1800105 (Migration)
[2019] AATA 6057
•11 September 2019
1800105 (Migration) [2019] AATA 6057 (11 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1800105
MEMBER:Alison Mercer
DATE:11 September 2019
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the application for an Employer Nomination (Permanent) visa for reconsideration, with the direction that the applicant meets the following criteria for a subclass 186 - Employer Nomination Scheme visa:
·Public Interest Criterion 4020 for the purposes of cl.186.213 of Schedule 2 to the Regulations.
Statement made on 11 September 2019 at 4:29pm
CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 Employer Nomination Scheme – false or misleading information in application – compelling or compassionate reasons – no criminal convictions declared in previous visa application – convictions previously declared to the Department in several other contexts – intention to deceive – potential impact on the applicant’s employer and its Australian employees – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 65, 501
Migration Regulations 1994, Schedule 2, cl 186.213; Schedule 4 Public Interest Criterion 4020
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur & Ors v Minister for Immigration & Anor [2018] FCCA 1614
Lorenzo Paduano v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 211
Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
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 Immigration on 22 December 2017 to refuse to grant the applicant an Employer Nomination (Permanent) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 2 May 2017. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.186.213 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate noted that cl.186.213(1) required that the applicant met Public Interest Criterion 4020 (PIC 4020), and that PIC 4020 in turn required there was no evidence that the applicant had given, or caused to be given, to the Minister, an officer, the Tribunal or a relevant assessing authority, a bogus document or information that is false or misleading in a material particular in relation to the visa application, or a visa that the applicant held in the period 12 months before the current visa application was made. The delegate found that the applicant was granted a subclass 457 visa on 10 March 2015, having applied for that visa on 21 February 2015. The delegate further found that the applicant did not declare any criminal convictions in his subclass 457 visa application and was not requested to provide any penal clearances. The delegate went on to find that when the applicant made the present application, he provided an Australian Federal Police (AFP) check which recorded several offences and convictions relating to him which occurred [in] September 2014. The delegate considered the applicant’s response to this information, and also considered the waiver provision in PIC 4020(4), which said that the requirements of PIC 4020(1) could be waived if there were compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen or permanent resident or an eligible New Zealand citizen. However, the delegate found that the applicant had provided false or misleading information in relation to his criminal convictions by not disclosing them when he applied for a subclass 457 visa, and found there were no reasons to exercise the waiver in PIC 4020(4). The delegate therefore found that the applicant did not meet cl.186.213(1) and did not meet cl.186.213 as a whole.
The Tribunal received a review application from the applicant on 2 January 2018, which was accompanied by a copy of the delegate’s decision, and an authority by which the applicant appointed a registered migration agent, [named], as his representative and authorised recipient for correspondence.
On 16 August 2019, the Tribunal wrote to the applicant via his agent to invite him to a hearing on 4 September 2019. The Tribunal also requested that the applicant provide any written submissions and/or documents in support of his case at least 1 week prior to the hearing.
On 28 August 2019, the applicant’s agent indicated that she and the applicant would attend the hearing, and she provided written legal submissions with supporting documents in support of the applicant’s case.
In summary, the applicant’s agent made the following arguments:
the delegate refused the application on the basis that the applicant did not satisfy cl.186.213 and PIC 4020(1) because he failed to declare his Australian criminal record in his application for a subclass 457 visa, which he held at the time that he applied for a subclass 186 visa;
the delegate found there were insufficient compassionate or compelling circumstances affecting the interests of an Australia or Australians to justify applying the waiver in PIC 4020(4);
the applicant accepted the seriousness of PIC 4020, in that his subclass 457 visa application was made with the non-disclosure of the offence(s) in September 2014. He would explain why this offence was not disclosed, arguing that he did not knowingly or intentionally mislead the Department regarding his Australian convictions, but nevertheless accepting it was not declared;
in the event that the Tribunal found that the applicant failed to meet PIC 4020(1), the Tribunal was requested to exercise the waiver in PIC 4020(4), on the basis that there were compassionate or compelling circumstances affecting the interests of an Australian business, [Business 1] () (the applicant’s employer) that justified the waiver;
in May 2017, the applicant applied for permanent residence based on his current position as [Occupation 1] at [Business 1], for whom he had been working as a subclass 457 temporary visa;
the delegate found that the applicant submitted false and misleading information in his previous subclass 457 visa application lodged on 21 February 2015. He was convicted of 5 offences (relating to the 1 incident) [in] September 2014, resulting in a $500 fine on 2 offences and released on a good behaviour bond of 12 months;
it was submitted that the applicant met PIC 4020 despite the non-disclosure in relation to his subclass 457 visa as the failure to disclose was not intentional; that is, the applicant did not intend to defraud or deceive the Department;
he provided information about his criminal offences in his 2 previous visa applications. Moreover, on his incoming passenger cards, the applicant had marked ‘yes’ to the following question: ‘Do you have any criminal conviction(s)?’ each time he entered Australia. On each Australian entry, he would speak to a customs officer regarding these offences;
in the table below, all of the applicant’s convictions had been listed, and whether they were declared in the applicant’s previous visa applications and incoming passenger cards;
the applicant had also proactively advised the Department of all his previous convictions in a statement in June 2017. This was before it was brought to his attention by the Department and before a PIC 4020 notice was issued to him. This further demonstrated that he did not knowingly or intentionally misled the Department;
the applicant had explained in his Statutory Declaration the reasons that led to his Australian offences being omitted from his subclass 457 visa. The applicant did acknowledge that he should have corrected his error when he was reviewing the final subclass 457 draft answers before making his subclass 457 visa application;
in Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42 (4 April 2014) at [32] – [33] the Court held that for a matter to fall within PIC 4020, there must have been some intention to deceive by making a purposefully untrue statement: It is apparent from the terms of PIC 4020 that it addressed the problem of attempts to work a fraud or deception on the assessment of claims for a visa. That is also evident from the fact that PIC 4020 states a “public interest” criterion, from the narrow and exceptional circumstances necessary to waive its requirements, and, more generally, from the serious consequences that follow from its application. I would not infer any apparent intention to disqualify a visa applicant who could explain an innocent mistake in a document or information provided by them. PIC 4020 is not directed, in my view, to innocent, unintended or accidental matters. However, different questions arise when information or documents provided in support of an application are revealed as false, in the purposely untrue, sense of that term… In my view, it should be accepted that an element of fraud or deception is necessary in order to attract the operation of PIC 4020;’
the applicant’s explanation showed an innocent oversight in not disclosing his Australian convictions in his previous subclass 457 visa application. Given all of the circumstances, including his previous disclosure of his criminal offences in every incoming passenger card and previous visa applications, it was submitted that the applicant’s explanation was credible. As a result, this should not be seen as false or misleading in the Trivedi sense;
in the event that the Tribunal nevertheless found that the applicant failed to meet PIC 4020(1), it was submitted that there were compelling circumstances that affected the interest of Australia that justified the waiver in PIC 4020(4)(a). This is because of the effect it would have on the applicant’s employer, [Business 1];
the term ‘compassionate or compelling circumstances’ is not defined in the Act or Regulations, and it was ultimately a matter for the Tribunal to decide whether the totality of the circumstances of the case supported waiving the 3 year ban (currently in place until [December] 2020) from Australia that would result from a decision to affirm the delegate’s finding that PIC 4020 should be applied to the applicant;
in Kaur & Ors v Minister for Immigration & Anor [2018] FCCA 1614 (25 June 2018), Baird J looked to external courses to interpret the term: ‘The Macquarie Dictionary (2018) defines “compelling” as “demanding attention or interest” and as “convincing.” It defines “compassionate” as “having or showing compassion,” and, in turn, defines “compassion” as a “feeling of sorrow or pity for the sufferings or misfortunes of another; sympathy;”
in Lorenzo Paduano v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 211 (10 March 2005), the Federal Court considered ‘compelling reasons’ for an applicant’s absence from Australia in the context of a resident return visa application. The Federal Court held that the ordinary meaning of ‘compelling’ is ‘forceful’ and that ‘forceful reasons for an absence may involve physical, legal or moral necessity, or may, by reason of their forcefulness, be convincing. … [E]qually, there is nothing in the express wording, or the context, which indicates that ‘compelling reasons for the absence,’ must be confined to reasons incorporating an involuntary element, involving circumstances beyond a person’s control, involving physical or legal necessity;’
Departmental policy (PAM3) states that ‘the circumstances must be sufficiently persuasive to lead a delegate to find that the required criteria should be waived. However, whether compelling or compassionate circumstances exists in a question of fact and weight, based on the evidence and information before the delegate;’
while the policy goes on to list some examples of the type of circumstances that would be considered compassionate or compelling, the Tribunal of course was not bound by the Departmental policy and explanatory statement and must turn its mind to the words of the provision in PIC 4020(4) and consider the individual circumstances of the case – as discussed in 1304025 [2014] MRTA 1657 (18 July 2014);
in relation to compassionate and compelling circumstances, the applicant had been in the employment of the sponsor and current employer, [Business 1], as a [Occupation 1] since 2014, for a period of over 5 years;
[Business 1] was formally established in [year] and has since grown to [a high level of market share] in Australia: [details deleted];
[Details of business deleted];
the role of [Occupation 1] was primarily responsible for ensuring the [specified] equipment that are compliant to Australian standards [and further specified duties];
during the course of the last 5 years, the applicant’s role has expanded and he has progressed to become part of the senior management team at [Business 1], including the [specified] management team. He had instigated and had been involved in the development of a number of Apps which were now used by field staff [and other specified roles];
these initiatives of the applicant had enabled the business to grow steadily, with an enhanced reputation for safety and service. The business had more than [multiplied] in size in terms of revenue and staffing numbers, and now had [specified number of products] across Australia, not just in capital cities but also regional areas. As a result, the applicant now managed a team of [number] around Australia and travelled extensively to provide training and direction to his team and resolve complex issues;
in the accompanying letter from [Business 1’s] General Manager, [Manager A], dated 28 August 2019, he highlighted the applicant’s contribution: ‘… When [the applicant] began with the company in the [Occupation 1] role in 2014 he identified and implemented a method using the [Brand] software to assist in ensuring all [products] are accurately tracked so they meet all safety requirements such as Test and Tag compliance… Due to the large number of vehicles [Business 1] rely on around the country, in 2015, [the applicant] introduced a [process]… Similarly, [the applicant] started to implement a method [using software] to ensure all [products] in [all locations] are working correctly and are accurately tracked to ensure they meet all safety requirements… This software allows [Business 1] to keep track of the health status and safety requirements of the [number of Business 1] and [other products];’
it was clear that the applicant had made a major contribution to the growth of the business over the last 5 years, at both technical and management levels. Given his substantial proprietary knowledge of many aspects of the business, and the key relationships within the business and with the suppliers of [products] and software developers, continuity of the applicant’s employment was essential for maintaining existing business as well as driving future growth in Australia and overseas;
after over 5 years with [Business 1], the applicant’s employer considered him to be irreplaceable. For [Business 1], the critical point was not only the difficult of sourcing the required skill set, but also the lead time for developing in-depth proprietary knowledge of the business. The business confirmed that it was not practical nor possible to recruit or train from the local Australian labour market to undertake this key role of [Occupation 1], without detrimentally the business;
safety was fundamental to the success of [Business 1], especially as the [specified products] were mainly used by young children. Without the applicant’s driving force and constant monitoring of safety aspects affecting the whole business, [Business 1] was likely to be impacted financially. Any tarnishing of their strong safety reputation (no public liability claims), might result in a loss of their clients, including competitive vendors located in Asia. This in turn would potentially impact both the current and future employment of Australian workers within the business;
the applicant’s nominated occupation of [Occupation 1] currently appeared on the Regional Occupation List and it was noted that a large part of his work was regional. If the applicant were unable to continue in the role of [Occupation 1], this would potentially have an adverse impact on the business, as it might lead to a reduction in business activities in regional areas of Australia;
additionally, the skills shortages in the regional areas clearly indicated a further reason why an adverse decision would affect the applicant’s employer;
attached information was provided to clearly demonstrate that the applicant contributed valuable skills, knowledge and experience to [Business 1], allowing for continued growth of business and investment into the Australian economy. The loss and hardship that would be caused to everyone connected to [Business 1], clearly amounted to compassionate or compelling circumstances affecting Australian citizens;
the Regulations established a broad discretion to waive but did not prescribe how compassionate and compelling circumstances were to be weighed against the actions of an applicant who had provided false or misleading material;
in Rowe (Migration) [2018] AATA 2603 (23 July 2018), the Tribunal stated that ‘the seriousness of the alleged fraud is a relevant matter to take into account when weighing the various factors in exercising the Tribunal’s discretion… The exercise of discretion under PIC 4020 clearly involves a balancing of various factors;’
the policy intention of PIC 4020 was to impose on an applicant a temporary ban from making another application unless there were compassionate and compelling reasons not to. There was no power to reduce the ban, only to decide whether an applicant deserves to be barred from Australia for 3 years or not;
since his last offence in 2014, the applicant had reformed his character. It had now been almost 5 years since then. As he explained in his statutory declaration, ‘I have never been convicted of a crime in any other country (other than the offences in [Country 1] and Australia as outlined above) and I have not been charged with any offence that is incomplete or awaiting legal action. I can only reiterate how embarrassed and remorseful I am… [Business 1] are fully aware of this issue and are very supportive. My direct manager, [Manager A], has been overwhelmingly supportive with all this paperwork and will be attending the hearing with me… I assure you that I was not trying to be deceitful in my visa application as I would have also otherwise hid my convictions on entry to Australia and in other visa applications. When this was realised, I wrote a letter to immigration highlighting the mistake months before the application was assigned to a case officer. Having said that, I understand the government’s concerns and take full responsibility for the non-disclosure and understand the seriousness of this…;’
the applicant’s failure to declare all his convictions in his application form was not to be condoned and was a source of embarrassment and remorse to him. It was clear that the applicant did not set out to intentionally or knowingly mislead the Department; and
it was therefore submitted that the subclass 186 visa should not be refused because of PIC 4020. Further, the breach did not warrant a 3 year ban, and compassionate and compelling reasons impacting on an Australian business and its employees, should outweigh the applicant’s oversight.
The agent provided the following tables: Summary of Facts and Declaration of Offences on Incoming Passenger Cards and Australian Visa Applications:
Summary of facts
| Date | Event |
| November 2012 | First Working Holiday (subclass 417) visa lodged through [an agency] |
| [March] 2013 | [the applicant] enters Australia on Working Holiday (subclass 417) visa |
| June to October 2013 | Works in the position of [Occupation 1] uner his 1st Working Holiday Visa at [Business 1] |
| 2 March 2014 | Second Working Holiday (subclass 417) visa lodged |
| April to October 2014 | Works in the position of [Occupation 1] under his 2nd Working Holiday Visa at [Business 1] |
| [September] 2014 | Convicted with offences attracting a $500 fine x 2 as well as a 12 month good behaviour bond |
| 21 February 2015 | Subclass 457 visa application lodged |
| 10 March 2015 | Subclass 457 visa granted and recommences working in the position of [Occupation 1] under the subclass 457 visa at [Business 1] |
| 29 April 2017 | [Business 1’s] subclass 186 nomination in the occupation of [Occupation 1] is lodged |
| 2 May 2017 | Subclass 186 visa application |
| June 2017 | Documents relating to character submitted to the Department including: - [Country 1] police clearance (dated 10 May 2017) - AFP clearance (dated [May] 2017); and - A personal statement in relation to all past convictions in [Country 1] and Australia |
| 10 October 2017 | [Business 1’s] subclass 186 nomination of [the applicant] is approved |
| 10 October 2017 | Request for further information (RFI) issued regarding [the applicant’s] subclass 186 visa application. A new AFP check, a completed Form 80 and evidence of registration/licensing is requested and provided |
| 15 November 2017 | PIC 4020 notice issued |
| 22 December 2017 | Subclass 186 visa refused due to PIC 4020 (and clause 186.213) not being satisfied |
| 2 January 2018 | Merits review lodged in the AAT |
| 10 March 2019 | [the applicant’s] subclass 457 visa expires and the associated bridging visa for the subclass 186 visa for [the applicant] is now in effect |
Declaration of offences on incoming passengers and Australian visa applications
| August 2009 – [Country 1] Religious breach of the peace, [under specified Act] | December 2012 – [Country 1] Careless driving (non-fatal accident) | ||
| First 417 visa (lodged November 2012) | Yes | Yes | |
| Incoming passenger card ([March] 2013) | Yes | Yes | |
| Incoming passenger card ([December 2013]) | Yes | Yes | |
| Second 417 visa (lodged on 2 March 2014) | Yes | Yes | |
| August 2009 – [Country 1] Religious breach of the peace, [under specified Act] | December 2012 – [Country 1] Careless driving (non-fatal accident) | September 2014 – Australia Assault, behave in offensive manner and continue intoxicated etc behaviour after move on direction | |
| 457 visa (lodged 21 February 2015) | Yes | Yes | No |
| Incoming passenger card ([May] 2015) | Yes | Yes | Yes |
| Incoming passenger card ([January] 2016) | Yes | Yes | Yes |
| Incoming passenger card ([June] 2016) | Yes | Yes | Yes |
| 186 visa (lodged 2 May 2017) | Yes | Yes | Yes |
| Incoming passenger card ([June] 2017) | Yes | Yes | Yes |
| Incoming passenger card ([July] 2018) | Yes | Yes | Yes |
| Incoming passenger card ([October] 2018) | Yes | Yes | Yes |
| Incoming passenger card ([July] 2019) | Yes | Yes | Yes |
The supporting documents included the following:
letter dated 28 August 2019 from Mr [Manager A] of [Business 1];
letter dated 21 August 2019 from external account of [Business 1];
[Business 1] Group International Organisational Chart – July 2019;
extracts from [Business 1’s] website of its products;
statutory declaration by the applicant dated 26 August 2019;
material released by the Department under FOI application, including personal statement made by the applicant about [Country 1] and Australian criminal offences (30 June 2017), [Country 1] police certificate for the applicant dated 13 February 2019; AFP police check for the applicant dated [March] 2019; incoming passenger cards for the applicant dated [March] 2013, [December] 2013, [May] 2015, [January] 2016, [June] 2016, [June] 2017, [July] 2018 and [October] 2018.
In his letter, [Manager A] states as follows:
…
My name is [Manager A] and I am General Manager of the [Business 1] Group of companies and have been employed here since early 2008.
I am writing this letter in support of the appeal for [the applicant’s] visa and I have been asked to also attend his hearing, which I would be happy to do as he is an extremely valuable employee and we are concerned about his visa situation. I am Sydney based but will travel to Melbourne for this hearing.
[The applicant] has been employed by us over 5 years from June 2013 until October 2013, April 2014 until October 2014, then March 2015 until present.
Since [the applicant] commenced working with us, [Business 1] has expanded dramatically in size in terms of revenue and staffing numbers. Please refer to the letter from [name] of [business], our Chartered Accountants.
[The applicant] first worked for [Business 1] in general role and then, because of his previous [Occupation 1] experience, he transitioned into the role of [Occupation 1], which was the first one the company has ever employed. The business was in a growth stage and it was identified that there were certain roles the business needed to cover. Since then, he has become an essential part of the business and we therefore support his application for Australian permanent residence.
With this letter, I hope to set out the reliance the business has on [him] and how difficult it would be for us to replace him.
The business
[Business 1] was formally established in [year] and provides [products] around Australia. We currently have over [number] employees in Australia, [and two other countries].
We operate our retail business under 2 brands: [Business 1] and [another brand]. With national distribution and operations, we have become the preferred supplier/operator to many [national] businesses, [types specified].
[Business 1] has grown to become [market position] of [these products] in Australia today. [Business 1] now operates over [number of products] across Australia, located in secure, high profile locations in capital cities and many regional areas. This requires us to have a business infrastructure across the country, including those regional areas.
The role of [Occupation 1] at [Business 1]
The role of [Occupation 1] was a new role that had evolved as [Business 1] grew from a small business in [year] to the established business it is today. The importance and genuine need for this role… was apparent due to the various changes within the [legislative] requirements and laws governing the [specified] industry where the majority of business operations are conducted.
As a result, these changes demonstrated to the business that the importance of the role and confirmation that [Business 1] required a full-time [Occupation 1]. Having [the applicant] work with us previously as a member of the field staff, we knew he had [the required] background and had previously discussed various ways in which the company could improve [in this area of operations]. We hired him again on his second year visa for a 6 month period within the role of [Occupation 1].
Early in 2015, [Business 1] advertised for the position of [Occupation 1]. [The applicant] was the best candidate who applied for the role. [Business 1] were impressed with his previous performance in his role of [Occupation 1] for us, which allowed him to bring his expertise to the business. Having tested the labour market, he was by far the best candidate for the role and we had no hesitation in employing him again.
We believe, due to the very niche area of our work within such a big industry, that there is a limited number of people who can conduct this job due to the various different skills, encompassing the role of [Occupation 1]. This was very clear when we advertised the role with the results we got. This position is a now fundamental part of our organisational structure.
As a [Occupation 1], [the applicant’s] main duties are as follows:
[Details deleted.]
As the business has expanded so rapidly, it is not physically possible for [the applicant] to inspect each [product] in person as there are now [number of products] across the country (in both metro and regional areas) that he as [Occupation 1] is responsible for.
[He] now has a team around Australia that he directs to ensure that all [products] are compliant to ensure that there are no hazards or breakdowns. In addition to the actual [products], [the applicant] by [Business 1] workers are well maintained, compliant and safe.
[Relevant] issues identified by [the applicant] and the positive effect on the business
[Brand] Software – Test and Tag
[Business 1] established [Brand] Software in 2004 to provide data tracking and record keeping for the [number] individual [products] throughout the country. When [the applicant] began with the company in the [Occupation 1] role in 2014, he identified and implemented a method using the [Brand] Software to assist in ensuring all [products] are accurately tracked so they meet all [legislative] requirements such as Test & Tag compliance.
[Brand] Software – Vehicle [Database]
Due to the large number of vehicles that [Business 1] rely on around the country, in 2015 [the applicant] introduced a GPS tracking device for each vehicle that would be able to track the location, speed, kilometres travelled and various other aspects that help manage and maintain the safety of the vehicles.
From this, [he] was able to specify the various aspects of what is needed for the software team to build a new app to keep track of [specified] requirements of the vehicles, such as [detail deleted].
This allowed for [Business 1] offices in [two other countries] that are responsible for software development to create ‘Vehicle [Database]’ based on the information provided by [the applicant]. ‘Vehicle [Database]’ now assists [the applicant] as [Business 1’s] [Occupation 1] to ensure over 50 vehicles meet the [requirements].
[Business 1] Online – Health Checks
Similarly, [the applicant] implemented a method to ensure all [products] in all locations including [specified locations] are working correctly and are accurately checked to ensure they meet all [requirements].
As with the Vehicle [database], [the applicant] was able to specify the various aspects of what is needed for the software to track the [requirements] of the [products], which allowed for [Business 1] office in [two other countries] that are responsible for software development, to create software which will help track the ‘health status’ of each [product], such as the physical parts of the [products] are functioning safely for both employees and customers based on the information provided by [the applicant].
This software allows [Business 1] to keep track of the health status and [specified] requirements of the [number of Business 1] and [other products].
As [Occupation 1], [the applicant] is responsible for ensuring with his team that full auditing of all [specified] aspects of the [products] held by [Business 1] and the franchisees.
Fire and Public Safety
As the [products] are not made in Australia, [Business 1] ensures that all [products] used in Australia adhere to the [specified] regulations under the Australian Standards. As a result, [Business 1] have never claimed public liability insurance.
There have been several instances where competitors’ [products] have caught on fire due to either faulty wiring or non-compliance with Australian Standards.
[The applicant] has been involved in the redesigning of our [products] to ensure that latest safety features are incorporated and none of above could happen to our [products].
This guarantees that [our products] are compliant with all health and safety regulations has allowed [Business 1] achieve many national contracts.
Team structure
My role of General Manager encompasses all aspects of international operations.
[The applicant] reports directly to me and has progressed to be part of the senior management team.
[The applicant] has a direct staff of [number] and works with the other team leaders to ensure that the required standards are implemented throughout all aspects of the company.
[The applicant] is also part of the [specified] management team that oversees all the direction taken with all aspects of IT as it effects the business operations.
[He] has taken the lead in the direction and development of all Apps used by field staff on handheld devices, which are designed to ensure that compliance requirements are met.
With the expansion of the business into [Country 2] and target markets [elsewhere], we have plans for [the applicant’s] role to be expanded to include these emergency markets.
Replacing [the applicant]
We have not had any need to test the Australian market for someone to cover [the applicant’s] role as he has been in the role since it was newly created.
However, I am certain it would be difficult to replace the knowledge and experience [the applicant] has accumulated over his time with the company as he has created a new approach to a new role in a niche market.
[The applicant] travels extensively throughout the country for his role to maintain the [relevant] practices and procedures with staff and to physically inspect the [products] as much as possible.
Our lawyers have asked for evidence of our recruitment efforts over the years but the only advertising we have done is back in early 2015 prior to when we first recruited [the applicant] in the role of [Occupation 1] full time.
Conclusion
Due to the growth experienced by the business and the industry that our business services, there is no doubt that [the applicant] as our [Occupation 1] is a fundamental part of our organisation. Based on our clients’ and the industries needs for these [products], it is imperative that [the applicant] remains working in the position so that standards are maintained and [Business 1] and our clients are not disadvantaged, keeping [Business 1] as the leaders of the industry.
We are fully aware that [the applicant’s] visa was refused because of an issue with his police records and the concern that these were not disclosed. I have personally seen a full copy of his file and have been involved in every meeting with the lawyers to discuss this matter. I have no doubt that [the applicant] is an honourable individual and the issue with the previous application was a genuine oversight that should have been picked up by his previous agent who was fully aware of the situation and had copies of all the reports.
We have no issue vouching for [the applicant’s] character or his intentions. He is a man of strong character and moral fortitude and we are fully supportive of this application.
We confirm that it is critical for [the applicant] to remain in employment at [Business 1] as the business would be greatly disadvantaged if this application was unsuccessful…
10. The letter from the external accountants dated 21 August 2019 confirms that [Business 1] has expanded considerably since its establishment in [year], demonstrated as follows:
| Year | Turnover | Payroll costs | Staff numbers |
| 2015 | $5.909m | $1.35m | 35 |
| 2017 | $7.56m | $1.599m | 50 |
| 2019 | $7.925m | $2.154m | 85 |
| Future projections for 2020 | $8.75m | $2.4m | 100 |
11. The contents of the applicant’s statutory declaration of 26 August 2019 are as follows:
…
1. I make this Statutory Declaration in support of my PR visa application currently in [… the] Tribunal. I understand that my PR application was refused because I had not disclosed my previous offences. I take this very seriously and understand that full disclosure is fundamental and I am grateful for the opportunity to address these adverse findings against me.
2. By way of background, I was born in [Country 1] on [date]. I am now [age] years old. I am the youngest of a family of four children.
Australian Migration History
3. I first arrived in Australia in March 2013 on a Working Holiday Visa at the time I had just turned [age].
4. I first began working with [Business 1] in June to October 2013 during my first Working Holiday visa.
5. After completing my regional work, I returned to work as a [Occupation 1] for [Business 1] from late April 2014 to October 2014 on my second Working Holiday visa. I was the first [Occupation 1] the company ever employed as the business was still growing.
6. I worked with [Business 1] for less than 6 months at a time from June to October 2013 and from April to October 2014 respecting the conditions of my Working Holiday visa.
7. In summary, these are the periods I have spent for [Business 1] (with a total of 5 years and 6 months):
| From | To | Visa | Period |
| June 2013 | October 2013 | First 417 visa | Less than 6 months |
| April 2014 | October 2014 | Second 417 visa | 6 months |
| 11 March 2015 | Now | 457 and associated bridging visa with 186 visa | 4 years and 6 months |
8. I originally worked with [Business 1], assisting with the warehouse and [other duties]. The manager there was aware of my previous experience in [Occupation 1] and we spoke at times about how it could be used to benefit [Business 1]. I left to travel and do my regional work and during that time, the manager was in contact with me and stated that the company would be interested in me coming back and fulfilling [an Occupation 1] role for 6 months for them to consider how it could best suit the business needs.
9. During this 6 month trial, it was discussed if I was interested in applying for a long term position if it was to be available. The management had planning to do and had other projects to complete, but eventually a full-time [Occupation 1] role was advertised. I jumped at the opportunity and was thankful to be the best contender and was given the opportunity for a sponsorship visa.
457 visa application
10. On 21 February 2015, my 457 visa was lodged through a migration agent, engaged by [Business 1]. This 457 visa was approved on 10 March 2015. I started working for [Business 1] again as a full time sponsored employee on 11 March 2015.
11. When I was doing my 457 application with the migration agent, there were many emails that were being sent back and forward. Regrettably, at the time, my laptop started playing up so I ended up using my phone instead to send these emails.
12. I sent the statements for my previous convictions and a further email for the convictions in Australia from July 2014 using my phone. I was under the impression that if had successfully sent to my agent, although, this should have been picked up by me when I was checking over the final 457 visa application draft before it was all submitted. I was simply not careful enough and take full responsibility for this.
13. At the time of the application, it was quite overwhelming with all the information. Whilst I thought that I had checked everything, I unfortunately had missed this crucial and important part.
14. I honestly declare that I did not set out to deliberately deceive the Department. It was a shock to me when my agent advised me that these offences did not appear in my 457 visa application. This caused me great concern and worry that such an important part was missed out.
15. I have always been provided information about all my offences. I have travelled to Australia many times over the past few years and I have declared my convictions in each one of my incoming passenger cards and all other Australian visa applications.
16. On December 2013, I took a cruise to [Country 2] that travelled to [Australian port]. In this incoming passenger card, I again declared that I had criminal convictions. At the dock, there were officers from Immigration that wished to speak to me about these convictions that I had listed in my incoming passenger card and I fully cooperated with them.
17. I now wish to provide further background on these charges.
Charge 1:
18. [In] May 2009, when I was [age] years old, I charged with ‘Breach of the Peace – Religious Aggravator (Sectarianism)’ and [under a specified Act and section].
19. [Details of offence deleted.]
20. [In] August 2009, I received a penalty of 12 months’ probation, which required me to perform 80 hours of community service.
Charge 2:
21. [In] July 2012, when I was [age] years old, I was charged with ‘Careless Driving (Non-Fatal Accident).’
22. Whilst I was still under the 2 years’ probation period after passing my driving test, I was stopped by the police for not using indicators to change lanes and for not using the correct lane when driving through a roundabout. Again I am embarrassed about this.
23. [In] December 2012, I received a penalty which included a [specified] fine and was disqualified from driving for a period of 12 months.
Charge 3:
24. In July 2014, when I was [age] years old, I was charged with:
– behave in offensive manner in/near public place/school
- Use offensive language in/near public place/school
– resist or hinder police officer in the execution of duty
– assault police officer in execution of duty without actual bodily harm; and
– continue intoxicated etc behaviour after move on direction
25. I was intoxicated and was walking home from [a location in] Sydney. During this time, a man was hassling me and wished to start a fight with me, when the police arrived and attempted to de-escalate it. I went to walk to my accommodation when a police officer knocked my [food] out of my hand.
26. As I was intoxicated, I reacted and began arguing with the police officer, which eventually resulted in being pinned to the ground by them. I look back at this with a lot of dread and embarrassment and I take full responsibility of my actions.
27. On [a date in] September 2014, I attended [a named] Court and received the following result for each charge:
– behave in offensive manner in/near public place/school - $500 fine
– use offensive language in/near public place/school - $500 fine
– resist or hinder police officer in the execution of duty – convicted with 12 month good behaviour bond
– assault police officer in execution of duty without actual bodily harm – convicted with 12 month good behaviour bond
– continue intoxicated etc behaviour after move on direction – convicted with no penalty imposed
28. I realise the above is something the Australian government should know about and I can only reiterate how irresponsible I was.
29. I have never been convicted of a crime in any other country (other than the offences in [Country 1] and Australia as outlined above) and I have not been charged with any offence that is incomplete or awaiting legal action.
Working in [Business 1]
30. I have been working for [Business 1] for over 5 years now and I believe I make an enormous contribution to the organisation and I am an integral part.
31. In my current role as the [Occupation 1], I am responsible for a direct team of [number] people that looks after over [number of products] across Australia, located in secure high profile locations (both in regional and metro areas). In addition to these [products], I am also responsible for ensuring that the fleet of vehicles used by [Business 1] workers are well-maintained, compliant and most of all, safe.
32. In addition to these duties, I am also responsible for the [warehouse management nationally].
33. There are various [Occupation 1] issues that I look after at [Business 1]:
A. [Brand] Software – Test & Tag: [Business 1] created [Brand] Software in 2004 in order to keep records regarding all of the individual [products] that the business has. When I was working with them as [an Occupation 1] in 2014, I identified various aspects of this software that could be developed further and was able to implement a method using the [Brand] Software to ensure that all [products] are accurately tracked and meet all [legislative] requirements, including Test & Tag compliance. With now over [number of products], this [Brand] Software allows for accurate and up to date record keeping.
B. [Brand] Software – Vehicle [Database]: in 2015, I was able to introduce a GPS tracking device for each vehicle that would be able to track the location, speed, kilometres travelled and various other aspects that helps manage and maintain the safety of the vehicles. Since then, I have also assisted the software team to develop a new app, Vehicle [Database], that tracks even more safety requirements of the vehicle. Vehicle [Database] now ensures that over 50 vehicles for [Business 1] meet the [legislative] requirements.
C. [Business 1] Online – Health Checks: similar to the Vehicle [Database], I was able to specify the various aspects of the software should track in order to assess the safety requirements of each of the [products], providing their ‘health status.’ This software now allows my team and I to fully audit all the health and safety aspects of the [Business 1] and [other products].
D. [Details deleted.]
E. [Details deleted.]
34. As outlined above, our [products] are spread out nationally and we also have an international team. I travel around Australia in my duties extensively, around 140-200 nights per year.
35. Company operations and staff around the country rely on me heavily for training [specified] in each state.
36. This training has seen me go to such places around Australia including:
– Western Australia (Karratha, Port Hedland, Carnarvon, Geraldton, Perth and southern WA areas)
– South Australia (Adelaide, Renmark, Mt Gambier and surrounding areas);
– all across Victoria, including Mildura;
– all across NSW & ACT including Broken Hill;
– the full east coast of Queensland/NSW between Cairns and Sydney; and
– all across Tasmania.
2. [Business 1] are fully aware of this issue and are very supportive. My direct manager, [Manager A], has been overwhelmingly supportive with all this paperwork and will be attending my hearing with me.
3. As I have stated above, I can only reiterate my embarrassment and I assure you that I was not trying to be deceitful in my visa application as I would have also otherwise not disclosed my convictions on entry into Australia and in other visa applications. When this was realised, I wrote a personal statement, which was attached to my PR application, highlighting the mistake months before the application was assigned to a case officer. Having said that, I understand the government’s concerns and take full responsibility for the non-disclosure and understand the seriousness of this…
12. Also provided was a personal statement from the applicant dated 30 June 2017, about is past convictions, to the Department. This essentially repeats the relevant details set out in the statutory declaration above about the applicant’s [Country 1] and Australian offences/convictions.
13. The applicant appeared before the Tribunal on 4 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr [Manager A], and submissions from the applicant’s agent.
14. The applicant confirmed the circumstances of his [Country 1] and Australian criminal offences. He confirmed that he disclosed his [Country 1] convictions in his subclass 417 visa applications, and on each passenger entry card since he came to Australia for the first time. In response to the Tribunal’s query, the applicant said that each time he entered Australia having ticked ‘yes’ to the question on the passenger card asking if he had criminal convictions, he was taken aside briefly and asked about his charges by an airport officer, then allowed to enter the country without any problems. The applicant confirmed that this happened before and after he incurred the Australian convictions, which he disclosed and discussed to the airport officers for each entry to Australia after September 2014; the first time being June 2016, when he was returning from [Country 1] to Australia.
15. The applicant confirmed that he pleaded guilty to the Australian charges arising from the incident in July 2014. The court case was in September 2014. The applicant said that he accepted that he was heavily intoxicated at the time that the incidents occurred. He therefore saw no point contesting the charges, he just accepted responsibility and wanted to resolve things as soon as possible. The applicant confirmed that in July – September 2014, he was on his subclass 417 (Working Holiday) visa and was on his second employment stint with [Business 1], although he was due to finish up there in 3 to 4 weeks due to the 6 month limitation on his visa. The applicant said that he informed his employer that he had been charged and convicted and they were not happy about it but did not see it as a reason to terminate his employment. Moreover, they were still discussing with him the possibility of sponsoring him for longer term employment.
16. The applicant confirmed that in late 2014 – early 2015, [Business 1] advertised the [Occupation 1] job and he applied and was successful. From then, his subclass 457 visa application and associated sponsorship and nomination applications by [Business 1] proceeded swiftly, as his subclass 417 visa was due to expire in March 2015. He said that he recalled talking to the migration agent that [Business 1] retained (he had acted for them for previous visa applications by employees) about what he needed to provide, and that they discussed the fact that he had convictions in [Country 1] and Australia. The applicant said that he recalled that the agent was not that concerned but told him to put a statement in writing about them, and send it to the agent. The applicant said that he said that he thought that he had done so, using his phone, as his laptop had broken by then. He was then sent the draft online subclass 457 visa application by the agent and checked it, but failed to notice that the agent had answered ‘no’ the question in the form about whether he had any convictions. The first time the issue came up was when he forwarded an Australian police check to the same agent as part of the preparation for his subclass 186 visa application, and the agent contacted him to say that these had not been disclosed in the subclass 457 visa application. The applicant said he was shocked and dismayed and immediately asked how to rectify this. This led to them submitting the Australian and [Country 1] police checks and a written statement dated 30 June 2017 from the applicant explaining the offences and the fact that he had inadvertently not disclosed this in the subclass 457 visa application.
17. The applicant emphasised that he sought to be upfront at all times with everyone, including the Department, and that it was not deliberate that the convictions were not disclosed in the subclass 457 visa application. In response to the Tribunal noting that it might have been in his perceived interest not to disclose the Australian convictions in his subclass 457 visa application as they were more recent, and arguably more serious, than the older [Country 1] offences he had previously disclosed in his previous subclass 417 visa applications and passenger entry cards, the applicant denied that this was the case. His agent noted that prior to the closure of the subclass 457 visa program (and its replacement by the subclass 482 visa program), it was not mandatory to provide an Australian police check. Rather, one had to make a declaration in the application form only. She further noted that there was Departmental email correspondence between officers in relation to the applicant’s subclass 186 visa indicating that at least one officer considered that the offences were not serious, and that that suggested that the applicant would most likely have been granted a subclass 457 visa even if he had declared his Australian convictions.
18. The applicant then discussed his work history, explaining that in [Country 1], he worked as [an Occupation 1 role] for [a named employer], from 2010 to 2013. To be certified to do this, he was required to undertake a 5 week intensive training course. In Australia, the applicant was employed by [Business 1] as a Working Holiday visa holder in a general labourer position initially, in 2013. His employers became aware of his [Occupation 1] background and he was able to make suggestions to them about measures that could be implemented as the business was expanding and compliance measures were becoming more important to the business.
19. The applicant and [Manager A] gave separate, but consistent, detailed, evidence about the [relevant] aspects of the business, its expansion over recent years, and the applicant’s significant contribution to this, as well as the importance of him continuing in his role of [Occupation 1] for the next phase of the business’ expansion, which involved the roll out of a significant upgrade of their [products] throughout metropolitan and regional Australia. [Manager A] also gave evidence that the applicant told them at the time he was involved in the police incident in July 2014 and when he pleaded guilty in September 2014, and that as employers, they did not condone the applicant’s behaviour, but they never considered that this meant that the applicant’s employment with them should not continue. [Manager A] also emphasised that the company [held a market position] in Australia, and that this was largely due to its systematic approach to [Occupation 1] issues, which had been a major factor in them winning contracts with big organisations such as [Client types], and being able to offer national coverage. [Business 1] had a very good reputation and had [relevant processes]. [Manager A] conceded that they would have to replace the applicant if he was not granted a permanent visa, but emphasised that this would adversely affect the business, particularly as it was about to roll out new [features] for all its [products], a process in which the applicant had been heavily involved.
20. Following the hearing, the applicant’s agent provided a copy of an email from an officer of the Department dated 18 December 2017 seeking advice from a colleague about whether it was reasonable to assume that the applicant may have been ignorant of the requirement to declare the Australian offences as they were summary offences only, as an extract from PAM3 suggested that it might be reasonable in some circumstances that an applicant might not realise they were obliged to disclose a relatively minor offence.
21. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
22. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.186.213 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).
23. 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?
24. 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.
25. 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.
26. 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.
27. As noted above, the term 'information that is false or misleading in a material particular' is defined in PIC4020(5), which requires that it is:
· false or misleading at the time it is given; and
· relevant to any of the criteria that the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
28. The Tribunal has reviewed the criteria for a subclass 457 visa (as they were at the time the applicant made his application), and they include cl.457.224, which requires that the applicant meets PIC 4001, which in turn requires the applicant to pass the character test. The character test is set out in s.501 of the Act, and relevantly provides that the Minister may refuse to grant a visa where the Minister reasonably suspects the person does not pass the character test, which includes where a person has a substantial criminal record (as defined) and/or where having regard to either or both the person's past and present criminal conduct and/or general conduct, that person is not of good character.
29. The Tribunal is therefore satisfied that the applicant's answers to the questions in the subclass 457 visa application form asking if he had ever been charged with any offence that was currently awaiting legal action, been convicted of an offence in any country (including a conviction now removed from official records) and/or been the subject of an arrest warrant are potentially relevant to the character test assessment in s.501 and PIC 4001, as referred to in cl.457.224, and thus relate to a material particular for that visa.
30. It is not disputed that in February 2015, the applicant answered 'no' to the above questions in the subclass 457 visa application in response to the questions asking if he had ever been charged with any offence that was currently awaiting legal action, been convicted of an offence in any country (including a conviction now removed from official records) and/or been the subject of an arrest warrant.
31. It is also not disputed that at the time he did so, he had been convicted of the 4 offences set out above in Australia in 2014 (and [Country 1] offences also set out above).
32. The delegate found that the applicant had therefore given false or misleading information in a material particular in relation to the subclass 457 visa application, and that this related to the subclass 457 visa the applicant was subsequently granted and which he held in the 12 months prior to making in his subclass 186 visa application. The delegate therefore found that the applicant did not meet PIC 4020(1) and, as the delegate found no grounds to exercise the waiver in PIC 4020(4), that the applicant did not satisfy cl.186.213(1).
33. The applicant has submitted that he failed to declare his criminal convictions inadvertently, and that he had no intention to deceive the Department, given that he had disclosed his [Country 1] criminal convictions to the Department on numerous occasions prior to, and after, making his subclass 457 visa, and that he voluntarily disclosed them to the Department in connection with his subclass 186 visa application. The applicant’s agent submitted that while the applicant may have given false or misleading information to the Department by virtue of answering ‘no’ to the criminal conviction question in the subclass 457 visa application (or failing to notice that his then agent had mistakenly done so on his behalf), this was not deliberate, and therefore lacked the quality of deliberate falsity identified in Trivedi’s case to bring a person within PIC 4020(1).
34. The Tribunal has considered the applicant’s oral and documentary evidence on these issues carefully. It records that it found the applicant a sincere and credible witness at hearing, and it gives weight to the documentary evidence provided by him and his agent, from which it is satisfied that the applicant had declared his [Country 1] convictions on each visa application and entry to Australia (via his passenger cards) up until, and after, his subclass 457 visa application. It further accepts that he subsequently declared them to Border Force officers on entering Australia after making his subclass 457 visa application, as per his passenger card records, and that he voluntarily brought the Australian convictions to the Department’s attention in relation to his subclass 186 visa application prior to the Department sending him a letter in respect of his potential breach of PIC 4020. The statement he provided to the Department in that regard was consistent with his detailed explanation to the Tribunal at hearing.
35. Taking all of the available evidence into account, the Tribunal is satisfied that the applicant’s statement in his subclass 457 visa application was an inadvertent mistake, and therefore lacks the element of fraud or deception by some person that is necessary to attract the operation of PIC4020(1), as per Trivedi’s case.
36. There is no suggestion that the applicant has provided a bogus document to the Department, to the Minister, an officer, the Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth in connection with any of his visa applications to date.
37. Given the above, the Tribunal is satisfied 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 a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to his subclass 457 visa application.
38. Therefore, the Tribunal is satisfied that the applicant meets PIC 4020(1).
39. Although it is therefore unnecessary for the Tribunal to go on to consider the waiver provision in PIC 4020(4), it observes that there are strong reasons in this case that would justify the waiver of PIC 4020(1), had the applicant been found not to meet it. These relate to the applicant's key role in an Australian business in a niche field, in circumstances in which the Tribunal accepts that his inability to continue in his role would be likely to jeopardise the business’ expansion and thus the livelihood of its Australian employees.
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(1)?
40. 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).
41. There is no evidence that the applicant has been refused a visa because of a failure to satisfy PIC4020(1) in the period commencing 3 years before the application was made and ending when the visa is granted or refused. There are no family unit members included in his visa application.
42. Therefore, PIC 4020(2) is met.
Has the applicant satisfied the identity requirements?
43. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.
44. The Tribunal has reviewed the documents provided to it and the Department and is satisfied as to the applicant's identity. Therefore, it finds that the applicant meets PIC 4020(2A).
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?
45. 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).
46. The Tribunal has reviewed the documents provided to it and the Department and is satisfied as to the applicant's identity. Therefore, it finds that the applicant meets PIC4020(2B).
Conclusion
47. On the basis of the above, the Tribunal finds that the applicant satisfies PIC 4020 for the purposes of cl.186.213.
DECISION
48. The Tribunal remits the application for an Employer Nomination (Permanent) visa for reconsideration, with the direction that the applicant meets the following criteria for a subclass 186 - Employer Nomination Scheme visa:
·Public Interest Criterion 4020 for the purposes of cl.186.213 of Schedule 2 to the Regulations.
Alison Mercer
Member
ATTACHMENT
Migration Regulations 1994
Schedule 4
(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.
…
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Intention
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Remedies
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