Suri (Migration) - [2024] AATA 530

Suri (Migration) [2024] AATA 530 (6 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Udit Suri
Mrs Kanika Talwar Suri
Mr Zyan Talwar Suri
REPRESENTATIVE:  Mr Michael Kotsifas
CASE NUMBER:  2202432
HOME AFFAIRS REFERENCE(S):          BCC2018/3675817
MEMBER:Warren Stooke AM
DATE:6 March 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Skilled Nominated (Permanent) visas for reconsideration, with the direction that the first named applicant and secondary applicants meet the following criteria for Subclass 190 - Skilled - Nominated visas:
·Public Interest Criterion 4020 for the purposes of cl 190.216 of Schedule 2 to the Regulations

Statement made on 6 March 2024 at 1:50pm

CATCHWORDS
MIGRATION – Skilled Nominated (Permanent) visa – Subclass 190 (Skilled – Nominated) – false or misleading information in the visa application – bogus document – employment details – employer investigated by the Department – Tribunal set aside actions against the employer – identity requirements – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 65, 140
Migration Regulations 1994, Schedule 2, cl 190.216; Schedule 4, Public Interest Criterion 4020; r, 2.86, 2.89, 2.90, 5.19
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Bushell v Minister for Immigration and Citizenship & Anor [2008] FMCA 1193
Talukder v MIAC & Anor [2009] FMCA 223
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 Home Affairs on 9 February 2022 to refuse to grant the applicants Skilled Nominated (Permanent) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 27 September 2018. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl 190.216 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because of all information to hand to the delegate, at the time of decision, there was serious concern that the applicant had submitted false and misleading information, contained within the work reference, tax notices of assessment, PAYG documents, bank statements and superannuation statement, in relation to the applicant’s claims of employment with City Taxi Care.
The applicants appeared before the Tribunal on 20 February 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Harpreet Grewal, who was the applicants’ employer at City Taxi Care Pty Ltd.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
The applicant provided evidence that he had received a copy of the delegate’s decision from the Department and had read the decision. The applicant stated that he understood the delegate’s decision was that the Department thought the applicant’s work experience was not legitimate and that the applicant was claiming false employment.
The applicant stated that he provided a copy of the decision to the Tribunal with his application for review.

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 Suri (Migration)

Details

AGLC: Suri (Migration) [2024] AATA 530
Case: [2024] AATA 530
Decision Date: 6 March 2024

CaseChat Overview and Summary

This matter concerned an application for a Skilled Nominated (Permanent) visa (Subclass 190) by the applicant, Suri. The core dispute revolved around whether the applicant met Public Interest Criterion (PIC) 4020, which pertains to the provision of false or misleading information or bogus documents in a visa application, and the applicant's identity. The decision was made by Warren Stooke AM of the Tribunal.

The legal issues before the Tribunal were whether the applicant had provided any bogus documents or false or misleading information in relation to the visa application or a previous visa held within 12 months, and whether the applicant had been refused a visa in the preceding three years due to a failure to satisfy PIC 4020(1). Additionally, the Tribunal considered whether the applicant satisfied the Minister as to their identity, and whether they had been refused a visa in the preceding ten years due to a failure to satisfy identity requirements. The Tribunal also had to consider the potential for waiver of certain PIC 4020 requirements under compelling or compassionate circumstances, noting that this waiver did not extend to identity requirements.

The Tribunal's reasoning focused on the applicant's provided evidence, which included details of educational qualifications and employment history, including a skills assessment for the occupation of Motor Mechanic (General). After reviewing this evidence, the Tribunal concluded that the applicant did satisfy PIC 4020 for the purposes of the visa application.

Consequently, the Tribunal remitted the applications for Skilled Nominated (Permanent) visas for reconsideration, with a direction that the applicant and any secondary applicants meet the requirements of PIC 4020 for Subclass 190 visas.

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 190.216 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. The applicant provided evidence that he was granted a Bridging Visa C on 2 October 2018 with no conditions and no travel. The applicant provided evidence that he completed a Certificate III in Automotive Mechanical Technology from 14 September 2009 to 25 June 2010, which was awarded on 25 June 2010. The applicant provided evidence that he completed a Diploma of Management at Cambridge International College from 13 September 2010 to 26 June 2011, which was awarded on 13 July 2011. The applicant provided evidence that he completed a Diploma of Business at Acumen Education from 5 January 2015 to 6 September 2015. The applicant provided evidence of the completion of a Bachelor of Commerce at Bareilley College, M.J.P Rohilkhand University, India, from 2 April 2002 to 1 April 2004. The applicant provided evidence of a successful skills assessment with Trades Recognition Australia (TRA) for the nominated occupation of Motor Mechanic (General) – 321211 dated 16 August 2018 for work undertaken at City Taxi Care Pty Ltd from 8 June 2017 to 1 July 2018. A workshop Job Card was signed by the authorised assessor on 25 June 2018. The applicant provided evidence of a VETASSESS AQF at the Bachelor degree level dated 8 November 2018 for the occupation of Motor Mechanic (General) – 321211.

Decision

Reasons for decision

On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl 190.216.DECISION The Tribunal remits the applications for Skilled Nominated (Permanent) visas for reconsideration, with the direction that the first named applicant and secondary applicants meet the following criteria for Subclass 190 - Skilled - Nominated visas:·Public Interest Criterion 4020 for the purposes of cl 190.216 of Schedule 2 to the Regulations Warren Stooke AMMemberATTACHMENTMigration 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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