Thakur (Migration)

[2021] AATA 2971

Thakur (Migration) [2021] AATA 2971 (22 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Vikram Singh Thakur
Master Aarav Thakur
Miss Avni Thakur
Mrs Neetu Shahi

CASE NUMBER:  2010397

HOME AFFAIRS REFERENCE(S):          BCC2015/3547861

MEMBER:R. Skaros

DATE:22 July 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) visas.

Statement made on 22 July 2021 at 2:36pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Federal Circuit Court remittal – position of Cook – no approved nomination – sponsor’s business closed – false IELTS test report – compassionate or compelling circumstances to waive public interest criteria – Australian citizen child – family circumstances and health – impact of the COVID-19 pandemic – decision under review affirmed  

LEGISLATION

Migration Act 1958, ss 5(1), 65, 359
Migration Regulations 1994, Schedule 2, cls 187.213, 187.233; Schedule 4, Public Interest 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 Immigration and Border Protection on 21 October 2016 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 27 November 2015. 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 delegate found that Public Interest Criterion (PIC) 4020 was not met. A copy of the delegate’s decision record was provided with the application for review.

3. On 23 July 2019 the Tribunal, differently constituted, affirmed the delegate’s decision to refuse the grant of the visas. The applicants applied for judicial review of that decision and, on 8 May 2020, the matter was remitted to the Tribunal for reconsideration.

4. The applicant appeared before the Tribunal on 20 July 2021 to give evidence and present arguments. The Tribunal was assisted by an interpreter in the Hindi and English languages.   

5. The applicants were represented in relation to the review by their registered migration agent. The representative attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. There are two issues in this review. The first is whether the employer nomination in relation to the applicant has been approved as required by cl.187.233 for the grant of the visa. The second is whether, for the purposes of cl.187.213, the applicant meets the requirements of PIC 4020(1) and if not, whether PIC 4020(1) should be waived.

   Nomination of a position

8. Clause 187.233 requires that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, this criterion also requires that the nomination has been approved.

9. The applicant applied for the visa on the basis of a nomination of a position made by Bikaner India WA Pty Ltd. On 22 February 2018 the nomination in relation to the applicant was refused by the Department. The nominator did not apply for review of the Department’s decision, meaning that the decision to refuse the nomination in relation to the applicant stands. The nominating entity has also been deregistered as a company.

10. At the hearing, the applicant gave evidence that he ceased working for the nominator shortly after his visa was refused by the Department. He informed the Tribunal that the nominator’s business has since closed. He stated that he is currently working as a courier driver and that he has not been able to find employment as a cook/chef with a restaurant or café.

11. In accordance with the procedure in s.359AA, the Tribunal informed the applicant that Departmental records indicate that the nomination, against which he made the required declaration in his visa application, was refused by the Department on 22 February 2018 and that the nominator had not applied for review of that decision. The Tribunal also noted that a current search of the ASIC Register indicated that the nominating entity (Bikaner India WA Pty Ltd) was deregistered on 8 November 2020. The Tribunal explained to the applicant the relevance of the information and informed the applicant that if it relied on the information it would go on to find that the relevant nomination in relation to him has not been approved and that the nominated position was no longer available to him. The Tribunal further explained that it may then go on to find that he does not meet the requirements in cl.187.233 and in the circumstances the decision under review may be affirmed.

12. When asked if he wished to request additional time to respond to the information, the applicant requested a few minutes to consider his response. After several minutes the applicant gave evidence that he came to Australia in 2007 on temporary a visa to work. He has held several Subclass 457 visas. He stated that the nominating employer did not inform him about the nomination. He stated that he was asked to sign some documents relating to the application and did not ask the business owner questions about the nomination. The applicant stated that his focus now is the future of his children whom he wants to raise in Australia. He hoped that he could be granted a visa that would enable him to work full time in Australia until the children are settled.

13. The Tribunal acknowledged the applicant’s evidence, however, as explained to him at the hearing, one of the primary requirements for the grant of the visa is that the employer nomination for the position has been approved. The Tribunal acknowledges the applicant’s desire to remain in Australia and raise his young children, one of whom is an Australian citizen, however, there is no provision in the legislation to take into account any extenuating circumstances for the purposes of the requirements in cl.187.233.

14. One of the primary issues in this case is whether the relevant nomination has been approved. The evidence before the Tribunal indicates that the nomination for the position lodged by Bikaner India WA Pty Ltd, about which the visa applicant made the required declaration in his visa application, has been refused. Bikaner India WA Pty Ltd did not apply for review of the Department’s decision to refuse the nomination.  In the circumstances, the Department’s decision refusing the nomination stands. As the relevant nomination has been refused, it follows that the applicant does not meet the requirements in cl.187.233(3).

15. For the above reasons, the Tribunal finds that the requirements in cl.187.233 have not been met.

    Public Interest Criterion (PIC) 4020

16. Relevantly, PIC 4020 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).

17. The requirement in PIC 4020(1) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). 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?

18. 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.

19. 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.

20. 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.

21. As part of the Subclass 187 visa application, the applicant provided an IELTS test report dated 18 October 2014. The IELTS report indicated that the applicant achieved the following scores in the test: Listening 6.5, Reading 7.5, Writing 6.0 and Speaking 6.5. An officer of the Department sought to verify the results of the test online but was unable to do so as no match could be found. The officer wrote to the centre that issued the report to request further information. In response, an Audit and Investigations Manager of IDP Education Pty Ltd advised that after careful review of their IELTS records, the test results provided for the applicant do not match their records.

22. The applicant was invited to comment on the adverse information obtained by the Department regarding the authenticity of the IELTS test report. In response, the applicant provided a letter dated 20 September 2016 purporting to be from an administration officer at an IELTS Centre at the University of Western Australia. The letter, which was somewhat indecipherable due to its numerous grammatical and typographical errors, suggests that due to browser errors the applicant’s results cannot be viewed and when investigations were undertaken with the IT Department they advised that there had been technical errors since June 2016 and data was lost. It states that manual records indicate the applicant sat the test on 18 October 2014. On 11 October 2016, an officer of the Department contacted the person who was named as the author of the letter. The named person advised the officer that they had not issued the letter.

23. The applicant was invited to comment on the adverse information regarding the letter dated 20 September 2016. In response, the Department received several supporting documents, including a letter from the applicant’s nominating employer requesting that the application be considered under compelling circumstances. These submissions have been considered further below in relation to the waiver. 

24. In his recent statement to the Tribunal, dated 18 July 2021, the applicant stated that he does not wish to dispute the finding of the delegate that he provided bogus documents when he applied for the visa in 2015. When this evidence was discussed with the applicant at the hearing, he stated that he was sorry for his mistake, he had been misguided by someone and did not appreciate the consequences.

25. The evidence before the Tribunal, which was set out in the delegate’s decision record, indicates that the applicant did not sit an IELTS test on 18 October 2014 as claimed. Information received by the Department from the IELTS testing body indicates that the IELTS test report provided by the applicant with his application does not match their records. On the basis of this information, the Tribunal reasonably suspects that the IELTS test report is a document that purports to have been, but was not issued in respect of the applicant or is a counterfeit or has been altered by a person who does not have the authority to do so. The Tribunal accordingly finds that the IELTS test report is a bogus document as defined is s.5(1) of the Act.

26. In relation to the letter dated 20 September 2016, the evidence before the Tribunal is that the person named on that letter did not issue it. On this evidence, the Tribunal suspects that the letter is a counterfeit or has been altered by a person who does not have the authority to do so. The Tribunal accordingly finds that the letter is a bogus document.

27. The Tribunal is satisfied that there is evidence that the applicant has given, or caused to be given, to the Department the bogus IELTS report and letter in relation to his visa application. Therefore, the applicant does not meet PIC 4020(1).

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

28. 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.

29. 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.

30. The Tribunal has considered the matters raised by the applicant in relation to the waiver as follows.

31. As noted above, the applicant provided to the Department a letter from his nominating employer detailing compelling circumstances affecting an Australian business and the adverse impact on the business and its owner if the applicant were not granted a permanent visa. At the hearing, the applicant gave evidence that he is a multicuisine chef with many years of experience, that the owners of the business were Australian citizens and that he has trained Australian citizens and is proud of his contribution.

32. The Tribunal acknowledges that the applicant made a contribution to an Australian business through his employment, including training Australians, however, the evidence currently before the Tribunal is that the applicant is not working for the nominating employer and that the nominator’s business has ceased to operate. Furthermore, the applicant is currently not working as a chef but is working as a courier driver. Having considered the applicant’s past employment and contribution, the Tribunal is not satisfied on the current evidence before it that they constitute compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian that justify the granting of the visa.

33. The Tribunal has also considered the circumstances of the applicant and his family, including his 13 years old daughter who is an Australian citizen. The applicant has been in Australia on various temporary work and bridging visas since 2007. His children were born in Australia and his eldest child became an Australian citizen on her tenth birthday. The Tribunal has had regard to the information provided in support of the waiver, including letters and school reports regarding his children’s academic progress and their integration into the Australian school system.

34. In his statement to the Tribunal, the applicant claimed that his children will not be able to integrate into the Indian education system as they do not speak, read or write Hindi fluently at the required level. He stated that his children have grown up with their Australian citizen cousins (his brother’s children) who provide them with strong family support. He stated that that he and his wife have been in Australia since 2007, they do not own a house in India and as he will be 52 years old in October, it will be difficult for him to find a job in India. He stated he will not be able to financially provide for his family and there is no meaningful welfare system in India.

35. The applicant also submitted that under the Convention on the Rights of the Child 1989, Australia as a signatory country, should have the child’s best interest in any decisions that affects the child’s right. He stated that his children’s best interest can only be protected if they continue their education in Australia, to ensure they will have access to all opportunities. He further stated that it is not safe in India due to COVID-19 and that his two children have asthma, which is exacerbated by COVID-19. He provided details on the limitations of the Indian healthcare system and stated it would impose a significant impediment for his family maintaining basic living standards. The applicant also expressed his concern about his daughter coping with relentless sexual assaults on young girls in India.

36. The Tribunal considers that the best interest of the applicant’s children is to be with their parents and for the family unit to remain intact. The Tribunal considers that but for travel restrictions and the current circumstances in India due to COVID-19, which are discussed further below, that the applicant and his family could return to India. Information provided with the visa application indicates that the applicant has extensive experience as a chef in India and Australia with reputable dining establishments and hotels, and the Tribunal considers that this would put him in good stead to secure employment in India so he can provide for his family, including his Australian citizen daughter.

37. The Tribunal further notes that the applicant is currently working as a courier driver as he has not been able to find employment in hospitality. This, in the Tribunal’s view, demonstrates that the applicant is a resourceful person who, despite the difficulties, can adapt and find other types of employment to support his family. The Tribunal is not satisfied that the applicant cannot apply the same level of resourcefulness to finding employment in India so that he can support his family, including his Australian citizen daughter.  

38. The Tribunal also acknowledges the applicant’s concern about his children’s education and the difficulties they may encounter if they had to return to India due to their limited proficiency in the Hindi language proficiency. The Tribunal considers that the children are still quite young and, with the support of their parents, can adapt to the education system in India. It is also open for the applicant to enrol his children in English-medium schools in India.

39. The Tribunal also acknowledges the applicant’s concern about sexual assaults on young girls in India. While the information provided by the applicant suggests that sexual harassment, discrimination and violence is experienced by many women and young girls in India, this is not necessarily the case for every young girl in India. There are many factors which may affect a young girl’s experience in India. The Tribunal notes that the applicant’s daughter would not be in India alone and would likely travel there with her family unit, including her father (the applicant), and there is nothing before the Tribunal which suggests that she would not have the support and protection of her family.

1. The Tribunal also acknowledges that the applicant’s children, including his Australian citizen daughter, will experience some emotional hardship if she is separated from her cousins with whom she has a close relationship, however, the Tribunal notes that the families can still maintain contact with one another despite being in separate countries.

2. In relation to the applicant’s claim regarding the situation in India due to COVID-19, the Tribunal accepts that the pandemic is widespread throughout India, which has the second highest number of confirmed cases globally.[1] The DFAT Report indicates that the pandemic has placed strain on India’s health infrastructure which has struggled to provide care to those infected. The seriousness of the COVID-19 situation in India led to the Australian government announcing a travel ban on persons returning to Australia from India in April 2021. While travel has since resumed, it is very limited. Current information before the Tribunal indicates that the delta variant of COVID-19, which is highly transmissible, continues to exacerbate the COVID-19 crisis in India.

   [1] DFAT Country Information Report – December 2020.

3. Given the prevalence of COVID-19 in India and severity of the health crisis there, the Tribunal considers that if the applicant’s daughter travels to India now or in the immediate future that there is a real possibility she will contract COVID-19 and if she becomes sick she may not be able to receive adequate health care. It is therefore in the interest of the applicant’s daughter to remain in Australia with her family at the present time. The Tribunal is satisfied that, at the time of this decision, there are compelling or compassionate circumstances that affect the interest of the applicant’s daughter, who is an Australian citizen.

4. In considering whether the requirement in cl. 4020(1) should be waived, the Tribunal notes that, notwithstanding that the applicant does not qualify for the Subclass 187 visa as he does not have an approved nomination, the considerations in relation to PIC 4020(4) are distinct from the other requirements for the visa and relate only to the waiver of the requirements in cl.4020(1) and/or (2). While the exercise of the waiver is entirely academic in the circumstance of this case, as it will not result in the applicant qualifying for the visa, the Tribunal nevertheless considers that, having regard to the compelling and compassionate circumstances which affect an Australian citizen child, that the requirement in 4020(1) should be waived.

5. For the above reasons, the Tribunal is satisfied that the requirements of cl.4020(1) should be waived.

   Conclusion

6. Notwithstanding the Tribunal’s decision to waive the requirements in PIC 4020(1), the Tribunal must nevertheless affirm the decision under review on the basis that the applicant does not satisfy a primary criterion for the grant of the visa, namely cl.187.233.

7. The secondary applicants applied for the visa on the basis of being members of the family unit of the primary visa applicant. As the primary visa applicant does not satisfy one of the requirements for the visa, it follows that the decision in relation to the secondary applicants must also be affirmed.

8. The Tribunal notes that the third named applicant, Miss Avni Thakur, is an Australian citizen so this decision will not have any impact on her immigration status.

   DECISION

9. The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) visas.

   R. Skaros
   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.

   …