Ahmed (Migration)

[2022] AATA 5006

Ahmed (Migration) [2022] AATA 5006 (25 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Kakoli Ahmed
Mr Faruq Ahmed
Master Ahnaf Ahmed
Master Ruhan Ahmed

CASE NUMBER:  2104158

HOME AFFAIRS REFERENCE(S):          BCC2015/1134068

MEMBER:Namoi Dougall

DATE:25 November 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) visas.

Statement made on 25 November 2022 at 6:00pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – false or misleading information given in visa applications – identity – previous visa under different names and dates of birth not declared – compassionate or compelling circumstances justifying waiver of criterion – periods unable to work because of COVID restrictions – skills shortages in sectors – lack of substantiating information – personal and social connections and community volunteering – two Australia-born children – language and education – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 359A, 376
Migration Regulations 1994 (Cth), Schedule 2, cls 187.213, 187.313, Schedule 4, criterion 4020(1), (2A), (4)

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
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 Home Affairs on 16 March 2021 to refuse to grant the applicants Regional Employer Nomination (Permanent) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 16 April 2015. 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 (Cth) (the Regulations) because the delegate was not satisfied that the applicant met the requirements of Public Interest Criterion 4020 (PIC 4020) and in particular PIC 4020(2A) which requires the Minister to be satisfied as to the applicants’ identity. The delegate found that the first and second named applicants provided false and misleading information in relation in the Subclass 187 visa application and the Subclass 457 visa application which was the visa held by both applicants in the 12 months immediately preceding the application for the Subclass 187 visa. The information was that the first and second applicants had provided false and misleading information as to their names and dates of birth as they had previously been in Australia using different names and dates of birth. On that information the delegate was not satisfied as to the identity of the first and second applicants.

3. The applicant and the applicant’s spouse appeared before the Tribunal on 30 August 2022 (the first hearing) and on 10 October 2022 (the second hearing) to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

4. The applicants were represented in relation to the review.

5. 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 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).

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 5(1) of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.

2. The requirement in PIC 4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant: PIC 4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.

3. While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42.

4. On 5 July 2012, the applicant lodged a Subclass 457 visa application which was granted on 16 July 2012. The application included Mr Faruq Ahmed, the applicant’s spouse (the applicant’s spouse) and their son, Ahnaf Ahmed. The applicants arrived in Australia on the Subclass 457 visas on 13 August 2012.  The applicant and the applicant’s spouse used the same name, date of birth and family information as the Subclass 187 visa the subject of this review. The Subclass 457 visa was subsequently cancelled on 5 July 2016 for reasons set out below.

5. On 16 April 2015, the applicant lodged a Subclass 187 visa application which is subject to this review. The Subclass 187 visa application included the applicant’s spouse and their son, Ahnaf Ahmed as secondary applicants. A second son, Ruhan Ahmed was subsequently added to the application. The date of birth provided for the applicant was 11 May 1983 and for the applicant’s spouse was 10 December 1977.

6. In the Subclass 187 visa application the applicant answered ‘No’ to the question: ‘Is this applicant currently, or have they ever been known by any other names?’ As part of that application, and for the purposes of assessing Public Interest Criteria 4001 (PIC 4001), the applicant completed a Form 80 ‘Personal particulars for assessment including character assessment’ signed by the applicant on 29 April 2015. The applicant answered ‘No’ to the questions: ‘Have you been known by any other name(s)?.

7. In the Subclass 187 visa application the applicant’ spouse answered ‘No’ to the question: ‘Is this applicant currently, or have they ever been known by any other names?’ As part of that application, and for the purposes of assessing Public Interest Criteria 4001 (PIC 4001), the applicant’s spouse completed a Form 80 ‘Personal particulars for assessment including character assessment’ signed by the applicant on 29 April 2015. The applicant’s spouse answered ‘No’ to the questions: ‘Have you been known by any other name(s)?’.

8. Departmental records indicated that a Ms Kamley, born on 23 July 1982 arrived in Australia on 25 June 2006 on a Subclass 573 visa granted on 20 June 2006. Ms Kamley was accompanied by her spouse, Mr Faruk Al Ferdous, born on 1 November 1976, a secondary visa holder. The Subclass 573 visas were granted on the basis of the identity and other supporting documents accompanying the Subclass 573 visa application lodged on 25 April 2006.

9. The applicant’s identity information and that of the applicant’s spouse, provided in the Subclass 457 and 187 visa applications was similar to the identity information provided in a Subclass 573 visa application made on 25 April 2006 by a Ms Kamley born 23 July 1982. On this information the applicants Subclass 457 visas were cancelled on 5 July 2016 under s.101 of the Act.

10. The similar identity and family information in relation to the applicant is as follows:

    ·     The passport photograph of the applicant provided for both the Subclass 457 and 187 visa applications appeared to be the same person as the passport photograph and radiology report provided by Ms Kamley for the Subclass 573 visa application.

    ·     The name and address and date of birth of the applicant’s father as set out in the subclass 457 and 187 visa applications is the same name and address of Ms Kamley’s father in the Subclass 573 visa application.

    ·     The name of the applicant’s mother set out in the Subclass 457 and 187 visa applications is the same name as the name of Ms Kamley’s mother set out in the Subclass 573 application.

    ·     The names of the applicant’s siblings, Shahanah Bulbul and Rahana Afronz, the date of birth of Rahana Afronz and the year of the birth of Shahanah Bulbul are the same as the details for Ms Kamley’s siblings as set out in the Subclass 573 visa application.

11. The similar identity and family information in relation to the applicant’s spouse is as follows:

    ·     The Subclass 573 applicant made by Ms Kamley included as a dependant the applicant’s spouse under the identity of Faruk Al Ferdous, born on 1 November 1976.

    ·     The passport photograph provided with the Subclass 457 and 187 visa applications appears to be of the same person as the passport photograph and radiology report for Mr Ferdous provided for the Subclass 573 visa application.

    ·     The name and address and date of birth of the father of applicant’s spouse as set out in the subclass 457 and 187 visa applications is the same name and address of Mr Ferdous’s father in the Subclass 573 visa application.

    ·     The name of the mother of the applicant’s spouse set out in the Subclass 457 and 187 visa applications is the same name as the name of Mr Ferdous’s mother set out in the Subclass 573 application.

12. On 17 February 2020, the Department sent the applicants a natural justice letter pursuant to section 57 of the Act (the natural justice letter) in which the applicant was advised as to the requirements in PIC 4020(1) and (2) and that these requirements can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa. The natural justice letter also advised that PIC 4020(2A) required that the applicants satisfy the Minister as to their identity and that a lack of evidence may mean that the delegate is not satisfied as to the identity of persons included in the visa application. The delegate in the natural justice letter then went on to list the issues set out above in relation to the identity information for the applicant and her spouse.

13. The natural justice letter also invited the applicants to comment on the information suspected to be false and misleading in a material particular and to specify if there are compelling circumstances affecting the interest of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or eligible New Zealand citizen that justify the waiver of PIC 4020.

14. The applicants responded to the natural justice letter by only stating that they dispute the information.

15. On 16 March 2021, the delegate refused to grant the Subclass 187 visa on the basis that the applicant and her spouse had not met PC 4020(2A). Therefore, the delegate also found that the applicant did not meet reg.187.213 and the applicant’s spouse did not meet reg.187.313 as he was not a member of a family unit of a person who holds a Subclass 187 visa.

16. On 11 July 2022, the Tribunal wrote to the applicants pursuant to s.359A and s 359(2) of the Act. In the letter the Tribunal invited the applicant to comment on or to respond on adverse information. The adverse information was that both the applicant and her spouse had previously been in Australia using different names and dates of birth and that they had both may have been involved in migration fraud.

17. The Tribunal in its letter of 11 July 2022 enclosed a copy of the sec.376 certificate the Department had issued in relation to certain information on the Department’s file. The information may disclose or enable a person to ascertain the existence, or identity, of a confidential source. The applicant was invited to comment on or respond in writing on the validity of the certificate. The applicant’s comments on the sec.376 certificate are dealt with in detail below.

18. The Tribunal’s letter of 11 July 2022 also invited the applicants pursuant to s.359(2) of the Act to provide a submission that there are compelling circumstances affecting the interests of Australia, or compelling or compassionate circumstances affecting the interest of an Australian citizen, Australian permanent resident, or an eligible New Zealand citizen that justify the grant of Subclass 187 visas.

19. On 9 August 2022, after being granted an extension of time to respond, the applicants’ responded to the Tribunal’s letter by providing information. The applicants did not comment on the whether or not they disputed the validity of the sec.376 certificate.

20. On 9 August 2022, the applicants responded to the Tribunal’s letter (the response) by providing information on the difficulties they and the children would face if forced to return to Bangladesh the information is considered in more detail below.

21. On 31 August 2022, the applicants provided a submission on the hardship they and the children and would face if forced to return to Bangladesh (the submission). The submission will be considered further below.

22. At the first hearing the applicant confirmed that she had provided incorrect information but that her name was the same. The Tribunal referred to her providing different dates of birth and the applicant then stated that when her previous visa was cancelled, at that time she became ‘insane’ and she changed her name’ other than that her name and the names of her parents had not changed. The Tribunal referred to her spouse’s name also being changed, and the applicant stated that this was a mistake, and she should have declared that before. When she had changed that information, she realised she should have declared that the information was incorrect. The Tribunal asked if the applicant was confirming she provided incorrect names for her spouse and herself and incorrect dates of birth. The applicant stated that when she did this, she did not realise that what she was doing was something wrong. The Tribunal referred to dates of birth as being critical information and asked if she was not aware that this is false or misleading information. The applicant stated that she was at the end of her schooling with only one subject to complete and when the visa was cancelled, she was desperate and ‘lost her mind’. The Tribunal asked again if the applicant was confirming that she provided false or misleading information in relation to her spouse and her identification information, and the applicant said yes as she made a mistake.

23. At the first hearing the applicant stated that she is apologetic for her mistake and would like the Tribunal to take into account that there are two children.

24. Clause 187.213(1) requires a primary applicant to satisfy character requirements under PIC 4001 and cl 187.213 requires secondary applicants to satisfy character requirements under PIC 4001. By proving of changed names and important false identity information in relation to their dates of birth, the applicant and the applicant’s spouse prevented a full character check being obtained and assessed. Therefore, the Tribunal is satisfied that the false or misleading information is relevant to criteria the Minister may take into account when making a decision.

25. The last substantive visas held by the applicant and her spouse prior to the Subclass 187 visa application was the Subclass 457 visa granted to the applicant on 16 July 2012 are the last substantive visa held by the applicant and her spouse in the 12 months immediately preceding the Subclass 187 visa application currently under review.

26. On the above, the Tribunal is satisfied that the applicant and her spouse in their Subclass 457 and 187 visa applications provided to the Department, information that is false or misleading in a material particular in relation to their names and date of births and the Tribunal finds accordingly.

27. Therefore, the applicant and her spouse do not meet PIC 4020(1).

    Section 376 Certificate

28. As stated above, on 11 July 2022, the Tribunal wrote to the applicants pursuant to s.359A and s 359(2) of the Act. In the letter the Tribunal invited the applicant to comment on or to respond on adverse information. The adverse information was that both the applicant and her spouse had previously been in Australia using different names and dates of birth and that they had both may have been involved in migration fraud. The Tribunal’s letter also enclosed a copy of the sec.376 certificate the Department had issued in relation to certain information on the Department’s file. The information may disclose or enable a person to ascertain the existence, or identity, of a confidential source. The applicant was invited to comment at hearing or respond in writing on the validity of the certificate.

29. On 14 July 2022, the applicants’ representative responded to the Tribunal’s letter by stating in relation to the sec.376 certificate that the Tribunal’s letter contains insufficient information for them to comment on the validity of the certificate.

30. On 8 November 2022, the Tribunal was provided by the Department with a certificate reissued by the Department under sec.376 which was in the same terms and was issued in relation to the same information as the earlier certificate, however, this time the certificate was signed.

31. On 8 November 2022, the Tribunal wrote to the applicants and invited them to comment on the validity of the reissued certificate, The letter stated the following:

    The information covered by the certificate is:

    1.Community information on the Departmental file indicating that you and your spouse, Mr Farooq Ahmed had previously been in Australia using different names and dates of birth.

    2.Community information that and you both may be involved in migration fraud in which you took money from persons wanting to apply for visas

    Point 1 above was the relevant issue before the Department and was the basis on which the Department found that both of you did not satisfy public interest criteria 4020. It is also the relevant issued before the Tribunal and has been discussed at hearing
    Point 2 is not a relevant issues before the Tribunal and the Tribunal will not be making any findings on this community information.

    You may however give comments on or respond to the above information in writing.

1. The Tribunal’s letter of 8 November 2022 also attached a copy of the reissued sec.376 certificate and invited the applicants to comment on its validity.

2. On 22 November 2022, the applicants’ representative responded by stating that in relation the information provided in the Tribunal’s letter of 8 November 2022, the validity of the new sec.376 certificate is not disputed. The letter then requested that the Tribunal provide procedural fairness if the Tribunal wishes to make adverse findings

3. The Tribunal’s finding that the applicant and her spouse not meeting the requirements of PIC 4020(1) is based on findings of the Tribunal as to the applicant and her spouse providing false or misleading information as to their names and date of births. This issue was set out in the natural justice letter and the delegate’s decision. The Tribunal had referred to the fact that the applicant and her spouse had provided false or misleading information as to their names and dates of birth in their Subclass 457 and 187 visa applications in the Tribunal’s letters of 11 July 2022 and 8 November 2022 and the issues was discussed at the hearing by the Tribunal with the applicant and her spouse. The applicant and her spouse were given an opportunity to respond to the adverse information in writing in response to the Tribunal’s letters of 11 July 2022 and 8 November 2022 and to cmment on the advese information at the hearing. The Tribunal is satisfied that the Tribunal has ‘provided procedural fairness’ as requested by their representative in relation to the issue of the applicant and her spouse providing false or misleading names and dates of birth in their Subclass 457 and 186 visa applications. As to the other community information in relation to the applicant’s being involved in visa fraud, the Tribunal has not taken this into consideration as the allegation is not relevant to the Tribunal’s findings.

4. The Tribunal is satisfied that the reissued sec.376 certificate on its face is valid and that the Tribunal had given the applicant the gist of the information covered by the certificate. Further, the information relevant to the review which is covered by the certificate was also the basis for the delegate’s decision.

Have the applicant satisfied the Minister as to his or her identity?

1. At the second hearing the Tribunal explained the requirements of both PIC 4020(2A) and PIC 4020(1). The Tribunal also explained that it will firstly consider PIC 4020(2A) as not satisfying that requirement would lead to a 10 year exclusion for applying for an Australian visa.

2. It was submitted in a post hearing submission from the applicants’ representative dated 14 September 2022 (the representative’s submission) that there is no evidence that the identification documents with previous names and dates of birth issued by official sources were fraudulent documentation nor did the Department mention that they were bogus documents. It was submitted, that therefore, the current identification documents should be considered a change of name and birth dates.

3. It was also submitted that the current official identity documents were accepted as genuine by the Department, there was no mention of the previous identification documents being bogus and the Department did issue the relevant visas. Further, both the applicant and her spouse have admitted their mistakes and have taken responsibility for failure to notify the Department of their previous identity and that the matter should be deemed as a failure to disclose relevant information to the Department during a visa application and not identity fraud under PIC 4020(2A). In conclusion, it was submitted that PIC 4020(2A) should not apply and as no findings made with regard to PIC 4020(1) was made in the delegate’s decision, the matter should be remitted back to the Department for further assessment. The Tribunal does not accept the latter submission as the Tribunal can make findings on all criteria of the visa the subject of a review.

4. The Tribunal notes that the delegate referred to the identity documentation and family history information provided by Ms Kamely and Mr Faruk Al Ferdous in their student application lodged on 25 April 2006 matching the identity documentation and family history in the applicant’s and her spouse’s Subclass 457 and current visa applications. As the Department is aware of the differing names and dates of birth of the applicant but the similarity in family composition, and as the applicants have admitted that use of the differing names and dates of birth, the applicant and her spouse’s identity are no longer unknown.

5. Therefore, the Tribunal is satisfied as to the applicants’ identity and finds that the applicants meet the requirements of PIC 4020(2A).

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

1. The requirements of PIC 4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in reg 1.03), that justify the granting of the visa. The decision-maker must first be satisfied that there are such circumstances, then must consider whether to exercise the discretion to waive the requirements, having regard to those circumstances: Kaur v MIBP [2017] FCAFC 184.

2. The expressions ‘compelling circumstances’ and ‘compassionate or compelling circumstances’ are not defined for these purposes. To be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied: see Plaintiff M64/2015 v MIBP [2015] HCA 50. The ordinary meaning of ‘compassionate’ relates to feelings of sympathy, sorrow, pity or concern for others.

3. The case presented for the applicant relies upon submissions and evidence set out below and that there are grounds for the Tribunal to waive the requirements of PIC 4020(1) and (2) on the basis there are compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen or an Australian permanent resident.

4. The Tribunal notes that for the purposes of the application of the regulation, a corporation is not an Australian citizen. The emphasis or focus of the waiver provisions is on the interests of Australia, or the interests of Australian citizens or Australian permanent residents, triggered by compelling circumstances or compelling and compassionate circumstances.

5. In order to engage with the question of waiver, the Tribunal must embark on a 2-step enquiry, firstly to consider whether there are compelling circumstances or compassionate or compelling circumstances as required in PIC 4020(4)(a) or (b); and secondly, whether to then exercise discretion to waive the requirements in PIC 4020(1) and (2), having regard to all the relevant facts and circumstances arising.

6. Although the Tribunal is not bound by Departmental policy, it has had regard to the elements emphasised in the policy in terms of the exercise of discretion. In particular, the policy guidelines in ‘Sch4/ 4020 - The Integrity PIC’ state the following in respect of compelling and compassionate circumstances:

   37 Compelling and/or compassionate circumstances…

   37.2 Compelling circumstances affecting the interests of Australia 4020(4)(a) …

   There may be compelling circumstances affecting the interests of Australia if:

   ·     Australia's trade or business opportunities would be adversely affected were the person not granted the visa (Note: under policy gaining employer sponsorship is not considered sufficient grounds for a waiver);

   ·     Australia's relationship with a foreign government would be damaged were the person not granted the visa; or

   ·     Australia would miss out on a significant benefit that the person could contribute to Australia's business, economic, cultural or other development (for example, a special skill that is highly sought after in Australia) if the person was not granted the visa.

7. Departmental policy also states that compelling circumstances affecting the interests of Australia would not include circumstances if the non-citizen merely claims that, if granted the visa, they would:

   ·     work and pay taxes in Australia or

   ·     pay fees to an education provider or

   ·     spend money in Australia.

8. In relation to PIC 4020(2)(b), the following appears in the policy regarding compassionate or compelling circumstances affecting the interests of an Australian resident, permanent resident or eligible New Zealand citizen:

   The circumstances for consideration must be of compassionate or compelling nature in the way they affect the Australian citizen, permanent resident, or eligible New Zealand citizen. Compassionate or compelling circumstances that affect the applicant are not relevant for consideration unless they also directly affect an Australian citizen, permanent resident or eligible New Zealand citizen. The wording of PIC 4020(4)(b) requires that either compassionate or compelling circumstances exist that affect the interests of an Australian citizen, permanent resident or eligible New Zealand citizen. To waive the requirements of any or all of PIC 4020(1) and/or (2), the applicant's claims must have a compelling or compassionate element particular to that individual case that are beyond those usually present in that visa caseload.

9. The Tribunal will first consider PIC 4020(4)(a) and whether there are compelling circumstances that affect the interests of Australia.

10. In the response provided to the Tribunal on 31 August 2022, was a submission from the applicant (the applicant’s submission). The applicant submitted that since arriving in Australia in 2012 she has worked very hard as a Cook as well as looking after her children. After years of hard work, she was promoted to trainee Cook and was learning how to make basic Asian cuisine.  She further submitted that she and her spouse have been law abiding residents. After their children where both born in Australia her spouse continued to work for the same employer as the main breadwinner. Her spouse is a hoist driver in the construction industry.

11. In the applicant’s submission the applicant submitted that since arriving in Australia she and her spouse have been involved in the community and have tired to give back to society. They use their skills and experiences to help local businesses, especially when there has been a shortage of skilled workers due to the COVID-19 Pandemic.

12. At the first hearing, the applicant stated that she is a Cook but due to the COVID-19 Pandemic she has not been able to work. She left work in the middle of 2020. She has applied for a position, and she will work in Lakemba close to her son’s school. She cannot go to the city to work as her children are young and she has to look after them. She has been offered a position in the City, but she did not take the job because of her family commitments. The position where she will be working is at the Sultano Café, a Turkish Café where she will try to work full time.

13. It was submitted in the representative’s submission that the applicant has received a job offer from Sultano Café and Restaurant to work as a full time Chef. The Tribunal notes that the applicant stated at the hearing over a month earlier that she had been offered this job, however, there is no explanation as to why she has not, as of the time of the submission, commenced working in the Café. As to the applicant’s spouse, the representative submission stated that he currently works as a field worker at their contracted major construction site and has done so since 11 November 2019. It was submitted that the 2021 Annual Report of the National Skills Commission (the NSC Annual Report) referred to severe skills shortages in hospitality and construction sectors. Further, it was submitted that Australia but particularly New South Wales have prioritised and enacted policies to encourage skilled chefs and construction workers to migrate to Australia and the applicant and her spouse would contribute significantly to the Australian economy and benefit Australian employers and the community in the long term.

14. At the second hearing the applicant stated that she has started work but not officially. The restaurant prepares Moroccan food, and she has given the restaurant some recipes so that when they can prepare a new menu and then she will start officially. The Tribunal referred to being told for over a month ago that the applicant would be starting work and asked if she will actually work at the restaurant. The applicant stated that she goes to the restaurant, and she works there. The Tribunal referred to her stating she had not started working and the applicant stated that she is not working there but according to the job offer, once the menu is ready, then they will pay her according to the job offer letter.

15. It was submitted in the applicant’s submission that the work of the applicant’s spouse is very important especially during the COVID-19 Pandemic, as the construction sector is a critical and essential sector, and it is crucial that workers like her spouse continue to contribute by working for Australian industry in a difficult time.

16. Provided with the representative’s submission was a reference dated from 5 September 2022 from Sydney Labour Pty Ltd which stated that the applicant’s spouse was employed as a field employee on a major construction site form 11 November 2019. It further stated that his background experience in the construction industry has seen the applicant’s spouse adapt to his duties with skill, pride and carried out his tasks in a responsible and proficient manner. A Sydney Labour payslip for the applicant for the period dated 22 June 2022 to 28 June 2022 was provided to the Tribunal.

17. At the first hearing the applicant’s spouse stated that he drives a hoist at a building site. He works for Sydney Labour, and they are affiliated with companies that build Multiplex projects, such as Westmead Hospital and AMP building and Sydney’s second airport. The applicant’s spouse also stated that he started to work in the construction industry from 2019 and he has continuously worked except when there were restrictions due to COVID. He works for City Labour and City Labour always provides labour to big companies. When there is no need for a hoist driver he works as general labour.

18. The Tribunal has considered the 2021 Annual Report of the National Skills Commission referred to by the applicants’ representative. However, the report is a high order document which reports on the changes in the labour market over the past 40 years; the impact of the Pandemic on the labour market; what skills workers have in today’s labour market; labour market matching; labour market skill needs projected in to the future; emerging skills and skills and jobs of the future. The NSC Report does refer to the Skills Priority List. The Tribunal has considered the 2022 Skills Priority List (the skill list) and hoist driver is not listed in the skill list. In relation to Chef the skill list stated that there is a shortage but in New South Wales which it s rated as moderate.

19. The Tribunal acknowledges that the applicant may make a contribution to an Australian business through her employment in an industry where there are skill shortages. However, the Tribunal has nothing before it that indicates that the applicant has started her working as a Chef at the Café. The applicant stated at the hearing that she was providing them with menu ideas, but she was not being paid. Further, her future employer has not provided a letter in support stating the importance of or their need for the applicant’ skills and how not having the applicant work for them would affect their business.

20. The Tribunal acknowledged that the applicant’s spouse is making a contribution to an Australian business through his employment in an industry where there are skill shortages, although there is a lack of substantiating information as to his skills at driving a hoist except for the employer’s reference stating that the applicant’s spouse had adapted to his duties with skill and pride and in a responsible and proficient manner. There was no comment on the importance of the applicant’s spouse’s skills to the company or if the company would be adversely affected if the applicant would have to leave.

21. That is, there is nothing on the files or what was stated at the hearings which indicates that either the applicant or her spouse have unique skills or their employment is so critical to their employers that if their employment was not maintained their employers would not continue to operate, let alone the interests of Australia would be affected. The 2021 NSC Annual Report does not directly refer to current skill shortages but refers to the Skills Priority List, but as stated able the applicant’s occupation when she starts her work with the Café is listed as a moderate shortage in New South Wales and the applicant’s spouse’s work as a hoist driver is not listed on the Skills List.

22. Further, the Tribunal has considered policy and on the above the Tribunal is not satisfied on the evidence that: Australia would miss out on trade or buisness opportunities; Australia’s relationship with a foreign government would be damaged; or that Australia would miss out on a significant benefit that would contribute to Australia’s buisness, economic, cultural and other development, if the applicant was not granted the visa. Nor is the Tribunal satisfied that the matters raised in relation to the skills and the employment of the applicant, and her spouse establish compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen, permanent resident or eligible New Zealand citizen.

23. It was submitted in the representative’s submission that the applicant and her spouse have settled in Australia for over nine years and have build up intimate and social and personal connections with Australia. They are involved in volunteer work and local community. It was also submitted that they assist in organising community activities including organising emergency food supplies during COVID-19 Pandemic. Provided in support of the submission was character references for both the applicant and her spouse from their local ward councillor on the City of Canterbury Bankstown and Bangladesh Association of NSW. Character references were provided for the applicant from the Bangladesh Elite Club Sydney Inc; Bangladesh Nationalist Party, Sydney, Australia (BNP); Bangladesh Senior Citizen of Aust Ltd; Community Youth and Citizen Development Organisation Incorporated (CYCDO); and there are photographs of the applicant participating in community activities including the emergency food drive during COVID-19 Pandemic for CYCDO.

24. In relation to the community organisations where the applicant and her spouse have provided assistance as volunteers, it is the organisations themselves that provide the assistance to their respective communities or individuals who access their services. The applicant and her spouse have made a contribution, but the applicant and her spouse are only individual volunteers amongst other volunteers in the organisation they have volunteered for and the Tribunal is not satisfied that their volunteer work with the various organisations is compelling circumstances of such significance that the interests of Australia would be affected if the applicant were not granted the visa. Also, without the contribution of applicant and her spouse, the community organisations will continue to provide the support and services they provide to their communities and the individuals who access their services.

25. The Tribunal will now consider PIC 4020(4)(b) and whether there are compassionate or compelling circumstances that affect the interests of an Australian citizen, Australian permanent resident or an eligible New Zealand citizen.

1. The Tribunal accepts that the applicant’s spouse works in the construction industry were there are general shortages of staff and that the applicant will work in the hospitality industry where there are general shortages of staff. However, there is no information or evidence on the files that suggests that, if the applicant and her spouse could no longer be employed, each of the applicants’ particular employers would be so affected by staff shortages that this would give rise to compassionate or compassionate circumstances that affect the Australian citizen, Australian permanent resident or eligible New Zealand citizen who own the businesses or who also work for the businesses.

2. Similarly, there is no evidence on the files that suggest that if the applicant and her spouse were no longer involved in the community organisations, that those individuals who benefit from the assistance provided by the organisations would be so affected that this would give rise to compassionate or compelling circumstances that affect the Australian citizen, Australian permanent resident or eligible New Zealand citizen. As stated above it is the organisations themselves that provide the assistance to those that benefit from the organisations support and that the applicant and her spouse are only two volunteers in the organisations.

3. In the response provided to the Tribunal on 9 August 2022, the applicant provided information which was stated to be regarding the interests of children of the applicant and the applicant’s spouse. The information included the Australian birth certificates of their children. A receipt for the elder son’s school fees and a list of tuition fees for the 2022/23 academic year at the International School in Dhaka. Also provided were newspaper articles from various sources on the following: the abduction and selling of babies from hospitals (9 February 2015); the rise of child marriages in Bangladesh during COVID (22 March 2021); children living in slums in Bangladesh face risks from unsafe food and water (17 April 2018); the effects of climate change on children in Bangladesh (17 July 19); the effect of climate change on and infectious disease and mental health (23 February 2022); election low turn out and violence (5 January 2014); impact on women who lost jobs during COVID (29 May 2022); and rise of discrimination and hate speech against religious minorities during COVID (5 August 2022).

4. In the submission provided to the Tribunal on 31 August 2022 (the applicant’s submission), the applicant submitted that her children were born in Australia in 2013 and 2018, and have been raised in Australia. Her eldest son, Ahnaf is in Year 3 and her younger son, Ruhan will start school in 2023. She is planning to return to work fulltime when both her sons are at school.

5. It was further submitted in the applicant’s submission that the children would have to remain with her and her spouse if they were forced to return to Bangladesh and that this would cause them significant hardship. The applicant stated that her children have never visited Bangladesh; do not speak Bangladeshi; are being taught about the Australian way of life and social values; and that they know Australian social customs but as she and her husband have been busy, they have not had time to teach them any Bangladeshi language or traditions. Further, the applicant submitted that her elder son can speak and write English and has several close friends at school.

6. It was also submitted in the applicant’s submission that if the children had to go to a Bangladeshi school, they would face obstacles in daily conversation and learning as they do not have the language. Their education would be impacted as well as their confidence, and self-esteem. The applicant also submitted that they could not afford the tuition fees at the international schools in Bangladeshi as their fees are extremely high. Further, the applicant submitted that the majority of Bangladeshis are Muslim, and their children have been taught to be respectful and kind to people of different religious backgrounds in contrast to Bangladesh where it is taught only to admire and worship Islam. The applicant submitted that her children have adapted and are used to the openness and freedom of Australia and their state of mind ‘will be distorted’ because of the drastic difference between the two countries.

7. The applicant also submitted that she is concerned about her children’s health if they return to Bangladesh due to the severe weather and air and water pollution. Further, she expressed concern about the growing rate of child abduction, kidnapping and child rape and that children are taken every day. The applicant also stated that she is concerned that if her children got sick in Bangladesh, they would not receive the same standard of care that they would in Australia.

8. Similar submission to those set out above were set out in the representative’s submission including that there are vast differences between the natural environments of Australia and Bangladesh and that the hygiene and sanitary systems are still underdeveloped in Bangladesh which would be damaging to the sons’ developing immune systems and brain. It was further submitted that the sons maybe subject to the danger of child abduction, kidnapping, and even rape.

9. It was submitted in the representative’s submission that the applicant’s two sons were both born in Australia and spent their entire lives in Australia as they have not travelled overseas. The sons have grown up immersed in Australian society and culture. In relation to the elder son, it is submitted that he has built up social connections and friends from his school and local community. It was further submitted that both of the applicant’s sons adopt English as their first language both at home and at school. The submission also refers to the sons being taught to respect different religions in contrast to Bangladeshi society which is mainly Muslim and that such a major change to the eldest son’s environment could lead to him being confused and having social anxiety.

10. The applicant submitted in her submission that as she is 39 years old and a woman she will face unemployment in Bangladesh as all of her experience as a Cook is in Australia. Even if she got a job, she could only expect to be paid between USD200 to 300. If her husband and she were able to get jobs there is a huge income gap between Australia and Bangladesh and they would not be able to pay the children’s tuition fees and their household expenses. Provided was a list of tuition and fees for the International School in Dhaka

11. It was submitted in the representative’ submission that the applicant and her spouse and their family would face serious financial hardship if they want back to Bangladesh, as they currently earn $55,000 and $76,000 pr annum respectively. The applicant as a 39 year old woman would find it hard to find employment. Further the average wage for a Chef in Bangladesh is between USD245 to USD233 and they would be unable to sustain their household expenses and pay the children’s tuition fees. Provided was a list of tuition and fees for Academic year 2022 -2023 for the International School Dhaka.

12. The Tribunal recognises that the applicants may have a different standard of living if the applicants have to return to Bangladesh. Further, the Tribunal accepts that the family has integrated into Australian society and their community. However, it is the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen that are to be affected by the compassionate or compelling circumstances and in the circumstances of this review the persons affected are the applicants who are not Australian citizens or permanent residents, or eligible New Zealand citizens. Therefore, the Tribunal is not satisfied that there are circumstances which are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justify the granting of the visa. Therefore, any compelling or compassionate circumstances in relation to the applicant and her family would not meet all of the requirements of PIC 4020 (4)(b).

13. For the above reasons, the Tribunal is not satisfied that the requirements should be waived.

14. Therefore, the requirements of PIC 4020(1) should not be waived.

15. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl 187.213.

16. The remaining applicants rely on their status as members of the family unit of the applicant. As the applicant does not satisfy the primary criteria for the grant of a Subclass 186 visa, the remaining applicants do not satisfy cl 186.311.

17. Given the above findings, the Tribunal must affirm the decision under review.

decision

1. The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) visas.

Namoi Dougall
Member

ATTACHMENT

Migration Regulations 1994

Schedule 4

1. (1)         There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

   (a)the application for the visa; or

   (b)a visa that the applicant held in the period of 12 months before the application was made.

   (2)The Minister is satisfied that during the period:

   (a)starting 3 years before the application was made; and

   (b)ending when the Minister makes a decision to grant or refuse to grant the visa;

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

   (2AA)However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

   (2A)The applicant satisfies the Minister as to the applicant’s identity.

   (2B)The Minister is satisfied that during the period:

   (a)starting 10 years before the application was made; and

   (b)ending when the Minister makes a decision to grant or refuse to grant the visa;

   neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).

   (2BA)However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

   (3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.

   (4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:

   (a)compelling circumstances that affect the interests of Australia; or

   (b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

   justify the granting of the visa.

   (5)In this clause:

   information that is false or misleading in a material particular means information that is:

   (a)false or misleading at the time it is given; and

   (b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.

…

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.

…