Deol (Migration)

[2020] AATA 2593

Deol (Migration) [2020] AATA 2593 (16 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jaskaran Singh Deol
Mrs Karamjit Kaur Deol
Ms Gursimran Kaur Deol
Mr Prabhsimran Singh Deol

CASE NUMBER:  1820246

HOME AFFAIRS REFERENCE(S):          BCC2017/2029383, BCC2018/4201141

MEMBER:K. Chapman

DATE:16 April 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled Regional Sponsored (Provisional) visas.

Statement made on 16 April 2020 at 4:32pm

CATCHWORDS
MIGRATION – Skilled Regional Sponsored (Provisional) (Class SP) – Subclass 489 visa – ‘points test’ criterion no met– legitimacy of work experience – provided false and misleading information in relation to his employment history – failed to meet requirements of PIC 4020–serious credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 65, 94, 96, 359, 362,376
Migration Regulations 1994, r 2.26, Schedule 2, cls 489,211, 489.224

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
Singh v MIBP [2018] FCAFC 52
Trivedi v MIBP [2014] FCAFC 42

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs, on 27 June 2018, to refuse to grant the applicants Skilled Regional Sponsored (Provisional) (Class SP) Subclass 489 visas under s.65 of the Migration Act 1958 (‘the Act’). This is a ‘points based’ visa designed for skilled applicants who have submitted an expression of interest and received an invitation to apply for the visa.

2. The first named applicant, Mr Jaskaran Singh Deol (hereafter ‘the applicant’), was invited to apply for the visa on 7 June 2017 and applied for it on 8 June 2017. The second, third and fourth named applicants were included as secondary visa applicants. The criteria for the grant of a Skilled Regional Sponsored (Provisional) (Class SP) Subclass 489 visa are set out in Part 489 - Skilled - Regional (Provisional) of Schedule 2 to the Migration Regulations 1994 (‘the Regulations’). The delegate refused to grant the visas because the applicant did not satisfy the ‘points test’ criterion in cl.489.224 (points were not granted for claimed Australian Employment Experience). Specifically, the delegate did not accept the legitimacy of the applicant’s claims to have worked at the Miss India Restaurant in Greenslopes, Brisbane for reasons including that the employer had received sponsorship sanctions and the General Manager denied the applicant was employed there. On 12 July 2018, the applicants applied to the Tribunal for review of the visa refusal decision, providing a copy of that decision with their application for review.

3. Prior to the scheduled review hearing, the applicant provided material to the Tribunal including, but not limited to, written submissions (including detailed submissions dated 12 September 2019), correspondence from the Department, taxation records, email correspondence, Statutory Declarations in support, identity documents, ASIC information, various restaurant supply orders, stock sheets, tax invoices, receipts, financial information and an updated portion of Form 80. All material submitted to the Tribunal has been duly considered.

4. The applicants appeared before the Tribunal on 3 March 2020 to give evidence and present arguments. The Tribunal took oral evidence from the applicant, Mrs Karamjit Kaur Deol (the second named applicant), Mr Amit Nagar (by telephone), Ms Neha Sanghavi (by telephone), Ms Gurwinder Kaur (by telephone), Ms Arti Sharma (by telephone) and Mr Saiyad Ahmed Hussein (by telephone). The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicant confirmed to the Tribunal that he understood the interpreter. The applicants were represented by their registered migration agent (‘the representative’), who is a solicitor, at the review hearing. The applicant submitted documentary material at the review hearing, including copies of emails and employment contracts. They have been duly considered.

5. The Tribunal granted a request for post-hearing submissions and evidence to be submitted twenty one days following the hearing (that is, they were due on 24 March 2020). On 20 March 2020, the applicant requested a copy of the hearing audio, lodged an application for material pursuant to s.362A of the Act and requested a further extension of time for post-hearing material. On 27 and 30 March 2020, the applicant provided further submissions and material. On 31 March 2020, the Tribunal Registry satisfied the applicant’s request pursuant to s.362A of the Act and despatched a copy of the hearing audio to him. On 1 April 2020, the Tribunal granted an extension of time until 15 April 2020 for any further submissions and evidence to be submitted, noting in that correspondence all issues before it were still under active consideration, including information raised pursuant to s.359AA of the Act. The applicant did not respond to the Tribunal’s correspondence of 1 April 2020. All material submitted to the Tribunal in connection with the review has been duly considered.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   ISSUES AND LAW

7. One issue in the present case is whether the applicant satisfies the ‘points test’ criterion which requires that his score, when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act:

   ·is not less than the score stated in the invitation to apply for the visa; and

   ·is not less than the ‘qualifying score’.

8. Subdivision B of Division 3 of Part 2 of the Act provides for a points system under which an applicant is given an assessed score based on a prescribed number of points for particular attributes. The qualifications and points applicable to this case are prescribed in Schedule 6D to the Regulations (r.2.26AC). An applicant achieves the qualifying score if their assessed score is more than or equal to the applicable pass mark (s.94 of the Act), which is set by the Minister from time to time under s.96(2) of the Act. The Tribunal must consider the applicant against the qualifications and points prescribed in Schedule 6D, and the pass mark as in force at the time of the delegate’s assessment and as in force at the time of this assessment, and apply whichever is more favourable to the applicant (ss.93 and 350 of the Act).

9. Some elements of the points test relate to the nominated skilled occupation. An occupation is a ‘skilled occupation’ if it is specified by the relevant instrument as a skilled occupation and, if a number of points are specified in the instrument as being available - for which the number of points are available, and that is applicable to the person in accordance with the specification of the occupation (r.1.15I). The relevant instrument for this purpose is Legislative Instrument IMMI 16/059. In the present case, the applicant nominated the occupation of cook (ANZSCO 351411).

10. Another issue in this review is whether the applicant satisfies Public Interest Criterion 4020 (PIC 4020) as required by cl.489.211 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).

11. 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.

    Validity of non-disclosure certificates 

12. The Tribunal notes that five non-disclosure certificates have been issued with respect to material potentially relevant to the present review. A copy of each was provided to the applicant at the review hearing. Of note, the Tribunal issued a Summons to the Secretary of the Department on 10 January 2020 to obtain Departmental files pertaining to nominations and visa applications connected to the purported workplaces of the applicant, ND Stores Pty Ltd T/A Miss India restaurant and MJ Food Venture Pty Ltd T/A Tasty Buds restaurant (a copy of the Summons was provided to the applicant during the review hearing). In response, the Department furnished the Tribunal with the following files BCC2014/1346066, BCC2014/1358925, BCC2015/3881566, BCC2015/3881590, BCC2016/880319, OPF2014/3975 and OPF2016/3343. The aforementioned Departmental files, along with BCC2017/2029383 and BCC2018/4201141 (relating to the Subclass 489 visa application), contain the Departmental material before the Tribunal. Some of those files have non-disclosure certificates attached to them.

13. The Tribunal forms the view that files BCC2014/1346066 and BCC2014/1358925, which relate to the nomination by ND Stores Pty Ltd of the applicant for a Subclass 186 visa, and the associated visa application respectively, with both applications being withdrawn, are not relevant to this review. Further, file BCC2015/3881566, which relates to nomination of the applicant for a Subclass 457 visa by MJ Food Venture Pty Ltd that was withdrawn, is also not relevant to this review in the view of the Tribunal. During the review hearing, the Tribunal raised the aforementioned views with the applicant and invited submissions. None were made. Accordingly, the Tribunal places no weight, in an adverse sense, upon any material contained in these three Departmental files.

14. The balance of the Departmental files have non-disclosure certificates attached to them. As will be outlined in greater detail, the Tribunal raised potentially adverse information arising from the Departmental files with the applicant during the review hearing, utilising the procedure in s.359AA of the Act on six occasions. The applicant requested time to respond to this material in writing following the hearing. The Tribunal duly granted that request.

15. The five non-disclosure certificates are made pursuant to s.376 of the Act. A certificate dated 3 September 2018 pertains to Department files BCC2017/2029383 and BCC2018/4201141. It indicates that release of material attached to it would be contrary to the public interest because Investigations are considering criminal charges in relation to allegations made for payment of visas and it would not be in the public interest to disclose the inner workings of the Department to applicants regarding communications with other agencies and internally. Further, some of the material contains information given to the Department in confidence and includes the names of Officers. It is also stated that folios 162a and 162b of file number BCC 2018/4201141 contain information provided to the Department in confidence.

16. During the review hearing, the Tribunal provided a copy of that certificate to the applicant and invited submissions upon its validity. None were made. The Tribunal advised that its preliminary view was that this certificate is valid as public interest grounds are properly stated and some of the material had been provided in confidence to the Department, inviting submissions on that view. None were made. On balance, the Tribunal considers that the public interest grounds are properly stated in the non-disclosure certificate. Additionally, the Tribunal considers it reasonable to preserve the integrity of the information passed internally within the Department, between the Department and other agencies and also to preserve the confidentiality of material provided in confidence. Accordingly, the Tribunal finds the certificate to be valid and it has not released the material in full to the applicant. Rather, the Tribunal provided ‘the gist’ of the material to the applicant during the review hearing, utilising the procedure in s.359AA of the Act.

17. A certificate dated 28 January 2020 pertains to Departmental file BCC2015/3881590. It indicates that release of material attached to it would be contrary to the public interest because it would ‘disclose or enable a person to ascertain the existence or identity of, a confidential source of information and endanger the life or physical safety of a person.’ During the review hearing, the Tribunal provided a copy of that certificate to the applicant and invited submissions upon its validity. None were made. The Tribunal advised that its preliminary view was that this certificate is valid as public interest grounds are properly stated, inviting submissions on that view. None were made. On balance, the Tribunal considers that the public interest grounds are properly stated in the non-disclosure certificate. Accordingly, the Tribunal finds the certificate to be valid and it has not released the bulk of the material in full to the applicant in order to preserve confidentiality. Rather, the Tribunal provided ‘the gist’ of the aforementioned material to the applicant during the review hearing, utilising the procedure in s.359AA of the Act. Additionally, a copy of a document entitled ‘Letter of Engagement’ dated 1 December 2015 pertaining to the applicant and MJ Food Venture Pty Ltd T/A Tasty Buds restaurant, indicating his start date to be the date of visa grant, and also a position description document, were provided in full to the applicant during the review hearing, as no confidentiality concerns arise in the view of the Tribunal. Particulars from the ‘Letter of Engagement’ were also provided to the applicant utilising the procedure in s.359AA of the Act.

18. A certificate dated 16 January 2020 pertains to Departmental file BCC2016/880319. It indicates that release of material attached to it would be contrary to the public interest because it ‘may disclose the identity of a source of information which provided information to a third party (i.e. not directly to the Department) and may have an expectation of confidentiality.’ During the review hearing, the Tribunal provided a copy of that certificate to the applicant and invited submissions upon its validity. None were made. The Tribunal advised that its preliminary view was that this certificate is valid as public interest grounds are properly stated, inviting submissions on that view. None were made. On balance, the Tribunal considers that the public interest grounds are properly stated in the non-disclosure certificate. Accordingly, the Tribunal finds the certificate to be valid and it has not released the material in full to the applicant in order to preserve confidentiality. Rather, the Tribunal provided ‘the gist’ of the aforementioned material to the applicant during the review hearing, utilising the procedure in s.359AA of the Act.

19. A certificate dated 31 January 2020 pertains to Departmental file OPF2016/3343. It indicates that release of material attached to it would be contrary to the public interest because the applicant was not a subject of interest during the investigation, most documents are not relevant to the review, lawful methods for investigations would be prejudiced and in confidence information has been provided. During the review hearing, the Tribunal provided a copy of that certificate to the applicant and invited submissions upon its validity. None were made. The Tribunal advised that its preliminary view was that this certificate is valid as public interest grounds are properly stated, inviting submissions on that view. None were made. On balance, the Tribunal considers that the public interest grounds are properly stated in the non-disclosure certificate. Accordingly, the Tribunal finds the certificate to be valid and it has not released the material in full to the applicant in order to preserve the integrity of the investigation and confidentiality. Rather, the Tribunal provided ‘the gist’ of the aforementioned material to the applicant during the review hearing, utilising the procedure in s.359AA of the Act.

20. A certificate dated 31 January 2020 pertains to Departmental file OPF2014/3975. It indicates that release of material attached to it would be contrary to the public interest because the applicant was not a subject of interest during the investigation, most documents are not relevant to the review, lawful methods for investigations would be prejudiced and in confidence information has been provided. During the review hearing, the Tribunal provided a copy of that certificate to the applicant and invited submissions upon its validity. None were made. The Tribunal advised that its preliminary view was that this certificate is valid as public interest grounds are properly stated, inviting submissions on that view. None were made. On balance, the Tribunal considers that the public interest grounds are properly stated in the non-disclosure certificate. Accordingly, the Tribunal finds the certificate to be valid and it has not released the material in full to the applicant in order to preserve the integrity of the investigation and confidentiality. Rather, the Tribunal provided ‘the gist’ of the aforementioned material to the applicant during the review hearing, utilising the procedure in s.359AA of the Act.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The review hearing – 3 March 2020

21. The applicant’s oral evidence to the Tribunal may be summarised as follows. The applicant confirmed he had read the delegate’s visa refusal decision. He explained that he worked for the Miss India restaurant at Greenslopes and provided supporting documentation to the Department. He was unhappy that the Department refused his visa application despite the documentation he submitted. The applicant advised that this employer engaged a migration agent, Mr Jack Prasad, to lodge a Subclass 186 visa application for him (which subsequently did not proceed). The applicant informed the Tribunal that the only issue found by the Department regarding Miss India was that its head office changed location and had failed to update its details. He cannot understand why his employer told the Department that he did not work at Miss India. The applicant received a positive skill assessment from VETASSESS in the occupation of cook. He named the directors and other staff members of the Miss India head office. The applicant advised he is aware that Miss India is still trading, however he is not sure of its workings currently.

22. The applicant contests the delegate’s refusal to award him points with respect to his claimed employment with Miss India. He accepts the other points awarded to him by the delegate. When asked by the Tribunal to clarify how he obtained a designated regional area nomination, the applicant advised that his invitation from the relevant body in Armidale, New South Wales was organised by his former lawyer, Mr Tonio Thomas. When asked for further particulars by the Tribunal regarding this nomination, the applicant confirmed that he has never resided in, or even visited, Armidale. When asked by the Tribunal if he has employment awaiting him in that location, the applicant initially advised that he had made contact with employers in the region, then changed tack to ultimately confirm he had merely posted his resume online for positions there. The Tribunal observed the applicant to provide his oral evidence regarding the topic of the designated regional area nomination in a defensive and evasive fashion.

1. The applicant confirmed that he claims employment with Miss India as a cook between 30 April 2012 and 2 September 2015, seeking points for Australian Employment Experience. He confirmed that he submitted to the Tribunal an update to question 19 of Form 80 (employment history) and that it contains true and correct information. The applicant outlined his employment experience in Australia as follows. He is presently employed by U Foods in Brisbane and works in the production line. When the Tribunal sought further clarification, the applicant explained he works as a delivery driver for U Foods. Previously, he worked for U Foods packing food and operating machinery in the production line. He has been employed by U Foods for just under two years. The applicant’s wife, the second named applicant, previously ran an Indian restaurant at Kippa-Ring called Indian Brothers. Between the middle of 2016 and the middle of 2017, the applicant assisted his wife on an unpaid basis at that restaurant. The applicant advised that his wife’s restaurant closed due to an increase in operating costs.

2. The applicant claimed to have worked at MJ Food Venture Pty Ltd T/A Tasty Buds restaurant at Nambour between July 2016 and December 2017. He claimed to have worked there from 5pm to 10pm five days per week. He mostly worked Monday to Friday, but occasionally worked on a Saturday if the restaurant was closed on a Monday. He confirmed to the Tribunal that he worked at the Tasty Buds restaurant five days per week between July 2016 and December 2017. The owner of the restaurant was a gentleman by the name of Mubin, who only visited occasionally. When asked by the Tribunal who the manager of the Tasty Buds restaurant was, the applicant initially advised that the didn’t remember his name. When the Tribunal indicated it might seem strange that he didn’t remember this person’s name, the applicant then advised it was a Jatinder Singh. The applicant last spoke to him around two years prior. According to the applicant, the Tasty Buds restaurant nominated him for a Subclass 187 visa. When that visa application did not proceed, the applicant departed the restaurant. The applicant confirmed that his next paid employment was with U Foods in January 2018. The Tribunal observed the applicant to provide his initial oral evidence, concerning his purported employment with the Tasty Buds restaurant at Nambour, in a vague and defensive fashion.

3. When asked by the Tribunal how he came to work at the Tasty Buds restaurant in Nambour, the applicant indicated that when his Subclass 457 visa was expiring, he was searching for other visa options. His then lawyer, Mr Tonio Thomas, put the applicant in contact with the Tasty Buds restaurant in Nambour. The applicant then apparently had an interview with the owner. The applicant maintained that he worked for Tasty Buds from 5pm to 10pm for five days per week. At this point in his oral evidence, the applicant informed the Tribunal that his work at Tasty Buds was unpaid. When asked why he worked unpaid, the applicant advised that he had to work there for a Subclass 187 visa. The applicant claimed to have financially sustained himself through the income derived from his wife’s restaurant. Once his wife’s restaurant closed, she went to work for U Foods. The applicant also advised that he performed one taxi shift in order to activate a taxi industry PIN in May 2016. He maintained that he only ever worked one taxi shift during that time.

4. The applicant informed the Tribunal that he was unemployed from September 2015 until July 2016. He claimed to have been supported financially by his wife’s restaurant. When asked by the Tribunal why his wife’s restaurant closed when it was financially supporting him, the applicant advised that ‘sales went down and expenses went up.’ The applicant also indicated that in February 2012 he performed one taxi shift in order to activate a taxi industry PIN. He doggedly maintained that he had only ever performed two taxi shifts in Australia (being February 2012 and May 2016). The Tribunal observed the applicant to provide his oral evidence regarding his employment history at Nambour and in the taxi industry, in addition to the financial support provided by his wife’s restaurant, in a defensive manner.

5. When asked by the Tribunal to provide further detail regarding his claimed employment at ND Stores Pty Ltd T/A Miss India, the applicant outlined that he worked at the Greenslopes restaurant from April 2012 until September 2015 as a cook. He outlined his duties to include cooking, checking expiry dates of products and receiving deliveries. The applicant stated that his wife, the second named applicant, also previously worked there commencing in 2010. The Tribunal observed the applicant to present his oral evidence regarding his purported work with Miss India Greenslopes in a formulaic manner.

6. When asked by the Tribunal why he ceased work at Miss India Greenslopes, the applicant advised he had issues with the General Manager, Mr Raymond Prasad, who allegedly harassed his wife in the workplace. Thereafter, his wife resigned and obtained employment with the Indian Brothers restaurant at Kippa-Ring, subsequently taking over that business. Mr Prasad was purportedly upset that the applicant’s wife went to work for a competitor. However, Mr Prasad apparently offered the applicant and his wife a franchisee opportunity with Miss India, but they rejected that offer. According to the applicant, in September 2015 Mr Prasad stopped offering him shifts at Miss India and did not return his calls.

7. When asked by the Tribunal if he advised the Department of the cessation of his employment with Miss India, as required under the terms of his Subclass 457 visa, the applicant replied that he did not because he was fearful of having his visa cancelled. When asked by the Tribunal if he obtained another nomination whilst holding the Subclass 457 visa, following the cessation of his employment with Miss India, as required by Condition 8107 on that visa, the applicant replied that he did not and was unaware of the Condition. He added that he was under pressure from Mr Prasad. The applicant also confirmed to the Tribunal that Miss India at Greenslopes never ceased trading to his knowledge. The Tribunal observed the applicant to deliver his evidence concerning his lack of engagement with the Department, following cessation of his work with Miss India, in a defensive fashion.  

8. The Tribunal enquired as to the applicant’s claimed period of employment with Miss India from September 2010 to April 2012. The applicant confirmed that this period was unpaid work experience. When asked how he financially supported himself then, the applicant claimed his wife’s income supported them. He claimed he was performing this work experience in order to obtain a preliminary skills assessment for his visa at that time. The applicant also confirmed that between March 2009 and September 2010 he was unemployed whilst studying commercial cookery and hospitality management in Australia. The applicant doggedly maintained that he did not undertake paid work during any time he listed unpaid work on his revised Form 80. Following an adjournment for him to consult his representative, the applicant advised the Tribunal that he had already submitted much documentary evidence regarding his claimed employment with Miss India.

9. The Tribunal raised with the applicant that he submitted PAYG Payment Summaries to it and to the Department in relation to his claimed work with Miss India, asking how he obtained these documents. The applicant advised that he received them from his employer by either email or by hand. The employer’s registered migration agent, Mr Jack Prasad, also sent him some of these documents by email (copies of relevant correspondence were submitted by the applicant to the Tribunal and have been duly considered). The applicant confirmed that at that time, Mr Jack Prasad was the agent for Miss India and Mr Tonio Thomas was his own retained migration lawyer.

10. The applicant confirmed that the submitted PAYG Payment Summaries contained true and correct information. He added that his tax file number had been compromised in the past, so some of these documents contained ‘mixed up’ tax file numbers. The applicant also indicated he provided copies of photographs, emails, order forms and references demonstrating he was employed with Miss India (the Tribunal has duly considered such material). The applicant again confirmed to the Tribunal that he provided true and correct information in his submitted updated portion of Form 80.

11. The Tribunal advised the applicant that another issue arising for consideration in this review is whether he satisfies the requirements of cl.489.211 of Schedule 2 to the Regulations, specifically Public Interest Criterion 4020 (PIC 4020). The Tribunal outlined the requirements of PIC 4020 to the applicant. The Tribunal noted that the issue of the applicant’s employment history is relevant to the assessment of the visa criteria, including the points test in accordance with cl.489.224, accordingly it is a material particular in relation to the application for the Subclass 489 visa. The Tribunal informed the applicant of the issuance of the non-disclosure certificates and Summons (providing him copies of all) as has been previously outlined. At this point in the review hearing, the Tribunal raised potentially adverse information with the applicant pursuant to the procedure in s.359AA of the Act.

12. Regarding the first portion of information raised according to s.359AA of the Act, the Tribunal proceeded as follows. The Tribunal raised that the Departmental Files BCC2017/2029383 and BCC2018/4201141 (‘the Subclass 489 visa refusal files Part 1 and 2 respectively’) contain material which would not be released in full to the applicant, given the non-disclosure certificate, but the ‘gist’ of it is as follows:

    a.Departmental Officers expressed concern that he was nominated for visas by ND Stores Pty Ltd which was suspected of involvement in ‘Payment for visa activity’ and was also linked to a migration agent of concern. ND Stores Pty Ltd received a sponsor sanction in 2016;

    b.Border Force examined the PAYG Payment Summaries he submitted in respect of his claimed employment with Miss India for the Financial Years 2012 to 2016. They determined that these documents were affected by integrity issues such as alignment of text, font types, clipping of characters, formatting and incorrect tax file numbers;

    c.the Department liaised with the Australian Taxation Office (ATO) to investigate his taxation records. The ATO advised that the PAYG Payment Summaries he lodged with his personal taxation returns matched the amounts he declared on these returns by self-assessment, however no PAYG Payment Summaries were submitted by his claimed employer (ND Stores Pty Ltd, MI Stores Pty Ltd or The Trustee for ND Stores Unit Trust) for the Financial Years 2012 to 2016. The ATO could not verify the genuineness of the PAYG Payment Summaries because the employer, Miss India, had not submitted taxation information;

    d.his taxation records also revealed income derived from work as a taxi driver;

    e.as revealed in the delegate’s decision, the Department contacted the General Manager of Miss India, Mr Raymond Prasad, who denied that the applicant was employed there; and

    f.Departmental Officers expressed concern that MJ Food Venture Pty Ltd is part of a group of companies used to create fictitious businesses for lodging visa applications. The applicant was nominated by them for visa purposes.

13. The Tribunal advised the applicant that the above information is relevant to the review as it tends to suggest that he was not employed for three years, for at least 20 hours per week, at Miss India, that he was never genuinely employed by MJ Food Venture Pty Ltd, and that he provided false and misleading information in relation to his employment history in connection with this review and his Subclass 489 visa application. Further, this information is relevant to the review as it tends to suggest that he provided bogus documents, being the PAYG Payment Summaries, in connection with this review and his Subclass 489 visa application.

14. The Tribunal indicated that if it was to rely upon this information it would be the reason or part of the reason to affirm the decision to refuse to grant him the Subclass 489 visa. The applicant confirmed to the Tribunal that he understood why the information is relevant to the review. The applicant was asked whether he would like additional time to comment on or respond to the information, and he requested a short adjournment which was duly granted. The representative asked whether the assessment made by the Department as to the PAYG Payment Summaries was made by an Information Technology expert? The Tribunal advised that it would consider this question.

15. Following the adjournment, the Tribunal advised, in response to the question of the representative, that a Border Force Officer from the Sponsor Monitoring Unit Coordination made the assessment regarding the veracity of the PAYG Summaries. The representative submitted it would be difficult for the applicant to respond to the information raised regarding these documents, as he was not part of the corporate governance structure of Miss India and this information is not in his knowledge or control. The Tribunal has carefully considered this submission. At the request of the applicant, through his representative, the Tribunal permitted him to provide a written response to the s.359AA information following the review hearing.

16. Regarding the second portion of information raised according to s.359AA of the Act, the Tribunal proceeded as follows. The Tribunal raised that the Departmental File BCC2015/3881590, which relates to the nomination of the applicant by MJ Food Venture Pty Ltd for a Subclass 187 visa, contains material which will not be released in full to him, given the non-disclosure certificate, but the ‘gist’ of it is as follows:

    a.the Department initiated a site visit of the ‘Tasty Buds’ Premises as the director of this business had another business in proximity sanctioned by them. On 28 November 2016, Border Force Officers conducted a site visit of Shop 4, 22 Currie Street Nambour where the businesses Tasty Buds Restaurant, or Curry King, were supposedly based. The site visit also followed an allegation that the restaurant had never traded and was a front for a visa scam. The Officers found the premises closed and there were no signs indicating operating hours. A sign was present for Curry King, but the premises was observed to be dirty and dusty. This situation had been noted several months earlier at visits for another visa sponsor next door. A person working at a neighbouring business advised the Officers that the ‘three restaurants’ near each other (Curry King, Portovini and Nambour Pizza & Pasta) are never open and nobody picks up the telephone for the Curry King number. The Officers noted that the sponsoring business for Portovini Nambour had their sponsorship cancelled, as they were never operating and that this business shares the same director as for the Tasty Buds Restaurant. No signage for Tasty Buds Restaurant was observed by the Officers. The site visit report concluded that the Tasty Buds restaurant is not operating. The applicant’s letter of engagement signed by him on 8 December 2015 indicates that he will work at Tasty Buds Restaurant upon grant of the 187 visa (a full copy of that letter of engagement, along with a position description, were provided to the applicant during the review hearing as previously outlined). The Tribunal also noted that in his oral evidence, the applicant confirmed that he worked at Tasty Buds between July 2016 and December 2017, in accordance with the information he provided in his update to question 19 of Form 80.

17. The Tribunal advised the applicant that the above information is relevant to the review as it tends to suggest that he was never genuinely employed at the Tasty Buds restaurant and therefore he provided false or misleading information to the Tribunal regarding his employment history, which is a material particular in relation to the application for the Subclass 489 visa, and also he does not satisfy the requirements of PIC 4020.

18. The Tribunal indicated that if it was to rely upon this information it would be the reason or part of the reason to affirm the decision to refuse to grant him the Subclass 489 visa. The applicant confirmed to the Tribunal that he understood why the information is relevant to the review. The applicant was asked whether he would like additional time to comment on or respond to the information, and he requested a short adjournment which was duly granted. Following the adjournment, the applicant requested that he be permitted to provide a written response to the s.359AA information following the review hearing. That request was duly granted by the Tribunal.

19. Regarding the third portion of information raised according to s.359AA of the Act, the Tribunal proceeded as follows. The Tribunal raised that the Departmental File BCC2015/3881590, which relates to the nomination of the applicant by MJ Food Venture Pty Ltd for a Subclass 187 visa, contains the following information:

    a.he signed two Letters of Engagement for employment as a cook at MJ Food Venture Pty Ltd T/A Tasty Buds Restaurant in Nambour. The first he signed on 8 December 2015 and the second letter he signed on 12 October 2016. Both indicate that his start date as a full time employee will be the date his Subclass 187 visa is granted; and

    b.various documents were submitted to the Department by MJ Food Venture Pty Ltd seeking to challenge the site visit findings that the Tasty Buds Restaurant was not operating. These include photographs, bank statements, Business Activity Statements, lease documentation and menus. The bank account statements for MJ Food Venture Pty Ltd were submitted to the Department for the period 1 October 2016 to 31 December 2016. The transactions in them are not commensurate with a genuinely trading restaurant and are inconsistent with taxation information. A submission dated 30 January 2017 indicates that, at that time, the applicant was currently working in the restaurant. The Department refused the application for nomination on 24 July 2017, finding that MJ Food Venture Pty Ltd was not actively and lawfully operating a business in Australia.

20. The Tribunal advised the applicant that the above information is relevant to the review as it tends to suggest that he was never genuinely employed at the Tasty Buds restaurant and therefore he provided false or misleading information to the Tribunal regarding his employment history, which is a material particular in relation to the application for the Subclass 489 visa, and also he does not satisfy the requirements of PIC 4020.

21. The Tribunal indicated that if it was to rely upon this information it would be the reason or part of the reason to affirm the decision to refuse to grant him the Subclass 489 visa. The applicant confirmed to the Tribunal that he understood why the information is relevant to the review. The applicant was asked whether he would like additional time to comment on or respond to the information, and he requested that he be permitted to provide a written response to the s.359AA information following the review hearing. That request was duly granted by the Tribunal.

22. Regarding the fourth portion of information raised according to s.359AA of the Act, the Tribunal proceeded as follows. The Tribunal raised with the applicant that the Departmental File BCC2016/880319, which relates to his application for a Subclass 187 visa nominated by MJ Food Venture Pty Ltd, contains material which would not be released in full to him, given the non-disclosure certificate, but the ‘gist’ of it is as follows:

    a.the Department received an allegation from a member of the public on 26 September 2016 that a number of restaurants have been set up in Nambour, but never open their doors and that it is possible they are a front for improper entry into Australia. The allegation refers to Tasty Buds restaurant, Curry King and Portovino. The Department referred the allegation for investigation and noted that MJ Food Venture Pty Ltd has the same director as another business that was sanctioned by the Department. The applicant was identified as a person of interest to be investigated.

1. The Tribunal advised the applicant that the above information is relevant to the review as it tends to suggest that he was never genuinely employed at the Tasty Buds restaurant and therefore he provided false or misleading information to the Tribunal regarding his employment history, which is a material particular in relation to the application for the Subclass 489 visa, and also he does not satisfy the requirements of PIC 4020.

2. The Tribunal indicated that if it was to rely upon this information it would be the reason or part of the reason to affirm the decision to refuse to grant him the Subclass 489 visa. The applicant confirmed to the Tribunal that he understood why the information is relevant to the review. The applicant was asked whether he would like additional time to comment on or respond to the information, and he requested that he be permitted to provide a written response to the s.359AA information following the review hearing. That request was duly granted by the Tribunal.

3. Regarding the fifth portion of information raised according to s.359AA of the Act, the Tribunal proceeded as follows. The Tribunal raised with the applicant that the Departmental File OPF2016/3343, which relates to the sponsorship monitoring of ND Stores Pty Ltd ATF ND Stores Unit Trust, contains material which would not be released in full to him, given the non-disclosure certificate, but the ‘gist’ of it is as follows:

   a.the Department initiated sponsorship monitoring of ND Stores Pty Ltd ATF ND Stores Unit Trust in relation to its Miss India restaurants in 2014 following allegations of a ‘cash for visa’ scheme. The restaurants monitored were unconnected with restaurants where the applicant says he worked and he was not a person of interest in the investigation. On 22 December 2016, the company was sanctioned by the Department for breaches of sponsorship requirements, it had its approval as a standard business sponsorship cancelled and it was barred for one year from making future applications for sponsorship; and

   b.the company was placed into liquidation in August 2015 and the liquidator identified that it had not submitted all necessary taxation documentation during 2014 and 2015, it had debts to the ATO and debts to other creditors. Further, the liquidator identified that the company had failed to maintain adequate records since 2010. The conduct of the director was also called into question. The Tribunal also noted that when asked during the review hearing if the restaurant continued trading after he ceased employment, the applicant indicated that it did.

4. The Tribunal advised the applicant that the above information is relevant to the review as it tends to suggest that ND Stores Pty Ltd was subject to sponsorship monitoring as a result of allegations of a cash for visa scheme during the period he purportedly worked there, and that the company did not keep appropriate records, or lodge required taxation documentation, and this casts doubt upon the genuineness of his employment history at Miss India.

5. The Tribunal indicated that if it was to rely upon this information it would be the reason or part of the reason to affirm the decision to refuse to grant him the Subclass 489 visa. The applicant confirmed to the Tribunal that he understood why the information is relevant to the review. The applicant was asked whether he would like additional time to comment on or respond to the information, and he requested that he be permitted to provide a written response to the s.359AA information following the review hearing. That request was duly granted by the Tribunal.

6. Regarding the sixth portion of information raised according to s.359AA of the Act, the Tribunal proceeded as follows. The Tribunal raised with the applicant that the Departmental File OPF2014/3975, which relates to the sponsorship monitoring of ND Stores Pty Ltd ATF ND Stores Unit Trust, contains material which would not be released in full to him, given the non-disclosure certificate, but the ‘gist’ of it is as follows:

   a.the Department initiated Sponsorship Monitoring of ND Stores Pty Ltd ATF ND Stores Unit Trust in relation to its Miss India restaurants in 2014 following allegations of a ‘cash for visa’ scheme. The restaurants monitored were unconnected with restaurants where the applicant says he worked and he was not a person of interest in the investigation; and

   b.the Department conducted detailed investigations in relation to visa holders from other Miss India restaurants. The applicant was not a subject of these investigations. The Tribunal notes that regarding these investigations, the applicant’s name is contained in a list of employees of Miss India submitted by the company. Various deficiencies were identified with the company regarding its sponsorship obligations.  

7. The Tribunal advised the applicant that the above information is relevant to the review as it tends to suggest that ND Stores Pty Ltd was subject to sponsorship monitoring as a result of allegations of a cash for visa scheme during the period he purportedly worked there and that the company did not keep appropriate records, casting doubt upon the genuineness of his employment history at Miss India.

8. The Tribunal indicated that if it was to rely upon this information it would be the reason or part of the reason to affirm the decision to refuse to grant him the Subclass 489 visa. The applicant confirmed to the Tribunal that he understood why the information is relevant to the review. The applicant was asked whether he would like additional time to comment on or respond to the information, and he requested that he be permitted to provide a written response to the s.359AA information following the review hearing. That request was duly granted by the Tribunal.

9. The Tribunal asked the applicant if there was any more evidence he wished to provide about his claimed periods of employment with the Miss India restaurant or the Tasty Buds restaurant. He indicated he did not wish to do so. The Tribunal asked the applicant if there were any compassionate or compelling circumstances that justify the granting of the visa to him, and the waiver of Public Interest Criteria 4020, if false or misleading information or a bogus document has been provided, noting it had not formed a view on this topic. The applicant denied providing any false or misleading information, or any bogus documents. He did not offer any compassionate or compelling circumstances affecting him. The Tribunal confirmed with the applicant that he had no further evidence to provide prior to it taking the oral evidence of the witnesses.

10. Having had the benefit of taking the applicant’s oral evidence in person, the Tribunal assessed him to lack credibility regarding that portion concerning his purported employment history. This is due to his problematic accounts pertaining to his acquisition of the designated regional area nomination, his lack of engagement with the Department following cessation of his work with Miss India, his unpaid work with Tasty Buds at Nambour, his purportedly limited work in the taxi industry and his being financially supported by his wife during significant periods of unemployment or unpaid work in Australia. In addition, the applicant’s formulaic presentation of his oral evidence regarding his purported work at Miss India Greenslopes caused concern for the Tribunal. On balance, the Tribunal is not satisfied that the applicant provided a fulsome and truthful account of his entire employment history in Australia.

11. The Tribunal took the oral evidence of Mrs Karamjit Kaur Deol, the second named applicant, in person. It may be summarised as follows. She has been married to the applicant for twenty one years and they reside together in Australia. She worked at various Miss India restaurants in Brisbane between 2010 and 2013. However, she did not work at the Miss India restaurant in Greenslopes and therefore never worked directly with her husband, the applicant.

12. When asked by the Tribunal to outline her husband’s employment history in Australia, the second named applicant provided a vague and unconvincing account. She initially advised that he worked at an Indian restaurant. She then indicated he worked at Miss India Greenslopes between 2012 and 2014. The second named applicant advised that her husband worked at a restaurant in Nambour for five days per week from 5pm to 10pm. However, when asked by the Tribunal the name of the restaurant at Nambour, the second named applicant couldn’t recall. She indicated she visited that restaurant five or six times but doesn’t remember its name. The second named applicant advised that when her husband could not obtain permanent residence through Miss India, he tried to obtain it through the restaurant at Nambour. She did not know how her husband obtained employment at Nambour.

13. When asked by the Tribunal if she was aware of any investigations conducted by the Department regarding any Miss India restaurant, the second named applicant advised she knew there were some, but did not know the particulars. She was unaware whether any other Government agency had investigated Miss India. When asked by the Tribunal if her husband had undertaken any other work in Australia that she had not already raised in oral evidence, the second named applicant responded that he had not, although whatever he has done has been connected with an Indian restaurant. The Tribunal asked the second named applicant if her husband had ever worked anywhere else in Australia other than Miss India at Greenslopes or the Nambour restaurant, she replied that he had not.

14. The second named applicant then confirmed that her husband currently worked at the U Food factory as a delivery driver. When asked if she could provide further evidence regarding her husband’s work at Nambour, the second named applicant doggedly maintained that he worked there five days per week between 5pm and 10pm. However, she could not provide any further information regarding this employment. The second named applicant confirmed she had no additional evidence to provide and the applicant was invited to comment. He advised his wife got the dates wrong regarding his employment at Miss India, noting he started in 2015 not 2014. Upon the request of the representative, the Tribunal asked the second named applicant if her husband ever helped her at her Indian Brothers restaurant and she confirmed that he did. The applicant had no further comment regarding his wife’s evidence.

15. The Tribunal observed the second named applicant provide her oral evidence in person and notes that she offered a vague account of the majority of her husband’s work experience. Curiously, she was able to doggedly maintain, in a formulaic fashion, that her husband worked five days per week between 5pm to 10pm at Nambour, yet she was unable to recall the name of that restaurant or other particulars of his work there. Having had the benefit of taking Mrs Deol’s evidence in person, the Tribunal assessed her to lack credibility regarding her evidence pertaining to the purported employment history of her husband. On balance, the Tribunal affords low weight to the oral evidence of the second named applicant on account of its vagary and evasive method of delivery.  

16. The Tribunal took the oral evidence of Mr Amit Nagar by telephone. It may be summarised as follows. He used to work in the Miss India head office. He advised that the applicant worked at Miss India Greenslopes between 2012 and 2015, holding a Subclass 457 visa arising from that employment. The applicant departed Miss India in September 2015. Mr Nagar observed the applicant working at the Greenslopes restaurant and they regularly discussed orders and stock. When asked by the Tribunal why the applicant ceased employment with Miss India, Mr Nagar was unsure. He added that he thought all Subclass 457 visa holders ceased at that time. He was initially uncertain as to whether the Greenslopes restaurant closed, then confirmed it did not.

17. Mr Nagar worked at Miss India initially in administration, then as the Accounts Manager. He confirmed that in the past some Miss India restaurants closed because they were not doing well or because of confidential material. Mr Nagar confirmed the Department investigated Miss India in 2015 regarding its sponsorships and that people started leaving around that time. Mr Nagar advised that the General Manager, Mr Raymond Prasad, did not tell him everything about the business and accordingly he doesn’t know exactly what happened with the Department’s investigation.

18. Mr Nagar confirmed he did not work anywhere else with the applicant. He was unsure of what the applicant did for employment after leaving Miss India. Mr Nagar knows the applicant worked at Miss India and he gave a declaration about this (the Tribunal has duly considered the submitted written material from him). Mr Nagar advised that the applicant was hard working and a nice person. When asked by the Tribunal if he had ever heard of cash for visa allegations pertaining to Miss India, Mr Nagar confirmed that he had heard rumours but never saw it himself. He confirmed the Department came to the Miss India head office and some people left employment as a result, noting one allegation concerned a staff member being unable to recognise another during the investigation.

19. Upon the request of the representative, the Tribunal asked Mr Nagar if he ever had problems with computer software at Miss India. Mr Nagar advised that he was not sure exactly which issue had arisen, adding that sometimes there were problems, but he can’t remember. He confirmed that he wouldn’t have made a written declaration if he didn’t know the applicant. Mr Nagar confirmed he had no further evidence to provide and the applicant had nothing to add following the delivery of this evidence.

20. The Tribunal affords some weight to the oral evidence of Mr Nagar and also to his written material in support of the applicant. The Tribunal notes that Mr Nagar’s Statutory Declaration of 1 May 2019 provides some detail regarding the applicant’s employment with Miss India. However, that Declaration does not confirm the usual hours of work performed by the applicant and it is apparent that Mr Nagar did not have day to day observation of the applicant performing duties at Greenslopes. When this Declaration is considered in conjunction with the oral evidence of Mr Nagar, which clearly demonstrated the organisational distance he had from the applicant in the workforce (i.e. Mr Nagar was in head office, with the applicant at Greenslopes), it is apparent that Mr Nagar did not observe in detail the bulk of the actual work performed by the applicant, nor the hours he kept in its performance, particularly with regard to the period of claimed paid employment between 2012 and 2015 (the Tribunal notes that an earlier letter from Mr Nagar of 27 July 2011 does not relate to the period of claimed paid employment). For these reasons, on balance, the weight afforded by the Tribunal to the documentary and oral evidence of Mr Nagar is somewhat limited.

21. The Tribunal took the oral evidence of Ms Neha Sanghavi by telephone. It may be summarised as follows. She was formerly the Accountant of Miss India working in head office. Ms Sanghavi advised that she commenced at Miss India in 2011 and the applicant was working there since that time. She concluded work there in 2016 when she returned to India for six months. When asked by the Tribunal about the applicant’s work, Ms Sanghavi indicated she ‘thinks’ he was a cook. She added that she worked in Accounts and was therefore not exactly sure what he did. She confirmed she never worked directly with the applicant.

22. When asked by the Tribunal if she was aware of any investigations by the Department into any Miss India restaurant, Ms Sanghavi replied that she heard from others that there were, but she doesn’t know much about it. She did not know if any restaurant or business associated with Miss India ceased trading. Ms Sanghavi confirmed she never worked elsewhere with the applicant. She added that there were more than one hundred employees at Miss India. She remembers the applicant coming into head office a couple of times, but she cannot personally know everyone. Ms Sanghavi confirmed she issued the PAYG Payment Summaries to the applicant as she was the book keeper. She maintained that she sent all relevant records to the external Accountant. She recalled that Miss India changed its accounting system due to a software problem. She added that some work was outsourced to an external book keeper. Ms Sanghavi confirmed she had no further evidence to provide and the applicant had nothing to add following the delivery of this evidence. The Tribunal affords some weight to the oral evidence of Ms Sanghavi. However, that weight is diminished by the lack of detail she provided regarding the precise duties of the applicant and his work routine, in addition to the organisational distance between the two.

23. The Tribunal took the oral evidence of Ms Gurwinder Kaur by telephone. It may be summarised as follows. She used to work at Miss India from 2008 to January 2015. Ms Kaur worked with the applicant at Greenslopes between 2012 and 2014. She was also sponsored by Miss India for a Subclass 457 visa. Ms Kaur advised that she was a cook at Miss India Greenslopes and that the applicant was a chef who did orders. When asked to provide further particulars regarding the applicant’s work at Greenslopes, Ms Kaur replied “roughly I remember he did work as a cook.” When asked by the Tribunal to provide further detail regarding her work with the applicant, Ms Kaur indicated that he worked more in the morning and she in the afternoon. In due course, she confirmed to the Tribunal that she worked mostly different times to the applicant and advised she “just did a few shifts with him.” She added that she did not see him a lot, although she confirmed he worked at Miss India Greenslopes.

24. Ms Kaur was unaware of any Departmental investigations into any Miss India restaurant. She confirmed she never worked elsewhere with the applicant, adding she also worked at other Miss India Restaurants including Morningside. Ms Kaur indicated she also saw the applicant at a couple of staff meetings, including at head office. She stated that she knows the applicant worked at Miss India and he was still there when she left. Ms Kaur confirmed she had no further evidence to provide and the applicant had nothing to add following the delivery of this evidence. The Tribunal affords some weight to the oral evidence of Ms Kaur and also to her written material in support of the applicant. However, the Tribunal notes that in both oral and documentary form she provided only limited detail of the applicant’s actual duties at Miss India Greenslopes. For example, her Statutory Declaration of 16 April 2019 is brief, lacks detail and is written in a formulaic manner. Accordingly, on balance, the Tribunal affords her evidence limited weight.

25. The Tribunal took the oral evidence of Ms Arti Sharma by telephone. It may be summarised as follows. She used to work at Miss India as a cook holding a Subclass 457 visa and then she obtained permanent residence. Ms Sharma worked at Miss India Greenslopes with the applicant from 2012 to 2015. She departed Miss India one year after obtaining permanent residence. Ms Sharma indicated the applicant was a good worker.

26. Ms Sharma was unaware of any Departmental investigations into any Miss India restaurant. She departed in 2015 and doesn’t know anything after that date. Ms Sharma confirmed she never worked anywhere else with the applicant. She confirmed that she worked at Greenslopes with the applicant. Ms Sharma confirmed she had no further evidence to provide and the applicant had nothing to add following the delivery of this evidence. The Tribunal affords some weight to the oral evidence of Ms Sharma and also to her written material in support of the applicant. However, the Tribunal notes that in both oral and documentary form she provided only limited detail of the applicant’s actual duties and work routine at Miss India Greenslopes. For example, her Statutory Declaration of 23 April 2019 provides scant detail of the applicant’s work routine and is formulaic in its construction. Another example is Ms Sharma’s prior Statutory Declaration of 29 November 2016, which outlines a list of duties required of cooks at Miss India, however, there is little direct reference to the applicant’s work routine (of note, this Statutory Declaration is struck in almost identical terms to the Statutory Declaration of Mr Harpal Singh dated 8 December 2016, which is contained at folio 82b of Department file BCC2017/2029383). Therefore, on balance, the Tribunal affords her evidence only limited weight.

1. The Tribunal took the oral evidence of Mr Saiyad Ahmed Hussein by telephone. It may be summarised as follows. He has worked as a butcher for twenty years and he previously delivered meat to the Miss India restaurants. Mr Hussein advised that the applicant worked at Miss India Greenslopes from around 2011 or 2012 and that he used to receive his deliveries of meat. Mr Hussein supplied Miss India with meat for some years, but no longer does so. He used to conduct deliveries there two to three days per week. Mr Hussein advised that the applicant is a nice person and is hardworking. He was not sure when or why the applicant ceased working at Miss India, nor was he sure of the applicant’s next employment. Mr Hussein confirmed he never worked at Miss India himself. Mr Hussein stopped supplying meat to Miss India Greenslopes in 2017 or 2018 due to their financial problems. He is not sure if that restaurant ever closed.  

2. Mr Hussein confirmed he had no further evidence to provide and the applicant had nothing to add following the delivery of this evidence. The Tribunal affords some weight to the oral evidence of Mr Hussein and also to his written material in support of the applicant. However, the Tribunal notes that in both oral and documentary form he provided only limited detail of the applicant’s actual duties at Miss India Greenslopes. For example, his Statutory Declaration of 15 April 2019 provides minimal information, from the perspective of a supplier who cannot attest comprehensively to the work routine of the applicant. Accordingly, these matters reduce the weight afforded to his evidence by the Tribunal.

3. Towards the conclusion of the review hearing, the applicant confirmed he had no further oral evidence to provide. The representative was invited to make oral submissions but did not do so. It was confirmed that the applicant had twenty one days following the review hearing to provide a response to the invitations pursuant to s.359AA of the Act, in addition to any further documentary material he wished. There being nothing further, the review hearing concluded.

   Pre and post review hearing documentary material  

4. The Tribunal notes that the applicant submitted a raft of documentation in support of his application for review. Further, he submitted a significant quantity of documentation to the Department in support of his Subclass 489 visa application. The Tribunal has duly considered the aforementioned material. As previously outlined, the Tribunal has also considered material contained in the files received in response to Summons (some of which is not relevant to this review, as is reflected elsewhere). In this decision record, the Tribunal has not slavishly referred to each piece of documentary material, rather it adopts a thematic approach in outlining its reasoning and findings.

5. Various Statutory Declarations and statements in support of the visa and review applications have been submitted by the applicant. Some come from the applicant himself, the bulk from third parties (some of which have previously been outlined). All have been duly considered. The Tribunal notes that Statutory Declarations were submitted from Ms Manjinder Kaur of 27 April 2019 and Mr Rajwinder Singh of 26 April 2019. They are brief and contain limited information regarding the applicant’s purported duties and work routine at Miss India. On balance, the Tribunal affords them low weight. A further Statutory Declaration from Mr Harpal Singh of 8 December 2016 is cast in almost identical terms to the Declaration of Ms Sharma of 29 November 2016, suffering the same limitations in content. The delegate’s visa refusal decision records that Mr Harpal Singh advised a Departmental Officer by telephone that he could not recall some particulars of his own employment at Miss India due to ‘short term memory loss’ (submissions from the representative contend that Mr Harpal Singh did not provide evidence in this review due to concern over his health status influencing his own visa options, noting no medical evidence is available concerning this matter). Putting the aforementioned issues to one side, the Tribunal affords low weight to the documentary evidence of Mr Harpal Singh given its deficiencies as previously outlined. The Tribunal has also carefully considered the Statutory Declaration of Mr Pietro Paciocco of 10 March 2020, a matter to which it shall later return in more detail.

6. The written material authored by the applicant himself, both pre and post review hearing, contends he has been noble in his employment endeavours in Australia, has never participated in dubious conduct and is the victim of various third party treachery (in particular at the hands of Mr Raymond Prasad of Miss India and also the proprietors of the Tasty Buds restaurant at Nambour who allegedly exploited him for unpaid labour in the hope of visa sponsorship). It is also contended the information he supplied in relation to his Subclass 489 visa application is true and correct, including his update to question 19 of Form 80. In sum, he attempts to refute any potentially adverse information raised with him. Whilst the Tribunal affords some weight to the written material prepared by the applicant himself, it is afforded lower weight when considered globally with the other evidence before the Tribunal, in combination with the concerns regarding his credibility as previously identified.

7. The Tribunal has duly considered the various portions of submitted documentary material pertaining to financial matters, such as bank records, payslips, superannuation records, taxation documents (including PAYG Payment Summaries), accounting correspondence and business records. Further, employment related material (including employment contracts, skill assessment correspondence, invoices, receipts, menus, orders, photographs, video material, work email correspondence, social media posts, duty statements, Department correspondence pertaining to visas/nomination/investigation, operational documents,  ASIC information and regulatory approval correspondence) has been carefully considered by the Tribunal. Additionally, the Tribunal has carefully considered the written submissions made in support of the applicant, noting they broadly contain three major strands of argument, the applicant’s employment at Miss India for the claimed period is bona fide and deserving of ‘points’, his unpaid work at Tasty Buds Nambour is bona fide and in any event is not a material particular regarding the Subclass 489 visa application, and no dubious material has ever been submitted by him to the Tribunal or to the Department relevant to PIC 4020. As outlined in further detail below, the Tribunal draws various conclusions concerning the submitted documentary material, specifically as it pertains to each theme relevant to this review.

   Analysis

8. The Tribunal has carefully considered the applicant’s claimed period of employment with Miss India Greenslopes, between 30 April 2012 and 2 September 2015, for which he seeks points in connection with his Subclass 489 visa application made on 8 June 2017. The Tribunal accepts that the applicant was employed, in some capacity, by Miss India Greenslopes during the claimed period. It does so on account of the evidence provided by third parties, the submitted employment documentation and the reference made to the applicant in material submitted by Miss India to the Department in response to sponsor monitoring (for example, see the sixth portion of information raised pursuant to s.359AA of the Act at paragraph 50 above).

9. However, in order for the applicant to obtain points for his claimed employment with Miss India Greenslopes between April 2012 and September 2015, the Tribunal must be satisfied that he was employed (with remuneration for at least 20 hours per week pursuant to r.2.26AC(6)) for at least three years, in the occupation of cook (or a closely related skilled occupation). The Tribunal is not so satisfied for the following reasons. The Tribunal developed serious concerns with respect to the credibility of the applicant during the review hearing, as previously outlined. He presented as a savvy individual, who provided vague evidence in a guarded and evasive fashion regarding his employment history when the Tribunal sought further particulars. For example, the applicant’s evidence regarding his acquisition of the designated regional area nomination, his lack of engagement with the Department following cessation of his work with Miss India, his unpaid work with Tasty Buds at Nambour, his purportedly limited work in the taxi industry and his being financially supported by his wife during significant periods of unemployment or unpaid work in Australia (according to the updated question 19 of his Form 80 these periods without paid work included September 2010 to April 2012 but for one taxi shift, September 2015 to July 2016 but for one taxi shift, and July 2016 to December 2017) is problematic. Additionally, the formulaic manner in which the applicant presented his oral evidence regarding his purported work with Miss India Greenslopes buttressed the credibility concerns developed by the Tribunal. Given these concerns, the Tribunal cannot be satisfied with the truthfulness of the applicant’s evidence regarding his purported employment with Miss India Greenslopes between 2012 and 2015, particularly with regard to its frequency, duration and specific duties.  

10. Whilst the Tribunal is prepared to accept that the PAYG Payment Summaries were provided to the applicant by his employer Miss India (and therefore he did not provide bogus documents in connection with the review or visa applications), he paid taxation on the earnings recorded, he received aligned payslips and he received transfers of the recorded earnings into his bank account, it is not satisfied that he actually performed the remunerated full duties of a cook (or closely related skilled occupation) for at least three years for a minimum of 20 hours per week. This is because the bulk of the evidence submitted in support of the applicant’s claims regarding his paid employment with Miss India is equivocal regarding his actual duties (as opposed to recorded duties) and work routine. As previously outlined, the oral and documentary evidence of the supporting witnesses point to the applicant being employed at Miss India in some capacity. However, its lack of detail does not corroborate that the applicant performed the remunerated duties of a cook for a minimum of 20 hours per week, for at least three years, whilst being with that employer as claimed. Indeed, the pay and taxation records relied upon by the applicant are unsupported by relevant lodgements of information by Miss India with the ATO. Further, whilst the Tribunal accepts that the applicant received a positive skill assessment in the occupation of cook, the deficiencies with the bulk of the evidence before it undermine the weight of that assessment.

11. When the documentary material is considered together with the serious credibility concerns identified regarding the applicant’s oral evidence, the Tribunal cannot be satisfied that he genuinely performed the remunerated duties of a cook (or closely related skilled occupation) for the required frequency and duration. Rather, the Tribunal is concerned that the applicant has participated in a contrivance in order to present a narrative that he is entitled to points for his Australian Work Experience, for the purpose of the Subclass 489 visa application. The Tribunal simply does not accept that the applicant was the subject of grave misfortune at the hands of third parties, which has clouded the legitimacy of his claimed work endeavours. In sum, the concerns outlined by the Tribunal cause it to achieve a lack of satisfaction regarding the applicant’s claims for points in connection with his work at Miss India Greenslopes.

12. The Tribunal has carefully considered the applicant’s claimed period of unpaid work with the Tasty Buds restaurant at Nambour between July 2016 and December 2017, which he recorded on his submitted update to question 19 of Form 80. That the applicant only declared one period of employment with Miss India (Eagle Junction) between April 2012 to September 2015 in his original Form 80 submitted to the Department, and does not claim any other period of remunerated employment for visa points, does not render him immune from examination regarding the requirements of PIC 4020, as is contended on his behalf. It is worth pausing to reflect that the applicant only provided more fulsome information in the update to Form 80 when confronted with information obtained by the delegate as to his foray into the taxi industry (noting he failed to originally declare all types of paid and unpaid, including work experience, employment as required by the instructions at question 19 of that Form). Again, this is of concern to the Tribunal and, when taken together with the other credibility issues previously identified, does not reflect well upon the applicant.

13. The Tribunal notes that it often provided ‘the gist’ of potentially adverse material to the applicant regarding his purported employment with the Tasty Buds restaurant pursuant to s.359AA of the Act and permitted his response following the hearing. The Tribunal has carefully considered the post-hearing material submitted, including the applicant’s unsworn statement, the Statutory Declaration of Mr Pietro Paciocco dated 10 March 2020, and assorted material contending that the Restaurant did in fact trade as claimed. In sum, the aforementioned material contends the applicant was employed on an unpaid basis five days per week in the evenings and was exploited by the proprietor in return for the promise of visa sponsorship. The Tribunal has also carefully considered the results of the Departmental investigation into the Tasty Buds restaurant culminating in the site visit report (which includes reference to three proximate restaurants including ‘Nambour Pizza & Pasta’ and evidence from a member of the community), in conjunction with the ‘dob-in’ material from a member of the community concerning that purported restaurant precinct, as raised pursuant to s.359AA of the Act.

14. On balance, the Tribunal prefers the evidence of the Departmental Officers, the member of the community they spoke to during the site visit, and the member of the community who provided ‘dob in material’, to the evidence submitted in support of the applicant concerning the Tasty Buds restaurant. This is because there is no persuasive evidence before the Tribunal suggestive of malfeasance on the part of the Departmental Officers, nor is there any evidence to impugn the truthfulness of the two members of the community expressing concern over the purported restaurant precinct taking in the Tasty Buds restaurant. Further, the contents of the site visit report are clearly expressed. Additionally, the site visit report impugns the genuineness of the operations of the neighbouring ‘Nambour Pizza & Pasta’ restaurant in the relevant period, and accordingly the Tribunal affords no weight to the Statutory Declaration of Mr Pietro Paciocco of that establishment. On balance, the staunch denial of wrongdoing by the applicant regarding his purported unpaid work experience at the Tasty Buds restaurant, when confronted with the potentially adverse information, leads the Tribunal to form the view that he has participated in a contrivance seeking to portray that establishment as trading in the evening (for example by way of submitting limited photography, video material, and customer ratings) when in fact the evidence is strongly suggestive that it never traded on a bona fide basis. Such conduct reflects poorly upon the applicant and further undermines his credibility regarding his employment history in Australia.

15. The Tribunal is of the view that the applicant’s entire employment history in Australia, within the ten years immediately before the date of the invitation to apply for the Subclass 489 visa, is a material particular in relation to the application for that visa. That is so because fulsome information is required in order for an assessment to be made against cl.489.224, in addition to other requirements such as the Character provisions (see cl.489.211 and PIC 4001). Accordingly, the Tribunal does not accept the applicant’s contentions that because the purported unpaid work at Tasty Buds restaurant is not ‘claimed’ for points regarding cl.489.224, it is not a material particular in relation to the Subclass 489 visa. If that were so, it would permit applicants to provide false information regarding some elements of their employment history and undermine the integrity of Australia’s visa system. On balance, the Tribunal finds that the applicant dishonesty provided information, that is purposely untrue, in relation to his claimed unpaid employment with the Tasty Buds restaurant at Nambour. Again, this reflects poorly upon him.

    Does the applicant have the qualifying score applying the law in force at the time of the delegate’s assessment?

    Part 6D.1 – Age qualifications

16. Points are available under this Part if the applicant was aged between 18 and 44 years at the time of invitation to apply for the visa.

17. At the time of invitation, the applicant was aged 38 years. Therefore, the applicant is entitled to 25 points under this Part.

    Part 6D.2 – English language qualifications

18. Points are available under this Part on the basis of the applicant’s level of English language proficiency at the time of invitation to apply for the visa. There is no evidence before the Tribunal, nor is it claimed by the applicant, that he possessed proficient or superior English at the relevant time.

19. Therefore, the applicant is entitled to no points under this Part.

    Part 6D.3 – Overseas employment experience qualifications

20. Points may be available under this Part if, at the time of invitation to apply for the visa, the applicant had been employed outside Australia in the applicant’s nominated skilled occupation or a closely related skilled occupation for at least 36, 60, or 96 months in the 10 years immediately before that time.

21. There is no evidence before the Tribunal, nor is it claimed by the applicant, that he possessed overseas employment experience qualifications at the relevant time.

22. Therefore, subject to consideration of Part 6D.5, the applicant is entitled to no points under this Part.

    Part 6D.4 – Australian employment qualifications

23. Points may be available under this Part if, at the time of invitation to apply for the visa, the applicant had been employed in Australia in the nominated occupation or a closely related skilled occupation for at least 12, 36, 60 or 96 months in the 10 years immediately before that time.

24. For reasons previously outlined, the Tribunal is not satisfied that the applicant undertook remunerated employment in the occupation of cook (or a closely related skilled occupation) for at least 20 hours per week, between 30 April 2012 and 2 September 2015, at Miss India Greenslopes. Therefore, the Tribunal is not satisfied that the applicant is entitled to points for either 12 or 36 months employment at Miss India Greenslopes. Additionally, there is no persuasive evidence before the Tribunal that the applicant undertook any other relevant remunerated employment in Australia in the 10 years immediately before the date of the invitation to apply for the Subclass 489 visa.

25. Therefore, subject to consideration of Part 6D.5, the applicant is entitled to no points under this Part.

    Part 6D.5 - Aggregating points for employment experience qualifications

26. Under this Part, if an applicant has qualifications mentioned in both Parts 6D.3 and 6D.4 and the combined number of points that would be awarded under those Parts is more than 20 points, 20 points must be given under this Part for the qualifications and no points are to be given under Part 6D.3 or 6D.4.

27. The combined number of points that would be awarded under Parts 6D.3 and 6D.4 is 0 points. As this is not more than 20 points, the applicant is entitled to no points under this Part.

    Part 6D.6 – Australian professional year qualifications

1. Five points are available under this Part if, at the time of invitation to apply for the visa, the applicant had completed a professional year (that is, a course specified in an Instrument) in Australia in the nominated occupation or a closely related skilled occupation for at least 12 months in the immediately preceding 48 months.

2. There is no evidence before the Tribunal, nor is it claimed by the applicant, that he possessed Australian professional year qualifications at the relevant time.

100.   Therefore, the applicant is entitled to no points under this Part.

Part 6D.7 – Educational qualifications

101.   An applicant may be entitled to points under this Part if, at the time of invitation to apply for the visa, he or she had met the requirements for the award of a specified Australian qualification or overseas qualification of a recognised standard. In determining whether an overseas qualification is of a ‘recognised standard’ (items 6D71(b), 6D72(b)), regard must be had to the matters set out in r.2.26AC(5) which include recognition of the qualification by the relevant assessing authority, recognition of the qualification by a specified body, duration of the study and any other relevant matter.

102.   The Tribunal accepts that the applicant completed an Advanced Diploma of Hospitality from the Kaps Institute of Management in May 2011.

103.   Therefore, the applicant is entitled to 10 points under this Part.

Part 6D.7A – Specialist educational qualifications

104.   Ten points may be awarded under this Part if, at the time of invitation to apply for the visa, the applicant met the requirements for the award of a specialist educational qualification, as defined in r.2.26AC(5A). The applicant must satisfy the Minister that they have met the requirements for the award of a masters’ degree by research, or a doctoral degree, which included at least two academic years of study at an Australian educational institution in a field of education specified in the relevant Instrument.

105.   There is no evidence before the Tribunal, nor is it claimed by the applicant, that he possessed specialist educational qualifications at the relevant time.

106.   Therefore, the applicant is entitled to no points under this Part.

Part 6D.8 – Australian study qualifications

107. Five points may be awarded under this Part if, at the time of invitation to apply for the visa, the applicant met the Australian study requirement, as defined in r.1.15F of the Regulations. To meet the study requirement, the applicant must satisfy the Minister that they have completed one or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a registered course or courses, for which all instruction was in English. The applicant must have undertaken the courses in Australia while holding a visa authorising study, and completed them in a total of at least 16 calendar months as a result of a total of at least two academic years study.

108.   The Tribunal accepts that the applicant completed a Certificate III in Commercial Cookery and an Advanced Diploma of Hospitality from the Kaps Institute of Management in Australia.

109.   As the Australian study requirement had been met at the time of invitation, the applicant is entitled to 5 points under this Part.

Part 6D.9 – Credentialled community language qualifications

110.   Five points may be awarded under this Part if, at the time of invitation to apply for the visa, the applicant had a qualification in a particular language awarded or accredited by a specified body, and at a specified standard for the language.

111.   There is no evidence before the Tribunal, nor is it claimed by the applicant, that he possessed credentialled community language qualifications at the relevant time.

112.   Therefore, the applicant is entitled to no points under this Part.

Part 6D.10 – Study in designated regional area qualification

113. Five points may be awarded under this Part if, at the time of invitation to apply for the visa, the applicant met the Australian study requirement (as defined in r.1.15F), and that study was undertaken, and the applicant lived, in a designated regional area. Distance education does not qualify as study for these purposes.

114.   There is no evidence before the Tribunal, nor is it claimed by the applicant, that he had completed Australian study in a designated regional area at the relevant time.

115.   Therefore, the applicant is entitled to no points under this Part.

Part 6D.11 – Partner qualifications

116.   Five points may be awarded under this Part if the applicant has a spouse or de facto partner who is an applicant for the same visa subclass, is not an Australian citizen or permanent resident and, at the time the applicant was invited to apply for the visa, the spouse or de facto partner satisfied certain age, skilled occupation and English language requirements.

117.   There is no evidence before the Tribunal, nor is it claimed by the applicant, that his wife (the second named applicant), satisfied the necessary criteria, at the relevant time, for him to be awarded points for partner qualifications.

118.   Therefore, the applicant is entitled to no points under this Part.

Part 6D.12 – State or Territory nomination qualifications

119.   Points are available under this Part in certain circumstances for applicants who were invited to apply for a Subclass 190 (Skilled - Nominated) visa. The applicant in this case has not been invited to apply for such a visa and is therefore not entitled to any points under this Part.

Part 6D.13 – Designated regional area nomination or sponsorship qualifications

120.   Points are available under this Part for applicants who were invited to apply for a Subclass 489 (Skilled - Regional) (Provisional) visa, where the relevant agency has not withdrawn their nomination, or if the applicant was sponsored by a family member, the Minister has accepted the sponsorship. The applicant in this case was nominated by a relevant New South Wales Government agency in Armidale. It is worth pausing to reflect that this nomination was organised by the applicant’s former lawyer, Mr Tonio Thomas. Additionally, the applicant has never visited Armidale, never had employment arranged in that location, and he has resided in the vicinity of Brisbane for some years. Nevertheless, the nomination has not been withdrawn.

121.   Therefore, the applicant is entitled to 10 points under this Part.

Conclusion on points

122. Based on the above assessment, having regard to the legislation in effect at the time of the delegate’s assessment, the number of points to be awarded to the applicant under Schedule 6D is:

6D.1 - Age  25 points

6D.2 - English language  0 points

6D.3 - Overseas employment experience  0 points

6D.4 - Australian employment experience  0 points

6D.5 - Aggregated employment  0 points

6D.6 - Australian professional year  0 points

6D.7 - Educational  10 points

6D.7A – Specialist educational  0 points

6D.8 - Australian study  5 points

6D.9 - Credentialled community language  0 points

6D.10 - Study in designated regional area qualification        0 points

6D.11 - Partner qualifications  0 points

6D.12 - State or Territory nomination  0 points

6D.13 - Designated area sponsorship qualifications             10 points

Total points  50 points

123.   The applicant’s assessed score under the points system is therefore 50 points.

124.   At the time of the delegate’s assessment, the pass mark was 60 points: Legislative Instrument IMMI 12/017. The applicant has therefore not achieved the qualifying score to pass the points test.

Has the applicant achieved the qualifying score applying the law in force at time of Tribunal’s assessment?

125.   At the time of the Tribunal’s assessment, the pass mark for the applicant remains 60 points: Legislative Instrument LIN 19/210. The applicant has therefore not achieved the qualifying score to pass the points test at the time of this decision.

Has the applicant achieved the score stated in the invitation to apply for the visa?

126.   It is also a requirement that the applicant’s score is not less than the score stated in the invitation to apply for the visa. The written invitation given to the applicant stated a score of 60 points. On the basis of the points assessment above, the Tribunal finds that the applicant has not achieved the score stated in the invitation to apply for the visa.

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

127. 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.

128.   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.

129.   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.

130.   The Tribunal also notes the guidance concerning these matters from the Full Federal Court in Singh v MIBP [2018] FCAFC 52. In particular, the Tribunal has paid careful regard to the following guidance in that decision [at 144]:

“Where an issue of the proper construction or application of PIC 4020 is raised, Trivedi and Patel authoritatively state that where a visa applicant has given or caused to be given to a relevant decision-maker a document which is a “bogus document” as defined, or information that is false or misleading in a material particular as defined, to determine whether PIC 4020 is satisfied or not, it is not necessary to show knowing complicity by the visa applicant as long as the material is purposely untrue.”

131. As is relevant to the present case, the employment history of the applicant is germane to the assessment of the criteria for the grant of a Subclass 489 visa (for example, cl.489.224 and cl.489.211 in conjunction with PIC 4001). For reasons previously outlined, the Tribunal does not accept the contention of the applicant that his claimed unpaid work with the Tasty Buds restaurant in Nambour, which he submitted in his revised answer to question 19 of Form 80, is not a material particular in relation to the visa application because it is not ‘claimed’ for points.

132.   On balance, the Tribunal is satisfied that the applicant submitted false and misleading information pertaining to his claimed unpaid work at the Tasty Buds restaurant, between July 2016 and December 2017, in his revised answer to question 19 of Form 80. For reasons previously expressed, the Tribunal is satisfied that the applicant did not perform this work, the information contained in the aforementioned revised answer is purposely untrue, and he engaged in deceptive conduct by submitting the untrue information. It follows that the Tribunal is satisfied there is evidence that the applicant has given, or caused to be given, to it information that is false or misleading in a material particular in relation to the application for the Subclass 489 visa.

133.   Therefore, the applicant does not satisfy the requirements of PIC 4020(1).

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

134.   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.

135.   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.

136.   For the following reasons, the Tribunal is not satisfied that the requirements of PIC 4020(1) should be waived. Whilst accepting that the applicants will suffer some hardship as a result of the Tribunal’s finding regarding PIC 4020(1), it is apparent that they are nationals of India. Therefore, any compassionate or compelling circumstances pertaining to the applicants themselves are not relevant in considering a waiver of the requirements of PIC 4020(1).

137.   Additionally, there is no persuasive evidence before the Tribunal of any compassionate or compelling circumstance affecting 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 Subclass 489 visas. Whilst the Tribunal accepts that some sadness or minor disruption may be caused to the friends, acquaintances and colleagues of the applicants, and to the proprietors of U Foods, if the Subclass 489 visas are not granted, the Tribunal does not accept this amounts to compassionate or compelling circumstances of sufficient gravity justifying the grant of the visas. For the sake of completeness, the Tribunal notes there is no persuasive evidence before it of any compelling circumstances that affect the interests of Australia, such as to justify the granting of these visas. The Tribunal so finds. Therefore, the requirements of PIC 4020(1) should not be waived.

138. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.489.211.

Conclusion

139. For the above reasons, the applicant is entitled to a maximum of 50 points pursuant to the points test. As the applicant’s score is less than the relevant qualifying score, the applicant does not satisfy cl.489.224. Further, as the applicant’s score is less than the score stated in the invitation to apply for the visa, the applicant does not satisfy cl.489.224. Additionally, the applicant does not satisfy PIC 4020 for the purposes of cl.489.211. Accordingly, the decision under review will be affirmed.

140.   Given that the applicant does not satisfy the primary criteria for the grant of a Subclass 489 visa, it follows that the second, third and fourth named applicants do not satisfy the requirements of cl.489.311. For the sake of completeness, the Tribunal also finds that no member of the family unit satisfies the primary criteria for the Subclass 489 visa.

DECISION

141.   The Tribunal affirms the decision not to grant the applicants Skilled Regional Sponsored (Provisional) visas.

K. Chapman
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. 

…