Jargalsaikhan (Migration)

[2022] AATA 1632

Jargalsaikhan (Migration) [2022] AATA 1632 (3 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Undrakh Jargalsaikhan
Mr Turbold Batbayar
Miss Tankhil Batbayar
Mr Tuukht Batbayar
Mr Batbayar Badamsad

REPRESENTATIVE:  Mr Miklos Rakos (MARN: 1173293)

CASE NUMBER:  1925029

HOME AFFAIRS REFERENCE(S):          BCC2019/1247021

MEMBER:Namoi Dougall

DATE:3 March 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 – Employer Nomination Scheme visa:

·public interest criterion 4020 for the purposes of cl 186.313 of Schedule 2 to the Regulations

And the secondary applicants meet the following criteria for Subclass 186 – Employment Nomination Scheme visas:

·public interest criterion 4020 for the purposes of cl 186.313 of Schedule 2 to the Regulations.

Statement made on 03 March 2022 at 5:42pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – primary applicant failed to declare the secondary applicant’s convictions in 457 application – secondary applicant had no intention of providing false or misleading information – lack of understanding of Australian law – child is now an Australian citizen – there are compassionate circumstances affecting the interests of an Australian citizen – requirements of PIC 4020(1) should be waived – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 186.313, Schedule 4 Public Interest Criterion 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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 August 2019 to refuse to grant the applicants Employer Nomination (Permanent) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 12 March 2019. The delegate refused to grant the visas on the basis that Ms Undrakh Jargalsaikhan (the primary applicant) did not satisfy the requirements of cl 186.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied that her spouse, Mr Batbayar Badamsad (the secondary applicant), met the requirements of public interest criterion (PIC) 4020 of Schedule 4 to the Regulations and, therefore, cl 186.313. The delegate found that the secondary applicant had given information that was false and misleading in a material particular with regard to answers to questions in the application for his Subclass 457 visa, a visa he held in the 12 months immediately preceding his Subclass 186 visa application, which is the subject of this review.

3. The applicants appeared before the Tribunal on 3 March 2022 to give evidence and present arguments.

4. The applicants were represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this review is whether the applicants meet PIC 4020 as required by cl 186.313 for the grant of the visa. Broadly speaking, this requires that:

   ·there is no evidence that the applicants have 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 applicants held in the 12 months before the application was made: PIC 4020(1); and

   ·the primary applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and

   ·the applicants satisfy the Minister as to their identity: PIC 4020(2A); and

   ·neither the primary applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA).

7. The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.

   Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?

8. The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and the term ‘bogus document’ is defined in s 5(1) of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.

9. The requirement in PIC 4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant: PIC 4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.

10. While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42.

11. On 29 June 2015, the primary applicant lodged a Subclass 457 visa application in which she failed to declare the secondary applicant’s convictions in Australia, that is, she answered ‘No’ to the question: ‘Have you, or any person included in this application to apply for this visa ever: Been convicted of a crime or offence in any country (including any conviction which is now removed from official records?’. The National Police Certificate issued by the Australian Federal Police on 22 August 2018 (the AFP Certificate) as part of the applicants’ Subclass 186 visa application indicated that the secondary applicant had disclosable court outcomes from the Downing Centre Local Court on 8 April 2014 for the following offences: used unregistered registrable class A motor vehicle on road; drive while licenced expired; driver or rider state false name or address; and ‘use vehicle not comply with standard: tyres’. The secondary applicant was fined for each offence including the separate offences listed in the last offence.

12. On 20 July 2019, the Department sent the primary applicant a natural justice letter (the natural justice letter) which stated that the primary applicant answered no to the question: ‘Have you, or any person included in this application to apply for this visa ever: Been convicted of a crime or offence in any country (including any conviction which is now removed from official records?’. The letter referred to the convictions recorded on the AFP Certificate and set out the requirements for meeting PIC 4020. The letter also invited the primary applicant to comment on the information suspected to be false and misleading in a material particular and asked for information as to whether there were any compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, to justify the waiver of PIC 4020.

13. On 20 July 2019, the primary applicant’s representative responded to the natural justice letter stating that she responded ‘No’ to the character declaration question as the Local Court had imposed fines and not a criminal sentence or imprisonment so there was no criminal convictions. It was further submitted that the secondary applicant did not provide a bogus document or provide false and misleading information as the AFP Certificate was uploaded with the Subclass 186 visa application and a change of incorrect answer has also been uploaded. Subsequently the representative requested that the Department disregard the ‘notice of incorrect answer’ lodged incorrectly as part of the Subclass 186 visa application.

14. On 23 July 2019, the representative provided a submission in response to the natural justice letter (the first submission). It was submitted that the secondary applicant had no intention of providing false or misleading information, that he genuinely was not aware that a criminal offence had been recorded and he still believed that the offences were not considered criminal offences.

15. On 13 January 2021, the Tribunal was provided with the Australian Citizenship Certificate of the primary applicant’s second child, Miss Tankil Batbayar, dated 4 December 2020 (the citizenship certificate).

16. The Tribunal invited the applicants to provide, pursuant to s 359(2) of the Act, a submission that there are compelling circumstances affecting the interests of Australia, or compelling or compassionate circumstances affecting the interest of an Australian citizen, Australian permanent resident, or an eligible New Zealand citizen that justify the grant of the visa. After being granted an extension of time to respond, on 18 January 2022 the primary applicant provided a submission, including information and additional statutory declarations, which are summarised below.

17. In a statutory declaration dated 15 May 2020 (the primary applicant’s first statutory declaration), the primary applicant stated that she, the secondary applicant and her elder two children were all granted Subclass 457 visas. They were not required to provide AFP Certificates with the application. The primary applicant stated that in Mongolia traffic offences and minor traffic matters are treated as administrative breaches and not recorded on a person’s criminal record. Further, she and the secondary applicant did not have any legal knowledge as to the meaning of offence, therefore, they did not set out to deliberately deceive the Department.

18. On 28 February 2022, the applicants provided to the Tribunal a statutory declaration of the secondary applicant dated 25 February 2022 (the secondary applicant’s statutory declaration) in which he stated that on 17 February 2014 he was asked to pick up a friend from the airport and as his learner licence was suspended, he asked his housemate to come with him. On the way back from the airport his housemate received an emergency call from his wife and left the car. The friend who they had picked up from the airport had her licence but was nervous and uncomfortable when she got into the driver’s seat. The secondary applicant decided to help her and to avoid an accident as his friend was not used to driving on the left-hand side of the road; he decided to drive but was stopped by the police. As he did not intend to drive, he did not have any documents with him except his bank card. Further, he was driving his friend’s car and did not know that the registration had expired or know about the condition of the vehicle. He also stated that he wanted to know more about Australian traffic laws and regulations, so he successfully completed the Traffic Offenders Course last year.

19. At the hearing the primary applicant stated that she understands the reason for the refusal of the visa. They stated ‘No’ to the question about the character declaration due to lack of understanding of Australian law and that traffic offences are criminal offences. The Tribunal directed the primary applicant to the character declaration which referred to ‘crime or offence’ and the primary applicant stated that they did not understand the question. The Tribunal referred to the secondary applicant learning to drive and needing to learn about Australian law, and noted that he had to go to court because of the seriousness of the offences, including providing incorrect details to a police officer about his name and address. The secondary applicant stated that he understands the seriousness of the offences but he was confused about the criminal part of the question. At the hearing the secondary applicant stated that he understands now about traffic laws. He said that he went to pick up his friend and when he was stopped by the police he was shocked and nervous and showed the documents he had; he has now learnt from his mistakes.

20. At the hearing, as noted above, the Tribunal referred to the secondary applicant learning to drive and learning about Australian law and traffic offences as part of obtaining a driver licence, and observed that the secondary applicant went to court and was not just given an on-the-spot fine. The secondary applicant stated that he was learning about Australian traffic law and he understands that he breached traffic laws but he did provide all documentation with the visa application.

21. At the hearing Miss Batbayar stated she is in Class 6Y at Chatswood Public School. The class is a bilingual Korean and English class. She finds it hard sometimes, but she practices a lot and it gets easier. At school she has a best friend called Everlin and they see each other out of school such as going to the park or going home together. She has other friends, and they hang out together and sometimes go to the cinema. Her favourite subjects are maths and English and she hopes to go to Sydney Girls High School and to then study law as she finds it fascinating. She likes to read books and plays with her little brother. She speaks with her grandparents in Mongolia about once every 2 months. She knows something about Mongolia but not much. The countryside is great and lots of her relatives live there. She would prefer to stay in Australia as she likes it and she has adapted to the environment.

22. At the hearing the primary applicant stated that they have been in Australia for 11 years and her youngest two children were born here and her eldest son has been here since he was 5 years old. It would be difficult if refused the visa as the children are all settled in Australia. The secondary applicant stated that he regrets his actions and he is learning from his mistakes.

23. The last substantive visa held by the primary applicant prior to the Subclass 186 visa application was the Subclass 457 visa granted to the applicant on 15 July 2015. The Tribunal, on the evidence, is satisfied that the applicant provided false and misleading information in his Subclass 457 visa application made on 14 July 2014, as he answered ‘No’ to the character declaration question: ‘Have you, or any person included in this application to apply for this visa ever: Been convicted of a crime or offence in any country (including any conviction which is now removed from official records?’ At the time the declaration was made the answer was false and misleading as the secondary applicant had been convicted of offences at a court date of 8 April 2014 and, therefore, the offences occurred prior to the Subclass 457 application, and are as follows: ‘used unregistered registrable class A motor vehicle on road; drive while licenced expired; driver or rider state false name or address use vehicle not comply with standard: tyres’. As the secondary applicant’s offences were serious enough for him to have to attend court the Tribunal is satisfied that both the primary applicant and secondary applicant were aware of his convictions for offences and purposely provided a false and misleading answer to the character declaration in the Subclass 457 visa application, which is the last substantive visa held by the applicants in the 12 months immediately preceding the Subclass 186 visa application currently under review.

24. Clause 186.213(1) requires a primary applicant to satisfy character requirements under PIC 4020 and cl 186.313 requires secondary applicants to satisfy character requirements under PIC 4020. The primary and secondary applicants concealment of the secondary applicant’s offences affected a full character check being obtained and assessed. Therefore, the Tribunal is satisfied that all of the false and misleading information is relevant to criteria the Minister may take into account when making a decision.

25. On all of the above, the Tribunal is satisfied that the primary applicant and the secondary applicant in their Subclass 457 visa applications provided to the Department information that is false and misleading in a material particular in relation to the secondary applicant’s convictions for offences and, therefore, the Tribunal finds accordingly.

26. Therefore, the primary and secondary applicants do not meet PIC 4020(1).

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

27. The requirements of PIC 4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in reg 1.03 of the Regulations), 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.

28. 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.

29. The case presented for the applicant relies upon submissions and evidence set out below and that there are grounds for the Tribunal to waive the requirements of PIC 4020(1) and (2) on the basis there are compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen or an Australian permanent resident.

30. The Tribunal notes that for the purposes of the application of the regulation, a corporation is not an Australian citizen. The emphasis or focus of the waiver provisions is on the interests of Australia, or the interests of Australian citizens or Australian permanent residents, triggered by compelling circumstances or compelling and compassionate circumstances.

31. In order to engage with the question of waiver, the Tribunal must embark on a 2-step enquiry, firstly to consider whether there are compelling circumstances or compassionate or compelling circumstances as required in PIC 4020(4)(a) or (b); and secondly, whether to then exercise discretion to waive the requirements in PIC 4020(1) and (2), having regard to all the relevant facts and circumstances arising.

32. Although the Tribunal is not bound by Departmental policy, it has had regard to the elements emphasised in the policy in terms of the exercise of discretion. In particular, the policy guidelines in ‘Sch4/ 4020 - The Integrity PIC’ state the following in respect of compelling and compassionate circumstances:

    37 Compelling and/or compassionate circumstances…

    37.2 Compelling circumstances affecting the interests of Australia 4020(4)(a) …

    There may be compelling circumstances affecting the interests of Australia if:

    ·     Australia's trade or business opportunities would be adversely affected were the person not granted the visa (Note: under policy gaining employer sponsorship is not considered sufficient grounds for a waiver);

    ·     Australia's relationship with a foreign government would be damaged were the person not granted the visa; or

    ·     Australia would miss out on a significant benefit that the person could contribute to Australia's business, economic, cultural or other development (for example, a special skill that is highly sought after in Australia) if the person was not granted the visa.

1. Departmental policy also states that compelling circumstances affecting the interests of Australia would not include circumstances if the non-citizen merely claims that, if granted the visa, they would:

   ·     work and pay taxes in Australia or

   ·     pay fees to an education provider or

   ·     spend money in Australia.

2. In relation to PIC 4020(2)(b), the following appears in the policy regarding compassionate or compelling circumstances affecting the interests of an Australian resident, permanent resident or eligible New Zealand citizen:

   The circumstances for consideration must be of compassionate or compelling nature in the way they affect the Australian citizen, permanent resident, or eligible New Zealand citizen. Compassionate or compelling circumstances that affect the applicant are not relevant for consideration unless they also directly affect an Australian citizen, permanent resident or eligible New Zealand citizen. The wording of PIC 4020(4)(b) requires that either compassionate or compelling circumstances exist that affect the interests of an Australian citizen, permanent resident or eligible New Zealand citizen. To waive the requirements of any or all of PIC 4020(1) and/or (2), the applicant's claims must have a compelling or compassionate element particular to that individual case that are beyond those usually present in that visa caseload.

3. The Tribunal will first consider PIC 4020(4)(a) and whether there are compelling circumstances that affect the interests of Australia.

   The primary applicant’s employment with Bridge Blue Pty Ltd

4. A submission dated 1 February 2020 (the second submission) was provided to the Tribunal and stated that Bridge Blue, the primary applicant’s sponsor, had 35 offices in 25 countries and a team of more than 150 global counsellors and it represents over 450 educational providers.

5. In the primary applicant’s first statutory declaration, the primary applicant stated that she started to work for Bridge Blue in 2014 shortly after she completed her Masters of Business at Charles Sturt University. Bridge Blue had opened an office in Ulaanbaatar, Mongolia in 2013 and needed a Mongolian speaking marketing specialist to maintain its presence in the Mongolian market. The primary applicant was granted a Subclass 457 visa with Bridge Blue being her business nominator and who again nominated her for a Subclass 186 visa as the Mongolian market was growing and Bridge Blue needed a permanent employee. The primary applicant stated that she has made a contribution to Bridge Blue as the company’s turnover has increased significantly with Mongolian sales increasing 49% to $1,566,820 in the 2018/19 financial year. The primary applicant also stated that she had trained hundreds of staff and franchisors across all locations.

6. The Tribunal was provided with financial reports and other information supporting the claim that Bridge Blue’s Mongolian sales had increased significantly as had the turnover of the company. Also provided was a letter of support from Education Centre Australia which stated that Bridge Blue’s market share of the Mongolian market is at least 70% and it has 3 offices in Ulaanbaatar. Similar letters were provided from Think Education, Western Sydney University. Reference letters were also provided by students who have been supported by the applicant while studying. The Ambassador of Mongolia to Australia also provided a reference letter dated 19 February 2020 in which he referred to Bridge Blue being a leading education and migration agency with which the embassy has worked for many years and thanked the primary applicant for her support of Mongolian students. The letter also stated that the efforts of Bridge Blue and the primary applicant have led to significant strengthening of people-to-people links between Mongolia and Australia.

7. Also provided to the Tribunal was an agreement between the University of New South Wales and Bridge Blue for the recruitment of international students and similar agreements with the University of Western Sydney and the University of Queensland.

8. The second submission referred to the above supporting information and stated that the loss of the primary applicant as an employee would cause significant financial loss for Bridge Blue as well as the education sector and the wide community.

9. The applicant is well regarded by her current employer and business sponsor, Bridge Blue, the students she has supported and education providers. The Tribunal is satisfied that the primary applicant has contributed to the business’s success and provides training. The Tribunal accepts that the business will be inconvenienced and may lose some clients but due to the high demand for its services and the scale of its business Bridge Blue is likely to recover from the loss of the primary applicant as an employee.

10. Further, the requirements are that the interests of Australia are affected not just those of one business. The Tribunal has considered Departmental policy and is not satisfied on the evidence that: Australia would miss out on trade or business opportunities; Australia’s relationship with a foreign government would be damaged; or that Australia would miss out on a significant benefit that would contribute to Australia’s business, economic, cultural and other development, if the applicant was not granted the visa.

11. The Tribunal will now consider PIC 4020(4)(b) and whether there are compassionate or compelling circumstances that affect the interests of an Australian citizen, Australian permanent resident or an eligible New Zealand citizen.

12. The Tribunal notes that according to the Macquarie Dictionary online the term ‘compelling’ is defined to mean: ‘1. demanding attention or interest… 2. convincing: a compelling argument’. It defines ‘compassionate’ to mean: ‘1. having or showing compassion. 2. on the grounds of compassion: compassionate leave… 4. to have compassion for; pity’.

    Family circumstances

13. The primary applicant in her first statutory declaration referred to having first arrived in Australia in 2010 on a student visa. Her eldest son arrived in 2013 and is now studying in Year 9 at high school. The Tribunal notes that the primary applicant’s eldest son was born on 15 December 2005 and is 16 years old. Her second and third child were born in Australia, with the elder of the two in Year 4 of primary school. The Tribunal notes that the primary applicant’s second child was born on 4 December 2010 and is 11 years old. Further, as referred to above she is an Australian citizen. The primary applicant’s youngest child was born on 5 September 2017 and is 4 years old.

14. On 19 January 2022 the Tribunal was provided with a submission by the applicants’ then representative which was addressed to the Department and dated 23 March 2021. It was submitted that the primary applicant’s daughter, who was now an Australian citizen, has English as her primary language and does not speak, read or write Mongolian. As a minor she does not have a say or involvement in the decisions made by her parents who manage her life. Her life revolves around school. She lives with her parents and is reliant physically, psychologically and financially on her parents. It was submitted that the primary applicant’s daughter would suffer significant hardship or disadvantage if the waiver provisions were not decided favourably as her need to grow up in a safe and stable environment is a personal need as opposed to a personal want. She would have to learn a new language and adjust to different social, cultural and educational norms.

15. The primary applicant provided to the Tribunal a statement dated 11 January 2022 in which she referred to her second child having spent all of her life in Sydney and only speaking English. Further, this child is now an Australian citizen. The primary applicant’s second child went to Bourke Street Primary School where she received numerous certificates of achievement and now studies at Chatswood Public School. She studies Korean and Chinese and continues to earn certificates of achievement. The primary applicant stated that her daughter participates in community events and has earned a certificate as an outstanding Chatswood Public School citizen. Further, the primary applicant stated that her daughter aspires to study commerce and law at the University of Sydney.

16. In her statement, the primary applicant also stated that by residing in Australia for over 11 years she has been able to give them a better life and opportunities. If her daughter was forced to depart Australia to live in Mongolia, she would be living in a country she neither shares any emotional or cultural connection with nor identifies with.

17. In relation to her other children the primary applicant stated in her statement that they are not socially or culturally distant from Australian social and cultural values. Her eldest son has resided in Australia since he was 5 years old and now is in Year 11. Her youngest child started preschool last year and only speaks English. All her children wish to remain in Australia and forcing them to live elsewhere would cause them emotional and mental harm. The primary applicant stated that she and the secondary applicant have worked hard, and they now own their own apartment and have savings to invest in their children’s future.

18. In the secondary applicant’s statutory declaration, he stated that as the primary applicant works full time he has looked after their children, but now his youngest is attending preschool he has completed a real estate agent’s course and joined an agency as a sales assistant.

19. The primary applicant’s daughter, Miss Tankil Batbayar is an Australian citizen. The Tribunal acknowledges that the child is a minor and is cared for by the primary and secondary applicants. If the waiver is not applied, the primary and secondary applicants may not be eligible for the visa and that may result in the child being separated from her mother or father, or the child being required to leave Australia with her parents.

20. Miss Batbayar and her younger brother were born in Australia and brought up in Australia, only speaking English, and have been integrated into an Australian way of life, as well as Australian schooling. This includes the elder son who has been in Australia since the age of 5 years. The Tribunal accepts that Miss Batbayar has formed relationships with her school friends in Australia. The Tribunal accepts that some hardship may be caused if the child was to relocate to Mongolia permanently or on a long term basis, given the child’s connections in Australia. Given the child’s young age and her dependence on her mother and her father, as well as the fact that she has lived her entire life in Australia, the Tribunal is of the view that there are compassionate circumstances affecting the interests of an Australian citizen child.

21. The Tribunal finds that there are compassionate circumstances affecting the interests of an Australian citizen. Therefore, the requirements of PIC 4020(1) should be waived in relation to the primary applicant and all of the secondary applicants.

    Has the applicant satisfied the identity requirements?

22. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity. 

23. There is no evidence before the Tribunal to suggest that there is any issue with the applicants’ identity. Both the Department and the Tribunal have been provided with a copy of the detail pages of the applicants’ passports.

24. Therefore, the applicants meet PIC 4020(2A).

    Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?

25. 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).

26. There is no evidence before the Tribunal to show that the primary or secondary applicants have been refused a visa in the relevant period because of a failure to satisfy PIC 4020(2A).

27. On the basis of the above, the primary applicant does satisfy PIC 4020 for the purposes of cl 186.213 and all of the secondary applicants satisfy PIC 4020 for the purposes of cl 186.313.

    DECISION

28. The Tribunal remits the applications for Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 – Employer Nomination Scheme visa:

    ·PIC 4020 for the purposes of cl 186.213 of Schedule 2 to the Regulations

    And the secondary applicants meet the following criteria for Subclass 186 – Employment Nomination Scheme visas:

    ·PIC 4020 for the purposes of cl 186.313 of Schedule 2 to the Regulations.

    Namoi Dougall
    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.

    …