Bari (Migration)

Bari (Migration) [2020] AATA 928 (10 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Wassim Bari
CASE NUMBER:  1718549
HOME AFFAIRS REFERENCE:               BCC2016/3083898
MEMBER:Lilly Mojsin
DATE:10 January 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) visa.

Statement made on 10 January 2020 at 11:53am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – false or misleading information in visa applications – claimed employment in Belgium – bogus document – reference letter from proprietor – email from proprietor or wife stating applicant not known – authenticity of email and identity of writer – applicant’s attempts to contact employer – no other documentation – Belgian employment requirements, including tax – anonymous tip off to department – waiver of criterion – compassionate or compelling circumstances – applicant’s contribution to Australia and work sector – reference letters from associates – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359AA

Migration Regulations 1994 (Cth), Schedule 2, cl 186.213, Schedule 4, criterion 4020

CASES

Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
Trivedi v MIBP [2014] FCAFC 42

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 4 August 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 16 September 2016. 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) because the delegate was satisfied that there is evidence that the applicant has given, or caused to be given, to the Minister a ‘bogus document’, and ‘information that is false or misleading in a material particular’.
The applicant appealed that decision to this Tribunal, annexing a copy of the Department decision to the application for review.
The applicant was represented in relation to the review.
The applicant’s advisor wrote to the Tribunal, seeking an adjournment until after 9 October 2019 for the advisor to be able to appear in person. The Tribunal did not consent to the adjournment for the convenience of the applicant’s advisor and advised that as proceedings are taped, time would be granted post hearing for submissions to be made. There was no other reason provided by the advisor for the adjournment that would prevent the applicant from a meaningful opportunity to give evidence and present arguments.
The advisor requested, in the alternative, that the Tribunal make a decision on the papers, given that this matter was addressed in the submissions at first instance and can be dealt with on the basis of lack of probative evidence before the Delegate. The Tribunal was not satisfied that it could make a decision on the papers and advised that the hearing would proceed.
The applicant appeared before the Tribunal on 25 September 2019 to give evidence and present arguments. The advisor attended the hearing by telephone.

CONSIDERATION OF CLAIMS AND EVIDENCE

Delegate’s Decision

In the application for a subclass 186 visa under the Temporary Residence Transition stream, the following was provided by the applicant , to the Department, in relation to his employment history:
Position: Bar Manager;
Employer name: Les Crustaces Restaurant;
Country: Belgium; Date from: 01/09/2006; Date to 30/09/2010;
Description of duties: Managing the premises, general maintenance & upkeep, stocktake, ordering
The same information in relation to work experience was provided by the applicant when he applied for a Class UC Subclass 457, lodged on 13 September 2012. The Class UC subclass 457 application additionally included a letter of reference on letterhead from "Restuarant Les Crustaces," signed by Kevin Van Cauwelaert.
On 11 April 2017 the Department contacted "Les Crustaces" by telephone on the number provided on its website and spoke to the proprietor, Kevin Van Cauwelaert, after having confirmed his identity. As he was busy preparing to open the restaurant for lunch, he asked that an email be sent to him with any questions that need answering, and provided an email address for correspondence.
An email was subsequently sent to the email address provided by Kevin Van Cauwelaert, asking whether he had ever employed Wassim Bari and if he recalled providing him with a work reference. A response was received on 12 April 2017 stating "I never heard about this person."
A submission by the applicant stated that
· "there is insufficient probative evidence to invoke PIC 4020," and there is insufficient probative evidence to support that the applicant has given or caused to have given a "bogus document."
· the email received from Kevin Van Cauwelaert, the proprietor of "Les Crustaces" was insufficient evidence as it does not contain a signature block or formality, and that Kevin Van Cauwelaert's wife, Julie, wrote the response as she "assists him with the running of the restaurant."
· Facebook conversations, indicated that in response to a request for copies of correspondence between "Australian Immigration" and Kevin Van Cauwelaert, a response was received stating "Hi this (sic) is Julie, how (sic) are things? I looked into the mail but in fact, at the time, they requested personnel register and your friend was not in it, we can't do anything sorry".
· The applicant submits that this is an indication that the checks carried out DIBP "show at best that Julie (who answered the email) is not acquainted with the applicant or his employment history and/or that the restaurant does not keep records from eleven to seven years ago (2006-2010)."
The applicant’s statement to the Department
I started calling Mr. Kevin Cauweleart straight away but didn't have is current phone number as I haven't been in contact with him since 2012.
So I decided to call the restaurant. Kevin answered the phone and i explained him what happened. He said that yes he remembered a call from Immigration but they called him during lunch service, which is the peak hour for his restaurant. As he could not talk on the phone he gave them his work email address.
His wife Julie, to whom he is married since 2014 and does all the administrative work for him often uses this email address. She is the one that replied to the Australian Immigration saying that the restaurant "never heard of such a person", talking about me.
She has never met me and probably never heard of me because I finished working there in 2010. Mr. Kevin Cauweleart then said that he would do anything to make it good by writing a letter.
24-05-2017
I called Kevin back to explain him what I needed from him to prove that my reference isn't bogus or fake or misleading.
He said okay and that he would do it as soon as possible. Since that last phone call it is impossible to get hold of him. I have sent my mother and sisters and a friend of mine to go and try to see him at the restaurant, but he was evasive. I asked Kevin's cousin Cedric to help and he sent a few messages to Kevin. Julie answered and said she would help but she hasn't. Cedric forwarded me his correspondence with her but now even Cedric cannot get hold of anyone. Maybe Kevin is worried about record keeping and doesn't want to get in trouble with the Belgian authorities.
My documents aren't fake or bogus. I have worked for Les Crustaces for the time that I mentioned.
The delegate found that the response by the applicant stating that the applicant was not in the employment register checked for the relevant period, indicates the applicant has provided, or caused to be provided, a bogus document or false or misleading information in relation to the visa application. There is no indication in the correspondence that there were no records kept for the relevant period, nor that the email response received on 12/04/2017, was not authored or authorised by Kevin Van Cauwelaert.
The delegate found that as the applicant has indicated he worked for a period of 4 years between 2006 and 2010 and his claimed employer had no knowledge of the applicant and as the statement was made on the Class UC Subclass 457 application form, it is false or misleading, and was such at the time it was given. The delegate also found that pursuant to PIC 4020(1)(b), the information was relevant to a visa that the applicant held in the period of 12 months before the application was made.

Submission by advisor 11 September 2019

In a submission to the Tribunal the applicant’s advisor stated that the applicant has no objection with the information provided in the subclass 457 visa application being classified as in relation to a “material particular” of the visa criteria.
The advisor opined that the applicant did not give a bogus document to the Department as the work reference does not meet the definition of term 'bogus document’ as defined in s5 of the Act. Further there is no probative evidence to support a finding that the document was obtained because of a false or misleading statement, whether or not made knowingly. The advisor opines that all the evidence shows that whoever answered the email is not acquainted with the employer or his employment practices.
The applicant initially made contact with Kevin, but that further attempts to clarify the situation have been unfruitful. The applicant speculates that Kevin has become uncooperative because he is worried about investigations by the Belgian tax authorities into historical business practices.
The evidence provided by to the Delegate by Madrid is not sufficiently probative to give rise to PIC4020 for the following reasons:
•     email from Kevin’s email address [email protected] to Ruth Carmena (Integrity Analyst, Madrid) dated 12 April 2017 states “I never heard about this person” contains no signature block or formality. It is insufficient evidence that the email was in fact written by Kevin
•     email was in fact not written by Kevin, but by his wife Julie, whom he married in 2014 and who assists him with the running of the restaurant “Les Crustaces”. Screenshot of Kevin’s Facebook page shows he is married to Julie Peire and that he married her in 2014.
•     It is unsurprising that Julie has no record of the applicant because he finished working at “Les Crustaces” in 2010 and she has never met the applicant.
•     The applicant asked Cedric Van Wichelen, Kevin’s cousin and the applicant’s friend on Facebook to get in touch with Kevin. Cedric is friends with Kevin on Facebook. The word “cousin” is used
•     Screenshots from Cedric writing to Kevin on Facebook.
Hi Julie, I am fine thanks. Sorry to bug you with that paperwork, I know you are very busy with the restaurant. Could you send me the mail that the Australian immigration sent you and your response please.
Julie replies from Kevin’s Facebook account saying:
“Hi this is Julie, how are things? I looked into the mail but in fact, at the time, they requested the personnel register and your friend was not in it, we can’t do anything sorry
Cedric has not received further replies from either Kevin or Julie.

· The fact that the Applicant has access to the email chain shows that he was successful in making initial contact with Kevin and corroborates his statement that he has been unsuccessful in obtaining further assistance from him to verify the employment reference.

The applicant contends that in light of the above, they show at best that Julie (who answered the email) is not acquainted with the applicant or his employment history and/or that the restaurant does not keep records from eleven to seven years ago (2006-2010). Department’s inquiries were insufficiently thorough to amount to evidence as required by PIC 4020(1).

Tribunal hearing

The applicant was born in Belgium and completed Flemish high school. The applicant finished high school in 2004/5.
Asked about his employment the applicant said that when he first worked at the restaurant, Francis was the owner of the business. The applicant helped Francis around the restaurant. His parents put him in contact with Francis and he started going there 2002/3 and he slowly started to work with him. He went to work for Francis in 2004/5. He stopped in about September 2010 and he came to Australia at end of 2010. Francis was still the owner of restaurant in September 2010. He was paid a weekly wage and a piece of paper telling him his accounts. He did not lodge or file an annual Belgian tax return as he was very young and irresponsible. He does not have any tax information. It is not normal in Belgium. Asked about his social security contributions, he said that he was still living with his mum. He does not know.
Asked how he got the reference from Kevin Van Cauwelaert, he said his friend Cedric contacted Kevin and asked Kevin for a reference. Asked why he did not contact Kevin, he said he did not have his contact his details as they were not friends on Facebook. Asked why he did not send a letter himself, he said it would be impossible. When he called the restaurant, it was always busy. Cedric is the cousin of Kevin. Francis is the granddad of Cedric Van Wichelen who lives in Perth.
The Tribunal discussed with the applicant the reference from Kevin Van Cauwelaert. The applicant said that Cedric provided him with the screen shots. Asked when he got the screen shots he said it was when he had the problem. It was in 2017. It was put that the screen shots do not appear to be dated.
It was also put to the applicant that the translation provided to the Department of the screen shots of claimed French conversations had marked at the top “Vodaphone AU 12.21 PM”. There were 2012 and 2014 dates, which is prior to the date of application and prior to the Embassy checks made in April 2017. Also the relevant conversations do not have any dates on them and do not have the name of the ‘friend’ mentioned. As there were no names on the conversations this indicated they were of no probative value as they did not refer to him. He said “I am friends with Cedric on Facebook”. He said 2012 is probably when he asked for the 457.
The Tribunal asked the applicant how he knew that Kevin Van Cauwelaert's wife, Julie, had written the response to the Department’s email dated 12 April 2017 that stated “I never heard about this person”. The applicant said that when he asked “can I please have emails today, she said it is Julie, she was handling letters and emails”. Put there is nothing on the face of the document that refers to him. He said that Francis passed away and Kevin has sold the business.
The Tribunal asked the applicant how he knew that Kevin Van Cauwelaert's wife, Julie, "assists him with the running of the restaurant" if he had never met her. He responded that Cedric told him that. He does not see Cedric very much anymore.
It was put to the applicant that the Facebook conversations produced between Julie and the applicant did not indicate what questions Julie was asked and who she was writing about.
The Tribunal explained that it was of the view that the documents were of no probative value. He is not named and there are no dates.
The Tribunal asked the applicant on what basis he speculates that Kevin Van Cauwelaert has become uncooperative because he is worried about investigations by the Belgian tax authorities into historical business practices. He responded that when he was calling Kevin he asked for his pay slips and then Kevin lost it.
The Tribunal notified the applicant that a s376 Certificate on his file was information about him from an anonymous source and the Tribunal read out the information. The Tribunal advised that it would disclose the information. The Tribunal informed the applicant that it would put to him information, pursuant to s.359AA of the Act, that may form reason or part of the reason for affirming the decision under review. The applicant was advised that he did not have to comment or respond immediately and he could seek additional time to do so, including after the hearing. The Tribunal put to the applicant that an anonymous person provided a tip off to the Department that his sponsorship documents were faked, he never worked as a bar manager/chief [sic] for the restaurant he claimed he did in Belgium. (This is his best friend’s parents’ bar). The only number on the fake work reference is a mobile number which is actually his brother’s number. Also it was stated that ‘we also have reason to believe he is dealing illegal substances. His current place of work is The Bird (Bar), William Street, Northbridge Perth’.
The Tribunal advised the applicant if it relied on the information, it may find that it undermined his credibility and lead the Tribunal to conclude that his work reference was not genuine and it would have no other option but to find that he gave the Department false and misleading information in order to obtain an Employer Nomination (Permanent) visa and the Tribunal may affirm the decision under review.
The advisor stated to the Tribunal that the text message and Vodaphone record is a plausible explanation of what happened. The probative value is circumstantial but it is a plausible explanation of what happened.
The applicant sought, and was granted, additional time to respond to the s.359AA information.
The Tribunal asked if the applicant wished to address it on compassionate or compelling circumstances to waive the requirements of PIC 4020. The applicant chose to address the Tribunal in writing stating that he was the manager of a happening bar in Northbridge.
The applicant provided post-hearing submissions to the Tribunal on 17 October 2019 and 2 submissions on 4 November 2019.
In regard to compelling or compassionate circumstances for the visa, the applicant submits that a negative decision will affect the cultural fabric of the State Theatre precinct and their businesses. It is submitted that the applicant’s case is unique in that he is integral to the fabric of a particularly vibrant part of Perth’s State Theatre precinct and a decision to affirm the visa refusal has a profound affect not only on the business owners of his employer, the William St Bird and its denizens, but also neighbouring businesses and Perth city, which is struggling to maintain its hospitality and entertainment precinct. In that respect, it affects the interests of Australia, as well as individuals.
The applicant provided letters of support from Mike O’Hanlon, Zoe Hollyoak, Anthony Princi, Kabir Ramasary, Marica Pastorelli, Mike Harris Garth Mariano, Dr Matthew Roberts Matthew Evans, Ben Taaffe, Luke Bovell.

REASONS AND FINDINGS

The delegate refused the applicant the visa as the delegate was not satisfied the applicant met 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).

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.
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.
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.
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.
For the requirements in cl.4020(1) and (2) to be engaged, it is not necessary to show knowing complicity by the visa applicant in the fraud.
This applies both to the provision of bogus documents, and information that is false or misleading in a material particular.
The Tribunal drew to the applicant’s attention s.376 Certificate. As the Tribunal was of the view that it was appropriate, after having regard to the advice given by the Secretary, to disclose the material to the applicant. The material was disclosed to the applicant pursuant to s.359AA.
The applicant claimed to the Department when applying for the visa that he worked as a Bar Manager, at Les Crustaces Restaurant in Belgium from 01/09/2006 to 30/09/2010. He provided the same information in relation to work experience when he applied for Class UC Subclass 457, on 13 September 2012. The Class UC subclass 457 application included a letter of reference on letterhead from "Restaurant Les Crustaces," signed by Kevin Van Cauwelaert [Kevin]. The Department undertook checks and accepted an email from the restaurant owner that he had never heard of the applicant. The applicant provided an explanation that Kevin's wife, Julie, wrote the response as she assists him with the running of the restaurant and this was the reason for the owner’s lack of knowledge of the employment of the applicant. The Tribunal places no weight on this explanation. The Tribunal accepts that Julie is married to Kevin, this information is available on Kevin’s publicly available Facebook page[1]. Merely because Julie works for her husband and they married in 2014 after the applicant left Belgium, these factors do not indicate that she was the author of the email to the Department.
[1]
The applicant provided Vodaphone screenshots of claimed Facebook conversations, claiming that the restaurant owner’s wife Julie was not acquainted with him but she communicated with Kevin. A screenshot showing Vodaphone AU and “Kevin”, on the top, was provided with a translation. The applicant claimed that in response to a request for copies of correspondence with "Australian Immigration", Julie wrote a response to Cedric, her husband’s cousin, a claimed friend of the applicant, stating:
"Hi this is Julie, how are things? I looked into the mail but in fact, at the time, they requested personnel register and your friend was not in it, we can't do anything sorry".
The Facebook Vodaphone screenshot provided by the applicant makes no reference to who the friend in the post was, therefore the Tribunal places no weight on this explanation. The Tribunal does not accept the applicant’s submission that this is an indication that the checks carried out by DIBP "show at best that Julie (who answered the email) is not acquainted with the applicant or his employment history and/or that the restaurant does not keep records from eleven to seven years ago (2006-2010)." Nor does the Tribunal accept the claim that the restaurant does not keep records from 2006 -2010, because there is no evidence before the Tribunal to support this claim.
Whilst it is claimed that Kevin's cousin Cedric now lives in Australia, there is no evidence before the Tribunal to suggest that Cedric sent messages to Kevin on behalf of the applicant and/or that Julie answered them and said she would help but she hasn't. They are mere suppositions and as there is no evidence to verify these actions occurred, the Tribunal does not accept they occurred. The Tribunal places no weight on the Facebook Vodaphone screenshot correspondence.
Further, as there is no evidence to verify that the applicant sent his mother and sisters and a friend to go to the restaurant to see Kevin, the Tribunal does not accept that this occurred. For the same reason the Tribunal does not accept that on 24 May 2017 the applicant called Kevin and he promised that he would assist him. As for the claim that the applicant has access to the email chain and this shows that he was successful in making initial contact with Kevin and corroborates his statement that he has been unsuccessful in obtaining further assistance from him to verify the employment reference, the Tribunal rejects the claim that there was an ongoing dialogue between Cedric, Julia and the applicant. The claim relies on the Facebook Vodaphone screenshot page, as discussed above and the Tribunal has placed no weight on it. Further there is no evidence before the Tribunal of an “email chain” between the applicant and Cedric that is probative evidence and shows the applicant was successful in making contact with Kevin.
The Tribunal put to the applicant s.359AA information. The applicant sought additional time to respond. That information related to an anonymous dob in letter. The person who sent the letter claimed that the sponsorship documents were fake, the applicant never worked as a bar manager/chief for the restaurant in Belgium, and it was his best friend’s parents bar. The only number on the work reference is a mobile number which is his brother’s number. The applicant responded to the Tribunal’s concerns stating that the “dob-in” was anonymous and provides no documentary basis for the allegations. It is an example of a personal vendetta against the applicant, who regularly has to deal with irate punters in the entertainment industry. The Tribunal should place no weight on the dob-in and discard it as a malicious attempt to stifle the applicant’s permanent residence application. As the Tribunal is unable to explore with the author of the letter its contents, the Tribunal is unable to place any weight on this letter.
Independent evidence[2] indicates that all individuals resident in Belgium are required to file an annual tax return. The government, in principle, issues a tax return form to each taxpayer. Resident taxpayers can opt to file their return electronically. Failure to comply with the filing requirement gives rise to a fine and/or penalty and could also result in taxation on an estimated basis. In principle, Belgian law provides that the employers deduct a withholding tax from salaries payable to employees as determined by prescribed tax tables. The Tribunal accepts that the applicant may not have kept pay slips but when asked about his tax returns, the applicant stated that he did not lodge tax returns whilst he was in Belgium.
[2] KPMG >
The Tribunal accepts that on 11 April 2017 the Department contacted "Les Crustaces" by telephone on the number provided on its website and spoke to the proprietor, Kevin, after having confirmed his identity. The Tribunal accepts that an email was sent to Kevin and he provided an email address for correspondence. The Tribunal accepts that the Department sent an email to the address provided by Kevin and received a response from that email. The applicant claims that the email omitted a signature block or formality and that it is not probative evidence that Kevin sent the email. The Tribunal is satisfied, on the information before it, that the Department officer sent an email to the internet address provided by Kevin. The Tribunal is satisfied the Department officer received a response from the internet address where the Department had sent the email. The Tribunal does not accept that it is necessary for a signature block or formality on an email for the Tribunal to reach satisfaction about the author of the email or its contents. The Tribunal has rejected the suggestions made that the email to the Department was written by Kevin’s wife, as discussed above. Therefore, the Tribunal is satisfied, in light of all the circumstances, that on 12 April 2017 Kevin stated by email "I never heard about this person."
The Tribunal has considered an employment reference claimed to be from Kevin. As the claimed author of the letter has denied the facts contained in that letter, ie the employment of the applicant, the Tribunal places no weight on this letter as evidence of the applicant’s employment. As for the claim that Kevin was avoiding tax or had some problems with the Belgium tax authorities, this is pure conjecture by the applicant and is rejected.
The Tribunal notes, in a merits review proceeding of this nature, there is no formal burden of proof placed on an applicant to provide information. However, in the absence of information, such as the applicant’s income tax returns, the Tribunal places more weight on the Department's processes, and the information it obtained rather than the applicant’s assertions.
As the Tribunal accepts that Kevin provided information to the Department about not knowing the applicant and confirming that the applicant was not employed by him and as the Tribunal has rejected the applicant’s claims that Kevin’s wife Julie responded to the email, the Tribunal is satisfied that the applicant did not work at "Restaurant Les Crustaces" and the Tribunal is satisfied that the work reference provided by the applicant to the Department contains false and misleading information. The Tribunal is satisfied that the applicant is not a witness of truth who has created his explanations regarding Cedric, Julia and Kevin in order to obtain the visa sought.
The applicant, at the Tribunal hearing, asked about his employment and when he first worked at the restaurant in Belgium, said that Francis was the owner of the business. The applicant worked for Francis from 2002 when he was still at school. He went to work for Francis 2004/5 when he finished school and ceased employment in about September 2010. Francis was still the owner of the restaurant in 2010. The applicant claims that Francis is Cedric’s grandfather. The Tribunal does not accept this claim as the Tribunal is satisfied the applicant is not a witness of truth.
In light of all the information discussed above, the Tribunal is satisfied that the applicant has provided information that is false or misleading in relation to his employment history. In circumstances where the purpose of the employment history relates to the visa applicant's qualifications to perform work as the holder of an Employer Nomination (Permanent) Subclass 186 visa, the Tribunal finds that the information was false or misleading in relation to a material particular in relation to the application for the visa. Therefore, the applicant does not meet PIC 4020 (1).

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

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 r.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.
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.
The Department provides guidance to its officers through the Procedures Advice Manual (PAM). These guidelines are not binding on the Tribunal but regard may be had to them when they're not in conflict with the legislation. Under PAM3 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 if the person is 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.
It is Departmental policy that compelling circumstances affecting the interests of Australia would not include circumstances where the applicant merely claims that, if granted the visa, they would:
·          work and pay taxes in Australia,
·          pay fees to an education provider; or
·          spend money in Australia.
The Tribunal gave the applicant additional time to make submissions to the Tribunal. The applicant’s advisor opines that the applicant’s case is unique in that he is integral to the fabric of a particularly vibrant part of Perth’s State Theatre precinct and refusal has a profound affect not only on his employer, the William St Bird and its denizens, but also neighbouring businesses and Perth city, which is struggling to maintain its hospitality and entertainment precinct. In that respect, it affects the interests of Australia, as well as individuals.
The Tribunal accepts the applicant’s claim that he is the manager of a happening bar in Northbridge. The Tribunal accepts that the State Theatre Centre of Western Australia is a theatre complex located within the Perth Cultural Centre in Perth, Western Australia. The Bird (Bird), the applicant’s employer, is in the cultural heart of the city where there is a vibrant mix of arts, music, food, entertainment and festivals. The Tribunal accepts that the Bird lies in the heart of the City of Perth City Planning Scheme 2, which seeks to “encourage growth in the entertainment industry and protect the character of Northbridge as a strategic entertainment hub”. It is an original live music venue up to seven nights per week as well as holding regular art exhibitions for emerging local artists. The advisor opines that the vibrancy and culture of the entertainment precinct depend on venues like the Bird.
The Tribunal notes that Tourism WA states that the entertainment districts[3] of Perth are Perth CBD, Fremantle, Elizabeth Quay, Northbridge, Scarborough, Beaufort Street, Subiaco, Victoria Park and Leederville. The Tribunal accepts that the Northbridge precinct, is one the entertainment districts of Perth and it and the State Theatre precinct have changed for the better and the area has now become vibrant with restaurants and bars. The Tribunal accepts that the applicant has, whilst managing the bar at the Bird, had an active involvement in development of its business and that it has also become a music venue. But the Tribunal does not accept that the applicant’s involvement in the growth of the Northbridge precinct and the State Theatre, and the development of the Bird into a music venue and an event venue demonstrates a significant benefit that the applicant could contribute or contributed to Australia's business, economic, cultural or other development. Rather the applicant, managed a bar where he was popular with the clientele, a bar where artists met, where live music events are held. He has been involved in event management.
[3]
In regard to whether Perth city is struggling to maintain its hospitality and entertainment precinct and that will affect the interests of Australia, the Tribunal notes that the City of Perth in November 2019[4] sought community input into proposed zoning changes for the Northbridge Entertainment precinct changes stating it seeks to ensure that Northbridge remains Western Australia’s premier entertainment precinct and involved creation of a special entertainment precinct and within this, a core entertainment area and frame entertainment area. It sought to set maximum noise levels seeking to ensure that new entertainment venues or residential and short stay accommodation developments within the precinct are designed to attenuate these maximum noise levels.
[4]
Therefore the Tribunal accepts that Perth City is attempting to change aspects of its Northbridge hospitality and entertainment precinct, it does not accept that the interests of the Northbridge area, one of a number of entertainment precincts in Perth, can be equated with the interests of Australia nor does the Tribunal accept that the employment of one individual within this area affects the businesses of this area.
There is no evidence before the Tribunal to suggest that Australia's trade or business opportunities would be adversely affected were the applicant not granted the visa or that Australia's relationship with a foreign government would be damaged if the applicant is not granted the visa.
Compassionate or compelling circumstances that affect an Australian citizen, permanent resident, or eligible New Zealand citizen are not relevant for consideration unless they also directly affect 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 circumstances must have a compelling or compassionate element particular to that individual case beyond those usually present in that visa caseload.
The applicant commenced a GoFundMe support campaign in March 2018 ( having secured over 160 donors2 and it is claimed that many of those would like to provide letters of support regarding the crucial position the applicant holds as the face of the William St Bird.
The Tribunal notes that the GoFundMe Campaign raised funds for the applicant’s legal fees. The Tribunal does not accept that because the applicant has received funding from a group of people for his legal fees to appeal a Department decision that this is compelling circumstances that affect the interests of Australia, or a compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

The applicant claims that the submissions made to the Tribunal heavily rely on the concept of a “vibe” of an establishment and there would be an effect by a negative decision on a wide range of Australian citizens and permanent residents if the Tribunal were to affirm the Department decision.
It is claimed by the applicant that Australia would miss out on a significant benefit that he could contribute to for Australia’s business, economic, cultural or other development if not granted the visa. Whilst the applicant claims that he is unique and he is an integral part of Perth’s theatre district on the evidence before it, the applicant does not claim to have a special skill that is highly sought after in Australia. He states he is the manager of a happening bar. The Tribunal does not accept that Australia would miss out on a significant benefit that the applicant could contribute to Australia's business, economic, cultural or other development if the applicant’s visa were not granted.
The Tribunal has considered whether the refusal of a visa for employment of an employee of one of the venues in the Northbridge Entertainment precinct has any effect on the cultural fabric of the Perth State Theatre precinct or the Northbridge precinct. The applicant is claiming that his case is unique and he is integral to the fabric of the Perth State Theatre precinct.
The applicant has provided a number of letters of support from his employer, persons with whom he works, other business owners in the Northbridge precinct and customers at his place of employment. The Tribunal is satisfied that the applicant excels in his employment as a Bar Manager, well known in the area and well known to patrons of the Bird that have formed into a community.
With regard to the evidence of the original owner of The Bird, Mike O’Hanlon, he stated that with Dan Brenton he started the Bird in 2009. The Tribunal accepts that the applicant engages with musicians and industry folk, and old friends, with a sincerity that makes the place feel significantly different than its industry peers. The Tribunal accepts that the deponent believes that if the applicant left The Bird it would have a material impact on its viability and that he would be hard to replace. But being an excellent employee and manager is neither a compelling nor a compassionate circumstance that directly affect an Australian citizen, permanent resident or eligible New Zealand citizen or compelling circumstances that affect the interests of Australia.
The Associate Producer for Black Swan State Theatre Company, Zoe Hollyoak, opines that The Bird became a place that she attends and the venue has become part of the applicant’s identity. The applicant continues to deliver support, offer guidance and collaboration on events, activations and community celebrations with care and detail that cannot be replaced and would have a detrimental effect on the State Theatre precinct. The Bird has been a place of sanctuary, expressions and inspiration. Whilst she opines that the applicant cannot be replaced and his departure would have a detrimental effect on the State Theatre precinct she not provided any information as to what the detrimental effect would be. The Tribunal is also not satisfied that being welcoming, delivering support, guidance and collaboration is compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen
Anthony Princi of the Bivouac Canteen & Bar opines the applicant is integral to their community and important to the continuation of the good spirit and trade of their direct precinct. The Tribunal is not satisfied that being a constant, warm and friendly person as an employee bar manager, who is integral to a community and to the continuation of the good spirit and trade of the precinct is compelling circumstances that affect the interests of Australia, or a compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
Kabir Ramasary, is the owner of a financial planning business (Rede Financial Services) in the business precinct of Northbridge and the present owner of The William Street Bird or The Bird and also owner of a cocktail bar (Ezra Pound) in the State Theatre Precinct around William Street. He opines that all the staff and owners in the businesses within the State Theatre Precinct know each other and there is strong sense of community. The applicant is the face of the business. He has a great ability to communicate with staff and relate to them, was able to be a conduit to the General Manager (director) and the staff. He is a bright, happy, down to earth and bubbly personality and has become a huge part of the State Theatre Precinct's community. He is known to all, trustworthy, genuine, generous, positive and creative. He opines that patrons don't just visit venues because of the venue, but they visit to be part of the community in which they feel comfortable in and to engage with staff members as more than employees but friends. He also stated that the applicant has deep ties with local live music, patrons and the staff at the venue and surrounding venues. The applicant shares the same relationship with the live music artists helping to create a space where artists feel safe through familiarity, comfort and friendship.
Whilst the Tribunal accepts that the applicant is a commendable employee who is friendly and creates a safe atmosphere where patrons wish to visit and thereby attracts business for his employer, the Tribunal is not satisfied that these circumstances are either compassionate or compelling circumstances. Nor does the Tribunal accept that if the deponent would suffer a financial downturn because the applicant was unable to work for him that this is a compassionate or compelling circumstance. The Tribunal is not satisfied that the circumstances outlined by the deponent are compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
Marica Pastorelli attests to knowing the applicant for about 6 years. She opines that the applicant is a mainstay in Northbridge and is one of the friendliest and most endearing characters in Perth. His love and positivity towards every human being is a credit to him. He is a mainstay at The Bird and adds flare and culture to the venue. The applicant knows everyone and everyone wants to know him. The Bird wouldn’t be the same without him. He will leave a dent in the patronage. He has definitely left a legacy and will hopefully get the chance to continue to do so. He has done more for The Bird and for the local community than some of the leading figures at The City of Perth. The Tribunal is not satisfied that adding flare or being friendly and endearing is compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
Mike Harris attests to the importance of the applicant to the local music scene as he has been a core part of the success and positioning of The Bird - on William Street Northbridge - to the local music industry. He opines that The Bird is a venue where many Perth bands get their first opportunity to perform in front of a knowing and appreciative audience. Much of this has been due to the creation of a music community that exists around that venue and one that is critical to the advancement of music in a way that no other venue in WA can claim. Central to this is the applicant’s role in nurturing this community and making the venue welcoming, accepting and supportive of those artists who play there. Whilst the Tribunal accepts the applicant is an exemplary employee, the Tribunal is not satisfied that nurturing the local music community or being welcoming and supportive to bands that perform in a venue whilst working as the manager of a venue is either a compelling or a compassionate circumstance.
The Tribunal rejects the suggestion made by Mike Harris that every artist who has played The Bird would attribute some of their success to the applicant because Mr Harris does not claim to be a musician and he has provided no evidence to support this statement. He also stated that the applicant nurtured the music community and made the venue welcoming, accepting and supportive of those artists who play there. As the Bird is a live music venue where the applicant is employed as the Bar Manager, the Tribunal is of the view that the applicant’s role is no more than an exemplary employee. Nor does the Tribunal accept that this contribution, and The Bird more broadly, has been instrumental in maintaining Northbridge's status as WA leading entertainment precinct. There is no independent evidence before the Tribunal to support this claim that Northbridge is WA’s leading entertainment precinct.
Therefore, the Tribunal does not accept that the circumstances outlined by Mike Harris are compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
Garth Mariano, co-owner of a retail store based in the city, and a clothing label, attests to the applicant being a huge driving force at The Bird and the wider live music community in Perth for a number of years. He has become a real pillar of The Bird. Through his warm nature and passion for music, the applicant has helped to build a safe and inclusive space for the Perth community to connect. He is the familiar face behind the bar, always with his signature smile and laugh. His unique and very special personality is the thread that holds what is so special about The Bird together. Without the applicant, the soul of the venue would be lost. The Tribunal is not satisfied that helping to build a safe and inclusive space or being a familiar face behind the bar or being the soul of a venue is compelling circumstances that affect the interests of Australia, or a compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
Dr Matthew Roberts states that he met the applicant years ago when he first started working at the Bird. His smiling face and willing attitude helped make the Bird what it is. Without him, they would have a very different precinct in Northbridge. He is a person who has always taken pride in his work and always gives his best attention to his customers and friends - something that is incredibly important in his industry. The Tribunal is not satisfied that being willing and being an excellent employee who gives his attention to his customers and friends whilst working at The Bird is either a compelling or a compassionate circumstance. Nor does the Tribunal accept that the manager of a venue in Northbridge can make the whole Northbridge precinct different because of his management of one specific venue. This claim was not made by the applicant’s employer or former employer. The Tribunal does not accept that the circumstances outlines by Dr Roberts are compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
Matthew Evans, stated that he has allowed his business to collaborate with The Bird on celebrations / events for the public to attend. He opines that the applicant has built The Bird from humble beginnings to one of the most popular live music venues in Perth. Whilst the Tribunal accepts the deponent’s views on the assistance the applicant has given him with his own business, the Tribunal places little weight on Matthew Evan’s claims regarding the Bird. The applicant’s employer does not make this claim that the applicant is responsible for The Bird becoming one of the most popular live music venues in Perth and the applicant himself does not make this claim. The Tribunal is not satisfied that Matthew Evans has demonstrated compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
Ben Taaffe, the director of music events and bookings company Move Party People opines that the applicant has contributed greatly to the improved culture and safety in the Northbridge area and the State Theatre precinct in particular, through his role at the Bird fostering a safe, inclusive and diverse patronage and programme of events. The Tribunal accepts that the applicant is highly popular with the patronage of The Bird but the deponent has not explained how the applicant’s contributions have either improved culture or safety. Nor has Ben Taafe explained how fostering a safe, inclusive and diverse patronage and programme of events improves culture or safety in a venue or an area or a precinct. The Tribunal therefore does not accept that Ben Taafe’s opinon of the applicant demonstrates compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
Luke Bovell is a small business owner within the City of Perth, and co-founder of The William Street Collective Incorporated (OnWilliam), an association of people involved in Northbridge’s Cultural and Creative Industries, formed with the aim to both raise the profile of the existing industry and help encourage more like-minded activities to the area of Northbridge. He states that this community organisation was the first of its kind in Perth - a grassroots local area group comprising of residents and businesses actively involved in the reactivation of Northbridge, operating from 2006 - 2019. He claims that the applicant is heavily involved in the creative scene of Perth, and his opinions and input are valued within the wider community. Whilst the Tribunal accepts that the applicant is heavily involved in the Perth creative scene, Luke Bovell has not provided any details about the opinions of the applicant and details about his input. Therefore the Tribunal places no weight on this claim. The Tribunal accepts that as the applicant became more involved in Event Management roles at The Bird, Luke Bovell and the applicant worked side by side as active members of the community, and are good friends. Luke Bovell opines that the applicant is the perfect example of someone who has built an impressive and interactive life within a community and maintained good standing. Whilst the Tribunal accepts that Luke Bovell has a high opinion of the applicant, the Tribunal is not satisfied that being held in high esteem by a community organization is compelling circumstances that affect the interests of Australia, or a compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
Dan Brenton believes the applicant is an excellent employee who would be hard to replace. The Tribunal accepts that the applicant is constant, warm and friendly person who always has the best interest of his staff and patrons at heart. The Tribunal is not satisfied that being an excellent employee who has become friends with some of his customers is compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
Anthony Princi believes that the applicant is integral to their community and important to the continuation of the good spirit and trade of their direct precinct. The Tribunal notes that none of the deponents have indicated the size of the community they refer to. The Tribunal is not satisfied that being an integral member of a community or a successful bar manager who assisted with the development of the precinct is compelling circumstances that affect the interests of Australia, or a compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
The Tribunal, as discussed above, does not accept that there would be an effect by a negative decision on a wide range of Australian citizens and permanent residents if the Tribunal were to affirm the Department decision.
The Tribunal accepts that the applicant has developed close friendships whilst living in Perth and has obtained support to assist him with payment of his legal fees. As the manager of a live happening music venue in Northbridge he is held in high regard by other business owners and others who attest to his business skills and general community involvement. The Tribunal is not satisfied that being an exceptional employee or being held in high regard by those with whom he has worked and formed relationships are compassionate circumstances or compelling circumstances that directly affect an Australian citizen, permanent resident or eligible New Zealand citizen that justify the grant of the visa.
The Tribunal notes that none of the referees who have provided references for the applicant have indicated in their references that they are aware of the reason for the applicant not obtaining the visa he has sought.
The Tribunal has considered the applicant’s evidence and reference letters but it is not satisfied that, cumulatively and individually, there are compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, permanent resident or an eligible NZ citizen to justify granting of the visa.
Therefore the requirements of PIC 4020(1) should not be waived.
On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.186.213.

100. The Tribunal must affirm the decision under review.

DECISION

101. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) visa.

Lilly Mojsin
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.

…

[2020] AATA 928

10 January 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Standing