Bennett (Migration) - [2020] AATA 215

Bennett (Migration) [2020] AATA 215 (31 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Christopher Bennett
Miss Joanna Horsfall
CASE NUMBER:  1804977
DIBP REFERENCE(S):  BCC2016/4187123
MEMBER:Alan McMurran
DATE:31 January 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) visas.
Statement made on 31 January 2020 at 2:24pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition Stream – Call or Contact Centre Manager – false or misleading information – employment history – minimum 3 years’ industry experience – bogus document – work reference – element of fraud or deception – waiver of requirement – positive contribution to sponsor’s business – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.213; Schedule 4, PIC 4020
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Hassan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2014
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 made 25 February 2018 for review of a decision made by a delegate of the Minister for Immigration on 8 February 2018 to refuse to grant the applicants Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 12 December 2016. The delegate refused to grant the visas on the basis that the first named applicant, Christopher Bennett (the applicant), did not satisfy the requirements of cl.186.213 (1) of Schedule 2 to the Migration Regulations 1994 (the Regulations). The application by the second named applicant succeeds or fails based on the applicant’s outcome as the primary visa applicant.
The delegate determined that the applicant did not meet PIC 4020 (1)(b) of Schedule 4 to the Regulations, as the delegate found that the applicant has given, or caused to be given, to an officer of the Department, information that is false or misleading in a material particular, being false employment claims in relation to a subclass 457 visa granted in 2014 and valid to 2018, and current at the time of application to the Department (in December 2016), and being a visa held by the applicant in a period of 12 months before the application was made.
The applicants were invited to appear before the Tribunal on 30 January 2020 to give evidence and present arguments. The Tribunal received oral evidence from both applicants who appeared by telephone. The applicants are both currently offshore and living in the United Kingdom, having departed Australia on 4 June 2018. The applicants were not represented, their previous migration agent having retired on 11 September 2018.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicants are seeking permanent residence visas through the Employer Nomination Scheme, Subclass 186, via the Temporary Residence Transition Stream.[1]
[1] Regulations, 186.21 and 186.22
At the time of application, the applicant was the holder of a Subclass 457 Temporary Work (Skilled) visa for the occupation of Call or Contact Centre Manager (ANZSCO 149211). That occupation was at ANZSCO skill level 2, which required at least 3 years of relevant experience in lieu of an AQF Associate Degree, Advanced Diploma or Diploma. The occupation has since been removed from the medium and long-term strategic skills list or the short term skilled occupations list, but is still open to current applications under consideration or review.
The applicants are both citizens of the United Kingdom. The applicant was seeking employment with an Australian company, MonDial Fundraising Communications Pty Ltd (the sponsor). The sponsor is seeking to engage the applicant as a manager for its call centre operation in Sydney at a remuneration package of $65,000 per annum.
The sponsor has been registered with ASIC since 25 November 2004, and carries on business as a service provider for what is described as a portfolio of Australian charities and foundations. The sponsor is a privately-owned profitable organisation which seeks the services of the applicant to “lead a team responsible for fundraising”.[2]
[2] Tribunal case file 1804977 at folio 54
The applicant has been employed by the sponsor on 2 previous occasions, firstly between April and October 2012 as a telephone fundraiser, while the applicant held a temporary work visa after arriving in Australia as a tourist, and secondly from January 2013 until June 2018 when the applicant was employed as call centre manager and during which period the nominee was the holder of a 457 temporary work skilled visa. The applicant left that employment on or about 4 June 2018, when the applicants returned to the United Kingdom. The applicant said they departed Australia for the United Kingdom for “personal reasons” related to family.
The sponsor had successfully nominated the applicant for a 457 visa, granted on 28 April 2014, expiring 28 April 2018. Since that time and until their departure, the applicants had remained on a Bridging Visa A, with full work rights (but no travel return rights), pending the outcome of this review.
In order to meet the requirements for the grant of the 457 visa, the applicant (as the nominee to that application) completed a visa application with the assistance of a migration agent, which the agent lodged with the Department and setting out a work history intended to demonstrate that the applicant met the minimum requirement for the nominated occupation of 3 years’ industry experience. The applicant did not hold either an Associate Degree or Diploma otherwise necessary to meet the anticipated skill level.
The applicant submitted an employment reference (undated) with the 457 visa application from NTT Fundraising, purportedly signed by the Operations Director of that UK company.
The applicant stated that the previous employment was in a “management position” in the application submitted to the Department for the 457 visa, and declared that he had been so employed from 1 June 2009 until 1 October 2011. The employer reference states the applicant was engaged in a management position with that company in 2009.
In his current 186 visa application to the Department in December 2016 (2 years after completing the 457 visa application to the Department), the applicant makes no reference in his employment history to any engagement by NTT Fundraising.
Following the lodgement of the applicants’ 186 visa application, the Department carried out integrity checks from its London post. The Department’s checks noted contact with the operations manager of NTT Fundraising, which confirmed there was no record of the applicant having been engaged in the stated role by that organisation.
The Department sent a natural justice letter to the applicant on 1 September 2017, stating that it had received adverse information to the effect that the employment claims by the applicant had not been substantiated, namely the employment by NTT Fundraising.
In response, the applicant told the Department that he was “unable to provide you with evidence of me working at NTT fundraising between 2008 and 2011”.[3]
[3] see DIBP the file BCC 2016/4187123 – 170596487
CONSIDERATION OF CLAIMS AND EVIDENCE
For this review, the Tribunal has had available to it the electronic file records produced by the Department[4] , the Tribunal’s case file, written submissions from the applicant including supporting references, and information obtained at the hearing.
[4] ibid
The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.186.213 (1) 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 Tribunal has approached the review firstly by considering the evidence in relation to consideration of PIC 4020 (1).
If the Tribunal is satisfied that the criterion is not met, it must then go on to consider PIC 4020 (4) and whether or not the requirements in the criterion may be waived on the basis of 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, and which may justify the exercise of discretion based on those circumstances as found.
PIC 4020(1) - Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in a material particular?
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.
The Evidence and the Hearing
The Tribunal explained to the applicants the purpose of the hearing and asked if the applicants understood the reason why the Department had refused the application. Both applicants confirmed they had read and understood the Department’s decision. The applicant said he thought the decision was harsh and that he had been advised to lodge this review.
In giving evidence in response, both parties were present by telephone and the applicant replied to the Tribunal’s questions. On completion of the hearing, the secondary applicant confirmed that she had listened to the evidence and had nothing further to add as the information had been dealt with by the applicant in his responses to the Tribunal. Neither applicant sought an adjournment or extension of time to provide further information.
The applicant confirmed the chronology set out in the background above as to his arrival in Australia and his work experience with the sponsor from 2012.
At the hearing, the Tribunal asked questions of the applicant about information provided by him and on his behalf to the Department, and to the Tribunal.
The Tribunal notes that until the hearing, the applicant had not formally conceded in his submissions either to the Department or the Tribunal that the information previously provided by him contained false or misleading information in a material particular (namely, his prior employment history in the UK), or that he had submitted a “ bogus document” being a false employment reference.
The Tribunal asked questions about the lodgement of the 457 visa application with the Department and the stated work experience.
The applicant said his “old boss” had wanted to “keep me there in Sydney” and that the applicant had wanted to remain in Australia with his partner (the secondary applicant). He said he had discussed the issue of applying for the Temporary Work (Skilled) 457 visa with his manager, and the fact he did not have sufficient (at least 3 years) work experience. The applicant said the manager told him he knew how to “fix” that and persuaded him it was not a problem that he did not have the requisite work experience, or educational qualifications for the occupation of call centre manager. The manager told the applicant he could arrange an employment history which would meet the work history requirement and deal with the applicant’s migration agent directly about the issue.
The applicant said that after discussion with the manager, he agreed with the proposal to allow the manager to obtain evidence to support his employment background. The Tribunal asked him why he agreed to the proposal, and the applicant said that he had not fully considered or appreciated the severity of the consequences of his decision. He said the manager provided information to his migration agent, who submitted the information with his approval, including the undated letter on the letterhead of NTT fundraising. He said he realised he would not qualify for the visa otherwise.
The Tribunal asked if the applicant had ever worked at NTT Fundraising, and he confirmed in reply that he had not. The Tribunal asked if he had read the application lodged with the Department which contained a declaration that the information contained in the application was true and correct, and a warning of consequences for providing false or fraudulent information. He said he had “scanned” the document but did not recall reading the warning about providing false information, as he said this all took place several years ago and he could not remember the 457 application form.
The Tribunal put to the applicant that the information provided was in fact false and intended to mislead the Department into accepting that he had the requisite work history. The applicant agreed and said that he was afraid that without providing that history, he would not qualify for the visa. He said he did not think it was sufficiently serious at the time, as the information had been proposed and put forward by his manager (not by him), and would therefore “be alright”. He explained that he was young at the time, had not thought about it too deeply and had made a “mistake”.
The Tribunal put to the applicant that the “mistake” was made knowingly, which the applicant accepted, and replied that “I take full responsibility for it”.
The Tribunal put to the applicant that the undated letter from NTT Fundraising was false and the content not true. The applicant agreed that he had never worked there; however, he stated that he had not completed the application which was done by his migration agent, attaching the letter supplied to the agent by the manager, not supplied by the applicant himself.
The Tribunal was concerned at this response which seemed somewhat disingenuous given the frank admissions by the applicant at the hearing that the information was untrue and the reference document from NTT Fundraising evidently fraudulent. It seemed to the Tribunal that despite his admissions and taking responsibility, the applicant was in fact not accepting full responsibility for acts done by others on his behalf, who he felt in some measure were also implicated in providing the false information with the visa application.
The applicant said that he had not informed his migration agent of the false employment history or that the letter which the manager had presented was false, and which the agent had unknowingly included in the application to the Department. The applicant said he was only concerned that the visa application succeeded.
The application was successful and the applicant was issued a 457 visa by the Department in 2014 and continued his employment with the sponsor in the role of call centre manager until he departed in June 2018.
Findings
The Tribunal has carefully considered the information and documentation provided for this review, together with the evidence obtained at hearing and the applicant’s concesions.
The Tribunal finds it is satisfied that the information provided with the application to the Department concerning the purported employment history of the applicant at NTT Fundraising was false or misleading at the time it was given (in 2014), and was relevant to the criteria being considered by the Minister in making a decision on the visa application.
On the information and evidence presented, the Tribunal finds it is also satisfied that the applicant has given, or caused to be given to the Minister, an officer, a relevant assessing authority a bogus document as defined in s.5 (1), being a document that the Tribunal finds to have been a work reference from an employer, which was in fact not issued in respect of any employment of the applicant by the stated employer, and which document was fraudulently obtained.[5]
[5] PIC 4020(1)(a);
The Tribunal is satisfied that the applicant has caused to be given to the Minister in the guise of an Officer of the Department, a bogus document or information that is false or misleading in a material particular, in relation to a visa that the applicant held in the period of 12 months before the application was made. [6]
[6] PIC 4020(1)(b)
The Tribunal is further satisfied that the information was provided knowingly in the Trivedi sense and that the requisite element of fraud or deception is present to attract the operation of the provision in PIC 4020 (1).
For these reasons 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.

For the following reasons, the Tribunal is not satisfied that the requirements should be waived.
Consideration of evidence in support waiver and submissions
The case presented for the applicant at the review hearing relies upon submissions and evidence referred to as set out below that there are grounds for the Tribunal to waive the requirements of PIC 4020 subclause (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.
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.
The waiver provision is not expressed in such a way as to take into account the personal circumstances of the applicant, but rather those other persons (and the interests of Australia) which are shown to be affected.
In order to engage with the question of waiver, the Tribunal must embark on a two-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.
The Tribunal asked questions of the applicant about the evidence upon which the applicant asserts the waiver provision should apply.
The applicant submitted that he had worked diligently since the grant of the 457 visa and been compliant in all respects. He said his sponsor strongly supports his application to remain in Australia. He referred to a reference from the sponsor’s CEO, Ashley Rose, dated 23 January 2020.[7] An extract from the letter says that “Should Chris be granted visa I can confirm it would be the intent of the business to re-employ him within a role as a manager”.
[7] Tribunal file at folio 54
The applicant submits that the letter from the CEO is evidence that there are compelling circumstances that affect the interests of Australia. He points to the statement in the letter that [reproduced as written]:
“Chris built a unique skillset of experience within the fundraising and communication sector. Working for several long-term charities over the past 5 years is knowledge of their campaigns and communications was encyclopaedic. The implication of this knowledge and skill leaving the business severely impacted the business.
Chris lead a team responsible for fundraising. In the year prior to Chris’s departure the operation raise over $30 million raised for Australian causes. However, this dropped by 10% in the year after Chris left. This drop is largely attributable to the varied impact Chris’s departure from the business had.
Most severely we saw a drastic impact on several charities campaigns, the consistency and results and ultimately fundraises. The performance of one of our long-standing clients, The Wilderness Society, (“TWS”) programs declined. TWS had worked with MonDial since 2010. Chris has been integral to the charity’s performance. A contract for work with TWS was not renewed in the financial year following Chris departure. A decision largely due to the drop in performance subsequent to Chris leaving. The implication of this severely impacted MonDial financially and we were forced to reduce our number of employees.”
The Tribunal notes this submission relates to the financial performance of the sponsor, an Australian corporation which trades for profit. For the purposes of the application of the waiver provision, the corporation is not an Australian citizen or permanent resident. The submission does not relate to any particular individual or person, and the Tribunal places little weight on this evidence in support of the waiver consideration.
The applicant referred at the hearing to the statements made by 4 other referees in 2017[8] comprising references from the sponsor’s call centre Director (Swail Braganza), a Program Manager at Handmade Training (Tayon McCafferty) and an employee at the sponsor, Frank Catlin, and the sponsor’s CEO (updated in 2020 as set out above). The applicant had supplied those references to the Department in response to the adverse information and warning letter dated 1 September 2017 which he had received from the Department.
[8] Applicant’s email submission in response to the Department's natural justice letter in Tribunal case file at folio 17
The applicant submits these references support the application of the waiver. The Tribunal refers to these references below, but notes the written submission from the applicant to the Tribunal on 25 February 2018,referring to the references and which reads [reproduced as written] :
“Dear Whom is may concern,
I am appealing the decision made by Immigration on my visa application as I do not feel the information I provided to immigration was taken into account when the final decision was made.
Below you will find the email I provided to Immigration after their initial request inviting me to comment. In this letter, I outlined that although I cannot provide evidence of the employment at NTT Fundraising between 2008 and 2011 I should be granted a waiver on compelling circumstances affecting the interests of Australia.
As you will see below from my response, I have outlined my importance to Mondial Fundraising (the company I work for) and more importantly our Australian charity partners. The references I have provided are evidence that not only would Mondial be adversely affected by me not being granted the visa, but also how the Australian charities that I work on behalf of would also be affected. My expertise in fundraising & management positively impacts Mondial, the industry that I work within, and therefore Australia’s trade/business opportunities would be adversely affected.
Please see a copy of the email below, and the documents I have attached to this application.
Please contact me if you require anything further,
Chris Bennett”
At the hearing, the applicant stressed in his evidence his “importance” to the sponsor, supported he submits with the letter from the CEO, extracted in part above. He said that he has personally produced “many positive changes” to the sponsor’s business in his time at the company. He says he has been instrumental to success of the call centre and the charities for which it acts and in increasing funds raised for those charities. He says he introduced a system of employing older Australians and long-term unemployed, and those with a disability, as call centre operators.
The applicant directed the Tribunal to the reference from an employee, Mr Catlin, an Australian citizen. He said that was evidence as to how he had helped older and unemployed Australians. He said Mr Catlin was still employed with the sponsor and had been “for a couple of years”. In his statement (undated)[9] , Mr Catlin says that the applicant has been responsible for continuous support and encouragement and that he was able to “turn to Chris for support where he will offer genuine positive guidance”. He refers to the applicant providing him with coaching support which has helped him to perform successfully. He confirms he is still employed by the sponsor and his employment has not been affected by the applicant’s departure.
[9] Tribunal case file at folio 13
The reference from Tayon McCafferty dated 25 September 2017[10] refers to the fact the applicant “has played an integral role in successfully changing the lives of over 100 Australian’s [sic] who are doing it tough”. The reference expresses gratitude to the applicant but does not identify particular Australians who the applicant has helped, or how they may be affected by the applicant’s departure. The applicant said in evidence that he is aware the program he introduced is continuing where the sponsor seeks to engage older, unemployed and disabled persons for its workforce.
[10] ibid at folio 14
The reference from Swail Braganza[11] , the sponsor’s call centre Director, refers to his endorsement of the applicant whose initiative “has allowed us to employ many Australian citizens”, and who is an important employee who has allowed the sponsor “to continue on their path of growing each year and being able to support more and more Australian Charities”. No financial information has been supplied to evidence the generic statements about financial performance. There is no indication by the director of particular Australian citizens who may have been adversely affected following the applicant’s departure from the sponsor in June 2018.
[11] ibid at folio 15
The applicant submitted at hearing that his legacy with the sponsor was the employment of a number of Australian citizens. He submitted that if he were not able to be retained by the sponsor, many other Australian citizens will be affected, because the sponsor’s performance will be affected resulting as the CEO has indicated above, in reductions in the workforce. He submitted these were impacts affecting the interests of Australia. He said the circumstances surrounding the sponsor’s Australian employees, was sufficiently compelling to warrant the application of the waiver.
In considering these submissions, the Tribunal notes the applicant voluntarily left the employment in June 2018 “for family reasons” related to the secondary applicant. It does not appear at that time the applicant was particularly concerned about the employment of other Australians by the sponsor, and provided only a short period of notice to the sponsor. The applicant said that since his return to the United Kingdom, he has been working for Martin House Children’s Hospice near York. He said he would still like to return to Australia.
The Tribunal asked if he had any further or other comments or information he wished to provide as to why the Tribunal should agree there were sufficient compelling circumstances affecting the interests of Australia or compassionate or compelling circumstances affecting the interests of Australian citizens.
The applicant responded saying he now has the necessary qualifications for the occupation, although he did not have them at the time of issue of the 457 visa, that the sponsor continues to offer him the position, that he admits he has made a “mistake” and takes full responsibility in that regard, and that he has been instrumental in employing Australian citizens for the sponsor.
Findings- waiver
In Hassan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[12] the court endorsed the principle that “compelling circumstances” mean “circumstances which force or drive the decision-maker, in a metaphorical rather than a physical sense, to decide whether or not a jurisdictional fact exists for the exercise of the discretion.”[13] The court referred to the decision of the High Court in Plaintiff M 64/2015[14] stating that “’ reasons’ that are’ compelling’; that is those reasons must ‘force or drive the decision-maker’ ‘irresistibly’ to be satisfied that ‘special consideration’ should be given to granting the particular application”.
[12] [2019] FCA 2014 per Gleeson J
[13] Ibid at par 17 quoting from Babici [2005] FCAFC 77
[14] [2015] HCA 50 AT [31]
What may “force or drive the decision-maker” in a fashion which is “irresistible” may differ according to the decision-maker, but such irresistible force must emanate from the objective facts found in the particular case. Adopting this principle, this Tribunal is of the view the circumstances set out in the reference letters set out above are expressed to be opinions of their authors setting out broad generalisations, rather than objective facts reasonably supported. They are in support of the applicant himself, and the sponsor corporation, rather than pointing directly to Australian interests or identified citizens or permanent residents, other than in a generic group sense, without specific details.
While the updated statement from the CEO may reflect a business downturn, it carries little weight and is not so sufficiently compelling as to warrant the application of the waiver provision, when set alongside the fact of the applicant’s admitted fraud and the purposeful provision of information to the Department which was false and misleading regarding the particulars of the applicant’s employment background, and which was integral to the decision on the visa application made by the Department. The sponsor by its employee, the then call centre director (who is no longer employed by the sponsor) was in no small way complicit in the provision of the false or misleading information.
There is no issue in this application that the applicant made an innocent mistake or error[15] when providing the employment information to the Department, thus averting the application of PIC 4020 on the basis that it does not apply to “innocent, unintended or accidental matters”.[16] On the contrary, the evidence confirms that the documents which the applicant caused to be provided have been “revealed as false, in the purposely untrue sense of that term”. [17]
[15] See Trivedi at paragraph 32
[16] ibid
[17] ibid
The Tribunal does not feel “compelled” in the sense outlined above and by the circumstances referred to that it should exercise the waiver.
For these reasons, the Tribunal finds it is not satisfied that:
§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,
exist that justify the 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 (1).
The applicant has only sought to meet criteria in respect of regulation 186.22 being criteria for the visa in the Temporary Residence Transition stream. The applicant has not met the common criteria for the visa in regulation 186.213 (1), and the Tribunal has not considered any other criteria relevant to any other subclass for the visa.
The decision in respect of the secondary applicant follows from the decision made in respect of the primary applicant. The secondary applicant sought to make no further or other submissions to the Tribunal.
DECISION
The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) visas.
Alan McMurran
Member
ATTACHMENT
Migration Regulations 1994
Schedule 4
4020(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a)the application for the visa; or
(b)a visa that the applicant held in the period of 12 months before the application was made.
(2)The Minister is satisfied that during the period:
(a)starting 3 years before the application was made; and
(b)ending when the Minister makes a decision to grant or refuse to grant the visa;
the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
(2AA)However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(2A)The applicant satisfies the Minister as to the applicant’s identity.
(2B)The Minister is satisfied that during the period:
(a)starting 10 years before the application was made; and
(b)ending when the Minister makes a decision to grant or refuse to grant the visa;
neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).
(2BA)However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
(4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a)compelling circumstances that affect the interests of Australia; or
(b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
(5)In this clause:
information that is false or misleading in a material particular means information that is:
(a)false or misleading at the time it is given; and
(b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
…
Migration Act 1958
s.5 Interpretation
(1) In this Act, unless contrary intention appears:
…
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)purports to have been, but was not, issued in respect of the person; or
(b)is counterfeit or has been altered by a person who does not have authority to do so; or
(c)was obtained because of a false or misleading statement, whether or not made knowingly.
…