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1214901 [2014] MRTA  1433  (11 June 2014)

Last Updated: 24 June 2014

1214901  [2014] MRTA 1433  (11 June 2014)


DECISION RECORD

APPLICANT: Mr Amandeep Singh

MRT CASE NUMBER: 1214901

DIBP REFERENCE(S): BCC2011/377184

TRIBUNAL MEMBER: Mary-Ann Cooper

DATE: 11 June 2014

PLACE OF DECISION: Melbourne

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


Statement made on 11 June 2014 at 2:51pm


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 10 September 2012 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 12 July 2008. 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 the delegate was not satisfied that the applicant met Public Interest Criterion (PIC) 4020.
  3. On 27 March 2013, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 7 May 2014. The applicant was advised that if there was no attendance at the hearing and a postponement was not granted, the Tribunal may make a decision on the case without further notice.
  4. On 6 May 2014 the applicant’s representative emailed the Tribunal seeking that the hearing be adjourned on the basis the applicant ‘is collecting all the evidence to present before the Tribunal member. The reason for requesting an adjournment is that he came back from overseas recently and requires time to appear before the Tribunal along with all the evidence.’
  5. The Tribunal decided to decline the adjournment request on the basis that the review application had been filed in September 2012 and it considered that the applicant had ample time to collect evidence in support of his application. Similarly, he had been on notice since March of the hearing date and had also had ample time to seek an adjournment. Further, the Tribunal indicated that it was open to submissions at the hearing as to why it should allow further time for the provision of additional evidence.
  6. The Tribunal file records that the Tribunal unsuccessfully attempted to contact the applicant’s representative on his mobile telephone number to convey this response however it was unable to do so and the Tribunal officer had left a message. The file further records that at 10.15 am an email was sent to the email address provided in the adjournment request advising that the Tribunal declined the adjournment request and including the reasons as noted above. Confirmation of delivery was received.
  7. The applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. At the direction of the presiding member an officer of the Tribunal attempted to contact his authorised representative however his mobile telephone went to voicemail. The Tribunal also attempted to call the representative on the landline number provided however the person who answered the telephone advised that the representative no longer worked at the organisation.
  8. To date there has been no response from the applicant’s representative concerning the Tribunal’s attempts to contact him. Furthermore there has been no response to later correspondence sent to the applicant by the Tribunal under s359A and s359(2) of the Act (see paragraph 21 below). In this context the Tribunal has proceeded to make its decision on the review application.
  9. 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:
  2. 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.97 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 s.97 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: Batra v MIAC [2013] FCA 274.
  2. The requirement in PIC 4020(1) not to provide a bogus document, or false and 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 was provided by the applicant knowingly or unwittingly. 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: Trivedi v MIBP [2014] FCAFC 42.
  3. As outlined in the delegate’s decision, a copy of which was provided with the application for review, the applicant submitted IELTS test report no. 10IN028613TA001G dated 23 February 2011 in support of his subclass 485 visa application. That report indicated that the applicant achieved scores of 8.0 for Listening, 8.5 for Reading, 6.5 for Writing and 6.5 for Speaking in a test undertaken on 12 February 2011. On verifying this information the delegate noticed that the photograph on the IELTS test report form as supplied did not match the photograph on the verified record. On 17 July 2012 the delegate wrote to the applicant inviting his response to this adverse information indicating that she was not satisfied that he took the test and that a bogus document may have been supplied to the Department. On the 13 August 2012 the applicant responded, denying the allegations, maintaining that he took the test and claiming an IELTS verification management lapse. Apparently confusing the cancellation provisions in the Act with the subclass 485 visa criteria, the applicant stated that the onus of establishing the facts in such a case is on the Minister. He maintained that the document he supplied was genuine. In her decision the delegate records that she gave the applicant’s response little weight as it was not accompanied by any evidence. She further states that she gives more weight to the response of the authorising body which advised that “After careful review and consideration I can confirm that this Test report form – case number 8590 does not match our records.” On this basis the delegate determined that the applicant had given or caused to be given to the Minister a bogus document and therefore did not satisfy PIC 4020(1). Furthermore there was no evidence of any compassionate or compelling circumstances warranting the waiver of the PIC 4020(1) requirements. Accordingly, the delegate found the applicant did not satisfy cl.485.224.

Bogus document

  1. In Singh v MIMAC [2013] FCCA 1435 (Cameron J, 24 September 2013 at [24-6].

Importantly, what amounts to a bogus document is determined separately from PIC 4020 by application of s.97 of the Act.
For a document to be considered bogus, it is only necessary that the decision-maker “reasonably suspect” that it

A failure to meet the requirements of PIC 4020 will occur if there is evidence of a bogus document having been submitted. If a document which is found to be bogus under the relatively undemanding test in s.97 has been submitted in connection with a visa application, no more is needed to show that there is evidence of the sort referred to in PIC 4020.

  1. The Tribunal has before it, from the Department’s file, the IELTS test report form 10IN028613TA001G as submitted to the Department by the applicant with his visa application and his IELTS test report form 10IN028613TA001G for the same test as verified by IELTS. It is apparent to the Tribunal that the photograph of the person on the verified IELTS results is not the same person (the applicant) who appears in the photograph on the IELTS test report form submitted by him to the Department.
  2. On 15 May 2014 the Tribunal wrote to the review applicant pursuant to s.359A and s.359(2) of the Act, inviting him to provide comments on the above adverse information. It stated (among other things) that, subject to the applicant’s response, this information, if accepted, would be the reason or part of the reason for affirming the decision under review. A copy of the verified results and the results as supplied by the applicant to Department were attached. The correspondence also invited the applicant to provide information about whether or not there were relevant compelling or compassionate circumstances warranting waiver of PIC 4020(1).
  3. The invitation was sent to the nominated authorised recipient at the last address provided in connection with the review and advised that, if the information and/or comments were not provided in writing by 10 June 2014, the Tribunal may make a decision on the review without taking further steps to obtain the information or comments.
  4. The review applicant has not provided the information or comments within the prescribed period and no extension has been sought or granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. In the absence of any advice from the applicant of a change of authorised recipient or address, and in view of the Tribunal’s several unsuccessful previous attempts to contact the applicant’s representative by telephone and email (see paragraphs 6-7), the Tribunal has decided to proceed to decision without taking further steps to obtain the information or comments.
  5. The Tribunal has before it the applicant’s response to the Department of 13 August 2012 (paragraph 14 above) however considers greater weight should be given to the verified IELTS test report form 10IN028613TA001G as held and provided by the IELTS authorising body and its advice in this regard. This document clearly displays a photograph of someone other than the person on the IELTS test report form 10IN028613TA001G as submitted by the applicant to Department. Therefore, on the basis of the material before it, the Tribunal reasonably suspects that the IELTS test report form no. 10IN028613TA001G dated 23 February 2011, as submitted by the applicant to the Department in support of his visa application, for a test purportedly undertaken by the applicant on 12 February 2011, has been altered by a person who did not have authority to do so and therefore is a bogus document within the meaning of s97(b) of the Act.
  6. The Tribunal therefore finds that there is evidence that the applicant has given a bogus document to the Minister in relation to the visa application. It follows that the Tribunal is not satisfied that there is “no evidence” that a bogus document has been given to the Minister.
  7. Therefore, the applicant does not meet PIC 4020(1).

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

  1. The requirements of cl.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.
  2. The applicant has made no claims in this regard in his responses and communications with the Department or the Tribunal. There is nothing on the Department’s file or in the material provided to the Tribunal that indicates that there are any 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.
  3. Therefore the Tribunal is not satisfied that the requirements in subclause PIC 4020(1) should be waived (PIC 4020(4)).

CONCLUSION

  1. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.485.224.
  2. There is no claim nor is there any evidence that the applicant meets 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.

Mary-Ann Cooper
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 Migration Review Tribunal, 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 the application;

the applicant and each member of a family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).

(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 the application;

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).

(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.


Note Regulation 1.03 defines bogus document as having the same meaning as in section 97 of the Act.

Migration Act 1958
97 Interpretation

In this Subdivision:

...

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.

...

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