HARDEE (Migration)

[2017] AATA 1606

HARDEE (Migration) [2017] AATA 1606 (15 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr John Gilbert HARDEE

CASE NUMBER:  1601360

DIBP REFERENCE(S):  BCC2015/2180700

MEMBER:Alan McMurran

DATE:15 September 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 457 visa:

·PIC 4014 for the purposes of cl.457.224 of Schedule 2 to the Regulations.

Statement made on 15 September 2017 at 3:35pm

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 – Recruitment Consultant – PIC 4014  not met – Exclusion period apply – compassionate or compelling circumstances exist – Sufficient evidence provided that there are compassionate or compelling circumstances that affect the interests of Australian citizens

LEGISLATION
Migration Act 1958, ss 65,

Migration Regulations 1994, Schedule 2, cl 457.224, PIC 4014

CASES

Paduano v Minister for Immigration & Multicultural & Indigenous Affairs & Migration Review Tribunal [2005] FCA 211

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 30 July 2015.

3. At the time the visa application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations). One of the criteria to be satisfied at the time of decision is cl.457.224 which requires the visa applicant to satisfy public interest criteria 4014 (PIC 4014). An extract of PIC 4014 is attached in full to this decision record.

4. The delegate refused to grant the visa on 20 January 2016 on the basis that cl.457.224 was not met and that based on the evidence and information before the delegate, PIC 4014 was not met.

5. PIC 4014 requires that where a person is affected by a risk factor, that person cannot be granted a Visa unless 3 years have passed since the person left Australia. The requirement might be waived where the decision maker is satisfied that there are compelling circumstances affecting the interest of Australia, or compassionate or compelling circumstances affecting the interest of an Australian citizen, an Australian permanent resident or eligible New Zealand citizen and which in the circumstances justify granting the Visa within 3 years after the departure.

6. The applicant appeared before the Tribunal on 15 September 2017 to give evidence and present arguments. The Tribunal also received oral evidence from a representative of the visa applicant’s nominator / employer, Mr David Scambler.

7. The applicant was represented in relation to the review by his registered migration agent, Mr Raymond Brown.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the primary visa applicant meets the criteria and satisfies PIC 4014 for the purposes of cl. 457.224 of the Regulations.

10. Broadly speaking, PIC 4014 defines the particular circumstances where an applicant is affected by a relevant risk factor. Risk factors defined in PIC 4014 include circumstances where the applicant’s substantive visa is no longer in effect and the applicant has departed Australia as a holder of a Bridging Visa, except where limited specified circumstances are met.

11. Those limited circumstances are that the person left Australia within 28 days after a substantive Visa held by the person ceased to be In effect, or a Bridging Visa held by the person at the time of departure was granted within 28 days after a substantive Visa ceased to be in effect, or the person held another Bridging Visa granted while a person held a substantive Visa, or within 28 days after a substantive Visa held by the person ceased to be in effect. None of those limited circumstances apply in this instance.

12. A risk factor is defined in 4014 (4) to mean a person who left Australia as an unlawful noncitizen, or being the holder of a Bridging C, Bridging D or Bridging E class Visa.

13. When applying for a substantive visa where a person is affected by one of these risk factors, the person is required to satisfy one of two alternate criteria set out in PIC 4014 (1), which require either that the application has been made more than three years after the relevant departure date from Australia, or where the decision maker is satisfied in the particular case, that there are compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen, and which justify granting the Visa within 3 years after the departure.

14. In the present case, the Tribunal has had regard to the reasons of the delegate in the decision which reflect policy, noting that the application was made by the Visa applicant less than 3 years after the applicant had departed Australia on a bridging Visa and while an exclusion period was still in force. The exclusion period commenced on 24 June 2014 and ended on 24 June 2017. At the date of decision of the application under review, the exclusion period has ended and the Visa applicant is at liberty to make a further application for a substantive Visa. At the hearing, the representative informed the Tribunal the applicant had gone offshore and made a further application to the Department which is currently pending. In the interim, the applicant presses this application on review and has made submissions both in writing and at the hearing that there are both compelling circumstances and compelling and compassionate circumstances which justify a waiver of the exclusion period.

15. In considering the application at first instance, the delegate was not satisfied that there was evidence to suggest that there were compelling circumstances affecting the interest of Australia which under policy are defined to mean that Australia’s trade or business opportunities would be adversely affected, or that a relationship with a foreign government would be damaged or that Australia would miss out on a significant benefit that the person could contribute to Australia’s business, economic, cultural or other developments.

16. The delegate also found that there was no information or evidence provided to support a finding of compassionate or compelling circumstances which under policy mean circumstances affecting the interest of an Australian citizen such as family members in Australia who might be left without financial or emotional support, family members unable to properly arrange a relative’s funeral or a parent being separated from a child.

17. The Tribunal notes these examples are not exhaustive and that no formal definition is provided in the Act and Regulations of compelling circumstances or compassionate and compelling circumstances, as the case may be.

18. The Tribunal is required to take into account all the relevant facts matters and circumstances presented in support of the application. In this instance, the review applicant by his representative has made detailed submissions which included:

    a.letter dated 19 November 2015;

    b.further letter dated 22 August 2016 and attachments;

    c.documents provided to the Tribunal on 6 September 2017;

19. At the time of application, the review applicant was seeking a position as a Recruitment Consultant (ANZSCO 223112) with an approved sponsor, Heidrick & Struggles Australia Pty Ltd.

20. The Tribunal notes that it is a requirement under Instrument (IMMI 17/060) that the nominated occupation provide a minimum salary of $65,000 per annum, by a sponsor with more than 5 employees and with a turnover in excess of $1 million. In line with the documents provided by the review applicant on 6 September 2017, together with the evidence provided at the hearing, the Tribunal notes the criteria in the relevant Instrument have been met.

21. In order to deal with the issue at hearing concerning PIC 4014 and the criteria for consideration, the Tribunal heard evidence from the Visa applicant. The applicant relied upon the matters set out in the written submission from the representative dated 22 August 2016 and confirmed the background facts. The applicant conceded that he had made a significant mistake by allowing his student Visa to expire on 15 April 2014. The chronology in relation to the applicant’s visas was discussed as follows:

    a.student visa issued on 8 February 2011 to enable the applicant to undertake studies for a bachelor of commerce degree at University of New South Wales:

    b.part way through completion of the degree course, at the end of 2013 (early 2014) the applicant is diagnosed with a significant health issue as infectious mononucleosis (glandular fever);

    c.15 April 2014 student visa expires; applicant unaware until he makes health insurance claim in May and health insurer informs him Visa has expired;

    d.29 May 2014 applicant issued with a bridging visa; applicant departed Australia on 24 June 2014; exclusion period commences;

    e.29 July 2014 applicant issued with a further student Visa with a waiver of the exclusion period in respect of PIC 4014, and applicant completes university studies and graduates early 2015;

    f.June 2015 applicant is offered employment by the sponsor and on 30 July 2015 makes application for a 457 Visa for employment as a recruitment consultant;

    g.20 January 2016 Visa application is refused by the Department; Visa applicant issued with a bridging Visa with work rights and which he currently holds;

    h.5 February 2016 application for this review lodged with the Tribunal;

    i.PIC 4014 three-year exclusion period expires on 24 June 2017.

22. The Tribunal notes that the Visa applicant was granted a further substantive Visa on 29 July 2014, with the application of a waiver of the exclusion period in that instance. PIC 4014 continues to apply in respect of any further or other substantive Visa applications, such as the present application under review. It was found in respect of the previous waiver that there were compelling circumstances for the issue of a further substantive (student) Visa at that time (July 2014).

23. In respect of this review, the PIC 4014 criteria must be met at the time of decision. The Tribunal therefore reviewed the evidence and the submissions in respect of:

    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 eligible New Zealand citizen.

24. The applicant submitted there were compelling circumstances based on his current employment with the sponsor. The applicant said that he works at a high level for the sponsor which is an American company based in Chicago, and with a related Australian enterprise operating out of Sydney Melbourne and Perth. The applicant said that the sponsor is an executive recruiter and in his division operates in financial services, where high-level executives are sought for positions in banking and finance. This was supported by the witness, Mr Scambler, who employed the applicant and supervises his work.

25. Mr Scambler stated that the applicant had a unique background with his finance degree and that he was the only recruitment team member involved in research at a very high level in the sponsor’s organisation in the finance division. Mr Scambler went on to say that a significant investment had been made in the applicant both financially and in terms of training and that his skills were necessary to find the right executives for top positions in banks and other financial organisations in Australia and which executives when recruited might transform the Australian corporations and significantly affect Australian industry. Executives searched were at CEO and CFO level as well as board members and senior managers.

26. The applicant submitted that his upbringing in Singapore and his family’s connections in America as well as his education in Australia were significant factors and compelling circumstances which might affect the interests of Australia. The Tribunal noted those submissions but was not persuaded that the applicant’s personal circumstances and contributions both in line with his education and background and through his employment were such that the Tribunal might be compelled to waive the exclusion period.

27. In addition, the applicant sought to rely upon the criteria being compassionate or compelling circumstances affecting the interest of an Australian citizen. The applicant had taken a deal of trouble to put forward evidence in this regard. The Tribunal found that the evidence is best set out in the letter of 22 August 2016 together with its enclosures[1]. The Tribunal notes this material was not all before the delegate who considered the initial application.

    [1] T ff 25-42

28. The submissions contained in the letter and attachments draw attention to the applicant’s ties with the Australian community. The applicant has significant family connections through his grandparents, both being Australian, and through an extended Australian family, in Tasmania, Victoria and Queensland. The applicant gave evidence that his parents (both American) have spent the last 25 years in Singapore where the applicant was primarily raised. His American family have frequently visited Australia and his parents still do so once or twice each year. The applicant recently attended a family reunion in Tasmania with his grandmother’s sister who is now 86. The Tribunal finds as submitted that the applicant has a close-knit family in Australia and that his great-aunt is an Australian citizen in the contemplation of PIC 4014(1)(b)(ii).

29. The applicant relied upon the evidence in an affidavit from Stephen Kerin, a family member and solicitor who practices in Brisbane. Mr Kerin gave a detailed history of the family and their relationship to the Visa applicant and described what he regarded as “a substantial and significant connection to Australia” in relation to the applicant. The Tribunal finds that the Visa applicant also has a close family connection with Mr Kerin and that Mr Kerin is also an Australian citizen in contemplation of the provision in PIC4014(1)(b)(ii).

30. The Tribunal accepts the statements and the evidence and finds the applicant does have a substantial and significant connection to Australia. The Tribunal also finds that the refusal of the Visa application under review would affect the interests of the visa applicant’s family in Australia and that there are compassionate or compelling circumstances justifying the grant of the Visa.

31. The Act and Regulations do not seek to define the words compassionate or compelling for the purpose of confining the possible meaning contained in PIC 4014. The Tribunal is impressed with the opportunity to exercise its discretion guided by policy, as was the delegate, and to take into account all the relevant facts matters and circumstances existing at the time of application and which have arisen since.

32. In the case of Paduano v Minister for Immigration & Multicultural & Indigenous Affairs & Migration Review Tribunal[2], which involved the issue of compelling reasons for an applicant’s absence from Australia in relation to a resident return visa, the Federal Court held that the ordinary meaning of ‘compelling’ is ‘forceful’ and that forceful reasons for an absence may involve physical, legal or moral necessity, or may, by reason of their forcefulness, be convincing. Events themselves can create a “forcefulness” depending upon the context and some force is derived in this instance from the way in which the events themselves unfolded, whether fairly or unfairly to the applicant.

    [2] [2005] FCA 211

33. The Tribunal notes that the circumstances involving the applicant when he made the error of allowing his student visa to expire have been fully set out in the submissions. The applicant acknowledged the error immediately and self-reported to the Department the same day he discovered the error. There was no attempt to disguise the fact or to exculpate the applicant’s actions. The applicant otherwise complied with all conditions of his previous (student) substantive visa, which was acknowledged by the Department when it was found there were compelling circumstances in the interests of Australia, due to his being a continuing student, so as to issue him another student visa. Notably, the applicant complied in full with this subsequent substantive visa.

34. The applicant has not sought to emphasise his ill-health which was the cause of his initial error indirectly, as he stated in evidence when pointing out that he had been affected by anxiety and concern over his diagnosis. The applicant was understandably distracted by health concerns and when the University supported him during his studies, he lost track of his Visa obligations. It is to his great credit and the fact that he has candidly and fully acknowledged his mistake, and the impact it has since had both financially bringing these applications and for the uncertainty created for his employer.

35. Although these matters do not necessarily point towards a significantly compelling reason affecting the interests of Australia for waiving the exclusion period, the Tribunal finds they are nonetheless relevant circumstances in determining what might be compassionate or otherwise compelling circumstances and which affect the interests of other Australian citizens, being family members of the applicant.

36. The general meaning of compassion which might also guide the Tribunal, means to have sympathy or pity and concern for the misfortune of others, and appropriate synonyms include empathy, understanding, mercifulness and leniency. It would be difficult not to find some sympathy and empathy for the applicant who was struck down with a serious illness and for reason of which, at least in part, lead to his Visa issue in the first place and the application of PIC 2014.

37. In this Tribunal’s view it was not the intent of the regulation and the application of the criteria to apply a literal meaning of the alternatives in 4014 (1)(b)(ii) to every circumstance and if such a literal approach had been intended there would be defined meanings of “compassionate” and “compelling” so as to narrow and limit the exercise of discretion, and the legislation would be clear and unequivocal as to the outcomes and the intended meaning of “interests of Australia” and “affect the interests of an Australian citizen”. Such broad based expressions enliven and encourage the proper exercise of discretion in appropriate circumstances.

38. The Tribunal has considered carefully all the relevant circumstances advanced in support of the waiver both individually on behalf of the applicant and cumulatively in respect of the employer and other Australian citizens (the applicant’s Australian family members), including all the information provided with the original application and now in oral submissions to the Tribunal.

39. The Tribunal is only required to find justification for a waiver based on one of the alternatives set out in PIC 4014 and in this instance, the Tribunal is satisfied that there are compassionate or compelling circumstances that affect the interests of Australian citizens who are members of the applicant’s family and which justify the granting of the Visa within 3 years of the applicant’s departure.

40. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 457 visa.

    DECISION

1. The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 457 visa:

   ·PIC 4014 for the purposes of cl.457.224 of Schedule 2 to the Regulations

   Alan McMurran
   Member

   
   

   ATTACHMENT  -  CLAUSE 457.223 (EXTRACT)

   457.223

   …

   Standard business sponsorship

   …

   (4)The applicant meets the requirements of this subclause if:

   (a)each of the following applies:

   (i)    a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;

   (ii)     the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;

   (iii)    the approval of the nomination has not ceased as provided for in regulation 2.75; and

   (aa)the nominated occupation is specified in an instrument in writing for paragraph 2.72 (10) (a) or (aa) that is in effect; and

   (ba)either:

   (i)    the nominated occupation is specified by the Minister in an instrument in writing for this subparagraph; or

   (ii)     each of the following applies:

   (A)the applicant is employed to work in the nominated occupation;

   (B)if the person who made the approved nomination met paragraph 2.59(d) or (e), or paragraph 2.68(e) or (f), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business or in a business of an associated entity of the person;

   (C)if the person who made the approved nomination met paragraph 2.59(h), or paragraph 2.68(i), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business; and

   (d)the Minister is satisfied that:

   (i)    the applicant’s intention to perform the occupation is genuine; and

   (ii)     the position associated with the nominated occupation is genuine; and

   (da)the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; and

   (e)if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation — the applicant demonstrates that he or she has those skills in the manner specified by the Minister; and

   (eb)if:

   (i)    the applicant is not an exempt applicant; and

   (ii)     subclause (6) does not apply to the applicant;

   the applicant:

   (iv)   has undertaken a language test specified by the Minister in a legislative instrument for this subparagraph; and

   (v)    achieved within the period specified by the Minister in the instrument, in a single attempt at the test, the score specified by the Minister in the instrument; and

   (ec)if the Minister requires the applicant to demonstrate his or her English language proficiency — the applicant demonstrates his or her English language proficiency in the manner specified by the Minister; and

   (f)either:

   (i)    there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person; or

   (ii)     it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person.

   …

   (6)This subclause applies to an applicant if:

   (a)the base rate of pay for the applicant, under the terms and conditions of employment about which the Minister was last satisfied for paragraph 2.72(10)(c), is at least the level of salary worked out in the way specified by the Minister in an instrument in writing for this paragraph; and

   (b)the Minister considers that granting a Subclass 457 visa to the applicant would be in the interests of Australia.

   …

   (11)In subclause (4):

   exempt applicant means an applicant who is in a class of applicants specified by the Minister in an instrument in writing for this subclause.