Harpreet Singh (Migration)

Harpreet Singh (Migration) [2023] AATA 2360 (27 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Harpreet Singh
Mrs Rajveer Kaur
REPRESENTATIVE:  Mr Derrick Peters (MARN: 1175659)
CASE NUMBER:  2001240
HOME AFFAIRS REFERENCE(S):          BCC2018/6107438
MEMBER:Katie Malyon
DATE:27 June 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for Skilled Regional Sponsored (Provisional) visas for reconsideration, with the direction that the first named applicant meets the following criterion for Subclass 489 Skilled - Regional (Provisional) visas:
·Public interest criterion 4020 for the purposes of cl 489.211 of Schedule 2 to the Regulations

Statement made on 27 June 2023 at 10:19 am
CATCHWORDS
MIGRATION – Skilled Regional (Provisional) visa– Subclass 489 (Temporary Graduate)) visa – employment as a Chef was found to be false or misleading – failed to meet PIC 4020(1)– applicants’ employment in occupations in demand – there are compelling or compassionate circumstances in the case – decision under review remitted
LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cl 489.211
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 18
Trivedi v MIBP [2014] FCAFC 42
Plaintiff M64/2015 v MIBP [2015] HCA 50
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 January 2020 to refuse to grant the applicants Skilled Regional Sponsored (Provisional) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
The applicants, Indian nationals Harpreet Singh and his wife Rajveer Kaur, applied for the visas on 11 January 2019.
The delegate refused to grant the visas on the basis that the first named applicant, Mr Singh, did not satisfy the requirements in cl 489.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because evidence provided in relation to Mr Singh’s claimed employment as a Chef with La Vita Cafe and Restaurant Pty Ltd ABN 44 131 608 752 as Trustee for the Picone Family Trust ABN 26 919 447 077 T/A La Vita Cafe and Restaurant (the Trustee) was found to be false or misleading in a material particular. As a result, Mr Singh did not meet the criteria in public interest criterion (PIC) 4020(1). Failure to meet PIC 4020 meant that he did not satisfy the requirements in cl 489.211 of Schedule 2 to the Regulations. Relevant provisions from the Act and the Regulations referred to in this decision have been extracted in the Attachment to the decision.
The applicants sought review of the delegate’s decision to refuse their Subclass 489 visa application. No documentation was lodged with the Tribunal apart from a copy of the delegate’s decision.
The Tribunal’s s 359A letter
On 27 February 2023, the Tribunal wrote to the applicants under s 359A of the Act via their current representative, registered migration agent Derrick Peters. It invited them to comment on, or respond to, information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review.
The Tribunal’s s 359A letter advised the applicants that:
·on 7 January 2020, the Department refused to grant you a Subclass 489 visa on the basis that Mr Singh did not meet PIC 4020(1) as the evidence in support of his claimed employment as a Chef with the Trustee given to the Department was information that is false or misleading in a material particular and, therefore, the Department found that Mr Singh does not meet cl 489.211 of Schedule 2 to the Regulations;
·Mr Singh also lodged with the Department in support of the Subclass 489 visa application the results of a TOEFL English language test undertaken on 3 June 2017 in which he achieved a total score of 101;
·the Department arranged for a verification check of Mr Singh’s TOEFL test conducted by Educational Testing Service (ETS) and, on 19 August 2019, ETS confirmed that his test scores are invalid and, subsequently, have been cancelled;
·ETS also advised the Department that the reason for its cancellation of Mr Singh’s TOEFL test scores is that it detected voice anomalies in the speaking portion of the test and, therefore, it could not verify the scores represent his work; and,
·ETS advised the Department that Mr Singh had been informed in writing of the invalidity and cancellation of his TOEFL test on 19 October 2017 and it provided the Department with a copy of its letter of 19 October 2012 addressed to Mr Singh at his address in PS Jandiala Guru, Amritsar, India notifying him of the invalidity and cancellation of his TOEFL test.
Further, it informed the applicants that this information is relevant to the Tribunal’s review of the delegate’s refusal of their Subclass 489 visa application because it suggests that there is evidence that the applicants have given, or caused to be given, to the Department further information that is false or misleading in a material particular. It noted that, if the Tribunal was to rely on this information in making its decision, it may find that PIC 4020(1) is not met by Mr Singh in relation to his TOEFL test and, therefore, cl 489.211 of Schedule 2 to the Regulations is not met. Consequently, the Tribunal may affirm the Department’s decision to refuse the applicants’ Subclass 489 visa application. The Tribunal’s s 359A letter also stated that, if the Tribunal does not receive a response to the information in its letter or a request for an extension of time to respond on or before 13 March 2023, the applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal at a hearing.
The representative provided the applicants’ comments to the s 359A invitation on 9 February 2023. Mr Singh’s signed letter in response to the adverse information set out in the Tribunal’s s 359A letter is discussed below.
Hearing – 13 March 2023
The applicants appeared before the Tribunal on 13 March 2023 by way of MS Teams videoconference to give evidence and present arguments. The representative also attended the hearing. Evidence provided during the hearing is discussed below as is the representative’s submission and documentation submitted after the hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. The Tribunal acknowledges that it has significantly more information than that which was available to the delegate at the time of her decision. It does, however, note that it has, consistent with cl 8.1 of the Tribunal President’s Practice Direction - Conducting Migration and Refugee Reviews, restricted its review to the matter the subject of the delegate’s decision.
CONSIDERATION OF CLAIMS AND EVIDENCE
Issue
The issue in this review is whether the primary applicant, Mr Singh, meets PIC 4020 as required by cl 489.211 of Schedule 2 to the Regulations for grant of the visa.
Broadly speaking, PIC 4020 requires that:
1)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);
2)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);
3)the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and,
4)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).
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).
Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in a material particular?
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.
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.
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.
Evidence before the Department
As noted in the delegate’s decision, a copy of which was provided to the Tribunal on lodgement of the review application, in support of Mr Singh’s claims of employment with the Trustee, he lodged the following documents with the Department:
1)letter dated 28 March 2018 signed by Carlo Picone, Director of the Picone Family Trust T/A La Vita Cafe & Restaurant stating that Mr Singh worked as a Cook from 5 July 2014 and had progressed to being a Chef. No date was provided for the change of Mr Singh’s position from Cook to Chef at its Joondalup restaurant.

The signed letter is on the letterhead of La Vita Cafe and Restaurant and states the restaurant’s ABN is 26 919 447 077. It also provides the telephone number of La Vita Cafe and Restaurant;
2)PAYG Summaries for years ended 30 June 2015, 2016 and 2017; and,
3)Australian Taxation Office (ATO) Notice of Assessments for years ended 30 June 2015, 2016 and 2017.
In an attempt to verify Mr Singh’s claims of employment with the Trustee, Departmental officers conducted a range of open source checks and established the following:
1)La Vita Cafe & Restaurant is permanently closed; and,
2)a search of the ABN Register for La Vita Cafe & Restaurant’s ABN 26 919 447 077 indicated that the ABN was cancelled effective 17 October 2017.
Further, an officer of the Department attempted to make 2 phone calls on 12 August 2019. First, to the number on Mr Picone’s reference letter dated 28 March 2018 which was also located through the online White Pages telephone directory. The automated message advised: “Optus advises the number has been disconnected”. Second, the officer called Mr Picone on his mobile number indicated on the reference letter of 28 March 2018. Mr Picone confirmed that he had sold the Trustee’s business of La Vita Cafe & Restaurant at the end of 2015 and said that he has had no dealings with the business since then and nor does he recall writing any letters for anyone relating to the business since then.
The Department invited Mr Singh to comment on the adverse information set out in paras [18] – [19] above on 19 August 2019 in a s 57 natural justice letter. In response, Mr Singh’s then representative provided:
1)a Statutory Declaration sworn by Mr Picone on 10 September 2019;
2)a replica of the earlier reference letter on La Vita Cafe & Restaurant ahead dated 28 March 2018 but updated to 9 September 2019; and,
3)a copy of Mr Picone’s WA Driver’s Licence bearing his signature.
The Tribunal notes that, apart from the change of dates (from 28 March 2018 to 9 September 2019), the only difference between the 2 letters is that Mr Picone’s signature is in a different place on the final page and, further, the signature on the letter of 9 September 2019 has been witnessed by a Pharmacist based in Leederville, Western Australia. The Pharmacist is also the person who witnessed Mr Picone’s signature on the Statutory Declaration sworn 10 September 2019.
In his Statutory Declaration, Mr Picone states that he was managing La Vita Cafe & Restaurant until October 2017 as the Trustee and ‘sold it off to another business who promised to retain all my employees for the first 6 months of their business’. Mr Picone states that he vaguely remembers the call that he got from the Department asking him about employment details of Mr Singh. He adds that ‘whatever I told over the phone was not true at all’ for the reasons set out below. Mr Picone stated he is ‘80 years of age, and for the past year or so have not been keeping well both physically and mentally and have the tendency to take things too casually’. He adds that, when he got the call from the Department, he ‘thought it was a scam call’ and ‘did not take it very seriously at all’ as he gets ‘scam calls all the time’ and, in his opinion, ‘no Government Department calls you these days over the phone’. Further, Mr Picone states he could not ‘recollect the name of Harpreet Singh’ as he always used to call him by his ‘nick name, Happy’. He felt really sorry for his ex-employee when Mr Singh came to see him with the Department’s s 57 natural justice letter.
As noted in the delegate’s decision, Mr Picone’ evidence in his Statutory Declaration that he was managing the business until October 2017 is inconsistent with advice in his telephone conversation with the Department on 12 August 2019 that he had sold the business at the end of 2015. The delegate notes that, whilst acknowledging Mr Picone’s potential difficulties associated with his age, no evidence was provided to the Department either in relation to the sale of his business of La Vita Cafe & Restaurant or issues with his mental status impacting the claim that he had provided false information due to his age. Absent any supporting evidence to confirm Mr Singh’s claimed employment at La Vita Cafe & Restaurant, the delegate gave greater weight to Mr Picone’s spontaneous response in his telephone conversation with the Departmental officer.
Having regard to the (then) representative’s submission that neither Mr Singh nor Mr Picone could recall the actual date of Mr Singh progressing from being a Cook to his being a Chef, the delegate found it would be unlikely there would be no documentation available to support such a change of position.
By way of concluding comments the delegate notes in her decision that, due to the lack of verifiable evidence such as payslips, bank statements or an employment contract, little weight was given to Mr Picone’s Statutory Declaration sworn 10 September 2019 and his signed reference letters dated 28 March 2018 and 9 September 2019. The delegate concluded that both the letters and the Statutory Declaration signed by Mr Picone provided information that was false or misleading in a material particular.
Based on the evidence before her, the delegate concluded that Mr Singh had given information that is false or misleading in a material particular and, therefore, he did not meet PIC 4020(1). As it is a requirement for cl 489.211 that an applicant meets PIC 4020, the delegate refused the Subclass 489 visa application.
Hearing – 13 March 2023
During the hearing on 13 March 2023, the Tribunal summarised the basis for the delegate’s decision to refuse their visa application and the evidence on which the decision was based.
It acknowledged the delegate’s comments surrounding Mr Picone’s confusion about the Departmental officer’s phone call and the potential for him to think it was a scam call. The Tribunal also noted that, inconsistent with cl 5.1 of the Tribunal President’s Migration and Refugee Matters Practice Direction dated 1 August 2018, the applicants’ (then) representative did not provide on lodgement of the review application, relevant evidence and a detailed submission to address the delegate’s reasons for refusing their Subclass 489 visa application, and nor did that representative do so within 14 days thereof. It appeared to the Tribunal that this reinforced the absence of probative evidence to support Mr Singh’s claims that he was employed at the Trustee’s business as claimed. This is particularly so having regard to the delegate’s express reference in the decision to the lack of evidence of Mr Singh’s claimed employment with La Vita Cafe & Restaurant such as payslips, bank statements and employment contracts.
In addition, the Tribunal observed that, following the appointment of the current representative just over 2 years ago to assist the applicants with their review application, no evidence had been provided to address the delegate’s reasons for the visa refusal until 10 May 2023, that is, after the Tribunal issued its s 359A invitation. The Tribunal also observed that a representative’s pattern of failing to comply with the Tribunal’s Practice Directions may result in referral to the Office of Migration Agents Registration Authority. The representative acknowledged the Tribunal’s comments in this regard and apologised to the Tribunal.
During the hearing, Mr Singh was asked by the Tribunal to provide his comments concerning the closure of the Trustee’s La Vita Cafe and Restaurant. He said he was unaware of what was happening to the business in 2017 as he was merely a worker. Mr Singh added he was unable to provide any information concerning the new owners of the business, including their names.
To address the delegate’s express reference to the lack of evidence provided in support of his claimed employment by the Trustee, Mr Singh told the Tribunal that he has been unable to contact either Mr Picone or his wife Shunling Yin, who was also a Director of the Trustee, since he could not find a current phone number or address for either of them. The Tribunal’s search of online White Pages confirms these details.
The Tribunal then discussed with Mr Singh the adverse information set out in its s 359A letter referred to above in relation to his TOEFL test undertaken in India on 3 June 2017 and his formal response to that letter as well as evidence provided at the hearing. It noted that the Department had initiated a verification check on Mr Singh’s TOEFL test scores and, as set out above, on 19 August 2019 ETS advised the Department that it had written to Mr Singh on 19 August 2017 notifying him of the cancellation of his test scores on the basis that the scores were found to be invalid due to voice anomalies in the speaking portion. ETS provided the Department with a copy of its letter to Mr Singh notifying of the cancellation of his TOEFL results which was sent to his home address in India. The Tribunal acknowledged during the hearing that this adverse information was not the basis of the Department’s refusal decision and that it had brought this issue to Mr Singh’s attention in its s 359A letter.

In his signed letter in response to the Tribunal s 359A letter 2023, Mr Singh states:
“My visa application for sc489 visa was refused on 07 Jan 2020 for failing to meet PIC 4020(1).
Due to the employer not being available to testify in this matter, I am unable to provide any evidence in my defence.
Regarding the matters surrounding the TOEFL test, this matter has been brought to my attention for the first time and was never part of the refusal of my visa application.
Further, the letter was apparently sent to my home address in India, was never received by me as I was in Australia at the time. Also my family does not recall receiving the letter.
In my defence, I can only state that I undertook the rest as required, and the technicality of the voice anomalies is out of my understanding.
As a result of not being aware of the letter sent to me about the invalidity and cancellation of the TOEFL test, I proceed to use the test scores for my visa applications.”
At the hearing, the Tribunal acknowledged Mr Singh’s statement that, essentially, due to Mr Picone not being available to provide oral evidence to the Tribunal, he is unable to provide documentary evidence to confirm his employment with the Trustee at La Vita Cafe and Restaurant. Neither Mr Singh nor the representative made further submissions in this regard.
The Tribunal then discussed Mr Singh’s statement in his response to the Tribunal’s s 359A letter that his family did not recall receiving the letter from ETS. Again, the Tribunal observed that no probative evidence had been provided in response to this claim such as signed statements from family members in India. Nor did he provide any explanation in relation voice anomalies leading to the cancellation of the TOEFL test. Relevant to the Tribunal’s consideration of this issue, it observed that ETS’s letter informing Mr Singh of cancellation of his TOEFL test results was not returned to sender and, absent any evidence from family members to the contrary, the Tribunal is satisfied the letter was sent to Mr Singh’s designated address in India.
In passing, the Tribunal noted that review of Mr Singh’s TOEFL results confirms that he had provided his email address as well as his home address in Amritsar, Punjab. It opined that it is somewhat surprising to the Tribunal that EST did not send a copy of its letter of 19 October 2017 in relation to cancellation of Mr Singh’s test scores directed to his email address. The copy of ETS’s letter of 19 October 2017 provided to the Department merely states the addressee is Mr Singh at the home address in Amritsar set out in his TOEFL results.
By way of concluding comment on this issue, the Tribunal observed that it would reflect on evidence provided to both the Department and the Tribunal but that it appeared, based on available evidence, false or misleading evidence in a material particular had been provided to the Department not only in relation to Mr Singh’s claimed employment with the Trustee but also his TOEFL test. It invited Mr Singh and the representative to make submissions regarding the appropriateness of a waiver in the circumstances of this case. Mr Singh told the Tribunal about his current employment in the occupation of Chef with East Fremantle Yacht Club and his wife’s current employment in the aged care sector. The Tribunal invited further submissions after the hearing to address the appropriateness of a waiver pursuant to PIC 4020(4) of Schedule 4 to the Regulations in this case.
Documentation lodged after the hearing
After the hearing, the representative provided a submission requesting waiver of the requirements of PIC 4020(1)(a) or (b) and sub-clause (2) based on PIC 4020(4)(a) regarding the compelling circumstances that affect the interests of Australia. The representative also provided a range of documentation discussed below including evidence of:
1)Mr Singh’s qualifications undertaken in Australia including his multiple certificates and academic transcripts;
2)Mr Singh’s employment experience as a Cook and a Chef including a recent favourable skills assessment for the occupations from Trades Recognition Australia (TRA);
3)Ms Kaur’s qualifications undertaken in Australia;
4)Mrs Kaur’s employment experience in the aged care sector; and,
5)evidence that the occupations of Chef and Aged Care Worker are in high demand in Western Australia.
On 12 June 2023, the representative provided recent payslips for each of Mr Singh and Mrs Kaur confirming their continued employment respectively as Chef and Assistant in Nursing.
Consideration
Relevant to the issue for primary consideration by the Tribunal is whether Mr Singh meets the requirements in PIC 4020(1), the Tribunal has considered whether the letters from Mr Picone dated 28 March 2018 and 9 September 2019 as well as his Statutory Declaration sworn dated 9 September 2019 provide information which is false or misleading in a material particular.
The delegate observed that both of Mr Picone’s signed letters were generated on La Vita Cafe and Restaurant’s letterhead well after the restaurant had been sold and its ABN had been cancelled. The Tribunal observes that arranging to have Mr Picone sign the claimed second letter on 9 September 2019 would have afforded Mr Picone the opportunity to refer to Mr Picone’s earlier letter of 28 March 2018 and, relevantly, address some of the shortcomings in that earlier letter by including reference to the name of the new business owner. It appears surprising to the Tribunal that Mr Singh, in his oral evidence at the hearing, stated that he still did not know the name of the new business owner, especially in light of the fact that he claims to have worked with La Vita Cafe and Restaurant’s new owners for another 6 months after Mr Picone sold the business in October 2017.
In relation to the Statutory Declaration sworn 10 September 2019, the Tribunal acknowledges that the Department was provided with a copy of Mr Picone’s WA Driver Licence bearing his signature which appears replicated on both the letters of 28 March 2018 and 9 September 2019. The Tribunal accepts that evidence of Mr Picone’s WA Driver Licence is relevant to its assessment of the veracity of some of the claims made in the Statutory Declaration. However, the Tribunal notes that it appears the Statutory Declaration may have been prepared by someone other than Mr Picone and then it was merely signed by him for 2 reasons:
1)in cl 2 of the Statutory Declaration Mr Picone states that he sold off the business in October 2017 ‘to another business who promised to retain my employees for the first 6 months of the business’.
However, Mr Picone did not provide the name of the business or the business owners who purchased his restaurant business. This omission appears surprising to the Tribunal; and,
2)Mr Picone he states in cl 3(1) of his Statutory Declaration that he is ‘80 years of age‘.
However, this is incorrect as consistent with information on his Driver Licence regarding his date of birth on 25 November 1939, Mr Picone he was 79 years of age on 10 September 2019 when the Statutory Declaration was sworn and witnessed.
Due to the total lack of any probative evidence whatsoever provided such as payslips, bank statements, and employment contracts as well as the lack of evidence concerning the claimed sale of the Trustee’s La Vita Cafe and Restaurant business in late 2017, the Tribunal is satisfied that there is evidence before it that Mr Singh has given, or caused the applicants’ former representative, to give to the Minister, an officer and the Tribunal information that is false or misleading in a material particular in relation to his application for a Subclass 489 visa. The evidence includes the letters of 28 March 2018 and 9 September 2019 as well as the information set out in Mr Picone’s Statutory Declaration of 10 September 2019. The Tribunal is also satisfied that the information provided is false or misleading in a material particular within the meaning of the definition in PIC 4020(5).
In relation to Mr Singh lodging with the Department his TOEFL results of a test undertaken in India on 3 June 2017 and which were subsequently cancelled the Tribunal has considered the circumstances surrounding the TOEFL letter of 19 October 2017 informing Mr Singh of the invalidity and cancellation of his TOELF test. It is also considered the lack of evidence to account not only for the voice anomalies referred to in that letter but also an explanation on how or why the TOEFL letter was not brought to Mr Singh’s attention despite being sent to his family’s home in India.
Having regard to information set out in the Tribunal’s s 359A letter referred to above and, as discussed at the hearing, the Tribunal finds that Mr Singh has given false or misleading information in a material particular by providing information that is relevant to the criterion in cl 489.224 of Schedule 2 to the Regulations which requires that he has competent English. Accordingly, the Tribunal finds that Mr Singh has given false or misleading in a material particular as that term is defined PIC 4040(5).
Conclusion
Having regard to the cumulative findings set out above, the Tribunal finds that Mr Singh does not meet PIC 4020(1). In the circumstances, he does not meet cl 489.211(1) of Schedule 2 to the Regulations.
As the Tribunal has found that Mr Singh does not meet PIC 4020(1) for the reasons set out above, the Tribunal has turned its attention to the representative’s request that the requirements in PIC 4020(1) be waived in the circumstances of this case. It has also considered the other provisions in PIC 4020 relevant to its assessment of whether Mr Singh and Mrs Kaur meet PIC 4020.
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(1)?
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 3 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).
There is no evidence before the Tribunal to indicate that Mr Singh or Mrs Kaur have been refused a visa in the relevant period because of a failure to satisfy cl 4020(1).
Accordingly, the Tribunal is satisfied that PIC 4020(2) is met.
Has the applicant satisfied the identity requirements?
Clause 4020(2A) requires an applicant to satisfy the Tribunal as to his or her identity.
There is no evidence before the Tribunal to indicate that there is any issue concerning the identity of Mr Singh or Mrs Kaur.
In the circumstances, the Tribunal is satisfied as to Mr Singh’s identity and that of Mrs Kaur. Accordingly, the Tribunal is satisfied that cl 4020(2A) is met.
Should the requirements of PIC 4020(1) or (2) be waived?
The requirements of PIC 4020(1) and PIC 4020(2) may be waived if the decision-maker is satisfied that there are either:
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 (as defined in reg 1.03)
that justify the granting of the visa: PIC 4020(4) of Schedule 4 to the Regulations. The decision-maker - in this case, the Tribunal - 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.
The terms ‘compelling circumstances’ and ‘compassionate or compelling circumstances’ in PIC 4020(4) 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.
As noted by the delegate in her decision, a copy of which was provided to the Tribunal, no information was provided to the Department by the applicants or their (then) representative, to address whether there are any compassionate circumstances to consider waiver of the PIC 4020 requirements.
At the hearing, the applicants’ representative was invited to make any comments or submissions. The representative stated that Mr Singh is currently employed as a Chef at the East Freemantle Yacht Club and that his wife, Mrs Kaur, is employed in the aged care sector. He opined that both applicants are working in industries which are in high demand and are especially imperative to Australia’s post-COVID economic recovery. The Tribunal invited the applicants to provide further documentation after the hearing to address the appropriateness of the Tribunal considering a waiver of the PIC 4020(1) requirement.
In response, the representative provided a detailed post-hearing submission together with evidence of Mr Singh and Mrs Kaur’s employment in Western Australia as well as evidence of their respective qualifications to support their claim that they fulfil the criteria of PIC 4020(4)(a).
Having regard to the Department’s Movement Records, the Tribunal is satisfied that Mr Singh and Mrs Kaur have lived in Australia since 16 July 2009 and 5 September 2017 respectively.
Mr Singh’s skills, qualifications and experience
Based on evidence provided, the Tribunal is satisfied that Mr Singh has completed the following qualifications in Australia:
1)Advanced Diploma of Business issued by West Australian Institute of Further Studies CRICOS 03188C on 13 April 2022;
2)Diploma of Hospitality issued by College of Innovation & Industry Skills Pty Ltd CRICOS 03022C (CIIS) on 8 August 2013;
3)Certificate IV in Hospitality (Commercial Cookery) issued by CIIS on 12 March 2013; and,
4)Certificate III in Hospitality (Commercial Cookery) issued by CIIS on 5 February 2013.
The representative has also provided evidence of a recent positive skills assessment for the occupation of Cook ANZSCO 351411and Chef ANZSCO 351311 dated 25 March 2022 from Trades Recognition Australia (TRA). The favourable skill assessment recognises Mr Singh’s prior employment at Amici Miei - Non Solo Pizza in Carlisle, Western Australia from December 2020 to September 2021 and his time at the East Fremantle Yacht Club in East Freemantle from November 2021 to March 2022. This supersedes the favourable VETASSESS assessment made in respect of Mr Singh for the occupation of Chef (Commercial Cookery) ANZSCO 351311 dated 17 September 2018 lodged with the Department.
In addition, the representative has provided:
1)evidence of Mr Singh’s current employment as a Chef as confirmed in the signed Letter of Engagement from The Trustee for Lavik Family Trust T/A Ciao Amore Café and Restaurant ABN 14 45 047 910 dated 10 March 2023 for the full-time position of Chef at a salary of $60,000 per annum plus superannuation;
2)a copy of the signed Casual Employment Contract dated 10 October 2021 made between Mr Singh and East Freemantle Yacht Club for the position of Chef;
3)ATO Income Statements for years ended 30 June 2021, 2022 and 2023;
4)assorted payslips issued by Amici Miei and Restaurant, the East Freemantle Yacht Club and the Royal Freshwater Yacht Club; and,
5)recent payslips and bank statements confirming payment of Mr Singh’s salary to his Westpac account.
Further, the representative has also provided evidence of Mr Singh’s most recent TOEFL test dated 2 November 2022 which confirms he scored Reading 29, Listening 29, Speaking 27, Writing 29 with a Total Score of 114. He also provided a copy of Mr Singh’s Confirmation of Enrolment issued by the Department for his Diploma of Hospitality at CIIS confirming that Mr Singh had undertaken an IELTS test in which he scored 5.0.
Mrs Kaur’s skills, qualifications and experience
To evidence Mrs Kaur’s skills, qualifications and employment history in the aged care sector, the representative has provided the following documentation:
1)a Certificate III in Individual Support (Ageing, Home and Community) from the Australia Professional Skills Institute CRICOS 03255G completed on 31 May 2019; and,
2)a Statement of Attainment issued by Dementia Australia RTO 2512 on 23 February 2023 towards a Certificate IV in Ageing evidencing Mrs Kaur’s completion of the subject CHCAGE005 Provide Support to people living with dementia.
The representative submits Mrs Kaur has been employed in the aged care sector since 2020 and is currently working for the Aegis Aged Care Group on a part-time basis as an Assistant in Nursing at its Lincoln Park facility and with Auscare on a casual basis.
Evidence provided by the representative in relation to her employment with Aegis Aged Care Group includes: signed Statements of Service letters from Aegis Aged Care Group dated 17 March 2023 and 21 March 2023; the signed Contract of Casual Employment dated 16 December 2020 confirming Mrs Kaur’s engagement as an Assistant in Nursing with reference to the Aegis Aged Care Group Nurses Collective Workplace Agreement; ATO Income Statements for years ended 30 June 2021, 2022 and 2023; recent payslips; and, Mrs Kaur’s recent CBA bank statements confirming payment of her salary.
Further, the representative has provided evidence of Mrs Kaur’s employment with Auscare Group including a signed confirmation of employment letter dated 16 March 2023 confirming her employment as an Assistant in Nursing and recent payslips. The representative has also provided a signed letter from FlexiStaff dated 15 March 2023 confirming Mrs Kaur’s employment on a casual basis as a Personal Care Assistant from 2020 – 2021.
The applicants’ employment in occupations in demand
In his post-hearing submissions, the representative submits that both of applicants have skills, qualifications and experience that significantly contribute to the critical skill shortages facing Australia in both the hospitality and aged care sectors. He has provided a recent Media Release from the Minister for Employment and Workplace Relations titled New Data on Top 20 Occupations in Demand which lists Aged and Disabled Carers at No. 3 and Chef at No. 8 in terms of occupations in greatest demand in Australia.[1]
[1] New Data on Top 20 Occupations in Demand | Ministers' Media Centre (dewr.gov.au)
The representative also provided a selection of media articles in relation to the shortage of Cooks and Chefs in Australia. The articles identify that the occupations Chef and Cook were assessed by the National Skills Commission for the 2021 Skilled Priority List and were found to be in shortage in all States and Territories across Australia and, further, are projected to have strong future demand.[2] The Tribunal acknowledges that the occupation of Chef is included in the list of Top 20 Occupations in Demand published by Jobs and Skills Australia in its Skills Shortage March 2023 Quarterly Report.[3] It also notes that the occupation of Chef is included in the current Western Australia’s Skilled Migration Occupation List.[4]
[2] Food Trades Workers | National Skills Commission
[3] skills_shortage_quarterly_report_-_march_2023.pdf
[4] State Nominated Migration Program | Migration WA
Additional news articles were provided to highlight the “dire” shortage of aged care workers in Australia. An article by the Committee for Economic Development of Australia (CEDA) estimates that Australia is facing a shortage of at least 110,000 aged care workers within the next decade.[5] CEDA’s study has been identified by the Royal Commission into Aged Care Quality and Safety that understaffing in the aged care sector will result in care which is below world standards and which will potentially place a caring burden on many families and place “unsustainable pressure” on the Australian health system.[6] The representative has also provided a copy of the Australian Government’s Vacancy Report dated 22 February 2023. The report details an increase in job advertisements for Community and Personal Service Workers by 11 % in 2022. In particular, the report notes that recruitment activities for Carers and Aides increased across Australia by 1,900 applications, which is a 15.4% increase.
Conclusion
[5] CEDA - Australia’s dire shortage of aged-care workers requires immediate action: CEDA
[6] CEDA - Australia’s dire shortage of aged-care workers requires immediate action: CEDA

Having regard to the available evidence, the Tribunal is satisfied that there are compelling circumstances that affect the interests of Australia within the meaning of PIC 4020(4)(b) and which justify the granting of a Subclass 489 visa to the applicants. This is primarily because it is clearly evident that Mr Singh and Mrs Kaur have high level skills, relevant qualifications and considerable experience respectively in the hospitality and aged care sectors, which are sectors experiencing significant skill shortages as confirmed by multiple media reports and studies by relevant Government agencies. The Tribunal accepts that this is not a case where the applicants’ respective employers would merely be disadvantaged if they lose the employment of Mr Singh or Mrs Kaur: rather, it considers the loss of their employment has a broader public interest.
Based on the finding above that there are compelling or compassionate circumstances in the case for Mr Singh and Mrs Kaur, the Tribunal is also satisfied that the requirements of PIC 4020(1) should be waived.
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?
PIC 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2BA).
There is no evidence that Mr Singh or Mrs Kaur has been refused a visa in the relevant period because of a failure to satisfy cl. 4020(2A). Therefore cl 4020(2B) does not apply.
Conclusion
On the basis of the above, the Tribunal is satisfied that Mr Singh satisfies PIC 4020 for the purposes of cl 489.211 of Schedule 2 to the Regulations.
DECISION
The Tribunal remits the applications for Skilled Regional Sponsored (Provisional) visas for reconsideration, with the direction that the first named applicant meets the following criterion
for Subclass 489 Skilled - Regional (Provisional) visas:
·Public interest criterion 4020 for the purposes of cl 489.211 of Schedule 2 to the Regulations.
Katie Malyon
Member
ATTACHMENT – EXTRACTS FROM THE MIGRATION ACT 1958 AND MIGRATION REGULATIONS 1994
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.
…
Migration Regulations 1994
Schedule 2

Subclass 489 – Skilled – Regional (Provisional)
…
489.211(1)       The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4010,  4020 and 4021.
(2)If the applicant had turned 18 at the time of application, the applicant satisfies public interest criterion 4019.
(3)Each member of the family unit of the applicant who is an applicant for a Subclass 489 visa satisfies public interest criteria 4001, 4002, 4003, 4004, 4010 and 4020.
(4)      Each member of the family unit of the primary applicant who:
             (a)       is an applicant for a Subclass 489 visa; and
  (b)       had turned 18 at the time of application;
satisfies public interest criterion 4019.
(5)      Each member of the family unit of the primary applicant who:
             (a)       is an applicant for a Subclass 489 visa; and
  (b)       has not turned 18;
satisfies public interest criteria 4015 and 4016.
(6)Each member of the family unit of the primary applicant who is not an applicant for a Subclass 489 visa satisfies public interest criteria 4001, 4002, 4003 and 4004.
….
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.
…
oOOo

[2023] AATA 2360

27 June 2023

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