1417537 (Migration)

[2015] AATA 3038

1417537 (Migration) [2015] AATA 3038 (2 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ian Peter Horsley
Mrs Jennifer Lyn Bond
Master Matthew Curtis Bond
Miss Sarah Caitlyn Horsley
Master Ethan John Horsley

MRT CASE NUMBER:  1417537

DIBP REFERENCE(S):  CLF2014/139672 CLF2014/44811 CLF2014/44813

TRIBUNAL MEMBER:  Glen Cranwell

DATE:2 July 2015

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicants Business Skills (Residence) (Class DF) visas.

Statement made on 02 July 2015 at 10:11am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 7 October 2014 to refuse to grant the applicants Business Skills (Residence) (Class DF) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 21 March 2014. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl.892.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The applicant appeared before the Tribunal on 19 June 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Christopher Graham, the applicant’s accountant.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.892.223 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: cl.4020(1); and

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

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

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

7. The requirements in cl.4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: cl.4020(4). However, this waiver does not apply to the identity requirements in cl.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?

8. The term ‘information that is false or misleading in a material particular’ is defined in cl.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 cl.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: Batra v MIAC [2013] FCA 274.

9. The requirement in cl.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: cl.4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.

10. 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.

11. The visa application was lodged on 21 March 2014.  The applicant listed Allanbee (101 Investments) Pty Ltd trading as Specialised Logistics Australia (Allanbee) as his main business.

12. The applicant provided the Department with a “Contract Note” dated 22 February 2010, in the following terms:

    Allan Davidson hereby sells to Ian Horsley … an option to purchase 50% (fifty percent) of Allanbee (101 Investments) Pty Ltd, an Australian Private Company ANB 45 124 113 373.

    The option may be exercised at any date subsequent to the purchase of Specialised Logistics Australia.  In the event of Allanbee (101 Invesments) Pty Ltd not concluding the purchase of Specialised Logistics Australia the full amount paid for the option shall be refunded.

    On exercise dated, 50% of Allanbee (101 Investments) Pty Ltd shall be transferred to Ian Horsley or his nominee for an amount of $1 (one dollar).

    The cost of the option is $450,000 (four hundred and fifty thousand dollars).

13. Bank statements were provided showing the transfer of $500,000 from the applicant to Allanbee on 1 March 2010.

14. The Tribunal was provided with a different version of this “Contract Note”, also purportedly dated 22 February 2010.  That version substitutes “Sterling 3 Trust” for “Allan Davidson” in the first paragraph.  A document entitled “Loan Received” dated 22 February 2010 was also provided to the Tribunal, in which Sterling 3 Trust acknowledges receipt of a loan of $50,000 from the applicant.

15. The applicant provided the Department with Share Certificate number 3 in Allanbee, recording that IH Investments (Qld) ATF the Ian Horsley Family Trust was issued with shares numbered 51 to 100 on 1 July 2011.

16. It is not in dispute that IH Investments (Qld) Pty Ltd (IH Investments) was not incorporated until 2 August 2013.  An unexecuted copy of the Ian Horsley Family Trust Deed was provided to the Tribunal, and this was also dated 2 August 2013.

17. At the hearing, the applicant gave evidence that Share Certificate number 3 was prepared in August 2013.

18. The delegate refused the visa on the basis that the applicant did not have an ownership interest in Allanbee for at least 2 years immediately before the application was made, as required by cl.892.211, as it was not possible for IH Investments to have held shares prior to its incorporation on 2 August 2013.

19. The Tribunal was provided with Share Certificates numbers 4 and 5 in Allanbee.  Share Certificate number 4 records that the applicant was issued with shares numbered 51 to 100 on 1 July 2011.  Share Certificate number 5 records that IH Investments was issued with shares numbered 51 to 100 on 2 August 2013.

20. At the hearing, the applicant gave evidence that Share Certificates numbers 4 and 5 were prepared in late 2014, following the delegate’s decision.

21. The Tribunal was also provided with Minutes of directors meeting of Allanbee purportedly held on 2 August 2013.  The Minutes record that the applicant’s shares were to be transferred to IH Investments as of that date, and that share certificates were to be issued.

22. At the hearing, the Tribunal put to the applicant that the minutes must also have been prepared in late 2014, and that no meeting was held on 2 August 2013.  The applicant stated that the minutes were backdated to get the shareholdings registered with ASIC.

23. The Tribunal asked the applicant when he exercised the option to purchase shares in Allanbee, which is to say when he paid $1 to be issued with 50% of the shares in Allanbee.  The Tribunal put to the applicant that the evidence suggested this took place in August 2013, which is when steps were first taken to issue a share certificate and the trust was formed.  The Tribunal asked these questions a number of times, and the applicant’s answers were respectively as follows:

    ·He saw himself as the 50% shareholder from when he paid the money.

    ·He “should” have been the 50% shareholder from 2011 as per the dates in the documentation.

    ·The option was exercised at the time of application.  When the Tribunal noted that the application was lodged in 2014, the applicant stated that he was not sure and would need to check the minutes.

    ·He cannot remember when he physically exercised the option.

24. The applicant’s accountant gave evidence that Mr Davidson indicated in 2011 that the applicant would take 50% of the shares in Allanbee.  The accountant prepared the backdated documentation in order to have the shareholdings registered with ASIC.

25. Following the hearing, the applicant provided statements from Michael Brookhouse and Renee Atkinson, employees of Specialised Logistics Australia, stating that they met the applicant on 19 April 2010 and understood that he and Mr Davidson were the new owners of the business.  A letter from Chris Orford, the former owner of Specialised Logistics Australia, was also provided, stating that he understood he was selling the business to the applicant and Mr Davidson as a “50-50 partnership”.  This material does not address the issue of the date on which the applicant exercised the option, and indeed the authors do not appear to have any knowledge of the contractual arrangements between the applicant and Mr Davidson.

26. The Tribunal finds that the applicant exercised his option to purchase shares in Allanbee on or immediately prior to 2 August 2013.  No share certificates were issued prior to this date.  The trust deed was not prepared prior to that date.  Had the applicant exercised the option prior to that date, the Tribunal would have expected the share certificates and other documents to have been prepared contemporaneously with the earlier date.  The documentation was clearly backdated, but prior to the exercise of the option the applicant held only a chose in action and not an ownership interest in Allanbee. 

27. There was no persuasive evidence that the option was exercised prior to August 2013.  The applicant was unable to remember the date on which he exercised the option.  The Tribunal places no weight on the accountant’s claims that the option was exercised in 2011.  The accountant was the author of the backdated documents, and the Tribunal treats his evidence with extreme caution.

28. The Tribunal put to the applicant that he may have breached PIC 4020 in that the information contained in the Share Certificates and the Minutes may be regarded as being false or misleading as follows:

    ·The Minutes suggest that a directors meeting took place on 2 August 2013, when no such meeting took place.

    ·Share Certificate number 3 suggests that IH Investments held shares in Allanbee from 1 July 2011, when it could not have held shares prior to its incorporation on 2 August 2013.  A fair reading of the certificate also suggests that it was signed 1 July 2011, when it was not signed until August 2011.

    ·Share Certificate number 4 suggests that the applicant held shares in Allanbee from 1 July 2011, when there is no evidence that he had exercised the option at that date.

    ·Share Certificates numbers 4 and 5 also suggest that they were signed on 1 July 2011 and 2 August 2013, respectively, when they were not signed until late 2014.

29. The Tribunal explained to the applicant the consequences of an adverse finding in relation to PIC 4020, including the 3 year exclusion period, and later explained that he had the option of withdrawing the application for review.  The Tribunal allowed the applicant a 10 day period after the hearing, amongst other things, to consider withdrawal.

30. The applicant stated that he needed to get the records properly up to date as to when he exercised the option.  When the Tribunal observed that his evidence was that he was not certain of the date he exercised the option, the applicant stated that he was not 100% clear on the legalities of the documents.  He participated in meetings discussing when the option needed to have been exercised by.

31. The Tribunal finds that the applicant provided it with information that was false in a material particular. The applicant provided Minutes of a directors meeting of Allanbee that purportedly took place on 2 August 2013. The Tribunal finds that no such meeting took place. The information relates to cl.892.211, namely whether the applicant held an ownership interest in Allanbee during the requisite period. The Tribunal finds that the false information was given purposely, as part of an attempt to support his claim that shares were transferred from the applicant to IH Investments on that date.

32. Therefore, the visa applicant does not meet cl.4020(1).

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

33. The requirements of cl.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 r.1.03), that justify the granting of the visa.

34. The phrases ‘compelling circumstances’ and ‘compassionate or compelling circumstances’ are not defined in the legislation. These phrases have received some judicial consideration in various contexts under the relevant legislation.

35. In relation to the words ‘compelling or compassionate’, in Thongpraphai v Minister for Immigration & Multicultural Affairs[1], O’Loughlin J considered that

    There is little doubt that both words call for the occurrence of an event or events that are far-reaching and most heavily persuasive. Incidental matters are not to be taken into account except where it is appropriate to have regard to their totality.

    [1] [2000] FCA 1590 at [21]

36. As regards the waiver of the health provisions, in Bui v Minister for Immigration & Multicultural Affairs[2], the Full Federal Court considered that ‘compelling’ had a wider ambit than ‘compassionate’[3].

    [2] [1999] FCA 118

    [3]     At [47 – 48]

37. In the case of Paduano v Minister for Immigration & Multicultural & Indigenous Affairs & Migration Review Tribunal[4], which involved the issue of compelling reasons for an applicant’s absence from Australia in relation to a resident return visa, the Federal Court held that the ordinary meaning of ‘compelling’ is ‘forceful’ and that forceful reasons for an absence may involve physical, legal or moral necessity, or may, by reason of their forcefulness, be convincing.

    [4] [2005] FCA 211

38. In considering whether the waiver provisions are met, the Tribunal is mindful that the language of the waiver provision is specific, and relates to matters which affect the interests of Australia or Australian citizens or permanent residents. The focus is not on matters affecting visa applicants. In addition, it is not sufficient that the specific circumstances exist, they must also justify the granting of the visa to the applicant.

39. At the hearing, the applicant stated that the main business employs 16 employees, who are Australian or New Zealand citizens.  Their jobs would be in jeopardy if his visa was refused.  Mr Davidson is an Australian  permanent resident, and his interests would also be affected.  The Tribunal noted that Mr Davidson appeared to be complicit in the provision of the false information, as his signature appears on all the documents in question.  The applicant stated that Mr Davidson was the sole director for the first 4 years of the business.

40. Following the hearing, the applicant provided a letter from Tim Nichols, a director of Specialised Logistics Australia.  An organisational structure chart also provided indicates that Mr Nichols and the applicant are the only directors of the business, with Mr Davidson having no role in the business.  Mr Nichols strongly expressed the view that the applicant’s physical presence in Australia was necessary for the continuation of the business, and that his absence could lead to a collapse of the business.

41. Post-hearing submissions from the representative clarified that Allanbee employs 15 Australian citizens, 3 eligible New Zealand citizens and 1 temporary resident.  Wages average $50,000 per employee.

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

43. The Tribunal does not accept that there are compelling circumstances which affect the interests of Australia and justifies the granting of the visa.  The Tribunal does not consider the matters raised by the applicant to be of sufficient scale such that they could be characterised as affecting the interests of Australia.

44. The applicants also claimed that there are compassionate or compelling circumstances that affect the interest of Australian citizens or permanent residents if the visa application was refused.  The Tribunal has carefully considered the position of the 18 relevant employees of the main business.  The Tribunal is not persuaded that they would necessarily lose their jobs.  As the applicant noted at the hearing, Mr Davidson was the sole director of the company for its first 4 years of operation, which is to say that the applicant was not a director during that period.  An ASIC search provided to the Tribunal by the applicant recorded that Mr Davidson ceased to be a director on 22 April 2015, and the applicant and Mr Nichols became directors on that date.  The applicant’s appointment as director is a recent one, although he had previously occupied the position of general manager.  The organisational charts provided to the Department do not include Mr Nichols, indicating that he has a much shorter history with the company.  All this suggests to the Tribunal that the history of the company includes previous management transitions which have not affected the viability of the company.  The company may face some difficulties resulting from the applicant’s absence and any consequential future management transition, but the Tribunal is not persuaded that any hardship would amount to compassionate or compelling circumstances that affect the interests of Australian citizens or permanent residents so as to justify the granting of the visa to the applicants. 

45. The Tribunal does not accept that compassionate or compelling circumstances exist in relation to Mr Nichols.  His appointment as a director took place at a time when the applicant’s visa had been refused and was pending review.  The possibility that the applicant might not be granted a visa was a matter which he could reasonably be expected to have considered prior to his entry into the business.

46. The Tribunal does not accept that compassionate or compelling circumstances exist in relation to Mr Davidson.  He no longer appears to be involved in the company.  In any event, Mr Davidson was complicit in the provision of the false information, in that he personally signed the Minutes and Share Certificates.  Any hardship caused to him would, in large measure, be caused by his own actions.

47. The Tribunal has considered all the relevant circumstances advanced, both individually and cumulatively, including all the information provided with the original application and to the Tribunal, and the Tribunal is not satisfied that there are compelling circumstances that affect the interests of Australia; nor 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 to the visa. The Tribunal is not satisfied that the requirements PIC 4020(4) are satisfied in this case.

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

2. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.892.223.

   DECISION

3. The Tribunal affirms the decision not to grant the applicants Business Skills (Residence) (Class DF) visas.

   Glen Cranwell
   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 Migration Review Tribunal, 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 a 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. 

   …