SUTTON (Migration)

[2020] AATA 3892

SUTTON (Migration) [2020] AATA 3892 (25 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Lorne Sutton
Ms Chelsea Molloy

CASE NUMBER:  1811642

DIBP REFERENCE(S):  BCC2017/1169659

MEMBER:John Cipolla

DATE:25 September 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

Statement made on 25 September 2020 at 11.19am

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work) (Skilled) – false or misleading information in previous visa application – criminal convictions not declared – employer’s sponsorship withdrawn – request for adjournment not granted – no appearance at hearing – no compassionate or compelling circumstances justifying grant of visa – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 65

Migration Regulations 1994 (Cth), Schedule 2, cl 457.224, Schedule 4, criterion 4020(1), (5)

CASE

Arora v MIBP [2016] FCAFC 35

Batra v MIAC [2013] FCA 274

Kaur v MIBP [2017] FCAFC 184

Plaintiff M64/2015 v MIBP [2015] HCA 50

Trivedi v MIBP [2014] FCAFC 42

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 6 April 2018 to refuse to grant the applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 27 March 2017. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl.457.224 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because in a previous visa application for a Subclass 417 Working Holiday visa the applicant had failed to disclose the existence of convictions for criminal offences in the United Kingdom and thus the applicant had provided false and misleading information to the Department and as a consequence did not meet the requirements of PIC 4020.

3. The applicants were invited to appear before the Tribunal on 25 September 2020.

4. Prior to the hearing there was a request by the applicants then migration agent, Simone Kearney dated  11 September 2020 seeking an adjournment of the hearing for the following reason.

   We are writing to request the telephone hearing session scheduled for 25 September 2020 for Mr. Lorne SUTTON and his partner Chelsea Molly be postponed in regard to the review of the decision to refuse to grant the temporary Business Entry Visa (subclass 457). Our request comes under Section 363(1)(b) of Migration Act 1958 (Cth) which gives Tribunal power to adjourn review of decision. The reason for the request is that the applicant had an approved nomination associated with his visa application. This nomination application with the Transaction reference number TRN=EGODZUAPDT was approved on 27 April 2017. His sponsor SIMON MASONRY (NSW) PTY LTD suffered could not offer more work for the applicant and hence is no longer sponsoring the applicant. The applicant is seeking new sponsorship and require more time to provide the details of his new sponsor. The process of finding a new sponsor has been delayed and affected by Covid 19 pandemic.

5. The Tribunal considered the request to postpone the hearing and the reasons put forward by the applicants representative Simone Kearney. The Tribunal decided not to postpone the hearing and notified the applicant’s representative of this decision.  The Tribunal notes that the respective issue in this review was the failure of the applicant to satisfy the requirements of Public Interest Criterion 4020. The Tribunal had hoped at the review hearing to discuss this with the applicant in order to determine whether the applicant failed to meet the requirements of Public Interest Criterion 4020 and whether there were any compelling or compassionate reasons that justified the grant of the visa.

6. On the day of the hearing the Tribunal was advised by a hearing officer that they had attempted to contact the applicant for the arranged telephone hearing on the number that he had provided and that this number had been disconnected.  The hearing officer contacted Simone Kearney and was advised that the applicant was no longer represented by her as he had failed to pay her fees.  The Tribunal undertook its best endeavours to contact the applicant without success.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.457.224 for the grant of the visa. Broadly speaking, this requires that:

   ·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and

   ·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and

   ·the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and

   ·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA).

9. The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.

   Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?

10. 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.

11. 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.

12. 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.

13. The evidence before the Tribunal indicates that in his application for a Subclass 417 Working Holiday visa, the applicant had failed to disclose criminal convictions in the United Kingdom.  In addition to this on the applicant’s most recent arrivals into Australia from overseas on 6 May 2016 and 30 December 2017, the applicant when completing his incoming passenger card answered “no” to the question whether he was the subject of criminal convictions.

14. When the applicant applied for the Subclass 457 visa, that is the subject of this review, the applicant disclosed that he did have a number of convictions for offences in the United Kingdom. These were for common assault; failure to leave premises; possession of an imitation firearm and possession with intent to supply an illicit drug.

15. The evidence before the Tribunal indicates that the applicant had given information that was false and misleading in a material particular in his Subclass 417 visa application and the Tribunal is satisfied on the basis of the evidence before it that the applicant does not meet PIC 4020(1).

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

16. 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.

17. 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.

18. In a submission made to the Department in response to a natural justice letter pertaining to the PIC 4020 issue the applicant, through his then migration agent, advised that he had made a contribution to the Australian community though his work as a bricklayer, an occupation in which there was a skills shortage. There was no evidence that was provided to show how the Australian business that had sponsored the applicant for a Subclass 457 visa would suffer or experience hardship if they were not able to retain the applicant or due to the applicants particular skill set as a bricklayer.

19. The evidence that has been provided at review indicates that the business that had nominated the applicant could no longer do so.

20. There is no evidence provided at primary stage or at merits review that could lead the Tribunal to find that there are compelling circumstances that affect the interests of Australia, or that 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.

21. The Tribunal is not satisfied that the requirements should be waived.

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

    DECISION

23. The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

    John Cipolla
    Senior Member

    ATTACHMENT

    Migration Regulations 1994

    Schedule 4

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

    (a)the application for the visa; or

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    justify the granting of the visa.

    (5)In this clause:

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

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

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

    …

    Migration Act 1958

    s.5      Interpretation

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

    …

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

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

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

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

    …