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 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.
In his decision, the delegate noted that on 17 February 2012 the Department contacted the applicant and provided him with an invitation to comment on the following adverse information in relation to his visa application:
It is alleged that you lodged your 485 application with the assistance of a business known as S & S Migration, who have been found to have lodged applications to the Department containing false and misleading information.
The Department identified a file with your personal details and the application reference numbers in the office of S & S Migration.
You provided the following reference indicating a successful skills assessment TRA09/651514346. Trades Recognition Australia (TRA) have no record of providing you this skills assessment.
TRA also have no record of ever providing you with any skills assessment.
It is alleged that you provided false and misleading information to the Department in relation to your application for a 485 visa.
The Department gave the applicant 28 days in which to respond to its invitation. The Tribunal notes that the applicant did not provide any response.
Applicant’s evidence
Mr Singh arrived in Australia in June 2008 with his former wife. His visa was granted on the basis that he was a member of a family unit of his wife who was the primary visa holder.
The couple lived together in Australia for approximately six months before separating. Mr Singh had been working away from home for approximately three months. When he returned to the house he and his wife were sharing, she had disappeared without leaving any forwarding address or telephone number. The applicant’s former wife subsequently commenced divorce proceedings in India and Mr Singh was served with an application for divorce at his family’s address in India.
As his wife was the primary visa holder, she engaged a migration agent to lodge the application for their visas and was responsible for organising the documents required to provide to the agent. The applicant was not aware of the requirements for that visa, save that he underwent a medical examination because he understood that the results of that examination were required to be provided to Australian authorities for the purpose of his visa. He was also aware of the period of his visa and the fact that it expired in early August 2011.
Approximately 10 to 15 days prior to the lodgement of his visa application on 10 August 2011, the applicant telephoned a person he knew as Mr Jeetender Singh of S and S Migration, at the suggestion of a friend. The applicant told the Tribunal that he was not aware (prior to the lodging of his visa application) that Mr Jeetender Singh was involved with S and S Migration.
The applicant spoke to Mr Jeetender Singh on three to four occasions before the visa application was lodged. They did not meet but spoke on the telephone on each occasion. The applicant was informed by Mr Jeetender Singh that he could obtain him a work visa for eight to 10 years and the only document he required was a copy of the applicant’s passport. The applicant emailed Mr Jeetender Singh a copy of his passport and paid him $2,500.
The applicant explained that when he asked Mr Jeetender Singh to assist him in applying for a visa, he was not aware that Mr Jeetender Singh would include false and misleading information in the application and thought that Mr Jeetender Singh was a reputable migration agent.
The applicant said that Mr Jeetender Singh had subsequently sent him a copy of his visa, although this document did not have any dates on it and the only information he had about the length of the visa, was Mr Jeetender Singh’s advice that the visa would be for eight to 10 years.
The applicant told the Tribunal that approximately six months after he was sent the visa by Mr Jeetender Singh, he was discussing his visa with the friends with whom he shared a house. They asked him about how he managed to obtain a visa without providing any documents other than his passport because they didn’t think this was possible in Australia. As a result of this conversation the applicant attempted to contact Mr Jeetender Singh by telephone and email, but his calls and emails were not answered.
The Tribunal questioned the applicant about the information contained in the visa application. He confirmed that a number of the details were untrue, including his relationship status; his email address; his nominated occupation of welfare worker; the date and reference number for a skills assessment by Trades Recognition Australia; his qualification of Diploma of Welfare Management and the institution at which he studied. However, the applicant’s address on the visa application form was correct as at 10 August 2011.
The Tribunal notes that the Department’s file contains a certificate and notification dated 13 September 2018, regarding the Tribunal’s discretion to disclose certain information under s.376 of the Act in relation to that information, certifying that disclosure of this material would be contrary to the ‘public interest’ because release of the information in folio 24 of the Department’s file, may disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or would be likely to prejudice the effectiveness of those methods.
After considering this material, the Tribunal is satisfied that the certificate is a valid one and that the release of any information in folio 24 which identifies lawful methods for preventing, detecting and investigating breaches or evasions of the law would or would be likely to prejudice the effectiveness of those methods.
Accordingly, the Tribunal did not disclose such information to the applicant but did invite the applicant, pursuant to s.359AA of the Act, to respond to or comment on information in the Department’s file in folio 24 which shows that a number of visa applications lodged with the Department (including that of the applicant) by S and S Migration contained false and misleading information. This document further shows that on 20 December 2011 Trades Recognition Australia advised the Department that it held no record of the applicant; the reference number provided on the visa application form did not exist on Trades Recognition Australia systems; and it had no record of the applicant ever holding a skills assessment.
Although the applicant didn’t indicate to the Tribunal that he accepted responsibility for the provision of the false and misleading information, he did tell the Tribunal that he would accept whatever decision the Tribunal made.
The applicant told the Tribunal that he was currently working as a truck driver. In October 2016 he remarried in a religious ceremony at a Sikh Temple and lives with his wife in Parramatta, New South Wales.
Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in a 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 attachments 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.
For information to be ‘false and misleading in a material particular’ in the context of PIC 4020 there must be a visa criterion upon which the allegedly false information could materially bear. The definition in PIC 4020(5)(b) focuses upon the materiality of the information. It applies to information that goes to something which will or might determine the visa application and is not concerned with information that is irrelevant to the visa requirements. However, the referable criterion cannot be the one requiring satisfaction of PIC 4020 itself.
In Singh v Minister for Immigration & Anor [2012] FMCA 145 at [67], Driver FM stated:
Clause 4020(5) specifies that information that is false or misleading in a material particular means information that is false or misleading at the time it is given and 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.
Section 98 of the Act states that a non-citizen who does not fill out their application form, is taken to have done so if he or she causes it to be filled in or if it is filled in on their behalf. In this case the Tribunal finds that the effect of s.98 of the Act is that the applicant is taken to have filled in the application which was lodged on his behalf, with the consequence that no question of the agent’s authority to do so arises. In such circumstances, no question of the validity of the applicant’s application by reason of want of authority on the part of the agent arises. The operation of s.98 is not subject to any express or implied limitation in circumstances where a visa application is associated with, or the product of, unlawful conduct. See Kaur v Minister for Immigration and Border Protection [2016] FCCA 736 and Prodduturi v Minister for Immigration and Border Protection [2013] FCCA 1805 at [32] and [35].
The Tribunal is satisfied that the applicant authorised Mr Jeetender Singh to complete and lodge the visa application on his behalf and provided his agent with information to enable the agent to complete the task.
The Tribunal is satisfied on the evidence before it that the applicant’s migration agent sought to deceive the Department by purposely providing false and misleading information regarding the applicant on the visa application form. The Tribunal is satisfied that the fraudulent and deceptive actions of the applicant’s migration agent attracted the operation of PIC4020. The false and misleading information was that the applicant had applied for an assessment of his skills for the nominated skilled occupation by a relevant assessing authority (cl.485.214). It included a false reference number for a skills assessment provided by Trades Recognition Australia. The Tribunal is further satisfied that the false and misleading information regarding the applicant’s skills assessment was provided in relation to a material particular in the context of a visa criterion for a Subclass 485 visa.
The Tribunal finds that it was open to the applicant to make enquiries about the nature of the application or the content of the application. The applicant was, at the least, indifferent to the nature or content of such an application.
Therefore, the applicant does not meet PIC 4020(1).
Given that the applicant provided limited information about his personal circumstances at the hearing, on 9 November 2018 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act inviting him to provide information regarding whether there are any compassionate or compelling circumstances which applied to him, a member of his family or any other person.
The invitation was sent to the last address provided in connection with the review and the Tribunal advised the due date for a response was 23 November 2018. The applicant has not provided the information within the prescribed period and no extension has been requested or granted.
The Tribunal has given consideration to whether it should adjourn the review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It also had regard to the decision in Minister for Immigration and Citizenship v Li (2013) 239 CLR 332 regarding the reasonableness of any request for adjournment and the Full Federal Court decision in Minister for Immigration andBorder Protectionv Singh (2014) 231 FCR 437 which considered this issue, as well as a more recent decision in Kaur v Minister for Immigration and Border Protection (2014) 236 FCR 393 where analogous issues were discussed.
The Tribunal considered: whether, in the circumstances of this case, information regarding any compelling circumstances that affect the interests of Australia or regarding compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen that justify the granting of the visa is likely to be forthcoming; whether the applicant has had a fair opportunity to provide the relevant information or documents already; and the significance of the informational documents of the applicant.
In these circumstances and for the reasons set out in this decision, the Tribunal considers that the applicant has had a fair opportunity to provide the relevant information and sufficient time to take steps to satisfy the regulatory criteria. The Tribunal notes it is uncertain if and when the applicant will provide information in writing as to whether there are compassionate and compelling circumstances which may affect the exercise of the Tribunal’s discretion.
Should the requirements of PIC 4020(1) or (2) be waived?

The requirements of PIC 4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in r.1.03), that justify the granting of the visa. The decision-maker must first be satisfied that there are such circumstances, then must consider whether to exercise the discretion to waive the requirements, having regard to those circumstances: Kaur v MIBP [2017] FCAFC 184.
The expressions ‘compelling circumstances’ and ‘compassionate or compelling circumstances’ are not defined for these purposes. To be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied: see Plaintiff M64/2015 v MIBP [2015] HCA 50. The ordinary meaning of ‘compassionate’ relates to feelings of sympathy, sorrow, pity or concern for others.
For the following reasons, the Tribunal is not satisfied that the requirements should be waived.
The Tribunal appreciates that if the visa is not granted, it may be difficult for the applicant to return to India without employment and limited financial resources. Such a move would also have a significant impact on his present wife, who he married here. Although the applicant’s wife is not an Australian citizen or permanent resident the Tribunal accepts that it would cause some disruption and difficulties for her if the applicant was required to leave Australia and potentially separation if she did not accompany him. The Tribunal further accepts that if the applicant were required to leave Australia, he would lose his employment as a truck driver. However the Tribunal is not satisfied that these matters amount to compassionate and compelling circumstances for the purpose of PIC 4020.
The policy guidance regarding the factors relevant to a finding that there are compassionate or compelling circumstances are contained in the Department’s Procedures Advice Manual (PAM3). These factors include a consideration of the severity of the fraud committed by the applicant against the circumstances presented.
The Tribunal has had regard to the statements of policy in the current version of PAM3. The Tribunal notes that it may have regard to Departmental policy in considering the waiver but this is not binding on the Tribunal.
The Tribunal does not condone the fraudulent activities of S and S Migration and acknowledges that migration fraud is not in the best interest of the Australian community. In reaching its decision regarding the question of compelling circumstances, the Tribunal has given weight to the following matters:
·     The applicant’s behaviour in choosing not to make enquiries of his migration agent regarding the type of visa, the criteria for the grant of the visa, the length of the visa and the lack of any documents to be provided to the Department apart from a copy of his passport, which behaviour indicates his indifference to the detail of the application and constitutes complicity by the applicant in the fraud, and/or indifference as to whether the actions of S and S Migration were lawful or unlawful.
·     The seriousness and extent of the fraud perpetrated by S and S Migration.
·     The difficulty for the Department to prevent and detect migration fraud where applicants are prepared to act with indifference as to the detail of their visa applications and whether their migration agents actions are lawful or unlawful.
Accordingly, the Tribunal is not satisfied that there are compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in r.1.03) that justify the granting of the visa.
For the above reasons, the Tribunal finds that the visa applicant does not satisfy PIC 4020 for the purposes of cl.485.224 of Schedule 2 to the Regulations.
Merits of the applicant’s case
The substantive issues in this case are whether:
· At the time of application for a Subclass 485 visa, the applicant applied for an assessment of skills for the nominated skilled occupation by the relevant assessing authority as required in cl.485.214, and
· The applicant satisfies cl. 485.224, which requires him to meet PIC 4020, which in turn requires that there is no evidence that the applicant caused to be given to the Minister (or the Department) a bogus document or information that was false or misleading in a material particular in relation to the visa application.
During the course of the hearing, the Tribunal raised with the applicant the time of application criteria set out in cl.485.214. This clause prescribes that at the time of the visa application, the Minister must be satisfied that the applicant has applied for an assessment of the applicant’s skills for the nominated skilled occupation by the relevant assessing authority.
In his evidence the applicant stated that he did not apply for the skills assessment to Trades Recognition Australia at the time of application for the Subclass 485 visa. Based on this evidence, the Tribunal finds that at the time of the visa application the applicant had not applied for a skills assessment for the nominated skilled occupation by the relevant assessing authority and therefore does not satisfy the requirements of cl.485.214.
CONCLUSION
On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.500.21791 and the Tribunal is not satisfied that the requirements of PIC 4020(1) should be waived.
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 Costa
Member
ATTACHMENT
Migration Regulations 1994
Schedule 4
4020(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 1958
s.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.
…