Singh (Migration) - [2018] AATA 2338

Singh (Migration) [2018] AATA 2338 (15 May 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Sukhwinder Singh
Mrs Narinder Kaur
Miss Harkamal Kaur Saini
Mr Jaskamal Singh Saini
CASE NUMBER:  1620357
DIBP REFERENCE(S):  BCC2012/1246145
MEMBER:Karen Synon
DATE:15 May 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 457 (Business (Long Stay)) visas:
·Public Interest Criterion 4020 for the purposes of cl.457.224 of Schedule 2 to the Regulations.

Statement made on 15 May 2018 at 3:55pm

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 (Business (Long Stay)) – Bogus document – False or misleading documents – Reference letters – Site visit – Employer’s inability to recognise applicant – Decision under review remitted
LEGISLATION
Migration Act 1958, s 5
Migration Regulations 1994, Schedule 2 cl 457.224, PIC 4020
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 27
Kaur v MIBP [2014] FCA 281
Kaur v MIMAC [2013] FCCA 933
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 August 2013 to refuse to grant the applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 19 November 2012. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy Public Interest Criterion 4020 for the purposes of cl.457.224 of Schedule 2 to the Migration Regulations 1994 (the Regulations). On 28 November 2014 a differently constituted Tribunal affirmed the decision under review. On 26 October 2016 this matter was remitted back to the Tribunal for reconsideration on the basis that the decision was affected by jurisdictional error.
The applicants appeared before the Tribunal on 1 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Bandhu, the applicant’s overseas employer and Mr Ulik Metohu, the applicant’s current employer and proposed 457 sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicants were represented in relation to the review by their registered migration agent who was present throughout the hearing.
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 Public Interest Criterion 4020 (PIC 4020) as required by cl.457.224 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…

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) [2018] AATA 2338
Case: [2018] AATA 2338
Decision Date: 15 May 2018

CaseChat Overview and Summary

This matter concerned an application for a Temporary Business Entry (Class UC) visa, Subclass 457 (Business (Long Stay)), brought before the Tribunal by the applicant. The central issue was whether the applicant met Public Interest Criterion (PIC) 4020, which requires that an applicant has not provided a bogus document or false or misleading information in relation to their visa application or a previous visa held within the preceding 12 months. The Tribunal was also required to consider whether the applicant had satisfied identity requirements and had not had previous visa refusals due to failures under PIC 4020.

The Tribunal was tasked with determining whether the applicant had provided a bogus document or information that was false or misleading in a material particular, as defined by the Migration Regulations 1994 and the Migration Act 1958. This involved considering the definitions of "bogus document" and "information that is false or misleading in a material particular," and whether the applicant's conduct met these definitions. The Tribunal also had to assess the applicant's compliance with the identity requirements under PIC 4020(2A) and the history of visa refusals under PIC 4020(2) and (2B).

The Tribunal reasoned that the applicant did satisfy PIC 4020 for the purposes of the visa application. The decision indicates that the Tribunal concluded that there was no evidence of the applicant providing a bogus document or false or misleading information that would preclude the grant of the visa under PIC 4020(1). Consequently, the Tribunal remitted the applications for reconsideration with a direction that the applicant meets the relevant criteria under PIC 4020.

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 Public Interest Criterion 4020 (PIC 4020) as required by cl.457.224 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.

Decision

Reasons for decision

On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl.457.224.DECISION The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 457 (Business (Long Stay)) visas:·Public Interest Criterion 4020 for the purposes of cl.457.224 of Schedule 2 to the Regulations.Karen SynonMemberATTACHMENTMigration 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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