Dawson (Migration)

[2018] AATA 4756

Dawson (Migration) [2018] AATA 4756 (4 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Oliver James Dawson

CASE NUMBER:  1704849

DIBP REFERENCE(S):  BCC2016/2647395

MEMBER:Alan McMurran

DATE:4 December 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 (Temporary Work (Skilled)) visa:

·Public Interest Criterion 4020 for the purposes of cl.4020 (1) of Schedule 2 to the Regulations.

Statement made on 04 December 2018 at 10:49am

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Public Interest Criterion 4020 – incorrect information in previous visa application – failure to disclose criminal convictions – compassionate or compelling circumstances to waive the requirements – impact on employer’s business – impact on applicant’s Australian partner – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 65

Migration Regulations 1994, Schedule 2 cl 4020; Schedule 4 Public Interest Criterion 4020; r 1.03

CASES

Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Deb v Minister for Immigration [2016] FCCA 3351
Kaur v MIBP [2017] FCAFC 184
Trivedi v MIBP [2014] FCAFC 42

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 28 February 2017 to refuse to grant the applicant a Temporary Business Entry (Class UC) 457 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a 32-year-old citizen of the United Kingdom and qualified as a recruitment consultant, specialising in IT in the area of digital technology.

3. The applicant applied for the visa on 11 August 2016. The applicant had been nominated by his sponsoring employer for the position of Recruitment Consultant (ANZSCO 223112)[1].

   [1] Australian and New Zealand Standard Classification of Occupations

4. In making the application, the applicant disclosed certain prior criminal convictions in the United Kingdom. The Department discovered that the applicant had not disclosed those convictions for a working holiday 417 visa he held in the period of 12 months, prior to making the application.

5. An applicant who failed to disclose criminal convictions in an earlier visa application, held in these circumstances, was considered to have provided information that is “false and misleading” in a material particular, and relevant to whether the applicant met the character requirements under PIC 4001 for the grant of the visa.

6. The delegate refused to grant the 457 visa on the basis that the applicant did not satisfy the requirements of cl.4020 (1) of Schedule 2 to the Migration Regulations 1994 (the Regulations), which is one of a number of public interest criteria that need to be satisfied for the grant of the 457 visa.

7. The delegate found that on the information available, there were no compelling circumstances that affect the interests of an Australian citizen[2], and that no claims were made “within the scope of circumstances” that affects an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen[3], to warrant a waiver of the requirements of PIC 4020 (1). As the delegate found no grounds for the waiver, the criterion was not met and the 457 visa application was refused.

   [2] Cl 4020(4)(a)

   [3] Cl 4020(4)(b)

8. The applicant appeared before the Tribunal by telephone from London on 29 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s Australian partner, Patricia Inatey, his Australian employer Dominic Dufaur, and comments from Michael Lofaro (father of Ms Inatey). The applicant was represented in relation to the review by his registered migration agent, Mr Kessels.

9. For the purposes of the review, in addition to the information obtained at hearing, the Tribunal had access to its file and written submissions from the representative, and the Department’s file.[4]

   [4] BCC2016/2647395

10. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.4020 (1) for the grant of the visa.

12. 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).

13. 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).

14. There is no issue in these proceedings (referred to below) in relation to a visa refusal or prior three-year bar (PIC 4020(2)), or the applicant’s identity either at the time of application (2A), or starting 10 years before the application (2B). There is however a live issue under PIC 4020(1) created by the provision of information that is false or misleading in a material particular in the application for the prior 417 visa, and whether or not under PIC 4020(4) that provision might be waived

15. PIC 4020 is extracted in the attachment to this decision.

    Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?

16. 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.

17. 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.

18. 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.

19. In this instance, both before the hearing and at the hearing the applicant conceded and accepted candidly that he should have disclosed his prior convictions and he is therefore in breach of PIC 4020(1).[5]

    [5] T file at F 95 – representative’s submission

20. At the hearing the Tribunal asked the applicant if the submission from the representative that he had failed to disclose those convictions was correct. The applicant confirmed it was and accepted he had breached the condition for failing to disclose them.

21. The Tribunal has had regard to the applicant’s statutory declaration[6] made 14 October 2016 where he states by way of explanation “please find below my reason why in regrettable error I had not included my previous offences as part of my application for a 417 visa”.

    [6] DIBP file at ff 14-15

22. The applicant then recited the question in the application for the 417 visa, noting the question which asks “has the applicant ever been convicted of an offence in any country (including any conviction which is now removed from official records)?” The applicant had answered “no” to the question.

23. In his more recent submission on 1 October 2018, the applicant makes a statement where he says:

    “Through complete fear of not being able to get into the country, I didn’t disclose my criminal convictions in my Working Holiday Visa application. I thought if I disclosed my past I would be denied the opportunity to start over, so I withheld information regarding my offences…. I put my hands up to the fact I filled out the entry card into Australia incorrectly.”

24. He then goes on to say “I now understand that all convictions need to be disclosed”. It is fair to say that in his 457 application, the applicant subsequently did make the necessary disclosure.

25. Having considered this information, the Tribunal is satisfied and finds that because the applicant failed to disclose the information about his criminal convictions, and answered the question incorrectly, by providing an incorrect response the applicant has provided information which is false or misleading and following his admission set out above was purposely untrue.[7] 

    [7] Trivedi v MIBP [2014] FCAFC 42 per Buchanan J:

    “In my view, it is not necessary (for reasons yet to be further developed) to show knowing complicity by a visa applicant. That would impose an impossible task on those administering the visa system. But it is necessary that the information or document have the necessary quality of purposeful falsity, whether or not the visa applicant can be shown to have knowledge of that fact”.

26. Therefore, the applicant does not meet PIC 4020(1).

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

27. 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.

28. 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.

29. 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.

30. For the following reasons, the Tribunal is satisfied that the requirements should be waived.

    The Hearing

31. The Tribunal explained to the applicant that being satisfied there was a breach of PIC 4020 (1) the Tribunal then considers, firstly:

    ·Whether there were 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 eligible New Zealand citizen, and

    ·That might justify the granting of the visa.

32. If that were so, it would then be necessary to consider whether the requirement should be waived, having regard to those circumstances. The Tribunal informed the applicant it was embarking on that enquiry and whether he wished to make any comment. The applicant said that he understood the process.

    Consideration - Compelling circumstances that affect the interests of Australia

33. The Tribunal noted the detailed chronology prepared by the representative outlining a summary of facts[8] which included the applicant’s employment history, and which the applicant confirmed. The Tribunal is satisfied the summary of facts accurately depicts the applicant’s history and connection with Australia from 2 July 2015, when the applicant first received a 417 working holiday visa, up to the time of hearing.

    [8] T at ff 94-95

34. The applicant commenced working for Xpert Group Operations Pty Ltd (the sponsor / employer) on 25 July 2016 as a recruitment consultant, and then applied for the 457 visa on 11 August 2016, nominated by the sponsor. The visa application was refused by the Department on 28 February 2017. The applicant sought review and continued to work for the sponsor following the refusal and while on a Bridging Visa B, with full work rights.

35. On 15 June 2018, by what appears to be an error on the part of the applicant’s previous representative, the Bridging Visa B ceased and the applicant was issued a Bridging Visa A with no travel rights. The applicant departed Australia unknowingly on 27 July 2018, and has been unable to return since that time.

36. The applicant said he has continued to work for the sponsor in a related entity in the United Kingdom, to where he has returned. The applicant said he wants to continue working however for the sponsor in Australia and to return to be with his Australian partner, Ms Inatey.

37. The applicant said he has specialist experience as a recruiter in the IT industry for digital experts, who are hard to locate and recruit. He said he was performing the role in Australia in a resource team of 3 people (including him). He said the sponsor’s business has been operating for approximately 6 or 7 years and is owned by 3 principals, all of whom are Australians by acquired citizenship. The company has a turnover of approximately $20 million per annum with 16 other employees. After hearing the applicant, the Tribunal is satisfied the sponsor is an Australian business which has employed and continues to employ the applicant and wants to do so to enable it to fulfil ongoing projects for the engagement of specialist digital IT personnel.

38. The owner of the business, Mr Du Faur, an Australian citizen ,confirmed that the applicant is a valuable employee and needed back in Australia for the face-to-face interviewing aspect of the employment tasks of a recruitment consultant. The owner said there were projects for completion in Australia and which were difficult to manage without the applicant, and the business was affected negatively in that regard. He said their biggest customer, the Macquarie Group, had ongoing projects requiring the applicant’s expertise. He said the company operated in a specialised domain offering specialised activities for recruitment for its clients, and that digital technology was the “hottest recruitment area”. He said the applicant’s skills were hard to find and he would be difficult to replace and that it was “hard to attract people of his calibre”.

39. The Tribunal notes the representations that the sponsor has suffered financial loss and been negatively impacted by the loss of the applicant’s “input and work activity”. Loss is calculated in a sum in excess of $300,000 with projected future loss of revenue exceeding $1 million. To a certain extent, not much weight can be attached to the figures themselves which are not supported by financial statements and evidence. The Tribunal does accept however and finds that the sponsor’s Australian business has been negatively impacted and will continue to be during the absence of the applicant from Australia.

40. The Tribunal is mindful that the courts have held there must be compelling evidence to show the detrimental effect on the interests of a small business and that merely using the phrase “Australian business” does not on its own “elevate this submission to even an assertion relevant to the interests of Australia”.[9]

    [9] Deb v Minister for Immigration [2016]FCCA 3351(“Deb’s case”)

41. Deb’s case is authority which supports the proposition that employment in a small business might be sufficient to meet the criterion “in the interests of Australia”, but there would still need to be evidence amounting to “compelling circumstances” for this to be so. In this instance, the representative submits that the effect on the sponsor not being able to continue the employment of the applicant will have a significant financial impact on the sponsor and thus on the “interests of Australia” and the corporate entity as “Australian” and that such financial impact is “compelling”. The Tribunal is satisfied on the information presented that this is so, and accepts that submission.

42. The Tribunal is satisfied that the facts establish compelling circumstances affecting the interests of the sponsor’s business, which the Tribunal finds affect the interests of Australia for the purposes of the criterion.

    Consideration - Compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen

43. Much emphasis was placed in the submissions and by the applicant on “compassionate or compelling circumstances that affect the interests of an Australian citizen”.

44. The Tribunal heard evidence from the applicant’s de facto partner, Ms Inatey. The Tribunal is satisfied Ms Inatey is an Australian citizen to whom the provisions of the criterion apply. She submitted two statutory declarations in addition to oral evidence at the hearing.

45. The Tribunal noted the parties had separated in July 2018 when the applicant was refused entry to Australia after a holiday in Bali. Ms Inatey stated that she was in a state of shock when this occurred and quickly became very anxious and depressed. This was deposed to in statutory declarations made by her on 17 August 2018 and 17 September 2018. The witness stated the financial implications would be “crippling” and affect her ability to do her job and “survive”. The Tribunal questioned Ms Inatey as to whether the statements were an exaggeration, given the short period of time since the separation in July 2018.

46. The witness explained the shock caused by the sudden separation, the fact they had recently moved in together and were sharing financial expenses occasioned by a property purchase. The witness said she was emotionally dependent upon the applicant and felt “depressed and lost”. The witness produced a medical statement in support to show she was receiving prescription medicine for anxiety and depression.[10]

    [10] T f 88

47. The Tribunal was impressed with the evidence from the witness. She expressed herself with a degree of sincerity and passion which the Tribunal found compelling. The Tribunal found there was nothing in her evidence about how she was affected by the separation which might be seen as untrue or inconsistent with the circumstances in this matter. On the contrary, the Tribunal is satisfied that the effect of the separation on the witness as an Australian citizen was both immediate and in her terms “devastating”, and ongoing.

48. The Tribunal also heard comments from Ms Inatey’s father, Mr Lofaro who is an Australian citizen. He explained in convincing terms what he described as “collateral damage” and how the distress caused to his daughter was impacting the entire family. He said there was a lot of sadness for himself and his wife as they had been unable to protect their daughter from her pain. He explained that although it was a relatively short period since July 2018 and these events surrounding separation, it was the manner in which it occurred and the shock caused which has had “a lasting and deep impact on our family”. The Tribunal finds it would be hard not to be moved by feelings of sympathy and concern in the circumstances. For these reasons, the Tribunal is satisfied that the evidence establishes compassionate or compelling circumstances affecting the interests of an Australian citizen.

1. The Tribunal has also noted the representative’s written submissions and finds that on the material before it:

   ·    Ms Inatey is unlikely to be able to herself relocate to the UK for the longer term

   ·    such a relocation would dislocate her family and cause distress to her parents who are Australian citizens

   ·    Ms Inatey’s career and income will be seriously affected

   ·    Ms Inatey will suffer significant financial loss

   ·    Ms Inatey’s employer will also be detrimentally affected, being a small Australian business with only 2 other key staff

   ·    the applicant’s current employer may suffer significant financial loss

   ·    the applicant would be the subject of a three-year bar which period of separation will seriously impact the applicant’s Australian partner and her Australian family

   Consideration - Should the discretion to apply the waiver be exercised?

2. The regulations do not prescribe how these findings in relation to compassionate and compelling circumstances are to be weighed against the findings of the provision by the applicant of false and misleading information.

3. It is submitted that other relevant factors include:

   ·the degree of moral culpability or turpitude in the criminal conduct now disclosed

   ·the time since the last offending in 2011

   ·mistaken understanding as to the application of Australian law as opposed to UK law

   ·the “punishment” already experienced due to separation of the applicant from his Australian partner and the significant impact on her

   ·the applicant’s expressed remorse for his mistake

4. These factors all weigh in the consideration by the Tribunal as to whether the discretion to waive the requirements of PIC 4020(1) (a) or (b) and (2) should follow. The least relevant of these in the Tribunal’s opinion is the submission that the applicant misunderstood the local law requirements in Australia. The applicant is a very experienced professional who works in the recruitment industry where face- to face interviewing and determining integrity of applicants is paramount. The Tribunal does not accept that this in any way excuses the applicant’s conduct.

5. Having carefully weighed all the facts and circumstances however, including the lengthy oral evidence at hearing and having seen the family witnesses including the Australian partner, Ms Inatey, the Tribunal is satisfied this is a circumstance where the discretion should apply and the waiver exercised for reason both of compelling circumstances that affect the interests of Australia, and compassionate or compelling circumstances that affect the interests of an Australian citizen as found above.

6. Therefore the requirements of PIC 4020(1) should be waived.

   Has the applicant satisfied the identity requirements?

7. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity. The Tribunal finds there is no information or evidence before it which contradicts the applicant’s identity and the Tribunal having heard orally from the applicant on oath and having regard to the information on the Department’s file, finds it is satisfied in that regard.

8. Therefore, the applicant meets PIC 4020(2A).

   Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?

9. PIC 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2BA).

10. The Tribunal finds there is no information or evidence before it that the applicant has been refused a visa because of a failure to satisfy identity requirements as stipulated.

11. Therefore PIC 4020(2B) does not apply.

12. On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl.4020 (1).

    DECISION

13. The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 (Temporary Work (Skilled)) visa:

    ·Public Interest Criterion 4020 for the purposes of cl.4020 (1) of Schedule 2 to the Regulations.

    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. 

    …