Taarika (Migration)

[2022] AATA 3455

Taarika (Migration) [2022] AATA 3455 (29 September 2022)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Taarika Taarika
Mr Rajan Rajan

REPRESENTATIVE:  Mr Derrick Peters (MARN: 1175659)

CASE NUMBER:  1927707

HOME AFFAIRS REFERENCE(S):          BCC2017/569405

MEMBER:Michelle East

DATE:29 September 2022

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the applications for  Regional Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 187 -  Regional Sponsored Migration Scheme visas:

·Public Interest Criterion 4020 for the purposes of cl 187.213(1) of Schedule 2 to the Regulations

Statement made on 29 September 2022 at 3:18pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – false or misleading information given in intercurrent visa application – current visa refused and application for review made – student visa application made, not declaring current visa refusal – student visa refused – refusal of related nomination application set aside on review and current visa application remitted – current visa refused again for false or misleading information – discretion to waive requirement – compassionate or compelling circumstances – ongoing employment with nominating business – COVID restrictions and labour shortage – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cls 187.213, 187.233, Schedule 4, criterion 4020

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
Trivedi v MIBP [2014] FCAFC 42

statement of decision and reasons

application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 September 2019 to refuse to grant the applicants Regional Employer Nomination (Permanent) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 10 February 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 187.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the applicant did not meet Public Interest Criterion 4020(PIC 4020).

3. The Tribunal was in receipt of further information than was available to the delegate and was able to make a decision on the papers.

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

   consideration of claims and evidence

5. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (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 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).

6. 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?

7. 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.

8. 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.

9. 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.

10. The particulars outlined in the delegate’s decision are that in the period commencing three years before the making of this application and ending when a decision on this application is made, the applicant had been refused a visa on the ground of providing false or misleading information in relation to the application for that visa.

11. On 10 February 2017 (before the application for the refused subclass TU500 visa), the applicant applied for the visa the subject of this application.  The application was refused on 15 February 2018 because she did not have a valid and approved related nomination.  On 28 September 2018 the applicant subsequently applied for the subclass TU500 visa and answered ‘no’ to the question ‘Has the applicant or any person included in this application had an application for entry or further stay in Australia or any other country refused’.

12. The application for the Subclass TU 500 visa was refused on 15 January 2019 because of a failure to satisfy PIC 4020(1).  That is, she had not advised the Department of her previous Subclass 187 visa refusal.

13. On 8 August 2019, a differently constituted Tribunal approved the related nomination and remitted this visa application to the delegate with the direction that she meets cl.187.233 of Schedule 2 to the Regulations.

14. On 20 August 2019 she was invited to comment on the adverse information regarding the failure to satisfy PIC 4020 and on 24 September 2019 was refused the subclass 187 visa on the basis of a failure to satisfy PIC 4020(2).

15. The applicant provided submissions to the delegate regarding the circumstances surrounding the provision of the incorrect information and also grounds for waiver of PIC 4020.

16. The Tribunal finds that there is no evidence that the applicant provided information in relation to this visa application for a Subclass 187 visa that was false or misleading or in relation to a visa held in the 12 months before the application was made.

17. Therefore the applicant meets 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 the 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 as 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. The applicant’s representative stated in a submission to the Tribunal dated 2 September 2022 that as 3 years have passed since the date of the student visa refusal because of PIC 4020 the applicant now satisfies PIC 4020.

20. This misconstrues the provisions of the legislation because when a reference is made to the ‘Minister’ in a Regulation, once the matter is being reviewed by the Tribunal, the Tribunal is standing in the shoes of the Minister.  Therefore, the relevant period is up to the date of the Tribunal’s decision.

21. The Tribunal therefore finds that a visa has previously been refused on the basis of a failure to satisfy PIC 4020(1) and the applicant does not meet PIC 4020(2).

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

22. The requirements of PIC 4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in reg 1.03), that justify the granting of the visa. The decision-maker must first be satisfied that there are such circumstances, then must consider whether to exercise the discretion to waive the requirements, having regard to those circumstances: Kaur v MIBP [2017] FCAFC 184.

23. 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.

24. For the following reasons the Tribunal is satisfied that the requirements should be waived.

25. Evidence provided to the Tribunal demonstrates that the applicant is still employed in the business and her sponsor has been able to retain her services in what is a difficult labour market, subject to staff shortages and an inability to attract and retain skilled employees.

26. The evidence further demonstrates that the owner of the nominating business is an Australian citizen who has described the difficulties encountered in recruiting a suitable employee to fill the position in the store.  The nomination application review has been completed by a differently constituted Tribunal and the nomination was approved. 

27. It is well accepted that Australia is facing a severe labour shortage as a result of disruptions to migration during the Covid-19 pandemic.

28. The original nomination application was lodged more than 5 years ago.  If this visa application is again refused, the employer faces a lengthy and expensive process to begin sponsoring a new employee.  In the Tribunal’s opinion, this is sufficient to persuade it that there are grounds for waiver of PIC 4020 on the basis of compelling or compassionate circumstances affecting the interests of an Australian citizen.

29. The Tribunal considers that these are compelling circumstances taking into account the economic stress that the hospitality sector is facing coupled with labour shortages as a consequence of the Covid-19 pandemic.  The Tribunal finds that they justify the granting of the visa.

30. Therefore, the requirements of PIC 4020(2) should be waived and the applicant satisfies PIC 4020(4).

31. On the basis of the above, the applicant satisfies PIC 4020 for the purposes of cl 187.213(1).

    Has the applicant satisfied the identity requirements?

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

33. There is no evidence to suggest that the applicant’s identity is in issue.

34. Therefore, the applicant meets PIC 4020(2A).

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

35. PIC 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2BA).

36. There is no evidence suggesting that there has been a failure to satisfy PIC 4020(2A).

37. Therefore PIC 4020(2B) is met.

38. On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl 187.213.

    decision

39. The Tribunal remits the applications for Regional Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 187 - Regional Sponsored Migration Scheme visas:

    ·Public Interest Criterion 4020 for the purposes of cl 187.213(1) of Schedule 2 to the Regulations

    Michelle East
    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.

    …