PANERU (Migration)

PANERU (Migration) [2021] AATA 3134 (22 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Sameer Paneru
Mrs Sarina Neupane Paneru
CASE NUMBER:  1831101
HOME AFFAIRS REFERENCE(S):          BCC2017/1940724
MEMBER:John Cipolla
DATE:22 July 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 186 - Employer Nomination Scheme visas:
·Public Interest Criterion 4020 for the purposes of cl 186.213 of Schedule 2 to the Regulations.
Statement made on 22 July 2021 at 5:45pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – failed to disclose a mid-range drink driving offence – applicant had provide false and misleading information – applicant satisfied the identity requirements – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cl 186.213, Public Interest Criterion 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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 October 2018 to refuse to grant the applicants Employer Nomination (Permanent) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 1 June 2017. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl 186.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
The delegate noted that cl 4020(1) requires that there is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Administrative Appeals Tribunal, 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.
The delegate noted that if there is such evidence, cl 4020(4) provides that PIC 4020(1) will nonetheless be satisfied if the Minister 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;
The delegate noted that the applicant, in a previous visa application for a Subclass 457 visa made on 18 June 2014, failed to disclose a mid-range drink driving offence in NSW in August 2011, in response to the question of whether he had been convicted of any offence in any country. The applicant’s response to this question was “no” and the delegate concluded on the basis of this response that the applicant had provide false and misleading information to the Department in his Subclass 457 visa application.
The delegate noted that this information came to the attention of the Department when the applicant submitted a certificate from the Australian Federal Police on 1 July 2017 when applying for his Subclass 186 visa, which indicated the offence, and for which the applicant was disqualified from driving for 6 months and fined $400.
The applicant’s then representative, when responding to the delegate’s concerns about the omission of the criminal conviction, argued the following:
We refer you to his statutory declaration declared on 15 August 2018 in which he states that he believed that traffic offences were not intended to be captured by the question, only matters of a criminal nature.
In fact, Sameer had applied for the AFP certificate prior to submitting his 457 visa application and provided it to his migration agent at the time. He was notified, however, that a police certificate was not required for the 457 visa application and that document was not submitted.
Believing the same to be true at the 186 visa application, he answered the similar in lodgement of his 186 visa application, it is clearly evident that a) he was not attempting to hide the information and b) he believed that he had correctly answered the question in the application form.
We submit that, for nationals of another country – even those living in Australia for several years – knowing the meaning of specific phrases and meanings can be difficult. There is no tuition given in matters of law to visa holders in Australia.
Entrants to Australia are required to be familiar with the information contained in the ‘Life in Australia’ booklet however that does not provide the specificity that would assist someone like Sameer to know whether a traffic offence should be considered alongside ‘criminal or other’ offences.
We submit, therefore, that it is not unreasonable to believe that Sameer would have had this confusion in his mind. His friend, Albert Frost, attests to the fact that Sameer considered the matter during his 457 visa application and came to the conclusion that a traffic offence need not be mentioned.
We therefore submit that, as the incorrect information was given as a result of an innocent mistake, and with no purposeful falsity, the incorrect information should be disregarded and Sameer found to meet the criterion in 4020.
We submit that in the present matter, Sameer made an innocent mistake in answering the questions incorrectly.
The applicant’s then representative further stated that the innocent omission of the criminal conviction would not have altered the outcome of the applicant’s 457 visa application nor would have it led to any character concerns under s 501 of the Act.
The applicant, in a statement to the delegate, advised that:
I state that I never had an intention to provide false or misleading information to the Department of Home Affairs as part of my applications for 457 or 186 visas for Australia. I assure you that the incorrect answers were genuine errors based on my misunderstanding and were not meant to deceive.
Reading this question (the character declaration question), I understood the words 'crime or offence' referred only to criminal matters and that traffic offences did not need to be disclosed.
I was also unaware of the meaning of the word 'convicted'. I thought this meant go to gaol and not just to be found guilty of an offence. I therefore answered 'no' to the question, believing this to be the correct answer.
The delegate considered this evidence, however, they concluded that PIC 4020(1) applied and went on to find that in the circumstances of this case PIC 4020 should not be waived.
The Tribunal received a submission and a range of other evidence at review, which it has duly considered.
The submission included details of the applicant’s visa history in Australia and the circumstances in which he failed to disclose his criminal conviction in his Subclass 457 and 186 applications:
Mr Sameer Paneru ('the main applicant') is a Nepali national who first arrived in Australia on 06 November 2008.
…
After coming to Australia in 2008, Mr Paneru has completed his Certificate IV in Commercial Cookery and a Diploma of Hospitality Management from Holmes Institute, Sydney in 2011.
Prior to obtaining this qualification, Mr Paneru has also completed Crew Training Development Program conducted by McDonalds Australia Ltd.
Mr Paneru has thus spent considerable amount of his initial years in Australia working as a Cook in different cafes, restaurants, and other food outlets like McDonalds to become a qualified Chef.
After completing his required educational qualification in Cookery and Hospitality Management, Mr Paneru spent considerable amount of his time in Australia in Hospitality industry as Chef.
Because of his expertise as a Chef coupled with his passion and dedication towards cooking, he was nominated by an approved sponsor MAUDOM PTY LIMITED in 2014 for the position of Chef-351311. Following this, Mr Paneru applied for Temporary Work Skilled (subclass 457) visa on 18 June 2014. His wife Sarina Neupane Paneru was also included as a secondary visa applicant in that 457-visa application.
On 14 July 2014, Mr Panern and his wife were granted with SC457 visas which had stay period for 4 years.
On 1 June 2017, Mr Paneru and his wife who were rightly eligible for Employer Nomination (Class EN) (Subclass 186) visa applied for that visa on Temporary Residence Transition Stream.
As a part of subclass 186 visa application, National Police Certificate issued by AFP covering a period up until IO January 2017 was submitted for the main applicant Mr Paneru as well as secondary applicant Mrs Paneru. Both the Police Clearance Certificate were issued to the Office Address of Aspire Australia.
On 13 April 2018, the Department requested more information regarding the Employer Nomination visa applied on 1 June 2017. In particular, it requested both the applicants to provide Australian Federal Police (AFP) clearance National Police check having 12 months validity. It also noted that police clearance submitted as a part of the 186 visa application had already expired.
Subsequently, the National Police Clearance certificate issued on 16 April 2018 for secondary applicant Mrs Paneru and National Police Clearance certificate issued on 22 May 2018, both covering period up until 16 April 2018 was submitted as a part of the Department's request for further information dated 13 April 2018.
On 4 June 2018, the Department requested more information relating to driving record history of the main applicant. Online Driving Record of the main applicant as kept by Roads & Maritime Services (RMS) as at 24 May 2021 was submitted complying with the Department's request on 13 June 2018.
On 26 July 2018, the Department invited the main applicant Mr Paneru to comment on information that he had provided as a part of his application for Employer Nomination (subclass 186) visa which was deemed by the Department as adverse to his SC186 visa application lodged on 01 June 2017.
In particular, the Department deemed that the main applicant 'has provided, or caused to be provided, a bogus document or false or misleading information' in relation to the visa application and may not satisfy PIC 4020 (1) in Schedule 4 of the Regulations. The information that particularly concerned the Department were:
AFP police clearance certificate issued on 18 Jan 2017 submitted as a part of subclass 186 visa application lodged on 1 June 2017 which showed the applicant was convicted of an offence of Driving with Middle Range Prescribed Concentration of Alcohol which resulted m $400 fine and driver's licence suspension for a period of 6 months;
Failure to declare this criminal conviction in the application for the visa lodged on 01 June 2017;
Failure to declare past criminal conviction in Form BO-Personal particulars for assessment including character assessment- that was provided to the Department on 02 June 2017; and
Failure to declare this criminal conviction in the application for the visa the main applicant held in period of 12 months before 186 visa application was made-that visa being subclass 457 visa that was granted on 14 July 2014 for a period of 4 years.
The Department was concerned that in all instances, the primary applicant had answered 'No' to the question which asked 'Has any applicant ever been convicted of an offence in any countJy (including any conviction which is now removed from official records)? despite having been convicted of driving with middle range prescribed concentration of alcohol in 2011.
The applicant responded to the Department's Natural Justice letter stating how it was an innocent mistake that had occuned in process. In his Statutory Declaration executed on 15 August 2018 and submitted as a response to the Department's invitation of 26 July 2018 to comment on adverse information, the main applicant had stated how he was under a wrong impression relating to words like 'crime or offence' whereby he had clearly stated how he thought crime or offence referred only to criminal matters and that traffic offences did not fall in that category. Likewise, he also stated how he thought that word 'conviction' referred to as going to jail and not just being found guilty of an offence.
More importantly, the main applicant's statutory declaration of 15 August 2018 states how he had provided his AFP certificate dated 30 April 2014 to his Migration Agent when his 457 visa was being lodged being aware of the traffic offence in his Police certificate but as he was advised that it was not necessary to provide a police certificate with an application for a 457 visa, the AFP certificate was not provided.
Likewise, the main applicant's statutory declaration of 15 August 2018 also states how his Migration Agent had completed forms on his behalf for his 186 visa application and as believed traffic offences need not be disclosed in the section of the application which had question relating to Character declarations.
On 30 July 2018, notification of incorrect answers was submitted to the Department which stated how the main applicant was under a wrong impression as to how traffic offences need not to be disclosed which led him to answer 'No' in question relating to Character declarations in the application.
On 20 August 2018, the main applicant's Migration Agent Sarah Gillis from Aspire Australia responded to the Department's invitation letter of 26 July 2018 which amongst other things highlighted how the incorrect information that was provided as a part of Character declaration was not intended to mislead the Department but was an innocent mistake, and how the main applicant's case should not be warranted an investigation under PIC 4020 referring to Policy governing PIC 4020 under Schedule 4 of the Regulations as at 12/08/2018. It importantly noted how the main applicant's case would not be considered severe enough to not pass the character test as outlined by s 501 of the Act leading towards refusal of the 186 visa lodged on 01 June 2017.
Regardless of the evidence given in form of the response of the applicants' Migration Agent dated 20 August 2018, Statutory Declaration executed by the main applicant on 15 August 2018 and notification of incorrect answers- Form 1023 signed by both the applicants stating how the information provided in Character Declaration was as an innocent mistake rather than an attempt to mislead the Department, the delegate of the Department refused the applicants' application for a Employer Nomination (subclass 186) visa on 4 October 2018 because it deemed that the main applicant had given or caused to have given information that is false or misleading in material particular in relation to his 457 visa and 186 visa.
The applicant appeared before the Tribunal on 16 July 2021 to give evidence and present arguments.
At the outset of the review hearing the Tribunal explained to the applicant the respective issues before it, the process of merits review, and the prospective outcomes of the review.
The applicant advised that he first arrived in Australia in November 2008 as the holder of a Student visa and acknowledged that he had been resident in Australia since that time. The Tribunal asked the applicant whether he had assistance in applying for the Student visa from Nepal. The applicant stated that a migration agent assisted in that process. The applicant advised that he had held approximately 3 Student visas between 2008 and 2013.
The applicant advised the Tribunal that he successfully completed courses in Commercial Cookery and Hospitality at Holmes Institute in Sydney. The applicant advised that he also commenced a Bachelor of Accounting and completed approximately half of this degree before being offered an opportunity to work as a Chef on a Subclass 457 visa. The applicant advised that he worked at Mezzapica Café in Leichhardt. The applicant stated that he worked for this business for the duration of his Subclass 457 visa and that his employer decided to then sponsor him for a Subclass 186 visa.
The Tribunal explained to the applicant that visa applications require an applicant to sign a declaration attesting to the fact that all of the information provided in the application form is true and correct. This requires an applicant checking the form before signing it.
The applicant advised the Tribunal that the migration agent that assisted in the completion of the application forms gave them to him to check. The applicant believed that the forms were true and correct. The applicant explained that he was not aware that his mid-range prescribed concentration of alcohol (PCA) was a criminal offence, the applicant stated that he categorised it wrongly as a traffic offence that did not need to be acknowledged in the application forms. The applicant stated that in Nepal a criminal offence usually results in somebody being jailed.
The Tribunal noted that in Australia drinking whilst driving is a serious criminal offence as it can lead to the death or injury of another driver or of a pedestrian, and the Tribunal stated that it would be unusual for a sentencing Magistrate to not make this clear to an applicant in the court proceedings. The applicant advised that as this occurred in 2011 he had no recollection of what transpired at court.
The applicant stated that when he applied for his Subclass 186 visa he provided a copy of the Australian Federal Police report to his migration agent, which disclosed the drink driving offence of 2011 and the applicant expected that this would have led to the relevant disclosure in the application. The applicant stated that he did not deliberately withhold that information.
The Tribunal asked the applicant about his work history as the holder of a Subclass 457 visa. The applicant stated that he worked for his sponsoring business as a Chef and that he complied with the conditions attached to that visa. The applicant stated that the sponsoring business went to considerable expense to engage him as the holder of a 457 visa and to lodge an application for a Subclass 186 visa on his behalf.
The Tribunal asked the applicant what impact the cessation of his employment with Mezzapica Café would have on the business. The applicant stated that he had been with the business for an extended period of time. The applicant stated that he had developed a good relationship with his employer and with customers of the business. The applicant stated that it was extremely difficult for businesses to retain Chefs. The applicant stated that the occupation was an occupation in demand. The applicant stated that he had substantial experience, which commenced whilst working as a crew member for McDonald’s between 2010 and 2012 which involved extensive on-the-job training. The applicant believed that there would be a financial detriment for the sponsoring business if he was not able to maintain his ongoing employment with them.
The Tribunal asked the applicant how the business had been impacted upon by the current pandemic. The applicant stated that the business reverted to take away during lockdowns and that there had been a reduction in his shifts over 2020 because of the impact of the pandemic. The applicant stated that he had resumed regular shifts in 2021. The applicant stated that his wife had been working as a cashier with Harvey Norman, but she was currently on a year of maternity leave as a result of the birth of their child on 4 January 2021. The applicant stated that he is currently working full-time hours of between 40 to 45 hours per week.
The Tribunal has had regard to attestations from the owner of Mezzapica café attesting to the skill set of the applicant and to the benefit he provides to an Australian business.

The owner of the business, Maurice Portelli, in a statement in August 2018 pertaining to the applicant’s employment, advised as follows:
Sameer Paneru has been filling the role of Chef at Mezzapica Cafe, Leichhardt since      April 2014.
A small cafe, Mezzapica relies on a loyal clientele for its business. The Cafe has regulars who have been patrons for up to ten years! Located close to both residential and business areas, the cafe is always busy.
As Chef, Sameer's role is to consistently produce high-quality meals to customers. That role requires him to be an integral part of the process, from developing strong relationships with providores to ensure he purchases only the best quality produce available, to ensuring the kitchen is adequately staffed and equipped to manage through the busy production periods of breakfast and lunch. Sameer is responsible for developing the seasonal menu and preparing the meals.
Sameer is supported by a part-time cook and a part-time kitchen hand. Due to regular changes in staff - par for the course in the hospitality sector - having a steady hand at the helm in the kitchen is paramount.   Businesses like Mezzapica Cafe can rise or fall on the basis of the chef. Frequent changes affect business. Customer loyalty cannot be presumed and consistent delivery of a well-like product requires concentration and energy. At Mezzapica Cafe, Sameer has been providing that service for the past four years.
Although he is based in the kitchen, Sameer can also be considered the face of the    business. Sameer is central to arranging the Cate's annual participation in the Leichhardt Italian Festival in October where Mezzapica has a stall in Norton Street, attracting new potential customers from all over Sydney.
Without Sameer, the business would flounder. The chef is central to the business' operations. Sameer knows the menu. He has developed good relationships with suppliers. He knows the customers. Sameer provides Mezzapica Cafe with stability.
Personally, Sameer is a hard and dedicated worker. He is reliable, consistent and honest.
For all the above reasons, I support Sameer's application for permanent residence.
The applicants were represented in relation to the review by their registered migration agent, the agent attended the review hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
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).
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?
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.
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.
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.
The applicant concedes that he did omit to provide information pertaining to his 2011 criminal conviction in his Subclass 457 visa application and later in his Subclass 186 visa application. The applicant has at all times contended that this was not deliberate. The applicant contends that when he checked the 457 visa application form, he wrongly understood that criminal convictions in any country did not encompass driving offences such as a mid-range PCA. The applicant has also argued that he provided his then representative with a copy of his Australian Federal Police Certificate obtained in 2017 when he applied for the Subclass 186 visa, which indicates that he had been convicted of a mid-range PCA in 2011. The applicant held the mistaken belief that the provision of this Certificate meant that the Department was appraised of this conviction and ameliorated the fact that he answered “no” to the criminal conviction in any country question in the visa application form.
The applicant provided evidence at the review hearing that he had been in Australia since 2008 and that he had held at least 3 Student visas, a Subclass 457 visa and had made an application for a Subclass 186 visa. The applicant provided evidence that he had been assisted by migration agents in the preparation and lodgement of these applications and that he had checked the information in the forms before signing them. The evidence is that there was no impediment to the applicant doing this as he was clearly proficient in English, having completed a number of courses in Australia, including half of a Bachelor of Accounting degree. Indeed, before an overseas applicant is granted a Student visa, they need to establish proficient English language skills commensurate with the proposed course of study.
The Tribunal is sympathetic to the applicant’s arguments that he was reliant on his migration agents to ensure that the applications were completed properly with all relevant disclosures being made, but the actions of an agent do not exempt an applicant from being caught out by the provisions of PIC 4020. The applicant has asserted that the question of any criminal convictions in any country was not clear in meaning to him, and that his interpretation was that it exempted traffic convictions. However, this argument is diluted by the fact that with every visa application he has submitted he has been assisted by an accredited migration agent and, as has been noted, the applicant is not exempted by the acts or omissions of his agent in terms of the application of PIC 4020.
PIC 4020(5) states that information that is false or misleading in a material particular means information that is false or misleading at the time it is given, and 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.
The Tribunal finds on the basis of the evidence before it that the applicant, in failing to disclose his criminal conviction for a mid-range PCA in response to the question of criminal convictions in any country in his Subclass 457 visa application, was false and misleading in a material particular. The Tribunal notes that the answer to this question was not relevant to the question of whether the applicant satisfied the criteria for a Subclass 457 visa and that the offence itself would not have led to the applicant being excluded on character grounds. The Tribunal finds that the failure to disclose clearly comes within the ambit of information that is false or misleading in a material particular as defined in PIC 4020(5).
Therefore, the applicant does not meet PIC 4020(1).
Should the requirements of PIC 4020(1) or (2) be waived?
The requirements of PIC 4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in reg 1.03), that justify the granting of the visa. 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.
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.
Taking into account the case law, what amounts to ‘compassionate or compelling circumstances' in each case is a question of fact, having regard to all the circumstances of the particular case.
In the absence of specific legal definitions, the Department’s Procedures Advice Manual, PAM3 recommends consideration of the ordinary everyday meaning of the phrase.
The Tribunal also notes that according to the Macquarie Dictionary Online, the term 'compelling' is defined to mean: “1. demanding attention or interest…2. convincing: a compelling argument”. It defines ‘compassionate’ to mean: “1. having or showing compassion. 2. on the grounds of compassion: compassionate leave…4. to have compassion for; pity”.
Although the Tribunal is not bound by policy, it has had regard to the elements emphasised in PAM3 in terms of the exercise of discretion. In particular, the policy guidelines in 'Sch4/ 4020 - The Integrity PIC’ state the following in respect of compelling and/compassionate circumstances:
Compelling and/or compassionate circumstances…
Compelling circumstances affecting the interests of Australia
4020(4)(a) … There may be compelling circumstances affecting the interests of Australia if:
· Australia's trade or business opportunities would be adversely affected were the person not granted the visa (Note: under policy gaining employer sponsorship is not considered sufficient grounds for a waiver);
· Australia's relationship with a foreign government would be damaged were the person not granted the visa; or
· Australia would miss out on a significant benefit that the person could contribute to Australia's business, economic, cultural or other development (for example, a special skill that is highly sought after in Australia) if the person was not granted the visa.
It is Departmental policy that compelling circumstances affecting the interests of Australia would not include circumstances if the non-citizen merely claims that, if granted the visa, they would:
· work and pay taxes in Australia or
· pay fees to an education provider or
· spend money in Australia.
Compassionate or compelling circumstances affecting the interests of an Australian resident, permanent resident or eligible New Zealand citizen
4020(4)(b) … The circumstances for consideration must be of compassionate or compelling nature in the way they affect the Australian citizen, permanent resident, or eligible New Zealand citizen. Compassionate or compelling circumstances that affect the applicant are not relevant for consideration unless they also directly affect an Australian citizen, permanent resident or eligible New Zealand citizen.
The wording of PIC 4020(4)(b) requires that either compassionate or compelling circumstances exist that affect the interests of an Australian citizen, permanent resident or eligible New Zealand citizen.
To waive the requirements of any or all of PIC 4020 (1) and/or (2), the applicant's claims must have a compelling or compassionate element particular to that individual case that are beyond those usually present in that visa caseload.
The applicant also provided the Tribunal with details of his immigration history in Australia from the time of his arrival in Australia in 2008. The applicant has been a successful international student and has complied with the conditions that were attached to his Student visas. The applicant was then granted a Subclass 457 visa and the evidence indicates that the applicant worked for an Australian business owner as a Chef and was considered to be an asset to the business, so much so that he was sponsored for the Subclass 186 visa that is the subject of this review.
The applicant has been described in references as hard working and industrious and the applicant’s sponsor, Mr Maurice Portelli, has provided evidence that the loss of the applicant to the business would have an adverse impact on the business.
The Tribunal notes that with Australian borders being closed since the outset of the COVID-19 pandemic, it has been very difficult for Australian businesses to find Chefs and Cooks to work in their businesses, and this has led to those occupational groups finding there way back onto the skill shortage lists.
The evidence indicates that the Australian business owner has invested considerably in sponsoring the applicant, first for a Subclass 457 visa, and in 2017 for a Subclass 186 visa, and the reasons provided for this is the hard work and dedication of the applicant to the business, and the inability of the business to source and retain Chefs, an occupation critical to the operation of the business.
The Tribunal finds that there are compassionate or compelling circumstances that affect the interests of an Australian citizen business owner and likewise that there are compelling circumstances that affect the interests of Australia that justify the granting of the visa. The evidence indicates that the applicant possesses a skill set in an area of skill shortage and is making an invaluable contribution to an Australian business and that the business and economic opportunities of the business would be adversely affected if the visa was not granted. This is further exemplified by the once in a hundred year characteristics of the COVID-19 pandemic.
Therefore, the Tribunal finds that the requirements of cl 4020(1) should be waived.
Has the applicant satisfied the identity requirements?
PIC 4020(2A) requires an applicant to satisfy the Tribunal as to his or her identity.
Based on the biodata evidence on the Department's file, the Tribunal is satisfied of the applicant's identity and therefore finds that he meets PIC 4020(2A).
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?
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).
There is no evidence before the Tribunal to indicate that the applicant or any family unit member has 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.
Therefore PIC 4020(2B) is met.
DECISION
The Tribunal remits the applications for Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 186 - Employer Nomination Scheme visas:
·Public Interest Criterion 4020 for the purposes of cl 186.213 of Schedule 2 to the Regulations.
John Cipolla
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.
…

[2021] AATA 3134

22 July 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Natural Justice