Boylan (Migration)
[2019] AATA 5095
•31 July 2019
Boylan (Migration) [2019] AATA 5095 (31 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr John Boylan
CASE NUMBER: 1614489
DIBP REFERENCE(S): BCC2016/1149095
MEMBER:Jennifer Cripps Watts
DATE:31 July 2019
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.
Statement made on 31 July 2019 at 3:40pm
CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – character requirements – false or misleading information – criminal convictions – multiple previous visas – requested statement addressing compassionate and compelling circumstances not provided – Australian citizenship of child and partner not compelling reason to waive PIC 4020 – ample opportunity to respond – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994(Cth), Schedule 2, cls 457.223, 457.224, Public Interest Criterion 4020
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184FCAFC 42
Plaintiff M64/2015 v MIBP [2015] HCA 50
Trivedi v MIBP [2014] FCAFC 42STATEMENT 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 (the delegate) on 5 September 2016 to refuse to grant the applicant a Temporary Business Entry (Class UC) 457 visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 16 March 2016. The delegate refused to grant the visa on the basis that the applicant did not satisfy Public Interest Criteria (PIC) 4020 for the purposes of cl.457.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was satisfied that the applicant had provided false or misleading information to the Minister when he applied for the visa held in the period of 12 months before the applicant was made.
The applicant applied for review on 8 September 2016 and provided the Tribunal with a copy of the delegate’s decision.
On 4 July 2019, an invitation was sent to the applicant to attend a hearing scheduled on 25 July 2019. The Tribunal received a written response in which the applicant indicated he would not attend the hearing. The applicant’s migration agent was contacted to confirm that the applicant was declining the hearing invitation and understood that a decision would be made ‘on the papers’. She confirmed that he understood both these things.
In these circumstances, the Tribunal has proceeded to make a decision on the evidence before it.
The applicant was represented in relation to the review by his registered migration agent, Ms Simone Kearney, Migration Agent Registration Number 1173899.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.457.223 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). There is no information before the Tribunal to suggest that identity is in issue in this case. PIC 4020 is extracted in the attachment to this decision.
When the Tribunal invited the applicant to attend a hearing, in accordance with s.360 of the Act, he was invited to provide any additional information he wished to rely on. In the invitation sent in writing on 4 July 2019, the following was included:
‘The visa was refused because you did not meet the character requirements. Please ensure that if you wish to claim compelling or compassionate circumstances affecting an Australian citizen that you provide evidence supporting the claim and a statement addressing why the Tribunal should consider waiving the PIC 4020 criteria.’
On 23 July 2019, two days prior to the scheduled hearing (before the applicant had formally declined the invitation), the Tribunal wrote to him reminding him that he had been invited to provide additional evidence and had not yet provided any, other than a brief email from his migration agent saying that he had had a baby with his Australian citizen partner, but with no accompanying verifiable evidence. In the letter sent by the Tribunal on 23 July, the applicant was invited to provide information relating to his partner and baby that he might consider relevant on the review. In response, the applicant still did not provide a statement addressing compelling reasons why the Tribunal might consider waiving the PIC 4020 criteria in his case, but he did provide the following information, additional to that which was provided at the time of application:
a.A copy of the identification page of the Australian passport of Ashlee Brennan, born in 1990;
b.New South Wales Register of Births for Ashlee Brennan at Blacktown District Hospital indicating the same birthdate as in her passport;
c.A copy of a New South Wales birth certificate for Flynn Boylan, born April 2019 at Campbelltown Hospital, naming Ashlee Brennan and John Boylan as the mother and father; and
d.A copy of the identification page of the Australian passport of Flynn Boylan, showing the same birthdate as on his birth certificate.
The Tribunal is satisfied that both Ashlee Brennan and Flynn Boylan are Australian citizens. No information has been provided that they are citizens of any other country. It appears likely, in the Tribunal’s experience, that Flynn Boylan, as well as being an Australian citizen, would probably be an Irish citizen by descent on the basis that the applicant, his paternal parent, is an Irish citizen.
Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in 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 applicant is an Irish citizen. Relevant to the issues on the review, he arrived in Australia travelling on a Subclass 417 working holiday visa that was granted on 20 February 2014. He applied for and was granted an extension to his 417 visa, to 2016, and held that visa in the 12 months before the application was made for the Subclass 457 visa that is the subject of this review. In is noted in the delegate’s decision that in relation to the second working holiday visa granted in 2015 the applicant declared he had no criminal convictions. When applying for his Subclass 457 visa, on 16 March 2016, the applicant declared that he did have criminal convictions, which was inconsistent with the information he had provided when applying for the visa he held in the 12 months before the 457 application was made.
In the ‘Character declarations’ section of his online 457 visa application on the Department file, generated on 16 March 2016, the applicant, in response to the question: ‘Has any applicant ever been convicted of an offence in any country (including any conviction which is now removed from official records)?’, the applicant answered ‘Yes’. He provided an Irish Police check, dated 6 May 2016 listing numerous offences from April 2008 to January 2014. Forming a preliminary view that that the applicant had provided false or misleading information, on 5 July 2016 the Department wrote to the applicant inviting him to comment on this non-genuine or adverse information, essentially, why he did not declare the criminal convictions in relation to the 417 visa granted to him in 2015.
A response was received and included the following claims:
a.He previously entered Australia on three occasions with a holiday visa, in December 2012 and in July and December 2013, and declared his criminal convictions in relation to those visits
b.In his first 417 working holiday visa, granted in 2014, he declared the criminal convictions
c.In his second 417 working holiday visa, granted in 2015, he did not declare his criminal convictions, but it was a genuine mistake and he did not do it ‘to deceive the Australian Government’.
It is included in the delegate’s decision that although the applicant says he declared his criminal convictions relating to the 2014 working holiday visa, Department records show that he did not and an extract of a screenshot has been included in the decision. It is also noted that there were no notes on file indicating that the applicant had notified the Department of any changes to the character declarations.
In relation to his 2014 working holiday visa, the applicant declared no criminal convictions, but in response to the Department’s letter dated 5 July 2016 said that he had declared them. He did admit he declared no criminal convictions relating to the 2015 working holiday visa but that it was a genuine mistake. The applicant’s credibility regarding the claim of ‘genuine mistake’ in 2015 is negatively impacted by him saying he did declare the convictions in 2014 when Department records show he didn’t. This is because the Tribunal does not accept that the applicant made the same mistake, two years running, and that it was twice a genuine mistake in two consecutive years relating to his two working holiday visas.
On the basis that the applicant, when applying for his Subclass 457 visa, has provided an Irish police check, dated 6 May 2016 (at Department folios 28 and 29), indicating that he does have criminal convictions, the Tribunal finds that there is evidence before it that the applicant gave or caused to be given to the Minister, in relation to the visa he held in the 12 months before applying for the Subclass 457 visa (where he provided information saying he did not have criminal convictions) is information that is false or misleading in a material particular’ as defined in PIC 4020(5), i.e. information that is false or misleading at the time it was given, and 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. To be granted a Subclass 457 visa, the applicant must, along with other relevant criteria, meet cl.457.224 which requires that he satisfies PIC 4020.
Therefore, the applicant does not meet PIC 4020(1).
Should the requirements of PIC 4020(1) be waived?
The requirements of PIC 4020(1) 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.
On 21 May 2019, the Tribunal received an email from Ms Kearney, informing us that the ‘applicant has recently had a baby with his Australian citizen partner’ and requesting an update on the review. The Tribunal observes that it had been a very long time since the applicant had made the review application, about two and a half years. This is regrettable, but unfortunately due to the extremely large and increasing volume of review applications, frequently matters do take this long to be heard.
The matter was constituted not long after the inquiry was made and, on 4 July 2019, an invitation was sent to the applicant to attend a scheduled hearing, including a request that he provide a statement about whether there are any compelling reasons why the PIC 4020 criteria should be waived. No statement was provided, nor any claim made that compelling circumstances that affect the interests of Australia, or whether there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen, that justify the granting of the visa
The documents that were provided to the Tribunal on 24 July 2019 identified both the applicant’s child and the child’s mother as Australian citizens. It is accepted they are Australian citizens. Without any claim having been made that they would suffer any hardship, or even inconvenience, if the applicant’s visa was refused, the Tribunal does not consider the Australian citizenship of the applicant’s child and the child’s mother, of itself, a compelling reason to waive the PIC 4020 criteria. The applicant was given ample opportunity, and it was requested of him twice in writing, to provide a statement addressing compassionate and compelling circumstances and, the Tribunal is entitled to think, chose not to.
Despite being invited to do so (and reminded by the Tribunal a couple of weeks later), the applicant has made no claim that his visa refusal will have a detrimental effect of any kind on his Australian citizen child or the child’s mother.
The applicant has not claimed, nor has he provided the Tribunal with evidence, that there are compelling matters that would affect the interests of Australia that would justify waiving the PIC 4020 criteria.
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.457.223.
DECISION
The Tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.
Jennifer Cripps Watts
MemberATTACHMENT
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.
…
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Natural Justice
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