Williams (Migration)

[2022] AATA 1296

Williams (Migration) [2022] AATA 1296 (4 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Rhea Amelia Williams

CASE NUMBER:  1928526

HOME AFFAIRS REFERENCE(S):          BCC2019/2398620

MEMBER:Namoi Dougall

DATE:4 May 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) visa.

Statement made on 04 May 2022 at 12:40pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – false and misleading information given in visa applications – criminal convictions in home country and Australia not declared – belief that driving offences in home country are not convictions – attendance at magistrate’s court –compassionate or compelling circumstances justifying grant of visa – employment by business nominator ceased and position no longer available – offer of employment by another employer – volunteer community activities and support for friend with physical and mental health conditions – request for referral for ministerial consideration not granted – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65, 351, 359A
Migration Regulations 1994 (Cth), Schedule 2, cl 186.213, Schedule 4, criterion 4020(1), (4), (5)

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 26 September 2019 to refuse to grant the applicant an Employer Nomination (Permanent) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 6 May 2019. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 186.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied that the applicant met the requirements of public interest criterion (PIC) 4020 of Schedule 4 to the Regulations. The delegate found that the applicant had given information that was false and misleading in a material particular in regard to her character declarations.

3. The applicant appeared before the Tribunal on 24 February 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Ms SB. Ms SB’s name has been abbreviated due to the nature of the medical information provided to the Tribunal.

4. On 8 March 2022, 30 March 2022 and 14 April 2022, the Tribunal wrote to the applicants pursuant to s 359A inviting the applicant to comment on adverse information relating to her ceasing to be employed by her business nominator, 4 Eyes Pty Ltd trading as Beach Burrito Co (BBC). The applicant responded to the Tribunal’s letter of 8 March 2022 but not to the Tribunal’s other 2 letters. Details of the letters, their content and the applicant’s response to the Tribunal’s letter of 8 March 2022 are set out below under the heading BBC post hearing evidence and submission.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 186.213 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).

2. 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 a material particular?

1. 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.

2. 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.

3. 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.

4. On 12 November 2015, the applicant lodged a Subclass 457 visa application in which the applicant failed to declare her criminal convictions in the United Kingdom, that is she answered ‘No’ to the question: ‘Have any applicant ever been convicted of an offence in any country (including any conviction which is now removed from official records?’. The details are set out below.

5. On 6 May 2019, while holding the Subclass 457 visa referred to above, the applicant lodged a Subclass 186 visa application which is the subject of this review. In the Subclass 186 visa application the applicant failed to declare her criminal convictions in Australia, that is she answered ‘No’ to the question: ‘Has any applicant ever been convicted of an offence in any country (including any conviction which is now removed from official records?’ The details are set out below.

6. On 28 May 2019, the Department requested that the applicant provide Police Clearance Certificates – United Kingdom (UK) and an Australia Federal Police (AFP) Clearance National Police Check. After being granted an extension of time, the applicant provided a United Kingdom Police Certificate dated 10 June 2018 (the UK Police Certificate) and an AFP National Police Certificate dated 18 June 2019 (the AFP Certificate).

7. The UK Police Certificate indicated that the applicant had 3 convictions which were: on 21 December 2006 failing to provide a specimen for analysis (driving or attempting to drive); on 2 February 2010 driving a motor vehicle with excess alcohol; and on 6 January 2012 using threatening, abusive, insulting words or behaviour with intent to cause fear or provocation of violence. The first 2 offences required the applicant to attend a magistrates’ court.

8. The AFP Certificate indicated that the applicant had 2 convictions in Australia which were: on 5 September 2018 resist officer in execution of duty; and on 8 May 2018 drive with middle range prescribed concentration of alcohol.

9. On 31 July 2019, the Department sent the applicant a natural justice letter which stated that the applicant answered No in her Subclass 457 and 186 visa applications to the question: ‘Have any applicant ever been convicted of an offence in any country (including any conviction which is now removed from official records?’ The letter referred to the criminal convictions recorded on the UK Police Certificate and the AFP Certificate. The letter also asked for information as to whether there were any compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, to justify the waiver of PIC 4020.

10. On 28 August 2018, the applicant responded to the Department’s natural justice letter by providing a submission, a statutory declaration and references which are referred to below. The submission from the applicant’s representative dated 28 August 2019 (the first submission) stated that the applicant should have answered ‘Yes’ to the question ‘Has any applicant ever been convicted of an offence in any country (including any conviction which is now removed from official records?’, however, the applicant did not intend to mislead the Department but was confused by the word ‘conviction’. Further, the applicant was under the impression that she did not need to declare offences which were driving offences or occurred more than 5 years ago.

11. Provided in response to the natural justice letter was a statutory declaration of the applicant dated 10 July 2019 (the first statutory declaration) in which the applicant stated that in January 2018 in Australia she was involved in an unprovoked police incident which led to her and her partner being arrested and traumatised. The matter went to court ‘with the charges being dropped without conviction or fine’ and the couple were placed on a good behaviour bond. The incident affected her mental health. A month after the incident the applicant was at lunch with a friend where alcohol was consumed. She was unexpectantly called in as it was a very busy Good Friday. Her friend asked her to drive her home and on the way the applicant was randomly breath tested and was over the limit. She was fined $400 and her licence was suspended for 4 months. The applicant undertook a traffic offenders rehabilitation program which emphasised how dangerous her conduct had been. The applicant also referred to her drink driving offence in the UK and the remorse she feels.

12. In the first statutory declaration the applicant referred to the circumstances surrounding her conviction in the UK for using threatening, abusive, insulting words or behaviour and that the incident arose from a homophobic assault in a bar where a straight male had taunted the applicant and her girlfriend all evening. The applicant stated that she felt threatened but did not rise to the confrontation and left the nightclub.

13. Provided to the Department was a second statutory declaration of the applicant dated 28 August 2019 (the second statutory declaration) stated that she believes that the requirements in the UK and Australia are different in relation to declaring convictions and the offences recorded in the UK Police Certificate are considered offences as she believes she was ‘not convicted per se’. The applicant further states that she received disqualifications, cautions, fines and a good behaviour bond but was never convicted. The Tribunal does not accept this submission as the applicant, for the driving offences, had to attend a Magistrates court and was not issued with, for example, an on-the-spot fine. Further, the UK Police Certificate before listing the convictions states: “Summary of convictions and reprimands/warning/cautions/impending prosecutions/under investigations held on UK police database…” and records for the second driving offence indicated that the applicant was ‘sentenced 9/02/10’ which indicated that the applicant was convicted of the offence of driving a motor vehicle with excess alcohol in the UK.

14. The applicant in her second statutory declaration stated that after her court appearance in Australia her lawyer and the judge informed her that a good behaviour bond would not show up on her police record. The applicant submits that due to her confusion and lack of knowledge she made an innocent mistake when completing her application forms. Also provided to the Department was a letter dated 14 August 2019 from Mr Osmin Samin, lawyer in which Mr Samin stated that he represented the applicant in Nowra Local Court (in relation to the charge of resist officer in execution of duty). He further submits that the applicant was not convicted and, therefore, does not have a criminal record. He further stated that the Court’s decision was largely due to the way the police conducted themselves. He also stated that he informed the applicant did not have an obligation to detail the matter if asked whether she had any criminal convictions. The applicant did not in the second statutory declaration include any claim and information, made at the hearing, about her having informed her migration representative about her Australian convictions.

15. The UK Police Certificate indicates that the applicant has 3 recorded convictions. Whether or not the applicant had criminal convictions is relevant to the criteria in cl 186.213 which requires the Minister to be satisfied that the applicant has met the character test. Therefore, the false and misleading information is relevant to criteria the Minister may take into account when making a decision. Further, as the convictions date from before the applicant lodged her Subclass 186 visa the information as to her not having criminal convictions was false and misleading at the time it was given.

16. At the hearing, the applicant stated that she has grown since the convictions and she did not believe she had to declare them as they are spent convictions in the UK. She did inform her representatives that she has Australian convictions.

17. As noted above, the applicant in her Subclass 186 visa application answered ‘No’ to the question: ‘Has any applicant ever been convicted of an offence in any country (including any conviction which is now removed from official records?’ This information was false and misleading at the time it was provided as the UK Police Certificate provided after the applicant’s Subclass 186 visa application lodged on 6 May 2019 indicated that the applicant had convictions for 3 offences from before the applicant lodged her Subclass 186 visa application, December 2006 to January 2012. The applicant claimed that she believed that the UK and Australian requirements for declaring convictions and offences are different and that she did not believe that the offences recorded in the UK Police Certificate were offences as she was ‘not convicted per say’. The Tribunal does not accept this claim, the applicant’s convictions were for offences included a conviction for failing to provide a specimen for analysis (driving or attempting to drive) and driving a motor vehicle with excess alcohol. The Tribunal accepts that the convictions were a long time ago, but the first 2 convictions involved the applicant attending a magistrates’ court and were not dealt with by on-the-spot fines or penalty notices.

18. For these reasons, the Tribunal is satisfied that the applicant was aware of her convictions for offences and purposively provided a false and misleading answer to the character declaration in the Subclass 186 visa application which is the visa application currently under review.

19. On all of the above, the Tribunal is satisfied that the applicant in her Subclass 186 visa application has given to the Department information that is false and misleading in a material particular in relation to her criminal convictions in the UK and the Tribunal finds accordingly.

20. Therefore, the applicant does not meet PIC 4020(1).

21. In relation to the applicant’s convictions in Australia, the applicant provided to the Tribunal a statement in relation to the circumstances leading to her representatives not stating in her Subclass 186 visa application that she had convictions in Australia. The applicant stated that she was sent a client questionnaire on 26 February 2019 which she completed including declaring her Australian drink driving charges and returned the completed form to her representative on 10 March 2019. The applicant provided post hearing some documentary evidence supporting her claim, however, in light of the Tribunal’s findings made above in relation to the applicant’s convictions in the UK, the Tribunal will not consider further whether the applicant provided false and misleading information to the Department in relation to her Australian convictions.

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

1. 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.

2. 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.

3. The case presented for the applicant relies upon submissions and evidence set out below and that there are grounds for the Tribunal to waive the requirements of PIC 4020(1) and (2) on the basis there are compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen, or an Australian permanent resident.

4. The Tribunal notes that for the purposes of the application of the regulation, a corporation is not an Australian citizen. The emphasis or focus of the waiver provisions is on the interests of Australia, or the interests of Australian citizens or Australian permanent residents, triggered by compelling circumstances or compelling and compassionate circumstances.

5. In order to engage with the question of waiver, the Tribunal must embark on a 2-step enquiry, firstly to consider whether there are compelling circumstances or compassionate or compelling circumstances as required in PIC 4020(4)(a) or (b); and secondly, whether to then exercise discretion to waive the requirements in PIC 4020(1) and (2), having regard to all the relevant facts and circumstances arising.

BBC pre hearing evidence and submission

1. The first submission referred to the applicant being employed for the past 4 years by BBC in Newtown, Sydney in the position of Restaurant Manager. It was submitted that the applicant is the heart of the team and is acknowledged as being responsible for BBC’s success and reputation with patrons. The applicant’s expertise and persona are highly valued by BBC and is the reason she has a leadership role, and is relied upon to induct and train staff. It was submitted that the Australian business would be adversely affected if the applicant was not in her role and replacing her would be difficult and expensive.

1. Ms Isabella Sampson in a reference dated 8 August 2019 provided to the Department, stated that she interviewed the applicant for the position of Restaurant Manager at BBC and found her to be positive and dedicated with an ‘all in’ attitude. She committed herself to her work, new ideas, company policies and strove to create a successful and profitable business. Ms Sampson stated that the applicant was trustworthy and an excellent leader and example to staff.

2. Provided to the Department was a reference from Mr Angus Bathurst-Warren, Chief Operating Officer, BBC dated 21 August 2019 in which he stated that the applicant has worked for BBC since February/March 2017 and he has been her direct manager. Mr Bathurst-Warren stated that the applicant has an incredible work ethic, pleasant demeanour with customers and colleagues. She is also efficient, detail-oriented and extremely competent. The applicant lobbies the current CEO to establish a special fund to help feed the homeless who gather outside BBC. Only staff of the highest and most trustworthy standard are asked to join opening teams and the applicant was part of the team opening the Newcastle restaurant. She attended the charity event Surf Aid with him in Adelaide and is involved in hosting the McGrath Foundation Breast Cancer Luncheon at the Cronulla venue. The applicant also is a contributing member of the working group, ‘Culture Club’ which is made up of 6 of the 18 managers of the company and proposes ideas and initiatives to make life easier and more enjoyable for BBC employees.

3. Provided to the Department was a reference dated 7 May 2018 from Ms Claire Cottreau, Marketing Manager, BBC. Ms Cottreau states that she has worked closely with the applicant and found her to be trustworthy, honest and very hard working. BBC often receive complimentary reviews from customers of the Newtown restaurant specifically directed at the ‘fantastic and friendly’ service provided by the applicant. The applicant trains all new staff in a patient and calm manner.

4. Provided to the Department was a reference dated 8 July 2019 from Mr Ben Stephens, Restaurant Manager at BBC in which he states that the applicant is punctual, organised and motived and excellent at problem solving. He also states that she is a natural lead, inspiring and a positive influence.

   BBC post hearing evidence and submission

5. On 7 March 2022, the Tribunal wrote to the HR Division of BBC seeking information on the applicant’s employment status and that, if the applicant is no longer working for BBC, whether she resigned or was asked to leave due to COVID. The Tribunal also enquired if the applicant had remained in touch with BBC and kept them informed of progress with regard to her visa refusal. Further, the Tribunal inquired whether there is still the position of Restaurant Manager available to the applicant if she was granted the visa.

6. On 7 March 2022, Mr Angus Bathurst-Warren, BBC, Chief Operating Office responded to the Tribunal’s enquiries stating that the applicant is no longer employed by BBC and that they had notified the Department. Further, the applicant had not made contact with himself or anyone else at BBC since her employment ceased. Mr Bathurst-Warren also stated that there is no position for the applicant regardless of the Tribunal outcome. He also stated that any references provided to the Tribunal on his behalf are no longer a true representation.

7. On 8 March 2022, the Tribunal wrote to the applicant setting out the above information and stating that the information is relevant to the review because if the Tribunal finds that the applicant cannot meet the requirements of PIC 4020(1), the Tribunal will consider whether there are compelling circumstances affecting the interests of Australia, or compelling or compassionate circumstances affecting the interest of an Australian citizen, Australian permanent residents, or an eligible New Zealand citizen that justify the granting of the visa. The Tribunal then stated that on the information the Tribunal may find that, even if there are compelling circumstances affecting the interests of Australia, or compelling or compassionate circumstances affecting the interests of an Australian citizen, Australian permanent residents, or an eligible New Zealand citizen, the applicant’s circumstances do not justify the grant of a visa as the main purpose of visa is to fill a temporary skill shortage in the Australian labour market but the applicant no longer works for the nominating business, the nominating business has confirmed the nominated position no longer exists and, therefore, the applicant cannot meet relevant criteria for the grant of a the visa. The Tribunal concluded that if the Tribunal makes this finding, then it may not waive the requirements of PIC 4020(1) and the delegate’s decision would be confirmed.

8. The subclass of visa referred to in the Tribunal’s letter of 8 March 2022 was incorrect and this reference was subsequently corrected in the Tribunal’s letter of 30 March 2022.

9. On 22 March 2022, the applicant responded to the Tribunal’s letter of 7 March 2022 by stating that she accepted the written notification from the Tribunal that the position with BBC was no longer available. The applicant further stated that since receiving the Tribunal’s letter she has been offered a position with Kalt Motorcycling Australia WA (Kalt) and that this position was offered to her due to her outstanding commitment to volunteering with Kalt and to the significant contributions that the applicant had made to the business which is a not-for-profit association incorporated for the purpose of health promotion in Australia. Provided with the letter were an offer of employment dated 8 March 2022, a full-time employment contract between Kalt and the applicant dated 22 March and a position description. The applicant also provided another copy of the statement of Mr RM which is referred to below. The applicant also referred to a very unfortunate incident after which she was hospitalised, and the perpetrator charged and the matter is before the magistrates’ court on 18 July 2022.

10. The applicant also stated in her letter of 7 March 2022 that Ms SB is currently in a Perth Clinic and that she will be on Ms SB’s recovery team and that Ms SB’s treating psychologist supports the applicant being a recovery coach/support person.

11. The applicant requested ministerial intervention on the grounds that there are strong compelling and compassionate circumstances that if not taken into account would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen and family unit, as well as, to an Australian business.

12. On 30 March 2022, the Tribunal re-sent its letter of 8 March 2022 as the incorrect subclass of visa was referred to in the letter. A further letter was sent on 14 April 2022 to better explain the relevance of the adverse information contained in both the letter of 30 March 2022 and the letter of 14 April 2022, and to make it clear that there was a further ground on which the Tribunal may affirm the delegate’s decision.

13. On 14 April 2022, the Tribunal wrote to the applicant setting out the information provided by Mr Angus Bathurst-Warren, BBC, Chief Operating Office on 7 March 2022 and enclosing a copy of Mr Bathurst-Warren’s email. The letter also stated that the information is relevant to the review because it is a requirement for the grant of a Subclass 186 visa that the position to which the application is related is still available and that as the applicant’s nominating business has confirmed the position of Restaurant Manager is no longer available to the applicant, the applicant can no longer meet the requirements of a Subclass 186 visa, in particular reg.186.223(4). The Tribunal also advised the applicant that this is a further and separate requirement from PIC 4020 on which the Tribunal may affirm the delegate’s decision.

14. The Tribunal then went on to state in the letter that if the Tribunal finds that the applicant cannot meet the requirements of PIC 4020(1), the Tribunal will consider whether there are compelling circumstances affecting the interests of Australia, or compelling or compassionate circumstances affecting the interests of an Australian citizen, Australian permanent residents, or an eligible New Zealand citizen that justify the granting of the visa. The Tribunal then stated that on the information the Tribunal may find that, even if there are compelling circumstances affecting the interests of Australia, or compelling or compassionate circumstances affecting the interest of an Australian citizen, Australian permanent residents, or an eligible New Zealand citizen, the applicant’s circumstances do not justify the grant of a Subclass 186 visa as the main purpose of a Subclass 182 visa is to be a permanent visa for skilled workers who fill a skill shortage in the Australian labour market but the applicant no longer works for the nominating business, the nominating business has confirmed the nominated position no longer exists and, therefore, the applicant cannot meet relevant criteria for the grant of a Subclass 186 visa in particular, reg.186.223(4). The Tribunal concluded that if the Tribunal makes this finding, then it may not waive the requirements of PIC 4020(1) and the delegate’s decision would be affirmed.

15. The applicant did not respond to either the Tribunal’s letter of 30 March 2022 or its letter of 14 April 2022.

Evidence and submission as to volunteer work

1. The first submission submitted that the applicant has an innate passion for charity, contributing to the community and dedicating time as a volunteer raising money for causes. The submission referred to her support of the Newtown Neighbourhood Centre (the Centre) and work on McGrath Foundation Breast Cancer Luncheons. It is submitted that the applicant is an invaluable member of the Australian community.

2. The applicant in her first statutory declaration stated that she volunteered for multiple NGOs across Asia and spearheaded campaigns for multiple causes such as breast cancer awareness. She partners closely with the Centre and DJs for free for a multitude of causes. A number of photographs of the applicant volunteering overseas and working on charity events were submitted.

   The Centre

3. Provided to the Department was a reference from Ms Helen Hwang, Community Strengthening Coordinator at the Centre dated 10 July 2019 in which Ms Hwang stated the applicant supports the local community and the Centre by working closely with the Centre on fundraising and charity events. The applicant supports new ides on how to better use the area outside the Centre and BBC as it has been troublesome including working closely with the local police. The applicant’s help with the yearly sleep out fundraiser, weekly markets outside the Centre and the yearly Newtown festival. The applicant also raised money from an all-day music event. Provided to the Tribunal by the applicant was further information as to what the Centre does and that she often helps out at their events, supplies food to the homeless and is of service when needed.

   Canned Fruit

4. Provided to the Department was a reference from Ms Alexandra Dugan dated 14 August 2019 in which she stated that she met the applicant when she asked her to perform at the renowned LGBTQIA+ weekly event, ‘Canned Fruit’ and that the applicant since then regularly DJs at their events aimed at promoting inclusion and diversity in Sydney’s inner west. She has also performed at large parties to raise monies for Minus18, an LGBTQIA+ youth charity. Subsequently the applicant provided additional information about her LGBTQIA+ DJ volunteering explaining that these events including ‘Canned Fruit’ are aimed at providing a safe space to socialise and express yourself freely.

5. Provided to the Department was a reference from the applicant’s friend, Ms Anna Sheldon dated 10 July 2019 in which she stated that she has known the applicant for 3 years and referring to the applicant DJing at various events and causes and that she is the one who gives advice and cares for her social group. Ms Sheldon also stated that the applicant is serous about her career and that she is across the social content she promotes and is part of the culture committee and organises charity events which Ms Sheldon has attended.

   Gunawirra House

6. Information was provided to the Tribunal about the applicant’s volunteer work for Gunawirra House and the work done by Gunawirra in particularly the Five Big Ideas program developed for the organisation’s preschools. The applicant stated that in July 2020 she helped a team from Gunawirra House prepare packs and care packs for pre-schoolers to learn about personal hygiene, basic health care and simple nutrition. The applicant had to ensure the packs were age appropriate and had the required items.

   Govinda Valley Hare Krishna Community

7. The applicant provided to the Tribunal a statement and information about her volunteer work at Govinda Valley Hare Krishna Community in October 2020 and starting in December. She worked in the kitchen preparing food for the homeless and also helping on the property where the community live including in the garden and maintenance.

   JewishCare

8. The applicant provided to the Tribunal a statement about her volunteering for JewishCare and information as to the services JewishCare provides. The applicant stated that she volunteered in June 2020 to take part in their Big Brothers Big Sisters program and has through friendship, trust and support provided a positive role model. There are emails indicating the applicant attended training in July 2020.

   Warlukurlangu Artists

9. The applicant provided emails as to the applicant volunteering with Warlukurlangu Artists, including a statement that she is looking forward to staying for a few months.

   Kalt Motorcycling Care Farm (Kalt Farm/the Farm)

10. The applicant stated in her recent volunteer work statement that she began to work in the volunteer position of Program Design & Facilitator on 15 October 2021. Provided to the Tribunal was a Volunteer Agreement between Kalt Motorcycling and the applicant together with a Confidentiality Agreement both dated 15 October 2021. The applicant provided a list of events she either helped with or creative art workshops she ran. The workshops included using natural elements such as leaves and plants, using pallets to create structures for vegetable gardens, up cycling furniture and painting.

11. Provided to the Tribunal was a statement from Mr Mark Gill, Founding Member & Director of Kalt Motorcycling dated 17 February 2022. Mr Gill stated that if the applicant was not granted a visa then Australia would miss out on a significant benefit as the applicant could contribute to business, economic, cultural or other development, as well as that decision causing harm to an Australian citizen or permanent resident. Mr Gill stated that Kalt Motorcycling is a health promotion association whose whole health design interventions aim to enhance patients’ physical, sensory and psychological comfort. The statement then describes the importance of mental health facilities and that they also are community institutions that need to be places of healing where people come first. Mr Gill stated that the spaces Kalt has designed in collaboration with the applicant are aimed at reducing anxiety and promote independence for participants. Mr Gill stated that they emphasised the importance of connecting with nature during treatment and recovery and that a holistic view of the healing process should include biophilic design.

12. Mr Gill also stated that the applicant is an asset to Australia as she and Ms SB have based the Kalt Care Farm and Work Development Program on the 3 main determinants of mental health: participation in society, valuing diversity and creating safe and cohesive communities. The programs designed and facilitated by Ms SB and the applicant integrate indoor and outdoor collection inspired creative activities which combine nature, art and wellbeing. The daily program on the Farm was set out and Mr Gill stated that meals are prepared by experienced chefs and nutritionists.

13. Mr Gill also spoke about the importance of volunteering and that evaluations of therapeutic farms show promising health and wellbeing outcomes. Mr Gill sated that the Farm incorporates best practice international learnings to improve care and recovery of individuals experiencing substance abuse and complex mental health challenges. Mr Gill explains in detail the options available for living and working on the Farm and how participants progress to recovery. Further, staff are supported by the vision of the Kalt Farm that their work is part of a larger effort to break the cycle of abuse and neglect and through training such as trauma training. Mr Gill referred to the applicant having taken a significant amount of training in the field.

14. Mr Gill referred to the applicant supporting the innovative Australian health promotion which is less about preventing disease and more about a person managing life’s situations to reach their potential. Mr Gill went into considerable detail about how this approach is used particularly for those who may abuse substances. He then states that the Farm was formed to address the problem of drug abuse in the community focusing on recidivism and the effects of drug use on the user’s family. Mr Gill stated that the applicant is an asset to the advancement of holistic health care in Australia and that any research and integration of best practice community gardens at the Farm has, with the applicant’s other volunteer experience, expanded the breadth of benefits and service that the garden and nature delivers to the entire community. He also stated that the applicant was instrumental in the design and facilitation of the education and engagement programs. The Farm provides a healing, positive environment for rehabilitation through hands-on work experience and vocational training and Mr Gill stated that it is a credit to the drive and tenacity of the applicant and Ms SB. Ms SB’s name has been shortened due to the nature of her medical conditions and her references to her youngest son who is 11 years of age which are set out below.

15. Mr Gill also stated that the Farm has been a lifelong vision of Ms SB who has life experience of parental addiction. Ms SB has supported substance abusers in the community successfully and although she requires a team with further skills in hospitality management, creative design and art, her own experiences, drive and commitment have brought the Farm to life. The applicant has supported Ms SB and used her hospitality, promotion and art and design skills to work with vulnerable people and is able to drive the successful operation of the Farm including managing accommodation, food, programs and more.

16. The applicant also stated in her recent volunteer work statement that she provided support to a resident at the Farm, Mr RM who was participating in the rehabilitation program. Mr RM provided a statement dated 18 February 2022 in which he explained how important the applicant and the Farm have been to his rehabilitation and cycle of imprisonment and how she has helped him face his substance abuse and mental illness.

    The applicant’s support for Ms SB

17. The applicant provided a detailed general statement as to the support required by Ms SB and what support she provides Ms SB as a volunteer in recovery support, since October 2021. Further detail was provided by the applicant in her statement on her current volunteer work (the current volunteer work statement).

18. Also provided were medical reports in relation to Ms SB from her clinical psychologist dated 8 December 2020 who she consults once a month; a report from a consultant psychiatrist dated 10 August 2020 in relation to her claim against Comcare; and from an occupational therapist dated 18 May 2021.

19. The applicant in her current volunteer work statement stated that she met Ms SB in the beginning of October 2021 after being introduced by a fellow musician who was helping out at Ms SB’s property and working on a music program. The applicant also stated that she had heard of Ms SB’s organisation, The Kalt Farm and the work Ms SB did with a WA ‘football legend’ who she helped walk away from drugs. The applicant also stated that she was excited to volunteer and get stuck into the amazing projects Ms SB was working on. The applicant further stated that Ms SB has asked her to volunteer permanently to support her and her son and the applicant visits Ms SB 4 times a week and more when she can.

1. Ms SB provided an undated statement in which she stated that she has disabilities including psychosocial issues, agoraphobia, autism, and narcolepsy as well as PTSD, ADHD, major depressive disorder, sleep apnoea, REM sleep parasomnia and a heart murmur. Ms SB stated that she does not have an ongoing relationship with her 4 siblings, and has 4 children from 3 relationships. The effect of her conditions is that she is hypervigilant, and suffers from panic attacks and anxiety and her PTSD has contributed to her developing agoraphobia so she is isolated at home. Ms SB stated that she needs assistance driving her youngest son to school. As certain noises trigger her, she avoids going to the supermarket and orders Uber eats and her autism means she cannot cope with change and can be abrupt and aggressive.

2. Ms SB further stated that her long-term physical, mental, intellectual and sensory impairments hinder her full and effective participation in society on an equal basis with others and that the applicant supports her in her right to participate in society as an equal citizen. Further, Ms SB met the applicant at a time when she had lodged a review of her NDIS funding which ran out before the review was completed. Ms SB stated that she as an Australian citizen, is at real risk of significant psychological harm if the applicant is unsuccessful as the applicant has a significant impact on her health and wellbeing. In particular the applicant has helped Ms SB increase her daily independent living skills by identifying triggers and planning how to change or avoid them.

3. Ms SB stated that the applicant has been instrumental in supporting her but also helped with a program Ms SB developed to help other vulnerable Australians. The program delivers health promotion and community development projects for people with disabilities or have been through the justice system. Ms SB also stated that she would not be here today if it were not for the applicant due to her patterns of self-harm and other issues as the applicant has created a sense of safety and allowed her to be a parent to her youngest son. Ms SB stated that if the applicant leaves then she will not cope with the adjustment and her son will miss out on schooling due to her inability to function. The applicant helps Ms SB with coping and problem-solving strategies and to new strategies to counteract prior harm and promoting effective communication and better choices. Ms SB also stated that her son has had many fractured relationships and loss because of her disabilities and the applicant has helped him develop secure attachments and develop social skills which he practises with her. Ms SB stated that significant gains made by her and her son would be lost, and emotional distress would occur if the applicant did not remain in Australia.

4. The applicant in her current volunteer work statement stated that she assisted Ms SB with: social interaction; self-management; money management; medication management; attending appointments; housekeeping; learning; communication; and mobility. The applicant has introduced her to a plant-based diet and created a vegetable patch for her to grow her own vegetables. Further, being outside and growing and caring for the vegetable patch has helped the applicant’s mental health.

5. At the hearing the applicant stated that she ceased to work for the nominating business due to COVID-19 in November 2020. The Tribunal explained that if the PIC 4020 requirements are waived and she is granted her Subclass 186 visa then she would be expected to work for the nominating business and if she did not work for the nominating business then her visa may be cancelled. The applicant stated that she is planning to work for the nominating business as she is planning to return to Sydney, but she has been taking time to volunteer due to COVID. The applicant does not have a set date to return to work, so she is continuing her volunteering at the moment. The applicant further stated that there was no point in returning to work until a decision has been made. The Tribunal asked about Ms SB’s support if the applicant returns to Sydney and the applicant stated that Ms SB will return to Sydney, as she has family in Sydney including her sister.

   Evidence at hearing of support for Ms SB

6. At the hearing the applicant stated that she met Ms SB at the beginning of October 2021 through a friend, a musician who was doing some work on the Farm using music. The applicant had heard of Ms SB as she found an article about the work Ms SB was doing with drug and alcohol and mental health and how she helped a football star get off drugs, so she wanted to volunteer to do this work. When she met Ms SB she noticed she has anxiety and trouble leaving the house. She noticed Ms SB’s issues straight away. Ms SB and the applicant got close straight away and she liked the holistic side of the Farm and they got on. The applicant realised Ms SB needed help so she started to do things and a few weeks later Ms SB asked if she could be her support person and the applicant was happy to help her and her projects to help people with mental health issues and trauma.

7. At the hearing the applicant stated that Ms SB does not have an NDIS plan but she does not believe that Ms SB has applied for a review as she had told her she will in a few days. The applicant confirmed that by the end of October she was assisting with Ms SB’s support. The applicant also assisted with programs through the Motorcycle Club and what Ms SB wanted to start but had been disorganised. The applicant started at Kalt putting together and running her workshops and it was after that she discussed with Ms SB her ideas of creating a safe, holistic space for people who were rehabilitating and where they could learn different techniques such as yoga, art, mediation, mindfulness, walks in nature, understanding permaculture and sustainability, equine therapy. The applicant explained her background in art and sustainability and helped Ms SB expand her ideas and putting it together, including the rosters for the workshops and the smooth running of it all.

8. The Tribunal asked what will happen to the programs if she returns to Sydney and the applicant stated that there are other people working on the Farm who can run the programs and they hoped to do a similar project in Sydney. The Tribunal asked how she would run the project and work full time and the applicant stated that Ms SB will work at it full time, with her sister’s help, and they will also have volunteers. The applicant stated that they have 15 volunteers in Sydney who they have reached out to them from October 2021 and her sister has connections. The Tribunal asked how the applicant would provide the support Ms SB needs and the applicant stated that she will do it side by side.

9. At the hearing the applicant stated that her training modules were 2 to 4 hours long. The Tribunal asked about her qualification to be a recovery support person and the applicant stated that she has lived with it, dealt with it and learnt from it and she has the experience to provide the support. The Tribunal referred to the move to Sydney and that by doing so Ms SB would be moving from medical support and the Farm and the applicant stated that they are prepared for it.

10. At the hearing Ms SB stated that she was invalided out of Centrelink in 2010 and prior to that she studied law including post graduate studies in migration law and worked with refugees. Her childhood was traumatic and if she could change the life of a child and family she would. Ms SB has used different therapies including equine therapy which were not in a clinical environment. In a natural environment she can build trust more effectively. She has a lot of ideas including using her horses, but she lost her entire property in 2020 which meant she was used to moving and creating new environments.

11. Ms SB stated at the hearing that Comcare want a trial of medication so she could return to work and she completed a psychiatric assessment. In June 2021 she was seeing a psychologist as she was struggling with her environment and was home bound but did telehealth consultations with her psychologists. She had help on the Farm who were looking after the Farm and had issues with males being around her. She met the applicant through a friend who told Ms SB that the applicant does artwork and working with wood and that this may be good for Ms SB’s youngest son. When she met the applicant, she approached Ms SB on a creative level, speaking about the environment. Ms SB was not functioning well, and the applicant recognised it. The applicant used different ways to connect with Ms SB. The application can support Ms SB to regulate her mood but when she is stressed or hypervigilant, she cannot support herself. The applicant has supported Ms SB so they have together put therapeutic plans in place so she can self-manage. The applicant helps her to make appointments, get to the appointments, by supporting her to do it herself and the applicant does this in a creative way.

12. At the hearing Ms SB spoke about the Farm being a holistic place for the individual but having community impact by healing fractured families. The applicant put this together and she uses her hospitality skills and talent in art and furniture making. The applicant was honest about her mental health and obtained training and will complete a Cert IV but said learnt experience is important when you work as a recovery coach, people like Ms SB can relate to the applicant. For example, the applicant when helping MS SB to attend her psychologist appointment she enables her but does not do things for her. The psychologist encouraged the applicant’s support.

13. At the hearing Ms SB stated she is not close to her Mum and Dad and she only has her son Luke. She does have a sister who she has always been close to and her sister wants her to move to Sydney. He sister told Ms SB that even though she is working full time she can support Ms SB and she wants to do some of the things Ms SB has done in WA in NSW. Ms SB stated that she discussed coming to Sydney with her sister including leaving some of her horses in WA and leaving people on the Farm but her sister would have to get support to establish something similar in NSW. Ms SB asked her sister to find 5 acres of land to create a similar organisation. The business side is set up as they have lawyers and accountants. She would turn a house into a home and set up the organisation. Then Ms SB started to consider what would happen if the applicant had to move to Sydney, she has wanted to move to Sydney but was prevented by her mental health and that her son was in primary school but as he is in his last year there are good schools he can attend in Sydney. Also, people have contacted her about offering her programs in Sydney.

14. The Tribunal referred to Ms SB being aware that if the applicant was granted her visa then she would have to work in New South Wales and Ms SB stated that it would be a blessing in disguise as she and her sister had considered Ms SB moving to Sydney for a number of years. They had a close relationship before her sister moved to Sydney but her sister struggles to speak with her over the phone because of Ms SB’s mental health issues. Therefore, her sister is encouraging her to move to Sydney. She has to think about her horses which are great for therapy.

15. At the hearing the hearing the Tribunal referred to it taking a lot of work to establish a volunteer organisation similar to what she has, despite having lawyers and accountants, and if the applicant is granted the visa she will have to work full time and that working full time, setting up a volunteer organisation and assisting Ms SB would be demanding and asked Ms SB if she could do everything. Ms SB stated that there are lot of people who work full time and volunteer, and the applicant is supporting her to build Ms SB’s capacity. They have developed the programs and the policy and procedures are written, structural planning has been done, correct volunteers are being sourced and the applicant can volunteer outside her full-time job by supporting Ms SB in her capacity, developing programs and a weekly program to support Ms SB. Ms SB stated that she believes it is achievable.

16. At the hearing Ms SB stated that she receives 4 to 5 hours of support from the applicant which is a reduction from when the applicant started to support her as Ms SB is able to do more than before. The applicant has helped with Ms SB’s daily skills, nutrition, goal setting, thinking more clearly, sleep hygiene and her concerns around security. Ms SB stated that her dependence will not be for a long time, but she depends on the applicant now and into the near future. If the applicant’s visa is granted, Ms SB and her son are willing to move to Sydney and Ms SB has the financial capacity to move to Sydney. The applicant is willing to continue her support of Ms SB and her psychologist could continue her telehealth consultations. Ms SB confirmed that the determining factor for her moving to Sydney is the applicant being granted the visa. Part of her self-determination to move to Sydney is having the support of the applicant as she will provide the support needed for Ms SB to move. The applicant’s support has meant that Ms SB has a safe space and helps her make and attend her health appointments at this time and is critical for Ms SB to maintain her health and wellbeing.

17. Ms SB stated that her NDIS plan is being reviewed, she has provided information and she needs to follow it up as the agency is running behind schedule. The agency has required more information and the area coordinator is going through the plan. Ms SB is seeking money for a support worker but not for the same support as the applicant except that a support worker would take over the driving from the applicant. That is someone to help drive her son to school and doing shopping, taking Ms SB and her son to appointments and to her son’s sport. There was funding for respite.

18. At the hearing the Tribunal asked what support Ms SB wanted from the applicant from now on and Ms SB stated the applicant helps her with her sleep hygiene and when Ms SB gets hypervigilant and hyper aroused the applicant does things to divert her attention from anxiety about her sleep with her such as making pallet gardens, doing grounding things such as watering the garden, and also mindfulness through mediation and yoga. Music has assisted her but working with wood has become her favourite as it helps her to resolve her sleep issues as it slows done her heartbeat. Particularly in the afternoon, the applicant helped Ms SB realise that she was becoming anxious about sleep, so the applicant helped Ms SB in being creative and helped take Ms SB’s mind off when she has to go to bed to sleep by doing projects together such as working through each stage of what is to be done in a pallet garden.

19. At the hearing the other support Ms SB stated she would require, was assistance with her psychologist telehealth appointments and assisting her son to go to sport. Ms SB also stated that the applicant assists her with what her psychologist would like the applicant to do such as reassuring Ms SB about safety such as reminding Ms SB that she has lights around her home so she is safe and can sleep. That is not to enable her disability but empower her to change the pathways in her brain for safety. The applicant has also helped her reconnect with her so,n as her relationships with her family had fractured due to her PTSD, and now they can communicate and talk about things. Ms SB and her son have created a bond through being creative with painting. Her son also goes to a psychologist and her psychologist supports the assistance the applicant gives both Ms SB and her son. Ms SB also needs the applicant’s support in teaching her how to cook and helping her remember to turn off the stove. She is the backbone of Ms SB getting better.

20. As referred to above the applicant has claimed that Ms SB is in a Perth clinic and that she will be her recovery coach and support person.

21. For the following reasons, the Tribunal is not satisfied that the requirements should be waived.

22. Although the Tribunal is not bound by Departmental policy, it has had regard to the elements emphasised in policy in terms of the exercise of discretion. In particular, the policy guidelines in ‘Sch4/ 4020 - The Integrity PIC’ state the following in respect of compelling and compassionate circumstances:

    37 Compelling and/or compassionate circumstances…

    37.2 Compelling circumstances affecting the interests of Australia 4020(4)(a) …

    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 were the person 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.

23. It is Departmental policy that compelling circumstances affecting the interests of Australia would not include circumstances if the non-citizen merely claims that, if granted the visa, they would:

    ·     work and pay taxes in Australia or

    ·     pay fees to an education provider or

    ·     spend money in Australia.

    37.3 Compassionate or compelling circumstances affecting the interests of an Australian resident, permanent resident or eligible New Zealand citizen 4020(4)(b) …

    The circumstances for consideration must be of compassionate or compelling nature in the way they affect the Australian citizen, permanent resident, or eligible New Zealand citizen. Compassionate or compelling circumstances that affect the applicant are not relevant for consideration unless they also directly affect an Australian citizen, permanent resident or eligible New Zealand citizen. The wording of PIC 4020(4)(b) requires that either compassionate or compelling circumstances exist that affect the interests of an Australian citizen, permanent resident or eligible New Zealand citizen. To waive the requirements of any or all of PIC 4020(1) and/or (2), the applicant's claims must have a compelling or compassionate element particular to that individual case that are beyond those usually present in that visa caseload.

24. The Tribunal notes that according to the Macquarie Dictionary Online the term ‘compelling’ is defined to mean: ‘1. demanding attention or interest… 2. convincing: a compelling argument’. It defines ‘compassionate’ to mean: ‘1. having or showing compassion. 2. on the grounds of compassion: compassionate leave… 4. to have compassion for; pity’.

25. The Tribunal will first consider PIC 4020(4)(a) and whether there are compelling circumstances that affect the interests of Australia. The applicant is well regarded by Kalt for her volunteer work as a program designer & facilitator and recently has been employed as an accommodation & service manager. The Tribunal is satisfied that the applicant in a short period of time has made an important contribution to Kalt’s creative arts program and other events. However, the uniqueness of the rehabilitation programs that are provided by WMA and Kalt belong to these organisations themselves and the organisations would not be so affected that they would not be able to continue to contribute to the rehabilitation of the participants even if the arts program had to be suspended until another volunteer or paid professional was found or a new accommodation and services manager was recruited. This would be an inconvenience, but the Tribunal is not satisfied that it would prevent the organisations from eventually providing art programs or providing accommodation and other service, particularly, in the latter case, as the applicant only started in the position on 22 March 2022.

1. In relation to the applicant’s business nominator, BBC there is no longer a position available to the applicant so the applicant not being granted a visa will not impact on that Australian business.

2. The Tribunal accepts the extensive evidence of the applicant’s volunteer work although for some of the community organisations the applicant only volunteered for a short period of time. In relation to the community organisations excluding Kalt, the Tribunal recognises that for some community organisations such as the Centre and Canned Fruit the applicant has provided ongoing volunteer work but for other organisations the assistance has been for a short period of time and has not been ongoing. Further, in relation to all the community organisations excluding Kalt, the applicant has not provided any volunteer work for some time as she currently resides in Western Australia. Further, the applicant indicated at the hearing that she was willing to give up her volunteer work to return to Sydney to work for BBC in the nominated position.

3. In relation to all the community organisations, as stated in relation to Kalt above, it is the organisations themselves that provide the assistance to their respective communities or individuals who access their services. The applicant has made a contribution, but the applicant is only one volunteer amongst the whole organisation of the organisations she has volunteered for and the Tribunal is not satisfied that her volunteer work with the various organisations is compelling circumstances of such significance that the interests of Australia would be affected if the applicant were not granted the visa. Also, without the applicant’s contribution, the community organisations will continue to provide the support and services they provide to their communities and the individuals who access their services.

4. Further, the requirements are that the interests of Australia are affected not just those of one business. The Tribunal has considered policy and is not satisfied on the evidence that: Australia would miss out on trade or business opportunities; Australia’s relationship with a foreign government would be damaged; or that Australia would miss out on a significant benefit that would contribute to Australia’s business, economic, cultural and other development, if the applicant was not granted the visa.

5. For the above reasons the Tribunal is not satisfied that there are compelling circumstances that affect the interests of Australia.

6. The Tribunal will now consider PIC 4020(4)(b) and whether there are compassionate or compelling circumstances that affect the interests of an Australian citizen, Australian permanent resident or an eligible New Zealand citizen.

7. The Tribunal accepts that the circumstances of Ms SB, in light of her medical and mental health issues, are compassionate, however, the applicant and Ms SB have only known each other from October 2021. Ms SB stated that the applicant helps her to make appointments and distracts her when in the afternoon she starts to think about trying to get to sleep later, in creative ways. However, Ms SB particularly went on to state in relation to the applicant distracting her about sleep to take about projects in the garden that are distracting and creative, therefore, the Tribunal is not satisfied that Ms SB is saying that the applicant provides unique support, it is more MS SB stating that the applicant uses creativity as a way to distract Ms SB. Also, in relation to reminding Ms SB about the appointments, MS SB stated at the hearing that the NDIS funding would include support for taking her to appointments and to do shopping. Further, if the suggestion is that the applicant creative and unique way of supporting Ms SB then it is only assertion that is not supported by independent evidence.

8. Ms SB has access to resources to support her and assist her with those conditions including her psychologist who she consults monthly and has recently accessed a Perth clinic for treatment. Ms SB has had in the past NDIS funding and is in the process of a review to again have NDIS funding. Although the funding is under review, Ms SB gave no indication at the hearing that she is concerned that she will not receive NDIS funding. The Tribunal accepts that Ms SB is estranged from most of her close family, however, despite her sister being in Sydney she is still close with her sister to the point they have been discussing Ms SB moving to Sydney. The Tribunal accepts that Ms SB would like the applicant to assist her in moving to Sydney, but now that internal borders are open her sister is not prevented from coming to Perth to assist Ms SB in any move.

9. For the above reasons, that Ms SB has access to medical support and once the NDIS review is finalised, as it may already be, practical support through the NDIS and has family in Australia who can also provide her with support and as the applicant is no longer employed by her business nominator employer, BBC and more importantly there is no position for her irrespective of the outcome of this review, the Tribunal is not satisfied that Ms SB’s compassionate circumstances justify the grant to the applicant of the Subclass 186 visa.

10. The Tribunal also accepts that the applicant provides Ms SB assistance with her younger son and practical assistance such as driving the younger son to appointments, school and school sport. However, Ms SB at the hearing referred to her new NDIS funding, even though it was under review, having a component for a support worker to drive her son around w. The Tribunal accepts that the applicant may have a relationship with Ms SB’s younger son, but it has been for a relatively short period since October 2021, he is attending school and he will continue to live with his mother. Further, his mother can draw on the support of her sister in Sydney and Ms SB stated at the hearing that she can now take him out of school as he is in his last year of primary school and move to Sydney and there are good schools her son could attend in Sydney. Further, as set out above, that the applicant is no longer employed by her business nominator employer, BBC and more importantly there is no position for her irrespective of the outcome of this review. Therefore, in relation to Ms SB’s younger son, the Tribunal is not satisfied that there are compassionate or compelling circumstances that affect the interests of an Australian citizen, Australian permanent resident or an eligible New Zealand citizen which justify the granting of the Subclass 186 visa to the applicant.

11. Therefore, the requirements of PIC 4020(1) should not be waived.

12. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl 186.213.

Nominated position no longer available to the applicant

1. Clause 186.223(4) requires that the position is still available to the applicant. On 7 March 2022, Mr Angus Bathurst-Warren, BBC, Chief Operating Officer informed the Tribunal that the applicant is no longer employed by BBC and there is no position for the applicant regardless of the Tribunal outcome.

2. On the above the Tribunal is not satisfied that the position of Restaurant Manager is still available to the applicant and finds that the applicant does not satisfy reg.186.223(4).

Is this an appropriate case to refer to the Minister?

1. Under s 351 of the Act, the Minister may substitute for a decision of the Tribunal, a decision which is more favourable to an applicant, if the Minister thinks it is in the public interest to do so.

2. The Tribunal has no statutory obligation to consider whether matters should be referred to the Minister for the consideration of the possible exercise of his powers under s 351 of the Act, nor is there any statutory power to make a binding recommendation in this regard.  The power under s 351 of the Act may only be exercised by the Minister personally.  Further, the powers are non-compellable, in the sense that the Minister has no duty to consider whether to exercise the relevant power after the Tribunal has made its decision, regardless of whether he is requested to do so by the applicant, or any other person, or in any other circumstances.

3. The Minister has issued guidelines explaining the circumstances in which consideration may be given to exercising the public interest powers under s 351 of the Act.[1]  The guidelines indicate that the Minister will give possible consideration to exercising the public interest powers in cases which are referred by the Tribunal and which exhibit one or more unique or exceptional circumstances.  The circumstances which, according to the Minister’s Guidelines, may be unique or exceptional include, relevantly, where:

   §exceptional economic, scientific, cultural or other benefit would result from the review applicant being permitted to remain in Australia; and,

   §circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case.

   [1] >

   In addition to its consideration of the Minister’s Guidelines referred to above, the Tribunal has also had regard to cl 16.1–cl 16.5 of the Tribunal President’s Direction Conducting Migration and Refugee Reviews[2] as to whether this is an appropriate case to refer to the Minister. 

   [2] >

   The Tribunal is not satisfied that there are unique and exceptional circumstances in relation to this review and will not be referring this case to the Minister.

DECISION

1. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) visa.

Namoi Dougall
Member

ATTACHMENT

Migration Regulations 1994

Schedule 4

1. (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.

…