Pawar (Migration) - [2020] AATA 1107

Pawar (Migration) [2020] AATA 1107 (20 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Vaibhav Pawar
CASE NUMBER:  1817479
DIBP REFERENCE(S):  BCC2017/1583446
MEMBER:Phoebe Dunn
DATE:20 February 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) visa.
Statement made on 20 February 2020 at 5:32pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – false or misleading information in a material particular –marital status – innocent mistake – failure to disclose spouse’s convictions – materiality of the information – role of migration agent – general principles of agency – compelling reasons for waiver – impact on nominator’s business – Departmental policy – 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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 24 May 2018 to refuse to grant the applicant an Employer Nomination (Permanent) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 3 May 2017. 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 (the Regulations) because the applicant did not satisfy Public Interest Criterion (PIC) 4020, as the delegate found the applicant had given information that was false and misleading in a material particular in relation to a visa that the applicant held in the 12 months before the application was made and therefore the applicant did not meet the requirements of PIC 4020(1). Further, the delegate found that there were no compelling or compassionate reasons that would justify the grant of the visa and as such did not waive the requirements of PIC 4020(1) under PIC 4020(4).
The applicant appeared before the Tribunal on 17 December 2019 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent, Ms Pina Careri.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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(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 three 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 a 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.
Based on information on the Departmental file and the Tribunal file, together with evidence at the hearing, the background to this matter is as follows (in chronological order):
·The applicant was convicted of two charges of Obtaining Property by Deception on 24 January 2013 at the Melbourne Magistrates’ Court in Victoria, and was given an 18 month Community Correction Order, with 150 hours of community work.
·The applicant lodged a Subclass 457 visa on 2 May 2014. The applicant disclosed his conviction in this application. As the sponsor was a new business, the Subclass 457 visa was granted for a period of 12 months.
·Ms Sharnjeet Kaur Rai, who later became the applicant’s wife, was convicted of two charges of ‘Offences in Regards to Application for Permanent Residence’ and ‘Marriage Nominate Application For Stay Visa of Contrived Marital Relationship’ in the Melbourne Magistrates Court on 24 April 2014, and sentenced to a Community Correction Order with 200 hours to be performed within 12 months. This related to her marriage on 14 February 2012 to Brett William Henry, which she has subsequently admitted in a statutory declaration sworn on 22 November 2016 was a contrived marriage for the purposes of obtaining permanent residency in Australia.
·The applicant married Sharnjeet Kaur Rai on 5 December 2014, and this was registered on 18 February 2015. According to Departmental records, the marriage occurred at the time Sharnjeet Kaur Rai was appealing cancellation of her Combined Partner visa with Brett William Henry. The applicant has stated that he was not aware of this or her convictions at the time.
·In a Form 1066 signed by the applicant on 17 May 2015, and submitted to his migration agent by email on 17 May 2015, the applicant has left blank the question ‘’have you or any secondary persons included in this application ever been convicted of a crime or offence in any country (including any conviction which is now removed from official records)?” (Tribunal file, folio 121 – 133). In this email he states:
Hi mam
I am complete almost all 3 forms but some of questions I haven’t fill because of confusion, so please you can fill same like last time.
Thankyou so much mam.
Vaighav Pawar (Tribunal file, folio 133)
·In a Form 1221 signed by the applicant and submitted to his migration agent in the same email on 17 May 2015, the applicant ticked ‘married’ in question 8 relating to his relationship status (Tribunal file, folio120).
·On 22 May 2015, the applicant lodged a second Subclass 457 visa application with the same nominator in the same nominated position and this was granted on 24 July 2015. At this stage, the applicant was married to Sharnjeet Kaur Rai, but this was not disclosed on this application; the applicant has submitted that this was a human error of his migration agent, and that he had disclosed the marriage on his Form 1066 completed prior to lodgement. The applicant has stated that the applicant did not include his then spouse as a dependant on this application as she told him she had her own application pending.
·The applicant has stated that he first became aware of his wife’s convictions when he was advised of her Australian Federal Police criminal record check around mid-January 2016.
·The applicant applied for a Subclass 186 visa on 18 October 2016. In this application, the applicant listed his marital status as married and included his then wife’s adopted child as a dependant on the application. The applicant’s wife was included as a non-migrating dependant family member. The applicant disclosed his convictions in the application and subsequently notified his wife’s convictions in a ‘Notification of Incorrect Response’ form when the failure to include that information was identified.
·The first Subclass 186 visa application was withdrawn on 2 May 2017, as the related nomination was refused.
·The applicant, through his agent, lodged a second Subclass 186 visa application on 3 May 2017. The applicant has indicated that then ‘Ms Pina (Immigration agent) apply the whole process with nomination and visa in October 2016.’ (Tribunal file, folio 148) In this second application, his wife’s adopted child was not included as she was not eligible, and his wife was listed as a non-migrating dependant. In this second application the applicant ticked ‘no’ to the question of whether he or any other applicant had ever been convicted of an offence in the character declaration section of the form. This was subsequently corrected later that same day (3 May 2017) in a ‘Notification of Incorrect Answers’ form submitted by the applicant’s migration agent which disclosed his convictions. His former wife’s convictions were not disclosed on this application.
·The second Subclass 186 visa application was refused by the Department on 24 May 2018.
·The applicant and his wife separated in May 2018 and divorced on 24 September 2019.
The applicant’s second Subclass 186 visa application was refused on the basis of PIC 4020(1), as the Department found there was evidence before the Minister that the applicant had provided, or caused to be provided, false or misleading information in relation to a visa which the applicant held in the 12 months before the visa application. In a natural justice letter issued on 10 April 2018, the Department identified this information as follows:
·The applicant failed to disclose his convictions on the Subclass 457 visa application lodged on 22 May 2015;
·The Subclass 457 visa application lodged on 22 May 2015 and granted on 24 July 2015 did not include details of the applicant’s marriage on 5 December 2015 to Sharnjeet Kaur Rai, which occurred prior to lodgement;
·The applicant’s non-migrating spouse had a judicial review application to appeal cancellation of her Combined Partner visa with Brett William Henry when she married the applicant on 5 December 2014. This was not withdrawn until 23 April 2015. The applicant was convicted of entering into a contrived relationship with another person for the purposes of obtaining permanent residence on 24 April 2014; and
·The applicant failed to declare his wife’s convictions in his Subclass 457 visa application lodged on 22 May 2015 or his Subclass 186 visa application lodged on 3 May 2017, and this was not rectified in a ‘Notification of Incorrect Responses - Form 1023’ lodged in relation to the Subclass 186 application, which referred to the applicant’s offences only.
The applicant responded to this letter by submission dated 27 April 2018, with an accompanying statutory declaration and other supporting documentation. In response the applicant submitted:
·The non-disclosure of the applicant’s marriage was an accidental error of the applicant’s migration agent. The applicant had disclosed his marriage in a Form 1066 completed by him and given to the migration agent prior to lodgement of the application. Therefore, it was a ‘genuine human error’ and does not constitute false and misleading information in a material particular for the purposes of PIC 4020(1);
·The non-disclosure of the applicant’s convictions was another accidental error of the applicant’s migration agent, which was rectified by a Notification of Incorrect Responses - Form 1023 when discovered. These convictions were disclosed by the applicant on his subsequent Subclass 186 visa application in a Form 1066 completed by him and given to the migration agent prior to lodgement of the application. The fact that the Notification of Incorrect Responses - Form 1023 did not cover the incorrect response on the Subclass 457 visa application was an oversight and not a ‘malicious or intended act to mislead the Department’, noting that an earlier Subclass 186 application lodged on 18 October 2016 correctly disclosed his convictions, and his spouse’s convictions. Therefore, it was a ‘genuine human error’ and does not constitute false and misleading information in a material particular for the purposes of PIC 4020(1);
·The nature of the applicant’s convictions is such that the applicant satisfies PIC 4001, and it is not material to determining his Subclass 186 visa application. Therefore, it does not constitute false and misleading information in a material particular for the purposes of PIC 4020(1); and
·The applicant’s marital status is not material to determining his Subclass 186 visa application. Therefore, it does not constitute false and misleading information in a material particular for the purposes of PIC 4020(1).
Ultimately, the Department found that the applicant did not declare or correct his marital status on his Subclass 457 visa application or following the grant of the Subclass 457 visa, and that this was only updated to ‘married’ at the time of his Subclass 186 visa application on 16 October 2016, when he included his wife as a non-migrating spouse. The Department found that the failure to declare his marital status on the second Subclass 457 visa application was false and misleading information in a material particular for the purposes of PIC 4020(1), and there were no grounds for waiver under PIC 4020(4), and therefore that the applicant did not meet cl.186.213(1).
The applicant applied for review of that decision. The applicant’s claims on review, made in written submissions, statutory declarations and oral evidence can be summarised as follows:
·First, the omission of marriage and character information (relating to the applicant’s criminal record) on the applicant’s second Subclass 457 visa was a typographical error of the applicant’s migration agent for which the applicant should not be penalised (‘human error’) (Tribunal file, folio 28 verso – 29 and 30 – 33));
·Second, the omission of information relating to the convictions of the applicant’s spouse for migration fraud on the second Subclass 457 visa application was due to his lack of knowledge of her convictions at the time of application (Tribunal file, folio 28 verso – 29). The applicant claims that as his former spouse was not included as a secondary applicant on the Subclass 457 visa he did not question her about such matters at the time (Tribunal file, folio 28 verso – 29);
·Third, the convictions of the applicant’s spouse were not of the nature that would trigger the “Character test” provisions in s.501 of the Act and Direction No.65 (Tribunal file, folio 149-154), and accordingly were not a material particular for the purposes of PIC 4020(1)(b);
·Fourth, the omission of character information relating to the applicant’s former wife’s criminal convictions on the second Subclass 186 application was an innocent omission; and
·Fifth, and in the alternative, there are grounds for waiver of PIC 4020(1) on the basis of:
i.Compelling circumstances affecting the interests of an Australia business, ‘as the refusal of the Applicant’s 186 visa would cause significant hardship to his Australian employer of over five years’; or
ii.Compassionate and compelling circumstances affecting the interests of an Australian permanent resident (the applicant’s sister) and her family on the basis of financial and emotional support provided to her family, including their young son, by the applicant (Tribunal file, folio 28 verso – 29).
The applicant’s first claim is based on a submission that this omission of the applicant’s marriage and character information was human error of the applicant’s migration agent, as the applicant disclosed this information in the Form 1066 completed by him prior to lodgement of the application. As such, the applicant claims that there was no intention to deceive and no ‘purposeful falsity’, and this was purely an oversight of the migration agent. The applicant has provided a copy of the completed Form 1066 to the Tribunal. In oral evidence at the hearing and in a subsequent submission dated 5 January 2020, the applicant asserts that:
·He identified himself as married and disclosed his convictions in the paperwork submitted to his migration agent for the second Subclass 457 visa application lodged after he was married. The failure to include this information in the lodged application was caused by human error of his migration agent;
·The Department requested further information before it finalised the decision and on a Form 1221 the applicant again identified that he was married. This form was submitted to his agent in June 2015. The Subclass 457 visa was granted in July 2015;
·In November 2015, he renewed his passport and included his wife on his passport, and lodged this information with the Department;
·In October 2016, he provided his migration agent with all required documents to support his Subclass 186 visa application including the marriage certificate. The Department requested further information about his spouse, which was submitted in November 2016. In April 2017 the visa application was withdrawn because the linked nomination was refused; and
·In March 2017, his wife renewed her passport and this was submitted to the Department.
The applicant asserts that this demonstrates that he has not deliberately hidden or withheld material information, or given false or misleading information. The applicant asserts that the grounds relied upon by the Department relating to his failure to disclose his marital status and convictions resulted from a typographical error caused by his migration agent for which he should not be penalised. The applicant has provided the Tribunal with copies of the documents provided to his migration agent to demonstrate that he disclosed both his marital status and his convictions on the second Subclass 457 visa application in the documentation given to his agent.
In Trivedi v MIPD, Justice Buchanan wrote:
It is apparent from the terms of PIC 4020 that it addressed the problem of attempts to work a fraud or deception on the assessment of claims for a visa. This is also evident from the fact that PIC 4020 states a “public interest” criterion, from the narrow and exceptional circumstances necessary to waive its requirements and, more generally, from the serious consequences that follow from its application. I would not infer any apparent intention to disqualify a visa applicant who could explain an innocent mistake in a document or information provided by them. PIC 4020 is not directed, in my view, to innocent, unintended or accidental matters[1].
[1] Trivedi v MIBP [2014] FCAFC 42

The Tribunal has considered the applicant’s oral and written submissions that the failure to disclose the applicant’s marital status and convictions on the Subclass 457 visa application was a result of human error of the agent and should be considered an innocent mistake that does not attract the application of PIC 4020(1). On the basis of the evidence before it, the Tribunal accepts that this was an innocent mistake on this occasion.
The applicant’s second claim is based on submissions that the applicant was not aware of his spouse’s convictions at the time of his second Subclass 457 visa application. In written submissions and in oral evidence at the hearing the applicant has given the following account:
·At the time that he met his wife, he was not aware that she had been married before or that she had prior convictions. He stated that he found out that she had previously been married and divorced one week prior to their wedding when they went together to complete some forms prior to the wedding ceremony. He stated that his wife had not wanted him to go with her to do this, as she knew she would have to disclose her divorce to the Registrar, and that as a consequence he would find out.
·He stated that his wife told him that her cousin had told her to enter into the sham marriage to get a permanent residency in Australia. He stated that she told him that she had not disclosed her earlier marriage before because she loved him and the earlier marriage was a mistake. He stated that she told him that the matter was being handled by a lawyer and not to tell his parents, as they might not agree to the marriage going ahead.
·He stated that he loved his wife at the time and agreed not to tell his parents. The applicant stated that at that time two ceremonies had been planned, invitations sent out, and rings had been purchased. The applicant stated that he loved his wife at the time and agreed not to tell his parents.
·He stated that at this time his wife did not tell him about her convictions.
·He stated that following the wedding his parents wanted them to travel to India to meet the family, but that his wife always had an excuse as to why she could not go.
·He stated that his wife asked him to support her niece for a student visa, as she was her legal guardian. This application required Australian Federal Police Certificates. He stated that it was at this stage that he found out about her convictions, in mid-January 2016.
·The applicant stated that his wife asked him not to tell his parents about her convictions, but he insisted. He stated that he also told his migration agent and asked for advice as to what was required for his Subclass 186 visa application.
·He stated that on the initial Subclass 186 application he had disclosed his convictions and his wife’s convictions, and provided all the relevant documents to his Migration Agent, including completed Forms 1221 for him and his wife, statutory declarations and AFP checks. This application was subsequently withdrawn on advice of his migration agent when the related nomination was refused. A second application was lodged on 3 May 2017 by his agent.
·The applicant stated that when his second Subclass 186 visa application was lodged on 3 May 2017, his marriage was disclosed and his convictions were disclosed in a ‘Notification of Incorrect Answers Form’ lodged the same day, and his wife was referenced as a non-migrating spouse, but her convictions were not disclosed at this stage. He stated that this was an error, noting they were disclosed on the first Subclass 186 application.
·He stated that in 2016 when he found out about her convictions, they were fighting because she did not want him to tell his parents. He stated they were planning to have a baby, but that his wife had an abortion without telling him, as she said she was not prepared to have a child.
·He stated that at this time, his wife did not have any work rights, and that he was supporting her financially, as well as sending money back to her parents in India as her mother was unwell at the time. He stated that they decided to take out a loan, and they submitted an application in both of their names, which was declined because she had a bad credit history. He stated that at this stage he discovered that she had been married twice before. He stated he discovered that his wife came to Australia on a student visa with her first husband as a dependent spouse. He stated that his wife then divorced her first husband and married her second husband (the sham marriage), before divorcing the second husband and marrying the applicant. He stated that he only found out about this when they applied for the loan and discovered she had a bad credit history due to debts owed to a telecommunications carrier incurred in her first husband’s name when she was married to her first husband.
·He stated that following the Subclass 186 visa refusal his wife decided that she wanted a divorce. He stated that his marriage was genuine and that he loved his wife, and he has submitted copies of photographs of their wedding and them spending time together and other documents to the Tribunal to demonstrate they were in a genuine relationship, given her history.
The Tribunal has considered whether the applicant’s failure to disclose his wife’s convictions constitutes false and misleading information in a material particular for the purposes of PIC 4020(1), noting that the test is whether it was false or misleading at the time it was given, and must be relevant to any of the criteria the Minister assesses in respect of those applications.
In relation to the Subclass 457 visa, cl.457.3 sets out the criteria that secondary applicants must satisfy at the time of decision. These apply to secondary applicants who are members of the family unit of the primary applicant, and include PIC 4001 and PIC 4020 (among other matters). As the applicant’s wife was not included on his Subclass 457 visa application as a secondary applicant, these provisions do not apply, and accordingly there is no ‘material particular’ for the purposes of PIC 4020(1).
In relation to the Subclass 186 visa, cl.186.213(6) sets out the criteria applicable to non-migrating family members. Relevantly, this includes PIC 4001. On the Subclass 186 application, the applicant has answered ’no’ to a question in the character declaration section of the application “Has any applicant ever been convicted of an offence in any country (including any conviction which is now removed from official records)? Although the applicant is no longer married to his former spouse, Ms Rai, he was at the time the information was given, being the relevant time specified in cl.4020(5)(b), and accordingly Ms Rai was a member of the applicant’s family unit at that time. The failure to disclose his wife’s convictions on the Subclass 186 visa application was false or misleading information provided to the Department at the time it was given. The question then arises as to whether it was ‘material’ for the purposes of assessing whether the applicant’s former spouse met PIC 4001. The definition in cl.4020(5)(b) focuses upon the relevance of the information, being information that goes to something that will or might determine the visa application.
The applicant’s third claim is that the convictions of the applicant’s spouse were not of the nature that would trigger the “Character test” provisions in s.501 of the Act and Direction No.65, and therefore were not a material particular for the purposes of PIC 4020(5). The applicant argues that his former spouse would still have met the PIC 4001 ‘Character Test’ as her offences and recorded penalties are not listed in Direction No.65, Annex A for the purposes of s.501(6)(a), and are not of the nature to conclude she is not of good character for the purposes of s.501(6)(c). The applicant claims that despite the failure to disclose his former wife’s convictions, he would still have met the Subclass 186 visa criteria (Tribunal file, folio 154 verso).
The Tribunal does not accept these arguments. The relevant question is whether there was false and misleading information in a material particular provided at the time it was given. In this case, the failure to provide information to the Department about the applicant’s wife’s convictions on the Subclass 186 application was relevant to a consideration of whether each member of the family unit of the applicant who was not an applicant for a Subclass 186 visa met the requirements of PIC 4001. It was ‘information which goes to something which will or might determine the visa application’[2], and the absence of this information meant the Department could not assess this criteria irrespective of whether, had the Department been provided this information, the delegate would have determined that the character test was met.
[2] Kaur v MIBP [2014] FCCA 1264, Lloyd-Jones J at [80]
The applicant’s fourth claim is that the omission of this information on the Subclass 186 visa application was another innocent mistake again caused by the applicant’s migration agent. While not explicitly stating as such, in effect, the applicant is requesting that the Tribunal consider that the applicant’s migration agent was careless on at least three occasions for which the applicant should not be penalised and in respect of which the applicant is innocent. In essence, this requires a finding that the applicant’s migration agent is at best careless and at worst incompetent, but that there was no purposeful falsity attributable to the applicant.
In assessing this claim, the Tribunal has had regard to the general principles of agency in Australian law. In these circumstances the relationship was established when the applicant engaged the agent to assist the applicant to obtain a Subclass 457 visa and subsequently a Subclass 186 visa. In the context of migration law, the Courts have held that the acts or omissions of an agent, who the applicant has engaged to do certain things on their behalf, are taken to be the actions of the applicant. The principles of agency established by the relationship between the applicant and his migration agent are such that, notwithstanding that the agent completed the forms for the applicant, the applicant is taken to have directed the agent to complete the forms in the manner in which they were completed, irrespective of any errors. Accordingly, the Tribunal has considered whether the evidence is such to indicate that the omissions in the applications completed and lodged by the agent on the applicant’s behalf were the result of professional incompetence or negligence and, therefore, beyond his control and of which he was innocent.
In this instance, the Tribunal does not accept the applicant’s claims. The Tribunal does not accept that this is the same issue addressed by the Tribunal in this decision regarding the applicant’s failure to disclose his marriage and his convictions on his Subclass 457 visa application. By this time, the applicant knew about his former wife’s convictions and had provided this information to his agent. At this stage, the applicant and the agent were aware of the need to disclose these convictions, and had done so on an earlier Subclass 186 application lodged on 16 October 2016 by his agent on his behalf, that was subsequently withdrawn (the first Subclass 186 application). The applicant has advised in written submissions that the failure to disclose his wife’s convictions on the first Subclass 186 application was subsequently corrected by the agent ‘as soon as this office identified the typographical error’ (Tribunal file, folio 29 verso). Similarly, the failure to disclose the applicant’s convictions on the second Subclass 186 application was corrected by the agent the same day. There was no such correction made in relation to his wife’s convictions on the second application, notwithstanding an awareness of the need to disclose those convictions. The fact that errors were made and then corrected on both the first and second Subclass 186 applications, but that no correction was made regarding the omission of his wife’s convictions on the second Subclass 186 application, suggests that some thought was given to whether or not to correct the record about the applicant’s offences and his former wife’s offences. In this instance, the correction was only made for the applicant’s convictions. In these circumstances, it seems implausible that the failure to correct the record for the wife’s convictions was yet another innocent error, such that I can’t be satisfied that there is no evidence that the information was not purposely untrue.
In assessing this claim, the Tribunal has had regard to the general principles of agency in Australian law. In these circumstances the relationship was established when the applicant engaged the agent to assist the applicant to obtain a Subclass 457 visa and subsequently a Subclass 186 visa. In the context of migration law, the Courts have held that the acts or omissions of an agent, who the applicant has given broad authority to do certain things on their behalf, are taken to be the actions of the applicant. The applicant had given the agent broad authority to lodge the applications on his behalf. It is the applicant’s responsibility to ensure the information is truthful and correct, irrespective of whether there is an agent involved. The applicant has stated that he was not involved in the lodging of the second application, indicating that there was at least indifference as to whether the correct information was given (Tribunal file, folio 148). Accordingly, the Tribunal finds that the applicant caused false and misleading information in a material particular to be given in respect of the Subclass 186 visa application within the meaning of PIC 4020(5).
Therefore, the applicant does not meet PIC 4020(1).
The applicant’s fifth claim need only be considered if there is a finding that PIC 4020(1) is engaged. For the reasons stated above, the Tribunal considers there to be evidence before the Tribunal that the applicant has given, or caused to be given, information that is false or misleading in a material particular at the time it was given in relation to the Subclass 186 visa application.
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 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.
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.
The applicant has put the following alternative grounds for waiver:
i.There are compelling circumstances affecting the interests of an Australian business, ‘as the refusal of the Applicant’s 186 visa would cause significant hardship to his Australian employer of over five years’; or
ii.
There are compassionate and compelling circumstances affecting the interests of an Australian permanent resident (the applicant’s sister) and her family on the basis of financial and emotional support provided to her family, including their young son, by the applicant (Tribunal file, folio 28 verso – 29).
In relation to the first ground under PIC 4020(4)(a), the applicant states as follows:
·The applicant has worked for the nominating business, Flavours Indian Restaurant, as a Cook for over five years, and has made a significant contribution to the business and its growth and building the business’s reputation [Tribunal file, folios 1-2 verso and 28].
·There is a “chronic shortage” of qualified and experienced cooks in Australia and the nominator’s business will be severely compromised if the applicant is not granted a visa, noting that the industry experiences a high level of staff turnover. Market research has been submitted to substantiate this claim [Tribunal file, folios 1-2 verso and 28].
·The nominator has provided a submission dated 25 November 2019 [Tribunal file, folios 37 – 39], which states:
i.The business commenced in 2013 and has experienced growth since then, particularly with the introduction of UberEats, Menulog and EatNow delivery services. The Department has accepted there is a genuine need for the applicant to work in the business with successful nominations approved on 3 June 2014 and 9 June 2015.
ii.The business requires the skills of an experienced and qualified cook specialising in Asian and Indian cuisine. The applicant has around 12 years’ experience as a Cook of Indian cuisine (part time before commencing with the nominator) and is crucial to his business.
iii.There is a chronic shortage of qualified cooks and the hospitality industry experiences a high staff turnover. They have not been able to fill the position with an Australian citizen or permanent resident.
iv.The cost, time and hardship that would be caused to the nominator to replace the applicant is estimated as follows:
1.Advertising and recruitment costs – up to $3,000
2.Interview/recruitment hours – estimated to be 20 hours
3.Loss of experience in the kitchen training a new employee –two weeks and up to $5,000
4.Potential loss of business and pressure on existing staff.
·The nominator has provided a further submission dated 5 January 2020 [Tribunal file, folio 160 and verso], providing further detail about the disadvantage that they say would be suffered by the business should the applicant not get his Subclass 186 visa, and attaching market evidence. These include:
i.The business is focused on quality authentic Indian cuisine and it is crucial that they have a Cook with the right experience and skills;
ii.The business will not survive without Cooks experienced and qualified in Indian cuisine who can work in a commercial context. The applicant meets these requirements;
iii.The attached market evidence shows the hospitality industry is struggling and experiences high staff turnover and a transient workforce; and
iv.The loyal customers of the business have become accustomed to the unique taste of the food they serve and the applicant is a major part in the process.
·The nominator’s accountants, Paul Money Partners, have provided a submission dated 8 January 2020 [Tribunal file, folio 163 and verso], attesting to the cost to the business as follows:
i.The cost of losing the ‘business-critical position of Cook, resulting in a significant staffing deficit in the back of house team’;
ii.The costs and time associated with recruiting and replacing the applicant, estimated by the owner of the business to be as set out in paragraph 33(iv); and
iii.The owner of the business is currently the Head Chef and, aside from the applicant, there are no other cooks in the business as the other cooks have resigned. The restaurant is open seven days per week for lunch and dinner and takeaway. Losing the applicant would likely affect customer satisfaction, reputation and profitability, and create an ‘insurmountable staffing issue’.

The Tribunal has considered the claims put by the applicants regarding PIC 4020(4)(a). As stated above, in considering whether to waive the requirements of PIC 4020(1), the Tribunal must examine two elements. The Tribunal must first consider whether there are compelling circumstances that affect the interests of Australia that justify the grant of the visa, and if there are, whether the requirements should be waived having regard to those circumstances.
For the following reasons the Tribunal is not satisfied that the requirements should be waived on the basis of PIC 4020(4)(a).
Having regard to the submissions and documents before it, the Tribunal is not satisfied that there are compelling circumstances affecting the interests of Australia that justify the grant of the visa. Under Departmental policy, these circumstances include (relevantly):
· 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.[3]
[3] Policy – [Shc4 4020] – Public Interest Criterion 4020 – the integrity PIC – Compelling and/or compassionate circumstances – Compelling circumstances affecting the interests of Australia (reissue date 1/1/18).
The policy states that compelling circumstances affecting the interests of Australia would not include circumstances where the non-citizen merely claims that, if granted the visa, they would work and pay taxes in Australia, pay fees to an education provider or spend money in Australia.[4] The Tribunal notes that to be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied.[5]
[4] Policy – [Shc4 4020] – Public Interest Criterion 4020 – the integrity PIC – Compelling and/or compassionate circumstances – Compelling circumstances affecting the interests of Australia (reissue date 1/1/18).
[5] Plaintiff M64/2105 v MIBP [2015] HCA 50.
Various judgements have considered claims based on employment in Australia and the ‘interests of Australia’. The judgements considering this issue connote more significant, objective and public interest grounds than that associated with mere employment in Australia.[6] A distinction is made between the disadvantage to a business in ‘losing’ an employee, and circumstances which affect Australia, noting that it is not the case that employment in a business in Australia could never amount to circumstances affecting the interests of Australia for the purposes of PIC 4020(1)(a).[7]
[6] Deb v MIPB [2016] FCCA 3351 (Judge Nicholls, 22 December 2016) at [45], citing various other cases including Raza v MIPB [2015] FCCA 1623 and Kandel v MIPB [2014] FCCA 1479.
[7] Deb v MIPB [2016] FCCA 3351 (Judge Nicholls, 22 December 2016) at [56].
The Tribunal accepts the submissions that the applicant makes a valuable contribution to his employer’s business, and that he has the skills and experience to perform the role. The Tribunal accepts the submissions made by the nominator and the accountants of the nominating business, and understands that losing the applicant would be difficult for the business, and cost the business time and money.
However, the Tribunal is not persuaded that the applicant’s contribution to an Australian business is sufficient to meet the test of compelling circumstances affecting the interests of Australia, noting that the applicant’s submissions focus on the impact to the business (Flavours Indian Cuisine), not to the interests of Australia. The Tribunal does not accept that the impact of losing the applicant on the employer’s business constitutes compelling circumstances affecting the interests of Australia within the meaning of PIC 4020(4)(a).[8]
[8] Deb v MIPB [2016] FCCA 3351 (Judge Nicholls, 22 December 2016) at [67].
The Tribunal is not satisfied that any of the factors above – singly or cumulatively - represent compelling reasons affecting the interests of Australia. There were no other claims made in relation to the compelling interests of Australia.
The Tribunal has also considered whether the factors set out in paragraph 33 of this decision constitute compassionate or compelling circumstances that affect the interests of an Australian citizen for the purposes of PIC 4020(4)(b). As noted above, the term ‘compassionate or compelling circumstances’ is not defined. The ordinary meaning of ‘compassionate’ relates to feelings of sympathy, sorrow, pity or concern for others.
For the following reasons the Tribunal is not satisfied that the requirements should be waived on the basis of PIC 4020(4)(b).
The policy guidelines in ‘Sch4/4020 = PIC 4020 – The integrity PIC’ lists the following factors in considering a waiver of PIC 4020(1):
·     a minor child who is an Australian citizen, permanent resident or eligible New Zealand citizen residing in Australia who would be adversely affected by a decision not to waive. Factors to consider would include:
oexisting family networks already in Australia
owhether the applicant is part of the child's immediate family.
·     whether there are any significant health or welfare issues affecting an Australian citizen, Australian permanent resident or eligible New Zealand citizen. Factors to consider:
oabsence of other carers in Australia
owhether the illness of the Australian citizen, permanent resident or New Zealand citizen is debilitating, permanent and requires ongoing care (that is, it is not a temporary illness, or an illness that does not require continuous care).
·     if a decision not to waive would result in the continuing separation of immediate family members, because of an inability of the Australian citizen, permanent resident or eligible New Zealand citizen to reside in the applicant's country of residence or a third country. Factors to consider include:
othe applicant's country of residence is a war zone or the sponsor has been found to be a person to whom Australia owes protection.
·     the nature and extent of the fraud. Factors to consider include:
othe extent of false or misleading information or documents (for example, multiple falsities or misleading information)
oa past history of attempting fraud against Australia's migration program.
The Tribunal notes that Departmental policy is not binding on the Tribunal, as it does not have the force of legislation.
It is noted that PIC 4020(4)(b) focuses on the impact to Australian citizens or permanent residents (or eligible New Zealand residents) as opposed to Australian businesses.
The Tribunal has considered the submissions and oral evidence given in relation to the impact to an Australian business for the purposes of consideration of PIC 4020(4)(a), in the context of PIC 4020(4)(b). The Tribunal notes the submission that the business is Australian owned and operated and employs Australian citizens for the purposes of considering whether ‘compassionate or compelling circumstances’ exist which justify waiver of the requirements of PIC 4020(1) under PIC 4020(4)(b).
The applicant’s claims focus the costs and time associated with business disruption and the applicant’s value to the business as a cook experienced in Indian cuisine, in an industry suffering skills shortages. The Tribunal accepts that the applicant is a valued employee who contributes to the business in terms of growth and reputation and that the business owner would like to retain him. The Tribunal also accepts that there will be costs associated with finding his replacement, and that there are currently no other cooks operating in the business.
However, the Tribunal does not accept that the applicant is irreplaceable, and does not consider that disruption to the business to be a sufficiently compassionate or compelling reason to waive the requirements of PIC 4020(1) for the purposes of PIC 4020(4)(b). The Tribunal does not accept that the nominator’s business is of the type that it would not be able to operate without the applicant. In the nominator’s submissions, it is noted that the industry experiences high turnover, and by his own admission, the business owner is used to operating in an environment that requires him to regularly find replacements for employees. Similarly, in relation to the nominator’s claim that the loss of the applicant would place increased pressure on other employees of the business, the Tribunal notes that this would be a regular occurrence in an industry which experiences high staff turnover and it is open to the nominator to alleviate that pressure by seeking temporary or short term solutions while recruiting for a replacement. The applicant’s skills are not unique, such that losing the applicant would result in the business being unable to operate, and this was not suggested by the nominator. In circumstances where an employee could be replaced, even where having to do so would cause some disruption to a business for a period, the Tribunal would be reluctant to find that this constituted circumstances that were compassionate or compelling either to the business owner or any other employee. Accordingly, the Tribunal is not satisfied that any disruption or cost to the business or impact on other employees amounts to compassionate or compelling reasons affecting the interests of an Australian citizen, permanent resident or eligible New Zealand citizen that would justify the grant of the visa.
The Tribunal has considered the claims put by the applicant regarding PIC 4020(4)(b) that there are compassionate or compelling reasons affecting the interests of the applicant’s sister (an Australian citizen since 2015), and her husband and son (who are both Australian citizens by birth) that would justify the waiver of PIC 4020(1) under PIC 4020(4)(b). In a submission from the applicant’s sister the following claims are made [Tribunal file, folio 162 and verso and 40):
·The applicant has a very close bond with his sister, having both come to Australia in 2006 to study and better their lives and prospects. They are the only two siblings. They are the only family members in Australia; their parents reside in India;
·The applicant lived with his sister for four years until he got married in 2014 and their connection is very strong. He moved back in with his sister when he separated and divorced from his former wife;
·He was stressed and depressed at the time of separation and divorce, and his sister has helped him to overcome this;
·The applicant helps to support his sister and her husband who both work fulltime, including with looking after their son, and taking him to kindergarten and school and collecting him. This helps them to maintain full-time positions and supports them financially as without this they would be reliant on paying for carers; and
·The applicant is like a third parent to their son. The applicant’s parents spend approximately nine months each year in Australia to spend time with their family.
The applicant has also submitted a psychological assessment from a Registered Psychologist dated 29 November 2019, which states that the applicant presented with depressive disorder mixed with anxiety. It was noted that the mental distress is caused in part from his divorce from his wife and the impact of the abortion performed by his wife in 2016 without his knowledge. It is also noted that the applicant’s mental health has been affected by the uncertainty over his visa status, and that ongoing counselling is recommended to deal with his mental health problems [Tribunal file, folio 41].
The applicant also stated at the hearing that he plays cricket for Ivanhoe Cricket Club and would not want to let them down.
The Tribunal accepts the submissions that there is a strong bond between the applicant and his sister and her family, and that the applicant plays an important emotional and financial role in their lives, including their young son. The Tribunal has had regard to Departmental policy[9], and notes the following:
·It is highly likely the applicant’s nephew would be adversely affected by a decision not to waive the requirements. However, the nephew has existing family in Australia and the applicant is not an immediate relative (i.e., he is not the child’s father);
·The applicant has not made any claims regarding any significant health or welfare issues affecting an Australian citizen, permanent resident or eligible New Zealand citizen;
·The applicant has not made any claims that a decision not to waive would result in the separation of immediate family members;
·The nature of the false or misleading information related to the applicant’s former wife’s conviction for migration fraud, and as such is not insignificant.
[9] Sch4/4020 = PIC 4020 – The integrity PIC’
The Tribunal acknowledges the psychological assessment and is concerned to ensure that the applicant continues to receive any requisite treatment, but notes that this does not constitute compassionate or compelling reasons within the meaning of PIC 4020(1)(b) that the Tribunal can take into consideration, as the applicant is not an Australian citizen, permanent resident or eligible New Zealand citizen.
The Tribunal recognises that the circumstances of this case are difficult, particularly given that the applicant was unaware for some time of his former wife’s prior marriages and convictions, is now divorced from his former wife and is suffering from a mental health condition, in part because of the circumstances surrounding his marriage breakdown. However, the Tribunal notes that the factors justifying the waiver must be sufficiently compassionate or compelling.
In these circumstances, the Tribunal does not consider missing a sibling, brother-in-law or uncle to be sufficient justification for exercising the waiver, noting that the policy is focused on circumstances where immediate family members would be adversely affected or separated (such as if a child separated from a parent). Likewise, the Tribunal does not consider that the applicant’s claim that he supports his sister’s family emotionally and financially is sufficient justification for exercising the waiver in circumstances where the applicant is not the sole means of financial and emotional support. Similarly, the Tribunal does not accept that contribution to a local cricket club to be sufficient justification for exercising the waiver provisions, noting that the applicant is not claiming that he is an irreplaceable or pivotal member of the club, and that the club would not be able to continue without him.
Accordingly, the Tribunal does not accept that there are compassionate or compelling circumstances affecting the interests of an Australian citizen, permanent resident or eligible New Zealand citizen that would justify exercising the waiver.
The Tribunal is not satisfied that any of the factors above – singly or cumulatively - represent compassionate or compelling reasons affecting the interests of an Australian citizen, permanent resident or eligible New Zealand citizen, if the applicant was not granted a visa to justify the exercise of the waiver under PIC 4020(4)(b). There were no other claims made in relation to the compassionate or compelling circumstances affecting the interests of an Australian citizen, permanent resident or eligible New Zealand citizen.
Therefore, the requirements of PIC 4020(1) should not be waived.
On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.186.213(1).
DECISION
The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) visa.
Phoebe Dunn
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.
…