Griffin (Migration)

[2022] AATA 4705

Griffin (Migration) [2022] AATA 4705 (13 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gavin Thomas Griffin

CASE NUMBER:  2206336

HOME AFFAIRS REFERENCE:               BCC2022/1022566

MEMBER:L. Symons

DATE:13 December 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.

Statement made on 13 December 2022 at 10:33am

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – misleading information with the previous Working Holiday visa application – specified work in regional Australia – previous visa cancelled – compassionate or compelling circumstances – applicant seeking COVID-19 booster vaccine – partner remaining in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 57, 65, 109, 359
Migration Regulations 1994, Schedule 2, cl 602.218; 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
Plaintiff M64/2015 v MIBP [2015] HCA 50
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 14 April 2022 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied to the Department of Home Affairs (the Department) for the visa on 14 March 2022. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 602.218 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because he did not meet the requirements of Public Interest Criteria (PIC) 4020 as he was found to have provided the Department with false or misleading information in relation to a visa that he held in the period of 12 months before this visa application was made.

3. On 29 April 2022, the applicant applied to the Tribunal for a review of that decision.

4. The applicant appeared before the Tribunal, via telephone, on 9 December 2022 to give evidence and present arguments.

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

   consideration of claims and evidence AND FINDINGS

6. The issue in this review is whether the visa applicant meets PIC 4020 as required by cl 602.218 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).

7. 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?

8. 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.

9. 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.

10. 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.

11. The records of the Department indicate that the applicant was granted a subclass 417 Working Holiday visa on 3 October 2019 for a period of 12 months. He arrived in Australia on 21 November 2019. On 22 June 2020, he applied for a second subclass 417 Working Holiday visa and stated that he had undertaken 3 months of specified work whilst the holder of the first subclass 417 Working Holiday visa. He claimed that he was employed by Tradeconnex Pty Ltd. He was granted a second subclass 417 Working Holiday visa on 22 June 2020. The information he provided the Department in relation to his employment at Tradeconnex Pty Ltd was subsequently verified and found to be incorrect.

12. On 10 August 2021, the Department sent the applicant a Notice of Intention to Consider Cancellation (NOITCC) of his visa under s.109 of the Act on the basis that he may have provided the Department with incorrect information. He was invited to comment on the possible non-compliance with s 101(b) of the Act within 14 days of receipt of the letter. No response was received. On 8 September 2021, the Department cancelled his visa. On 15 September 2021, he applied to the Tribunal for a review of that decision.

13. On 1 November 2021, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act and invited him to give information in writing by 15 November 2021. He was informed that if the Tribunal did not receive the information within the period allowed or as extended it could make a decision on the review without taking any further action to obtain the information and he would also lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. The Tribunal did not receive a response by the due date and proceeded to make a decision on the review without taking further steps to obtain the information. On 17 November 2021, the Tribunal (differently constituted) affirmed the decision made by the Department.

14. On 14 March 2022, the applicant applied for a subclass 602 Medical Treatment visa. In his visa application, he stated that he had been vaccinated with the Pfizer Cominarty Covid-19 vaccine and needs to have a booster vaccine before returning to Ireland. In support of his visa application, he filed a Form 1507 Evidence of Intended Medical Treatment which indicated that he was scheduled to receive a Covid-19 booster vaccine on 3 April 2022. On 13 April 2022, he filed a Notification of Changes in  Circumstances in which he indicated that the date for his Covid-19 booster vaccine had been rescheduled to 28 April 2022.

15. On 7 April 2022, the Department wrote to the applicant, pursuant to s.57 of the Act, and invited him to comment on adverse information by 14 April 2022. The letter was sent to his lawyer by email on 7 April 2022. On 12 April 2022, the Department received a written response from the applicant’s lawyers which indicated that the applicant was not eligible to receive the booster vaccine until around 9 April 2022. The submission stated, in part, “the applicant intends to stay in Australia to finalise this treatment and to depart Australia upon completion of this treatment”.   

16.   The submission from the applicant’s lawyer stated that “the applicant provided false and misleading information in a material particular in relation to a visa that he held in the 12 months prior to this application being made. However, he requests that this criterion be waived on the basis that there are compelling circumstances affecting the interests of Australia” as “it would be in the best interests of the Australian community to allow the applicant to remain in Australia for a brief amount of time, so that he is able to attend his appointment to receive a COVID-19 booster vaccine and become fully ‘up-to-date’ with his COVID-19 protection”.

1. The submission stated that “it would not be in the best interests of Australia to allow people with weakened COVID-19 immunity to continue in the community (potentially increasing the risk of transmission and spread of the virus locally) as well as to travel out of Australia and into a foreign country. As a member of the global community’s fight against COVID-19, it is imperative that all people that Australia lets outside of its borders are sufficiently vaccinated to prevent the spread of the virus. We would expect the same of other countries within the international community to offer Australia the same courtesy”.

2. The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 14 April 2022 which indicates that the delegate was not satisfied that he met the requirements of PIC 4020(1). The delegate considered the submissions made by his lawyer but was not satisfied that there were grounds to justify the waiver of PIC 4020 and the grant of the visa.

3. During the hearing, the Tribunal discussed with the applicant the requirements of PIC 4020 and cl.602.218. He gave evidence that while the holder of his first subclass 417 Working Holiday visa he worked at a construction plant in Sydney and did not do any specific work in regional Australia. Information provided in his application for a second subclass 417 Working Holiday visa that he worked for Tradeconnex Pty Ltd at the Yarrenlea Solar Farm, Yarrenlea, Queensland, 4356, was not correct. He conceded that this false information was provided to the Department for the purpose of obtaining a second 417 Working Holiday visa.

4. The applicant stated that a friend told him about a man named “Golden Fish” and he contacted this man. He is not a migration agent. He paid him $1,000.00 to prepare his visa application. He did not provide him with instructions in relation to the contents of the visa application. He was not shown the visa application after it was prepared. He was aware that he needed to have done at least 3 months of specific work in regional Australia to be entitled to a grant of a second subclass 417 Working Holiday visa. His second subclass 417 Working Holiday visa was granted on 22 June 2020 and subsequently cancelled on 8 September 2021. His application for review to the Tribunal was unsuccessful.

5. The applicant gave evidence that he was aware that his application for a subclass 602 Medical Treatment visa was refused by the Department because he did not satisfy PIC 4020 as he had provided false information to the Department in his application for a second subclass 417 Working Holiday visa. When asked whether he wished to say anything about whether or not he satisfied PIC 4020, he responded that he had nothing to say.

6. The Tribunal has considered the submission made by the applicant’s lawyer to the Department.

7. Having considered all the evidence and the submission, the Tribunal finds that the applicant was granted a second subclass 417 Working Holiday visa on 22 June 2020 and this visa was cancelled on 8 September 2021. The Tribunal finds that he applied for a subclass 602 Medical Treatment visa on 14 March 2022. There is evidence before the Tribunal that he has given, or caused to be given, to the Minister information that is false or misleading in a material particular in relation to the visa that he held in the 12 months before the application was made and the Tribunal finds according. Therefore, the Tribunal finds that the applicant does not satisfy the requirements of PIC 4020(1).

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

8. 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), 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.

9. 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.

10. The Tribunal discussed with the applicant the provisions of PIC 4020(4) and asked him whether there are any compelling circumstances that affect the interests of Australia that justify the granting of the visa. He responded no. He got the Covid-19 booster vaccine about a month after he applied for this visa. When asked whether there are any compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justify the granting of the visa, he responded no, just his previous employer. He was last employed on 8 September 2021 and has not worked since then as he has no work rights. He has been financially supported by his girlfriend since he stopped working. He did not provide the Tribunal with any evidence from his previous employer.

27.   The applicant’s lawyer submitted to the Department that there are compelling circumstances affecting the interests of Australia” as “it would be in the best interests of the Australian community to allow the applicant to remain in Australia for a brief amount of time, so that he is able to attend his appointment to receive a COVID-19 booster vaccine and become fully ‘up-to-date’ with his COVID-19 protection”.

1. The submission stated that “it would not be in the best interests of Australia to allow people with weakened COVID-19 immunity to continue in the community (potentially increasing the risk of transmission and spread of the virus locally) as well as to travel out of Australia and into a foreign country. As a member of the global community’s fight against COVID-19, it is imperative that all people that Australia lets outside of its borders are sufficiently vaccinated to prevent the spread of the virus. We would expect the same of other countries within the international community to offer Australia the same courtesy”.

2. The Tribunal accepts that it is in the interests of Australia that members of the community are vaccinated against the Covid-19 virus so as to limit the risk of transmission and spread of the virus locally and internationally if they travel overseas. Whilst this is a compelling circumstance that affects the interests of Australia, the Tribunal is not satisfied that it justifies the exercise of its discretion to waive the requirements of PIC 4020(1).  

3. Therefore, the Tribunal finds that the applicant does not satisfy the requirements of PIC 4020.

   Certificate under s.375A of the Act

4. There is a non-disclosure Certificate, made pursuant to s.375A of the Act, on the Department’s file. It relates to information on two pages in the file. The Department has indicated that the disclosure of the information on those two pages would be contrary to the public interest because it could disclose or enable a person to ascertain the existence or identity of a confidential source of information or disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods or where information was provided ‘in confidence’, the provider of the information has not consented to the disclosure of the information.

5. The information relates to employment verification checks made by the Department with Tradeconnex Pty Ltd in relation to the applicant and other persons. The Tribunal invited the applicant to make submissions on the validity of the s.375A Certificate and he declined to do so.

6. The s.375A Certificate appears, on its face, to be valid. The Tribunal notes that the relevant information from Tradeconnex Pty Ltd relating to the applicant has already been disclosed to him in the NOITCC of his second subclass 417 Working Holiday visa. In submissions to the Department, his lawyer conceded that he “provided false and misleading information in a material particular in relation to a visa that he held in the 12 months prior to this application being made”.

   CONCLUSION

7. In view of the above, the applicant does not satisfy PIC 4020 for the purposes of cl 602.218.

   decision

8. The Tribunal affirms the decision not to grant the applicant a Medical Treatment (Visitor) (Class UB) visa.

   L. Symons
   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.

   …