Singh (Migration)

[2020] AATA 1178

Singh (Migration) [2020] AATA 1178 (16 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harwinder Singh

CASE NUMBER:  1732547

HOME AFFAIRS REFERENCE(S):          BCC2013/606170 BCC2014/3536262 BCC2014/3536266 BCC2014/3536275

MEMBER:Michael Ison

DATE:16 April 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

·Public interest criterion 4020 for the purposes of clause 187.213 of Schedule 2 to the Regulations.

Statement made on 16 April 2020 at 5:37pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Federal Circuit Court remittal – Direct Entry stream – Cook – bogus document – IELTS test result ­­– ‘reasonable suspicion’ the test was taken by an imposter – significant improvement in results ­– supported by probative evidence – ­waiver of requirement – compelling or compassionate circumstances – impact on nominating employer – senior position in the business – shortage of qualified chefs in Australia – ­ challenging conditions faced by business due to the COVID-19 global pandemic – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.213; 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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 16 December 2014 to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 24 April 2013. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the 'Common criteria', as well as the criteria of one of two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Cook (ANZSCO[1] 351411).

   [1] ANZSCO: Australian and New Zealand Standard Classification of Occupations First Edition, Revision 1.

5. Clause 187.232(a) of Schedule 2 to the Regulations requires an applicant for a Subclass 187 visa to provide evidence they have “competent English” which is defined in r.1.15C and the relevant legislative instrument. The relevant legislative instrument at the time of the applicant’s application was IMMI 12/018 which specified for an applicant relying on an International English Language Testing System (IELTS) test result a score of at least 6 is required for each component of the four test components of speaking, reading, writing and listening.

6. The applicant has also applied for a Skilled Graduate (Provisional) (Class VC) (Subclass 485) visa in September 2012 because at that time he had not completed sufficient studies to be eligible to apply for a Subclass 187 visa. Clause 485.212 also requires all applicants for a Subclass 485 visa at the time, whether applying in the Graduate Work stream or Post Study Work stream, to provide evidence they have “competent English”.

7. The delegate refused to grant the visa because the applicant did not meet cl.187.213 of Schedule 2 to the Regulations because the delegate found the applicant did not satisfy the criteria in Public Interest Criterion 4020(1) known as PIC 4020(1) in Schedule 4 to the Regulations. The delegate’s decision does not expressly state whether the decision is based on the applicant providing a bogus document or information that is false or misleading in a material particular in relation to the application for the visa. The delegate’s decision appears to be based on a finding that the applicant’s 1 September 2012 IELTS test result which the applicant provided to the Minister was not genuine and therefore was a bogus document, given that the June 2012 test result was cancelled and was not provided by the applicant to the Minister or anyone else.

8. By decision dated 24 June 2015 the Tribunal, differently constituted, affirmed the decision of the delegate to refuse to grant the applicant the visa.

9. On 21 July 2015 the applicant appealed that decision to the Federal Circuit Court.

10. On 12 December 2017 the Federal Circuit Court ordered, by consent, that the Tribunal’s decision be set aside and the matter be remitted back to the Tribunal for reconsideration. The basis of this consent remittal was that a delegate of the Minister issued a certificate pursuant to s.375A of the Act on 23 February 2015 and the Tribunal as constituted in 2015 did not inform the applicant of the existence of the certificate when some of the documents covered by the certificate were relevant or potentially relevant to the issues in review.

11. The applicant appeared before the Tribunal on 25 February 2020 by telephone from Western Australia to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

12. The applicant was represented in relation to the review by his lawyer who is also a registered migration agent. The representative also participated in the Tribunal hearing by telephone.

13. At the request of the applicant through his representative, the Tribunal conducted a joint hearing of this matter with the applicant’s review application for Tribunal case number 1732564 which is a review of a decision of a delegate of the Minister to refuse to grant the applicant a Skilled Graduate (Provisional) (Class VC) (Subclass 485) visa, which the delegate refused on equivalent grounds under cl.485.224 because the applicant did not meet PIC 4020(1).

14. Prior to the hearing a delegate of the Minister revoked the certificate issued under s.375A of the Act dated 23 February 2015 by Notice of Revocation dated 25 October 2019. The Tribunal accepts that revocation was effective. A delegate of the Minister issued two certificates under s.376 of the Act dated 25 October 2019 and 20 November 2019. The Tribunal provided a copy of all of the certificates to the applicant, together with copies of the folios of documents covered by the s.375A certificate that were not covered by the s.376 certificates. The applicant, through his representative provided comment and submissions on the certificates which led the Tribunal to release all relevant documents it held or provide material particulars to the applicant.

15. The applicant, through his representative, provided extensive post hearing submissions.

16. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The issue in this review is whether the visa applicant meets PIC 4020 as required by cl.187.213 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 cl.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).

18. 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 provided bogus document(s)?

19. The term ‘bogus document’ is defined in s.5(1) of the Act, which is extracted in the attachment to this decision.

20. 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.

21. The requirement in PIC 4020(1) not to provide a bogus document applies whether or not the Minister became aware of the bogus document because of information given by the applicant: PIC 4020(3). It also applies whether or not the document was provided by the applicant knowingly or unwittingly.

22. In addition, 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 this public interest criterion to be engaged.

23. 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. In other words, there must be some element of knowledge or intention on somebody’s part because PIC 4020 is directed to information or documents which are purposely untrue, and not to innocent, unintended or accidental matters.

    24.      In the present case, the delegate’s decision states:
    
    

    On 24/04/2013 Mr Singh lodged his application for a Regional Sponsored Migration Scheme (RN 187)) visa. In support of this application Mr Singh provided a scanned copy of a International English Language Testing System (IELTS) with a Test Report Form Number 12IN048695TH855G issue date of 01/09/2012 which stated he had "passed the prescribed test as follows: Listening 8.0; Reading 6.5; Writing 6.5; Speaking 6.0 and Overall Band Score 7.0, Language ability, meeting Competent.

    …

    Mr Singh was informed that it has been brought to the department's attention that PIC 4020 may not be satisfied based on the following information being submitted to the department:

    ·         "IELTS Test Report Form Number 12IN048695TH855G

    This document was referred to the Department's office in New Delhi for verification. New Delhi contacted IELTS who provided the Department with information that the applicant has sat an IELTS test on the following seven occasions:

    Test Date Test Centre Test Report Form             Overall Band       Passport
                  Number      Number  Score                Presented
    25/05/2006 IN122 06IN004721TH122A 4.0 F1940978
    13/01/2007 IN122 06IN030048TH122A 5.0 F1940978
    04/02/2012 AU307 11AU301502TH307G 4.5 F1940978
    10/03/2012 AU175 11AU301472TH175G 5.5 F1940978
    14/04/2012 AU080 12AU000181SINHO8OG 5.0 F1940978
    09/06/2012 IN855    121N019194TH855G          0.0*                  F1940978
    01/09/2012 IN855    12IN048695TH855G          7.0                   K3274564

    * 09/06/202 Test result cancelled after an investigation found evidence that an imposter had taken the test.

    The cancellation of Mr Singh's sixth IELTS test (12IN019194TH855G) sat on 09/06/2012 on the basis that an IELTS investigation found that it had been taken by an imposter, then raises serious concerns about the genuineness of Mr Singh's most recent IELTS test (12IN048695TH855G) sat on 01/09/2012 which achieved the following scores:

    Listening:           8.0
    Reading:            6.5
    Writing:              6.5
    Speaking:           6.0
    Overall:              7.0

    Mr Singh sat an IELTS test on 14 April 2012 (12AU000181SINH080G) and achieved the following scores:

    Listening:           5.0
    Reading:            4.5
    Writing:              4.5
    Speaking:           5.0
    Overall:              5.0

    These results suggest that Mr Singh improved his English language skills by up to three points over the course of less than five months. Such a significant improvement, in such a short space of time, adds to my concerns that the test result dated 01/09/2012 may not be genuine.

    On the Test Report Form provided with this application, the answer to the question about whether the applicant is "Repeating IELTS" is No. This shows that the applicant has made a misleading statement to IELTS, possibly in an attempt to hide his IELTS history. It is also noted that the applicant presented a different passport when sitting the test dated 01/092012 which also raises suspicion that the applicant was attempting to present as an entirely different person to the one who had sat the previous six tests..

    On 29 April 2014, Mr Singh responded to the Invitaion (sic) to comment on suspected fraudulent information. Mr Singh states he was totally unaware about the 6th IELTS test dated 09/06/2012 being cancelled and denies the allegation that it was taken by an imposter. Mr Singh also refers to IELTS dated 01/09/2012 and acknowledges this test seems to have raised doubts and explains his situation including deciding to make as many attempts as he could to get a satisfactory IELTS outcome. This included taking an IELTS test in India when visiting family at a time between 30 May 2012 to 04 July 2012.

    Departmental records show the following movements for Mr Singh for the related period of 2012:

    ·         Departed Australia 30/05/2012

    ·         Arrived Australia 04/07/2012

    ·         Departed Australia 03/08/2012

    ·         Arrived Australia 10/09/2012

    Mr Singh advised that upon his return to India in July 2012, he was advised by the Immigration at Delhi that his old passport F1940978 was faulty due to an old photo and his passport could not be scanned properly. Mr Singh understood he needed to arrange a new passport soon. Mr Singh also advised that he needed to go back to India for a second time within a short time span to attend to family matters.

    Mr Singh advised he made another trip to India between 03 August 2012 to 10 September 2012 and on his exit out of Australia, he was advised at the "Check-in" counter at Perth Airport that his passport was faulty and they were havng (sic) difficulty scanning his passport. Mr Singh was again advised that he needed to organise a new passport. Mr Singh obtained a new passport K3274564 in India, issued 07 August 2012.

    Mr Singh advised that after obtaining his new passport, he decided to enroll quickly for another IELTS dated 01/09/2012. Mr Singh advised he attended some personal and private training in India to prepare for the IELTS test, and noted that he cannot prove this. Mr Singh states that he sat the IELTS test dated 01/09/2012.

    Mr Singh refers to the Test Report Form, which shows his answer as "No" to the question "repeating IELT's, claiming he was unaware of the implications of his answer and stated it was not deliberate. Mr Singh also provided a copy of his IELT test results dated 10/03/2012 as and (sic) explanation and evidence of where he actually stated as "No" to the same question in the past.

    On the balance of evidence, I am not satisfied that the explanation provided by Mr Singh is more credible than the IELTS investigations relating to the IELTS Test taken on 09/06/2012 for Test Report Form Number 12IN019194TH855G, Test result cancelled after an IELTS investigation found evidence that an imposter had taken the test.

    Accordingly, based on the evidence and information before me, I am not satisfied that the applicant meets Public Interest Criterion (PIC) 4020, subclause 4020(1).

24. During the Tribunal hearing and in written submissions afterwards, the applicant maintains that he sat the IELTS test with results dated 9 June 2012 and that an imposter did not sit that test on his behalf. The applicant told the Tribunal how he booked the test, sat it over two days on 7 and 9 June 2012 where one day the applicant’s English speaking skills were tested and the other day his English reading, listening and writing skills were tested and explained how each component was tested. The applicant provided the Tribunal with a copy of a Temporary Admit Ticket issued in his name to support this evidence of him being at the test centre on 7 June 2012.

25. The applicant also explained the security procedures and measures at the test centres, including that people at the test centres physically check each person to ensure they are sitting at their assigned test seat and each person taking the test has to leave their passport on the test table so the people checking can verify the identity of the person taking the test.

26. The applicant told the Tribunal no issues were raised with him on the day he sat for the written test, he didn’t know any other candidate at the test centre that day and he was shocked that his test results were cancelled when he eventually found out. The applicant’s representative speculated after the hearing that perhaps all test results were cancelled that day. No information or evidence has been provided to the Tribunal to support that speculation.

27. The Department was unable to obtain copies of the test papers and related information for either the cancelled June 2012 IELTS test or the September 2012 IELTS test, which according to the delegate’s decision the applicant sat at the same test centre in India, whereas the applicant provided a detailed account of his separate trips to India and sitting the IELTS tests in different cities, far from his home.

28. Part of the reason the Department was unable to obtain additional documentary evidence was because the Indian national police allege they found the applicant’s passport number with the passport numbers of up to 60 other people in the office of a person the police allege was providing forged IELTS results.

29. When the Tribunal put this information to the applicant in a letter sent in accordance with the procedure set out in s.359A of the Act, the applicant responded that he had no knowledge of such matters, had not been charged with any offence, had not been interviewed by the Indian police and to his knowledge had not been the subject of a police investigation. There is no information before the Tribunal that the applicant has been charged with any offence in India or even that the applicant was the focus of an investigation by the Indian National police. Therefore, the Tribunal makes no adverse findings against the applicant in relation to this information.

30. The Tribunal is also satisfied that the applicant provided reasonable explanations for both changing his passport and for answering ‘No’ on the IELTS test application form to the question that asked whether he had sat and IELTS test previously.

31. When the Tribunal discussed with the applicant how he had achieved what can be described as very significant improvement in his IELTS test results between the April 2012 test result and the September 2012 test result the applicant told the Tribunal:

    ·earlier results in 2006 and 2007 reflect the applicant was taking IELTS at that time to gain admission into educational courses and only needed lower results to do that;

    ·he studied hard;

    ·he studied English language newspapers;

    ·he watched and listened to instructional videos in English;

    ·he practised more than he had in the past;

    ·he listened to English language songs when driving;

    ·when he had free time he would watch videos on YouTube to learn vocabulary;

    ·he borrowed instructional videos and IELTS practice test books from friends;

    ·his IELTS test provider provided him with an IELTS practice book that contains compact discs which you can use at home to practice with;

    ·he paid for coaching in India from two different teachers; and

    ·there is some natural variation in the tests and who administers them (particularly the speaking test) and he found the September 2012 test easier than previous tests, particularly when compared to the IELTS tests he had sat in Australia.

1. The Tribunal was not convinced by the applicant’s evidence of the reasons for the sudden and significant improvement in his IELTS results. The applicant told the Tribunal that he was either studying as required by his Student visa and working 20 hours per week throughout 2012 and when he was not studying or travelling he was working full time up to 50 hours per week. It seems to the Tribunal this meant that the time the applicant could devote to his IELTS preparations was inherently limited during this time and the short time he told the Tribunal he was in India in May to July and then August to September 2012 prior to sitting the June and September 2012 IELTS tests would not have allowed the applicant much time to be coached for his IELTS tests.

2. However, while the Tribunal has a reasonable suspicion that the applicant did not achieve the improved results recorded in the September 2012 test, the information available to the Tribunal is not sufficiently probative to amount to “evidence” for the purposes of meeting the requirement of PIC 4020(1) that there be “no evidence”. For this reason, the Tribunal does not find that the September 2012 IELTS test results the applicant provided to the Minister are a bogus document or information that was false and misleading in a material particular.

3. The Tribunal discussed with the applicant why he sat IELTS again in India in September 2012 after having sat the test in India in June 2012

4. In summary, the applicant’s evidence is that he did not ever receive nor follow-up with the IELTS test provider his June 2012 results and so continued to study hard on his English skills and then took the opportunity, when he returned to visit his then unwell mother in India and to attend a wedding in September 2012, to re-sit the IELTS test again at a cost at the time of approximately IR10,000 or approximately AUD200. The applicant’s evidence is he did not find out the June 2012 test results (by then 0.0) until he received a natural justice letter from the Department dated 10 April 2014 as part of its consideration of his application for the Subclass 187 visa.

5. The Tribunal finds the applicant’s evidence of the circumstances of his IELTS continuous studying for IELTS, even after sitting a test in June 2012, of not following up those June 2012 results, of not knowing his June 2012 test results had been cancelled or the reason they had been cancelled and then paying for and sitting the test again in September at very short notice when he was travelling to India to visit his unwell mother and to attend a wedding, to be improbable.

6. The applicant sat IELTS five times in seven months and knew he needed to achieve a score of 6.0 in each component of IELTS to be granted the Subclass 485 visa that he applied for less than two weeks after sitting the September 2012 test and subsequently for the Subclass 187 visa he applied for in April 2013.

7. The applicant told the Tribunal he did not follow up the June 2012 test results because he was back in Australia, was busy working, no-one could go to his IELTS test provider in India and he did not have a contact telephone number or email for the test provider. The Tribunal does not accept the applicant’s evidence in this regard given it is the IELTS test provider’s very business to be accessible and contactable for people wanting to sit an IELTS test and the applicant had already given evidence to the Tribunal of having booked the June and September 2012 tests online through the central booking feature of the IELTS test provider’s internet website, which the Tribunal finds the applicant could have accessed over the internet from Australia.

8. This is important because it leads the Tribunal to form the view that the applicant sat the IELTS test again in September 2012 because he knew that his June 2012 results had been cancelled and this means he knew the reason those results had been cancelled.

9. This causes the Tribunal to have a reasonable suspicion that the applicant did not sit the June 2012 IELTS test.

10. In this regard, the applicant’s representative submitted:

    23.The TAT related to a test taken by the Applicant on 7 June 2012. The test an imposter is alleged to have taken was on 9 June 2012. Even if an investigation by IELTS concluded that an imposter took the 9 June 2012 test, that cannot cause a ‘reasonable suspicion’ that an imposter took the 7 June 2012 test, precluding it from forming part of any misleading information provided to the delegate of the Minister or, at the very least precluding there being a ‘reasonable suspicion’ of it being misleading information.

    24.In the Federal Magistrate’s Court decision in Talukder v Minister for Immigration and Citizenship [2009] FMCA 223 (Talukder’s Case) the Court considered the term ‘evidence’.

    25.Whilst Talukder’s Case concerned a different legislative provision and is therefore not a direct authority for the interpretation of subclause 4020(1), it is important to note that Federal Magistrate Driver found that the word ‘evidence’ requires an assessment of the quality of the evidence being relied on by the Tribunal. He states at [20] of his decision:

    “The evidence must point to information having been false or misleading in a “material particular”. That goes to both the strength of the evidence and its relevance.^[6]...The use of the word “evidence” in my view establishes that the clause requires something more than the mere existence of information suggestive of falsity. It requires some probative information...The decision maker must satisfy himself or herself that the information is acceptable as evidence pointing to false or misleading information having been given for the purposes of establishing the validity of the visa application and that the falsity or misleading information was material to the visa application.” ^[7]

    26.The conclusion in Talukder’s Case was upheld on appeal by the Federal Court in Talukder v Minister for Immigration and Citizenship [2009] FCA 916 and further endorsed in Sharma & Ors v Minister for Immigration and Multicultural Affairs and Citizenship & Anor [2013] FCCA 1280 (Sharma’s Case).

    27.In Sharma’s Case the Court expressly considered the meaning of ‘evidence’ in the context of PIC 4020. The Court held that the Tribunal’s task was to:

    “... make an assessment as to whether there is evidence that is sufficiently probative to lead to a conclusion that the information given was a bogus document or false or misleading in a material particular.”^[8]

    28.We submit that the evidence on which the Tribunal is not of sufficiently probative value to justify a ‘reasonable suspicion’ that the applicant has provide false and misleading information or a bogus document.

    (emphasis in the original, footnotes omitted)

11. The evidence the Tribunal relies upon to make its finding that the applicant did not sit the June 2012 test is the information provided to the Department by the IELTS test provider that an internal investigation had found an imposter sat the applicant’s June 2012 IELTS test and the applicant’s oral evidence at hearing, which the Tribunal finds to be an improbable explanation of why the applicant sat a sixth IELTS test in seven months when he claimed not to have received or sought to find out the results of his fifth IELTS test, the results of which were cancelled.

12. In the Tribunal’s view this reasonable suspicion is supported by sufficiently probative evidence that the Tribunal is not satisfied that there is “no evidence” before it that the applicant gave, or caused to be given, to the Minister or the Tribunal (amongst others) a bogus document, in the form of the Temporary Admit Ticket.

13. The Tribunal notes the claim of the applicant’s representative that, in effect, there is no information that the 7 June 2012 component of that IELTS test was taken by an imposter. The Departmental email relied upon by the applicant’s representative in paragraph 23 of the representative’s submission reproduced above states in the relevant part:

    4. The test session immediately prior to the test on 01/09/2012 was the subject of an internal investigation that found evidence that an imposter had undertaken the test. This was a test conducted on 9/06/2012 (TRF # 12IN019194TH855G).

14. The reference in the Departmental email is to the test conducted on 9 June 2012 followed by the test report form number, reflecting a reference to the overall test and not a particular or only one day of the test. This is supported by the fact that the overall result for the test was “0.0”, confirming all components of the test were cancelled and by the usual practice of IELTS tests that are conducted over multiple (usually two) days only ever being referred to at the results stage as having one date.

15. This indicates to the Tribunal that the “internal investigation” found an imposter completed all components of the test and for this reason all components of the test were cancelled.

16. This means that the Temporary Admit Ticket provided by the applicant to the Tribunal is a bogus document because it was issued to a person who impersonated the applicant and it was not issued to the applicant as it states or as the applicant claims, such that it was a document that purports to have been, but was not, issued in respect of the person (being the applicant) in accordance with the definition in s.5(1)(a) of a bogus document.

17. As the Tribunal has found that there is evidence that a bogus document has been provided, the applicant does not meet PIC 4020(1).

    Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(1)?

18. PIC 4020(2) requires the Tribunal to be satisfied that the applicant and each member of his family unit have not been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing 3 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(2AA). 

19. There is no evidence that the applicant has been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing 3 years before the application was made and ending when the visa is granted or refused. There are no family unit members included in his visa application.

20. Therefore, PIC 4020(2) is met.

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

21. 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.

22. 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.

23. The applicant does not claim, and the Tribunal does not find, that there are compelling circumstances affecting the interests of Australia.

24. The delegate’s decision stated in relation to compassionate or compelling circumstances:

    I have turned my mind to whether it is appropriate to waive this public interest criterion under PIC 4020(4). On 29 April 2014 Mr Singh's responsed to the Invitation to comment on suspected fraudulen information, in his submission Mr Singh states:

    "I do not wsh to demonstrate any compelling and/or compassionate circumstances as I deny all allegations of fraud by me. The only compassionate ground that I have is to appeal to you that I worked vey had to make my dream of making Australia my home come true and it paid to have made many attempts in my IELTS's and having worked very hard. I have been studying in Australia since June 2009. I have successfully completed by Cert III, IV and Diploma in Hospiality and a Diploma in Management." (sic)

25. On 19 March 2020, the applicant’s representative submitted five pages of written submissions on this issue, supported by a three page statutory declaration declared by the applicant’s employer, Mr Clive Martin Pickering, sole director of Pickering Holdings (WA) Pty Ltd as trustee for the Picekring Family Trust trading as the Over Board Café at Shop 42, 58 Southside Drive, Hillarys, Western Australia and a 9News.com article about the potential effect of the COVID-19 global pandemic on Australian tourism.

26. Mr Pickering declared his statutory declaration on 6 March 2020. He declared:

    5.The Café is a fully licensed café restaurant situated in Hillary's Boat Harbour, which is one of Perth's premier tourist destinations. It is open 7 days a week from 7:00am — 9:00pm or 10:00pm and has a very busy trade every day of the week.

    6.The Café's senior and permanent staff are a close-knit and stable group comprised of both Australian citizens and sponsored international employees. The Café currently employs approximately 40 permanent staff members, though this does fluctuate seasonally.

    Harwinder's Employment

    7.Harwinder has been employed full time as the Head Chef/Kitchen Manager for the Café for four years

    8.Over this time, Harwinder has developed and led an exceptional kitchen team of approximately 10 people which I honestly believe would be one of the most stable kitchen teams anywhere in Australia. I have been impressed by how well Harwinder organises, motivates and disciplines his kitchen team and the staff members that report to Harwinder totally respect him.

    9.Harwinder has been and honest, incredibly loyal and completely trustworthy as a senior employee. I know that when I ask him to do something, he will get it done.

    10.He works very well with Vishal Badiya, the Café's Restaurant Manager, and I consider their ability to work as a team a particular asset to the business.

    11.My strong relationship with Harwinder has proven vital during difficult times for the Café. For example, from 2015 — 2017, I was involved in a legal dispute with my former business partner which ended up in the Supreme Court of Western Australia. It was an incredibly stressful time for all concerned, and the fact that I could rely on Harwinder to keep the kitchen running effectively during that time was of real significance to the survival of the business while my attention was elsewhere.

    Impact of Harwinder's Visa Being Denied

    12.Harwinder has grown to be a part of the Cafe over a considerable amount of time. Four years in one role is almost unheard of in the hospitality industry and Harwinder is very much an indispensable part of my team.

    13.The Café is currently under significant financial pressure because of high rent and because of the impact of the coronavirus scare on tourism in Australia. We are also about to come out of peak season for the Café. I am therefore very much aware of trade challenges that the Café will face in the immediate future and believe that any additional stress on the business right now could well be terminal.

    14.Although the Café does have a high turnover, it also requires a lot of money to run. Every week is a struggle at present and if Harwinder was not employed as the Head Chef/Kitchen Manager, I don't know if the business would survive. The reason for this is because Harwinder has been there for a long time, he delivers quality food consistently in accordance with my instructions which sells well. We get direct feedback from customers that they return to the Cafe because of the consistency, simplicity and freshness of the food that Harwinder prepares.

    15.A new chef may well have the technical skills that Harwinder has, but the unsettling effect across the whole kitchen team would be significant. I doubt that a new chef could manage the kitchen so effectively to ensure consistency across the workday. From my experience in the industry, finding a good Head Chef without an ego who is a skilled manager is very difficult. I am fortunate that Harwinder effectively deals with the challenges and pressure that are inherent to his role in a very high stress environment.

    16.Harwinder has saved the business money by sourcing alternative suppliers when the costs go up because of seasonal variation. He minimises food waste which and ensures to notify me if the costs of things have gone up for whatever reason. Harwinder will also talk to the representatives of suppliers if he notices any specific product lines are uncompetitive in pricing.

    17.I have worked in hospitality all my life and I cannot think of a more challenging time in over 40 years working in the industry. I am aware that many similar businesses have struggled in the last few years due to increased rent, changes in purchasing habits and wage pressures. I have noticed restaurants around Hillary's Boat Harbour going into liquidation and shutting down. I am concerned if I lose Harwinder, one of my key employees, the same fate will follow with respect to the Cafe.

    18.I am significantly worried that if Harwinder's visa is denied it will be a killer blow to the Café.

    19.The Café is the only source of income for me and my immediate family, as myself, my wife and our two daughters (aged 18 and 19 years) all work full time for the Cafe and are the beneficiaries of the Pickering Family Trust. All four of us are Australian citizens.

    20.Approximately 20 members of the Café's permanent staff are Australian citizens. If the business did not survive, we would all be without employment.

    21.On a personal level, I would be very sad to see Harwinder leave. I respect him highly because of his honesty, work ethic and loyalty, and we have come to consider him a family friend.

27. The applicant’s representative submitted on his behalf:

    17.Mr Singh’s employer’s circumstances are one that is of unique and exceptional circumstances that is compelling and that illicit compassion.

    18.The Over Board Café employs approximately 40 permanent staff members, approximately 20 of whom are Australian citizens (SDCP [6], [20]). The Over Board Café is also the sole source of income for Mr Clive Pickering, his wife and their two daughters (SDCP [19])

    19.If Mr Singh is forced to leave, it will disrupt the business of the Café significantly. Mr Pickering has given sworn evidence that:

    a.     he considers Mr Singh to be an indispensable part of the Café’s team (SDCP [12], [15]);

    b.    the Café is facing significant financial pressure, particularly in the current economic circumstances and present pressures on the tourism industry (SDCP [13], [14], [17]); and

    c.     he cannot be sure that the business would survive if he lost Mr Singh, who is one of his key employees and someone he considers vital to ensuring the Over Board Café’s continued success (SDCP [14], [15], [17], [18]).

    20.We submit that these circumstances are sufficiently compelling to justify a grant of Mr Singh’s visa. Should Mr Singh’s visa be refused, it is likely that at least 24 Australian citizens will face significant financial hardship due to the collapse of the Over Board Café.

    21.Mr Pickering’s family will be adversely impacted as all four members of his family will lose their income and livelihood (SDCP [19]). This illicit compassion. Further, the balance of the Australian Citizens employed by the Over Board Café (SDCP [20]) too will lose their livelihood which also illicits compassion.

    22.With the recent outbreak of the Corona virus and the expected economic downturn as a result of same (see enclosed article) it is quite possible that those persons who lose their jobs in the hospitality industry, which we submit is linked to the tourism industry may most likely have difficulty finding alternative employment. Furthermore, it is submitted that each of those Australian Citizens may find it difficult to pay their rent and/or mortgages and meet their day to day living expenses, which again illicit compassion for all of those Australian Citizens.

    (emphasis in original)

1. By letter dated 14 April 2020 the applicant through his representative advised the Tribunal that due to the trading restrictions imposed by the responses of the Federal government and Western Australian State government in response to the COVID-19 global pandemic the Over Board Café had “closed temporarily on Monday, 23 March 2020” and:

   It is not clear at this stage when the Café will re-open. Nevertheless, Mr Singh remains an employee of the Café, albeit stood down for the time being.

2. According to the Explanatory Statement to SLI 2011, No. 13 which introduced PIC 4020 into the Regulations, it was intended that the granting of the waiver would relate solely to the compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, not the interests of the visa applicant. The types of circumstances that may involve compelling or compassionate reasons for waiving the requirements of PIC 4020 identified in the Explanatory Statement included:

   ·family reasons (for example, unexpected serious or fatal family situations over which the applicant had no control, such as the incapacitation or death of a partner or child or another member of the family unit);

   ·that family members in Australia would be left without financial or emotional support; and

   ·a parent in Australia would be separated from their child (for example, if the child was removed with their non-resident parent and would therefore be subject to an exclusion period.

3. The Department’s Procedural Instructions provide the following guidance:

   Compelling or circumstances might exist if an Australian citizen, Australian permanent resident or eligible New Zealand citizen, who is seriously ill or incapacitated and has no family support in Australia, would miss out on the care of a relative.

   Who are the Australian citizens, permanent residents or eligible New Zealand citizens affected?

4. According to Mr Pickering’s statutory declaration the primary people affected are Mr Pickering, his wife and two daughters all of whom work in the Café and derive their income from it and all of whom are Australian citizens. The secondary people affected are Mr Pickering’s full time and part time employees who are Australian citizens or permanent residents. Mr Pickering declares the Café employs 40 permanent staff, 20 of whom are Australian citizens. The Tribunal accepts this evidence.

5. Mr Pickering’s statutory declaration does not specify whether these permanent Australian citizen employees are full time or part time except for his family and himself who he declares all rely on the Café as their sole source of income.

6. Mr Pickering’s declaration does not identify whether the Café employs any Australian permanent residents or eligible New Zealand citizens. For present purposes, the Tribunal has assumed it does not.

7. The Tribunal accepts this evidence and finds that there are circumstances existing that would affect the interests of numerous Australian citizens.

   Are there compassionate or compelling circumstances affecting the Australian citizen, an Australian permanent residents or eligible New Zealand citizens justifying the grant of the visa?

8. Mr Pickering has declared that he is concerned that if the applicant is not granted the visa “it will be a killer blow to the Café”. He has declared about the difficult trading conditions for business like his generally as the most difficult he has experienced in 40 years and has noticed many businesses in Hillary’s Harbour, where the Café is located, close down due to these pressures in recent years.

9. Mr Pickering has not provided and the Tribunal did not seek financial and other information to support these claims. The Tribunal accepts Mr Pickering’s evidence in this regard.

10. Mr Pickering has described the applicant as an indispensable part of the Café. This is a claim commonly made by employers supporting their employees to try and obtain a visa.

11. In the Tribunal’s view there are compelling or compassionate circumstances that justify granting the visa to the applicant. It is important to emphasise that these are circumstances affecting, on Mr Pickering’s evidence, Australian citizens, not the applicant.

12. Those circumstances include:

    ·Australia at the time of this decision is being affected by the COVID-19 global pandemic which has required an unprecedented response and measures from the Federal and State governments and the community. It is a unique time in the living memory of many people;

    ·The measures that Governments have implemented, to varying degrees, throughout Australia include social distancing measures that have directly affected the Pickering’s business by preventing people attending the café and sitting down to either a meal, drinks and for socialising;

    ·Many previously successful business are in a vulnerable position and are being supported by a range of Federal and State Government measures at the taxpayers cost in an effort to ensure they can resume trading when the responses to the COVID-19 global pandemic allow;

    ·The applicant occupies one of the three most senior positions in the business as head chef, the others being the business management and front of house management. As head chef the applicant is in charge of the kitchen including food sourcing and ordering and food and meal preparation and presentation. Mr Pickering’s statutory declaration makes clear the applicant has an important role in the success of the business, works closely with the front of house team on meal and food service, also works closely with the Pickerings on cost control particularly the applicant’s management of suppliers and wastage;

    ·The applicant’s performance as head chef is critical to the reputation of the business as a full service café;

    ·The applicant’s position of chef remains on the medium and long-term strategic skills list for the purposes of the grant of a Subclass 187 visa indicating that there is a shortage of qualified chefs in Australia which may impact the ability of the Pickerings to quickly or easily replace the applicant or replace the applicant with someone of commensurate experience and skill;

    ·According to Mr Pickering’s evidence the applicant leads an unusually stable kitchen team. It is commonly accepted that there is often a high turnover of staff in hospitality businesses, including kitchen staff, so the Tribunal attributes the stability of the Over Board Café kitchen team to the leadership provided by the the Pickering family and the Café’s senior staff like the applicant;

    ·Mr Pickering has indicated he has an unusually high level of trust in and respect for the applicant, to the extent that he considers him a family friend, and this may not be easy or able to replicated in another head chef; and

    ·If the café is to resume trading successfully, the Tribunal expects that in a post COVID-19 global pandemic environment of high unemployment, with current Federal government forecasts of 10% unemployment moderated by the recently implemented JobKeeper measures from 15%, it would be able to replace the applicant, but the Tribunal accepts this would cause significant interruption to the business given the applicant’s role at the Café.

13. The impact of the COVID-19 global pandemic elicits compassion for many, including the owners, their employees and the suppliers to previously viable small businesses. This is a critical factor in the Tribunal’s finding that there are compelling or compassionate circumstances in the circumstances of this review. For many small business to survive – and the Tribunal expects this is particularly the case in the hospitality industry – they are going to need to have as many things go right for them as possible and this includes being able to retain or re-employ their most senior, experienced and valuable staff.

14. Mr Pickering’s concerns about the impact on the Café of the COVID-19 global pandemic as recently as his 6 March 2020 statutory declaration by the time of this decision have come to fruition as he has been forced to suspend the trading of the Café. The Tribunal does not know how long the measures aimed at limiting the spread of the COVID-19 virus will be in place for or to what extent they will be in place.

15. This is not to say that the Tribunal agrees or accepts that the applicant’s departure from the Café in normal or even challenging trading conditions would be fatal to the future of the Café. Head chefs leave positions. Businesses, particularly larger ones but even smaller ones, plan for such events to differing degrees and many continue operating. However, the Tribunal accepts that it will be more challenging for Mr Pickering and his family to re-establish the Café if the applicant is refused a visa and a new head chef has to be recruited, lead what Mr Pickering has declared is a very stable kitchen team, learn the menu, get to know the suppliers and continue a smooth working operation with the front of house team. In a trading environment that is now going to require the recovery of the Café from the effects of the COVID-19 global pandemic on all Australian businesses and the broader Australian economy, the Tribunal accepts it would be a significant advantage for the resumption of the Café’s operations for the applicant to be and remain part of the Pickerings team at the Café and therefore the refusal of his visa may have far greater consequences for the business in the current environment than it may otherwise have.

16. The Tribunal also accepts the Federal Government’s current unemployment forecasts, assuming the success of the JobKeeper measures, of 10% which indicates that many businesses may not survive or recover from the effects of the measures put in place to respond to the COVID-19 global pandemic, particularly the longer that social isolation measures remain in place or are eased and re-imposed cyclically if that occurs. The Tribunal accepts that the tourism and hospitality industries are being directly and significantly affected by these ongoing measures, as evidenced by the Pickerings suspending the trade of the Café.

17. This mean that the Tribunal accepts that for the Pickerings and their Australian citizen employees if the Café is not able to resume trading successfully, it will be more difficult than ever before for them to find alternative employment in the hospitality industry or at all.

18. If the applicant was not in a well-established family owned and operated business, was not in a long-term head chef role leading a large and stable kitchen team with responsibility for the cost and quality control of the food preparation side of the business and if the future of the Café was not under threat due to factors outside its control presented by the COVID-19 global pandemic, then the Tribunal may not have found that the circumstances of the Pickerings and their Australian citizen employees elicited sufficient compassion or were sufficiently compelling as to justify the grant of the visa to the applicant.

19. For these reasons the Tribunal finds there are sufficiently compelling or compassionate circumstances affecting the interests of identifiable Australian citizens that justify the grant of the visa to the applicant.

20. This means the requirements of PIC 4020(1) are waived.

    Has the applicant satisfied the identity requirements?

21. PIC 4020(2A) requires an applicant to satisfy the Tribunal as to his or her identity.  

22. The Tribunal has reviewed the documents provided to it and the Department and is satisfied as to the applicant's identity. Therefore, it finds that the applicant meets PIC 4020(2A).

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

23. PIC 4020(2B) requires that neither the applicant nor any member of his family unit 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).

24. There is no information before the Tribunal that the applicant or any member of his family unit has been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A). Therefore, the Tribunal finds that the applicant meets PIC 4020(2B).

    Other matters

25. At the time the applicant applied for the Subclass 187 visa he was sponsored by Zingcafe Pty Ltd ACN 141 626 913 as trustee for the Zingcafe Unit Trust which at the time of application operated Zing Café at Shop 42, 58 Southside Drive, Hillarys, Western Australia.

26. Zingcafe Pty Ltd is recorded on the register of companies maintained by the Australian Securities and Investments Commission as having been deregistered on 25 October 2017.

27. The shop that Zingcafe Pty Ltd operated as the Zing Café is now operated by Pickering Holdings (WA) Pty Ltd ACN 617 733 114 as the trustee for the Pickering Family Trust (ABN 67 970 539 950) and trades as the Over Board Café.

28. One of the primary criteria for the grant of a Subclass 187 visa in the Direct Entry stream at the time of the applicant’s application is:

    187.233(2) The person who will employ the applicant is the person who was the nominator in the application for approval.

29. It appears to the Tribunal that the applicant does not meet this primary requirement. This was not an issue raised by the delegate with the applicant and did not become apparent to the Tribunal until it received Mr Pickering’s statutory declaration after the hearing.

30. The President of the Tribunal has published a direction in accordance with s.18B of the Administrative Appeals Tribunal Act 1975 and titled ‘Conducting Migration and Refugee Reviews’ (effective from 2 August 2018). Clause 8.2 of that direction states:

    8.2 As a general rule, where the Minister for Immigration (Minister) or delegate has made an adverse decision on particular criteria or issues, the AAT should restrict its review to those matters.

31. Given the timing of the relevant information made available to the Tribunal, in this instance the Tribunal has restricted its review to the particular criteria and issues that the delegate of the Minister relied upon in the primary decision.

    Conclusion

32. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

33. The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

    ·Public interest criterion 4020 for the purposes of clause 187.213 of Schedule 2 to the Regulations.

    Michael Ison

    
    

    Senior Member

    ATTACHMENT - MIGRATION REGULATIONS 1994

    Schedule 4

    4020(1)         There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

    (a)the application for the visa; or

    (b)a visa that the applicant held in the period of 12 months before the application was made.

    (2)The Minister is satisfied that during the period:

    (a)starting 3 years before the application was made; and

    (b)ending when the Minister makes a decision to grant or refuse to grant the visa;

    the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).

    (2AA)However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

    (2A)The applicant satisfies the Minister as to the applicant’s identity.

    (2B)The Minister is satisfied that during the period:

    (a)starting 10 years before the application was made; and

    (b)ending when the Minister makes a decision to grant or refuse to grant the visa;

    neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).

    (2BA)However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

    (3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.

    (4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:

    (a)compelling circumstances that affect the interests of Australia; or

    (b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

    justify the granting of the visa.

    (5)In this clause:

    information that is false or misleading in a material particular means information that is:

    (a)false or misleading at the time it is given; and

    (b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.

    …

    Migration Act 1958

    s.5      Interpretation

    (1) In this Act, unless contrary intention appears:

    …

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)purports to have been, but was not, issued in respect of the person; or

    (b)is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)was obtained because of a false or misleading statement, whether or not made knowingly. 

    …