1500258 (Migration)
[2016] AATA 4247
•15 August 2016
1500258 (Migration) [2016] AATA 4247 (15 August 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS: Mr Wenjian Huang
Ms Yudan JiangCASE NUMBER: 1500258
DIBP REFERENCE(S): CLF2013/314873 CLF2014/134850
MEMBER:Michael Cooke
DATE:15 August 2016
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the applications for Business Skills (Residence) (Class DF) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 890 (Business Owner) visas:
·Public Interest Criterion 4020 for the purposes of cl.890.222 of Schedule 2 to the Regulations
Statement made on 15 August 2016 at 1:35pm
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration on 19 December 2014 to refuse to grant the applicants Business Skills (Residence) (Class DF) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 24 December 2013. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl.890.222 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate found that the applicant had submitted information that was false or misleading in a material particular.
The applicants appeared before the Tribunal on 10 March 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Bing Fan Dai and Jiang Hua Dai. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicants were represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.890.222 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).
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?
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.
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.
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.
The applicant’s representative has made a submission in which he states the following:
DIBP rejected the applicant's case as they found the information provided by the applicant had been misleading under public interest criterion 4020 and clause 890.222.
DIBP's finding surrounded the unlawful workers who were located on the business premises in late 2013 and how that information then fits with the information provided by the applicant about the workers of the business and the wages paid to those workers.
DIBP's decision is based on the case officer coming to a certain conclusion and giving weight to some explanations and not others. Her conclusion was that the wages for the unlawful workers were included amongst the wages for the lawful workers yet the unlawful workers were not included in the list of employees — therefore that information was misleading.
It was not however the only conclusion available to make and we submit it was not the most logical or natural conclusion based on the information provided. In addition the explanation given by the applicant about the unlawful workers does not absolve the applicant of responsibility.
In the applicant's responses to DIBP the applicant first (1) admitted the error of the association of the unlawful workers with the main business and then in a second response (2) repeated the admission but explained in further detail what had happened and how exactly those unlawful people were engaged by the business.
We submit that 4020 should not apply here. Rather the association of the unlawful workers with the main business is relevant to clause 890.216.
The purpose of the PIC 4020, which was directed to information or documents which are purposely untrue; see Trivedi v the Minister for Immigration and Border Protection [2014] FCAFC 42 at [42] to [44] and [49].
At the same time if the Tribunal were to form the view that 4020 does apply, then there are compelling reasons to waive the 4020 provision (something the Department does not seem to have considered - but should have).
Following the case of Sharma v Minister for Immigration & Border Protection & Anor [2015] FCCA 2669 (6 October 2015), where 4020 is considered to apply, the issue of waiving 4020 based on compassionate and compelling circumstances must also be considered (re paragraph 47).
Here the applicant has taken over a business and has (apart from the unlawful worker issue) has run a business which pays tax and employs Australian citizens and permanent residents. It provides a significant employment benefit to those staff which it employs.
In addition the applicant is in the process of starting a new butcher business at Westfields Hurstville which is a similar size and will provide employment for the FTE equivalent of 3-4 workers. Negotiations over the lease and fit out requirements have been ongoing over the last 3 months. They are planning to take over a troubled site where the existing business is closing down.
Since the applicant has taken over the Parramatta business in July/August 2011:
Turnover has increased
2011/12 2012/13 2013/14 2014/15
$1,627,426.74 $1,472,259.84 $1,596,044.39 $1,727,061.34
Ordinary wages (apart from director salaries) have increased as well
2011/12 2012/1313 2013/14 2014/15
$82,680 $94,751.74 $90,772.50 $102,379.91
APPLICANT’S POSITION
There were unlawful workers associated with the main business.
The applicant admitted that to the Department on each time the issue was addressed.
The wage figures submitted to the Department in wages tables, BAS statements and financial statements were the wages of the lawful workers.
No payments to any unlawful workers have been included in the wages records of the main business.
Rightly or wrongly those unlawful workers were not shown as workers in the financial statements and those wages were not shown as salary expenses in the financial statements. Rightly or wrongly the applicant thought these workers belonged to Bing Fan Dai's other business and therefore did not think to include them in his employee list.
After the business was sold to the applicant Bing Fan Dai continued to make payments.
The payments made to the unlawful workers were made by Bing Fan Dai (before the business was sold to the applicant) in cash. We understand (that) the workers also worked at Bing Fan Dai's other butcher businesses (previously Castle Hill and Mount Druitt).
After the business was sold to the applicant Bing Fan Dai continued to make payments to the unlawful workers in cash when they worked at the business.
Then (2013) and now, on occasion if the Parramatta business is short staffed, Bing Fan Dai will bring in some staff from his other businesses. The applicant had some knowledge of the unlawful workers (hence the apologies and admissions he has made) however they naively thought that as long as the new workers they employed had proper lawful status and he employed more than 2 FTE equivalent in local employees he would be doing the right thing. He regrets not taking a harder line on this issue. He was not gaining any advantage from occasionally using unlawful workers in this way.
The business has employed many employees since they took over the business in July/August 2011 and all of those have been workers with valid work rights.
The delegate held the view that:
“I place less weight on the applicant's more recent claims put forward to address the latest invitation to comment because they were contradictory to earlier claims and information submitted. Moreover, the applicant distanced the two unlawful workers from his company to a status of being contractors engaged through a third party. Since there has been no evidence given such as an Australian Business Number (ABN) I am not satisfied that the two unlawful workers can be regarded as contractors.
Therefore, I remain of the opinion that the two unlawful workers were not contractors engaged by a third party but were employees of Rung Xing Fa Pty Ltd. The applicant claims he was unaware of their unlawful status until the said workers were detained. If that be the case then their wages would have to be included as a part of the company's wages expenses. In my letter of 29 August 2014 I provided the applicant with a thorough line of reasoning as to why I was satisfied with the amount of wages expenses being claimed in the financial statements and the applicant did not challenge my deductions. Consequently, with no evidence of a PAYG individual summary in the name of either unlawful worker I must draw the conclusion that the unlawful workers' pay was recorded under the name of other persons for whom PAYG summaries were submitted; persons who would be eligible to be considered as meeting the residency requirement necessary for regulation 890.214. Furthermore, the applicant has not put forward any documentary evidence to show who received regular wages paid from the applicant's company.
In a statement dated 14 October 2014, Bing Fan Dai mentions that he has a running monthly account with the Parramatta MD Meats business. The purpose of this running monthly account supposedly keeps a tally of goods given to or received from the applicant's business and the costs of equipment and casual staff costs. This running account is apparently settled monthly. This information indicates that there is no clear delineation between the businesses in which Bing Fan Dai is involved. Consequently, I cannot be satisfied that employee documents provided to the department by the applicant relate specifically to persons who were actually being employed by the main business, as they may just as likely have been working at one of Bing Fan Dai's other shops with adjustments for wages forming part of the running monthly account.
I acknowledge that the applicant has made a claim that if the business engages 2 full time employees then anything to do with other employees/contractors is irrelevant in regards to meeting regulation 890.214. I am unable to agree with the applicant's line of reasoning because in determining whether the applicant can meet this criterion, all evidence pertaining to employees must be considered in the first instance, and in doing so I have discovered irregularities and information that I consider to be false or misleading in a material particular for assessing the requirements of regulation 890.214. Therefore, I find that he has not satisfied public interest criterion 4020.”
Findings and reasons relating to:
Whether there is evidence before the Tribunal that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth:
A ‘bogus document’, as defined in s.5(1), ie a document that the Tribunal reasonably suspects is a document that:
·purports to have been, but was not, issued in respect of the person, or
·is counterfeit or has been altered by a person who does not have authority to do so, or
·was obtained because of a false or misleading statement, whether or not made knowingly.
The Tribunal finds that the applicant has not given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth a ‘bogus document’, as defined in s.5(1).
and/or
‘Information that is false or misleading in a material particular’ as defined in cl.4020(5), ie information that is:
·false or misleading at the time it is given, and
·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.
in relation to the visa application or a visa held in the 12 months before the visa application was made.
The Tribunal has examined both the decision record of the delegate and the submissions of the applicant forwarded by his representative.
Essentially the delegate has concluded that “the unlawful workers' pay was recorded under the name of other persons for whom PAYG summaries were submitted. In other words persons who would be eligible to be considered as meeting the residency requirement necessary for regulation 890.214 ie Australians, Permanent residents or eligible New Zealand citizens.
The applicant maintains that “the wage figures submitted to the Department in wages tables, BAS statements and financial statements were the wages of the lawful workers. No payments to any unlawful workers have been included in the wages records of the main business. Rightly or wrongly those unlawful workers were not shown as workers in the financial statements and those wages were not shown as salary expenses in the financial statements. Rightly or wrongly the applicant thought these workers belonged to Bing Fan Dai's other business and therefore did not think to include them in his employee list. After the business was sold to the applicant Bing Fan Dai continued to make payments. The payments made to the unlawful workers were made by Bing Fan Dai (before the business was sold to the applicant) in cash. We understand (that) the workers also worked at Bing Fan Dai's other butcher businesses (previously Castle Hill and Mount Druitt).
The Tribunal has revisited the findings of the delegate and has extensively questioned the applicant and Bing Fan Dai in the hearing. It appears that the applicant (through probably cultural ignorance and language issues) has failed to be aware of the strict requirements of Australian labour law. He has seen a business opportunity present itself and has decided to avail himself of it - at the same time helping him to qualify for a visa. He failed to realize that his erstwhile friend and partner - in co-mingling staff with his business - effectively encumbered him with a number of undocumented workers of which he seems to have been unaware at the time.
At a moment when he was short of labour and with contractual or business pressures he allowed his friend and business partner to help him out of his problem. With his mind on output and desperate to fulfil his contracts, he unwittingly used these employees (from Bing Fan Dai’s business) without realizing their unlawful status. These employees came at the instigation of Bing Fan Dai it appears from his testimony who was “helping out a mate” at the time. The arrangement was a temporary one but has had adverse consequences long term for the applicant. He insists that the new workers he employed had proper lawful status and he employed more than 2 FTE equivalents in local employees. He has closely monitored the visa status of any workers hired following the issue raised in this decision.
The delegate concluded that ‘their (the unlawful employees’) wages would have to be included as a part of the company's wages expenses’ and that logically the only conclusion could be that “the unlawful workers' pay was recorded under the name of other persons for whom PAYG summaries were submitted”.
The applicant denies this and he insists that these workers “belonged to Bing Fan Dai's other business and, therefore, he did not think to include them in his employee list”. In other words they were a temporary fix rather than a permanent addition to his workforce which he then concealed (unlawfully for visa purposes) behind the veil of other lawful and legitimate employees. The applicant rejects the delegate’s conclusion by insisting ‘rightly or wrongly the applicant thought these workers belonged to Bing Fan Dai's other business and therefore did not think to include them in his employee list…Consequently, there is no evidence of a PAYG individual summary in the name of either unlawful worker’.
“The payments made to the unlawful workers were made by Bing Fan Dai (before the business was sold to the applicant) in cash. We understand (that) the workers also worked at Bing Fan Dai's other butcher businesses (previously Castle Hill and Mount Druitt). After the business was sold to the applicant Bing Fan Dai continued to make payments to the unlawful workers in cash when they worked at the business”.
The Tribunal is not convinced that the applicant did intentionally seek to do something unlawful (hide the unlawful employees’ payments) and then bamboozle the Department with accounting tricks. On balance the Tribunal accepts his explanation as reasonable that his mistake was more “stuff up than conspiracy” as is said in today’s vernacular.
The Tribunal is aware that an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42. In other words the Tribunal does not accept that the applicant deliberately fomented a (fraudulent or deception type) situation where ‘information that is false or misleading in a material particular’ as defined in cl.4020(5) was submitted to the delegate and a breach of Public Interest Criterion 4020 created.
Therefore, the Tribunal finds on review of all the evidence before it that the applicant meets cl.4020(1).
Has a visa previously been refused on the basis of a failure to satisfy cl.4020(1)?
Clause 4020(2) requires the Tribunal to be satisfied that the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy cl.4020(1) in the period commencing 3 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: cl.4020(2AA).
There is no evidence before the Tribunal that the applicant or any member of the family unit (as defined in r.1.12) have been refused a visa in the relevant period because of a failure to satisfy cl.4020(1)
Therefore, cl.4020(2) is met.
Has the applicant satisfied the identity requirements?
Clause 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.
The Tribunal is satisfied as to his identity.
Therefore, the applicant meets cl.4020(2A).
Has a visa previously been refused on the basis of a failure to satisfy cl.4020(2A)?
Clause 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in cl.4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: cl.4020(2BA).
There is no evidence before the Tribunal that the applicant or any member of the family unit (as defined in r.1.12) have been refused a visa in the relevant period because of a failure to satisfy cl.4020(2A);
Therefore, cl.4020(2B) is met.
On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl.890.222.
DECISION
The Tribunal remits the applications for Business Skills (Residence) (Class DF) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 890 (Business Owner) visas:
·Public Interest Criterion 4020 for the purposes of cl.890.222 of Schedule 2 to the Regulations.
Michael Cooke
MemberATTACHMENT
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 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.
…
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