Kelly (Migration)

[2022] AATA 2953

Kelly (Migration) [2022] AATA 2953 (11 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Peter Kelly

REPRESENTATIVE:  Ms Rowena Hallam (MARN: 0429550)

CASE NUMBER:  1920050

HOME AFFAIRS REFERENCE(S):          BCC2018/5702757

MEMBER:Alan McMurran

DATE:11 July 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a GK – Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 482 - Temporary Skill Shortage visa:

·Public Interest Criterion 4020 for the purposes of cl PIC 4020(1) of Schedule 2 to the Regulations 

Statement made on 11 July 2022 at 7:45pm

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 - Temporary Skill Shortage – occupation of Drainer – misleading information in the visa application – prior criminal convictions – skill shortage occupation – applicant unsure whether convictions were recorded – compassionate or compelling circumstances – impact on the applicant’s employer – impact on family network – decision under review remitted

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 2A
Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cls 482.217; Schedule 4, Public Interest Criterion 4020; r 1.03

CASES

Arora v MIBP [2016] FCAFC 35
Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Khan v Minister for Immigration and Citizenship [2011] FCA 75
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR
Plaintiff M64/2015 v MIBP [2015] HCA 50
Trivedi v MIBP [2014] FCAFC 42
Zitkus v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA1881

statement of decision and reasons

application for review

1. This is an application lodged 23 July 2019 for review of a decision made by a delegate of the Minister for Home Affairs on 2 July 2019 to refuse to grant the applicant a GK – Temporary Skill Shortage (Class GK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).[1]

   [1] Regulations, Subclass 482 – Temporary Skill Shortage (“TSS”)

2. The applicant is a 32-year-old citizen of the Republic of Ireland. He has applied for the TSS Subclass 482 visa in the nominated occupation of Drainer (ANZSCO 334113). He has been nominated for the position by Rocktown Pty Ltd (“the nominator”), which nomination was approved on 30 January 2019.

3. The applicant applied for the visa on 18 December 2018. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl. PIC 4020(1) of Schedule 4 to the Migration Regulations 1994 (Cth) (the Regulations) because there was evidence before the delegate that the applicant had given, or caused to be given, to the Minister, information that is false or misleading in a material particular.

4. The applicant therefore did not meet cl 482.217(1) of Schedule 2 of the Regulations. The delegate found that the applicant had failed to provide details of prior criminal convictions in submitting two applications for Subclass 417 working holiday visas.

5. The applicant appeared before the Tribunal on 8 July 2022 to give evidence and present arguments. The Tribunal received oral evidence from the applicant and submissions from the representative. The hearing was conducted by video in accordance with the Tribunal’s current Practice Direction, determined by the Tribunal to be the means of achieving its statutory objective to conduct a hearing which is fair, just, economical, informal, and quick[2].

   [2] Administrative Appeals Tribunal Act 1975, s.2A

6. No objection was taken to the form of the hearing and the applicant indicated he was ready to proceed, having made written submissions beforehand. No adjournment was sought or considered, and the applicant stated he had no further information to provide.

7. The applicant was represented in relation to the review by Ms Hallam, a registered migration agent, who also attended the hearing.

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

   Background

9. The applicant came to Australia on 25 February 2014 with his family, as a tourist. The family had come to visit the applicant’s elder brother who was then living in Australia and who had obtained citizenship. Prior to that, the applicant had spent little time overseas, except for continental holidays with his family and holidaying while travelling to Australia.

10. The applicant has three brothers, all of whom live in Australia. The applicant’s parents live in Galway on Ireland’s West coast and the applicant’s father works in construction. The applicant has no other siblings in Ireland, but a large extended family, including two grandmothers and aunts and uncles. The four siblings in Australia are all employed in the construction industry, the eldest running his own air conditioning business, and the other two brothers as qualified carpenters.

11. The applicant completed a 4-year certificate as a plumber in Ireland in 2009. He could not initially find work as a plumber and trained in a speciality area as a Drainer, involved in large commercial infrastructure projects. He has been consistently working in that plumbing field since qualifying.

12. He lives in Australia presently, in Sydney, in a defacto relationship with another Irish citizen, Claire McDonagh. The relationship commenced in early 2020, and the couple are now expecting their first child.

13. On 30 January 2019, the Department sent a letter to the applicant with an information checklist concerning this application for the Subclass 482 visa. On 26 April 2019, the applicant provided a statutory declaration to the Department disclosing information about his criminal record, which included three prior offences in Ireland and one in the Northern Territory.

14. On 7 May 2019, the Department sent a natural justice letter to the applicant concerning the non-disclosure of the criminal offences, inviting the applicant to reply. The applicant responded with a statutory declaration on 6 June 2019. The Department did not accept the applicant’s response as meeting the PIC 4020 requirement and refused the application on 2 July 2019.

15. On 29 June 2022, following constitution of the Tribunal application to a Member for review, the Tribunal sent a letter to the applicant inviting information, particularly any evidence or submissions concerning the provision of information that is false or misleading in a material particular, and/or evidence the Tribunal should consider in the exercise of the waiver of the PIC 4020 requirement.

16. On 6 July 2022, the applicant responded by his representative. The response included a letter from the nominator, information on skill shortages for specialist drainers in Australia, a statement from the applicant dated 6 July 2022 and a written submission from the representative also dated 6 July 2022.

    consideration of claims and evidence

17. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 482.217(1) of Schedule 2 of the Regulations for the grant of the visa.

18. 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).

19. The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances 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.

20. The Tribunal has available for consideration a large amount of information submitted by the applicants. This includes information already provided to the Department and contained in the Department file and a recent statement from the applicant to the Tribunal[3] and submissions from the representative with documents attached[4].

    [3] Dated 6 July 2022

    [4] Received 6 July 2022

21. The Tribunal has had regard to and considered all the available information, even if not directly referred to below. The Tribunal has also placed significant weight on the oral evidence obtained from a hearing and which was not available to the Department delegate. The Tribunal has considered the relevant provisions in the Act and Regulations and had regard to caselaw and Department policy.

    PIC 4020

22. Cl. PIC 4020(1) of Schedule 4 to the Regulations[5]  relevantly provides that 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.

    [5] Set out in full in the Attachment to these reasons

23. The first issue to be determined by the Tribunal is whether it is satisfied in this instance that the applicant has given, or caused to be given, to the Minister information that is false or misleading in a material particular in relation to the application for the visa.

24. There is no claim made or issue arising in this case that the applicant has given or caused to be given a bogus document.

25. If satisfied that circumstances exist that the applicant has given or caused to be given to the Minister information that is false or misleading in a material particular, the Tribunal must then proceed to consider the exercise of the waiver in cl.4020(4), and the applicant’s submissions in that regard.

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

26. 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.

27. 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).

28. Importantly, it also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.

29. While PIC 4020(1) 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(1) 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”).

    What did the applicant provide which is considered to be information which is false or misleading information in a material particular?

30. On 14 November 2016, the applicant applied for and was granted his first Subclass 417 working holiday visa. On 11 December 2017, the applicant lodged his second application for a Subclass 417 working holiday visa, which was granted on 1 February 2018.

31. As noted by the delegate, in both those applications, the applicant answered “No” to the question under the Character declarations in the form. The question asks whether the applicant has “ever been convicted of an offence in any country (including any conviction which is now removed from official records)?”

32. The 417-visa application form provides information on how to complete the form and states that If the applicant answers ‘Yes’ to any of the Character declarations, they must then give all relevant details, including any convictions, date, offence and sentence. It further provides that the applicant must declare that he had read and understood the information provided in the application, that it is “correct information in every detail” and warns that “giving false or misleading information is a serious offence”.

    The Subclass 417 working holiday visas

33. The applicant concedes that his answers to the question about prior criminal convictions in the 417-visa applications were incorrect on two occasions, and false or misleading in a material particular by failing to provide prior conviction details. He accepts that he should have provided the requested details of his prior criminal convictions. He accepts that the answers were untrue, including the certification which follows the character declarations. He denies however that he provided the information deliberately and with an element of ‘purposeful falsity’, as discussed below in these reasons.

    The Subclass 482 application

34. The applicant in the 482 application to the Department is also asked to make a declaration in respect of any prior criminal convictions. At page 10 of the form, the applicant answered “yes” to the same question about any prior criminal offence. The applicant answered initially:

    “While resident in Ireland the applicant appeared in court after being in a fight; he is unsure whether a conviction was recorded. He was charged with drink-driving while in the NT and is unsure whether a conviction was recorded. Applications have been made for the required police certificates”.

35. The applicant provided details of prior criminal convictions to the Department as he recalled them. He made a statutory declaration on 26 April 2019 as submitted by his agent on 6 May 2019. The statutory declaration refers to a drink-driving offence in the Northern Territory in about September or October 2017 where the applicant was convicted and fined. The applicant did not provide the date of the conviction. Subsequently, an Australian National Police Certificate dated 8 January 2019, not provided by the applicant until 5 April 2019, showed the date of conviction as 7 November 2017.

36. The applicant also provided to the Department on 5 April 2019 an Overseas Penal Clearance Certificate. The certificate details 5 offences on 3 separate occasions:

    i.15 March 2008-threatening/abusive/insulting behaviour in a public place-suspended one month prison sentence - court on 2 April 2009;

    ii.15 March 2008-intoxication in a public place-court on 2 April 2009-fine imposed;

    iii.19 February 2009-driving offence-front seat belt passenger not wearing-court on 16 June 2009-fine imposed;

    iv.27 February 2009- threatening/abusive/insulting behaviour in a public place-suspended two-month prison sentence-court on 11 March 2009;

    v.27 February 2009- intoxication in a public place court on 11 March 2009- fine imposed;

37. At hearing, the applicant has confirmed these offences are correctly recorded. The evidence is that the applicant has now disclosed for this 482-visa application all offences for which he has a criminal conviction and record. There has been nothing recorded against him since 7 November 2017. The Tribunal accepts that evidence as now corrected truly reflects his criminal convictions in relevant countries, Ireland and then Australia.

38. The Tribunal further finds on the available information that the applicant has given information in connection with the earlier visa application, which was misleading in a material particular, by not disclosing those offences as listed above.

39. The applicant has sought at the hearing to explain why the offences were not disclosed and made submissions to the effect that the failure to disclose the information was not deliberate or intentional and that the Tribunal should conclude that PIC 4020 (1) is in fact met.

    The Hearing – applicant’s explanation

40. The applicant confirmed his details and his personal information provided to the Department and which is not in dispute. The Tribunal asked questions about the applicant’s family background both in Ireland and in Australia. The applicant said his elder brother, Danny, came to Australia in about 2008 and has been an Australian citizen since about 2012.

41. He said his two other brothers, Mark, and Colm, were both sponsored for their employment in Australia as carpenters and are both awaiting confirmation of permanent residency following health checks. All his brothers live in Sydney and he states the family is “very close”. He said his elder brother Danny has two children, Flynn and Tye born in Australia and both Australian citizens, with whom he is also very close. He said his brother Marcus is engaged to an Irish citizen, who is in Australia on her own visa and that they have a one-year-old child, Sean. He said he is very close to both brothers and their children. He said that Colm is still single being the youngest, and also in Australia on a visa. He did not have all their visa particulars available and which information was not submitted and was not before the Tribunal.

42. The tribunal asked why the applicant had come to Australia. He said he first came as a tourist with his parents in 2014 to visit his elder brother. He said that he had observed his brother’s work and family lifestyle. He said it was much better than his personal circumstances in Ireland and in 2016 when his family again returned to Australia for a visit, he resolved to come on an extended visa which enabled him to travel and to work. He said he came with his parents arriving 18 December 2016 before Christmas and remained after they returned on a working holiday visa approved by the Department on 14 November 2016.

43. He was asked about how he obtained the working holiday visa. He said he had sought advice from an agent in Galway. He said the agent recommended a working holiday visa as his best option. He said he gave the agent information to complete the application on his behalf. He was not sure, however, but thought the agent may have prior provided him an opportunity to check the application before it was submitted. He said he gave the agent whatever information was requested, it was all done by telephone, and he did not meet with the agent personally. He said the agent did not ask for much information and he could not recall whether or not he checked the form himself. He remembered providing details about his bank account, but not his prior criminal convictions. He said the agent offered a package deal for approximately €1200 which included obtaining him a TFN and an Australian bank account.

1. He was asked why he had not disclosed the prior criminal convictions, in response to what was a very clear and straightforward question in the application form itself. He thought the agent may not have asked him, he may have been careless about information that was submitted, or simply that he did not check it. He conceded that he had heard information “and stories” in Ireland about Australian immigration law, and how it was taken seriously and that he needed to be very careful. He had heard stories about people being sent home for having their visas cancelled, or having their applications refused.

2. The Tribunal put to him that as he was aware at the time of the importance of giving information correctly, why he had not done so. He responded that it was not the Irish agent’s fault, as he had not provided the correct information for the agent to include in the form. He thought it was perhaps because he was careless, which the Tribunal found surprising given the applicant’s started awareness about Australian migration law, which he said at the time he knew he should approach with care.

3. The applicant said that in relation to his prior criminality, “I didn’t think I fully knew what I was getting into (in submitting the application)”. He said in hindsight “I regret not doing it correctly”. He said since this application was refused and he has now waited three years for a merits review hearing in the Tribunal, he has had significant time in that period regretting his earlier mistake. He was asked if he had taken the matter more seriously and carefully at the time in 2016, what he would have done. He said he would have provided the information and changed his answer.

4. He was asked what he did on arrival in Australia. He said his parents returned home while he stayed on, firstly working with his elder brother, and then for Mickon Constructions Pty Limited as a Drainer. He said he worked there for about five or six months until he found a position in Darwin, doing excavation work. He said he had remained in Darwin for about four months from about August or September 2017 and that was where he had lodged his second 417 working holiday visa application, on 11 December 2017.

5. He was asked about that second visa application. He said he had been counting the days and knew time was coming up on his first visa. He said he completed it online himself in an Internet Café he found in Darwin. He said he probably spent about half an hour on the application. He said he read the form as he was going through it.

6. The applicant was asked why he still answered ‘no’ to the character declaration question about prior criminal convictions. He responded that he thought he could probably “delay the inevitable”. In explaining that answer, he said he had always thought that “sooner or later” the criminal convictions would be disclosed. He still maintained, however, that he did not intend to hide the information about his record, but felt it was better to “defer” having to do it for as long as possible.

7. The Tribunal determined the applicant’s responses to mean he had decided not to disclose the information to the Department at that time, in order to obtain his second working holiday visa with as little difficulty as possible. He told the Tribunal that perhaps in giving the same information in the second application, as he had done in the first 417 application, that “it had worked before, it would work again”.

8. At the time the applicant lodged his second visa application, in December 2017, it was only a month after his conviction in November 2017, for a drink driving offence in the Territory. The applicant did not disclose that offence or assert then that he was “unsure about whether a conviction was recorded”.[6]   It is probable in this Tribunal’s view, that the relatively recent offence and conviction on 7 November 2017, was still front of mind for the applicant before lodgement of the second visa application, and to that extent, the omission then was not an innocent mistake.

   [6] See par 34 above

9. In his TSS 482 application, a year later in December 2018, the applicant informed his agent, Ms Hallam, in an email to her on 29 November 2018 that he could not remember the details of his prior criminal convictions. At least as far as the more recent Australian criminal record was concerned, the Tribunal does not accept that the applicant could ‘not remember’.

10. The Tribunal notes further that in relation to the chronology of events, the applicant became aware from a National Police Certificate dated 8 January 2019 about the details of his drink-driving conviction in the NT, which was shortly after he had lodged the application on 18 December 2018. He did not however disclose that information to the Department until 5 April 2019, to correct the previous responses already given to the Department, and where his initial answer to the character question states that a Police Certificate had been requested.

11. This delay in making full disclosure, however slight in the scheme of things, confirms the Tribunal’s view that the applicant’s response at the hearing that he was reluctant to disclose the information was the real reason for not disclosing his record, and that he was trying to ‘defer’ that decision for as long as possible, even though it was required, and which he did not personally confirm until his statutory declaration affirmed on 6 June 2019.

12. The Tribunal has carefully considered the applicant’s evidence at hearing together with the information provided from the Department file and the Tribunal file. The Tribunal has noted the agent’s submission to the Department on 6 June 2019. The agent notes that the applicant “takes full responsibility for the failure to disclose his previous convictions” and further submits that the applicant “never intentionally tried to hide them or be dishonest”. The agent says that the applicant “has never been good with form filling” and regrets “not taking more time and care”. The agent submits that consideration be given to meeting the PIC 4020 criterion on the basis that as the Trivedi authority decided, innocent or accidental matters ought not be the subject of information that is said to be false or misleading in a material particular. That submission was rejected by the Department.

13. In a similar written submission to this Tribunal, on 6 July 2022, the agent repeats the request that the Tribunal find the applicant never had any intention to mislead the Department and that the “false information was provided inadvertently and as a result of not properly reading documentation, and a poor understanding of the importance of answering all questions in a truthful and exact manner.”

14. Having listened to the evidence given at the hearing and the applicant’s explanation, and his concern that he should “defer” providing details of his criminal convictions, that he had anecdotal knowledge of other Irish citizens who had experienced difficulties including being sent home or having visas refused because of character problems, and thus an awareness of how critical it was to be careful, the Tribunal does not accept that the applicant was simply “inadvertent” at the time he made the Subclass 417 working holiday applications.

15. The applicant had received advice from a competent agent in Ireland. He was aware of the importance of providing correct information. He thought he may even have seen the application, before it was submitted, but failed to check it carefully. He did not provide details to the agent about his criminal history, and even though it was 2016 and the events took place seven years prior in court in a 12-month period between 2008 and 2009, it does not appear to the Tribunal credible, in this instance, that he had simply forgotten about those prior convictions. The applicant may not have remembered all the details, but he was certainly aware he had been previously convicted and on two occasions handed suspended jail sentences and was able to inform his current agent by email in November 2018 of the fact he might have had prior convictions, even though he could not recall all the details.

16. It is also significant in the Tribunal’s view that in December 2017, the applicant simply repeated the information he had previously given in renewing his working holiday visa status. He did so, only a month after having been convicted for a drink-driving offence on 7 November 2017 in the Northern Territory, where he was then residing. He also failed to revisit the issue of his Irish offences, preferring to defer that issue until it would come out at some later date, and when he thought he would then be able to deal with it. The applicant made no submission to the effect that he believed his driving offence in the Northern Territory should not have been recorded as a criminal conviction, and which he was required to disclose.

17. It is somewhat paradoxical that when the applicant has disclosed in his statutory declaration the details surrounding these offences, they are not in the more serious criminal category, especially the seatbelt offence which is relatively minor in the scale of things, and all of which when properly considered, may have nonetheless resulted in the visas being granted on each occasion. So much is submitted by the representative in her submission in June 2019, which was rejected, however, and speculative whether or not the applications would have been approved, and which regardless is not a reason to avoid the PIC 4020 obligation to disclose.

18. The Tribunal considers the information that is conceded now was false and misleading in a material particular and may have influenced the decision-maker in this case, and which in a broader sense reflects on the integrity of the applicant for not being forthcoming and truthful. For these reasons, the Tribunal is satisfied that the failure to give the correct information by the applicant was false or misleading in a material particular and as described above, was neither innocent, accidental, nor unintentional.

19. Trivedi is authority for the proposition that there should be some element of “purposeful falsity” in the giving of the misleading information. Such an expression is not defined and will depend upon the facts and circumstances in each case.

20. In Zitkus v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA1881, the court rejected a submission that the applicant’s reasons for making a false statement should not be ignored or treated as irrelevant. [7] In that case, the applicant had deliberately not disclosed a sentence of imprisonment for the importation of drugs, stating he had been “highly recommended” not to do so. The court, following Trivedi, reasoned that “it is not necessary …to show knowing complicity”, as to do so places “an impossible task on those administering the visa system”. 

    [7] At [10] – [13] per Egan J

21. The court noted that the Tribunal in that case had considered whether the applicant’s actions were “innocent, unintended and accidental”, and after considering the evidence and the applicant’s explanation, including that it had been ‘highly recommended’ that he disclose nothing, found logically that the provision was not met. That does not mean that a submission that a non-disclosure was “innocent, unintended and accidental” might never be able to be satisfied. It will depend upon whether there is evidence which could support such a finding, and which involves considering such a submission with an open mind as to the “quality” of the purposeful falsity involved, and so to reach a conclusion reasonably and logically soundly based.[8]

    [8] See also on “illogicality” and “irrationality” Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR at [130] – [135].

22. In considering Department policy, the Tribunal notes that a visa applicant would not necessarily fail to satisfy the requirement if they could explain an innocent mistake in a document or information provided by them, or on their behalf. This refers in this instance to the ‘document’ being the 417-visa applications lodged by the applicant on two occasions, and as submitted to the Department. Ordinarily, the requirement is satisfied unless there is evidence to the contrary. Policy states that in the circumstances where an applicant could explain an innocent mistake, and the delegate believes the applicant’s claims, then it would be open to the delegate to find that there is no purposeful falsity, and that the applicant meets PIC 4020.

    Applicant’s submission

23. The Tribunal has considered whether the facts as found above lead to a conclusion that the applicant has or has not acted with the requisite degree of “purposeful falsity” as proposed by Trivedi and noting that the applicant has submitted that it cannot be shown on those facts that the applicant intended to provide information that is false or misleading in a material particular.

24. The Tribunal has had regard to the content and ‘quality’ of the material information submitted, and whether that information might have influenced the decision maker in reaching a particular conclusion to grant the working holiday visas, and which conclusion might not have been reached where the correct information, in this instance, the correct answer to the question, had been disclosed.[9]

    [9] See Khan v Minister for Immigration and Citizenship [2011] FCA 75

25. In rejecting the applicant’s submission, the Tribunal is satisfied that the information about the applicant’s criminal record was ‘material’ and the “mistake” by the applicant was not credibly ‘innocent, unintended and accidental’ .

    Finding on information which is false or misleading in a material particular

26. In this instance, the Tribunal has not accepted the applicant’s explanation as being “innocent, unintended and accidental”. The Tribunal finds that the applicant has given to the Minister information that is false or misleading in a material particular in relation to both Subclass 417 visa applications lodged in 2016 and 2018 respectively, by answering incorrectly the character declaration about having been convicted of an offence in any country, including any conviction which is now removed from official records.

27. For those reasons therefore, the applicant does not meet PIC 4020(1).

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

28. 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.

29. The Tribunal must embark on a two-stage inquiry. Firstly, the decision-maker must be satisfied that there are such circumstances, then secondly must consider whether to exercise the discretion to waive the requirements, having regard to those circumstances: Kaur v MIBP [2017] FCAFC 184.

30. 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. It is intended however, that the granting of the waiver must relate only to Australia’s interests, not the interests of the applicant.[10]

    [10] See the Explanatory statement to the relevant amendments

31. For the following reasons, the Tribunal is satisfied that the requirements should be waived.

    Are there compelling circumstances that affect the interests of Australia?

32. There are no specified ‘compelling’ circumstances. To be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied.[11] The ordinary meaning of ‘compassionate’ relates to feelings of sympathy, sorrow, pity, or concern for others.  

    [11] See Plaintiff M64/2015 v MIBP [2015] HCA 50

33. The applicant submits that he has been in Australia for 5 years, he is fully employed, that the nominator requires him to resume his employment with the nominator, that the applicant is working on major infrastructure projects and that he is well-qualified and experienced to do so. He submits that his absence will “cause significant disruption, delay, financial loss, budget cuts and potential redundancies”, that he is a great asset to his team and that Australia will “miss out” on a significant benefit in his absence.

34. The Tribunal has considered the applicant’s submissions and finds it is not satisfied that there are compelling circumstances that affect the interests of Australia which would justify the grant of the visa: cl.4020(4)(a). On the basis of the material before it, the Tribunal is not satisfied that there are any compelling circumstances that affect the interests of Australia in this case.

    Are there compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen, to justify granting the visa?

35. Policy notes that deciding this issue is a matter of fact and weight for the decision-maker, based on the evidence and information available. Each case potentially will be different and evoke different responses from decision-makers.

36. The applicant has made a number of submissions which weigh in favour of exercising the discretion. The applicant has stressed the familial relationship with his brothers, and their very young children, one of whom has been an Australian citizen for several years, and two of whom are about to become permanent residents, and all of whom reside permanently in Australia. The brothers are very close, and the applicant has formed a very close relationship with their children, the eldest of whom, Tye, he hopes to accompany as a chaperone on a managed football tour with his Australian club to Italy for a young talent development football tournament.

37. The applicant has no remaining siblings in Ireland. The applicant regularly assists his brothers and minds their children, three in total and all born in Australia, and with whom he has close bonds. The children he submits would struggle to understand why their uncle is suddenly not there to support them. The families spend regular weekly time together socially and ‘sharing’ the children. The applicant is also to marry his partner who is pregnant and hoping to start their family in Australia.

38. The applicant’s partner has her own visa and is not dependent on the Applicant. If the applicant were to return to Ireland, however, it is likely that his partner and unborn child would also be compelled to return to Ireland as a consequence.

39. The exercise of the discretion is not arbitrary. It must have a reasonable basis in “compelling” the decision-maker to exercise the waiver. The Full Federal Court in Babicci[12] stands for the proposition that the Tribunal must consider all of the relevant matters as submitted and found, and then decide whether they are so powerful that the decision-maker should waive the relevant criterion or limitation. The list of matters that might be so powerful is not limited, as numerous authorities on the subject attest.

    [12] Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285

40. The applicant has submitted that in addition to his family circumstance in Australia and the support he offers to his brothers and their families as citizens and permanent residents, he offers a skillset which is a highly valued occupation. His nominator employers, Keith Leer and Eoghan Allen, have offered their support and strong personal references as to his character and work skills in a specialized and in-demand occupation. His current employer has provided a detailed statement in support. The evidence is that there is a genuine shortage of skilled workers in the applicant’s specialist occupation.

1. Under policy, compelling or compassionate circumstances should already be in existence and not dependent upon something that may occur in the future. One such factor includes the extent to which the applicant is part of any family network in Australia, and whether a minor child who is an Australian citizen would be adversely affected by a decision not to waive. The Tribunal is satisfied in this case that the applicant is an integral part of his family network in Australia. The brothers all live in proximity and support each other and their children and are close on a regular weekly basis.

2. The Tribunal was impressed with the applicant’s evidence when speaking of his family and Australian connections. His family concerns evoke an expression of sympathy and concern were there to be a lengthy separation from his brothers and from the child, Tye, who he is working genuinely to encourage and with whom he has developed a special bond.

3. The Tribunal is satisfied that compassionate circumstances exist in this case.

   How should the discretion be exercised?

4. Having found that there are compassionate circumstances for the reasons expressed above, which justify the exercise of the waiver, the requirements of PIC 4020(1) should be waived.

   Has the applicant satisfied the identity requirements?

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

6. On the available information, the Tribunal is satisfied that there are no issues with the applicant’s identity, and none have been raised in that regard.

7. Therefore, the applicant meets PIC 4020(2A).

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

8. 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).

9. On the available information, the Tribunal is satisfied that neither the applicant nor any member of the family unit (as defined in reg 1.12) have been refused a visa in the relevant period because of a failure to satisfy PIC 4020(2A).

10. Therefore PIC 4020(2B) is met.

    Conclusion

11. On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl PIC 4020(1).

    decision

12. The Tribunal remits the application for a GK – Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 482 - Temporary Skill Shortage visa:

    ·Public Interest Criterion 4020 for the purposes of cl PIC 4020(1) of Schedule 2 to the Regulations 

    Alan McMurran
    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.

    …