Ivanovic (Migration)

Ivanovic (Migration) [2020] AATA 4004 (6 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Sasa Ivanovic
Mrs Dragana Lazic
Mr Filip Lazic
CASE NUMBER:  1818520
DIBP REFERENCE(S):  BCC2017/1923729
MEMBER:R. Skaros
DATE:6 August 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

Statement made on 06 August 2020 at 9:39am
CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Panel beater – English language proficiency – IELTS Test Report Form – altered results – bogus document – waiver of requirement – interests of an Australian citizen, permanent resident or eligible New Zealand citizen – genuine intention – ceased employment with approved sponsor – taken up employment with a different employer – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 457.223, 457.224; Schedule 4, PIC 4020
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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 7 June 2018 to refuse to grant the applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 31 May 2017. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the English language proficiency requirements in cl.457.223(4)(eb).
On 27 August 2019 the applicant provided a copy of an IELTS Test Report Form for a test undertaken on 1 August 2019. An officer of the Tribunal sought to verify the applicant’s results through the IELTS online facility and found that the results did not match. The Tribunal sought further information from the IELTS Operations unit about the applicant’s IELTS test results. The response received suggested that the IELTS provided by the applicant to the Tribunal had been altered.
The Tribunal wrote to the applicants in accordance with s.359A and invited the applicants to comment on the adverse information, details of which are set out further below, which the Tribunal explained is relevant to the requirement in public interest criteria 4020 (PIC 4020). The applicants’ representative sought an extension of time to clarify the matter with UWS College and provide a response, which the Tribunal granted. On 29 October 2019, the Tribunal received an email from the applicant. The applicant’s response has been considered further below.
The applicant appeared before the Tribunal in person on 18 February 2020 and by telephone on 28 July 2020 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter in the Serbian and English languages.
The applicants were represented in relation to the review by their registered migration agent. The agent did not attend the first hearing. However, she did attend the second hearing at the request of the Tribunal.
Prior to the first hearing the Tribunal received a medical certificate for the applicant indicating that he has mild dyslexia and academic difficulties. The certificate also referred to difficulties that the applicant and his family have been experiencing.
At the hearing the applicant presented to the Tribunal two original IELTS Test Report Forms. The first was for the IELTS test undertaken on 1 August 2019 indicating that the applicant had achieved the following scores: 5.0 for listening, 4.0 for reading, 5.0 for writing, 6.5 for speaking and an overall band score of 5.0. The Tribunal notes that scores on that test, which do not meet the English language requirement for the Subclass 457 visa, were consistent with the information obtained from the IELTS verification portal, but did not match the scores indicated on the IELTS Report (bearing the same date and transaction reference number) submitted to the Tribunal on 27 August 2019.
The second IELTS Report was for a test undertaken on 17 August 2019 in which the applicant achieved the following scores: 4.5 for listening, 5.0 for reading, 5.5 for writing, 6.0 for speaking and an overall band score of 5.5. The Tribunal has verified the results of this report. The applicant was under the impression that he had to achieve a score of at least 5.0 in each component of the test. The Tribunal informed the applicant at the hearing that it would grant him additional time to undertake further tests, but noted that him achieving the required scores would not of itself overcome the issues raised by PIC 4020. The Tribunal agreed to grant the applicant additional time, until 31 March 2020, to provide any further information he wished the Tribunal to consider in respect of the issues in the review, which included cl.457.223(4)(eb) and PIC 4020.
After the hearing, the Tribunal ascertained that the relevant instrument in relation to the English language requirement for 457 visa applications made on or after 1 July 2017 and not finally determined is IMMI 17/057. The Tribunal observed that the relevant instrument did not require the applicant to achieve a score of at least 5.0 in each of the IELTS test components. Having regard to the relevant instrument, the Tribunal informed the applicant by letter dated 24 February 2020 that the scores he achieved in the IELTS test dated 17 August 2019 met the English language requirement specified in the relevant instrument. In the same letter, the Tribunal informed the applicant that it still had concerns regarding the requirements in PIC 4020(1) and that he could have until 31 March 2020 to provide supporting evidence regarding the waiver provision.
On 26 March 2020, the Tribunal received a letter of support, dated 25 March 2020, from the applicant’s current employer, Mr Kassem Zahr of Kas Smash Repairs.
The Tribunal observed from Departmental records that the approved nomination of an occupation in respect of the applicant had been made by a different sponsor, namely, the Nader Group Pty Ltd. On 26 June 2020, the Tribunal sought further information from the applicant regarding his employment with Kas Smash Repairs, whom the Tribunal noted is not his nominating employer. In response, the applicant provided a letter from the Director of Kas Smash Repairs, dated 8 July 2020, stating that they are ready to nominate the applicant for the position of panel beater.
On 14 July 2020, prior to the second hearing, the Tribunal sent a letter, pursuant to s.359A regarding the information obtained from the Departmental records, which the Tribunal explained was relevant to whether the applicant met the requirements of cl.457.223(4)(d). The applicant responded to the Tribunal on 23 July 2020 by email seeking an extension of time for Kas Smash Repairs to prepare a sponsorship application. On 24 July 2020, the Tribunal informed the applicants in writing that it had considered the response received on 23 July 2020 to be a response to the information in the s.359A invitation and that in the circumstances it was not necessary to grant an extension of time. The Tribunal noted that if the applicant is requesting the Tribunal to delay the making of its decision so that a new sponsorship can be lodged, then this would be discussed at the hearing.
As noted above, the applicant appeared before the Tribunal on 28 July 2020 to discuss the new issue in the review, being the requirement in cl.457.223(4)(d). The Tribunal also invited the applicant to provide further submissions regarding the waiver of PIC 4020(1).
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
There are three issues in this review: Firstly, whether the visa applicant meets the English language proficiency requirements in cl.457.223(4)(eb). Secondly, whether the applicant satisfies PIC 4020 as required by cl.cl.457.224 for the grant of the visa. Thirdly, whether the applicant’s intention to perform the occupation for which he has been nominated is genuine and whether the position associated with the nominated occupation is genuine as required by cl.457.223(4)(d).
English language proficiency
In the present case, cl.457.223(4)(eb) requires that if the applicant is not an exempt applicant as described in IMMI 17/057 and is not a person who will be paid at least a level of salary specified in that instrument in circumstances where it is considered the granting of the visa would be in the interests of Australia; then he or she must have achieved in a single attempt a test score specified in that instrument in the specified time.
The delegate indicated in the decision record that the applicant is not an exempt applicant as provided for in cl.457.223(11) and IMMI 17/057. There is also no evidence before the Tribunal which indicates that the applicant is an exempt applicant.
The applicant’s base salary, as indicated in the approved nomination by the Nader Group Pty Ltd in respect of the applicant, is $66,560. This is less than $96,400, being the base salary specified in the instrument. Therefore, cl.457.223(6) does not apply to the applicant.
Give the above, the applicant must therefore achieve, in a single attempt, the specified test score in an English test as specified in the instrument.
As noted above, the relevant instrument is IMMI 17/057, which specifies that for the purposes of an IELTS test, the applicant must achieve a minimum score of 4.5 in each component of listening, reading, speaking and writing, and a minimum overall band score of 5.0. These results must have been achieved within three years from the date of the visa application.
In this case, the applicant provided the results of an IELTS test undertaken on 17 August 2019, the results of which have been verified with IELTS, indicating that the applicant achieved the following scores: 4.5 for listening, 5.0 for reading, 5.5 for writing and 6.0 for speaking. He achieved an overall band score of 5.5.
The application for the visa was lodged on 31 May 2017, the results for the test undertaken on 17 August 2019 were therefore achieved within three years from the date of the visa application. It follows that the applicant meets the English language requirement in cl.457.223(4)(eb).
The Tribunal has next considered whether the applicant satisfies the requirements of PIC 4020.
Relevantly, PIC 4020(1) 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.
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).
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 (Trivedi).
During the review, on 27 August 2019, the Tribunal received an IELTS Report from the applicant for a test undertaken on 1 August 2019. In conducting verification checks, the Tribunal received adverse information regarding the scores indicated on that report. The particulars of the adverse information, as set out below, were put to the applicants for comment.
The particulars of the information are:
- On 27 August 2019, in support of your application for review, you provided to the Tribunal an IELTS Test Report Form (TRFN 19AU001767IVAS242G) indicating that you sat the IELTS test on 1 August 2019 and had achieved the following scores: 5.0 for listening, 5.0 for reading, 5.0 for writing, 6.0 for speaking and 5.0 as an overall band score.
- An officer of the Tribunal sought to verify these results using the IELTS online verification portal. During the verification checks, the officer found that the results for two of the components of the test differed. The online results indicated that you had achieved a score of 4.0 for reading and 6.5 for speaking. As the results for two of the components of the test differed, the Tribunal officer sought further information from the IELTS investigation unit about the authenticity of the IELTS Test Report Form provided, a copy of which was sent to the investigation unit.
- On 3 September 2019, the Tribunal received the following unfavourable information from the Investigations Coordinator:
In the s.359A letter, the Tribunal explained that the information, as particularised, is relevant because one of the requirements for the grant of the Subclass 457 visa that there is no evidence before the Minister (or Tribunal on review) that you have given, or caused to be given, to the Minister, a bogus document or information that is false or misleading in a material particular in relation to your application for the visa: PIC 4020(1).
The Tribunal explained that if it relied on the information, it may conclude that there is evidence before it that the applicant has given, or caused to be given, to the Tribunal, a bogus document, as defined in s.5 of the Act. That is, a document which the Tribunal reasonably suspects is a document that is counterfeit or has been altered by a person who does not have authority to do so. The Tribunal noted that it may then find that the applicant does not meet the requirements of PIC 4020(1). The Tribunal noted that if it so finds, and is not satisfied that there are compelling circumstances affecting the interests of Australia, or compelling or compassionate circumstances affecting the interests of an Australian citizen, Australian permanent residents, or an eligible New Zealand citizen that justify the grant of the visa, the decision under review would be affirmed.
In his email response to the Tribunal, on 29 October 2019, the applicant stated that according to the Tribunal’s letter he received a score of zero resulting in the cancellation of his application. He stated that English is not his first language and that he did the test to the best of his ability. He recalls asking for assistance from an officer at the college. He stated that he was surprised to receive the Tribunal’s correspondence and wants the opportunity to clear up any misunderstanding that may have occurred. He stated that he is an honest person and would never provide misleading information that would jeopardise his and his family’s chances of becoming permanent citizens.
At the hearing the Tribunal discussed with the applicant the discrepancies in the scores on the IELTS Report for the test undertaken on 1 August 2019, which the Tribunal noted appeared to have been altered. In response, the applicant stated that he did the test in Olympic Park and, when he went to pick up his results, he noticed that he was missing half a mark for one of the components. He stated that he knew this guy in Bankstown at the university when he did the test in Sydney. He stated that he told this person that the test was not good and that he should re-check it. He stated that he thought this person worked there because he told him ‘I can help you’. The applicant stated that the person told him a re-check normally costs $170, but if he (the applicant) gave him $100 he could do it for him and he could come tomorrow to get it fixed.
The Tribunal asked the applicant if it was his evidence that he had paid someone, whom he believed worked for an IELTS test centre, to alter the results of his IELTS Report. In response, the applicant stated no, the person worked inside the university and when he picked up his test results, he saw this person who is from Bankstown, whom he knew had worked at the university where he did the test. He stated that when he picked up his results, he told this person, who works for the university, that he had failed by half a point and wanted to do the re-check. He then asked this person if he knows how to do the recheck and this person told him that it costs $170 but he would have to wait for a week to do it. He stated that the person told him that he could help him because he worked there and he believed that this person could help him.
The Tribunal asked the applicant further details about how he obtained the IELTS Report which contained the altered results and who had submitted that report as part of his application. In his responses, the applicant gave evidence that he returned to Olympic Park on a Saturday to pick up the new results. He stated that the person told him “there is your picture and everything, send this to your agent I did the rechecking”. He stated that he gave the person $100 and sent the results to his visa agent. He stated that he did not know that this person faked anything. He stated that if he knew this, he would not have engaged with it because he and his family have been in Australia for 7 years and he has never engaged in anything unlawful. The applicant stated that he believed that person because that person worked there, and he did not think that this person would falsify evidence. He stated that he wanted to resit the test if he had not passed it and did not want to falsify it.
The Tribunal has carefully considered the relevant evidence before it as follows.
In this case, the document in issue is the IELTS Report relating to the test undertaken by the applicant on 1 August 2019 and submitted to the Tribunal on 27 August 2019, in which the scores for two components of the test did not match the scores recorded on the associated IELTS verification report.
For the applicant to meet PIC 4020(1), the Tribunal must be satisfied that there is no evidence that the applicant has given, or caused to be given, to the Tribunal a bogus document in relation to the application for the visa.

The evidence before the Tribunal is that the applicant has given, or caused to be given, to the Tribunal, in relation to his Subclass 457 visa application, an IELTS Report for a test undertaken on 1 August 2019 in which the results for two components of the test have been altered. The applicant sought to explain the discrepancies in the scores by stating that he had relied on another person, whom he believed worked for the University that conducted the IELTS, to re-check the results and that he did not think that this person had falsified the IELTS Report.
The Tribunal has first considered whether the IELTS Report document submitted to the Tribunal on 27 August 2019 in respect of the test undertaken on 1 August 2019 is a bogus document as defined in s.5 of the Act. The evidence before the Tribunal, which was obtained from the IELTS online verification portal, indicates that the results on the IELTS Report in issue have been altered. Further information received from the IELTS investigations co-ordinator indicates that the IELTS Report for which verification was sought did not match their records. On the basis of this evidence, the Tribunal suspects that the IELTS Report in issue is a document that has been altered by a person who does not have authority to do so. On this basis, the Tribunal finds that the IELTS Report given to the Tribunal on 27 August 2019 is a bogus document as defined in s.5(b) of the Act. This document is hereafter referred to as the bogus IELTS Report.
The applicant claims not to have known that the scores on the bogus IELTS Report had been ‘falsified’. However, it is not necessary, for the purposes of PIC 4020, for the Tribunal to establish that the applicant was aware that the information contained in the bogus IELTS Report is purposely untrue. Furthermore, PIC 4020(1) applies whether or not the document was provided by the applicant knowingly or unwittingly. As held in Trivedi, it is not necessary for a visa applicant to know of, or be directly involved in, any falsehood for PIC 4020 to be engaged.[1] Though the Court in Trivedi noted that there must have been knowledge or intention on somebody’s part for PIC 4020 to be engaged. The Tribunal is satisfied that the IELTS test report in issue has been purposely altered by somebody for the purpose of assisting the applicant to satisfy the English language requirement. On the applicant’s evidence, it appears that the person, whom the applicant believed worked for the University that conducted the IELTS test, had purposely altered the results on the bogus IELTS Report, which the applicant subsequently gave to his migration agent to submit to the Tribunal. Notwithstanding the applicant’s claim that he was unaware that the information on the bogus IELTS Report was untrue, the Tribunal is satisfied on the evidence before it that PIC 4020(1) applies in this case.
[1] Trivedi v MIBP (2014) 220 FCR 169 at [28], [33] and [49].
The Tribunal acknowledges that the applicant later, at the hearing, provided the original (unaltered) IELTS report for the test undertaken on 1 August 2019 to the Tribunal, however, this does not overcome the fact that on 27 August 2019 a bogus document had been given, or caused to be given, to the Tribunal in relation to the 457 visa application.
Given the above, the Tribunal is not satisfied that there is no evidence before it that the applicant has given, or cause to be given, to the Tribunal a bogus document in relation to his visa application. Therefore, the applicant does not meet PIC 4020(1).
Should the requirements of PIC 4020(1) or (2) be waived?
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.
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.
In determining whether the requirements in PIC 4020(1) should be waived, the Tribunal has carefully considered all of the relevant evidence before it as follows.
The Tribunal had regard to the applicant’s response to the s.359A invitation, in which he stated that he had undertaken the English test to the best of his ability, that English was not his first language, that he was surprised about the adverse information put to him by the Tribunal, that there appeared to be a misunderstanding and that he would never provide misleading information that would jeopardise the chance of his family becoming permanent Australian citizens. The Tribunal has considered all of these circumstances, and while it accepts that the applicant has made efforts to meet the English language requirement, and ultimately did, and that he and his family would like to become Australian citizens, these factors relate to the applicant and his family’s interests and do not, in the Tribunal’s view, amount to circumstances affecting Australia’s interests, or compassionate or compelling circumstances affecting the interests of an Australian citizen, permanent resident or New Zealand citizen. In relation to the applicant’s claim not to have provided misleading information and there being a misunderstanding, the Tribunal has already considered these claims against the requirements of PIC 4020(1) above.
The Tribunal has next had regard to the information in the medical certificate dated 3 February 2020 which states that the applicant has mild dyslexia and issues with reading due to academic difficulties and frustration with passing the test which has impacted his wellbeing and has had a negative impact on his family life. The Tribunal acknowledges the matters raised by the medical practitioner and acknowledges the difficulties that may have been experienced by the applicant and his family. While these factors may amount to compassionate circumstances, they are compassionate circumstances which affect the interests of the applicant and his immediate family, none of whom are Australian citizens, permanent residents or New Zealand citizens.
At the first hearing, the applicant was invited to comment on whether there are any compelling circumstances affecting the interests of Australia or compelling or compassionate circumstances that affected the interests of an Australian citizen or permanent resident or New Zealand citizen that he wanted the Tribunal to consider. The applicant stated that he apologised deeply, he did know and thought that the man he gave the paper to really worked at the University. When asked whether there were any other compelling or compassionate circumstances as to why he should be granted the Subclass 457 visa, the application stated that he can only ask to be given another chance because his family is here, he has a child and he feels guilty for what has occurred. The applicant stated that he really loves Australia, wants to stay, wants to be a good citizen and wants his son, who does not speak Serbian, to go to school in Australia. The Tribunal noted that his evidence relates to circumstances that affect his and his family’s interests, none of whom are permanent residents or citizens, and nor does his evidence suggest compelling circumstances affecting the interests of Australia.
The Tribunal explained to the applicant that any evidence he provides in support of the waiver should explain how it affects the interests of Australia, an Australia citizen, resident or New Zealand citizen. As noted above, the applicant was granted until 31 March 2020 to provide further supporting evidence in respect of the waiver, during which he provided a letter of support from his employer.
In the letter of support received after the hearing, the Director of Kas Smash Repairs stated the applicant is employed by the business as a qualified spray painter/panel beater. He stated that the applicant is a valuable employee who is a master of his trade and has the knowledge to repair their spray booth and any other equipment. The Director goes on to state that in these trying times they are relying on the applicant to keep the business open. The Tribunal notes that there was limited substantive evidence provided to support the claim that the business was relying on the applicant to remain open. Even accepting the importance of the applicant to the business, the Tribunal considers that any reliance on the applicant by the business to remain viable are circumstances which affect the interests of the business and do not constitute compelling circumstances affecting the interests of Australia. The Tribunal acknowledges that the smash repairs business may be disadvantaged if it is unable to maintain the applicant’s employment as a panel beater/spray painter, however, the Tribunal is not satisfied that this would amount to compelling circumstances affecting the interests of Australia.
There is also limited evidence before the Tribunal which suggests that the applicant’s highly regarded skills as a spray painter/panel beater are in high demand or highly sought after in Australia such that Australia would be disadvantaged if the applicant was unable to remain in Australia and continue to work in the trade. The Tribunal has had regard to the evidence on the Department’s file regarding the applicant’s skills, qualifications and experience, including his certificates in business from an Australian college and Diploma of Metal Trade (Auto Panel Beater) from Serbia, employment references and curriculum vitae indicating that he has worked as a panel beater and spray painter for various employers for over 15 years. While the material indicates that the applicant is an experienced panel beater/spray painter, it does not suggest that the applicant’s skills are in some way unique, in demand or highly sought after in Australia, such that Australia’s interests would be affected if his employment could not be maintained.
Having considered the information in the letter of support from Kas Smash Repairs, the Tribunal is not satisfied that the matters raised by the employer establish compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen, permanent resident or eligible New Zealand citizen.
When asked at the second hearing whether there were any further submissions he wished to make in relation to the waiver, the applicant initially stated that he had nothing further to say. When given a further opportunity later in the hearing, the applicant stated that he had sat the IELTS English test several times and had achieved the score of 5.0 in each category but on different occasions. The Tribunal noted that having achieved the required scores in the IELTS test is not a circumstance that comes within the provisions of the waiver. The applicant then stated that he and his family just want to stay in Australia, he wants to work, he is not a criminal and they have nowhere to go. The Tribunal has considered the applicant and his family’s circumstances however none appear to establish compelling circumstances affecting the interests of Australia or compelling or compassionate circumstances affecting the interest of an Australian citizen, permanent resident or eligible New Zealander.
Having carefully considered all of the evidence before it regarding the waiver, the Tribunal is unable to be satisfied that there are compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen, permanent resident or eligible New Zealand citizen, that justify the granting of the visa. It follows that the requirements in PIC 4020(1) should not be waived.
On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl. 457.224.
Genuine intention
Clause 457.223(4)(d)(i) requires the applicant to satisfy the decision maker that the applicant’s intention to perform the occupation is genuine. Clause 457.223(4)(d)(ii) further requires the applicant to satisfy the decision maker, that the position associated with the nominated occupation is genuine.
The Tribunal considers that the occupation, in the context of cl.457.223(4)(d), refers to the occupation that has been nominated under s.140GB by the approved sponsor, in respect of a position with the approved sponsor in which the applicant will be employed.
The evidence before the Tribunal indicates that the applicant was nominated for a position by the Nader Group Pty Ltd under s.140GB in the occupation of Panelbeater for the purposes of the Subclass 457 visa. The nomination was approved by the Department on 5 June 2018.
The Tribunal considers that for the applicant to meet the requirements of cl.457.223(4)(d), the Tribunal must be satisfied that the applicant intends to perform the occupation for which he has been nominated, namely that of Panelbeater with the Nader Group Pty Ltd. The Tribunal must also be satisfied that the position associated with the nominated occupation, being the position with the Nader Group Pty Ltd in the occupation of Panelbeater, is genuine.
The applicant informed the Tribunal that he ceased employment with the Nader Group Pty Ltd and that he is now employed by Kas Smash Repairs. The applicant also informed the Tribunal that Kas Smash Repairs is willing to sponsor him. This information raised the concern that the position with the Nader Group Pty Ltd in the occupation of Panelbeater is no longer a genuine vacancy and that the applicant may not be able to perform the nominated occupation with the approved sponsor if he is granted the Subclass 457 visa.
Further to the above, Departmental records before the Tribunal did not indicate that the applicant’s current employer, Kas Smash Repairs Pty Ltd, is an approved standard business sponsor who has nominated an occupation under s.140GB in relation to the applicant for the purposes of a Subclass 457 visa.
The above information was particularised in the second s.359A letter which was sent to the applicants on 14 July 2020. In the same letter, the Tribunal informed the applicants that the Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018 (the Amending Regulations) commenced 18 March 2018 and, among other things, repealed and replaced the criteria for nominations relating to proposed Subclass 457 (Temporary Work (Skilled)) visa applicants. It also noted that the Subclass 457 (Temporary Work (Skilled)) visa was also repealed and closed to new applications. The Tribunal explained to the applicants that the effect of the Amending Regulations is that any new nomination by another sponsor is not capable of supporting the applicant’s pending Subclass 457 visa.
In response to the Tribunal’s s.359A letter, the applicant wrote to the Tribunal requesting an extension of time to respond to the information as his employer, Kas Smash Repairs, was preparing their sponsorship application. As noted above, it was not necessary to provide any extension of time for a response as the applicant had already commented on the information and furthermore, the applicant would have a further opportunity to address the issue at the second hearing.
At the hearing, the Tribunal explained to the applicant the requirement in cl.457.223(4)(d) and the evidence before it which indicates that he will not be performing the tasks of the occupation for which he was nominated by the Nader Group Pty Ltd and that the position associated with that nominated occupation is no longer genuinely available to him.
In response, the applicant stated that he lost the nomination at the Nader Group after an incident. He stated that after working for CNR Autobody (being the trading name of the Nader Group Pty Ltd) for two and a half years, he worked on a large van and he fell from the van and injured his leg. He stated that he did not think it was anything serious, but the boss told him to rest at home. He stated that there was a video recording of him falling and that there should have been a scaffold. The applicant stated that he noticed on the payslip that the employer did not pay his wages properly and when he asked his employer about the payment he was told that he did not have any sick leave and they had to pay him through his holiday leave. The applicant stated that he then requested the video of him falling (the incident) and that the employer got scared and asked him if he was playing a game. The applicant stated that he continued to work for CNR for a period of three months, after which the employer informed him that they had no more work and must terminate his employment. The applicant stated that he told the employer that he needed to work to support his family, but they would not listen. The applicant stated that he has since returned to CNR requesting to be employed by them but they did not want to take him back.
The applicant then stated that his current employer, Kas Smash Repairs, are willing to sponsor him but they require additional time to apply for the sponsorship. The Tribunal explained to the applicant that a new nomination from Kas Smash Repairs would not assist him in this review because any new nomination under the temporary work program lodged by Kas Smash Repairs can only be for the new type of work visa, namely, the Temporary Skill Shortage (Subclass 482) and cannot support this review which is for a Subclass 457 visa.
In relation to the applicant’s request to delay the review, the Tribunal explained to the applicant that if there was any merit in delaying the finalisation of the review, it would consider it, however, given the circumstances, namely that he will not be working for the approved sponsor in the nominated occupation and the legislative changes which mean he cannot obtain a new nomination for the purposes of the 457 visa, the Tribunal was not minded to delay the review any further. For these reasons, the Tribunal considered it appropriate to proceed to a decision in this matter.
In determining whether the applicant satisfies the requirements of cl. 457.223(4)(d), the Tribunal has considered the evidence before it as follows.
The nomination of an occupation that was made in relation to the applicant for the purposes of the Subclass 457 visa is that which was made by the Nader Group Pty Ltd and approved by the Department on 5 June 2018. While that nomination remains in effect by virtue of the savings provision in the Amending Regulations, the evidence before the Tribunal indicates that the applicant is no longer employed by the Nader Group Pty Ltd in the nominated occupation and that the position with the nominating employer is no longer available. Indeed, the applicant has taken up another position, whilst also in the occupation of panelbeater, with another entity, namely, Kas Smash Repairs, which is not an approved sponsor that has nominated the applicant for a Subclass 457 visa.
Furthermore, due to the legislative changes that came into effect on 18 March 2018, the applicant’s current employer, Kas Smash Repairs, will not be able to obtain a new nomination that is capable of supporting the applicant’s outstanding application for the Subclass 457 visa. This is because the post 18 March 2018 version of r.2.72 for approval of a nomination can only be made in respect of a holder of a Subclass 457 or 482 visa or an applicant or proposed applicant for a Subclass 482 visa, none of which to apply to the applicant in this case.

The only position for which the applicant has been approved under the Subclass 457 program, and against which he can be assessed for the requirements in cl.457.223(4), is the position nominated by the Nader Group Pty Ltd in the occupation of Panelbeater.
The Tribunal acknowledges the reasons given by the applicant as to why the applicant is no longer employed by the Nader Group Pty Ltd, however, there is no provision in the legislation to take into account these circumstances and the Tribunal must make its decision in accordance with the applicable regulations.
As the applicant will not be performing the occupation of Panelbeater with the nominating employer, the Tribunal is not satisfied that the applicant’s intention to perform the occupation is genuine. It follows that the requirement in cl. 457.223(4)(d)(i) is not satisfied.
Further to the above, the Tribunal is also not satisfied that, at the time of this decision, the position associated with the nominated occupation, being the position nominated by the Nader Group Pty Ltd for occupation of Panelbeater, is genuine. It follows that the requirement in cl. 457.223(4)(d)(ii) is not satisfied.
Conclusion
Given the above findings, the Tribunal must affirm the decision under review.
Secondary applicants
The secondary applicants applied for their visas on the basis of being members of the family unit of the first named applicant. As the first named applicant does not satisfy one of the requirements for the grant of the visa, the Tribunal must also affirm the decision in respect of the secondary applicants.
DECISION
The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.
R. Skaros
Senior 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.
…

[2020] AATA 4004

6 August 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies