Xu (Migration)

[2021] AATA 1681

Xu (Migration) [2021] AATA 1681 (12 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Zhiyuan Xu
Miss Yiwen Li

CASE NUMBER:  1827617

HOME AFFAIRS REFERENCE(S):          BCC2018/989640

MEMBER:Denise Connolly

DATE:12 April 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled Regional Sponsored (Provisional) visas.

Statement made on 12 April 2021 at 12:42pm

CATCHWORDS

MIGRATION – Skilled Regional Sponsored (Provisional) (Class SP) – Subclass 489 Skilled – Regional (Provisional) – incorrect answers with the visa application – misleading information about employment duties – occupation of Restaurant Manager – managerial responsibilities – skills assessment based on incorrect work experience – decision under review affirmed   

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 489.211, 489.224; Schedule 4, Public Interest Criterion 4020; r 1.03

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 6 September 2018 to refuse to grant the applicants Skilled Regional Sponsored (Provisional) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 1 March 2018. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl.489.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate found the applicant did not meet Public Interest Criterion 4020.

3. The applicant appeared before the Tribunal by conference telephone on 7 April 2021 to give evidence and present arguments. The applicant gave his evidence from China. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicants were represented in relation to the review by their registered migration agent.  He also attended the hearing.

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

   CLAIMS AND EVIDENCE

   Background to review

6. The applicant provided to the Tribunal a copy of the delegate’s decision record which sets out the following. The applicant applied for the visa on 1 March 2018. When making the application he claimed to have been employed as a Restaurant Manager for LAQ Group Pty Ltd (T/A Di Mare). In his visa application he claimed to have been employed in the position from 21 January 2015 to the time of lodgement. He provided evidence in support of his application including the following:

   a.skills assessment from VETASSESS for the occupation Café or Restaurant Manager, dated 15 January 2018

   b.undated employment reference from the Director LAQ Group Pty Ltd, Ms Wang, stating the applicant was employed as a part-time Restaurant Manager for 20 hours per week from January 2015 to January 2016, and setting out his main duties and his rostered hours

   c.employment reference letter dated 19 December 2017 from the Director, LAQ Group, Ms Wang, stating the applicant was employed as the Restaurant Manager from 21 January 2015 to present, working 20 hours per week until 27 January 2016 and 38 hours per week thereafter on an annual salary of $54,002. It also set out his main duties.

   d.PAYG issued by LAQ Group for years ending 2015, 2016 and 2017

   e.Bank statements dated 12 February 2016 to December 2017 showing salary deposits from LAQ and Ms Yi Zeng, the daytime Restaurant Manager.

7. The delegate noted that the Department had conducted verification checks of the applicant’s employment claims in relation to a Subclass 457 visa application and an officer found concerns regarding those claims. The Department had recorded that during a site visit regarding his position held at LAQ Group, the officer found that the applicant was not undertaking the duties of a Restaurant Manager and that his duties were more aligned with a café worker. There is a comment that his Subclass 457 visa application was “cancelled” on 2 January 2018. The Tribunal clarified with the applicant at the hearing that this should have referred to a visa application refusal.

8. The delegate formed the view that the applicant had given misleading information about his employment as she was not satisfied that he was employed as a Restaurant Manager. She took into account all of the evidence provided but was not satisfied that evidence sufficiently explained concerns raised during the investigation undertaken in relation to the applicant’s duties. She formed the view the applicant’s duties were more aligned with a café worker. She was not satisfied he was performing the duties as claimed in the work reference dated “19 January 2017” (sic - the work reference was dated 19 December 2017).

9. The delegate also noted that the applicant had provided rosters and payslips, including a roster indicating the applicant worked from 7 November 2016 to 13 November 2016, and 14 November 2016 to 20 November 2016. She noted however that the applicant departed Australia on 8 November 2016 and did not return until 20 November 2016.

10. Having considered all of the applicant’s evidence, the delegate formed the view that the work reference contained false misleading information in a material particular. She was not satisfied the applicant met PIC 4020(1) and noted no claims were made with respect to the waiver provisions.

11. The applicant had provided a written response to an invitation to comment on the delegate’s concerns. In summary the applicant submitted that inaccurate information had been provided to the Department, raising concerns about the applicant’s employment. He noted there was a concern that he had been working less hours per shift than the daytime restaurant manager and none of the suppliers were opened at night or on the weekend when he worked. He also noted that there were concerns that his duties were lighter in terms of staff management during his shift. He indicated however that he worked from 5 PM to 10 PM every weekday and every second Saturday. Occasionally he worked for a full day. He also worked twice a week in the mornings. He claimed he worked 38 hours per week, equal to the daytime restaurant manager.

12. The applicant indicated that the restaurant did not have fixed suppliers, except for the liquor supplier, and that he would check stock before he finished his work and purchase vegetables, fish, milk, eggs, beverages, meat and other fresh stock before and after leaving the restaurant. The daytime manager ordered the liquor and pastries.

13. The applicant also indicated that he was driving when he received the call from the Department and he initially thought the call was from his bank. He was therefore not able to respond to every question clearly.

14. Regarding his duties, the applicant referred to the written employment reference provided by Ms Wang, Director, LAQ Group. It set out a range of duties including in summary updating a seasonal menu, overseeing stock levels and ordering supplies according to budget, recording financial transactions, managing cash and charge receipts at the end of each day then depositing them in a bank or safe place, managing customer relations and quality control, liaising with customers, employees, suppliers and licensing authorities, planning and organising special functions, contacting a travel agency to organise tour groups, recruiting and selecting new kitchen and service staff, introducing and training new staff who work at the front desk and in the kitchen, making sure the kitchen and dining areas are safe, clean and functional according to health standards, arranging equipment to be repaired and maintained in scheduling services, making improvements in the running of the business, and greeting and advising customers.

15. The applicant referred to a reference from the head cook, Mr Shin who indicated the applicant discussed the menu with Ms Zeng and Mr Shin via social media and text messages. He indicated he was also responsible for organising parties, functions and tour group dinners. He liaised with a travel agent. He dealt with any special requests as well as budgeting before he instructed the head cook and customer service staff. He collected feedback from customers and shared it with fellow staff. He indicated that the volume of customers at night is higher than the volume during lunchtime.

16. The applicant indicated that during Ms Zeng’s maternity leave he worked night shifts, when most functions were booked. Apart from night shifts he was also present at the restaurant during the morning and afternoon and would advise staff on customer service, food-handling safety and other training. He was not moved to the day shift; he continued to complete his night shifts as well as all the managerial tasks. He provided on-the-job training to staff working night shifts and communicated with Ms Zeng regarding their performance. When he worked on the morning shift, he managed a short meeting with staff to discuss things that needed attention.

    Prehearing submissions to the Tribunal

17. Prior to the hearing the applicant provided to the Tribunal the same information provided to the delegate. There are receipts recording the restaurant’s takings, rough sketches of meals, annotated menus, text exchanges about various food items, hand written bookings in a diary and rosters. The applicant also provided to the Tribunal the roster indicating that he was working in the restaurant during the period he was offshore.

18. The applicant also provided to the Tribunal another employment reference letter dated 9 August 2018 from Ms Wang indicating that the applicant had shown a high level of managerial ability and although he was the night shift manager he helped to organise the restaurant operations. She claimed they had worked closely together to ensure the restaurant ran smoothly while Ms Zeng was on maternity leave and contacted each other frequently to talk about staff supervision, budget management, safety guidelines and business promotion, among other key parts of the restaurant’s management. Ms Wang indicated that the applicant participated in the restaurant’s daytime operation while Ms Zeng was on leave. She indicated that during his nightshift he would purchase items from Coles and Woolworths on his way to work. She indicated she was impressed by his work ethic, customer service and burgeoning managerial skills.

19. The applicant provided to the Tribunal the statement from Mr Shin indicating the applicant worked the night shift at the restaurant, planned new menus with the previous head cook, gathered feedback from customers, checked stock levels and provided job-training to staff and new recruits. He planned new menus with Mr Shin and made decisions about pricing. He also ordered fresh meat, vegetables and other stock, managed preparation for functions and undertook the general management of the restaurant.

20. The applicant also provided a letter from Ms Zeng describing his duties, similar to those provided by Ms Wang and Mr Shin but including the provision of management advice to the daytime manager for “big service preparation”, as well as managing kitchen staff.

    Hearing on 7 April 2021

21. At the hearing the Tribunal discussed with the applicant the requirements of PIC 4020 and concerns raised by the evidence. The following is a summary of his oral evidence provided at the hearing.

22. The Tribunal clarified that it had formed the view the delegate’s reference to a work reference dated “19 January 2017” should in fact refer to the work reference from Ms Wang dated 19 December 2017. It explained that it was considering whether the information provided in that employment reference letter, including the duties described, is false or misleading in a material particular. It explained that it may form the view the work reference is a bogus document and/or that the information contained in it is false or misleading in a material particular. The Tribunal also explained that it may form the view the skills assessment he provided with the visa application is bogus because it was obtained on the basis of a false or misleading statement.

23. The applicant confirmed with the Tribunal that he made an application for a Subclass 457 visa but it was refused after the site visit referred to in the delegate’s decision record. He indicated that when he was interviewed by the Department he was shopping. Normally he would have been on the night shift but he was not there as he was shopping for the restaurant. He indicated he did the daily shopping for the restaurant, at Coles and Woolworths.

24. The Tribunal asked the applicant about the qualifications he had achieved in Australia. Initially he indicated that he had a restaurant management qualification but he clarified that he only had a skills assessment for that occupation. He confirmed that he had a Diploma of Financial Management, a Bachelor of Applied Finance and a Master of Accounting.

25. The Tribunal asked the applicant how he secured his employment at the restaurant given he did not have a relevant qualification in restaurant management. He indicated that he had been working for one or two years at Chinatown Café. The Tribunal noted that this experience was not mentioned in the skills assessment he provided. He indicated it was just a part-time job. However he claimed that he became the manager at Chinatown Café. He indicated he got the management position at Di Mare, relying on his financial management and accounting degree. The Tribunal asked why those qualifications would be relevant to restaurant management. He indicated that he had to control expenses.

26. The Tribunal asked the applicant about the Director’s (Ms Wang) duties at the restaurant. The applicant indicated that she was generally in charge of management but she did not go in every day. He indicated she controlled expenses and income and hired managers to manage the staff. He indicated she interviewed him. He indicated that she went into the restaurant during the day so he did not see her at night but sometimes he worked in the day and saw her then.

27. The Tribunal asked who drew up the roster. The applicant indicated he would talk to the night staff to see if they were available and he and Ms Zeng would draw up the roster every two weeks. The Tribunal noted that the rosters were generally the same for every week. It asked if the rosters he had provided to the Tribunal were reliable and he confirmed that they were. He then indicated that the rosters were drawn up every week, generally every Tuesday. The Tribunal noted that he appeared to have changed his evidence. The applicant indicated that, because they did not keep all the rosters, they were drawn up from memory and computer records after receiving the delegate’s letter. He indicated he could not remember everything, suggesting the rosters may not be reliable.

28. The Tribunal asked the applicant about Ms Zeng’s role in the business. He indicated it was the same as his but she worked in the day. The Tribunal asked the applicant to describe her duties in detail. He indicated she trained the daytime staff and check their performance. She managed the restaurant and checked whether stock supplies were short. She worked with the chef to change the menu. The Tribunal asked the applicant if she had any other duties. He indicated that she was in charge of receipts and ordering. She also arranged the roster with him.

29. The Tribunal asked why two people would need to work on such a simple roster, given their only appeared to be nine members of staff. The applicant indicated that she was responsible for daytime and he was responsible for night time.

30. The Tribunal noted that there were only about nine staff. It asked why such a small restaurant would need two restaurant managers. The applicant indicated they divided the work into two rosters, day and night.

31. The Tribunal asked the applicant if he served customers. The applicant initially indicated he did not do this; he only collected suggestions from customers to indicate what they needed to improve. The Tribunal asked the applicant if he ever served customers in the restaurant. He indicated he did not really understand customer service. However, when the restaurant was busy, he helped with orders. He then stated that he managed functions and assisted with the preparation. The Tribunal asked about the frequency of functions. He indicated that there were a few a week. It asked about the number of attendees. He indicated it could range from 4 to 8 people, or 15 to 20 people.

32. The Tribunal asked about the restaurant’s typical takings. He indicated that most income came from credit cards and room service; about $1000 a day. The Tribunal indicated that this would suggest the restaurant was not very busy. He indicated that the business was okay but it was mostly room service. He then estimated that room service was about 50% of the business’s takings.

33. The Tribunal asked the applicant if the restaurant dealt in cash. He indicated that there was not much cash because all room service orders were made by electronic transfer managed by the hotel and he did not deal with those funds. The Tribunal noted that the employment reference indicated he managed the cash. He indicated the cash was counted about once a week and stored in a safe. He thought it was probably only about $200 a day. The Tribunal asked if Ms Zeng counted cash doing the day. He indicated the cash was counted weekly. The Tribunal noted that this evidence was different to Ms Wang’s description of his handling of cash.

34. The Tribunal asked the applicant to describe all of his duties. The applicant indicated he trained new staff, probably about four or five new staff members. He indicated that staff stayed for only a short time so there was a regular turnover of staff. The Tribunal noted that in the rosters he had provided which spanned nearly a year that the staffing appeared to be very stable. He had no comment.

35. The applicant indicated he prepared the roster with Ms Zeng. He also checked the stock and went shopping for the restaurant.

36. The Tribunal asked the applicant if he had any other duties. He indicated he managed functions. He also dealt with the marketing strategies. The Tribunal asked him to describe that responsibility. He indicated he liaised with a travel agency.

37. The Tribunal asked the applicant if there was anything he did as the restaurant manager. He indicated he was in charge of safety and hygiene and he controlled expenses. The Tribunal asked about his qualifications in managing safety and hygiene. He indicated he had previous experience from Chinatown Café and the hotel provided training. The Tribunal asked if he ever dealt with licensing authorities or safety inspectors from Council. He indicated this was not his responsibility; Ms Zeng was likely to have done this.

38. The Tribunal raised its concern with the applicant that he had provided a roster and payslips indicating that he had worked in November 2016 when in fact he was offshore. It explained that it may form the view this cast doubt on the reliability of his evidence and the Tribunal may be concerned it has been manufactured. The applicant indicated that during that time he was on leave but he went to China to order some materials for the restaurant. The Tribunal asked why he appeared on the restaurant’s roster during a period he was offshore. He indicated that he had just followed the previous roster.

39. The Tribunal asked the applicant when Ms Zeng was on maternity leave. He could not remember. The Tribunal asks how long her maternity leave lasted. He indicated he thought it was less than a month. He indicated that when the daytime shift was busy while she was on leave he did her day shifts as well as the night shifts.

1. The Tribunal noted that the applicant’s pay information, payslips and bank deposits, indicate that his pay never changed. It asked if he was paid for the extra hours he did while Ms Zeng was on leave. He indicated that he needed to do the shopping and did not work in the daytime; he just went in to have a look. The Tribunal indicated it may form the view of his oral evidence is inconsistent. The applicant indicated that during this time he just added one or two more daytime shifts. He could not remember if he was paid. He thought he was not paid. The Tribunal asked why he would not have been paid if you worked more hours. He indicated that he did not know because management dealt with this. The Tribunal noted he had indicated he was involved in the financial management of the restaurant. He could not explain why he did not know if he was paid overtime for more hours. However he then indicated that he received an annual fixed pay and it was not based on the number of hours he worked.

2. The Tribunal asked the applicant to describe the issues he discussed with the Director. He indicated that he talked to her about the running of the business, new ideas and whether the restaurant was busy.

3. The Tribunal noted the evidence that the applicant did the daily shopping at supermarkets for the restaurant. It indicated it may not be satisfied this role is reflective of the duties of a restaurant manager. The applicant indicated he did this because he was in charge of stock. Previously the restaurant used to supplier, but they did not use all the supplies, so they decided to buy their stock at the supermarket on a daily basis.

4. The Tribunal explained that, if it was not satisfied the applicant met PIC 4020(1), it needed to consider the waiver provisions. The applicant confirmed he was in China and wished to return to Australia but could not because of COVID-19. He had no evidence to give regarding the waiver provisions. The Tribunal asked the applicant if he had any further evidence to give before it closed the hearing. He confirmed he had no other evidence.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 489.211 for the grant of the visa. Broadly speaking, this requires that:

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

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

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

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

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

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

7. The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and the term ‘bogus document’ is defined in s 5(1) of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.

8. The requirement in PIC 4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant: PIC 4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.

9. While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42.

10. The applicant has provided to the Department and the Tribunal claims and evidence that he was the Restaurant Manager at Di Mare Restaurant, employed by LAQ Group in the period 21 January 2015 to the date of his visa application in March 2018. He provided an Employment Reference Letter indicating that he worked full-time as the Restaurant Manager from 28 January 2016. That letter sets out a range of duties, typical of a Restaurant Manager. He also provided to the Tribunal a letter dated 9 August 2018 from the Director of the business, Ms Wang. It sets out a range of duties and describes her relationship with the applicant while he undertook the role of Restaurant Manager. He provided various other statements supporting the claim he was the Restaurant Manager. However for the following reasons the Tribunal is not satisfied the applicant worked as the Restaurant Manager.

11. The Tribunal notes the delegate records in the decision record, provided to the Tribunal by the applicant, that the Department undertook an investigation including a site visit and the officers were not satisfied the applicant was undertaking the duties of a Restaurant Manager, but that his duties were more aligned with a café worker. This raises concerns about whether the applicant was in fact undertaking the duties of Restaurant Manager. It has taken into account his submission that he was on the phone when the Department called him, and this impacted on his capacity to answer questions, but it notes he told the Tribunal that he was shopping. The Tribunal gave the applicant an opportunity at his hearing to describe in detail his duties. It has formed the view his oral evidence regarding his duties was lacking in the detail provided in all of his written material. There were significant omissions with respect to those duties. There were also some inconsistencies in his own oral evidence.

12. The Tribunal has considered the rosters he provided claiming to have prepared those with Ms Zeng. However it notes his own evidence that they were produced after the delegate’s letter on the basis of memory and information from the computer. It notes his initial oral evidence that the rosters were produced fortnightly. However he then indicated that they were produced weekly. Having regard to those rosters, which indicate a reasonably stable staff make up, the Tribunal is not satisfied that two people needed to prepare rosters for the restaurant during the period the applicant was employed there. It is not satisfied the applicant prepared rosters as part of his duties while employed at the restaurant.

13. The Tribunal is also not satisfied that the applicant has adequately explained why he appears on the roster when he was offshore. It is concerned that this raises serious doubt about the reliability of his written material.

14. The Tribunal notes that Ms Wang indicated in the employment reference letter dated 19 December 2017 that the applicant was responsible for liaising with licensing authorities. However it notes that when it asked the applicant if he had any contact with the Council’s safety officers he indicated that that was not his responsibility; that was probably dealt with by Ms Zeng. He did not indicate he dealt with licensing authorities. The Tribunal is not satisfied the applicant dealt with licensing authorities as claimed by Ms Wang.

15. Having regard to his evidence the Tribunal is also not satisfied the applicant dealt with suppliers, as claimed by Ms Wang in the employment reference letter. Nor did the applicant indicate to the Tribunal that he had been responsible for recruiting and selecting kitchen staff as indicated in that letter. Ms Wang also indicated that the applicant managed the cash at the end of each day and then deposited it in the bank. This is inconsistent with the applicant’s oral evidence. She indicated that he was responsible for planning seasonal menus with head cook. He did not describe this duty in his oral evidence. Ms Wang also indicated that the applicant was responsible for arranging equipment to be repaired and maintaining and scheduling other services. These duties were not described by the applicant in his oral evidence. The Tribunal also notes that Ms Wang indicated she was impressed with the applicant’s customer service. However the applicant indicated to the Tribunal that he did not really understand customer service. Having considered the applicant’s oral evidence, the Tribunal is not satisfied the applicant undertook a number of the duties described in Ms Wang’s Employment Reference Letter dated 19 December 2017. The Tribunal is of the view there are significant differences in Ms Wang’s employment reference letter and the applicant’s oral evidence, casting serious doubt on the reliability of the claims made in that reference letter.

16. The Tribunal has taken into account all of the other evidence provided, including the bank statements, and the other letters of support from Ms Zeng and Mr Shin. However it notes that the applicant’s oral evidence is also inconsistent with information they provided with respect to his duties. For example Mr Shin indicated that the applicant recruited new staff and ordered fresh meat, vegetables and other stock. The applicant did not make these claims. Ms Zeng indicated that he planned seasonal menus and advised on suppliers’ purchasing. In relation to the purchase of supplies the applicant merely indicated he went shopping at Coles or Woolworths. The Tribunal is not satisfied supermarket shopping is reflective of the duties of a Restaurant Manager. Nor is it satisfied his oral evidence is consistent with the statements from Ms Zeng and Mr Shin.

17. The Tribunal has considered the rough sketches of various meals, the various text messages about food items, receipts for the restaurant’s takings and the annotated menus. It is not satisfied however that this evidence supports the claim that the applicant was employed as a Restaurant Manager. Nor is it satisfied this evidence overcomes the problems with his evidence, discussed above.

18. Having regard to all of the evidence provided by the applicant, the Tribunal accepts the applicant was employed by LAQ Group to work in Di Mare Restaurant. It accepts he did the shopping for the restaurant. However it is not satisfied the applicant was employed as the Restaurant Manager as claimed. It therefore finds that the Employment Reference Letter dated 19 December 2017, provided to the Department with the visa application, contains information that is false or misleading in a material particular as the applicant applied for a Points Based Skilled Migration visa and sought to rely on his employment as a Restaurant Manager from 1 January 2017 to claim points for a period totalling at least 12 months’ employment in the nominated skilled occupation, in order to meet cl.489.224.

19. The Tribunal has taken into account the applicant’s positive skills assessment dated 15 January 2018 for the nominated occupation, Café or Restaurant Manager. It notes however that the applicant relied on his claim to have been employed as the Restaurant Manager, LAQ Group in the period January 2017 to December 2017 in order to obtain that skills assessment and it is not satisfied he was a Restaurant Manager in that period.

20. Having regard to all of the applicant’s evidence the Tribunal finds the applicant claimed in his visa application that he was a Restaurant Manager in the period 1 January 2017 to the date of the visa application, 1 March 2018. It finds he provided an Employment Reference Letter dated 17 December 2017 from Ms Wang, Director, claiming he was employed as a Restaurant Manager from 21 January 2015, setting out numerous duties, typical of a Restaurant Manager, which the Tribunal is not satisfied the applicant undertook. The Tribunal has taken into account the other information provided, such as sketches of meals and annotated menus. However it is not satisfied those documents overcome the concerns raised by the inconsistencies and lack of detail in the applicant’s oral evidence about the duties he undertook, described in the Employment Reference Letter. Nor is it satisfied the rosters overcome its concerns, particularly given that they include a record that the applicant worked at the café while he was offshore. It has taken into account the screenshots of various lists of food items but it is not satisfied the applicant’s purchase of supplies from a supermarket is consistent with the duties of a Restaurant Manager.

21. Accordingly the Tribunal is not satisfied the applicant was employed as the Restaurant Manager as claimed. It finds that in providing to the Department the Employment Reference Letter dated 19 December 2017 the applicant has given, or caused to be given, to a delegate of the Minister, information that is false or misleading in a material particular in relation to the application for the visa. The Tribunal finds that the information was false misleading at the time it was given and it was relevant to a criterion to be considered when making the decision on the visa application, cl.489.224.

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

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

23. 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.

24. 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.

25. The Tribunal invited the applicant to make submissions on the waiver provisions. He indicated he had no relevant evidence to give.

26. Accordingly the Tribunal is not satisfied there are compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justify the granting of the visa.

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

28. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl 489.211.

    DECISION

29. The Tribunal affirms the decision not to grant the applicants Skilled Regional Sponsored (Provisional) visas.

    Denise Connolly
    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.

    …