HARCHAND SINGH (Migration)

[2020] AATA 4988

HARCHAND SINGH (Migration) [2020] AATA 4988 (11 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harchand Singh

CASE NUMBER:  1806678

DIBP REFERENCE(S):  BCC2016/3666820

MEMBER:De-Anne Kelly

DATE:11 November 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 11 November 2020 at 10:38am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) visa – false information – tribunal affirmed nomination refusal – not a genuine employee of sponsor – extensive fuel costs for travel – part time hours inconsistent with sponsor’s claim of full time role – existing full time employee undertaking same role – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5(1), 65, 359AA
Migration Regulations 1994, Schedule 2, cls 187.223(3), 187.233(1), 187.213(1), 187.242, Public Interest Criterion 4020, r 5.19(4)(h)(ii)(B)

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 Immigration on 12 March 2018 to refuse to grant the applicant a Regional Employer Nomination (Permanent) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 3 November 2016. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.187.223(3) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the employer nomination lodged by Singh Hardip & Gurpreet Kaur was refused on 8 February 2018 being the application referred to in cl.187.233(1).

3. The applicant appeared before the Tribunal on 9 July 2020 to give evidence and present arguments. This was a dual hearing of both the employer nomination refusal review and the visa application refusal review.  

4. The applicant was represented in relation to the review by his registered migration agent, Ms Dhamrampreet Kaur (MARN: 1576492) of Brisbane Qld 4000.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue for the Tribunal is whether the applicant satisfies cl.187.213(1) which provides as follows:

   (1) The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4010, 4020 and 4021.

7. The further issue in this review is whether the visa applicant meets public interest criterion 4020 (PIC 4020) as required by cl.187.213(1) above 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).

8. 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). Public interest criterion 4020 is extracted in the attachment to this decision.

   Consent

9. At the commencement of the hearing, the Tribunal asked the nominee, if despite the fact his bank statements were provided with the review documents, he gave consent for his bank statements to be used as evidence in both the employer nomination refusal review and the visa application refusal review. The nominee gave his consent to both requests.

   Public interest criteria 4020

10. At the commencement of the hearing, the Tribunal advised the nominee about the requirements of PIC 4020 and the consequences, such as the inability to lodge another visa application for Australia for three years, for providing false or misleading information in a material particular in relation to the application for the visa. The Tribunal also advised that compassionate or compelling circumstances that affect the interests of Australia or the interests of an Australian citizen or permanent resident could be used to waive the criteria.

    The hearing

11. Mr Hardip Singh lodged the employer nomination in favour of the visa applicant and owns and operates a blueberry farm and advised that they had a genuine need for the full-time position of primary products inspector for the nominee and submitted payroll evidence that he had been employed in a full-time capacity since October 2017.

12. The nominee gave an overview of his duties and tasks on the farm. He starts work around 8.00am and after work around the farm, he takes the quad bike and checks the plants and leaves; fertilisers and mix water; PH in the soil; electrical conductivity; safety instructions for the pickers; pruning; manages contamination and a range of other tasks. He finishes work at approximately 4.30pm. The nominee was asked twice if he worked at another job at night or on weekends and he confirmed that he only works full time at the farm.

13. The Tribunal noted the following fuel amounts purchased on the nominee’s debit card. Although the Tribunal has summarised the purchases for only October, November and December 2019, these monthly fuel purchases go back some time. The Tribunal has noted the registered migration agent in her submission[1] stated that insurance and phone recharge amounts had been included in the original calculations and should be excluded which the Tribunal has taken into account in preparing Table 1.

    [1] 6) Submission from registered migration agent dated 21 September 2020.

    Table 1

Date	Fuel purchases	Amt	Day
30.12.19	Puma - Toormina	38.00	Mon
27.12 19	United Woolgoolga	52.55	Fri
27.12.19	Gold Coast airport 267 km	16.00	Fri
23.12.19	United Charbour Jet Coffs Harbour 49 km	49.70	Mon
23.12.19	Puma Toormina 56 km	26.03	Mon
16.12.19	Puma Toormina 56 km	31.06	Mon
11.12.19	United Mullaway 20.7 km	26.49	Wed
09.12.19	Puma Toormina 56 km	26.67	Mon
02.12.19	Puma Toormina 56 km	28.00	Mon
Total month	294.50
26.11.19	United Mullaway 20.7 km	27.14	Tues
18.11.19	Puma - Toormina	40.52	Mon
12.11.19	United - Mullaway	30.20	Tues
04.11.19	United - Mullaway	47.89	Mon
29.10.19	United - Mullaway	46.25	Tues
Total month	222.00
23.10.19	United - Mullaway	48.53	Wed
21.10.19	Puma - Toormina	26.30	Mon
14.10.19	Puma - Toormina	26.92	Mon
08.10.19	United - Mullaway	30.32	Tues
04.10.19	Bailey Service Centre - Coffs Harbour 49 km	25.31	Fri
02.10.19	BP Chinderah 291 km	25.06	Wed
30.09.19	United Woolgoolga	83.82	Mon
25.09.19	Puma Toormina 56 km	26.40
Total month	292.66	Wed

1. There were  purchases in October 2017 when the nominee first began to be paid by the applicant are for Go Via Eight Mile Plains for amounts such as two payments of $25 on the same day, Monday 23 October 2017; $25 on Wednesday 25 October 2017; $25 on Friday 27 October 2017; $25 on Monday 30 October 2017; $50 on Wednesday 1 November 2017 and so on. Go Via was the name of the Transurban Toll road automatic payment system in Brisbane now called Linkt. This apparent driving back and forth across Brisbane occurred when the nominee was working and being paid on a full-time basis at Upper Corindi NSW some 365 km away. 

2. The Tribunal asked the nominee about the fuel expenses on his bank statement. He said he drives to where they send the fruits and he checks the quality on nearby farms. The Tribunal noted that one of the nearby farms was at the Gold Coast airport. He responded that his mother had visited, and he had to drive her to the airport. The Tribunal asked if he was driving a taxi. He said his mother had visited and he had taken her to new places.

3. The Tribunal put to the employer under s.359AA of the Act that they had advised there was a genuine need for the position and as evidence stated the nominee had filled the position on a full-time basis since October 2017, and submitted a number of payroll summaries, but particularly a payroll summary for the nominee from 4 October 2017 to 18 March 2020, showing weekly payments for full-time work, with unpaid leave taken from 29 November 2017 to 9 January 2018. The particular information was that the nominee appeared to be purchasing hundreds of dollars’ worth of fuel every month and travelling great distances by car rather than working on a full-time basis in the position on the farm, and if the Tribunal accepted that information it may find that there was not a genuine need for the nominator to employ a paid employee to work in the position under the nominator’s direct control and find that r.5.19(4)(h)(ii)(B) is not met.

4. The Tribunal reminded the nominee that he was under caution of PIC 4020 and if it was found his statement that he works full time on the farm, which was material particular to the grant of the visa because it went to the genuine need for the position and the ability of the employer to satisfy r.5.19(4)(h)(ii)(B), was not consistent with the information that he appeared to be purchasing hundreds of dollars’ worth of fuel each month and travelling great distances by car, it may mean that he is providing false and misleading information to the Tribunal. He was invited to respond under s.359AA of the Act and chose to respond in the hearing.

5. The Applicant responded that he has friends and relatives from India, and he needs to pick them up and drop them off, and he needs the fuel for that, and he drives them around. He used to live at Woolgoolga, and he travels by car both ways which is 25 km there and back. He does go interstate and at the time the Tribunal mentioned earlier he was on leave. He has to go to Coffs Harbour which is 25 km both ways to buy groceries; go to the gym, socialise and go clubbing with friends as there is nothing nearby. The fuel cost is so high because nothing is nearby, and he has to travel. He has been working a long time and is very happy with his work; in March there was an increase in his pay, and he gets free accommodation now.

6. The Tribunal does not accept the argument about needing to drive to Coffs Harbour for purchasing groceries as Woolgoolga has a supermarket and an Indian grocery store, so it is well provided with grocery outlets and on the nominee’s own bank statement are numerous debits for groceries bought at the Indian grocery store and Woolworths in Woolgoolga. The Tribunal also does not accept the argument that the applicant needs to travel to Coffs Harbour to go to the gym since there is a debit on his bank statement for ‘Payment by Authority to Nexus Gym - $32”. A Google search finds that Nexus gym is in Woolgoolga NSW.

   Post hearing

7. The employer was invited to make further submissions for the employer nomination review within 14 days or 23 July 2020 however no further information was received by the Tribunal. As it transpired the registered migration agent had provided further documents but had sent them under the case number for this application for review namely 1806678 rather than 1804299, the case file number for the employer nomination review and as such they were not in the employer nomination review file for consideration when the decision to affirm the employer nomination refusal was made on 12 August 2020.

8. The registered migration agent twice requested the Tribunal to re-open the decision on the employer nomination review, but it declined to do so and assured the registered migration agent that the documents would be considered carefully for this review application since they had been sent under this case file number.

9. Documents including the following were received under the case file number for this review at that time:

   1)    Statutory declaration dated 14 July 2020 from the applicant.

   2)    Email from previous registered migration agent confirming appointment at 10.00am Tuesday 9 July 2019.

   3)    E-ticket for Mrs N Kaur arriving Brisbane from 8 August–31 October 2018 and 16 September–25 December 2019.

   4)    Extract from bank statement showing payment to Aurum Migration on 30 September 2019.

   5)    Statutory declaration from Mr K Singh stating that he travelled with the applicant to Sydney from 27 May 2019 and returned on 28 May 2019.

10. In his statutory declaration of 14 July 2020, the applicant stated that during the period from October 2017 until February 2020 he was living in Woolgoolga New South Wales and from March 2020 his employer offered him accommodation on the farm. From October 2017 to September 2018 the applicant’s employer would pick him up and drop him back at his residence however their respective schedules varied thereafter, and he commuted to his farm work using his own vehicle. He was travelling at least 50 km a day and a distance of 250 km per week. He goes on to claim that Woolgoolga is a remote area and has no supermarket so for essential shopping he must travel to Coffs Harbour and also with friends after work for the gym, social gatherings, entertainment and clubbing.

11. He also states that since he lives in the hub of the blueberry industry; he must keep his knowledge updated and drives around other farms in a loop from Grafton to Coffs Harbour and inland as well.

12. He states that the trips to Brisbane and Sydney during 2018–2019 were on account of his mother visiting twice from India during those years. He drove to Brisbane airport and the Gold Coast to pick up and drop off his mother off respectively as well as driving his mother around and exploring various places in New South Wales and Queensland.

13. He also made two trips to Brisbane to visit different migration lawyers firstly in July and September 2019. During 2018–2019 he travelled twice to Sydney for social reasons and a spiritual conference. He claims these trips were made during public holidays and another few trips during his paid leave. He claims his cost was minimal during the times he did not travel interstate but during the six months of his mother’s two stays in Australia the fuel cost increased.

    Invitation to comment

14. On 8 September 2020 the Tribunal sent an invitation as follows:

    In conducting the review, we are required by the Migration Act 1958 to invite you to
    comment on or respond to certain information which we consider would, subject to
    your comments or response, be the reason, or a part of the reason, for affirming the
    decision under review.

    Please note, however, that we have not made up our mind about the information.
    The particulars of the information are:

    - On 12 August 2020, the Tribunal affirmed the decision under review to refuse
    The employer nomination lodged by Singh Hardip & Gurpreet Kaur.

    This information is relevant to the review because this nomination, lodged by Singh
    Hardip & Gurpreet Kaur was the relevant nomination used by yourself in meeting
    cl.187.233(1) of Schedule 2 to the Migration Regulations.

    If we rely on this information in making our decision, we may find that you do not have
    an approved nomination, as required by cl.187.233(3), and affirm the decision under
    review.

    You are invited to give comments on or respond to the above information in writing.
    The Tribunal also has the following information before it:
    - During the hearing on the 9 July 2020, you were asked if you worked at
    another job at night or on weekends and you confirmed that you only work full
    time at the farm.

    - This information was relevant for the nomination application as it went to
    r.5.19(4)(h)(ii)(B) which provides as follows;

    ‘there is a genuine need for the nominator to employ a paid employee to
    work in the position under the nominator’s direct control’.

    o The Tribunal considered that if there was a genuine need for the paid
    employee then the nominated person would be working full time with
    their nominating employer.
    o Your statement that you worked full time for the employer from October
    2017 was provided as evidence to support this genuine need. If the
    Tribunal accepted this explanation, the employer nomination refusal by
    the Department may have been set aside and it may have followed that
    your visa application refusal would be remitted with direction to the
    Department.

    - The Tribunal noted significant fuel amounts purchased on your debit card on
    the bank statements.

    - Your statutory declaration of July 2020 seeks to explain this fuel use as driving
    occurring during your paid leave, but it seems that the driving occurred in
    excess of your paid leave entitlements.
    This information is relevant as it is a requirement of Subsection 1 of Public Interest
    Criteria 4020 (attached to this letter) that you do not provide false and misleading
    information the Tribunal during the review of a Part 5 reviewable decision, a
    requirement of Subsection 1 of Public Interest Criteria 4020.

    If the Tribunal makes the finding that you provided information that is false or
    misleading in a material in relation to the application for the visa, then it
    would be open to the Tribunal to find that you do not meet Public Interest Criteria
    4020, a requirement of cl.187.213(1).

    You are invited to give comments or respond on this information and whether there are
    any 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
    granting of the visa. Your comments or response should be received by 22 September 2020.

15. In response to this invitation the applicant sent documents including the following:

    6)    Submission from registered migration agent dated 21 September 2020.

    7)    Statutory declaration of Amritpreet Singh stating that the applicant is a friend and visits on weekends at their property at Coffs Harbour.

    8)    Spreadsheet with fuel usage from September 2018 to February 2020.

    9)    Booking for accommodation in Sydney from 8–10 June 2019.

    10) Statutory declaration dated 15 September 2020 from Mr H Singh stating that he lived in Runcorn Brisbane until September 2018 when he moved to Woolgoolga and due to financial difficulties he used the applicant’s toll tag from December 2017 to February 2018 including the period of time when the applicant was overseas from December to January.

    11) Advanced Automotive Services “Fuel Consumption Report” which states that a Mitsubishi Lancer averages $45 per week fuel usage travelling a 50 km round trip Monday to Friday.

    12) Statutory declaration dated 20 September 2020 from the employer Mr Hardip Singh stating:

    Harchand Singh, the Applicant for appeal against refusal for subclass 187
    visa, is an asset to our agricultural business. He has been genuinely
    working with us full time since 2017 till date. We are unable to find another
    employee available to us locally with the skills comparable to Harchand
    Singh.
    2. His skills and ability to contribute to our blueberry farming business is
    immense and indispensable. We are a wholly Australian enterprise and
    seeking to export and, the presence of Harchand Singh is in this crucial
    time.
    3. Thus, while we request the Administrative Appeals Tribunal that no adverse
    condition be imposed on Harchand Singh, since we will be filing a new
    Nomination application (if required) to avail the services of the Applicant for our ongoing business.

    13) Statutory declaration from Mr T Singh dated 14 September 2020 stating that he owns Cabs 95 and 796 and that the applicant drove for him until June 2017. He lost some pay-ins because the applicant dropped them in his letterbox and someone from his family took them and “put them somewhere in the house.” At a later date the applicant contacted him about monies owing and he did some calculations and made transactions to re-pay him the money with the dates and amounts as follows; 6 November 2017 $148.05; 14 May 2018 $600; 11 July 2018 $266.70 and 1 October 2018 $299.00. So, these credits showing on the applicant’s bank statement as payment for Cab 95 are, according to Mr T Singh, repayments for monies owed to the applicant.

    14) Letter from a bank officer dated 10 September 2020, stating that the transactions made on a weekend or public holiday will appear on the statement on the next working day.

    Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in a 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. The applicant claims that he commenced full-time employment from 4 October 2017 and took six weeks unpaid leave from 29 November 2017 to 9 January 2018. The Tribunal noted Go Via payments for the toll operator in Brisbane now known as Linkt from 10 October 2017 to 16 February 2018. These Go Via expenses and the dates they were incurred, some with multiple debits on the same day, are shown below.

   Table 2

Date	$ Go Via
10-Oct-17	25
18-Oct-17	25
23-Oct-17	25
23-Oct-17	25
25-Oct-17	25
27-Oct-17	25
30-Oct-17	25
1-Nov-17	50
7-Nov-17	25
15-Nov-17	25
17-Nov-17	25
21-Nov-17	25
21-Nov-17	25
27-Nov-17	25
29-Nov-17	25
4-Dec-17	25
6-Dec-17	25
18-Dec-17	25
3-Jan-18	25
8-Jan-18	25
16-Jan-18	25
22-Jan-18	25
23-Jan-18	25
29-Jan-18	25
30-Jan-18	25
31-Jan-18	25
7-Feb-18	25
12-Feb-18	25
16-Feb-18	25
750

1. The statutory declaration[2] from Mr H Singh states that he had financial difficulties and borrowed the visa applicant’s toll tag for the period September 2017 to February 2018 including the time the applicant was overseas from December 2017 to January 2018.

   [2] 10) Statutory declaration dated 15 September 2020 from Mr H Singh stating that he lived in Runcorn Brisbane until September 2018 when he moved to Woolgoolga and due to financial difficulties he used the applicant’s toll tag from December 2017 to February 2018 including the period of time when the applicant was overseas from December to January.

2. The Tribunal noted credits on the applicant’s bank statements for five payments described as “Deposit Bank of Qld Cab 95” during the period 6 November 2017 to 1 October 2018 when the applicant stated he was working full time on the farm. It is acknowledged that the statutory declaration[3] from Mr T Singh stating that the applicant put some pay-ins in his mail box and a family member took them and “put them somewhere in the house” and it was much later when the applicant rang and inquired about the monies owing. Mr T Singh made four transfers of the money owing. While this may explain four of the payments there is a payment made 6 November 2017 as follows “Deposit Bank of Qld Cab 95 $93.36” for which no explanation is given.

   [3] 13)Statutory declaration from Mr T Singh dated 14 September 2020 stating that he owns Cabs 95 and 796 and that the applicant drove for him until June 2017. He lost some pay-ins because the applicant dropped them in his letterbox and someone from his family took them and “put them somewhere in the house”. At a later date the applicant contacted him about monies owing and he did some calculations and made transactions to re-pay him the money with the dates and amounts as follows: 6 November 2017 - $148.05; 14 May 2018 - $600; 11 July 2018 - $266.70 and 1 October 2018 - $299.00. So, these credits showing on the applicant’s bank statement as payment for Cab 95 are, according to Mr T Singh, repayments for monies owed to the applicant.

3. The applicant provided a spreadsheet summary[4] of his fuel purchases and it is reproduced below with the dates for his mother’s two trips[5] to Australia; the Sydney[6] trips[7] including for the spiritual conference and the visits to Brisbane to the agents[8] highlighted. The Tribunal has accepted this spreadsheet as a record of the fuel expenditure. For completeness it is noted that the registered migration agent in the hearing stated that the applicant visited her office in Brisbane every third week following the lodging of the review application. The Tribunal cannot accept evidence in a hearing from a registered migration agent however it is noted that the applicant has not reiterated this statement concerning the regular visits to the agent. The spreadsheet is shown in the table below:

   Table 3 – Fuel costs from the applicant’s spreadsheet

   [4] 8) Spreadsheet with fuel usage from September 2018 to February 2020.

   [5] 3) E-ticket for Mrs N Kaur arriving Brisbane from 8 August–31 October 2018 and 16 September–25 December 2019.

   [6] 5) Statutory declaration from Mr K Singh stating that he travelled with the applicant to Sydney from 27 May 2019 and returned on 28 May 2019.

   [7] 9) Booking for accommodation in Sydney from 8–10 June 2019.

   [8] 2) Email from previous registered migration agent confirming appointment at 10.00am Tuesday 9 July 2019.

Dates	Fuel Expenditure	Applicant Explanation
6–24 Sep 2018	122.48	Mother’s visit
1–29 Oct 2018	160.73	"
2–27 Nov 2018	212.43
3–21 Dec 2018	151.53
9–29 Jan 2019	88.31
2–25 Feb 2019	75.40
4–25 Mar 2019	101.12
1–29 Apr 2019	126.57
6–31 May 2019	475.52	Sydney visit
7–28 Jun 2019	282.92	"
1–26 Jul 2019	277.77	Agent visit
1–27 Aug 2019	126.92
2–30 Sep 2019	418.36	Mother visit
1–29 Oct 2019	228.85	"
4–26 Nov 2019	144.86	"
2–20 Dec 2019	278.50	"
10–31 Jan 2020	102.65
4–24 Feb 2020	104.50

1. The Tribunal accepts the explanation given for the fuel expenditure for the periods highlighted above but it must consider the other periods as below:

   Table 4 – Fuel costs from the applicant’s spreadsheet

Dates	Fuel Expenditure
2–27 Nov 2018	212.43
3–21 Dec 2018	151.53
9–29 Jan 2019	88.31
2–25 Feb 2019	75.40
4–25 Mar 2019	101.12
1–29 Apr 2019	126.57
1–27 Aug 2019	126.92
10–31 Jan 2020	102.65
4–24 Feb 2020	104.50

1. The Tribunal notes Mr Amritpreet Singh states[9] that the applicant is a friend and visits on weekends at their property at Coffs Harbour. The Tribunal notes that the statutory declaration[10] of the applicant advises that between October 2017 and February 2020 he lived in Woolgoolga NSW and thereafter he lived on the farm. During the periods of time in Table 4 the applicant was living in Woolgoolga and the distance to Coffs Harbour is 25 km so a round trip for the weekend would be 50 km.

   [9] 7) Statutory declaration of Amritpreet Singh stating that the applicant is a friend and visits on weekends at their property at Coffs Harbour.

   [10] 1) Statutory declaration dated 14 July 2020 from the applicant.

2. The “Fuel Consumption Report”[11] states that the applicant’s model of vehicle a Mitsubishi Lancer registration 607VTD “Fuel Consumption Report – Vehicle travels 50km round trip Monday to Friday and averages $45 per week fuel use checked on a 4 gas analyser. Vehicle uses Premium 98 fuel.”

   [11] 11) Advanced Automotive Services “Fuel Consumption Report” which states that a Mitsubishi Lancer averages $45 per week fuel usage travelling 50 km round trip Monday to Friday.

3. A weekend return trip of 50 km to Mr Amritpreet Singh’s home in Coffs Harbour would therefore be $9.00 in fuel cost based on $45 for 250 km of travel. This means a total weekly fuel cost of $54.  This equates to an average monthly fuel cost of $54 x 52 / 12 or $234 per month. It is noted that this is considerably more than the amounts that the applicant has submitted above for the remaining months from November 2018 to February 2020 when he states he started living on the farm.

4. The Tribunal will consider the arguments put forward in the applicant’s statutory declaration of 14 July 2020. His first claim is the round trips of 50 km he had to make from Woolgoolga to and from work on the farm in Upper Corindi would cost $45 per week in fuel according to the “Fuel Consumption Report”[12]. He states that as Woolgoolga is a remote area, he needs to go shopping in Coffs Harbour however the Tribunal has dealt with this and finds that there are supermarkets he patronises in Woolgoolga since there are regular debits on his bank statement for purchases made there.

   [12] 11) Advanced Automotive Services “Fuel Consumption Report” which states that a Mitsubishi Lancer averages $45 per week fuel usage travelling 50 km round trip Monday to Friday.

5. He then states that he must go to ‘Coffs Harbour after work along with friends to the gym, social entertainment, clubbing etc.’ The Tribunal has already established from his bank statement that he patronises Nexus gym which is in Woolgoolga. Nonetheless the Tribunal will consider that he travels back and forth each day Monday to Friday to Coffs Harbour a total distance of 50km per day or 250km per week which has a fuel cost of $45 as advised from the “Fuel Consumption Report”. Including the $54 for travelling back and forth to work this gives a fuel cost of $99 per week.

6. Extrapolating this to a monthly fuel cost gives $429 a month which is not consistent with the monthly fuel calculations the applicant submitted. There is scant evidence that he socialises every night after work in Coffs Harbour so the Tribunal places limited weight on this claim and the fuel cost of $429 per month for these activities are not born out by the total fuel costs submitted in the applicant’s spreadsheet

7. The final claim the applicant makes is:

   Since I work and lives in the hub of the blueberry industry, I need to keep my knowledge updated in this field. Thus I have been periodically visiting other farms when I get the chance to get to get feedback from other people and share my ideas with them. Such visits extend my driving to Grafton where there is a big loop of blueberry farms from Grafton to the other side of Coffs Harbour and many km into the inland.

8. The Tribunal notes that the work is full time 38 hours per week to be worked between 6.00am and 8.00pm and the applicant is to be employed at the farm at Upper Corindi. Whether the applicant spends part of his week driving to other farms is moot as it does not change the fact that his monthly fuel usage shows he has not been attending work on a full time basis.

9. The Tribunal noted the registered migration agent’s submission which restated the evidence that has been presented and put forward the same arguments as those of the applicant.

10. The Tribunal has considered all the evidence provided by the applicant and finds that if he was driving from Woolgoolga to Upper Corindi and back each weekday Monday to Friday and spending the weekends in Coffs Harbour according to the “Fuel Consumption Report” this equates to an average monthly fuel cost of $234 per month. However, it is noted that the fuel costs for the remaining months are considerably less than this figure from a low $88.31 for the month of January 2019 to a high of $212.43 for the month of November 2018. Most months have a fuel cost in the order of $100 to $126. The Tribunal notes that the applicant in his statutory declaration of 14 July 2020 advises that from the end of 2018 “I have been commuting to my farm work site by my own vehicle”. The Tribunal finds from his monthly fuel usage should be some $234 but is less than half this amount and he cannot be attending work on a full-time basis.

11. The Tribunal has considered one of the claims that he used his annual leave. It is noted that the fuel usage was some 50% less than the $234 per month calculated using the “Fuel Consumption Report” for 8 of the months during the period from December 2018 to February 2020.  It is reasonable to conclude that if the fuel usage is some 50% less than the required $234 per month then the distance travelled by car is some 50% less than the 250km travel to and from work and the 50km weekend travel. As a rough calculation this equates to some 4 months leave which is significantly more that the 4 weeks annual leave given in the National Employment Standards. The Tribunal finds the applicant was not taking annual leave when he failed to attend full time work during this period from December 2018 to February 2020.

12. The Tribunal acknowledges that it was initially concerned about the high fuel usage by the applicant as shown on his bank statements but now having accepted much of the additional evidence the applicant has submitted particularly the “Fuel Consumption Report” the Tribunal finds that the applicant was not travelling to and from work each day for most of the months from December 2018 to February 2020 and therefore was not working full time on the farm.

13. The applicant and the employer have stated that he commenced living on the farm from March 2020 however scant evidence of this is provided so the Tribunal places little weight on these claims.

14. This information was relevant for the nomination application as it went to r.5.19(4)(h)(ii)(B) which provides as follows:

    there is a genuine need for the nominator to employ a paid employee to

    work in the position under the nominator’s direct control.

15. The Tribunal considered that if there was a genuine need for the paid employee then the nominated person would be working full time with their nominating employer. The applicant’s statement that he worked full time for the employer from October 2017 was provided as evidence to support this genuine need. If the Tribunal accepted this explanation, the employer nomination refusal by the Department may have been set aside and it may have followed that his visa application refusal would be remitted with direction to the Department.

16. The Tribunal finds that the applicant provided information at the hearing that is false and misleading at the time it was given and is material particular to the criteria the Tribunal considered when making a decision firstly on the employer nomination review and then the visa application review.

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

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

18. The requirements of PIC 4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in r.1.03), that justify the granting of the visa. The decision-maker must first be satisfied that there are such circumstances, then must consider whether to exercise the discretion to waive the requirements, having regard to those circumstances: Kaur v MIBP [2017] FCAFC 184.

19. 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.

20. For the following reasons, the Tribunal is not satisfied that the requirements should be waived.

21. The Statutory declaration from the employer Mr H Singh states as follows:

    1)    Harchand Singh, the Applicant for appeal against refusal for subclass 187 visa, is an asset to our agricultural business. He has been genuinely working with us full time since 2017 till date. We are unable to find another employee available to us locally with the skills comparable to Harchand Singh.

    2)    His skills and ability to contribute to our blueberry farming business is immense and indispensable. We are a wholly Australian enterprise and seeking to export and, the presence of Harchand Singh is in this crucial time.

    3)    Thus, while we request the Administrative Appeals Tribunal that no adverse condition be imposed on Harchand Singh, since we will be filing a new Nomination application (if required) to avail the services of the Applicant for our ongoing business.

22. The Tribunal notes that the employer who is an Australian citizen or permanent resident claims the applicant is an asset to their business; his contribution is immense; they are seeking to export and that they cannot find another employee available to them locally with the skills comparable to the applicant. However, this is inconsistent with the fact that the employer allows the nominee to attend work on a part time basis as evidenced above and may even permit him to spend part of his work time travelling to other farms. Furthermore, the employer confirmed in the hearing that there is another primary products inspector employed by the farm.  The Tribunal considers that there is already another skilled primary products inspector or fruit inspector who is employed and able to undertake the full range of responsibilities as described in the job description.

23. The Tribunal, for the reasons given above, does not consider that the points put forward by the employer are compassionate or compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen.

24. Therefore, the requirements of PIC 4020 (1) are not met and should not be waived.

25. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.187.213(1).

26. The Tribunal has assessed the applicant’s claims under the temporary residence transition stream. Under cl.187.223 the position to which a visa application relates must be nominated and approved under r.5.19(3) of the Regulations. Since the correlating nomination did not seek to meet the requirements of and was not assessed under r.5.19(3), the applicant does not meet the requirements of cl.187.223.

27. The Tribunal has also assessed the applicant’s claims under the agreement stream. As the correlating position was not nominated by an employer in accordance with the labour agreement, the applicant does not meet the requirements of cl.187.242.

    Nomination of a position

28. The Tribunal considered whether the applicant meets cl.187.233(3) which provides as follows:

    (3)      The Minister has approved the nomination.

29. After the delegate of the Minister refused the employer nomination, the nominator lodged an application with the Tribunal to review the decision. The Tribunal affirmed the decision on 12 August 2020 to refuse the nomination on the basis the nominator had failed to satisfy r.5.19(4) of the Regulations.

30. On 8 September 2020 under s.359A of the Act the Tribunal sent to Mr Harchand Singh an invitation to comment or respond to the information that the employer nomination review had been affirmed by the Tribunal. The letter stated that it is a requirement for the grant of the visa that the position specified in the visa application is the subject of an approved nomination and if the Tribunal relied on this information in making a decision, we may find that the position specified in the visa application is not the subject of an approved nomination. This would mean they do not satisfy a requirement for the grant of the visa and the Tribunal must affirm the decision under review. Mr Harchand Singh was advised a response should be received by 22 September 2020 or an extension of time could be requested but the request must be made by 22 September 2020.

1. On 21 September 2020, the migration agent sent the information and documents as listed in this decision and canvassed a number of matters, but not the fact that there is no approved employer nomination to satisfy cl.187.233(3). Since the Tribunal has affirmed the employer nomination decision under review there is no approved nomination to satisfy cl.187.233(3) and the visa applicant therefore does not meet cl.187.233(3).

2. Therefore, cl.187.233 is not met.

   DECISION

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

   De-Anne Kelly
   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. 

   … You