Mohan (Migration)

[2022] AATA 3498

Mohan (Migration) [2022] AATA 3498 (21 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Aaron Farrell Mohan

REPRESENTATIVE:  Mrs SanLing Chan (MARN: 9701066)

CASE NUMBER:  2006588

HOME AFFAIRS REFERENCE(S):          BCC2018/3637770

MEMBER:Peter Emmerton

DATE:21 September 2022

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to grant the applicant’s Employer Nomination (Permanent) visa.

Statement made on 21 September 2022 at 10:14am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Motor Mechanic – false or misleading information – character declaration – previous removal and subsequent exclusion period – utilised 2 different passports in order to gain access to Australia – genuine remorse – compassionate of compelling circumstances – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.213; 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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 March 2020 to refuse to grant the applicant an Employer Nomination (Permanent) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 25 September 2018. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 186.213(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because they assessed that there is evidence before the Minister that the applicant has provided, or caused to be provided, a bogus document or false or misleading information in relation to this visa application. Therefore PIC 4020(1) is not satisfied and subsequently the requirements of 186.213(1) and as a result 186.213 can-not be satisfied.

3. The applicant appeared before the Tribunal via video, from Western Australia, (WA), on 20 September 2022 to give evidence and present arguments. It also heard evidence from Mr Sean Farrell, Mr Adrian Woolins, Mr Brett Allen, Mr Lucas Di Placidio, Mr Peter Goerke, and Mr Himi Shortland in support of the visa applicant during the hearing.

4. The applicant was represented in relation to the review.

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

   consideration of claims and evidence

6. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.186.213 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).

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

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

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

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

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

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

11. 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.

12. 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.

13. The Tribunal has not been provided with sufficient evidence that there are compelling circumstances that affect the interests of Australia, or sufficient evidence that 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.

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

15. The Tribunal has not been presented with sufficient evidence that there are any compelling circumstances that affect the interests of Australia. It acknowledges that recruitment of another Motor Mechanic of his calibre as stated in the written statement made by his employer dated 23 August 2019 and also by his Supervisor’s Statutory Declaration dated 27 August 2019 will create some challenges for the visa applicant’s employer in the current low unemployment environment. These statements were followed up by both individuals at the hearing whilst explaining the value of the visa applicant to the business, the customers and his colleagues. Under questioning, it was explained that the applicant was 1 of 2 people with specific key knowledge in relation to a vehicle type integral to the business. It was also stated that a substantial investment had been made in training the applicant and he was an important member of a 6-7 person motor mechanic / technician team. Further evidence was provided by an apprentice with whom he worked and supported closely both professionally and personally citing the importance of the applicant in his technical development and his personal life.

16. The movement of individuals to another organisation is an extremely regular occurrence across a very large number of businesses throughout Australia as staff regularly leave their employers for a diverse variety of reasons. It is reasonably expected by the Tribunal that an employer will have business continuation strategies and actions to ameliorate the effects of staff transitions to other employers as a standard business practice. This is a known risk which is prudently addressed by leaders of most businesses. The Tribunal notes the evidence presented prior to the hearing demonstrating the shortage of mechanics in Western Australia, (WA) and the priority skills listing by the WA Government. This circumstance does not meet the substantial threshold needed to be compelling in relation to Australia.

17. The Tribunal acknowledges the Statutory Declaration dated 28 August 2019, made by a friend of the applicant and a Citizen of Australia indicating the visa applicant’s positive contribution to society and in particular the local volunteer fire-fighting brigade and the personal loss he will feel if the visa applicant is unable to stay in Australia. This does not meet the threshold needed to substantiate compelling or compassionate circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen or at a level to be considered compelling circumstances that affect the interests of Australia.

18. The Tribunal notes and accepts the Statutory Declaration made by the visa applicant’s brother dated 29 August 2019, in which he outlines the value for he and his family of the visa applicant staying in Australia and the negative consequences should he return to Ireland. He elaborated during the hearing that he had recently started a business, it was stressful and his brother’s support helps support his mental health.

19. In verbal evidence given during the hearing he also states that the applicant contributes to the well-being of his 2 Australian Citizen nieces. He explained that 1 of his children suffers anxiety issues and was close to her uncle the visa applicant and he assists with her and her sister’s care. The Tribunal accepts that his support most likely assists with her mental health. The Tribunal acknowledges that the visa applicant contributes to the support of his brother’s family in a variety of practical, caring and domestic ways. It also notes that the applicants brother has a partner who contributes to their family unit and has done so for approximately 4 years.

20. The Tribunal has sympathy for this circumstance however it does not reach the high bar needed to satisfy it that there are sufficient 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.

21. The Tribunal acknowledges and accepts the Statutory Declaration dated 10 September 2019, made by the visa applicant’s Australian resident sister-in-law. In it she explains the joy of having the visa applicant residing in Australia, the positive contribution he makes to their family and in particular his 2 Australian nieces, coupled with her reliance upon him. However, the Tribunal notes that a great many families are split because of members residing in other countries. It considers this insufficient evidence that these 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.

22. The Tribunal notes the undated Statutory Declaration made by a work colleague of the visa applicant which appears to have been declared at or around 3 September 2019. He is an Australian Citizen. In this document the declarant explains a friendship and the positive mentoring role, both professional and personal, that the applicant has performed in relation to the declarant. It considers this insufficient evidence that these 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.

23. In addition, the Tribunal acknowledges the 2 Statutory Declarations made on 15 September 2022 by Ms Ellis and Mr Shortland, neighbours and friends of the visa applicant. In both of their declarations they explain the importance of the applicant in their lives, his assistance with their family and the social importance of his friendship to themselves as well as his contribution to their community. This was further elaborated upon during the hearing by Mr Shortland.

24. The Tribunal also acknowledges the Declaration of Mr Woollons, the President of the local cricket club, also received on 16 September 2022, in which he explains the positive contribution the visa applicant makes to his club and young members of the community and club. He provided verbal evidence at the hearing which again reinforced the valuable contribution in volunteering in the club and the support the visa applicant provided. The Tribunal accepts this as evidence of an individual participating in a positive manner which adds to his community.

25. Whilst the Tribunal acknowledges the importance of the visa applicant and these 3 peoples view of his contributions to their lives and the community at large, the Tribunal considers this insufficient evidence that these 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.

26. The Tribunal put to the visa applicant disclosure of adverse information at a hearing under [SS.359AA] as follows.

27. ‘I am now going to put to you formally under the law under Sub Section 359AA some pieces of information that I have. This is information that would be the reason or part of the reason for affirming the decision under review.

28. I will also explain to you why the information is relevant to my decision. Please tell me if you don’t understand the information or if you don’t understand why it is relevant.

29. I will then ask you to comment on or respond to that information. You don’t have to respond now, you can ask for more time to comment or respond to the information. You already know about most of this information, but I am required to put it to you formally.

30. Let me take you through the information and I shall ask you to comment or respond to that information.

    The information is as follows…….

31. The Tribunal has information confirmed by you at this hearing, that in the Statutory Declaration provided by yourself Mr Aaron FARRELL MOHAN dated 29 August 2019, the applicant admitted knowingly answering “No” to the character declaration ‘Has the applicant ever been removed, deported or excluded from any country (including Australia)?’ on his application for the TZ417 (Extension) visa granted on 19 September 2017 and held in the period of 12 months before this visa application was made.

32. This is supported by the migration agent’s Submission to the Department of Home Affairs, (DoHA), received on 30 August 2019, in which the agent has confirmed the applicant admitted providing false or misleading information in his previous declarations to the Department.

33. The Tribunal therefore finds the applicant knowingly answered the question. The applicant was aware of his previous removal and the subsequent exclusion period and hence the declaration was false at the times it was given and purposely misleading and untrue.

34. This information was relevant to a criterion considered when making a decision on the applicant’s subclass 417 visa application, namely Regulation 417.221(2)(b) – whether the applicant was affected by a risk factor specified in subclause 4013(2) and whether the applicant satisfied Public Interest Criteria 4013. This subclass 417 visa was held by the applicant in the period of 12 months before the current application for a subclass 186 visa was made.

35. Based on this and all the evidence and information available before it, the Tribunal finds that the applicant has given information that is false or misleading in a material particular in relation to a visa that the applicant held in the period of 12 months before the application was made.

    This information is relevant because…….

36. As already stated, based on this and all the evidence and information available before it, the Tribunal finds that the applicant has given information that is false or misleading in a material particular in relation to a visa that the applicant held in the period of 12 months before the application was made.

37. Therefore, an element of fraud or deception by some person has occurred, as is necessary to enliven the operation of the PIC 4020(1) provision: Trivedi v MIBP [2014] FCAFC 42.

38. Therefore, the Tribunal is not satisfied that the applicant meets Public Interest Criterion (PIC) 4020, subclause 4020(1)(b).

39. Subsequently, the applicant does not meet the requirements in PIC 4020(1).

40. 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.

41. The Tribunal is yet to form the view as to whether or not it has not been provided with sufficient evidence that there are compelling circumstances that affect the interests of Australia, or sufficient evidence that 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.

42. If it does not, then the requirements of PIC 4020(1) should not be waived. On that basis, the applicant would not satisfy PIC 4020 for the purposes of cl.186.213. That means the Tribunal will affirm the Department’s decision and subsequently your visa can not be issued.

43. I will now ask you to comment on or respond to that information. You don’t have to respond now you can ask for more time to comment or respond to the information.’

44. The applicant chose to respond when asked to comment and respond during the hearing. The applicant stated that he wants another chance to stay in Australia. He apologised for his poor choices again, acknowledging and apologising for his deliberate actions which resulted in him being unable to meet the requirements as stipulated in PIC 4020(1).

45. He went into substantial detail to explain that he understood what he did was wrong and accepted that he had made poor decisions in relation to his visas by utilising 2 different passports in order to gain access to Australia, even though he knew it was not the correct thing to do. He at no stage tried to shirk the responsibility for his actions. He agreed with the Tribunal that he had used his Irish Passport as a means to avoid the 3-year ban placed on him whish was identified with his British Passport. He explained that he had been focussed on a need to return to his brother and children who are the only family he has. A considerable amount of detail was revealed about some of the challenges facing his brother with a new business and the anxiety suffered by his niece. He detailed how he helped his family, supported his brother and his children and how he was trying to act as a responsible uncle. This was corroborated by his brother in verbal testimony. The visa applicant explained he had not considered the consequences of his actions at the time in relation to his family, his employer, his friends or his community. He knew he had done the wrong thing but was trying to make amends by being the best person he could be and contributing to the people around him.

1. The applicant elaborated on his family circumstances, his early life in Ireland, the isolation in a relatively unprosperous community. The early age at which his parents had children and the responsibility his now deceased grandmother assumed, in order to ensure he had a safe and nurturing childhood were explained. He stated that grew up very close to his older brother who helped to take responsibility for his wellbeing and protect him. He spoke about alcohol abuse within his family and associated family violence. He was very emotional about what he had done and the consequences. The visa applicant stated that he had grown and matured as a person and fully understood the consequences of his actions.

2. The Tribunal is convinced that the visa applicant’s remorse is genuine and sincerely regrets his actions and the subsequent negative consequences inflicted upon himself and those in his personal and professional life. It can appreciate that he had a short-term focus upon his immediate needs in a desire to return to his family. The Tribunal also appreciates that he has demonstrated that he has truly accepted responsibility for his wrongdoing in providing false information in his visa applications. For this acceptance of his part in the current situation the Tribunal commends the visa applicant.

3. The Tribunal however does not excuse the fraudulent activity undertaken by the visa applicant. The Tribunal takes the matter of false or misleading statements or the provision of false physical evidence or information given during a visa application process very seriously. These documents, associated information gathering, and verification procedures provide one of the key pillars to our border security and as such the Tribunal views the legal responsibilities associated with them as sacrosanct. This perspective was relayed to the applicant during the hearing.

4. The Tribunal acknowledges that this is unlikely to be the visa applicant’s preferred outcome and it accepts that there will be dislocation of family and social relationships, work links and friendships as a result of the applicants being required to leave Australia. However, the Tribunal has not been presented with sufficient evidence needed to satisfy the concepts of compassionate of compelling circumstances at the level needed to enliven PIC 4020(4)(a) or (4)(b).

5. As previously stated, the Tribunal has not been provided with sufficient cumulative evidence that there are compelling circumstances that affect the interests of Australia, or sufficient evidence that 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.

6. Therefore, the requirements of PIC 4020(1) should not be waived.

7. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.186.213.

   Assessment against other streams

8. In accordance with the Migration Regulations, the Tribunal assessed whether the criteria for the grant of a Regional Employer Nomination visa within any other stream within this visa subclass have been satisfied.

9. The applicant has only sought to satisfy the criteria for a subclass 186 visa in the Temporary Residence Transition Scheme. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the other streams have not been met, the decision under review must be affirmed.

   decision

10. The Tribunal affirms the decision not to grant the applicant’s Employer Nomination (Permanent) visa.

    Peter Emmerton

    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.

    …