Elliott (Migration)

[2022] AATA 238

Elliott (Migration) [2022] AATA 238 (25 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Damien Elliott

REPRESENTATIVE:  Miss Meenakshi Kavvya Mukkavilli

CASE NUMBER:  1909116

HOME AFFAIRS REFERENCE(S):          BCC2018/5230419

MEMBER:Namoi Dougall

DATE:25 January 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 482 - Temporary Skill Shortage visa:

·public interest criterion 4020 for the purposes of cl 482.217 of Schedule 2 to the Regulations.

Statement made on 25 January 2022 at 10:28am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – false or misleading information given in visa application – criminal convictions not declared – applicant notified department of incorrect answer – elapse of time and penalties of fines, driving disqualification and suspended sentence, not imprisonment – compassionate or compelling circumstances to waive criterion – applicant informed Australian employer of criminal record – value of skilled work to employer not compelling – extensive and regular assistance to an Australian family compelling or compassionate – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2)
Migration Regulations 1994 (Cth), Schedule 2, cl 482.217, Schedule 4, criterion 4020(1), (4)(a), (b), (5)

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Trivedi v MIBP [2014] FCAFC 42

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 March 2019 to refuse to grant the applicant a Temporary Skill Shortage (Class GK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 22 November 2018. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 482.217 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied that the applicant met the requirements of public interest criterion (PIC) 4020 of Schedule 4 to the Regulations. The delegate found that the applicant had given information that was false and misleading in a material particular in regard to his character declarations.

3. The applicant appeared before the Tribunal on 20 January 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Ole Evensen, Operations Manager at the applicant’s business sponsor, Buildfix Group Pty Ltd (Buildfix).

4. The applicant was represented in relation to the review.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this review is whether the visa applicant meets PIC 4020 as required by cl 482.217 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).

1. 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.

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

1. 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.

2. 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.

3. 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.

4. On 22 November 2018, the applicant lodged a Subclass 482 visa application in which the applicant failed to declare his criminal convictions in Ireland, that is he answered ‘No’ to the question: ‘Have any applicant ever been convicted of an offence in any country (including any conviction which is now removed from official records?’. The Irish Police Certificate dated 21 November 2018 (the Irish Police Certificate) provided with the applicant’s Subclass 482 visa application indicated that the applicant had 8 convictions arising from 3 separate incidents on 27 October 2006, 1 March 2007 and 19 October 2007. The first conviction in October 2006 was for the unlawful possession of drugs, MDA. The second set of convictions were for drunken driving and use of a vehicle without a national car test (NCT) certificate. For both these sets of convictions the applicant was fined. The third set of convictions in October 2007 were for intoxication in a public place, unlawful possession of drugs, MDA and assault. For the assault the applicant was sentenced to 5 months of imprisonment. However, a letter dated 15 January 2019 from Kevin Tunney Solicitors in Dublin indicated that the sentence was suspended for a year on appeal on 20 April 2008.

5. On 17 January 2017, the applicant provided to the Department a Notification of incorrect answer(s) form which stated that the applicant had provided an incorrect answer in his application as to his convictions in Ireland. The form referred to his attached statutory declaration and stated that he did not provide information about the convictions as he: ‘did not realise that these offences still existed to this day after 11 years.’ Other evidence, including a number of references, was provided which is summarised below.

6. On 30 January 2019, the Department sent the applicant a natural justice letter which stated that the applicant answered no to the question: ‘Have any applicant ever been convicted of an offence in any country (including any conviction which is now removed from official records?’. The letter referred to the criminal convictions recorded on the Irish Police Certificate and noted that the applicant had in his Notice of incorrect answer(s) form stated that he did not realise that the offences still existed after 11 years. The letter also asked for information as to whether there were any compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, to justify the waiver of PIC 4020.

7. On 26 February 2019, the applicant responded to the Department’s natural justice letter by providing a submission and statutory declarations and references from the managing director and operations manager of Buildfix and the Abbott family which are referred to below.

8. On 20 December 2021, the Tribunal invited the applicant to provide, pursuant to s 359(2) of the Act, a submission that there are compelling circumstances affecting the interests of Australia, or compelling or compassionate circumstances affecting the interest of an Australian citizen, Australian permanent residents, or an eligible New Zealand citizen that justify the grant of the visa. After being granted an extension of time to respond, the applicant on 13 January 2022 provided information and additional statutory declarations which are summarised below.

9. Provided to the Department was a statutory declaration of the applicant dated 17 January 2019 (the first statutory declaration). In relation to the October 2006 offence the applicant stated that he fell in with the wrong crowd and at a musical festival he was found in possession of a small amount of cannabis for personal use and was fined EUR100. He further stated that he has not touched cannabis since then. In relation to the March 2007 offences (incorrectly referred to as 2017), the applicant stated that he was stopped at a checkpoint and charged with being over the limit under a new law for young drivers and was fined EUR1,000 and disqualified from driving for 2 years. In relation to the offences from October 2007 the applicant stated that he was out having a drink with his girlfriend when she left after an argument. The applicant followed her, bumped into another male and an altercation took place. He also stated that he took the blame when the police came and that he did not understand the implications of his actions as he often misunderstands what is said to him and is too embarrassed to ask people to repeat themselves as they may think he is stupid.

10. The applicant also stated in his first statutory declaration that he has learnt his lessons and his life has changed since he went to court and received the suspended sentence. The applicant stated that he told Dale Stewart, managing director of Buildfix, about his offences but was still offered a 3-month trial. The applicant also referred to his ‘Oz family’ including his neighbour Marlee Johansen and her parents who have provided statutory declarations referred to below.

11. In the first statutory declaration the applicant stated that he was not aware that he had ‘made any sort of criminal offence’ as he had not spent time in prison. He also stated that he did not receive any professional advice and if he had he was sure he would have completed his Subclass 482 visa application correctly. He had paid his fines and they had happened many years ago and he did not think he had a record after 10 years. The applicant referred to not having any further convictions since 2007 and provided his Irish Police Certificate and an Australian Federal Police certificate dated 21 December 2018 in support.

12. Provided to the Tribunal was a statutory declaration dated 11 January 2022 of the applicant (the second statutory declaration) which repeated much of what he declared in his first statutory declaration. In relation to the offences that occurred in October 2007, the applicant added that on the night he bumped into a group of friends who were trying to get him to take 2 ecstasy tablets, but he refused and he placed them in his pocket intending to dispose of them later in the bathroom. He further stated that he had no interest in taking the drugs having witnessed the effects on other people. The applicant then stated that after travelling in Australia he studied and gained a Certificate of Project Management, a copy of which was provided to the Tribunal. The applicant referred to his work with Buildfix and said that he told Mr Stewart about his driving offences and the fight he got into. He also refers to the friends he has made and his Oz family.

13. As noted above, in his second statutory declaration the applicant stated that he did not declare his convictions as he did not think he has ‘made any sort of criminal offence’ as he had not spent time in prison. He did not think he had a criminal record, and it was not his intention to mislead the Department. He also refers to having not committed any offences since 2007.

14. On 13 January 2022, the Tribunal was provided with a submission (the submission) which stated that the applicant did not intentionally make a false declaration and instead he unknowingly omitted the information based on his ignorance and misinterpretation of the question. It was further submitted that he was not aware that his suspended sentence would be considered a criminal conviction or offence. Further, it was submitted that the convictions did not come to his recollection when completing the form many years after the offences took place.

15. The Irish Police Certificate states before it lists the applicant’s convictions that the applicant ‘was convicted as follows’. There are 8 convictions recorded on the certificate. Whether or not the applicant had criminal convictions is relevant to the criteria in cl 482.217 which requires the Minister to be satisfied that the applicant has met the character test. Therefore, the false and misleading information is relevant to criteria the Minister may take into account when making a decision. Further, as the convictions date from before the applicant lodged his Subclass 482 visa the information as to him not having criminal convictions was false and misleading at the time it was given.

16. At the hearing the applicant stated that when he applied for his Subclass 482 visa he was required to obtain a police certificate from Ireland and it was only when he received the Irish Police Certificate that he became aware of what was on it. Before that he was not aware what was on it. He knew he went to court and got a fine and he was not aware it was recorded as he was in and out on the same day and was fined. The applicant stated that he went to court 3 or 4 times for the convictions. The Tribunal referred to assault being a serious offence and the applicant stated he knows and that is why he took the blame as he was in the wrong. The Tribunal referred to him having received a custodial sentence which he then appealed and the applicant stated that he got an 18-month suspended sentence and did not hear anything about it after that. The Tribunal asked if he signed documents before he left court after getting the suspended sentence and the applicant stated that he cannot remember. He also only had a representative on the appeal day. He further stated that he was young and did not know the legal system and his biggest mistake was not getting legal advice. He is not sure why the Irish Police Certificate states the first offence as MDA and not cannabis.

17. As noted above, the applicant in his Subclass 482 visa application answered ‘No’ to the question: ‘Have any applicant ever been convicted of an offence in any country (including any conviction which is now removed from official records?’. This information was false and misleading at the time it was provided as the Irish Police Certificate provided after the applicant’s Subclass 482 visa application lodged on 22 November 2018 indicated that the applicant had convictions for 8 offences from March 2006 to October 2007. The applicant’s convictions were for offences including 2 convictions of unlawful possession of drugs, MDA, drunken driving, use of a vehicle without a NCT certificate, intoxication in a public place and assault. The Tribunal accepts that the convictions were a long time ago, but the last conviction of assault was serious enough for the applicant to be sentenced to 5 months of imprisonment and which, although the sentence was subsequently commuted to a suspended sentence, required the applicant to go to court twice. Further, there are 2 convictions of unlawful possession of drugs, MDA and even though the applicant has stated in his statutory declarations that the first offence was for cannabis, cannabis is still an illegal drug in Ireland. For these reasons, the Tribunal is satisfied that the applicant was aware of his convictions for offences and purposively provided a false and misleading answer to the character declaration in the Subclass 482 visa application which is the visa application currently under review.

18. On all of the above, the Tribunal is satisfied that the applicant in his Subclass 482 visa application has given to the Department information that is false and misleading in a material particular in relation to his criminal convictions and the Tribunal finds accordingly.

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

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

1. 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 reg 1.03 of the Regulations), 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.

2. 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.

3. The case presented for the applicant relies upon submissions and evidence set out below and that there are grounds for the Tribunal to waive the requirements of PIC 4020(1) and (2) on the basis there are compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen, or an Australian permanent resident.

4. The Tribunal notes that for the purposes of the application of the regulation, a corporation is not an Australian citizen. The emphasis or focus of the waiver provisions is on the interests of Australia, or the interests of Australian citizens or Australian permanent residents, triggered by compelling circumstances or compelling and compassionate circumstances.

5. In order to engage with the question of waiver, the Tribunal must embark on a 2-step enquiry, firstly to consider whether there are compelling circumstances or compassionate or compelling circumstances as required in PIC 4020(4)(a) or (b); and secondly, whether to then exercise discretion to waive the requirements in PIC 4020(1) and (2), having regard to all the relevant facts and circumstances arising.

Buildfix evidence and submission

1. Provided to the Department was a reference dated 15 January 2019 from Dale Stewart, managing director of Buildfix (the first Mr Stewart reference) stating that he was aware of the applicant’s previous convictions.

1. Provided to the Department was a reference dated 22 February 2019 from Ms Lucy Spink, operations manager with Buildfix. Ms Spink stated that the applicant’s role of project manager of the structural teams is vital to the business. His responsibilities included managing their technicians on a day-to-day basis, training and mentoring new staff in their unique repair method, both onsite and in their training centre. The applicant’s team completes 10 jobs a week and the business relies on him to keep the jobs running on time and on budget. He is responsible for planning the jobs for the week including monitoring stock levels and equipment required for each job, foreseeing potential issues and keeping jobs to schedule. Ms Spink also stated that the applicant is excellent in maintaining client relationships. Ms Spink stated that if the applicant’s visa was not approved the impact on the business sponsor’s business would be immediate and ‘in some ways, catastrophic’. They are booked up to 6 weeks in advance and they would have to cancel half of the work as there would not be enough experienced staff. The business could not train new staff without the applicant. Delays would ensue with customers most likely cancelling as there is a sense of urgency with their customers due to the unique structural repairs the business performs.

2. Ms Spink also stated in her reference that a replacement with a similar skill set as the applicant would be difficult to find. The business has put a huge investment into training technicians in their unique repair system which takes several months to learn. The building industry has a high turnover of staff and skills and knowledge are lost with every staff member who leaves. It is difficult to find staff with the right skills, so they have invested in their own training centre and onsite training in which the applicant plays a pivotal role. It was further stated that it would take a year to train a new person to the applicant’s level which would impact on the business.

3. Provided to the Department was another more detailed reference dated 22 February 2019 from Mr Dale Stewart (the second Stewart reference), in which he stated that Buildfix was established in 2014. The business has innovative methods for repairing structural damage to homes which do not involve knocking down and rebuilding and, therefore, save on the huge costs associated with structural repairs. Mr Stewart also stated that the skills and knowledge required for their techniques cannot be obtained in a short period or through conventional training. Mr Stewart stated that the applicant, with his motivation and technical knowledge, had been the leading hand and then became entrusted with the management of the majority of the business’s projects. The business is aiming to double the number of projects in a year but cannot maintain growth without the applicant. Mr Stewart stated that they cannot obtain the applicant’s skills externally or internally as none of their employees had the necessary set of management skills and qualifications.

4. Mr Stewart also stated in the second Stewart reference that as the business expands more technicians will need to be trained and the applicant is the only person who can do this. The business’s investment in its own training centre will be impacted and without trained new employees the business could not fulfil its current and future orders. Mr Stewart also referred to the applicant’s important contribution to a positive review on Trustpilot.

5. The submission provides information on the importance of the construction industry and that the industry has faced a number of challenges since 2019 including drought, bushfires and the COVID-19 pandemic. It was submitted that the construction industry has an ongoing and prevalent issue with sourcing skilled professionals as there are not enough skilled workers in the Australian workforce. The loss of the applicant, it is also submitted, would be a huge loss to the business and its clients. The submission referred to Buildfix being Australia’s leading structural repairer for residential buildings and that they carry out thousands of structural assessments for homeowners and almost 3000 repair projects every year. It was submitted that the business employs a diverse range of building professionals and skilled tradespeople, including structural engineers and licenced builders. It was also submitted that Buildfix had advertised on various job boards for the position without success.

6. The submission also submitted that if the applicant ceased to be employed it would have not only a negative impact on the business, but would also impact Australian business interests; it listed a few negative impacts as follows:

   ·     Loss of revenue which affects the current and future employment of Australian employees, as the business will not have the resources to find a suitable and experienced project manager, meaning possible redundancies and shortage of skills, creating an overworked workforce;

   ·     Loss of contracts / projects due to shortage of staff and skilled employees not performing to the standards the clients have now come to expect;

   ·     Delays in repairs of thousands of Australian homes that Mr Elliott has been working on;

   ·     Loss of revenue as the business will need to advertise and go through the recruitment process again to find a suitable candidate; an

   ·     If the business is unable to deliver the resources its clients need, this work can easily go offshore.

7. At the hearing Mr Evensen stated he is Buildfix’s business manager and he helps Mr Stewart run the business more on the operational side than the technical side. He has worked for the business for nearly 3 years. He explained further about Buildfix’s innovative methods to repair homes being Geopoly, Helicalbar and DampBlock. The Tribunal referred to other companies using other fillers like Geopoly and Mr Evensen stated that there are 2 other players in the market, Mainmark and Resinject. Buildfix work is in the residential market along with Resinject while Mainmark is in the commercial market repairing things such as roads and bridges. He believes that Buildfix does more jobs than Resinject. Buildfix is the only business that uses Geopoly. It is a resin with 2 parts, one is off the shelf and the polyurethane is proprietary and is where the innovation is. They have an in-house chemical engineer who adjusts the components that make up the polyurethane (the recipe) and, depending on what is primarily added, can affect the reaction such as how much it expands and what it is used for. With the expansion awareness of external factors on the site is required, such as soil and moisture. The less reaction the more chemical is used which affects price and inventory.

8. At the hearing Mr Evensen stated that the Helicalbars, which are stainless steel, are used within the bricks or mortar at weak points so when the house starts to move the bars hold the bricks together so a crack does not open up. The bars are manufactured for Buildfix in the United Kingdom to their specifications. The bars come with about 11 repair methods which is where the innovation is. It is how they use the bars that is innovative such as the location they are used and the use in conjunction with the Geopoly. The competitors do not use the bars as they only use the Geopoly equivalent; the use of the bars and Geopoly makes Buildfix different.

9. At the hearing Mr Evensen stated that DampBlock is great as the solvent used by Buildfix in damp injections which form a chemical damp barrier to water and not the usual petrol chemical solvent. This is better as it has no toxic fumes and is good for the environment.

10. At the hearing Mr Evensen stated that the applicant has been with the business nearly from the beginning and has been part of the development of these products. The business wants to keep improving its methods and the applicant is an integral part because of his experience and expertise. There is no qualification for technicians in this market as the business invented the process. Buildfix is the market as they produce technicians with the skills to use the products and processes through their training and mentoring. Training is a lengthy process as there is a 3-month period before an employee is given the responsibility for a job. The applicant’s role is to train, mentor and supervise employees as he understands how the proprietary products and process are used and can use them. He was there as the process and products were developed.

11. At the hearing the Tribunal asked Mr Evensen what issues Buildfix would face if the applicant could no longer work for the business and Mr Evensen stated that the business has 196 jobs in the pipeline, valued at $1.1 million, and when he checked the day before the hearing there were 12 jobs in one day. The calendar indicates that there is a backlog of 8 weeks within the current capacity. To overcome the backlog, he would like to employ 3 more employees but cannot because of the uncertainty over the applicant’s visa. Buildfix currently employs 28 employees, 4 are office staff, 4 are engineers and the remainder are technicians and without the applicant, although he cannot tell at the moment the effect on employees, work would be at risk and, therefore, also staffing rates.

12. At the hearing the Tribunal asked if there were any other reasons why the applicant is important to the company and he said the training is important as they do not just want to help the company but change the industry. With the training, the business’s employees have a better understanding of the issues in repairing homes and what can be done even when they move on from Buildfix. Mr Evensen further stated that the applicant is very profitable for the business and they cannot find the experience elsewhere without a 5-year investment. They have tried to find someone else as they have to evaluate their options but they were not successful in the recruitment. Mr Evensen stated that they did try to employ someone to be trained in the role and he is not sure that they could find someone with all of the applicant’s experience, skills and attitude. They have plans for expansion and have tested the market in Melbourne. They started to test the market before the COVID-19 pandemic, but had to wait, and will start testing again from 1 February 2022. The applicant will train onsite in Melbourne and support and supervise through WhatsApp as he does with Queensland employees. When going into a new market the business sends its most trusted employee to do the first few jobs, which is the applicant. Eventually they would like to be across Australia, and they would like to be able to provide services to remote areas.

Marlee Johansen’s evidence

1. Provided to the Department was a reference dated 9 January 2019 from Marlee Johansen, a nurse employed by the Royal Flying Doctor Services and neighbour of the applicant. Ms Johansen stated in the reference that the applicant often helps her and her family around the home. The applicant has been a support for her both socially and emotionally and is invited each year by her mother Leonie Abbott and her stepfather Dave Abbott to attend Christmas. Ms Johansen’s mother, Mrs Leonie Abbott, refers to the applicant as her Irish son and she refers to him as her Irish brother.

2. Provided to the Tribunal was a statutory declaration dated 10 January 2022 of Ms Johansen which refers to the assistance the applicant is still providing her mother and stepfather during most of his spare time. Ms Johansen also stated that during the COVID-19 pandemic she has not been able to regularly visit as she is a frontline worker, both as a nurse and patient transport and is restricted in her travel. She also stated that she does not have the strength or the knowledge to provide the assistance to her parents that the applicant provides. Further, Ms Johansen stated that if the applicant was not assisting her mother and stepfather then they would lose their farm as her stepfather is no longer able to manage as he used to.

David Abbott’s evidence

1. Provided to the Department was a reference dated 17 January 2019 from David Abbott who stated that he has known the applicant for 3 years and got to know him after hearing how the applicant helped his stepdaughter, Ms Johansen. He invited the applicant to his home where they got to know each other. The applicant would help Mr Abbott with small projects around his home without expecting any benefit. Mr Abbott also stated that his wife Mrs Leonie Abbott started to invite the applicant to their family Christmas. Mr Abbott also referred to other assistance provided by the applicant including helping to move furniture to the Abbotts’ new home on a farm at O’Connell 3 hours from Sydney. At the farm the applicant also helped with fencing, pulling up dead trees, moving animals and helping Mrs Abbott with domestic duties. The applicant also helped Mr Abbott’s daughter’s grandmother by taking her electric scooter back to Sydney to sell for them.

2. Also provided to the Department was the statutory declaration dated 22 February 2019 of David Abbott in which he stated that in 2017 he and Mrs Abbott decided to retire and settle on a small farm. They have plans to continue to expand stock and make improvements to the property to better manage their animals. Mr Abbott has a daughter who lives in the United Kingdom with her partner and now 2 children. Mrs Abbott has a daughter, Ms Johansen, who lives in Sydney with her partner. Mr Abbott further stated that as he and his wife continued to age, they have found it difficult to manage the physicality of the animals and maintenance of their home and farm. The sheep on the farm are far more powerful than what he and his wife can manage on their own.

3. Mr Abbott further stated in the statutory declaration of February 2019 that he met the applicant in 2016 and they developed a strong relationship which he values as he has felt isolated after moving to the country. He finds it easy to talk to the applicant, even about losing his farm due to upcoming surgery, and the applicant has become his best friend and even more like a son. Mr Abbott stated that the applicant helps him mentally with their constant chats. He would be lost without the applicant’s assistance around the farm. Mr Abbott also stated that he has been advised to postpone surgery on his joints until he is older and the applicant’s assistance around the farm means he can do this. Without the applicant’s assistance, the farm and animals will be neglected leading to a loss of animals and financial loss to the Abbotts. Mr Abbott stated that the applicant will support them while he recovers from his surgery.

4. Mr Abbott stated in the February 2019 statutory declaration that they cannot afford the cost of a farm hand so they rely on the applicant heavily. The applicant, on a regular fortnightly basis, helps with fencing, grass cutting, tree removal, mowing, creating bales of hay, building and maintenance of pens and sheds, herding and handling of animals, drenching, docking and castration as well as repairing storm damage. The applicant’s help will ensure that the Abbotts can stay on their property and expand the farm. Mr Abbott also stated that the applicant prevents them from incurring social and psychological distress due to isolation.

5. Provided to the Tribunal was another statutory declaration dated 8 January 2022 of Mr Abbott in which he stated that the applicant provides tremendous assistance around the farm, both with the animals but also with repairs to fences, water troughs and roofs and he also cleans gutters. The applicant also cut an entire winter’s worth of wood as Mr Abbott cannot use a chainsaw anymore. Mr Abbott stated that as he is on a pension, he could not afford to pay someone to do the work the applicant does. Mr Abbott also stated that he is emotionally supported by the applicant as he suffers depression at times. The applicant is like a son. Lockdown was hard for the Abbotts as Ms Johansen could not visit because of her frontline work including shift work but the applicant continued to visit and when he could not visit during lockdown the applicant called every second day.

Leonie Abbott’s evidence

1. Provided to the Department was a reference dated 12 January 2019 from Leonie Abbott, mother of Ms Johansen, who stated that she had known the applicant for 3 years. Mrs Abbott stated that on several occasions the applicant has driven to their farm to help Mr Abbott with things he cannot physically manage such as pulling down trees, instilling electronics in their home and assisting with farm animals. Mrs Abbott also stated that they love the applicant dearly and consider him part of the family.

2. Provided to the Department was a statutory declaration dated 22 February 2019 of Mrs Abbott which confirmed what was stated in Mr Abbott’s reference set out above. Mrs Abbott stated that her spouse will need surgery in a couple of years’ time, and her daughter will not be able to help as she will be studying a 4-year course and they cannot afford a farm hand. Mrs Abbott also stated that she has not been able to meet and form friendships as her closest neighbours live too far away. He mother used to live with them but moved back to live with her brother as she was not enjoying the country. Mrs Abbott assists financially with her mother’s care but without the applicant’s help she would not be able to continue this. Mrs Abbott also stated that without the applicant she would struggle with the psychological and physical distress of watching her spouse struggle with tasks he could perform as a young man and she would put herself at risk of injury by helping him. Further, the applicant’s help will allow them to visit her stepdaughter in the United Kingdom. The applicant also picks up animal food which weighs 25 kilos, reducing her spouse’s lifting and driving.

3. Provided to the Tribunal was another statutory declaration dated 8 January 2022 of Mrs Abbott in which she stated that the COVID-19 pandemic hit them hard and during lockdown when no one could travel the applicant called her spouse to make sure he was OK. Her daughter could not visit due to being a frontline worker and the stress was lifted from her daughter as she knew the applicant would visit. Mrs Abbott referred to her spouse’s medical needs including injuries to his frozen shoulder, damaged ligaments, a heart condition needing 2 stents, asthma and depression. Mr Abbott also has less upper body strength now to do farm jobs.

The applicant’s parents’ evidence

1. Provided to the Department was a statutory declaration dated 17 January 2019 from the applicant’s parents, James and Helen Elliot, which stated that he is one of 5 children and in his teenage years he had difficulty adapting to adolescence and mixed with the wrong crowd and made decisions he otherwise would not have. They also state he has changed his ways and adapted to Australian life, working hard for Buildfix and making new friends.

The applicant’s oral evidence

1. At the hearing, the applicant stated that the Abbotts are still living on the farm. Mrs Abbott is 63 years old and Mr Abbott is 67 or 68 years old. He is not aware that Mr Abbott is going to retire. He visits them 2 to 3 times a month. He confirmed that he helps with the upkeep of the farm by cutting paddocks, moving cows between fields and drenching anything which is hard for Mr Abbott to do with the problems he has with his shoulder and ankles. The applicant confirmed that the Abbotts are concerned that with Mr Abbott’s health conditions and age he may have to retire from the farm and that this concerns the Abbots as they live about half an hour from Bathurst. When Mr Abbott had his heart attack 2 years ago it was a scare.

2. The applicant further stated that the Abbotts moved from North Richmond to the farm and they will not move to town any time soon. He goes to help them out as family and to keep them company. They are his Australian family and he helps them all he can as their daughter is a frontline worker who transports COVID patients; he provides them comfort as well.

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

2. Although the Tribunal is not bound by Departmental policy, it has had regard to the elements emphasised in policy in terms of the exercise of discretion. In particular, the policy guidelines in ‘Sch4/ 4020 - The Integrity PIC’ state the following in respect of compelling and compassionate circumstances:

   37 Compelling and/or compassionate circumstances…

   37.2 Compelling circumstances affecting the interests of Australia 4020(4)(a) …

   There may be compelling circumstances affecting the interests of Australia if:

   ·     Australia's trade or business opportunities would be adversely affected were the person not granted the visa (Note: under policy gaining employer sponsorship is not considered sufficient grounds for a waiver);

   ·     Australia's relationship with a foreign government would be damaged were the person not granted the visa; or

   ·     Australia would miss out on a significant benefit that the person could contribute to Australia's business, economic, cultural or other development (for example, a special skill that is highly sought after in Australia) if the person was not granted the visa.

3. It is Departmental policy that compelling circumstances affecting the interests of Australia would not include circumstances if the non-citizen merely claims that, if granted the visa, they would:

   ·     work and pay taxes in Australia or

   ·     pay fees to an education provider or

   ·     spend money in Australia.

   37.3 Compassionate or compelling circumstances affecting the interests of an Australian resident, permanent resident or eligible New Zealand citizen 4020(4)(b) …

   The circumstances for consideration must be of compassionate or compelling nature in the way they affect the Australian citizen, permanent resident, or eligible New Zealand citizen. Compassionate or compelling circumstances that affect the applicant are not relevant for consideration unless they also directly affect an Australian citizen, permanent resident or eligible New Zealand citizen. The wording of PIC 4020(4)(b) requires that either compassionate or compelling circumstances exist that affect the interests of an Australian citizen, permanent resident or eligible New Zealand citizen. To waive the requirements of any or all of PIC 4020(1) and/or (2), the applicant's claims must have a compelling or compassionate element particular to that individual case that are beyond those usually present in that visa caseload.

4. The Tribunal will first consider PIC 4020(4)(a) and whether there are compelling circumstances that affect the interests of Australia. The applicant is well regarded by his current employer and business sponsor, Buildfix. The Tribunal is satisfied that the applicant is important to the business’s success through his skills as a project manager and integral to the business’s training. However, the uniqueness of the product and processes used to repair residential buildings belongs to the business and would not be affected if the applicant were not to be granted the visa as it is not a unique skill the applicant has. The Tribunal accepts that the business will be inconvenienced and may have to replace the applicant with more than one person, but the Tribunal is not satisfied that the retention of Australian jobs in Buildfix is reliant on the applicant, rather than the business itself, particularly in light of the demand for the business’s services. Buildfix may be inconvenienced and lose some custom but due to the high demand of its services and as there is, according to Mr Evensen, only one main competitor Buildfix is likely to recover from the loss of the applicant.

5. Further, the requirements are that the interests of Australia are affected not just those of one business. The Tribunal has considered policy and is not satisfied on the evidence that: Australia would miss out on trade or business opportunities; Australia’s relationship with a foreign government would be damaged; or that Australia would miss out on a significant benefit that would contribute to Australia’s business, economic, cultural and other development, if the applicant was not granted the visa.

6. The Tribunal will now consider PIC 4020(4)(b) and whether there are compassionate or compelling circumstances that affect the interests of an Australian citizen, Australian permanent resident or an eligible New Zealand citizen.

7. The Tribunal notes that according to the Macquarie Dictionary Online the term ‘compelling’ is defined to mean: ‘1. demanding attention or interest… 2. convincing: a compelling argument’. It defines ‘compassionate’ to mean: ‘1. having or showing compassion. 2. on the grounds of compassion: compassionate leave… 4. to have compassion for; pity’.

8. The Tribunal accepts the extensive evidence of the Abbotts and Ms Johansen as to the importance of the applicant to supporting the Abbotts in remaining on the farm. The applicant performs numerous and significant physical tasks around the farm both in relation to the animals but also the farm infrastructure that can no longer be performed by the Abbotts themselves. This ongoing support allows the Abbotts to continue to make an income but more importantly to remain in their home. The Abbotts are isolated from their neighbours and other family members due to the location of the farm. The applicant’s ongoing support and communication also provides much needed emotional and mental support particularly for Mr Abbott. The Tribunal is satisfied that support from health or social services would not be sufficient to allow the Abbotts to remain in their home due to their location and the need for physical support with the work around the farm. Any regional social and health resources that would have been required by the Abbotts to remain in their home can be allocated elsewhere. The Tribunal accepts that even if Ms Johansen was more available, she would not be able to provide the physical support around the farm that the applicant does. Therefore, the applicant’s support of the Abbotts allows Ms Johansen to continue her important frontline work as a nurse and in COVID patient transport without the stress of being concerned about her mother and stepfather.

9. On the above the Tribunal is satisfied that there are compassionate circumstances that affect the interests of Australian citizens, being the Abbotts and Ms Johansen, and that these compassionate circumstances justify the grant of the visa.

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

Has the applicant satisfied the identity requirements?

1. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.  

2. There is no evidence before the Tribunal to suggest that there is any issue with applicant’s identity. Both the Department and the Tribunal have been provided with a copy of the detail pages of the applicant’s passport.

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

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

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

2. There is no evidence before the Tribunal to show that the applicant has been refused a visa in the relevant period because of a failure to satisfy PIC 4020(2A).

3. On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl 482.217.

DECISION

1. The Tribunal remits the application for a Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 482 - Temporary Skill Shortage visa:

• public interest criterion 4020 for the purposes of cl 482.217 of Schedule 2 to the Regulations.

Namoi Dougall
Member

ATTACHMENT

Migration Regulations 1994

Schedule 4

1. (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.

…