LEE (Migration)

[2019] AATA 6657

LEE (Migration) [2019] AATA 6657 (11 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dai Bok LEE

CASE NUMBER:  1803074

DIBP REFERENCE(S):  BCC2017/896008

MEMBER:Jennifer Cripps Watts

DATE:11 December 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.

Statement made on 11 December 2019 at 4:41pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – false information – drink driving offence – AFP check – provided wrong address – not unreasonable to hire new chef – decision under review affirmed  

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 65
Migration Regulations 1994 (Cth), Schedule 2 cl 457.224, Public Interest Criterion (PIC) 4020

CASES

Trivedi v MIBP [2014] FCAFC 42

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration (the delegate) on 25 January 2018 to refuse to grant the applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 7 March 2017. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.457.224 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because he did not meet the Public Interest Criterion (PIC) 4020(1)(a).

3. Relevantly, it is a requirement of cl.457.224 of Schedule to the Regulations 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 the application for the visa or a visa that the applicant held in the period of 12 months before the application was made.

4. On 6 February 2018, the applicant applied for review and provided the Tribunal with a copy of the delegate’s decision.  In the hearing invitation sent on 11 November 2019, he was invited to provide any additional information he wished to be considered on the review.

5. The applicant appeared before the Tribunal on 29 November 2019 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

6. The applicant was represented in relation to the review by his registered migration agent.

7. For the following reasons, the Tribunal has concluded that the decision under should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this review is whether the visa applicant meets PIC 4020 as required by cl.457.224 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).

9. 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?

10. 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.

11. 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.

12. 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.

13. The Tribunal has had regard to relevant information in the documents on the Department and Tribunal files, and to the oral evidence given at the Tribunal hearing.  The documents include the delegate’s decision, the applicant’s Australian Federal Police (AFP) Check dated 3 May 2017 and the applicant’s statutory declaration sworn on 12 January 2018.

14. The applicant is a citizen of South Korea.  He applied for a Subclass 457 visa on the basis of a nomination by Zushi Barangaroo in Sydney, where he currently works as a chef.  The company has two restaurants.  He gave evidence that there is one executive chef in charge of both and, for each restaurant, there is a head chef.  At the Barangaroo restaurant, which is open seven days a week with two sittings from 12:00 to 3:00pm and from 5:00 to 10:00pm, the applicant is the head chef.   The applicant said that there is a sous chef, Mr Kim, who works under him at the Barangaroo restaurant and when the applicant, who works 38 hours a week, is not working, Mr Kim is in charge.  The applicant said that the executive chef, and both he and Mr Kim, attend management meetings.  The Tribunal accepts the applicant’s oral evidence about the restaurant and staff arrangements as he described them at the hearing.

15. The applicant provided the Tribunal with a copy of the delegate’s decision and the following facts are largely contained in it.  Before he applied for the Subclass 457 visa that is the subject of this review, the applicant held a student visa.  While he held the student visa, in May 2015 he was charged by police in South Australia with ‘Drive with Excess Blood Alcohol’ (drink driving).  The applicant’s Subclass 457 online visa application, lodged on 7 March 2017, included the following question and answer:

    Q:‘Has any applicant ever been charged with any offence that is currently awaiting legal action?’

    A:        ‘No’.

16. It was put in writing to the applicant by the delegate, as a matter of procedural fairness, that this was adverse or non-genuine information because Departmental records indicated that he was reported by the police in South Australia for the offence of ‘Drive with Excess Blood Alcohol’.  He was invited to comment.  In response, on 18 January 2018 the applicant provided:

    a.An AFP Check dated 3 May 2017 indicating a pending matter in the Adelaide Magistrates Court and Court date of 4 February 2016 for the offence of ‘Drive With Excess Blood Alcohol’

    b.A statutory declaration sworn by the applicant on 12 January 2018, in which he acknowledges the drink driving charge by the police (in May 2015) and explains why he did not declare the matter of the pending Court case in his visa application, essentially because he waited a long time for notification about the charge and then spoke to the police on a number of occasions ‘to figure out the situation’ and they told him that the ‘case was done’, so he thought ‘it had sorted itself out’

    c.A Form 1023 correcting the incorrect answer given in the visa application about the pending court matter for the drink driving offence.

17. At the Tribunal hearing the applicant provided additional documents, including:

    a.Complaint and Summons including that on 12 May 2015 the applicant was charged with the summary offence in s.47B(1)(a) of the Road Traffic Act, 1961 (SA), with a concentration of alcohol of 0.153, including notice that he needed to appear in court on 28 July 2017 – signed by the applicant on 16 May 2017 (which he confirmed at the Tribunal hearing)

    b.Certificate of Record from the Magistrates Court of South Australia, dated 16 May 2017, at which time it is recorded that the applicant’s matter had been adjourned on five occasions from September 2015 to February 2016; and

    c.Certificate of Record from the Magistrates Court of South Australia, dated 18 November 2019, indicating that on 27 June 2017 the application appeared and pleaded guilty to the count of Drive With Excess Blood Alcohol and was sentenced

18. The Tribunal explained the PIC 4020 character requirement and summarised the reason the applicant’s visa was refused.  He was told that even if the Tribunal found that he had provided false or misleading information, he could claim, and his claim or claims would be considered, to justify the granting of the visa, that there are either:

    a.compelling circumstances that affect the interests of Australia; or

    b.compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen,

19. The Tribunal has considered whether the information provided, being the ‘No’ response to the question in the applicant’s visa application, ‘Has any applicant ever been charged with any offence that is currently awaiting legal action?’, is false or misleading and had regard to whether the information misled anybody, was false or misleading at the time it was given, and whether the applicant knowingly and purposefully gave the information in reaching its decision.

20. The Tribunal referred the applicant to his visa application and asked if he received assistance with it.  He said he did, from Evergreen Migration Agents.  He said that he filled the form out (online) while the agent sat next to him.  There is no claim or suggestion that the agent or anyone else filled in the form or that the applicant was not aware of any of the answers provided in his application.

21. Relating to the May 2015 drink driving charge, the applicant informed the Tribunal that he was charged by the police but said he did not receive notification from the Court because, he says he realised at a later time, he had provided an incomplete address to the police when charged.  At the hearing he said that at the time he was charged (in May 2015) he lived at [detail deleted], 131 Gray Street, Adelaide, but he realised he had not provided the police with the unit number when giving them his address when he was charged with the drink driving offence.  He said this was the reason he thinks he had not received any notices to his residential address to attend Court.

22. At the Tribunal hearing the applicant referred to an impoundment notice he provided relating to the vehicle he was driving on the night of the offence.  It belonged to a friend of his and it was impounded for 28 days, with the vehicle due for release noted as 8 June 2015.  The applicant explained that on the impoundment notice an incomplete address appears for him, without the [detail deleted].  The address is 131 Gray Street, Adelaide.  He said at the hearing that this is when he realised the address he had given to the police was incorrect or incomplete and so he went to the police to correct the address.  He claims to have visited the police on a number of occasions.

23. With reference to the applicant’s statutory declaration, sworn on 12 January 2018, the following matters were included:

    a.The applicant had been ‘waiting for a letter from the police for a long time, which would order me to appear in court’

    b.He ‘visited the police several times to figure out the situation’

    c.The police told him ‘that the case was done’

    d.The applicant thought ‘it sorted itself out’ and

    e.‘That was why I did not declare the incident when I prepared my visa application’

    f.After he learning ‘it was not resolved at all’ he attended court and was fined

    g.The applicant ‘did not try to hide the incident’

    h.He really thought he ‘did not have to come into court’ and

    i.That it ‘will not happen again’

24. The Tribunal had concerns that the applicant genuinely thought a drink driving charge, would have ‘sorted itself out’ or that if he had attended the police station on a number of occasions there would not be evidence of the visits, including that his correct address had been recorded.

25. The Tribunal spoke to the applicant about the reasons why he says an incorrect address was provided to the police when he was charged in 2015.  The applicant said that at the time he was charged with drink driving he held an international drivers’ licence which it is reasonable to think probably did not have his local Adelaide address on it.  He was asked why he provided an incomplete address to the police when he was charged in 2015 and said ‘I was extremely nervous, I wasn’t 100 percent myself’.  He was asked what his blood alcohol reading was and said he couldn’t recall.  It is recorded in the Complaint and Summons from the Magistrates Court of South Australia, provided by the applicant at the hearing, that it was 0.153. While claiming no medical expertise, the Tribunal thought it sounded like a high blood alcohol content and asked the applicant if he considered that to be quite a high reading; he said ‘Yes’.  He was reminded that in his January 2018 statutory declaration he had said he only had two beers and asked why he thought his blood alcohol reading was so high if he had only had two beers.  The applicant said that he was extremely tired and he had been working too much.  The applicant has not suggested or claimed that it was the police who made the error in recording his address.  He accepts and stated that he provided an incomplete address.  He also claims not to have been drunk and said that when he drove the night of the offence he was ‘well oriented at the time’. 

26. The applicant gave oral evidence that he knew it was against the law to drink and drive.  Even if the Tribunal accepts that the applicant was nervous and not himself, he said also said he was ‘well oriented’ and it is not accepted that the applicant would not have been aware of the importance of providing an address that he could reliably be contacted at relating to the offence, either by mail or in person, and that he would, even if nervous, have been aware he needed to provide his complete address including his unit number.

27. The applicant claims in his statutory declaration that he visited the police ‘several times’ to find out what was happening with his drink driving matter, but has provided no corroborative evidence of his police visits.  And it seems that he only managed to ‘sort things out’ when he was notified by the Department that he had provided incorrect information in his visa application relating to pending Court matters.  The Tribunal has doubts that he inadvertently provided an incomplete address when he was charged with drink driving in May 2015 or that he visited the police several times to provide the correct address.  On the basis of these claimed ‘several’ visits, the applicant seems not to have been able to sort things out by simply providing the police with a unit number for correspondence, but instead says he was told by the police that the ‘case was done’ and reasoned he did not need to declare it in his visa application. 

28. It is reasonable to think that the applicant knew that he would need to go to Court to defend the drink driving charge.  It is highly unlikely, in the Tribunal’s view, that the applicant would not have been informed of this by the police when he was charged.  He told the Tribunal he knew drink driving was against the law, he knew the car he had been driving was impounded and that he had been charged by the police.

29. The applicant said at the Tribunal hearing that his English was not that good in 2015 and that there must have been some level of miscommunication that has led to his current situation and that maybe he was ‘too complacent’ about the misunderstanding.  There is no evidence before the Tribunal that the applicant corrected his address with the police or, as been mentioned earlier, any corroborative evidence that he visited the police at all after he had been charged.  The Tribunal is not convinced that the applicant, even if he did visit the police, could not have communicated to them his correct address, or established that there was a pending Court matter relating to his drink driving charge.  The applicant knew he had broken the law, he had been taken to a police station, had the vehicle he was driving impounded and, in the Tribunal’s view, these events would point to a reasonable person being aware it was a fairly serious matter and one that would be unlikely to sort itself out.

30. The Tribunal does not accept that it was ‘miscommunication’ that the applicant did not provide his full and correct address to the police when he was charged, notwithstanding his claim that his English was not very good in 2015.  He managed to provide the address, without the [detail deleted], but provided the rest of the address. 

31. Notwithstanding that he provided a Form 1023 relating to the visa application correcting his ‘No’ answer relating to ‘any offence that is currently awaiting legal action’, the applicant only provided the correction after the Department informed him that he had not disclosed that he had an offence, at the time of application, awaiting legal action.  The answer given in the visa application relating to this was false and misleading when it was given.  The Tribunal is not satisfied that the applicant was not aware he needed to attend Court to settle the matter of his drink driving charge and is not persuaded that he genuinely thought ‘it had sorted itself out’ without any consequences or penalty or that the applicant did not knowingly and purposefully give the information in his visa application.

32. The information was false or misleading in a material particular, in relation to the application for the visa, relevant to the criterion which requires the applicant to satisfy a character requirement, PIC 4020, as specified in cl.457.224.

1. Therefore, the applicant does not meet PIC 4020(1).

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

2. The requirements of PIC 4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in r.1.03), that justify the granting of the visa. The decision-maker must first be satisfied that there are such circumstances, then must consider whether to exercise the discretion to waive the requirements, having regard to those circumstances: Kaur v MIBP [2017] FCAFC 184.

3. 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.

4. In circumstances where an applicant has had their visa refused because they did not meet PIC 4020, the Tribunal may form the view that the granting of the visa is still justified if it is satisfied that there are compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen,

5. For the following reasons, the Tribunal is not satisfied that the requirements should be waived.

6. The applicant is claiming a waiver on the basis of his employment at Zushi Barangaroo, where he works as a chef, that there are compelling circumstances that would affect the interests of Australia.

7. The applicant provided the Tribunal with a letter from his employer Mr Raymond Ang, Managing Director, on Zushi Barangaroo Trading Pty Ltd letterhead, dated 27 November 2019.  Mr Ang says the applicant has worked for him for four years.  Mr Ang speaks highly of the applicant’s professional skills and says he is a ‘motivated and dedicated’ employee and that ‘he has become one of the most important employees’.  Mr Ang expresses his opinion that ‘his passions for this company will contribute to the success of this business as well as the local Barangaroo Community’ and requests that his review application be considered positively.  On the basis that the Tribunal has accepted that the applicant, his next in charge and the executive chef (who is above both of them) all attend management meetings, the Tribunal accepts that he is an important employee.

8. No other claim was made relating to compelling and/or compassionate circumstances as described above supporting the waiver on either of the bases the Tribunal must consider.  While it is acknowledged that Mr Ang considers retaining the applicant as an employee would be in the interests of the Barangaroo (Australian) community and that he would contribute to the success of the business, there is no probative evidence before the Tribunal that there would be significant public interest issues at stake or that Mr Ang’s business would be disadvantaged to a level that the Tribunal would consider to be compelling if the applicant’s visa were refused.  There is already another employee who, on the applicant’s own evidence, fills in for him when he is not there and an executive chef who oversees the running of both of Mr Ang’s restaurants.    

9. Even though the applicant is an important employee, the Tribunal does not consider it unreasonable, in the circumstances, to think that the existing senior employees could at the least cover, or arrange cover among other chefs (of whom there are five or six, according to the applicant) for the position vacated by the applicant if his visa is refused, and/or employ a new head chef.

10. Therefore the requirements of PIC 4020(1) or (2) should not be waived.

11. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.457.224.

    DECISION

12. The Tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.

    Jennifer Cripps Watts
    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. 

    …