Paley (Migration)

[2021] AATA 228

Paley (Migration) [2021] AATA 228 (19 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kieran Douglas Paley

CASE NUMBER:  1814383

DIBP REFERENCE(S):  BCC2018/605930

MEMBER:Peter Emmerton

DATE:19 January 2021

PLACE OF DECISION:  Adelaide

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

Statement made on 19 January 2021 at 12:40pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – false or misleading information in previous Working Holiday visa application – failure to disclose criminal convictions – deliberate deceptions by the applicant – remorse – letter of support from employer – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 457.223; 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 Immigration on 11 May 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 5 February 2018. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.457.223(4) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because upon assessment of the 457 visa application, it was found that the application and UK Police Certificate contained criminal convictions that had not been declared in the 417 Working Holiday (Extension), the last visa that the applicant held in the 12 months before the application was made. Based on the findings above, there is evidence before the department that the applicant has provided information that is false or misleading in relation to his Temporary Work (Skilled) (subclass 457) visa application. It was therefore considered that the applicant’s circumstances fall within the scope of Clause 4020 (1)(b).

3. The applicant appeared before the Tribunal, via video, on 19 January 2020 to give evidence and present arguments.

4. The Tribunal found that the applicant appeared to answer all questions in an honest and open manner without attempting to obfuscate.

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.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).

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.

11. The Tribunal asked the applicant if he had committed the offences, as stated by him in his 457-visa application, under the Character Declarations section, as detailed below.

    ‘Has any applicant ever been convicted of an offence in any country (including any conviction which is now removed from official records)?
    Yes

    Give details:

    1. Date 29 Dec 2014 - Vandalism - sentence deferred - fine GBP 210.00 and Behave in a threatening or abusive manner - sentence deferred - Admonished (sentenced date 20 Jan 2015)

    2. Date 15 Feb 2016 - Assault to Injury - fine GBP 320.00

    Both on the attached UK police report.’

12. The Tribunal also reminded him that this information was in the department’s written decision dated 11 May 2018, which he had provided to the Tribunal.

13. He replied that he had committed the offences and the statements, (as detailed in para 11) were accurate.

14. The Tribunal asked him if he had failed to mention these offences and convictions in his application for his previous visa, a 417 Working Holiday visa extension, in the previous 12 months prior to his 457-visa application. He stated that he had not admitted to the offences.

15. The Tribunal asked him to explain the offences. In summary both convictions occurred as a result of alcohol fuelled physical altercations in a nightclub when he was approximately 21, according to the verbal evidence provide to the Tribunal, by Mr Paley.

16. The Tribunal asked why he had not admitted to the offences in his earlier visa applications prior to the 457 visa application. He admitted that his parents had helped him with the working holiday visa and he had not told them of his convictions at that point. To reference the convictions in his application would have meant that he had to admit to his parents that he had deceived or lied to them. He then explained that he had not originally intended to apply for a more permanent visa and hoped that he would be able to get away with the deception and let it ‘fly under the radar’.

17. The Tribunal asked him when he realised that his initial deception would likely prove problematic. He explained that it was when he was applying for his 457 visa and became realised that the information would be contained in the associated UK Police Clearance, which was a requirement for that application. He had not been required to supply a UK Police Clearance for his working holiday visa. He subsequently admitted to the convictions in his 457 visa application.

18. This resulted in a letter from the Department dated 9 February 2018, which provided him with an opportunity to comment on the information that the Department considered to be false and misleading. Within the 28 days given, the applicant provided a written response: This has been summarized below in his statutory declaration:

    “When I made my application for 417 working holiday visas, I must have misinterpreted the
    question.

    I wasn’t aware what information was on my UK Police Clearance as I had never requested one before.

    I believed that as I had already received fines by a Justice of the Peace Court, I didn’t
    consider these to be considered serious criminal convictions at the time of making my 417
    applications.

    It was not until I was making an application for a 457 visa and received the UK Police
    Certificate that I realized I many have inadvertently answered the 417 applications
    incorrectly.

    I apologise for this error I did not intentionally try to provide misleading information.
    I have at all times provided truthful and accurate information to the best of my knowledge at
    the time of making my applications.

    I believe I am of good character, these offences occurred through immaturity and I have
    since learnt to avoid confrontation at all costs. I am fully aware that any future incidents will
    impact my future career prospects and prevent me from travelling especially if I am unable to
    work in various countries due to any criminal convictions and/or visa cancellations.

    I am very remorseful for my errors and the potential detrimental effect they may have on
    myself and my potential employer (Expro) whom have offered me an opportunity to work for
    them in Australia subject to visa approval.

    I sincerely hope my actions through immaturity do not impact my current visa application”.

19. Under questioning he admitted to the Tribunal that he had once again deliberately lied to the Department in the hope that his visa would be granted. He acknowledged that he knew that he had failed to disclose criminal convictions when he made his initial visa applications. Then he had knowingly continued the deception by claiming that he had not understood that they were in fact criminal convictions in his subsequent Statutory Declaration, which he provided to the Department in response to their letter dated 9 February 2018.

20. The Tribunal then asked whether or not he told the truth in the 457-visa application because it had become apparent to him that his previous deliberate omission would be exposed during the 457-visa application process. He acknowledged that the Tribunal’s assertion was correct.

21. The Tribunal has formed the view from the fore mentioned statements and the evidence presented, that the application and UK Police Certificate contained criminal convictions that had not been declared in the 417 Working Holiday (Extension), the last visa that the applicant held in the 12 months before the application was made. Based on the findings above, there is evidence before the Tribunal that the applicant has provided information that is false or misleading in relation to his Temporary Work (Skilled) (subclass 457) visa application. It is possible to determine from the evidence provided by the applicant that this resulted from a deliberate attempt at deception in relation to clearly stated requirements during the application process. It is clear, through his own admission, that the applicant provided false or misleading information in his 2 Working Holiday, 417 visa applications.

22. The Tribunal has some empathy for the applicant’s initial plight. He made a series of poor decisions fuelled by alcohol in his early adulthood. This is not an unprecedented circumstance. Unfortunately, this has resulted in serious consequences that would have been unexpected at the time of the initial criminal behaviours. These consequences are largely as a result of deliberate deceptions initiated by the applicant which was compounded by his ongoing attempts to deceive the Australian Department of Home Affairs.

23. The Tribunal takes the matter of false or misleading statements given during a visa application process and Statutory Declarations very seriously. These documents and associated 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.

24. Therefore, the Tribunal has determined that the applicant does not meet PIC 4020(1).

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

25. 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.

26. 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.

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

28. The Tribunal accepts that the visa applicant is remorseful that he provided misleading information in his 417-visa application, which was the last visa he held in the 12 months before the application for his 457-visa was made. It also accepts as fact that the applicant has matured and is attempting to function in a positive manner within society.

29. The Tribunal accepts as fact the balanced letter of support written on his behalf, by his employer, Expro Group Australia Pty Ltd. It notes the candid way in which the previous behaviours have been acknowledged and the honestly held belief by the Area Manager, that the visa applicant deserves a second chance because he has put his life on a positive track, which has been accompanied by outstanding work performance. The Tribunal acknowledges that Mr Paley is a valued member of the nominator’s organisation and is continuing his employment in the UK as a result.

30. The Tribunal acknowledges that there is an approved nomination in place with his prospective sponsor. It also accepts that both the employer and the visa applicant will suffer some degree of disadvantaged if the visa applicant is unable to work with the nominating employer. It also notes that he has an ongoing role available to him in Scotland.

31. The Tribunal has determined that these matters are not in themselves sufficiently ‘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).

32. The applicant has also acknowledged during the Hearing that the ‘compassionate or compelling circumstances’, as mentioned in paragraph 31 do not exist.

33. Therefore, the Tribunal has determined that the requirements of PIC 4020(1) should not be waived.

34. Therefore, the visa applicant does not meet PIC 4020(4)(a), accordingly clause 457.224 is also not met.

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

36. As the applicant does not satisfy subclause 457.223(4) of the Regulations, the Tribunal is not satisfied that the applicant satisfies the primary criteria for grant of a Subclass 457-Temporary Work (Skilled) visa.

37. The Tribunal has also assessed the ability of Kieran Douglas Paley to meet the secondary criteria for the subclass 457 visa.

    One of the secondary criteria for the subclass 457 visa provides:

    457.321 The applicant is a member of the family unit of a person (the primary applicant)
    who, having satisfied the primary criteria, is the holder of a Subclass 457 visa.

    Kieran Douglas Paley is not the member of a family unit of a person who already holds a subclass 457 visa having satisfied the primary criteria. Consequently, the Tribunal is not satisfied that Kieran Douglas Paley meets clause 457.321 for the grant of a Temporary Business Entry (Class UC visa).

    DECISION

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

    …