Gervais (Migration)

[2021] AATA 3491

Gervais (Migration) [2021] AATA 3491 (27 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Thomas Pierre Alexandre Gervais

CASE NUMBER:  1836275

HOME AFFAIRS REFERENCE(S):          BCC2017/3120955

MEMBER:Penelope Hunter

DATE:27 August 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant an  Employer Nomination (Permanent) visa.

Statement made on 27 August 2021 at 11:08am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) visa – Subclass 186 Employer Nomination Scheme – no approved nomination – bogus document with the visa application – false educational qualifications – compelling or compassionate circumstances – applicant left sponsoring employer – employer withdrew sponsorship – applicant’s crucial role with new employer – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 5(1), 65, 359
Migration Regulations 1994, Schedule 2, cls 186.213, 186.223; Schedule 4, Public Interest Criterion 4020; r 1.03

CASES

Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Mudiyanselage v MIAC [2012] FMCA 887
Plaintiff M64/2015 v MIBP [2015] HCA 50
Trivedi v MIBP [2014] FCAFC 42

Vyas v MIMAC [2013] FCCA 1226

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 November 2018 to refuse to grant the applicant an Employer Nomination (Permanent) visa under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 29 August 2017. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.186.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate found that Public Interest Criterion (PIC) 4020 of Schedule 4 to the Regulations was not met. A copy of the delegate’s decision was provided to the Tribunal with the application for review.

3. The applicant appeared before the Tribunal on 20 August 2021, via MS Teams video to give evidence and present arguments. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.

4. Following the hearing, the applicant also provided to the Tribunal a letter, dated 24 August 2021, from Anthony Moore, regarding evidence of his current employment.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. There are two issues that have arisen in relation to the review application. The first is whether in relation to the position to which the application is made, the applicant satisfies cl.186.223 for the grant of the visa. The second is whether, for the purposes of cl.186.213, the applicant meets the requirements of PIC 4020(1) and if not, whether PIC 4020(1) should be waived.

   The position to which the application relates

7. Clause 186.223(3) of Schedule 2 to the Regulations requires that the nomination has not been withdrawn. Further, cl.186.223(5) requires that the position is still open to the applicant.

8. The applicant applied for the Employer Nomination Scheme (Subclass 186) visa under review on the basis of a nomination by his employer M.R.V.L. Investments Pty Ltd, in the position of chef (ANZSCO 351311). The applicant told the Tribunal at the hearing that he was no longer working for his former employer, and that he had ceased working for them around September 2018. For some time he had been working for a new business, Frankie’s Pizza, as a head chef/pizza chef. The letter from Anthony Moore, People Director, for the company Smart & Mazzocca Pty Ltd t/as Frankies confirmed that the applicant had been employed in this different business since 2019.

9. Within the Department file before the Tribunal was correspondence from the representative from the applicant’s former employer. The Tribunal discussed the information contained in this correspondence with the applicant pursuant to the provisions of s.359AA of the Act. The applicant was advised that the relevant information was that on 14 September 2018, M.R.V.L. Investments Pty Ltd advised the Department that it no longer wished to support the permanent visa application of the applicant and formally withdrew its support. Further information was provided that the applicant’s employment was terminated as at 22 September 2018. The applicant was advised that the information was relevant as it was a requirement for the grant of the visa under cl.186.223 that the position still be available to the applicant and that the nomination had not been withdrawn. The applicant was further advised that if the Tribunal relied upon the information it may find that he did not satisfy cl.186.223(3) and cl.186.223(5) which was a requirement for the grant of a Subclass 186 visa and it would be the reason or a part of the reason for the decision under review being affirmed. The applicant did not seek additional time and elected to respond to the information immediately. He confirmed that his employer had withdrawn support for the visa when issues had arisen with the sponsorship. He felt this was unfair as he had previously been working for M.R.V.L. Investments Pty Ltd for more than five years and had done a very good job. He was disappointed that they did not support him.

10. Due to the undisputed information that the applicant’s position has been terminated and that his nominating employer has withdrawn the nomination in respect of the applicant, the Tribunal is not satisfied that in respect of the position relevant to the visa application that the position is still available to the applicant, and further finds that the nomination has been subsequently withdrawn by his nominating employer. The letter submitted by the applicant from Anthony Moore does not establish that the applicant is the subject of a further nomination, additionally it is not the relevant nomination referred to the in the visa application under review.

11. For these reasons the applicant does not satisfy cl.186.223(3) and cl.186.223(5) of Schedule 2 and cl.186.223 is not met as a whole.

    Public Interest Criterion (PIC) 4020

12. Relevantly, PIC 4020 in the applicant’s particular circumstances 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).

13. The requirements in PIC 4020(1) 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?

14. 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.

15. 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.

16. 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.

17. As part of his previous Subclass 457 visa application, the applicant provided evidence of his qualifications being a document named ‘Brevet de Maitrise from Chambre De Metiers De Paris’ dated 13 July 2010, and a document titled ‘Official Academic Transcript of Thomas Pierre Alexander Gervais for “Advanced Diploma in Professional Cookery”’. In addition, in his application for the visa under review, the applicant set out in the visa application form that he held an Advanced Diploma in Professional Cookery from Chambre des Metiers De Paris, France and the course duration was for the period 1 September 2007 to 30 June 2010. Departmental checks and investigations to verify the documents revealed that there was no trace of the applicant in their system, therefore the documents were considered to be bogus.

18. By letter dated 24 August 2018, the Department invited the applicant to respond on the adverse information regarding his documents. The applicant was requested to provide a response within 28 days. The delegate records that they did not receive any further comment from the applicant, and on 27 November 2018 a decision was made to refuse the visa.

19. At the hearing the applicant was invited to comment on the document and the Department finding as set out in the delegate’s decision record. He confirmed to the Tribunal that the Advanced Diploma he had submitted to the Department was not a genuine document, and that he had not completed the qualification. The applicant said that he was young, around 23 years old, and he was very excited to be sponsored by his employer for a Subclass 457 visa. As part of this process they had asked him for a diploma qualification, he claimed that there was no such relevant qualification for his role as a pizza chef and his training had all taken place on the job. The applicant described himself as stupid and not mature enough to understand the consequences and provided a non-genuine document. The applicant said that it was not the case that he was claiming to have skills that he did not genuinely possess. He had been trained as a pizza chef since a teenager. The human resources department of his nominating employer did not inform him that he could rely upon his work experience to satisfy the occupational requirements of the position and he believed that they had also let him down.

20. Also contained with the Department file for the applicant was a certificate issued under s.375A of the Act, which identified that certain folios in the Department file were confidential and not to be disclosed because it would be contrary to public interest. A copy of the certificate was provided to the applicant, and he acknowledged receipt at the hearing. The Tribunal told the applicant that it did not consider that the certificate, dated 1 January 2019, was valid. This was because the reason identified for the non-disclosure, internal processing document, was not considered a valid reason for a document to be kept confidential. Furthermore, the certificate had not been signed, and a typed or printed name as found on the certificate did not meet the requirement for a validly executed certificate. The applicant was invited to comment on the certificate and he did not dispute the Tribunal’s finding. 

21. The Tribunal informed the applicant that the substance of the information covered by the certificate had already been disclosed to him by the Department in the delegate’s decision record. That is, that the academic qualification he had produced from Chambre De Metiers De Paris dated 13 July 2010, the Advanced Diploma in Professional Cookery, could not be verified. Furthermore, the applicant had also given the information to the Tribunal on review that the document was not genuine.

22. In relation to the Subclass 457 visa held in the period of 12 months before the application for the visa under review was made, the Tribunal finds on the evidence of the applicant that the Advanced Diploma of Professional Cookery dated 13 July 2010, in the name of the applicant, was not issued by the Chambre De Metiers De Paris. The Tribunal finds that this transcript of record is a counterfeit or has been altered by a person who does not have the authority to do so. The Tribunal accordingly finds that it is a bogus document. Further, on the evidence of the applicant, the Tribunal finds that the applicant does not hold the qualification of an Advanced Diploma of Professional Cookery. The Tribunal further finds that the information provided by the applicant in the visa application under review, that he in fact held this qualification, was false and misleading at the time that it was given, and as it related to his qualification to undertake the nominated position, it was relevant to the criteria that may be considered in making a decision on the application, and it was consequently false and misleading in a material particular.

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

    Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(1)?

24. PIC 4020(2) requires the Tribunal to be satisfied that the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing three 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(2AA).

25. There is no evidence before the Tribunal that the applicant or any member of his family unit has been refused a visa in the relevant period.

26. Therefore, PIC 4020(2) does not apply.

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

27. The requirements of PIC 4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in 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.

28. 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.

29. Guidance on circumstances that may amount to compelling or compassionate circumstances may be found in the Explanatory Statement to SLI 2011, No 13 which introduced PIC 4020, and the Department’s policy guidelines.[1] While not binding, the Tribunal may have regard to the Department’s interpretation and examples of what may constitute compelling or compassionate circumstances.[2]

    [1] Policy – [Sch4 4020] – Public Interest Criterion 4020 – The integrity PIC - Compelling and/or compassionate circumstances (re-issue date 1/1/18).

    [2] Mudiyanselage v MIAC [2012] FMCA 887 where the Court noted it was open for the Tribunal to be guided by Department policy

30. According to the Explanatory Statement it was intended that the granting of the waiver would relate solely to compelling circumstances affecting Australia’s interests, or the compassionate and compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, not the interests of the visa applicant.[3] The types of circumstances that may involve compelling or compassionate reasons for waiving the requirements of PIC 4020 identified in the Explanatory Statement include:

    ·family reasons (for example, unexpected serious or fatal family situations over which the applicant had no control, such as the incapacitation or death of a partner or child or another member of the family unit);

    ·that family members in Australia would be left without financial or emotional support; and

    ·a parent in Australia would be separated from their child (for example, if the child was removed with their non-resident parent and would therefore be subject to an exclusion period).[4]

    [3] Explanatory Statement to SLI 2011, No 13, at 19. The Court in Vyas v MIMAC [2013] FCCA 1226 found the ES to be of assistance in considering the plain words of the waiver provision such that it could not be said that it would be sufficient for the applicants to demonstrate that their circumstances were compelling or compassionate alone, but that there has to be a connection with Australia or an Australian citizen or permanent resident, or eligible New Zealand citizen, because otherwise there would be no utility in having those words in the clause (at [14]).

    [4] Explanatory Statement to SLI 2011, No 13, at 19-20.

31. In addition, the Department’s guidelines suggest that 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 (noting that gaining employer sponsorship is not considered sufficient grounds for a waiver); or

    ·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.[5]

    [5] Policy – [Sch4 4020] – Public Interest Criterion 4020 – The integrity PIC - Compelling and/or compassionate circumstances – Compelling circumstances affecting the interests of Australia (re-issue date 1/1/18).

32. The policy states that compelling circumstances affecting the interests of Australia would not include circumstances where the non-citizen merely claims that, if granted the visa, they would work and pay taxes in Australia, pay fees to an education provider or spend money in Australia.[6]

    [6] Policy – [Sch4 4020] – Public Interest Criterion 4020 – The integrity PIC - Compelling and/or compassionate circumstances Compelling circumstances affecting the interests of Australia (re-issue date 1/1/18).

33. The applicant told the Tribunal that for him an important issue was that after 10 years of building his life in Australia if the visa was refused that he may have to leave. He did not feel like a criminal, he just wanted so much at the time to stay. Since then he had gone on to a role of head chef in a new business, and built a life with his girlfriend. The applicant told the Tribunal that his girlfriend was not an Australian citizen, an Australian resident or eligible New Zealand citizen. The Tribunal accepts that the applicant has spent a considerable time in Australia and that he wishes to remain and build his life with his partner. However, it is not satisfied that these circumstances are a compassionate or compelling circumstance affecting the interest of an Australian citizen, Australian resident or an eligible New Zealand citizen.

1. The applicant also told the Tribunal that in the position of head chef he was very important to his current employer. He claimed that his employer had plans in the future to potentially open up a further five businesses and that he had a good relationship with his employer and there was likely a further position in the business available to him to assist in setting up one of these venues. The applicant also said that it was very difficult to find staff in the hospitality business in Australia due to the impact of COVID-19, and that experienced pizza chefs were in high demand. According to the applicant he had brought a benefit to his employer as he was training many of the staff at his current workplace, many Nepalese kitchenhands, in the skills of the role of pizza chef. The applicant claimed that this was addressing staff shortages within his employer’s business and the industry at large. The letter from Anthony Moore, People Director, of Smart & Mazzocca Pty Ltd t/as Frankies lends support to the applicant’s submissions. It also sets out that the applicant plays a crucial role in the business, and that he has been training and recruiting staff to become pizza chefs, that he possesses managerial skills and is intended to play a pivotal role in the planning and execution of the company’s intention to open five more businesses. It is noted that for the purposes of the Regulations a corporation is not an Australian citizen, and the impact on the company alone would be insufficient to engage the waiver provisions. That is not to say that if the company was adversely affected that there may not be circumstances affecting the interests of Australian citizens or permanent residents or eligible New Zealand citizens. Yet in the particular circumstances presented to the Tribunal, the evidence is that the applicant had been upskilling other staff by way of a contingency plan for the company operations. The company is planning on expanding to a further five venues, on the basis of these plans it would appear, even with the problems for the restaurant industry associated with COVID-19 restrictions, there is no evidence that company is unstable, or likely to fail, or that the employment of its current staff members may be jeopardised if the applicant was refused a visa. The letter of support is general in nature and there is no evidence that any particular Australian citizens, residents or eligible New Zealand citizens may be directly affected. In fact the letter of submission does not address the actual impact of the loss of the applicant on the business, nor does it set out that it would be in a position to nominate or sponsor the applicant for a further visa. The Tribunal must also have regard to the seriousness of the applicant’s conduct in intentionally providing a fraudulent document in order to obtain a permanent visa. Overall, the Tribunal is not satisfied that these further matters claimed by the applicant give rise to compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen that justify the grant of the visa. Nor is it established that Australia’s trade and business opportunities would be adversely affected or that Australia would miss out on a significant benefit.

2. For the above reasons, the Tribunal is also not satisfied that the requirements of PIC 4020(1) should be waived pursuant to PIC 4020(4).

   DECISION

3. The Tribunal affirms the decision not to grant the applicant an  Employer Nomination (Permanent) visa.

   Penelope Hunter
   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.

   …