REGAN (Migration) - [2020] AATA 5424

REGAN (Migration) [2020] AATA 5424 (18 December 2020)
Corrigendum
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Brian REGAN
Miss Sinead Marie CONDON
CASE NUMBER:  1820809
DIBP REFERENCE(S):  BCC2017/132785
MEMBER:John Cipolla
DATE OF DECISION:  18 December 2020
DATE CORRIGENDUM
SIGNED:18 January 2021
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision:
The sentence on the decision cover page reading ‘Statement made on 18 December 2019’ should instead read ‘Statement made on 18 December 2020’.

John Cipolla
Senior Member
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Brian Regan
Miss Sinead Marie Condon
CASE NUMBER:  1820809
DIBP REFERENCE(S):  BCC2017/132785
MEMBER:John Cipolla
DATE:18 December 2020
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(1) of Schedule 2 to the Regulations.

Statement made on 18 December 2019 at 6:17pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – false or misleading information – character test – omission of criminal convictions in Ireland – provided a Form 1023 to remedy omission – waiver of requirement – compassionate or compelling circumstances that affect the interests of an Australian citizen business owner – significant contribution to a large Australian business – unique skill set in an area of skill shortages – decision under review remitted
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
Vyas v Minister of Immigration and Citizenship [2012] FMCA 92

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 12 July 2018 to refuse to grant the applicants Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 11 January 2017. The delegate refused to grant the visas on the basis that the first named applicant (hereinafter referred to as 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 had not met PIC 4020. This requires that no evidence is 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 the Subclass 186 application made by the applicant on 11 January 2017 the applicant when completing questions pertaining to character advised that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading REGAN (Migration)

Details

AGLC: REGAN (Migration) [2020] AATA 5424
Case: [2020] AATA 5424
Decision Date: 18 December 2020

CaseChat Overview and Summary

This matter concerned an application for a Subclass 186 Employer Nomination (Permanent) visa. The applicant's employer provided evidence of a significant skill shortage in form workers in Australia, particularly in the context of large infrastructure projects and the impact of COVID-19 on labour availability. The employer highlighted the applicant's extensive experience and value to the business, noting that his departure would adversely affect the company's ability to meet its project commitments. The core dispute revolved around whether the applicant met Public Interest Criterion 4020, which relates to the provision of false or misleading information and character requirements.

The legal issue before the Tribunal was whether the applicant satisfied Public Interest Criterion 4020 (PIC 4020) for the grant of the Subclass 186 visa. This criterion requires that an applicant has not provided false or misleading information in relation to their visa application or a previous visa held within the preceding 12 months, and has not had a visa refused due to a failure to satisfy this criterion within specified periods. The Tribunal was also required to consider whether any waiver of these requirements was justified.

The Tribunal found that the applicant had initially omitted criminal convictions from Ireland, which constituted providing misleading information. However, the applicant subsequently provided a Form 1023 to remedy this omission. The Tribunal considered the employer's evidence regarding the applicant's unique skills, the significant skill shortage in the form worker sector, and the substantial contribution the applicant's employer made to large Australian infrastructure projects. Applying the provisions of PIC 4020(4), the Tribunal determined that compassionate or compelling circumstances affecting the interests of an Australian citizen business owner justified a waiver of the requirements.

Consequently, the Tribunal remitted the applications for reconsideration, directing that the first named applicant met Public Interest Criterion 4020 for the purposes of the Subclass 186 visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Tribunal took evidence from Mr Sash Krstevski the applicant’s employer since 2014. The witness advised that there was a considerable skill shortage of Form Workers in Australia. The witness advised that as a result of COVID-19 state governments and the federal government were investing significantly in large infrastructure projects. The witness stated that his business was involved in large-scale urban construction projects that included the extension of Campbelltown Hospital, the substantial extension to the Prince of Wales Randwick Hospital campus, the refurbishment of infrastructure for military personnel at Watsons Bay, and to the Metro Station being constructed in Martin Place and Crows Nest in Sydney. The witness advised that his business employed in excess of 300 people. He advised that his business had employed a large number of Form Workers on 457 and Subclass 482 visas in the past. He advised that he had employed 30 Form Workers from Portugal, along with a number of Italian form workers. The witness advised that it had been very difficult to recruit Australian Form Workers despite extensive online advertising campaigns, confirming the skill shortage in this area of employment. He also advised that Form Workers he had engaged from overseas had good technical skills something that was more deficient in Australia due to the lack of funding to the technical education sector. The witness further advised that he had also employed a design engineer from the Philippines who had proved to be an asset to the business. The witness stated that 2020, due to COVID-19, had been a challenging year. Those challenges were exacerbated by the fact that the migrant tap had been turned off by government, due to COVID-19 resulting in difficulties in obtaining overseas workers to fill skill shortages in the business. The witness stated that he was committed to engaging a large number of apprentices in the business and had an expectation that 2020 would be a good opportunity to obtain a large number of apprentices. He advised that he had managed to attract 15 apprentices who would be starting with the business in 2021. The witness advised that the applicant had been working for him since 2014 and was a valuable employee who was extremely experienced in formwork and oversaw staff, providing training and support particularly around safety issues working at a great height. The witness stated that the loss of the applicant would be a significant one impacting adversely on the business which needed to retain experienced Form Workers due to the breadth of major infrastructure projects that the company was currently involved with.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).

Decision

Reasons for decision

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 CipollaSenior MemberATTACHMENTMigration Regulations 1994Schedule 44020(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 1958s.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. …

Ratio Decidendi

Legal Principle Established

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