, 500.21791, Schedule 4, PIC 4020

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2016] FCCA 736
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Citizenship v Li (2013) 239 CLR 332
Plaintiff M64/2015 v MIBP [2015] HCA 50
Prodduturi v Minister for Immigration and Border Protection [2013] FCCA 1805
Singh v Minister for Immigration & Anor [2012] FMCA 145
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 14 December 2015 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 10 August 2011. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.485.224 of the Schedule 2 to the Migration Regulations 1994 (the Regulations) because he failed to meet Public Interest Criterion 4020(1) (PIC 4020) and there were no compassionate or compelling reasons to waive the requirements of PIC 4020 as set out in PIC 4020(4).
The applicant appeared before the Tribunal on 14 September 2018 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was represented in relation to the review by his registered migration agent but his agent was not present at the hearing. In answer to a question from the Tribunal, the applicant said that he was prepared for the hearing to proceed in the absence of his agent.
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 visa applicant meets PIC 4020 as required by cl.485.224 for the grant of the visa. Broadly speaking, this requires that:
· There is no evidence that the applicant has given, or caused…

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.

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Details

Case: [2018] AATA 5800
Decision Date: 10 December 2018

CaseChat Overview and Summary

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, Subclass 485, by Mr Singh. The Tribunal was required to determine whether the applicant met Public Interest Criterion (PIC) 4020, which is a mandatory requirement for the grant of this visa. The core of the dispute revolved around whether the applicant had provided false or misleading information or a bogus document in relation to his visa application.

The legal issues before the Tribunal were whether the applicant had given, or caused to be given, to the Minister, an officer, or a relevant assessing authority, a bogus document or information that was false or misleading in a material particular, as stipulated by PIC 4020(1). The Tribunal also considered the definitions of "bogus document" under section 5(1) of the Migration Act 1958 and "information that is false or misleading in a material particular" under PIC 4020(5). The Tribunal noted that the provision applies regardless of whether the applicant was aware the information was false or misleading, provided an element of fraud or deception by some person was present.

The Tribunal found that the applicant had not satisfied PIC 4020(1). This conclusion was based on evidence that a migration agent had provided a false reference number for the applicant's skills assessment. Although the applicant claimed indifference to this aspect of the application, the Tribunal determined that the provision of false information by an agent acting on the applicant's behalf engaged PIC 4020. The Tribunal also noted that the waiver provisions under PIC 4020(4) did not apply to the identity requirements, and while the applicant was given a fair opportunity to provide relevant information, this did not negate the initial contravention.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Skilled (Provisional) (Class VC) visa, Subclass 485, as the applicant failed to meet the mandatory criteria.

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 visa applicant meets PIC 4020 as required by cl.485.224 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. 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.

Decision

Reasons for decision

Accordingly, the Tribunal finds that the applicant does not satisfy the criteria for the grant of the Subclass 485 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.DECISION The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.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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