February 25, 2016: An international student Harjaspreet Singh had been refused a Skilled (Provisional) (Class VC) subclass 485 visa on 13 June 2012 because of a failure to satisfy cl 4020(1). Failure to satisfy cl 4020(1) simply means he had provided information with his application for the Visa which was found to be false. And he appealed to the MRT (as it was known then) which affirmed the decision on 7 August 2013 citing the requirement of cl 4020(2) which requires the applicant to not have supplied false information 3 years prior to lodging the particular application which is being considered.
He went from the Tribunal to Federal Circuit Court and then in September 2015 appealed to the Federal Court in Perth pleading with the court that there existed compelling and compassionate circumstances which would warrant the court’s intervention. What in fact he was relying on was a letter of sponsorship he had arranged while at the Tribunal stage and his complaint was that the Tribunal and then the Federal Circuit Court had failed to take into account the full circumstances of his case. His was arguing that he was an invaluable worker and his sponsor – who had failed to find a suitable employee, and thus Australia would suffer (financial) consequences if he was to be deported. And thus his case warranted waiver of the requirements of cl 4020(2).
The Tribunal had confirmed it had considered everything in detail and found that it was of the view not to grant the visa.
On 4 September 2014, the appellant filed an application for review of the Tribunal’s decision in the Federal Circuit Court. He lost the appeal.
On 25 September 2015, the appellant filed a notice of appeal in this Court. Again he complained that the Federal Circuit Court ignored relevant material relating to the compelling circumstances affecting the interests of an Australian citizen being the director of the sponsoring transport company.
He stated that his sponsoring company, a Pty Ltd company needs a manager to operate its transport business and it has not been able to source for a suitable person to fill in this role. They had offered him this role provided he is able to obtain a substantive visa, instead of his bridging visa.
He further argued the director of the company is an Australian citizen and his business “will have adverse effect if he does not employ a suitably qualified manager”.
“I believe that this gives rise to compelling circumstances that will affect the interests of an Australian citizen”, Harjaspreet argued.
Clearly his appeal now focused on the circumstances referred to in cl 4020(4)(b), namely, compassionate or compelling circumstances that affect the interests of an Australian citizen.
Rejecting this letter of sponsorship the judge said: “The evidence from the director of the trucking company refers to damage to the company which may result from not being able to employ Harjaspreet. But the company is not an Australian citizen. The evidence does not address disadvantage to the director personally. It was not established that he was a shareholder of the company or would suffer any detriment if the appellant were not employed.
Further, the Tribunal assessed any consequence to the trucking company itself as speculative.”
The court found those facts of their own did not establish compelling circumstances.
Those considering such letters of sponsorship, should note how the courts view such letters and how such letters – with all their decorated language – do not go far enough to prove what is expected of them. You have to show real not speculative losses, and those to a real person and not a company.
Harjaspreet was also ordered to pay costs of the lawyers for the immigration department. – K.Dev
His letter of employer sponsorship which the court thought did not establish his compelling circumstances or circumstances warranting a waiver of cl 4020 (1) and (2):
MRT CASE NO. ……………….
I, …………………, am the director of xxxxx xxxxxx Pty Ltd. I am an Australian citizen.
I am also a director of another transport company, yyyyy yyyyyyyy Pty Ltd which has been trading since 2011. I have built up the business of yyyyy and it now owns 14 trucks and has a substantial turnover. It employs 4 Australian citizens and 8 Australian Permanent Residents.
xxxxx started business about 4 months ago. It owns 2 trucks and I am in the process of trying to build up the business of xxxxx. However, I have been preoccupied and kept very busy by the operations of yyyyy. I have been looking for a dedicated manager who will be able to take over the day-to-day operations and management of xxxxx and built it up to a successful business. I have found it very difficult to source for an Australian person due to the long working hours and weekends involved in the work. I spoke with Harjaspreet Singh, whom I have known for a long time. He is a person who not only has the relevant Australian qualifications, but also possesses the right attributes including hard-work, reliability, good communication skills and dedication to the job. I have every confidence that he will be able to independently manage and grow the business of xxxxx. In a small business, the owner needs a person who not only possesses the right qualifications, but also has the trust of the owner in being able to manage the business. I need someone like Harjaspreet Singh to be able to grow the business of xxxxx. I have experience in the transport business and I am able to train Harjaspreet in the basic know-how so that he can effectively take over the business and operate it independently. I will be able to guide him along, but I need someone to handle the daily operations and make management decisions as the person on the spot. I cannot concentrate on both the businesses at the same time. I need a reliable manager to help grow the business of xxxxx.
I have been finding it difficult to look after the xxxxx business. I do not want to lose focus from the yyyyyy business and then concentrate on xxxxx. This will not be in the interests of either business. I have found that to operate the xxxxx business effectively and be able to expand it, I need Harjaspreet. Without his involvement in the management of xxxxx, I will be considering shutting down the xxxxx business and transferring the two trucks belonging to xxxxx over to the yyyyy business. This will be a real pity as I can see the xxxxx business growing into a viable business and employing at least 15 people. I have recently been asked to put on one more truck for one of our existing customers.
As stated earlier, xxxxx will have to be closed down if I do not have a manager with the right qualifications and attributes.
In view of what I have stated in this letter, I urge the Honorable Tribunal to take account of the consequences that will flow in the event I am not able to employ Harjaspreet as a transport manager in xxxxx. I look forward to a decision which leads to a permanent visa being granted to Harjaspreet Singh so that he can work for xxxxx and live in Australia and contribute to this great nation of ours. The more the business expands the more people will be employed, which I believe is a compelling reason to grant the visa. Please do not hesitate to contact me if you have any queries.