Morris (Migration)

[2020] AATA 483

Morris (Migration) [2020] AATA 483 (13 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr James Stuart Morris

CASE NUMBER:  1827609

DIBP REFERENCE(S):  BCC2018/2960662

MEMBER:Michael Ison

DATE:13 February 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a GK – Temporary Skill Shortage (Class GK) visa.

Statement made on 13 February 2020 at 7:25pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – false or misleading information in a material particular – failure to disclose criminal history in a previous visa application – waiver of requirement – expression of regret – character references – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 482.217; Schedule 4, PIC 4001, 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 Immigration on 13 September 2018 to refuse to grant the applicant a GK – Temporary Skill Shortage (Class GK) (Subclass 482) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a 25 year old national of the United Kingdom who arrived in Australia on 14 September 2017 as the holder of a subclass 601 visa electronic travel authority that was valid to 14 December 2017 (three months). The applicant departed Australia on 5 December 2017 and returned on 25 February 2018 as the holder of a Class TZ (Subclass 417) working holiday visa that was valid to 25 February 2019.

3. The applicant applied for the Subclass 482 visa on 7 August 2018. The applicant provided the Tribunal with a copy of the delegate’s decision. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.482.217(1) of Schedule 2 to the Migration Regulations 1994 (the Regulations). That clause requires, amongst other things, the applicant to satisfy Public Interest Requirement 4020 (PIC 4020).

4. The delegate found the applicant did not satisfy PIC 4020 because in the applicant’s application for the Subclass 482 visa the applicant declared he had a criminal conviction and provided a statutory declaration and United Kingdom police clearance certificate showing he had a number of criminal convictions in the United Kingdom between 2010 and 2014. The applicant did not disclose his criminal history in his application for the Subclass 417 visa, which was the visa he held in the 12 months prior to applying for the Subclass 482 visa. The delegate considered this failure to be information that was false or misleading in a material particular as it was relevant to determining, when making a decision on the applicant’s application for the Subclass 417 visa, whether he met the character requirements of PIC 4001 for that visa.

5. The delegate went on to find that there were no relevant compelling circumstances affecting the interests of Australia or compassionate or compelling circumstances affecting the interests of an Australian citizen, permanent resident or eligible New Zealand citizen to justify waiving the requirements of PIC 4020(1)(a) and granting the applicant the Subclass 482 visa.

6. The Tribunal by invitation sent on 23 January 2020 invited the applicant to attend a hearing at the Tribunal on 14 February 2020. On 13 February 2020, the applicant emailed the Tribunal:

   Dear Sir/Madam,

   This email is to respectfully confirm that I will not be attending tomorrows hearing.

   I understand that my subclass 457 cannot be approved because I am no longer subject to an approved nomination by the sponsor. To avoid any misunderstandings, I confirm that I am no longer employed by this company.

   I understand the Member will now affirm the Department's original decision.

   Regards

   Jim Morris

7. For the following reasons, the Tribunal has concluded that the decision under review 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.482.217(1) 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 applicant concedes that he has provided information that is false or misleading in a material particular in relation to his Subclass 417 visa application.

14. In a statutory declaration declared on 21 August 2018, the applicant declared:

    I would like to start by expressing my remorse for the current situation. I have made an innocent error in not declaring my past crime or offenses made. I was under the incorrect impression that due to my past offenses in the UK being before the age of 21 that they had been removed from my record and I was exempt. In hindsight, I wish that I had more due diligence into this and was aware that this was incorrect.

    I wish to state that there was no malice or intent in not declaring my past offenses. I have disclosed all the details on my 482 visa application, including a detailed statement and subject access report. I understand significance of my error made and the potential implications for me. I value the Australian Immigration system and wish to do everything I can to prove that. (sic) [1]

    [1] Department file, folios 79 and 80 at folio 80.

15. The Tribunal finds that the applicant has provided information that was false or misleading in a material particular when he did not declare or disclose his prior criminal convictions in the United Kingdom when the applicant applied for the Subclass 417 visa by answering the question about whether he had any criminal convictions on that application form as ‘no’ instead of ‘yes’. The Tribunal finds that this information was material to the applicant’s subclass 417 application because it was relevant to the delegate’s assessment of whether the applicant met the character requirements of PIC 4001.

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

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

17. 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.

18. 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.

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

20. The delegate’s decision stated:

    On 13/08/2018 the applicant was provided an opportunity to comment on the information that is considered to be false or misleading and specify there are any compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, to justify the waiver of any or all of PIC 4020(1) and to justify the granting of the visa as stated in clause 4020(4).

    Based on the information provided in the submission on 09 September 2018, response to S57 Notice, letter of support from the sponsor and the visa applicant’s statutory declaration, I have summarised their claims of compelling and compassionate circumstances to waive the requirements of 4020(1)(a) as below.

    Claims from sponsor:

    ·The applicant has been successfully working with the sponsoring employer since March 2018 and is an exceptional member of the team, contributing to positive behaviour and operations of the business

    ·The Applicant has great work ethic and is performing very well in his role

    Claims from Applicant – Statutory Declaration

    “I write in relation to the s57 notice received on my 482-visa application. I thank you for the opportunity to respond to this notice. This visa application is very important to me and l highly value the opportunity. I have been given to work in Australia.

    I would like to start by expressing my remorse for the current situation. I have made innocent error in not declaring my past crime or offenses made. I was under the incorrect impression that due to my past offenses in the UK being before the age of 21 that they had been removed from my record and I was exempt. In hindsight, I wish that I had more due diligence into this and wag aware that this was incorrect.

    I wish to state that there was no malice or intent in not declaring my past offenses. I have disclosed all the details on my 482-visa application, including a detailed statement and subject access report. I' understand Significance of my error made and the potential implications for the. I value the Australian Immigration system and wish to do everything can to prove that.

    When I was younger, I made mistakes which I am not proud of have learnt from these and grown as a person. I have not since had any offenses since the age of 19 and certainly do not plan on doing so I also refer to my statutory declaration provided With the 482 visa application. I sincerely regret my past offenses and hold genuine remorse for these mistakes. My sponsor (Manpower) have also provided some character references, which I ask you please consider when reviewing this request.

    This opportunity means the world to me and will do whatever it takes to make myself and my family proud of my time in Australia, I cannot express how sorry I am for this happening and would do anything to go back to the day I signed that form, knowing this information. I understand that you have doubts in regards to my character off the back of this incident and I value the opportunity I have been given to correct this error.

    I value honesty and integrity as a person and I am so disappointed in myself the situation I have found myself in with this. Given the opportunity, I will add value to Manpower, the Cyber Security community and not only strive to make a living but strive to make a difference in Australia.”

    The primary applicant had failed to declare he had a number of convictions on the visa he held in the period of 12 months before the application and hence was granted a Working Holiday maker visa (TZ-417) and entered Australia on 25/02/2018.

    While it was declared on his current 482 visa application, the applicant submitted that he made an innocent error in not declaring his previous convictions on his previous 417 visa application. According to the statutory declaration the applicant made, he had stated that it was his understanding or was “under the correct impression” that his past offences committed when he was under 21 years of age was already removed from his record and that he was exempt.

    I also acknowledge the applicant’s remorse about his character non-declaration and that mistakes were made when he was younger and has learned lesson from them.

    The applicant’s UK police certificate recorded a number of offences that occurred between the years 2010 to 2014, ranging from; Common Assault, Using threatening, abusive,insulting words or behaviour with intent to cause fear or provocation, of violence, Use disorderly behaviour or threatening/abusive/insulting words likely to cause harassment alarm or distress, destroy or damage property, travelling beyond distance for which rail dare paid on, possessing controlled drug-class A – Cocaine, using threatening, abusive,insulting words or behaviour with intent to cause fear or provocation of violence. I acknowledge the applicant claimed he genuinely regretted his previous actions and made an error in not declaring his offences in his character declaration; however, I find it questionable given the matters were adjudicated in a police constabulary or before the courts. While the disposal of the matters resulted in the applicant being reprimanded, fined and remanded, the formalities of how the matters were decided would indicate the offence would be recorded in some form against his name. As such, given the extent/recurrence of his police record yet he had failed to disclose this initially leads me to infer that it was not simply an innocent mistake as the applicant suggests. I find it also pertinent to note that the question posed on departmental forms is simply: Has any applicant ever been convicted of an offence in any country (including any conviction which is now removed from official records)? I find there is no ambiguity in the question asked nor does it mention a timeframe of when the offence occurred or whether the sentence has been served for the applicant to be undertaking any research on how to answer the question.

    In assessing whether the applicant satisfies a waiver of PIC4020(1)(b), the claims of the sponsoring business were considered. The nominating sponsor; MANPOWER SERVICES (AUSTRALIA) PTY LTD was registered as a legal business entity on 08 April 2000. The sponsor has submitted that the applicant has been successfully working with the sponsoring employer since 08 March 2018 and is an integral part of the team, possessing positive qualities and attributes beneficial to work environment.

    The applicant has also presented various character references from a number of individuals assuring of his good character. While they highly regard the applicant as being honest, responsible and a true professional, I note the seriousness of making false and misleading declarations is not something taken lightly. The onus is on the individual visa applicant to ensure the information provided to the department is complete, correct and up-to-date and by submitting an application the visa applicant is making such declarations. Whether or not he would have satisfied PIC4001 as part of the 417 visa application is now irrelevant to the matter at hand as it still doesn’t change the fact that he is affected by PIC4020(1)(b) as he had made a false declaration which is considered as false and misleading information in a material particular in relation to a visa that the applicant held in the period of 12 months before the application was made.

    I have considered whether there are any grounds to waive the requirements of PIC 4020, however the applicant has not presented any information or evidence to demonstrate compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen to justify the waiver of any or all of PIC 4020(1) and to justify the granting of the visa. While the visa applicant has an approved nomination in place with his prospective sponsor, there is no other information or evidence before me to consider that there are compelling or compassionate circumstances that exist under clause PIC4020(4) to justify the granting of the visa.

    Based on all the information before me, I am not satisfied the applicant has demonstrated compelling circumstances that affects the interest of Australia.

    As PIC 4020(4) gives me the discretion to waive the requirements of any or all of PIC 4020(1)(a), (1)(b), I have considered whether there are compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, that justify the grant of the visa.

    I find the claims made above does not fall within the scope of circumstances that affects the interest of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. Therefore, I have not considered the claims against this criterion.

    I have reviewed the claims and supporting information the applicant has provided and I am not satisfied that there are grounds to justify the waiver of PIC 4020 and the grant of the visa. (sic) [2]

    [2] Delegate's decision dated 13 September 2018, Tribunal file, folios 32 to 35 at folios 31 and 32.

21. The applicant informed the Tribunal that he is no longer employed by his former sponsor as quoted in paragraph 6 of these reasons, but did not provide the Tribunal with any other relevant information in relation to his review.

22. The Tribunal acknowledges that the applicant admits he made a mistake in not disclosing his criminal history as part of the information he provided when applying for the Subclass 417 visa that was granted to him. The Tribunal also acknowledges that the applicant has expressed his regret about this omission, explaining it occurred because he thought matters that occurred before a person turned 21 were exempt from disclosure. Such a mistake, if the applicant was of this belief, does not relieve the applicant of the obligation to answer all questions on a visa application form in full and correctly.

1. The applicant has also expressed remorse for his criminal offending in submissions to the Department.

2. The applicant also provided character references from Lynette Whitworth who has known the applicant for 10 years, two references and a statement of employment from Manpower Group who employed the applicant at the time his application for a Subclass 482 visa was refused, references from Abbas Kudrati of Pitcher Partners and Paul Bogle who previously employed the applicant at Hunter Wade, a statement of employment from Sky UK Ltd a former employer and references from Jenny Kelly of Computerfutures UK and Sam Kamyar of Empiric UK, both former employers of the applicant. The references attest to the applicant’s hard working nature, positive attitude, honest nature and strong interpersonal skills amongst other positive attributes.

3. In his statutory declaration declared on 21 August 2018 the applicant declared that he will add value to his employer and to the cyber security community in Australia. The applicant did not provide any supporting evidence of what particular value he would add to his then or any future employer other than the references from Manpower, who no longer employ the applicant, about his general and work attributes. The applicant also provided no evidence in support of his submission that he will add value to the cyber security community.

4. In the Tribunal’s view the applicant’s submissions about his mistake in not disclosing his criminal history on his application for the Subclass 417 visa, his regret about both that and his criminal offending and the positive character references he has provided do not establish that there are compelling circumstances affecting the interests of Australia that are sufficient to waive the requirements of PIC 4020(1).

5. In the Tribunal’s view the applicant has not provided sufficient information to the Department or Tribunal to persuade the Tribunal that there are compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, that justify the grant of the visa.

6. For these reasons the Tribunal finds that the applicant has not demonstrated that there are compelling circumstances affecting the interests of Australia or that there are compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, that justify the grant of the visa.

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

   Has the applicant satisfied the identity requirements?

8. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.  The applicant has provided extracts of his passport that satisfies the Tribunal as to his identity.[3]

   [3] Department file, folio 23.

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

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

10. 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).

11. There is no information before the Tribunal to indicate that the applicant or any member of his family unit has been refused a visa in the relevant period because of a failure to satisfy PIC 4020(2A).

12. Therefore PIC 4020(2B) does not apply.

    Conclusion

13. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.482.217(1).

    DECISION

14. The Tribunal affirms the decision not to grant the applicant a GK – Temporary Skill Shortage (Class GK) visa.

    Michael Ison
    Senior 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. 

    …