Kaur (Migration)
[2023] AATA 941
•20 February 2023
Kaur (Migration) [2023] AATA 941 (20 February 2023)
Corrigendum
DIVISION:Migration & Refugee Division
APPLICANTS: Ms Ranjit Kaur
Mr Sukhdeep Singh Sidhu
Mr Gurnoor Singh SidhuREPRESENTATIVE: Mr Etienne de Villiers Hugo
CASE NUMBER: 1923022
HOME AFFAIRS REFERENCE(S): BCC2018/6027822
MEMBER:Namoi Dougall
DATE OF DECISION: 20 February 2023
DATE CORRIGENDUM
SIGNED:22 February 2023
PLACE OF DECISION: Sydney
AMENDMENT: The following corrections are made to the decision:
That the front page of the Decision be changed so that:
References to “Subclass 186” be replaced by “Subclass 187”, references to “cl 186.313” be replaced by “cl 187.313” and “cl 186.213” be replaced by “cl 187.213”.
That paragraphs 94 and 95 of the Decision be changed so that:
References to “Subclass 186” be replaced by “Subclass 187”, references to “cl 186.313” be replaced by “cl 187.313” and “cl 186.213” be replaced by “cl 187.213”.
Namoi Dougall
Member
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS: Ms Ranjit Kaur
Mr Sukhdeep Singh Sidhu
Mr Gurnoor Singh SidhuREPRESENTATIVE: Mr Ettienne de Villiers Hugo
CASE NUMBER: 1923022
HOME AFFAIRS REFERENCE(S): BCC2018/6027822
MEMBER:Namoi Dougall
DATE:20 February 2023
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 20 February 2023 at 8:40pm
CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – bogus document – IELTS test report – fraudulently altered – purposeful falsity – not necessary to show knowing complicity – waiver of requirement – compelling and compassionate circumstances – Australian citizen child – ‘ordinarily resident’ requirements – impact on Australian employer – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 187.213, 187.313; 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 Home Affairs on 1 August 2019 to refuse to grant the applicants Regional Employer Nomination (Permanent) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 8 January 2019. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl 187.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate found that the applicant had provided with his Subclass 457 visa application a bogus document which was a fraudulently alter IELTS test. The delegate did not consider whether there were any compelling or compassionate reasons justifying the granting of the visa.
The applicants appeared before the Tribunal on 8 November 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Master Gurnoor Singh Sidhu the applicant’s son. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages
The applicants were represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 187.213 for the grant of the visa. Broadly speaking, this requires that:
· there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and
· the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and
· the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and
· neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA).
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?
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.
The applicant first arrived in Australia on 17 May 2009 on a Subclass 572 visa and was subsequently granted various student visas. The history of the applicant’s visa applications relevant to this review is set out below.
On 24 February 2016, the applicant lodged a Subclass 187 visa application (the first Subclass 187 visa application). The applicant provided with this application an IELTS test results (TRF 51N008855TR855G) dated 18 April 2015 (the 2015 IELTS test report).
The 2015 IELTS test report indicated that the applicant had obtained the following results:
Listening: Band 6.0
Reading: Band 6.0
Writing: Band 6.0
Speaking: Band 6.5
Overall Band Score: 6.0On 13 January 2017, the Department refused the first Subclass 187 visa application on the basis that the related business nomination application for approval of a nomination in relation to the position of Chef by JP Restaurants & Catering Pty Ltd trading as Melting Chilli Restaurant and Bar (the nominating business) had earlier been refused.
On 30 December 2016, the applicant lodged a Subclass 457 visa application. Provided with the application was the same 2015 IELTS test report. The Subclass 457 visa was granted on 10 April 2018 and was in effect until 16 December 2020.
On 25 June 2018 the Tribunal set aside the Department’s decision in relation to the nomination application by the nominating business and substituted a new decision to approve the nomination under r.5.19(4) of the Regulations. On the same day the Tribunal remitted to the Department the delegate’s decision refusing to grant the applicant a Subclass 187 visa.
On 26 July 2018, the Department sent the applicant a s.57 natural justice letter which advised that the Department had conducted verification checks for the first Subclass 187 visa application and that the 2015 IELTS report report was verified by the Department as a fraudulently altered document. The actual scores the applicant achieved were as follows:
Listening: Band 5.0
Reading: Band 4.5
Writing: Band 5.5
Speaking: Band 5.0
Overall Band Score: 5.0On 4 September 2018, the first Subclass 187 visa application was withdrawn.
On 8 January 2019, the applicant lodged the current Subclass 187 visa application. Provided with the application was a PTE Academic test score report issued on 21 December 2018 for the applicant which indicated that the overall score was 59.
On 3 June 2020, the Department issues a Notice of Intention Consider Cancellation in relation to the applicant’s Subclass 457 visa.
On 16 December 2020, the Department cancelled the applicant’s Subclass 457 visa under s.109(1) of the Act on the basis that the applicant failed to comply with sections 101(b) and 103 of the Act by providing a bogus IELTS English test report and incorrect answers about her English test results on her Subclass 457 visa application form.
On 21 May 2021, the Tribunal (differently constituted) set aside the delegate’s decision and substituted a decision that the applicant’s Subclass 457 visa not be cancelled.
On 8 January 2019, the applicants lodged the Subclass 187 visa application the subject of this review (the Subclass 187 visa application). Provided with the application was a PTE Academic test report which indicated that the applicant received an overall score of 59.
On 9 April 2019, the Department wrote to the applicant a natural justice letter which set out the above information in relation to the IELTS test report (the natural justice letter). The Department also invited the applicant to comment on the above information. The natural justice letter also referred to PIC 4020 still being satisfied in circumstances where there are compelling circumstances affecting the interests of Australia, or compelling or compassionate circumstances affecting the interests of an Australian citizen, Australian permanent resident or an eligible New Zealand citizen that justify the grant of the Subclass 187 visa.
The applicant did not respond to the natural justice letter.
On 1 August 2019, the delegate refused to grant the Subclass 187 visas.
On 8 August 2022, the Tribunal wrote to the applicants pursuant to s.359(2) of the Act inviting the applicants to provide submissions as to whether there are compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interest of Australian citizens, an Australian permanent resident or an eligible New Zealand citizen.
On 22 August 2022, the applicant responded to the Tribunal’s letter with a detailed submission (the August 2022 submission) and supporting documentation. The submission referred to the 2015 IELTS and stated that: “it is not denied that this IELTS Test Report thereby amounted to a ‘bogus document’ (as defined in Section 5 of the Migration Act), we ask that the Member please consider the extenuating circumstances that are outlined [in the submission] …”. It was submitted that the applicant believed the 2015 IELTS test document she received from Brar English Coaching Centre (BECC) in India was original and correct and she provided the 2015 test result with the Subclass 457 and 187 visa applications on that basis. It was further submitted that a Senior Member of this Tribunal in another matter accepted that the applicant relied on the information and documentation provided to her by BECC and that she was not aware that the information was incorrect or that the document was bogus.
It was further submitted in the August 2022 submission that the applicant never had the intention of providing fraudulent information and if the applicant had known that the score was wrong, she would not have submitted the 2015 IELTS test score. This it is submitted is plausible as the applicant has strong English language skills which is proven by a subsequent test. It was conceded in the submission that purposeful falsity can exist even where the applicant does not have knowledge of the fact. The purposeful falsity was on the part of BECC potentially to receive positive outcomes, so clients refer others to the BECC. Once the applicant became aware of the adverse information, she took steps to complete another English language test which was submitted to the Department as part of her Subclass 187 visa application. It was submitted, however, that the applicant could not rectify the incorrect information as her Subclass 457 visa had already been approved.
It was submitted in the August 2022 submission that the applicant was in India attending a wedding when she attended the BECC while she has some time available. The submission went on to refer to the stress, uncertainty and challenges faced by the applicant and her family over 7 years and that the applicant has learned valuable lessons and understands the seriousness of public interest criteria.
The August 2022 submission then went on to discuss the applicant’s successful review by the Tribunal of the Department’s cancellation of the applicant’s Subclass 457 visa under s.109 of the Act. The submission referred to the senior member stating that the cancellation was not solely based on the wrong information and if the correct information had been provided which is a genuine IELTS test then the applicant would have qualified for the visa. Although it was conceded that the legislative basis for cancelling a visa differs from a refusal of a visa on the grounds that PIC 4020 has not been met, it was submitted that some of the findings of the senior member are relevant to the current review. In particular, findings made by the senior member which can also relate to compelling circumstances that affect the interests of Australia and Australian citizens.
The applicant lodged an application with the Federal Court of Australia seeking to overturn the cancellation of the applicant’s son’s Australian citizenship and on 7 December 2022, the Federal Court made a declaration that the applicant’s son has been an Australian citizen since his 10th birthday.
On 8 December 2022, the applicants provided a presentative submission (the December 2022 submission) which provide a copy of the Federal Court decision and made submissions as to compelling circumstances that affect Australia and compassionate and compelling circumstances that affect an Australian citizen which are referred to below.
On 30 January 2023, the applicants provide a further representative’s submission which indicated that the Department had initiated proceedings to appeal the judgement of the Federal Court (the January 2023 submission).
On 15 February 2023, the applicant provided a representative’s submission as to why the applicant undertook her IELTS Test in India (the February 2023 submission) together with supporting documents. The submission and supporting documents indicate that:
·On 14 April 2015, the applicant and her spouse left Australia to attend her sister-in-law’s wedding. Copies of airline eTickets were provided
·On 18 April 2015, the applicant undertook the 2015 IELTS Test.
·On 22 April 2015, they attended the ring or engagement ceremony. Additional events took place on 2 May 2015. Copies of invitations and photographs were provided.
·On 3 May 2015, the wedding took place. A marriage certificate and photographs were provided.
It was submitted in the February 2023 submission that the applicant had already put on the record, as part of the earlier Tribunal decision (differently constituted), that the applicant, although busy with her sister-in-law’s wedding and numerous pre and post-wedding events, had spare time as she was on holidays to sit the IELTS Test in India. The applicant in Sydney was too busy with studying full-time, working 20 hours a week and with family commitments.
It was further submitted in the February 2023 submission that the Department allows applicants to undertake tests at locations all over the World and the applicant should not be prejudiced for choosing to sit her test at an authorised test centre in India. As where and when to sit the IELTS Test is one for the applicant. The Tribunal notes that the Department allows tests to be taken at location all over the world as visa applicants come from all over the World and usually live in the country where they undertake their IELTS test.
The February 2023 submission referred to evidence provided by the applicant at the hearing in relation to the cancellation of her Subclass 457 visa and recorded in the Senior Member’s decision, that her brother made enquires of locals who confirmed that BECC was no longer located at that location and ‘that the test centre had closed on account of irregularities with results’. What is actually set out in the Senior Member’s decision is:
The applicant claims that when she was informed that her English test score was wrong, she tried to call the coaching centres to ask what happened to her IELTS result. (This claim was made in a submission to the Tribunal (differently constituted) dated 27 June 2020) However, she claims the number was not available. As a result, she claims that she contacted her brother in India and asked him to go to the BECC in Moya City to see what had happened. The applicant’s evidence was that when her brother went on the premises, it was no longer operating. She claims that her brother asked the operators of the new shop located at the premises about the centre and he was informed that the BECC had closed in 2016. The applicant did not provide any evidence from her brother or from any person to whom her brother is said to have spoken. In addition, the applicant claims that others had been affected by the BECC providing them with wrong information. The applicant did not provide any evidence to support this claim.
While the Tribunal has some reservations about the applicant’s claim that her brother attended the premises, it does accept based on the recent search that the BECC in Moga City is no longer in operation.
This Tribunal also accepts that BECC is no longer in operation.
It was also submitted in the February 2023 submission that the Tribunal should take into consideration that applicant met the English language requirements without the bogus document which the Tribunal takes to mean that even the actual genuine results of the 2015 IELTS test were sufficient for the applicant to meet the English language requirements for the grant of a Subclass 457 visa. The applicant also undertook a subsequent English test that confirmed that she had competent English.
At the hearing the applicant stated that she had a good job, and she had an offer to work for her employer on a Subclass 457 at an Indo-Chinese Restaurant, The Melting Chili. The first job offer was made in December 2015 in relation to a Subclass 187 visa, but it was refused so she applied for a Subclass 457 visa. The applicant confirmed she had sat her IELTS in April 2015 as she needed an IELTS for a study visa for Diploma in Human Resources of Management. After the question was interpreted, the applicant stated the reason she obtained the IELTS Test was for my own satisfaction as she wanted to get everything right. The applicant confirmed that she did not need the IELTS Test results at that time and added that it was if she needed it.
At the hearing the applicant stated questioned that she had time to sit the IELTS Test in India as she was on holidays. The Tribunal referred to the wedding taking up a lot of time and the applicant stated that it was before the wedding. The applicant stated that her son was in India with her in laws and they were staying at the same place. The Tribunal asked about BECC, and the applicant stated so many people around where they were staying, and her sister-in-law, said it was a good centre. This was where her sister-in-law was studying. The applicant stated that she had done preparation at a centre in Parramatta.
At the hearing the applicant stated that BECC was 30 to 40 minutes’ drive from where she was staying. The test took 2 hours, and her results took 13 days to obtain. The applicant was asked if she contacted BECC before she got her results and she stated that she did not. The Tribunal referred to the fact that what she has said is different to her evidence before the previous Tribunal. The Tribunal read:
The applicant claims that after the test she contacted the centre directly by telephone and she was informed of her results over the phone. She claims that when she returned to Australia, she received the IELTS document in the mail that confirmed her overall score is 6
The applicant responded by stating that she got her results after 13 days, but she got her certificate when she was in Australia. The Tribunal sought clarification as to how the applicant obtained the results and she stated that she called them.
At the hearing the Tribunal asked what she did after she got the natural justice letter in relation to the 2015 IELTS Test results and she stated she was very upset as she has sat the exam and she did not know the results were incorrect. The applicant stated she called her brother who said don’t worry he will check with them. The applicant’s brother went to the centre but told her that when he did nothing was there. He asked around other shops nearby who said that BECC had closed for a long time.
On the evidence referred to above including the verification checks made by the Department which indicated that the 2015 IELTS test results stated on the 2015 IELTS test report were incorrect, the Tribunal is satisfied that the 2015 IELTS Test report was counterfeit and, therefore, a bogus document pursuant to s.5(1)(b) of the Act. The Tribunal notes that this was conceded in the August 2020 submission which stated that: ‘it is not denied that this IELTS Test Report thereby amounted to a ‘bogus document’ (as defined in Section 5 of the Migration Act)’.
The 2015 IELTS Test report was provided by the applicant to the Department as part of her Subclass 457 visa application. The Subclass 457 visa was granted on 10 April 2018 and was in effect until 16 December 2020 and was the visa held by the applicant when on 8 January 2019, the applicants lodged the Subclass 187 visa application the subject of this review.
On the above the Tribunal is not satisfied that there is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, a bogus document in relation to a visa that the applicant held in the period of 12 months before the application was made.
In relation to purposeful falsity, for the requirements in PIC 4020(1) and (2) to be engaged, it is not necessary to show knowing complicity by the visa applicant.[1] The words ‘given or caused to be given’ do not import a mental element such that an applicant needs to know that the documents or information they are providing are defective in the relevant sense.[2] All that is necessary is that the information provided was purposefully false.[3] In the circumstances of this review, the Tribunal is satisfied that there was purposeful falsity on the part of BECC when it issued the 2015 IELTS test report which contain incorrect scores for the applicant test results.
[1] Trivedi v MIBP (2014) 220 FCR 169 at [43]–[44]. Cited with approval in Singh v MIBP [2018] FCAFC 52 at [144].
[2] Vyas v MIAC [2012] FMCA 92 at [68]. This view was endorsed in Sran v MIBP [2013] FCCA 37.
[3] Trivedi v MIBP (2014) 220 FCR 169. See also Chung v MIBP [2015] FCA 163 at [25]. In that case the Court found that the inclusion of a skills assessment reference of which the assessing authority had no record, and evidence that the assessing authority had no skills assessment reference referable to the appellants was sufficient for the Tribunal to find there was information associated with the visa application which had the necessary quality of purposeful falsity. It was not necessary for the Tribunal to go further and determine whether the visa applicants had knowingly been involved in the provision of that false information or document before finding that there has been a failure to comply with PIC 4020.
The Tribunal notes that it was conceded in the August 2022 submission that purposeful falsity can exist even where the applicant does not have knowledge of the fact. The purposeful falsity was on the part of BECC potentially to receive positive outcomes, so clients refer others to the BECC.
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 reg 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.
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.
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.
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.
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.
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.
In relation to PIC 4020(4)(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.
As there is an Australian citizen child of the applicant and her spouse, the Tribunal will first 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.
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’
The Australian citizenship of the applicant’s son
The August 2022 submission set out the background as to the citizenship status of the applicant’s son who was born on 21 March 2010 in Australia. The applicant’s son was recognised as an Australian citizen under sec 12(1)(b) of the Citizenship Act 2007 on 3 June 2020. However, the Department cancelled the applicant’s citizenship on 24 February 2022 on the basis that the Department had issued evidence of the applicant’s son’s Australian citizenship in error. The timeline for the cancellation of the applicant’s son’s citizenship is set out in the following paragraphs.
On 2 June 2020, an application for evidence of Australian citizenship was lodged with the Department which was approved on 3 June 2020. A passport and Australian Citizenship Certificate were issued for the applicant’s son. It was submitted that at that time the Department accepted that the applicant’s son met the ‘ordinarily resident ‘requirements, amongst other, under sec.3 of the Citizenship Act.
On 22 July 2020, the Department issues a Notice of Intention to Consider Cancellation (NOICC) of the notice of evidence of the applicant’s son’s Australian citizenship on the basis that they may have been issued in error as the applicant’s son’s movement records indicated that he may not necessarily meet the definition of ‘ordinarily resident’ in Australia throughout the 10 years since his birth. Departmental records indicate that the applicant’s son departed Australia on 4 August 2010, just over 4 months after he was born. He returned for around 4 months between 17 March 2013 and 13 July 2013 but did not return to remain in Australia until 15 October 2016, when he was just over 5 years and 5 months old.
On 11 September 2020, a response to the NOICC was provided to the Department which argued that the applicant’s son was ordinarily resident in Australia. Further, the Department had already reviewed the information provided in the application for citizenship and made the decision on 3 June 2020 to approve the application.
The August 2022 submission suggested that the timing of the NOICC related to the Department’s intention to cancel the applicant’s subclass 457 visa.
On 2 October 2020 the Department cancelled the certificate evidencing the applicant’s son‘s Australian citizenship. The August 2022 submission argued that the applicant’s son was deemed an Australian citizen by operation of the Act. The application for evidence of his citizenship allowed confirmation of the applicant’s son’s rights and documentation, however, the cancellation of the certificate should not strip him of his citizenship which was deemed by operation of the Citizenship Act.
On 7 December 2022, as referred to above, the Federal Court made a declaration that the applicant’s son has been an Australian citizen since his 10th birthday.
On 8 December 2020, the applicant provided a representative’s submission (the December 2020 submission) which submitted that the Tribunal should give the finding (declaration) in the Federal Court decision favourable weight. It was also submitted that there were other findings important to the applicants inducing that the decision noted that the applicant and her spouse were cross examined but no question arose as to their credit. Further, the Court accepted that the applicants, since they arrived in Australia, have been part of their local Sikh temple and have many friends in the Sikh community in Sydney and in Bathurst. It was also submitted that all the friends listed in the applicant’s affidavit are Australian citizens and permanent residents and that there are compelling circumstances that affect the interests of Australia citizens and permanent residents including the applicant’s Friends and Australian employer for whom she is making a significant contribution being the business’s only Chef for 7 years.
The January 2023 submission indicated that the Department had initiated proceedings to appeal the judgement of the Federal Court. It was submitted that under rule 36.08 of the Federal Court rules an appeal does not operate as a stay of execution or stay of proceedings or invalidate any proceedings already taken. Further, it was submitted that the usual course is for an applicant to enjoy the fruits of victory pending determination of any appeal. The submission referred to the declaration and that the applicant’s son continues to hold his status as an Australian citizen.
On 17 February 2023, the Tribunal was provided with a letter dated 16 February 2023, from the Department to the applicant confirming the Australian citizenship of her son.
At the hearing the applicant’s son stated he goes to St John’s Catholic College. He enjoys school and is in Year 8, having started in Year 2 at St Josephs. He has friends at school where he plays in on the field or sits and talks. After school he helps his mother. When he is with his school friends, they practice cricket at the nets. He does not visit his school friends’ homes but sometimes they visit his home. His favourite subject is Technology as he likes making things. He has other friends who live nearby, and they visit each other’s homes.
The applicant’s son speaks Punjabi and Hindi. He speaks with his grandparents often on Facetime and he misses them. He would prefer to stay in Australia.
The applicant’s son is currently an Australian citizen as found by the Federal Court decision made on 7 December 2022. He will be 13 years old next month and, after spending just under 5 years in India, has now been in Australia without travelling outside of Australia, since 15 October 2016 a period of 7 years. The applicant’s son has integrated into the Australian way of life, having attend school in Australia since year 2, he had friends both from school and his local area. The Tribunal accepts that the applicant’s son would face hardships if he had to once again change the country of his residence. Given all of the above including his connections in Australia through school and friends, and his age of 13 years and dependency on his parents, and the period of time he has been in Australia which is now 7 years, the Tribunal is of the view that there are compassionate circumstances affecting the interests of an Australian citizen child.
The Tribunal finds that there are compassionate circumstances affecting the interests of an Australian citizen. Further, the Tribunal in light of the compassionate circumstances affecting an Australian citizen child and as the purposeful falsity was on the part of BECC, the Tribunal will exercise its discretion to waive the requirements of PIC4020. Therefore, the requirements of PIC 4020(1) should be waived in relation to the primary applicant and all of the secondary applicants
Although not determinative for this decision, the Tribunal has still considered PIC 4020(4)(a) and whether there are compelling circumstances that affect the interests of Australia.
The compelling circumstances referred in the August 2022 submission are that the applicant had complied with the conditions of her Subclass 457 visa including remaining employed as a Chef with her nominating business. The applicant’s employer gave evidence that he relies on the applicant as a Chef in his restaurant on the Central Coast as there is a severe shortage of skilled Chefs on the Central Coast. The senior member accepted that the applicant’s absence in the business would adversely affect the business and possible employment of other staff. Further, the non-compliance was over 8 years ago. It was also submitted that during COVID-19 Pandemic the applicant worked extra hours preparing meals for people in need.
It was further submitted in the August 2022 that the applicant has a longstanding and highly dependent relationship with her Australian employer where she has worked for more than 6 years. It was submitted that the employer stated that her work directly contributed to both the rise in customers and the company revenue over the years. The applicant’s nominating business is concerned that the applicant’s Subclass 457 visa will cease on 11 April 2023. It was also submitted that the other employees of the nominating business will be affected as they look up to the applicant, the food quality of the restaurant will deteriorate, and the interests of Australians in the Umina area will be adversely affected.
In relation to the applicant’s spouse, it was submitted in the August 2022 submissions that the applicant’s employer has another logistics company which employs the spouse who has been promoted from truck driver to fleet supervisor. It was submitted that the applicant’s spouse has considerably reduced the pressures faced by a director of two companies.
Provided with the August 2022 submission was a letter dated 21 August 2022 from Mr Harpreet Singh Mangat, Director of JP Restaurants & Catering Pty Ltd T/A The Melting Chilli Indian Restaurant who is of the applicant’s employer. Mr Mangat stated that he runs two business The Melting Chili Restaurant in Umina and a logistics business, JSI Group Pty Ltd in Beuna Vista. He further stated that the applicant joined the restaurant in 2015 as a Chef. The restaurant has grown in success and popularity. The restaurant has numerous customers because of its location near Umina Beach and as the Beach is a centre of attraction for tourists. As there are tourists from around the world, the restaurant has opted for fast food which has allowed the business to have successful business periods as it is located within walking distance from the beach, and which allows more exposure to customers. It has also done well in the past few years as it is one of the few restaurants with a liquor licence. Business has picked up since easing of the COVID-19 restrictions and they employ 3 full time workers, 3 part time workers and he is looking for casual staff.
Mr Mangat also stated in his letter that the applicant is the head chef in the restaurant and lists her duties. He further states that the applicant has proven to be an excellent loyal employee who is hardworking. The customers are fond of her food and visit again for the food she cooks. Mr Mangat also stated that the applicant volunteered in the restaurant during the COVID-19 Pandemic to prepare and distribute food for needy families.
Mr Mangat also stated in his letter that since the applicant joined his restaurant there has been a ‘huge’ rise in the number of customers and more loyal customers have been created. The revenue of the restaurant has increased from $80,000 in 2015 to $283,278 in 2019. However, 2020 was a difficult year for the restaurant as with all hospitality businesses. Mr Mangat stated that it is projected that the buisness will grow by 50% in 2022.
Mr Mangat in his letter stated that it is important for his restaurant that the applicant remains as there is a skills and experience shortage in Australia. The applicant has worked for him for 6 years without complaint. She is an important key person in the restaurant who has built a great relationship with the customers, and she is the only employee for a long time that was willing to work full time. Mr Mangat stated that if the applicant leaves it would be impossible to find another head chef. Before the applicant joined the business, he was struggled to find a head chef that would stay and have the chef speciality of Indian cooking.
At the hearing the applicant stated that she is still a Chef at the Melting Chill Restaurant. The applicant stated that what was provided by Mr Mangat is good and accurate.
In relation to the applicant’s spouse, Mr Mangat stated that he joined his logistics company in 2019 as a truck driver. After a year Mr Mangat observed that the applicant’s spouse had an interest and knowledge about how the fleet worked and about trucks and had also developed good relations with other companies. He has helped the logistics company gain new customers because of his good relations and communication skills. The applicant’s spouse now has the position of fleet manager and after being in the position for two years it has been a relief for Mangat as half the buisness burden has been removed. If the applicant’s spouse was to leave, he would have a hard time replacing him due to the skills and experience shortage in Australia and as he is a loyal, hardworking, full time employee. At the hearing the applicant that her spouse was still working in the logistics business as a Fleet supervisor.
The Tribunal, like the previous Tribunal in the applicant’s cancellation review, does not necessarily accept the drastic consequences for Mr Mangat’s business if the applicant were to leave. However, the Tribunal does accept that Mr Mangat’s restaurant relies on the applicant for his buisness after she has been the head chef for more than 6 and where that reliance has been exacerbated in the circumstances of a hospitality skill and experience shortage.
The Tribunal will not consider further whether there are compelling circumstances that affect Australia in light of the findings made above in relation to PIC4020(4)(b), however, if the Tribunal were to consider whether there were compelling circumstance weight would be given to Mr Mangat’s evidence
Therefore, the requirements of PIC 4020(1) should be waived.
Has the applicant satisfied the identity requirements?
PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.
There is no evidence before the Tribunal to suggest that there is any issue with the applicants’ identity. The Department has been provided with a copy of the detail pages of the applicants’ passports.
Therefore, the applicants meet PIC 4020(2A).
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 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).
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
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
(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.
…
0
8
0