Waichigo (Migration)

[2019] AATA 5236

Waichigo (Migration) [2019] AATA 5236 (26 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Stanley Kamau Waichigo
Ann Wanjiru Kamau
Jemimah Wangui Kamau

CASE NUMBER:  1723488

HOME AFFIRS REFERENCE:                  BCC2016/4319860

MEMBER:Lilly Mojsin

DATE:26 September 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the applications for Regional Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 187 -  Regional Sponsored Migration Scheme visas:

·Public Interest Criterion 4020 for the purposes of cl.187.213 of Schedule 2 to the Regulations.

Statement made on 26 September 2019 at 3.56pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Temporary Residence Transition stream – dairyman – bogus documents – false or misleading information – non-genuine nature of documents provided error of institution – attempted to rectify incorrect information provided by institution – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 65, 375
Migration Regulations 1994 (Cth), Schedule 2, cl 187.213, Public Interest Criterion 4020

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Trivedi v MIBP [2014] FCAFC 42

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 11 September 2017 to refuse to grant the applicants Regional Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 21 December 2016. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl.187.213 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because .

3. The applicants appealed that decision to this Tribunal attaching a copy of the Department decision to the application for review.

4. The applicants appeared before the Tribunal on 25 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence from David and Michael Partridge and references from Graeme Molony and St Michael’s Catholic Primary School.  

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The applicant applied for a Regional Sponsored Migration Scheme (subclass 187) visa in the Temporary Residence Transition stream.

6. On 22 December 2016 and 25 June 2017 respectively, the applicant provided the following evidence to the Department:

   ·Institute of Commercial Management (ICM), Sales and Marketing Diploma Certificate dated 20 January 2004

   ·Lakeview Training Institute Sales and Marketing Diploma, Academic Transcript dated 20 December 2003

7. On 19 July 2017 officers from the Australian High Commission, Nairobi, Kenya contacted the ICM in England and provided the documents listed above to that institution to verify their authenticity. The officers found that transcripts of academic results from ICM bear no resemblance to the transcript the applicant provided issued by Lakeview Training Institute under the Accreditation of the ICM. They were advised that the ICM Diploma Certificate and Transcript provided would not meet the institution's stringent quality control. The documents were found to be counterfeit documents and the officers concluded that both documents were non-genuine in nature.

8. In response to the Department on 8 September 2017, the applicant advised the Department that he studied sales and marketing course and sat for an ICM examination through Lakeview Training Institute at Naivasha Town in Kenya, and was given a Single Subject Diploma in Marketing. A few days later he went to the institution to inquire whether a sales subject will have a separate certificate. The new staff told him his Diploma could have been issued with errors and required correction which would take at least one week and correction fee is applicable. A week later he was given his Diploma indicating both subjects were done and advice that now is ok, meaning the first one with single subject was invalid, second with both subjects is genuine one, but he kept both in case needed any for future reference.

9. Later in June 2017 when planning how he can advance in his studies, he decided to get more details from ICM itself but discovered the ICM results do not match with his Diploma which was issued after claimed errors were corrected but they matched with the first single subject diploma. This means that he failed sales subject but was never informed and instead someone tricked him and he paid for the correction of errors which were not there. Unfortunately he had already used his second diploma of sales and marketing during his visa application. He was not aware at all the document he used was not genuine because he could have used the right one. He was unable to follow up because the institution no longer operates.

10. The delegate found that the applicant sought to establish that the non-genuine nature of the documents provided could be the result of an error on the part of the institution. The delegate found that these claims do not address the advice from ICM to the Australian High Commission in Nairobi, that the transcript does not bear resemblance to their documents and that the Diploma Certificate and the Transcript would not meet their quality controls and the applicant has not provided evidence from the ICM or Lakeview Training Institute which would substantiate the applicant’s assertions.

11. The applicant also provided to the Tribunal:

    ·    Email to Academic Registrar dated 30 August 2019 seeking information that his record exists and that he holds ICM Diploma

    ·    Email dated 30 August 2019 from Andrea Barrett, purporting to be from ICM, that the applicant has successfully passed the Single Subject of Marketing with ICM.

    ·    Certificate from ICM Single Subject Diploma in Marketing

12. At the commencement of the Tribunal hearing the Tribunal explained to the applicant that a s.375 Certificate on the file stated that disclosure of the information was contrary to the public interest. The Tribunal explained that the information sought to be protected was the name of the off-shore referral officer who had made enquiries regarding his certificates and it was the Tribunal’s view that it was in the public interest not to disclose the name of the officer but the Tribunal would disclose the information.  The Tribunal read out the document and stated that it was referred to in the delegate’s decision.

13. The Tribunal discussed an ICM Certificate ‘Single Subject Diploma in Marketing noting the reference number, date and signatures was identical to the ICM Certificate, marked Sales and Marketing Diploma.  

14. A reference from the applicant’s employer WS Partridge & Sons, and evidence given by David Partridge and Michael Partridge attests to the applicant’s employment as a skilled dairyman who runs their dairy, has unique expertise in his field and his employment has nothing to do with his marketing and sales skills.

    REASONS AND FINDINGS

15. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.187.213 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).

16. 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.

17. 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.

18. 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.

19. 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.

20. The applicant provided 2 certificates to the Department in support of his application,  Lakeview Training Institute transcript dated 20 December 2003 and ICM Diploma certificate dated 20 January 2004 and also the Certificate, Transcript and email from ICM dated 30 August 2019.

21. The Tribunal accepts that the Lakeview Institute no longer exists. The Tribunal has viewed ICM certificates dated in 2004, on the internet[1] and notes that these certificates are identical to the Certificate issued to the applicant. Therefore the Tribunal is not satisfied that the information provided by ICM that the ICM Diploma Certificate and the Transcript would not meet their quality controls, is correct. As for the Lakeview Academic Transcript, having heard the applicant give evidence to the Tribunal regarding his studies and his attempts to clear up what appears to be incorrect information provided by Lakeview, the Tribunal accepts that the applicant has passed Single Subject in Marketing at ICM and ICM has not issued an award for Sales & Sales Management to the applicant. The Tribunal therefore gives the applicant the benefit of the doubt regarding the Transcript from Lakeview Institute that it is incorrect and he has attempted to have it corrected but has been unsuccessful in doing so.

    [1]

22. The Tribunal is not satisfied that the applicant provided a bogus document or false and misleading information, to the Department, at the time it was given. The applicant meets PIC 4020(1).

23. PIC 4020(2) requires the Tribunal to be satisfied that the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing 3 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2AA). 

24. The Tribunal has no information before it to suggest that the applicant has been refused a visa in the relevant period because of a failure to satisfy PIC 4020(1). Therefore, PIC 4020(2) is met.

25. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.  The applicant has provided information about his identity to the Department. The Tribunal is satisfied as to her identity.

26. Therefore, the applicant meets PIC 4020(2A).

27. PIC 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2BA).

28. There is no information before the Tribunal to suggest that the applicant has been refused a visa in the relevant period because of a failure to satisfy PIC 4020(2A). Therefore PIC 4020(2B) is met.

29. On basis of the above, the applicant satisfies PIC 4020 for the purposes of cl.187.213.

    DECISION

30. The Tribunal remits the application for the applications for  Regional Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 187 -  Regional Sponsored Migration Scheme visas:

    ·Public Interest Criterion 4020 for the purposes of cl.187.213 of Schedule 2 to the Regulations.

    Lilly Mojsin
    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.  

    …