Takur (Migration)

Takur (Migration) [2022] AATA 5150 (17 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Surender Singh Takur
Ms Rajyalakshmi Rudroju
REPRESENTATIVE:  Ms Carina Ford (MARN: 9802862)
CASE NUMBER:  1905398
HOME AFFAIRS REFERENCE(S):         BCC2018/2003721
MEMBER:Warren Stooke AM
DATE:17 November 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Skilled Nominated (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 190 - Skilled - Nominated visas:
·Public Interest Criterion 4020 for the purposes of cl 190.214 of Schedule 2 to the Regulations

Statement made on 17 November 2022 at 5:18pm

CATCHWORDS
MIGRATION – Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 (Skilled – Nominated) – false or misleading information – employment history – Cook – adverse allegations – waiver of requirement – worker exploitation – secured a new sponsorship – companionship to Australian citizens and permanent residents – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 190.214; Schedule 4, PIC 4020
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
Trivedi v MIBP [2014] FCAFC 42

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 February 2019 to refuse to grant the applicants Skilled Nominated (Permanent) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 8 May 2018. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl 190.214 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the applicant was found to have provided misleading information in support of their claimed employment as a Cook (ANZSCO code 351411) at Angeethi Indian Café. The delegate also considered that the applicant’s employment claims as “material particular” as the applicant sought to be awarded points to meet the points test requirement for the visa as per Regulation 190.214. The delegate was not satisfied that the applicant met Public Interest Criterion (PIC) 4020, subclause 4020 (1).
The applicants appeared before the Tribunal on 10 November 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
The applicant confirmed to the Tribunal that he had received a copy of the delegate’s decision and had read the decision. In this regard, the applicant stated that he understood the reason for the refusal of his visa application was because of adverse information that said he was not working at the business.
The Tribunal identified with the applicant that the matter of a s375A Certificate, pertaining to the applicant, had been the subject of correspondence from the Tribunal on 7 October 2021 and that a formal response was provided to the Tribunal on 10 October 2021 concerning the alleged matters.
Further, the matters canvassed in the s375A Certificate were the subject of the PIC4020 finding of the delegate, which is the issue in the current proceeding.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal informed the applicant that the issue in review is whether the visa applicants meet the Public Interest Criterion 4020 (PIC 4020) as required by 190.214 for the grant of the visa. The Tribunal stated that broadly speaking, this requires that:
i. 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: cl.4020(1); and
ii. 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: cl.4020(2) and (2AA); and
iii.the applicant satisfies the Minister as to his or her identity: cl.4020(2A); and
iv.neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy cl.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: cl.4020(2B) and (2BA).
The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.
Background
The applicant lodged his visa application on 8 May 2018. In the 'Employment history' section of the visa application, the applicant indicated he had worked as a Cook at Fat Chef (formerly Degani Milleara) in Australia between 30 June 2015 – 20 April 2016; 21 April 2016 – 14 June 2016; 15 June 2016 - 4 July 2016. (Page 11-13 of visa application).
The applicant also indicated that he worked as a Cook at Angeethi Indian Café in Australia between 1 August 2012 - 31 May 2013 ; 1 June 2013 – 30 June 2013; 1 July 2013 – 24 November 2014.
A range of other documentation was provided, including payslips from Degani Milleara Unit Trust (Fat Chef) between 9 April 2018 and 23 April 2018 (Scan Pt.1, p.45-47); an employment agreement (Scan Pt.1, p.48-50); Notices of assessment for year ending 30 June 2013; 30 June 2014; 30 June 2016; 30 June 2017; 30 June 2018 (Scan Pt.1, p.52-54; 111 and Scan Pt.2, p.1-3; 37); an employment agreement between the applicant and Angeethi Indian Café in Australia dated 5 April 2012 (Scan Pt.1, p.59-62); various bank and superannuation statements.
The Department requested further information from the applicant on 7 August 2018 including, inter alia, information about his employment (Scan Pt.2, p.11-21).
The applicant provided a 'letter of experience' from John Gasparatos, Head Chef of Fat Chef, dated 12 April 2018, confirming the applicant's employment since June 2015 and duties as a Cook. (Scan Pt.2, p.23-24); a statutory declaration signed 16 August 2018, in which the applicant claims he is unable to provide an employment reference for Angeethi as it had shut down in late 2014, and he is not in contact with the owners. In lieu, he provided copies of the employment contract; ATO NOAs; bank and superannuation statements. (Scan Pt.2, p.35-36).
The decision of the delegate in accepting that PIC4020 had been breached was based on accepting that the applicant had provided misleading information in support of their claimed employment as a Cook (ANZSCO code 351411) at Angeethi Indian Café. The delegate also considered that the applicant’s employment claims as “material particular” as the applicant sought to be awarded points to meet the points test requirement for the visa as per Regulation 190.214. The delegate was not satisfied that the applicant met Public Interest Criterion (PIC) 4020, subclause 4020 (1).
The allegation was that the applicant conspired to fabricate a position in the business in which he never worked and that the applicant supplied the money and resources for the business to pay him what appeared to be legitimate wages and conditions.
Conversely, the applicant asserts that both the original owner of the business, and a subsequent owner (the owner who gave the Department the adverse information used to cancel his visa, which was remitted in the AAT Case Matter: 1508335), both extorted money from him in part by threatening or suggesting that his employment would be terminated and the Department would be informed of this if he did not make loans or monetary contributions to the business. In this regard, the applicant provided evidence to the Tribunal that the original owner of Angeethi Indian Café, had pressured the applicant to provide the business with a loan of between $10,000 and $12,000, which was never repaid.
The applicant provided evidence that he originally worked with Angeethi Indian Café (A & K Pty Ltd) from 5 April 2012 as a Cook and tandoori chef.
The Tribunal asked the applicant: Did you work in the business? The applicant responded: “Yes I did”.
The applicant stated that he worked full-time and was employed on a salary of $54,000 with trading hours from 5.00pm to 10.00pm and that he started at 3.00pm and worked until 11.00pm.
The applicant stated that he worked for 5 days of the week and sometimes 6 days with 38 hours as a base.
The Tribunal asked: Did you make any payments to the two owners of the business? The applicant responded: “Yes, they wanted to borrow money.”
The applicant stated that the new owner of Angeethi Indian Café informed the applicant in November 2014 that he was going to move the business and with the closure he would continue to pay wages, however, the business owner did not make any further payment of wages and thereby terminated the employment by conduct.
The applicant stated that with his family responsibilities he needed to find a new position and was then employed by Delani Milleara, now trading as Fat Chef, who agreed to takeover the applicant’s Subclass 457 visa, which remained valid until November 2020.
The applicant provided evidence that he is currently working in security with Chemist Warehouse, after undertaking a course in security, and is currently earning a salary of $85,000 per annum.
The Applicant applied for Victorian State Sponsorship, which was subsequently granted on 18 April 2018.
On 8 May 2018, the Applicant applied for a Skilled – Nominated (Subclass 190) visa with his wife listed as a Secondary Applicant.
On 22 February 2019, a delegate of the Department refused the Applicant’s Subclass 190 visa application on the basis that the Applicant provided false or misleading information in relation to his Subclass 457 visa application form that was lodged in 2015. As such, the delegate was not satisfied that the Applicant met Regulation 190.216.
Representative Submission
On 29 September 2021, the Representative for the applicant provided the Tribunal with the following submission:
“1. We confirm we represent the review Applicant, Mr Surender Singh Takur (‘the Applicant’) and the dependent Applicant, Ms Rajyalakshmi Rudroju (‘dependent Applicant’) application for review of the decision to refuse a Skilled – Nominated (Subclass 190) visa application by the Department of Home Affairs (‘the Department’).
BACKGROUND
2. From April 2012 – October 2013, the Applicant was employed with A&K Pty Ltd as a Cook in Werribee, Victoria. The owner, Mr Alok Patel, sold the company in October 2013.
3. The owner, Mr Alok Patel, sold the company in October 2013 to Mr Akaash Tulsiyan and the Applicant continued to work in the position of a cook under the new management.
4. In November 2014, Mr Tulsiyan closed the restaurant and sold A&K Pty Ltd. At this time, the Applicant terminated his employment with the business following the change of restaurant to Dana Pani Indian Restaurant.
5. In February 2015, the Applicant was successful in gaining new employment in the position of a cook at Degani Milleara, Keilor East, now trading as the Fat Chef. In this new position, Degani Milleara applied to takeover the Applicant’s Subclass 457 visa which remained valid until November 2020.
6. On 8 May 2018, Mr Takur lodged the present application for the 190 visa, which was subsequently refused on 22 February 2019.
7. The effects of the pandemic on the hospitality industry in Melbourne have led to the loss of the Applicant’s position at the Fat Chef. The Applicant is now working in the position of a security guard in order to support his wife and family.
VISA HISTORY
8. The Applicant arrived in Australia on 21 November 2008 as the holder of a Student (Subclass 500) visa which he continued to hold up until 2012.
9. Upon completion of his studies, the Applicant applied for a Temporary Business Entry (Subclass 457) visa which was subsequently granted on 1 June 2012 and valid until 1 June 2016.
10. On 13 August 2014, The Applicant received correspondence from the Department notifying him that they have received adverse information in relation to his employment and requesting additional information as to whether he was complying with his Subclass 457 visa conditions. On 14 August 2014, the Applicant’s employer, Mr Tulsiyan responded to the Department’s confirming the Applicant’s employment.
11. In October 2014, the Applicant received further correspondence from a delegate of the Department who requested he provided additional information including bank statements and a medical certificate confirming his absence. On 7 October 2014, the Applicant provided the requested information.
12. On 20 October 2014, the Applicant received a notification from his employer, Mr Tulsiyan, informing him of the intention to relocate the business and the closure of the restaurant in the interim period. The Applicant’s employer acknowledged in an email addressed to him that he would continue to be paid during this period. The Applicant did not receive any payment from his employer and was experiencing terrible working conditions, suffering from mental torture at the hands of his employer and his family. As such, the Applicant decided to terminate his employment during this period.
13. On 17 February 2015, the Applicant lodged a new Subclass 457 nomination application with his new employer, Milleara Food Group Pty Ltd trading as Degani Milleara Pty Ltd (‘Degani’)
in the occupation of a cook. On 2 June 2015, the Applicant received notification of approval of a nomination for Degani Milleara.
14. On 8 April 2015, the Applicant was issued with a Notice of Intention to Consider Cancellation of his Subclass 457 visa on the basis of Regulation 2.43(1)(o) as the Applicant’s first sponsor, A&K Pty Ltd had provided false or misleading information in support of the Applicant’s nomination application. Additionally, A&K Pty Ltd had advised the Department that they had received cash payments from the Applicant in order to lodge the Subclass 457 nomination application.
15. On 14 April 2015, the Applicant requested an extension of time to respond to the Department’s Notice of Intention to Cancel, which he was subsequently granted an additional five days to provide a response.
16. On 2 June 2015, the Applicant’s new application for nomination under Degani Milleara was approved by the Department.
17. On 12 June 2015, the Applicant’s original Subclass 457 visa was cancelled under s 116 of the Migration Act as the Department was satisfied the Applicant’s visa was obtained due to fraudulent conduct. The Applicant failed to provide a response to the NOICC within the specified time frame.
18. The Applicant appealed the Department’s decision to cancel his Subclass 457 to the AAT on 19 June 2015. On 15 March 2016, the Tribunal set aside the decision under review and substituted a decision not to cancel the Applicant’s Subclass 457 visa.
19. On 13 April 2016, the Applicant applied for a new Subclass 457 nomination and visa sponsored by Degani Milleara with his wife listed as a Dependent Applicant. This was subsequently granted on 11 November 2016 and valid until 11 November 2020.
20. The Applicant applied for Victorian State Sponsorship which was subsequently granted on 18 April 2018.
21. On 8 May 2018, the Applicant applied for a Skilled – Nominated (Subclass 190) visa with his wife listed as a Secondary Applicant. On 22 February 2019, a delegate of the Department refused the Applicant’s Subclass 190 visa application on the basis of the Applicant provided false or misleading information in relation to his Subclass 457 visa application from lodged in 2015. As such, the delegate was not satisfied that the Applicant met Regulation 190.216.
22. On 8 March 2019, the Applicant appealed the decision to refuse his Subclass 190 visa application to the AAT. The Applicant’s review matter is remains pending and is scheduled for a hearing on 6 October 2021.
RELEVANT LEGISLATIVE FRAMEWORK
23. The delegate refused the visa application on the basis that the Applicant failed to meet PIC 4020(1), which states:
(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.
24. While the Tribunal is no doubt aware, the effect of PIC 4020(1) is that there is a three-year bar on applications:
(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 due to a failure to satisfy the criteria in subclause (1).
25. We note that PIC 4020(1) and (2) apply regardless of whether the information is obtained from the applicant and that a waiver can be applied:
(3) To avoid doubt, subclauses (1) and (2) apply whether or not the Minster became aware of the bogues 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 paragraphs of (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, 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.
26. It was identified in the decision record that the Applicant provided false and misleading information with respect to meeting Reg 190.214 of the Migration Regulations 1994 (Cth) (‘the Regulations’) regarding the satisfaction of the points test assessment. The relevant criteria is Reg 190.214, which stated at the time of application:
At the time of invitation to apply for the visa:
(1) The Applicant’s score, when assessed in relation to the visa under Subdivision B of
Division 3 of Part 2 of the Act, is not less than the score stated in the invitation to apply for a visa
(2) The Applicant’s score, when assessed in relation to the visa under Subdivision B of
Division 3 of Part 2 of the Act is not less than the qualifying score stated for that subdivision.
DELEGATE’S DECISION
27. The delegate noted in the decision record that there is evidence before the Minister that the Applicant has provided or caused to be provided, a bogus document or false or misleading information in relation to this visa application. The false or misleading information related to the Applicant’s Subclass 457 visa application lodged on 8 May 2015 where he claimed three years out of the ten years employment in the nominated occupation Cook (ANZSCO Code 351411) at A&K Pty Ltd.
28. The delegate referred to the Tribunal’s decision dated 16 March 2016 in relation to the cancellation of the Applicant’s Subclass 457 visa. The delegate noted that the Tribunal’s decision not to cancel the visa was determined from the Applicant’s obtaining of a new nomination by Degani and that there was no known fraudulent conduct in relation to this application. The delegate noted that the Tribunal did not make a decision against the fraudulent conduct of the Applicant and his employer Angeethi Indian Café.
29. The delegate noted that the Applicant provided no further evidence to support his claims of employment, nor did he provide any evidence of statement to refute the Department’s claims that he had provided misleading or false information in support of his application. This was despite the fact that the AAT had already considered his application and noting that the business no longer existed.
30. The delegate gave weight to the discrepancies presented and the lack of independently verifiable evidence provided by the Applicant. As such, the delegated made a finding that the Applicant had provided misleading information in support of his claimed employment as a cook at A&K Pty Ltd
31. We note the Department Officer’s attempts to visit the Applicant at A&K Pty Ltd on 24 September 2014 whereby the Applicant was not present at the time of visit. As provided previously to the Department, the Applicant holds a medical certificate stating he was unwell and not available to work on that particular date.
32. Further, we respectfully submit that the Applicant’s matter was sufficiently determined by the Tribunal on 15 March 2016 whereby the issue of allegations against the Applicant in providing adverse information regarding his employment history was considered in significant detail. In that case, the Tribunal set aside the Department’s decision to refuse the Applicant’s Subclass 457 visa.
33. As such, it is our review that the issue does not warrant further reconsideration.
Adverse Information
34. The Department received alleged adverse information in relation to the Applicant’s position of employment and the provision of cash payments made by the Applicant to his employer for the purposes of lodging a visa application. Each of these will be discussed below.
35. Within the Department’s refusal decision record, they noted they had received adverse information claiming that the Applicant made payment to A&K Pty Ltd for the lodging of his Subclass 457 nomination application, whose approval resulted in the Applicant being granted a Subclass 457 visa. Additionally, the Department claimed the Applicant made regular cash payments to his employer in order to cover his salary, tax and superannuation payments.
Cash Payments
36. The Applicant vehemently denies the allegations of making cash payments to his employer for the purpose of obtaining a nomination and visa approval and/or to cover his employee salary.
37. The Applicant submits that he was exploited by his employer, Mr Patel, who had been experiencing financial difficulty after spending significant amounts of money to obtain Australian visas for his offshore family members.
38. The Applicant submits that Mr Patel confided to him that the business was struggling and that he had heard from other restaurant owners that they receive cash benefits from the employees who were being sponsored by the business. Mr Patel requested financial support in the form of a loan from the Applicant to inject into the restaurant in order for it to survive. The Applicant further submits that he was pressured and threatened with termination by Mr Patel if he refused to provide the sought financial assistance.
39. The Applicant felt like he had no other choice than to provide the requested loan to Mr Patel.
40. After the Applicant told his employee that he would instigate a complaint about Mr Patel’s exploitative conduct to the Department and/or police, he submits that his life was threatened by Mr Patel and his brother. Following this, the Applicant experienced daily torture and constantly feared for his life at his workplace and an all-encompassing fear to report the behaviour due to fear of his immigration status. He has previously given evidence to the Tribunla differently constituted on this issue.
41. Due to financial difficulty, the Applicant’s employer sold the business to Mr Tulsiyan in October 2013 and the Applicant continued his position as a Tandoor chef. Again, the restaurant struggled financially and Mr Tulsiyan requested the Applicant to loan him a sum of cash in order to continue the operation of the restaurant.
42. The Applicant submits he informed Mr Tulsiyan that he did not intend to provide him with a loan and if he were continue to place pressure on the Applicant to do so, he would report this incident to the Department. Mr Tulsiyan then threatened the Applicant’s life and continued to verbally assault him.
43. The Applicant submits that he continued to work here out of financial need to pay rent and afford necessity household expenses. However, he found the experience to be incredibly traumatic as he was being continuously pressured and verbally bullied by his employer and their family members.
44. The Applicant has been subject to exploitative business owners who have demanded cash payments from him or risk the loss of his employment. The Applicant has a family in Australia to support and could not face losing his employment. As such, the Applicant felt like he had no other choice then to give in to the demand of Mr Patel. However, the Applicant objectively denies the cash payments were provided in conjunction with his nomination and/or visa applications, or to secure his position in the business. The Applicant notes that he has previously provided a statement on 5 October 2015 to the Tribunal differently constituted explaining the above.
Existence of the Applicant’s Position within the Restaurant
45. Further, the Department suggested the position of the Applicant did not actually exist and that the Applicant never worked for the business in the nominated occupation of a Cook.
46. We submit that the above is a baseless allegation. The Applicant has provided the following evidence to demonstrate his position within A&K Pty Ltd during his period of employment
a) Payslips issued by A&K Pty Ltd from April – June 2014
b) PAYG Payment Summary 2014, issued by A&K Pty Ltd
c) Letter of business update, dated 20 October 2014
d) Photograph of an employment roster, dated September 2014
e) Photographs of the restaurant’s menu
f) Applicant’s request for leave, dated 9 June 2013
47. We submit that it is clear that during the period of April 2012 to November 2014 the Applicant clearly held the position of a cook within A&K Pty Ltd and validly claimed points for this period of work experience.
PIC4020 waiver
48. As we have submitted, the Applicant has not provided false or misleading information that is false or misleading in a material particular. If the Department disagrees with this assessment, we submit that the delegate should exercise their discretion to waive the PIC4020 criteria.
49. In order to waive the provisions of PIC4020, an Applicant is required to demonstrate that there are compelling circumstances that affect the interests of Australia, or compassionate and compelling circumstance exist that affect the interests of an Australian citizen or permanent resident.
50. While there is no definition of ‘compelling circumstances’ in the Regulations, the Department policy states in relation to compelling circumstances affecting Australia:
•   There may be compelling circumstances affecting the interests of Australia if:
•   Australia would miss out on a significant benefit that the person could contribute to Australia’s business, economic, cultural or other development (for example, a special skill that is highly sought after in Australia) if the person was not granted the visa.
•   It is departmental policy that compelling circumstances affecting the interests of Australia would not include circumstances where the applicant merely claims that, if granted the visa, they would: work and pay taxes in Australia,
•    pay fees to an education provider; or
•   spend money in Australia.
51. The Applicant was granted a Victorian State Sponsorship on 18 April 2018 prior to his Subclass 190 visa being refused. We submit that Australia would miss out on the significant benefit he currently is, and will continue, contributing to Australia’s economic and other developmental needs, including its current skills shortage, in line with the above policy.
52. The Applicant has gained extensive experience within the hospitality industry as a cook and a chef whilst residing in Australia for the previous twelve years. The Applicant entered the hospitality industry as a cook and worked his way up to secure a position of head chef. The closure of restaurants due to the COVID-19 pandemic unfortunately led to the Applicant losing his full-time position and struggling to support his wife and child in Australia.
53. Due to the loss of his job at the Fat Chef, the Applicant undertook a security course and obtained his license to practice as a security guard during the pandemic. The Applicant secured a full-time position at Ultimate Security whereby he works as a security guard for Chemist Warehouse in Coburg in order to provide for his family.
54. While awaiting the present appeal, the Applicant has recently commenced a casual position working for TIC Reverse Logistics as a storeperson.
55. However, upon the easing of restrictions, the Fat Chef intends to rehire him as a full-time chef. The Applicant looks forward to the opportunity to re-join the hospitality industry where he seeks to start his own business in the near future.
56. We submit there can be no doubt that Australia would miss out the significant benefit the Applicant is able to offer by virtue of his skills as a Cook – ANZSCO 351411 and community endeavours.
57. The Applicant has been significantly impacted by the pandemic and the fact that the Department has effectively refused him a visa despite the Tribunal differently constituted considering the issue. No new evidence in relation to the Subclass 190 Visa was put forward and the Applicant has been made to refute the same claims with a considerable period having now lapsed. It is therefore in the interests of Australia, to offer a fair process and consider him for the grant of this visa.
CONCLUSION
58. We submit the PIC4020 finding against the Applicant has not been made out, as it without basis and is not justified, in light of the substantial evidence indicating he did in fact perform this work experience.
59. We further submit that the issue of the Applicant providing false or misleading information has previously been heard by the Tribunal in March 2016. In this matter, the delegate set aside the Department’s decision to refuse the Applicant’s Subclass 457. It is our strong opinion that this matter need not be revisited and the former decision of the Tribunal ought to be relied upon.
60. However, in the event the Tribunal finds otherwise, we submit a waiver under PIC4020(4)(a) should be granted on the basis of the Applicant’s skills and the significant benefit he is able to offer the Australian community on a federal, state and local level.
61. We look forward to satisfying any concerns the Member may have at the hearing on 6 October 2021.”

Further, the Representative raised with the Tribunal, at hearing, the matter of the ‘exploitation of workers’, which was submitted needs to be considered by the Tribunal in the exercise of discretion concerning the matter of waiver, given that compelling circumstances that affect the interests of Australia; and/or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; justifying the grant of the visa. 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).
In addition, the Representative provided the Tribunal with submissions on 14 November 2022, that were post hearing, as follows:
”1. We refer to the above review application for merits review, and the Review Applicant’s hearing which took place on 10 November 2022 before Member Stooke.
2. We continue to rely on our previous submissions dated 29 September 2021 and 19 October 2021 and seek to provide further details as to the PIC4020 waiver provisions as outlined within the recent Tribunal hearing.
PIC4020 Waiver
3. We acknowledge the inherent difficulties within this matter by virtue of the unavailability of evidence able to be provided by the Review Applicant’s employer, and in particular the length of time which has passed since the time of employment.
4. If the Member finds that the Applicant fails to meet the PIC4020 requirement, we request a waiver on the basis of compelling reasons that affect the interests of Australia pursuant to PIC4020(4)(a) as well as compassionate or compelling circumstances that affect the interests of an Australian citizen and/or permanent resident per PIC4020(4)(b).
5. We seek to address the PIC4020 waiver provisions below, particularly in terms of the worker exploitation in which the Review Applicant has repeatedly faced throughout his employment within Australia, as well as more broadly how his experience is in the interests of Australia to ensure he may remain.
Interests of Australia
Worker Exploitation
6. As the Applicant has previously detailed in his statement dated 5 October 2015 and 28 September 2021 as well as provided oral evidence of in his hearing, dated 10 November 2022, he has been a person affected by worker exploitation.
7. The Review Applicant has been viewed as a target and taken advantage of by his employer, who has repeatedly requested loans of a significant sum, as well as harassment and threatening behaviour. He has consistently and transparently declared that he provided a loan of $10,000 - $12,000 in the course of his employment, which in our view whilst a substantial amount of money, it is not sufficient to cover his annual wages, as previously alleged. Further, at no point has the Review Applicant sought to deny the provision of a loan throughout the processing of his matter.
8. In addition to this, the Review Applicant has confirmed that he was informed the loan would ensure the business remained operative, and it would be in the bests interests for him to provide the requested sum of money. He has since confirmed that he never received a repayment of the loan.
9. At the time of these events occurring, the Review Applicant held a Temporary Work (Subclass 457) visa whereby as a result of the conditions attached to his visa, he was required to be nominated by a specific employer, and not cease work for a period of more than 60 days.
10. The issue of exploitation within Australia’s labour industry and more specifically amongst migrant workers is well known and subject to current media attention.
11. A report conducted by Migrant Workers Centre surveyed over 700 participants and found that over 65% of temporary visa holders within Australia have experienced wage theft, and one out of four have additionally experienced other forms of labour exploitation within the workforce.1
12. This is particularly so for those who hold skilled visas with specific visa conditions, requiring the maintenance of employment throughout the duration of their visa. A recent enquiry conducted by the Joint Standing Committee on Foreign Affairs, Defence and Trade noted the following:
‘Certain visa conditions increase migrant workers’ vulnerability to exploitation, particularly ‘tied’ visas where the visa holder must be sponsored by an approved employer..
The way that regulations are created tends in fact to create opportunities for exploitation, rather than ever protecting workers. Creating regulations tends to push it back on the workers that there will be limits on what they can do, and they can be threated and exploited around that regulation and these limits and requirements.’2
13. The report authored by Migrant Workers Centre identifies further cause of exploitation inherent within skilled visas:
‘Migrant workers’ lack of freedom to switch jobs and structural dependency on their continued employment with the sponsoring employer for their livelihood in Australia forces them to “say yes to everything” and discourages them from reporting workplace rights violation to the authorities.’3
14. We submit that on the basis of the recent and ubiquitous media attention, the issue of worker exploitation, particularly amongst migrant workers is prolific. Further, given the inherent fragility of skilled visas, particularly those requiring sponsorship from an employer as well as not to cease work for a period longer than specified, it is often difficult to seek alternative employment whilst maintaining compliance with visa conditions.
15. In addition to this, it is clear from the Review Applicant’s consistent statements as well as his oral evidence, the behaviour of his employers in providing poor working conditions and making repeated requests for a sum of money to be paid in order for the business to remain in operation, is plainly exploitative. This is furthered by the Review Applicant’s vulnerable position, having just lost his father as well as needing to maintain his nominated employer in order to avoid a breach of visa conditions.
16. It is difficult to balance the requirement for visa holders to maintain their eligibility and ensure they are not in breach of the mandatory employment conditions attached to their visa. It is this challenge in itself which often inhibits those in similar circumstances from seeking remedy, either by notifying the Department of Home Affairs or reporting exploitative behaviour to the Fair Work Ombudsman.
17. The Migrant Workers Centre Report outlined the following issues in reference to migrant visa holders contacting the Fair Work Ombudsman:
‘Migrant workers who have breached their visa conditions cannot report workplace issues for fear of losing their migration status..
The short expiry of many temporary visas or their dependence on employer sponsorship makes the protection not practical enough to encourage migrant workers to take the risk of contacting the Fair Work Ombudsman.’4
18. The Review Applicant has instructed that he did not feel like he could report his employers on the basis that the safety of himself and his family were threatened by his employer and other family members and that it would clearly put him at risk of having his visa cancelled.
19. This type of exploitative behaviour continuously exhibited by the Review Applicant’s employers, including requests for payments of large sums of money and subsequent threatening as well as harassment of a vulnerable worker is not in the interests of the Australian workforce.
20. Therefore, in considering whether it is appropriate to waive the PIC4020, we submit that the Applicant’s professional circumstances and the exploitation in which he has endured, ought to be viewed compelling in conjunction with the interests of Australia. The type of behaviour in which he has been forced to endure at the hands of his employer, is not within the interests of the Australian workforce, or in Australia’s interests.
Interests of Australian Citizens / PR
21. As detailed in our previous submissions, the Review Applicant has remained onshore for a period of over 14 years. He and his wife have started a family here, having their first son in 2020, both of whom are listed as Dependent Applicants on the current visa application.
22. The Review Applicant has significantly integrated into his both his local community as well as the wider Australian society, which they actively participate in and refer to as their home.
23. He has maintained employment throughout his entire period of residence and endured a change of industry due to the collapse of the hospitality industry during the COVID-19 pandemic. The Review Applicant has sought to continuously contribute to the Australian economy through his active employment, and this could not be viewed as a matter whereby he has lodged precarious visa applications as a means to remain onshore.
24. The Review Applicant and his family are active members of their local temple, in which they attend on a regular basis. In particular, the Review Applicant attends special events for Diawli, Dusheera, Ganesh Chatturthi and Ugadi along with his local community members. For these special events, the Review Applicant enjoys inviting his friends, colleagues and community members to participate in the festivities alongside him.
25. Through the length of his residence, the Review Applicant instructs that both himself and his wife have established solid friendships both within their workplace and their neighbourhood. He instructs that they often enjoy hosting events at their family home as well as playing cricket with their friends.
26. Additionally, the Review Applicant’s son attends their local childcare centre, whereby he has started to establish his own independent roots within Australia and creating friendships. Outside of childcare, he participates in events at their local library as well as community programs.
Conclusion
27. We advise that on the basis of the Review Applicant’s tumultuous experience within the Australian workplace, advantageous behaviour and worker exploitation is behaviour that ought to be discouraged amongst employers and should therefore weigh in favour of compelling reasons to waive the PIC4020 on behalf of the Review Applicant.
28. Further, on the basis of our previous submissions and the additional information above, it is clear that the Review Applicant and his family hold significant ties to Australia, both through their lengthy period of residence, their employment, their friends and family as well as their son’s education. This in itself adds significant weight and ought to be considered as compelling and compassionate when making a decision to waive the PIC4020 provisions on behalf of the Review Applicant.”
Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?
The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and the term ‘bogus document’ is defined in s 5(1) of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.
The requirement in PIC 4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant: PIC 4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.
Whilst 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.
The Tribunal acknowledges that the original owners of Angeethi Indian Café are no longer in business and as such, it is not possible to test the allegations concerning the Department’s decision to find that PIC4020 had been breached. This was based upon accepting that the applicant had provided misleading information in support of their claimed employment as a Cook (ANZSCO code 351411) at Angeethi Indian Café, however, there is uncorroborated evidence before the Tribunal that the applicant has given, or caused to be given, to the Minister a bogus document. In making this finding, the Tribunal however, accepts that the applicant may not have been aware of the conjecture that a loan to the original owner of Angeethi Indian Café, that would subsequently arise, and the potential to be construed as a bogus document or information that is false or misleading in a ‘material particular’ in relation to the application for the visa. In such circumstances the applicant does not need to be aware the information was purposely untrue in order for PIC 4020 to be engaged.
Therefore, the applicant does not meet PIC 4020(1).
Should the requirements of PIC 4020(1) or (2) be waived?
The requirements of PIC 4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in 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.
The expressions ‘compelling circumstances’ and ‘compassionate or compelling circumstances’ are not defined for these purposes. To be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied: see Plaintiff M64/2015 v MIBP [2015] HCA 50. The ordinary meaning of ‘compassionate’ relates to feelings of sympathy, sorrow, pity or concern for others.
The Tribunal asked the applicant if he had any compelling circumstances that affect the interests of Australia, which should be considered by the Tribunal? The applicant responded that he did have compelling circumstances that affect the interests of Australia.
The Tribunal asked the applicant: Do you have any compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, that you may inform the Tribunal of in the consideration of your case, justifying the grant of a visa? The applicant responded with the following circumstances:
a.Worker exploitation;
b.The threat that if he left his employment he could have faced cancellation of his 457 visa;
c.Currently he is not working in his profession.
The applicant was asked what involvement does he have with Australian citizens and he responded that he does have involvement, as he lives in Footscray and with fellow Australian citizens he attends actual events together and that the community would be impacted if taken away from that group, given that he has been here for 14 years with a deep bond. He stated that his daughter, who is two and one half, is socialising with other children, who are Australian citizens.
The applicant stated that he has been in Australia since 2008 and has a legitimate working relationship given that he has worked the whole time that he has been resident.
Waiver
For the following reasons, the Tribunal is satisfied that the requirements should be waived.
The Tribunal acknowledges that the disparity of power that exists between a sponsor and a nominee has the potential to lead to ‘worker exploitation’ as articulated by the applicant’s Representative. Whilst this is a case where conjecture exists concerning whether ‘worker exploitation’ has taken place, it would appear that the evidence provided by the applicant is plausible, particularly given that the applicant subsequently entered into a new 457 sponsorship where the owner has maintained a positive disposition toward the applicant and subject to a turn-around in economic circumstances (post pandemic) an opportunity may be presented for the applicant to re-engage with his profession.
Further, the Tribunal acknowledges that the applicant has skills that are in high demand in Australia and his contribution to Australian business will be materially of benefit to the Australian community.
The Tribunal accepts that the secondary applicant has established herself and has a young child of two and one half years and integrated into the Australian community that provides companionship to Australian citizens and permanent residents that is considered by the Tribunal to add value to the Australian community. As such, it would be detrimental to a portion of the Australian community to deny access to the community group provided by the secondary applicant.
The Tribunal is cognisant of the issues concerning the matter of ‘worker exploitation that was raised in the submission of the Representative, including:
“11. A report conducted by Migrant Workers Centre surveyed over 700 participants and found that over 65% of temporary visa holders within Australia have experienced wage theft, and one out of four have additionally experienced other forms of labour exploitation within the workforce.1
12. This is particularly so for those who hold skilled visas with specific visa conditions, requiring the maintenance of employment throughout the duration of their visa. A recent enquiry conducted by the Joint Standing Committee on Foreign Affairs, Defence and Trade noted the following:
‘Certain visa conditions increase migrant workers’ vulnerability to exploitation, particularly ‘tied’ visas where the visa holder must be sponsored by an approved employer..
The way that regulations are created tends in fact to create opportunities for exploitation, rather than ever protecting workers. Creating regulations tends to push it back on the workers that there will be limits on what they can do, and they can be threated and exploited around that regulation and these limits and requirements.’2
13. The report authored by Migrant Workers Centre identifies further cause of exploitation inherent within skilled visas:
‘Migrant workers’ lack of freedom to switch jobs and structural dependency on their continued employment with the sponsoring employer for their livelihood in Australia forces them to “say yes to everything” and discourages them from reporting workplace rights violation to the authorities.3 ”
The Department provides guidance to its officers through the Procedures Advice Manual (PAM). These guidelines are not binding on the Tribunal but regard may be had to them when they're not in conflict with the legislation. Under PAM3 there may be compelling circumstances affecting the interests of Australia if:
“Australia's trade or business opportunities would be adversely affected were the person not granted the visa (Note: under policy, gaining employer sponsorship is not considered sufficient grounds for a waiver)
Australia's relationship with a foreign government would be damaged if the person is not granted the visa or
Australia would miss out on a significant benefit that the person could contribute to Australia's business, economic, cultural or other development (for example, a special skill that is highly sought after in Australia) if the person was not granted the visa.”

Overall, the Tribunal is satisfied that there are compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. As such, the Tribunal finds that the requirements should be waived, having regard to those circumstances, as presented in evidence by the applicants. As such, the Tribunal notes the comments of Buchanan J. in Trivedi v MIBP [2014] FCAFC 42:
"I would not infer any apparent intention to disqualify; a visa applicant who could explain an innocent mistake in a document or information provided by them. PIC 4020 is not directed, in my view, to innocent, unintended or accidental matters.”
Therefore the requirements of PIC 4020 (1) should be waived.
Has the applicant satisfied the identity requirements?
PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.
The delegate’s decision did not raise any issues related to identity and the Tribunal is satisfied with the information provided by the applicant through his identity documentation, including the applicant’s passport and the assessed National Police checks.
Therefore, the applicant meets PIC 4020(2A).
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?
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).
There is no evidence before the Tribunal to suggest that any past visa application made by the applicant or a member of the family unit of the applicant was rejected on the basis of PIC 4020(2A).
Therefore PIC 4020(2B) is met.
On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl 190.214.
On the basis that the primary applicant has satisfied the criteria of PIC4020 for the purposes of cl 190.214, it follows that the secondary applicant is a member of a family unit that has satisfied the required criteria.
DECISION
The Tribunal remits the applications for Skilled Nominated (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 190 - Skilled - Nominated visas:
·Public Interest Criterion 4020 for the purposes of cl 190.214 of Schedule 2 to the Regulations.
Warren Stooke AM
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.
…

[2022] AATA 5150

17 November 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Natural Justice