Taleb (Migration)

[2018] AATA 5333

Taleb (Migration) [2018] AATA 5333 (2 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hassan Taleb

CASE NUMBER:  1517929

DIBP REFERENCE(S):  BCC2011/366640

MEMBER:C. Packer

DATE:2 November 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 02 November 2018 at 10:20am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Cook – skills assessment – false or misleading statement – no record of applicant in TRA – requirements should not be waived – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 98
Migration Regulations 1994 (Cth), Schedule 2, cl 485.224; Schedule 4, PIC 4020

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
Sran v MIBP [2014] FCCA 37
Trivedi v MIBP [2014] FCAFC 42
Zhang v MIAC [2012] FMCA 1011

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 3 December 2015 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 17 August 2011. On 17 February 2012 the Department invited him to comment on adverse information, however, he did not respond in the time provided. 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 information that is false or misleading in a material particular had been provided in relation to his application for a visa.

3.    The delegate’s key findings were that:

• In the application for a visa the applicant had indicated his nominated occupation was Cook and his skills had been skills assessed by Trades Recognition Australia (TRA) on 11 October 2010 with a reference/receipt number TRA10/487567461.

• TRA confirmed that TRA did not provide this reference to the applicant and at the time had never provided him with a skills assessment.

• The statement was both false and misleading at the time it was given.

• No evidence had been provided to suggest the applicant had subsequently been provided with a skills assessment or that any error had been made by TRA.

• He had therefore provided false and misleading information in line with the Public Interest Criterion, PIC 4020(5).

• Whilst S and S Migration are not declared as agents in relation to the visa application, given that records of the visa application had been found on the premises of S and S Migration, the delegate found those agents had assisted the applicant in lodging the application. The operation of s.98 of the Migration Act, in line with policy advice, is that the applicant is legally taken to have completed the visa application form even if it had been completed on his behalf.

• He had not responded to the Department’s Invitation to comment on adverse information letter of 17 February 2012, and had not raised any compassionate or compelling circumstances for the purposes of PIC 4020(4). The requirements of PIC 4020(1) had not been waived. 

4. After reviewing the available information, the delegate found that the applicant had given, or caused to be given, false or misleading information in a material particular in relation to the visa application, being the false TRA reference number. As the applicant had not provided any reasons to waive the requirements of PIC 4020(4), the delegate found that the applicant did not meet PIC 4020(1), did not meet PIC 4020 as a whole and therefore did not meet cl.485.224.

5.    On 27 September 2018, the Tribunal wrote to the applicant inviting him to comment on or respond to information pursuant to ss.359A of the Act, and to provide information pursuant to s.359(2) of the Act. Relevant parts of the letter are:

In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

Please note, however, that we have not made up our mind about the information.

The particulars of the information are:

·In the application for a Skilled - Graduate (Class VC, Subclass 485) visa lodged on 17 August 2011 you had indicated your nominated occupation was Cook and your skills had been skills assessed by Trades Recognition Australia (TRA) on 11 October 2010 with a reference number TRA10/487567461. However, the Department reported that your details and TRA reference number provided had been referred to TRA for checking. This case had been identified for checking as the Department had found records linking the visa application to a business called S and S Migration- a business which had been found to have lodged a number of applications containing false and misleading information.

·The Department reported that when the clients record was provided to TRA for checking the following checking methods were used:

1.       Lookup of TRA Reference Number in source list. Checks if:

a.       any exact matches on TRA number
b.       name doesn’t match
c.       number meets format but no record of the number being issued
d.       number doesn’t meet format, eg. Too long, too short, incorrect prefix

2.       Lookup string of persons DOB as date serial, surname, last name. Checks if the person exists but TRA number may not match.

3.       Additional lookups of number strings following forward slash ie. First 6 characters ignored.

·The Department reported that the Outcome was: “On 20 December 2011 DIAC were advised by TRA that TRA held no record of this client. The reference number they provided could not be verified as it did not exist on TRA systems, and they had no record of this client ever holding a skills assessment.”

·The Department also reported that on 20 December 2011 TRA had advised the Department that TRA had before it the applicant’s Client ID, family name, given name, date of birth, and the TRA reference number- and the TRA assessment was “No Record”.

This information is relevant to the review because the criteria for the grant of the Skilled Graduate visa you have applied for include that there be no evidence you have given or caused to be given to persons including the Minister a bogus document or information that is false or misleading in a material particular in relation to the visa application.

If the Tribunal relies on this information in making its decision, it may find that you do not meet Public Interest Criterion 4020 (PIC 4020) as required by cl.485.224 for the grant of the visa and so the Tribunal may affirm the decision of the delegate to refuse to grant the visa.

You are invited to give comments on or respond to the above information in writing.

INVITATION TO PROVIDE INFORMATION

You are invited to provide the following information in writing:

·Evidence that as at the date on which you made your visa application you had applied for an assessment of your skills for your nominated skilled occupation by a relevant assessing authority.

·Evidence that your skills for that occupation have been assessed by the relevant assessing authority as suitable for that occupation.

·Any information 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.

6.    On 11 October 2018 the representative response was that “our client has advised he will not be providing any further information or comment to the invitation received on the 29^th September 2018.”

7.    On 15 October 2018 the Tribunal sent the applicant copies of the Tribunal’s letter of 27 September 2018 and the representative’s response on 11 October 2018. This was sent to the home address provided to the Tribunal by the applicant’s wife on 15 October 2018[1]. The same day the representative confirmed that was the applicant’s postal/home address.

[1] Tribunal’s file, folio 54

8.    The applicant was invited to attend a hearing before the Tribunal on 8 November 2018 to give evidence and present arguments. However, on 22 October 2018 the applicant declined the hearing, which the Tribunal then cancelled.

9.    The applicant was represented in relation to the review by his registered migration agent.

1. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (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).

1. 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?

1. 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.

2. 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.

3. 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.

4. In the application for a Skilled – Graduate (Class VC, Subclass 485) visa the applicant had indicated his nominated occupation was Cook and his skills had been skills assessed by Trades Recognition Australia (TRA) on 11 October 2010 with a reference number TRA10/487567461. However, the Department reported that the applicant’s details and TRA reference number provided by the applicant had been referred to TRA for checking. This case had been identified for checking as the Department had found records linking the visa application to a business called S and S Migration- a business which had been found to have lodged a number of applications containing false and misleading information.

5. The Department reported that when the clients record was provided to TRA for checking the following checking methods were used:

   1.    Lookup of TRA Reference Number in source list. Checks if:

   a.    any exact matches on TRA number

   b.    name doesn’t match

   c.    number meets format but no record of the number being issued

   d.    number doesn’t meet format, eg. Too long, too short, incorrect prefix

   2.    Lookup string of persons DOB as date serial, surname, last name. Checks if the person exists but TRA number may not match.

   3.    Additional lookups of number strings following forward slash ie. First 6 characters ignored.

6. The Department reported that the Outcome was: “On 20 December 2011 DIAC were advised by TRA that TRA held no record of this client. The reference number they provided could not be verified as it did not exist on TRA systems, and they had no record of this client ever holding a skills assessment.”  On 20 December 2011 TRA had advised the Department that TRA had before it the applicant’s Client ID, family name, given name, date of birth, and the TRA reference number- and the TRA assessment was “No Record”.

7. As summarised above, on 17 February 2012 the Department invited the applicant to comment on adverse information, however, he did not respond in the time provided. On 27 September 2018, the Tribunal wrote to the applicant inviting him to comment on or respond to information pursuant to s.359A of the Act, and to provide information pursuant to s.359(2) of the Act. However, on 11 October 2018 the representative response was that “our client has advised he will not be providing any further information or comment to the invitation” and on 22 October 2018 the applicant declined the hearing, which the Tribunal then cancelled. Although invited to do so, the applicant has not provided any: evidence that as at the date on which he made the visa application he had applied for an assessment of his skills for the nominated skilled occupation by a relevant assessing authority; evidence that his skills for that occupation have been assessed by the relevant assessing authority as suitable for that occupation.

8. Accordingly, based on the material before the Tribunal I find that as the applicant had not been skills assessed by TRA, the information in the application that he had been skills assessed by TRA on 11 October 2010 and had been given a TRA reference number was purposely false. I find the TRA advice on 20 December 2011 is evidence that the information provided in the application- that the applicant’s skills had been skills assessed by TRA on 11 October 2010 with a reference number TRA10/487567461- is information that is false or misleading in a material particular.

9. The applicant applied for the visa on 17 August 2011 and TRA’s advice was given to the Department on 20 December 2011. TRA’s advice shows that the TRA had no record of the applicant ever holding a skills assessment. I find, therefore, that the information provided in the application- that the applicant’s skills had been skills assessed by TRA on 11 October 2010 with a reference number TRA10/487567461- is information that is false or misleading at the time it was given.

10. A criterion for the Skilled (Provisional) (Class VC) subclass 485 (Skilled Graduate) visa is that at the time of application the Minister is satisfied that the applicant has applied for an assessment of the applicant’s skills for the nominated skilled occupation by a relevant assessing authority (clause 485.214). As well, a criterion to be satisfied at time of decision is that the skills of the applicant for the applicant’s nominated skilled occupation have been assessed by the relevant assessing authority as suitable for that occupation (clause 485.221). By instrument IMMI 11/068 made in October 2011, TRA was specified as a relevant assessing authority. The validity of that instrument was upheld in Zhang v MIAC[2], insofar as it was relevant to time of decision criteria.

    [2] [2012] FMCA 1011 (Barnes FM, 2 November 2012)

11. I find that at the time of TRA’s advice given to the Department on 20 December 2011, and at the time of decision on 29 March 2012, TRA was the relevant assessing authority specified under regulation 2.26B to skills assess the nominated occupation of Cook. I find, therefore, that the information provided in the application- that the applicant’s skills had been skills assessed by TRA on 11 October 2010 with a reference number TRA10/487567461- is information that is relevant to the criteria the Minister may consider when making a decision on the application.

Fraudulent conduct by the migration agent in the visa application

1. Despite ample opportunity, the applicant has not argued that he did not authorise the migration agent to make the false claims in the application. Nonetheless, where an applicant lodges a visa application through an agent, the applicant, being a principal, will be bound under the common law principles of agency by the acts of an agent acting within the scope of his or her authority. Actual authority may be express or implied and a principal can be liable for the actions of an agent, even if the agent’s act is unlawful or amounts to fraud.  As a result, even where an applicant did not fill out an application form, he or she may be found to have caused false or misleading information to be given to a specified person, and thus not to have complied with PIC 4020, despite allegations of fraud by an agent. Indeed, in Sran v MIBP[3] the Court considered an applicant’s claims that the false and misleading information, in that case a non-existent TRA skills assessment reference, was provided in the visa application as a result of migration agent fraud. In that case, the applicant had instructed the agent to lodge a visa application, a fee was discussed and the applicant knew that the visa application was to be made. The Court considered these facts were sufficient to ground the Tribunal’s finding that an agency agreement was established for that purpose and that the visa application was validly made. As well, in circumstances where the applicant was indifferent to the detail of the application and where the agent acted within the scope of its authority, it was open for the Tribunal to find that the applicant had ‘caused’ the process of making the application for the visa, which extended to the giving of false and misleading information.[4] In sum, based on the material before the Tribunal, I find that the migration agent was authorised to make the visa application and that the visa application was validly made.

Should the requirements of PIC 4020(1) or (2) be waived?

[3] [2014] FCCA 37 (Judge Nicholls, 17 January 2014)

[4] Sran v MIBP [2013] FCCA 37 (Judge Nicholls, 17 January 2014) at [83] and [111]-[112]. Similarly, in Koirala v MIBP [2014] FCCA 842 (Judge Turner, 12 March 2014) at [6] and [7], the Court concluded that it was open to the Tribunal to find that the applicant’s lack of involvement or failure to take any interest in the visa application demonstrated that the applicant had instructed the agent to lodge the application and that he was indifferent as to how that agent went about that task. See also Singh v MIBP [2014] FCCA 1816 (Riethmuller J, 20 August 2014), in which the Court found it was open for the Tribunal to conclude that the applicant was indifferent to the contents of their visa application.

1. 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.

2. As summarised above, on 17 February 2012 the Department invited the applicant to comment on adverse information, however, he did not respond in the time provided. On 27 September 2018, the Tribunal wrote to the applicant inviting him to comment on or respond to information pursuant to ss.359A of the Act, and to provide information pursuant to s.359(2) of the Act. However, on 11 October 2018 the representative response was that “our client has advised he will not be providing any further information or comment to the invitation” and on 22 October 2018 the applicant declined the hearing, which the Tribunal then cancelled. In sum, there is no material before the Tribunal that shows 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. The Tribunal is not satisfied that the requirements should be waived.

3. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.485.224. He does not satisfy the criteria for any other subclass within the class of visa sought.

DECISION

1. The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

C. Packer
Member

ATTACHMENT

Migration Regulations 1994

Schedule 4

1. (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.

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