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…

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 Taleb (Migration)

Details

AGLC: Taleb (Migration) [2018] AATA 5333
Case: [2018] AATA 5333
Decision Date: 2 November 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the application of Mr Taleb for review of a decision made by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The Minister had refused to grant Mr Taleb a Skilled (Provisional) (Class VC) visa, subclass 485 (Temporary Graduate), on the basis that he had made a false or misleading statement in relation to his application. Specifically, the statement related to a skills assessment for the occupation of Cook, which the Department of Education and Training (DET) indicated it had no record of.

The Tribunal was required to determine whether Mr Taleb had made a false or misleading statement in his visa application, and if so, whether the Minister's decision to refuse the visa was correct. The Tribunal also had to consider whether any of the criteria for the visa could be waived, given the circumstances.

The Tribunal found that Mr Taleb had indeed made a false or misleading statement by claiming to have a valid skills assessment from the DET when no such record existed. The Tribunal noted that the DET's assessment was a mandatory requirement for the subclass 485 visa for the occupation of Cook. As the statement was found to be false and the requirement could not be waived, the Tribunal affirmed the Minister's decision to refuse the visa.

Orders