1702666 (Migration)

[2019] AATA 1653

1702666 (Migration) [2019] AATA 1653 (25 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1702666

MEMBER:Michael Judd

DATE AND TIME OF

ORAL DECISION AND REASONS:          25 January 2019 at 11:30 am (WA time)

DATE OF WRITTEN RECORD:                28 February 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for a Visitor    (Class FA) visa for reconsideration, with the direction that the Applicant meets the following criteria for a Subclass 600 (Visitor) visa:

·Public Interest Criterion 4020 for the purposes of cl.600.213 of Schedule 2 to the Regulations.

Statement made on 28 February 2019 at 11:32am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – false or misleading information – employment status at time of application – no evidence of any attempt to misrepresent the state of affairs – genuinely misheard the name referred to – obtain entry on three prior occasions with no issues – past compliance with visa conditions – no motives to overstay – no compassionate or compelling circumstances – key basis for seeking the visa no longer exists – visiting ill father – father has since passed away – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.213; Schedule 4, PIC 4020

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

APPLICATION FOR REVIEW

ORAL DECISION OF MEMBER JUDD [11.02 am]

This is an application for review of a decision made by a delegate of the Minister for Immigration on 8 December 2016 to refuse to grant the [Applicant] a visitor visa being a Visitor Class FA visa under section 65 of the Migration Act 1958.

The Applicant applied for the visa on 8 August 2016. The delegate refused to grant the visa on the basis that the Applicant did not satisfy the requirements of clause 600.213 of schedule 2 to the Migration Regulations, plus the delegate was not satisfied there was no evidence that the visa Applicant had 15 given or caused to be given to the Minister's delegate information that is false or misleading in a particular. The Tribunal notes that the bogus document provisions do not appear to apply to this matter. The delegate of the Minister was also not satisfied that compelling or compassionate circumstances existed to waive the requirements of P-I-C 4020, and I will call that PIC 4020 20 from now on.

The Applicant sought application for review of the decision by this Tribunal. It is useful to summarise the reasons for refusal of the visa which are contained in the decision record of the delegate dated 8 December 2016. The 25 delegate considered that the Applicant had failed to meet the legal criterion in clause 600.213 of the regulations, and in particular PIC 4020(1)(a).

The Applicant lodged a Visitor Class FA Sponsored Family Subclass 600 Visa on 8 August 2016. The Applicant requested a stay of six months in 30 Australia. An item 22 of the application form she stated the reason for travel. Relevantly the Applicant provided a certification issued  July 2016 as being supporting evidence of her current employment, and that was with a business named [Business 1] in China. The import of this was to support her having current employment with approved leave of absence as 35 being an incentive for her to return back to her home country on expiry of the visa.

The department conducted checks to confirm the employment situation, and during the process information was received which did not support the 40 application. The information was that a receptionist from the [business] had not heard of the Applicant upon contact by the consulate. Further, an HR manager confirmed that there was no employee by the name of the Applicant working for the [business]. In addition, the person who signed the certificate of employment was one of the staff in the HR section and not the HR manager as stated within the certificate as provided.

The Applicant appeared by phone before the Tribunal on Monday, 14 January 2019. The Tribunal received oral evidence in person from the review Applicant, who is her [brother]. The Tribunal received evidence from a woman called [Ms A], who is purportedly a manager specialising in the human resources aspect of the previous employer, [Business 1].

The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The Tribunal received evidence from the [review Applicant] on 14 January 2019. He told the Tribunal he holds a [qualification] which he gained in Perth in 2003. He has [worked] within [a certain] industry. Between 2003 and 2016 he [worked] in [another] industry. He was made redundant in 2016, and it appears that for some time he worked as a volunteer until joining his current company [in] about April 2017.

He told the Tribunal that he very recently moved to a new house in coastal Perth. He arrived into Australia in 1995 as a skilled migrant and he secured a permanent visa which culminated in him receiving Australian citizenship [in] 1998. He has three sons by his wife. They are aged [age], [age], [age]. He married his wife [in] December 1996 whilst she was offshore. Having successfully applied for a partner visa his wife came to live in Australia in 1998. His wife has been working as a [Occupation 1] since 2013. All of the review Applicant's family including his children and his wife are currently of good health.

The Tribunal notes that during the initial application process for this, being the fourth visa for the Applicant, his father was still alive. The Applicant advised the Tribunal that his father had recently pass away [in] December 2018. His father and mother had been living with the review Applicant's family here in Perth when in March 2018 he had gone back to China to see family. Upon a return he was diagnosed with cancer and he subsequently passed away on a further return trip to China. He said that his mother and father had started living with his family in Australia in 2007. His mother had obtained a permanent visa and had become a permanent resident in 2011. As at the date of the hearing and decision, his mother is living in China where she is attempting to sort out matters relating to the death of her husband including the sale of the family house. He described his mother's health as being okay.

He told the Tribunal that he applied for a visa for his sister to come to Australia. At the time of application there were issues with his father's health. He said his sister had retired in August 2017, and that she is [age] years of age. His sister does not own her own house and she is divorced from her husband as from 2011. He quite recently caught up with his sister in China following a brief visit. He told the Tribunal that when his father recently returned to China before his death his sister had taken good care of him, including bringing food for him to consume.
The sister has never found a new relationship after her divorce. She is now retired. He told the Tribunal that his mother plans to return to Perth possibly in about May 2019. His wife and he are in a strong financial state and have nearly zero debt. Today he gave some brief evidence about some investment properties which are three houses in [Suburb 1]. The Tribunal has taken note of that. It does not really affect the decision in any material way.

He confirmed that he and his wife do not send money back to his sister in China all that often. However, his father helped her with money when he was still alive. He told the Tribunal that his father and sister had gotten on well. His father had treated her well, however there were issues between his sister and his mother.  

His sister has a son, who is now aged [age], who was born in [year]. The son lives with his grandfather. His sister lives in a house rented from the Chinese Government at low rent. He outlined his sister's employment history from about 1984, which included a period of time towards the end of her working life when she worked in [workplaces]. He told the Tribunal that his sister had visited Australia on a visitor visa on three prior occasions, which were 2010, 2012 and 2014. There were no issues with Australian Immigration authorities on these visits. She did not overstay.

He had paid initially a $10,000 bond to ensure that she did not breach her visa. He confirmed that he paid for his sister's travel on each occasion, and that if the present visa were to be granted he would support her financially in Australia and also pay for her travel. His current income on average is about 1500 Australian Dollars per week. In relation to his wife, who is a [Occupation 1], for the 2018 tax year her gross income was about 340,000 Australian Dollars, and that their combined income after tax was about 250,000 Australian Dollars. The Tribunal has no difficulty accepting that the review Applicant and his wife could well afford for the visa Applicant's flights, her accommodation with them, and day-to-day living expenses in Australia.

The Tribunal inquired as to whether there would be any incentive for his sister to return to China should she come here to which he responded that his sister receives a pension currently from the Chinese Government, and that if she did not return within one year it is likely she would lose that pension. He described himself as being a Chinese community leader in the Perth area, and that he does not want to lose his good reputation. He told the Tribunal that the Applicant's son is living in China and that she is very close to him, and she would not want to be separated from him for any considerable period. 45 .The Tribunal inquired as to what the visa Applicant would intend to do if she entered, and he said that he wanted her to go and see his new house in [Suburb 2], which is an arguably upmarket Perth suburb towards the coast. He told the Tribunal that the visa application was lodged for his sister at the time that his father was alive and currently sick. A key purpose for the visa was to enable his sister to come and spend some quality time with the family but particularly with her ill father.

The Tribunal, having heard this evidence, raised with the review Applicant that based upon the evidence it had heard to that point it did not appear there were compassionate or compelling circumstances relating to him being the Australian citizen for the purposes of this assessment. To his credit the Applicant accepted this to be the case by reason of the death of his father and the Applicant's father.

An early issue arose for the Tribunal, and that is a question as to why would the visa Applicant provide false or incorrect information in an application in circumstances that she had already been granted visitor visas to enter Australia on three separate occasions for which she had fully complied with. It would be a reasonable assumption for an Applicant in those circumstances where there had been no issues that a fourth visa would, in all probability, be granted.

The review Applicant told the Tribunal that in relation to all four applications it was he that inputted the information into the documents based upon his understanding of what his sister instructed him. He was of the view that to the extent that there was any incorrect information within the fourth application this would have been inputted into that form by him personally based on the information he had received from his sister.

He told the Tribunal that 2016 had been a very bad year, and that this included difficulties regarding posting documents to the department in support of the application. He has posted supporting documents, however, the department claimed it had never received them. The documents have since gone missing, and there are no copies available to the Tribunal. The Tribunal accepts that the documents were posted, and for reasons unknown the documents were either mislaid or lost either by Australia Post or in some other way. The Tribunal accepts the truth of that.

The review Applicant provided some supporting materials. They included a plastic VIP member's card and some, what I call, towelette packets. On viewing the plastic members privilege [card number] the Tribunal noted that there were three entities referred to which are called [Business 1], [Business 2], and another entity called, [Business 3]. The third entity is of no real consequence in this application. The Tribunal notes that on one of the towelette packages there are motifs which are consistent with the motifs for [Business 2], [Business 1], and [Business 3]. The two towel packs provided included one that was unopened and a smaller packet that had been opened. There is no reason to suspect that the plastic member's card and packages are in any sense forgeries. The review Applicant submitted that the [workplaces] or the entities are related and that the card and packages support this assertion by the fact they contain details for both. The Tribunal accepts that in circumstances where several entities are included on a towelette package and they relate to the food industry, it would be a reasonable conclusion that those entities are in some way connected or related to each other in some way.

He told the Tribunal that at the time of the first application his sister had been working in [a certain industry]. However, for the second and third application she had been working in the warehouse of the mentioned [workplace], [Business 2]. He told the Tribunal he has no basis for believing his sister is in any fear for her safety in China, and that she has no reason to fear Government agencies including the Chinese police or the military. He said he would not allow his sister to seek protection if she arrived in Australia, and he knows members of the Chinese Consulate in Perth very well.

He told the Tribunal that his sister retired from work in August 2017, and is now on a pension of about 2200 Chinese Dollars per month being about 400 25 Australian Dollars. He said his sister was only now seeking to enter Australia for three months and that during this time he and his family would take her to the countryside. He said his sister had no business interest in either China or Australia, and was not studying.

He described his sister's health as being generally very healthy, but sometimes she does get very depressed, and including as recently as 2017. He outlined some of her travel, which was mostly within China, but she had been to [Country 1] in 2013. The Tribunal notes there is no information to suggest that there were any issues with the Applicant travelling within China and also to any other country.

The Tribunal received evidence from the Applicant [herself]. She told the Tribunal she is [age], divorced and living in rented accommodation in her home city. She is not currently in a relationship and her son is [working]. She said there are no plans for her son to move out of the house. She confirmed she is retired, living on a pension and has done so since about August 2018. She describes her local area as being peaceful and safe. She said that on each of the three earlier occasions she had been granted a visitor visa and she had returned on time without having breached any condition. She has told the Tribunal that on occasions she had paid for flights but on other occasions her brother had paid. The Tribunal notes that this is different to what the review Applicant had said in which he confirmed he paid for the flights. A similar response was obtained from the visa Applicant when she said that she paid some of the expenses for food.

The Tribunal has considered why there would be any conflict or difference. The Tribunal accepts that the brother, being the review Applicant, did assist and quite substantially assist with her travel and also her accommodation. It may have been the case that she did contribute. In any matter not a great deal turns on that point in any event.

The Tribunal inquired with the visa Applicant as to why she now wants to come to Australia bearing in mind her father has passed since the fourth application was made. She wanted to come for a holiday, and particularly so as she has just lost her father. Her son is going to get married in two or three years' time. She wanted to stay in Australia for as long as she is permitted by authorities. She has about 50,000 Chinese Dollars in her bank savings and that is in addition to the pension she receives. She confirmed her health has been very healthy and that she wants to learn English whilst living in China. She quite strongly refuted any suggestion that she would want to live permanently in Australia.

The Tribunal questioned her about the view taken by the department as to having submitted incorrect information about her employment. She indicated she had been employed by [Business 2] in about 2010, and by the other [workplace] in about 2015. She worked with [Business 2] until the end of 2015, and she worked in the warehouse area.

In relation to the other [workplace], and this is [Business 1], she said that both entities have the same manager and the same owner. She said that when the department officer contacted her nominated employer there had been a mistake made as to her name by internal management. She said that the owner of [Business 2] had transferred his business under a new name to the new [business] but at a different location which was about four to five bus stops apart. In her new work with [Business 1] she worked also in the warehouse area. She did not suggest that the consulate officers had inquired under the wrong name, rather she claimed that it must have been the case that [management], upon contact by the officers, had misheard the name.

The Tribunal inquired with the visa Applicant as to why it should accept that she would return, and she responded that she has her son living in China. The son has secure work. She receives a Chinese pension, and she has her brother in Perth, who will provide sponsorship. The Tribunal then concluded but recommenced on 25 January 2019 at 9.30 am.

Between the first hearing and the second hearing today the Tribunal noted a translated statement under the heading of [Business 1], which had been translated by a NAATI accredited translator on 2 November 2016. The statement was apparently obtained for the purposes of the original visa application. By that I mean the fourth. The provider of the statement is [Ms A], who at the time of making the statement was HR manager of [Business 1]. She stated that she saw several telephone numbers coming on to her phone from another Chinese Province. She thought they may have been calls to sell products or that they were scam calls. She did not answer the first few calls. After three 10 or four she decided to respond. The person on the phone said he was a staff member from the Australian Consulate. Because the contact was by telephone the witness could not confirm the person's identity, and she thought it might have been someone trying to secure company information.

There had been instructions from the company boss prohibiting employees disclosing company information to outsiders over telephone. For this reason she told the caller that there was no relationship between the two entities, being [Business 2] and [Business 1]. She stated in the statement that she was aware in fact that there was a relationship between the two [workplaces]. The [workplaces] provide VIP membership cards to frequent customers, and jointly they produce [products]. The Tribunal accepts that the references to the membership cards and [products] are the same as discussed earlier in this decision for which the Tribunal was provided with examples.

The witness confirmed that the Applicant had been transferred to work in [Business 1] from her previous work at [Business 2]. She said that when a person claiming to be a staff member from the Australian Consulate asked about this employment arrangement she mistakenly thought it to be a reference to a person named [Name 1], which the Tribunal accepts has a close resemblance to the name [of the Applicant]. She said there were no records for [Name 1] working for the company. Endorsed on the original statement in Chinese were purportedly the stamp or the company stamp and also a fingerprint of the witness.

In addition to the statement, the Tribunal decided to hear from her in person by telephone. It should be noted that in all cases involving receiving telephone evidence there is usually no way of verifying the identity of the person on the end of the phone by the Tribunal. The Tribunal must therefore place faith in the Applicants and the witness that they are not seeking to deceive the Tribunal.

In this matter the Tribunal considers there is no basis to doubt that the caller or the party that the Tribunal was speaking to was in fact [Ms A]. She told the Tribunal she had known the [Applicant] for about four years. She had joined the same company as the Applicant had been working for.  She said that later she transferred to the [workplace], [Business 1 variation of name]. The Applicant had worked in the warehouse at both businesses, being [Business 2] and [Business 1 variation of name]. The Applicant had retired in 2018. When the witness commenced with [Business 2] it was about six years ago, being [May] 2012. At that point the visa Applicant was already working at that business.

She told the Tribunal that [Business 2] no longer operates but the company itself still exists, and the company had moved to the new [workplace]. She said there was a connection between the ownership of [Business 2] and [Business 1 variation of name]. She said that the two [workplaces] had been operated or are operated by the same person being a [Ms B]. Her role in the business is working for the manager as a general manager, hiring, firing and approving administrative functions such as leave.

She recalled a phone call from the Australian Consulate. It was roughly two 15 years ago. She was covering for the general manager's role at the time. She remembered the calls went to mobile phone initially. Eventually she picked up the phone. She confirmed that she had told the speaker that they did not have staff under the name inquired about. She actually issued a certificate to clarify the mistake that had been made. That was some weeks after the phone 20 call had been received.

She said that when she received the calls she had been working at the new [workplace] for over one year. She confirmed that she was working inside the [workplace] at a busy time when the call was received. She said the caller, 25 apparently from the consulate, was female. She thought the caller had given the name [Name 1]. She said there was too many staff for her to answer accurately at that time. There was something in the vicinity of 200 to 220. She did not blame the consulate at all, and she accepted that it was her that must have misheard the name.  

She said the reason that the Applicant transferred to the new [workplace] was that she was hard working and experienced and old and that is what they needed. She had last spoken to the Applicant in the summer of 2018, being the Chinese summer. She had never spoken to the review Applicant. She said that after the phone call she realised she had made a mistake, and because of that she gave a statement. It was about one month later when she realised that a mistake had been made.

The Tribunal sought to clarify the difference of names of the [workplace] 40 referred to by the witness, which was [Business 1 variation of name]. It sought to clarify that with the review Applicant and also some brief clarification from the interpreter, which was appropriate in the circumstances. The Tribunal is satisfied that the two [workplaces] are in fact the same [workplace]. The Tribunal found the evidence of [Ms A] to be generally credible notwithstanding difficulties in assessing that evidence because of it being a phone call. The Tribunal received some brief evidence or submissions from the review Applicant. He confirmed that his sister had never gone to Korea, but she did go to [Country 1]. He told the Tribunal about having shared interests in houses in [Suburb 1], a Perth suburb. He said hid current house is almost paid off. He believed that exactly the same info had been included on the three earlier applications for a visa submitted by his sister. When his sister first came a bond had been paid which was returned by the department. And the second and the third visa applications were simply just granted. He had inputted all of the information into the application for all four applications based upon information provided by his sister. He believed that nobody from the consulate or department had actually visited the [workplace] to speak to people such as the witness I have mentioned.
That summarises all of the evidence that was received in this hearing.

Consideration of Claims and Evidence

The key issue in this review is whether the visa Applicant meets public interest criterion 4020 or PIC 4020 as required by clause 600.213 for the 20 grant of the visa. Broadly speaking this requires that there be no evidence that the Applicant has given or caused to be given to the Minister, an officer, this Tribunal, 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 last 12 months before the application was made. The reference is PIC 25 4020(1). This will be considered in more detail in this decision.

The Applicant and each member of the family unit has not been refused a visa because of the failure to satisfy PIC 4020(1) during the period starting three years before the application was made and ending when the visa is granted or 30 refused unless the Applicant was under 18 at the time the application for the refused visa was made. The reference is PIC 4020(2), and (2AA). In this case the Tribunal is satisfied that this criterion has been satisfied by the Applicant.

The Applicant must satisfy the Minister as to his or her identity. The reference is PIC 4020(2A). In this case the Tribunal notes that there were no issues identified in the department decision concerning identity of the visa Applicant. In the circumstances the Tribunal accepts that the Applicant is who she states she is, and identity issues do not arise.

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 was granted or refused. Unless the Applicant was under 18 at the time the application for 45 the refused visa was made. The reference is PIC 4020(2B) and (2BA). The Tribunal is satisfied that this criterion has been satisfied by the Applicant. As stated the requirements in PIC 4020(1) and (2) can be waived if there are compelling or compassionate circumstances that affect the interests of an Australian citizen. The Tribunal is satisfied that the [review Applicant] is an Australian citizen.

The Tribunal must go through a two-stage inquiry in deciding an issue of waiver. It must first decide upon the issue of compassionate or compelling circumstances within the meaning of PIC 4020(4)(b), and if so it must consider the issue of discretion to waive the requirements having regard to 10 those circumstances.

The term compelling or compassionate is not defined in the Act or regulations. Whether circumstances are compelling or compassionate is for the subjective judgment of the Tribunal and is a question of fact and agreed 15 for it. The Tribunal is obliged to consider all of the circumstances including any matters put forward by an Applicant in relation to the waiver, and then determine on the evidence as a whole whether there are compelling or compassionate circumstances.

This matter is unusual in the sense that a key basis or ground for seeking the visa no longer exists, being the health concerns relating to the Applicant's and the review Applicant's father. Unfortunately he has since deceased following the application for visa and the decision. The review Applicant himself, to his credit, conceded that there were no longer compelling or compassionate aspects alive as at the time of the Tribunal hearing and its decision. Having considered the information before the Tribunal and the evidence received the Tribunal finds that there are no compelling or compassionate circumstances as at the time of decision. That is not, however, the end of the Tribunal's considerations.
The Tribunal has reviewed the original application for visitor visa, being the fourth, in the sponsored family stream. It is noted that the review Applicant inputted the information based upon information he received from his sister, the visa Applicant. At page 68 of the department's file, being part G, concerning employment status there is a question to be answered by an Applicant in relation to employment status. That part was answered to the effect that the Applicant was or is at that time employed at [Business 1] at [address]. A phone number was provided. The Tribunal conducted an internet check on the address and, as I have said just a moment ago, that came up with a different [workplace]. The Tribunal is satisfied that that [workplace] is one and the same with [Business 1] and no issues arise. Did the Applicant Give or Cause to be Given Information that is False or Misleading in a Material Particular for Purposes of PIC 4020?

In this matter it is the giving of information that is alleged to be false or misleading in a material particular that is of a particular focus. The term 5 information that is false or misleading in a material particular is defined in PIC 4020(5). The information must be false or misleading at the time it is given and be relevant to any of the criteria the Minister may consider when making a decision, whether or not the decision is made because of that information.

The requirement in PIC 4020(1) to not provide false or misleading information applies whether or not the Minister becomes aware of the information that is false or misleading in a material particular because of information given by the Applicant themselves. PIC 4020(3) is the reference.

It is applied whether or not the document or information was provided by an Applicant knowingly or unwittingly. PIC 4020 is directed at information which is false in the sense of being purposely untrue as opposed to information which lacks an element of fraud or deception such as an innocent 20 or unintended mistake. Whilst it is not necessary for a visa Applicant to know of or be directly involved in any falsehood for PIC 4020 to be engaged, there must have been some knowledge or some intention on somebody's part.

In order to be misleading the information must convey or contain a 25 misrepresentation. That representation may be about an existing state of facts or a future state of affairs. What constitutes false and misleading information is a question of fact having regard to all of the circumstances of the case.

There is no requirement that the information did in fact mislead anybody. An 30 element of fraud or deception by somebody is however necessary to attract the operation of PIC 4020. Focusing solely on whether information is objectively false without considering if the information is purposely false or misleading would likely give rise to jurisdictional error on behalf of this Tribunal.  

For information to be false or misleading in a material particular for the purposes of PIC 4020 there must be visa criterion upon which the information could materially bear. It applies to information which goes to something which will or might determine the visa application. As a general comment the Tribunal accepts that in circumstances where a visa Applicant provides false or misleading information about their employment history or circumstances of employment that is information that would quite likely be material for the purposes of the application in that it would go to something which will or might determine a visa application.

I now turn to the provisions of PIC 4020(1). The Tribunal finds that no member of the family unit and the Applicants themselves have been refused a visa in the relevant period because of a failure to satisfy PIC 4020(1), therefore PIC 4020(2) is met in this matter.

Has a Visa Previously been Refused on the Basis of Failure to Satisfy PIC 4020(2A) PIC 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 10 requirements in PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused.

In this matter the Tribunal finds that neither the Applicant nor any member of the family unit, as defined in regulation 1.12, have ever been refused a visa in the relevant period because of a failure to satisfy PIC 4020(2A), therefore PIC 4020(2B) is met by the Applicant.

The key matter is, is there evidence before the Tribunal that the Applicant has given or caused to be given to the Minister or an officer information that is false or misleading in a material particular as defined in PIC 4020(5), being information that is false or misleading at the time it is given, and being relevant to any of the criterion the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.  

In this matter it comes down to this: this is the fourth visa application made by the Applicant. On each occasion she received a considerable amount of assistance from her brother living in Australia. He has a good command of English. The applications were, as I understand it, submitted in English. The Tribunal has concerns as to why a woman would successfully obtain entry on three occasions with no issues, and then on the fourth occasion be refused. That she came here on three occasions and left in compliance strongly suggests that in those years, at least, she had no intention of overstaying or considering living permanently in Australia. The review Applicant quite rightly points out that it would not be a good look for him, being a prominent member of the Chinese community, for him to be harbouring, if I can use that word, an over-stayer or an illegal immigrant, being his own sister. There are strong incentives for him to ensure that she returns within compliance of Australian law. He is married to a [professional] here in Perth, and it is fair to say it would not be a good appearance for her either.
The Tribunal has struggled to try and identify a motive as to why this visa Applicant would want to overstay, and it has not found a motive. That is not required. The Tribunal does not need to be satisfied of some intention or motive, but it strikes me as being somewhat surprising as to why on this occasion she would hold any intention to overstay. The Tribunal cannot discount the possibility that what occurred in this matter was that a consulate official, acting upon instructions from the Immigration Department quite properly and appropriately, made contact with the nominated business, and that in the circumstances the person within the business simply misheard the name that was referred to. I do not say that I accept that it has been established beyond any doubt. It certainly is not, but the possibility in these circumstances cannot be discounted. In the circumstances the Tribunal accepts that as being true.

In those circumstances, the issue arises as to whether the inclusion of that information in the application was purposely untrue; whether there was any element of fraud of deception involved; whether anybody had any knowledge or intention to defraud or deceive; and whether there was a misrepresentation of the true state of affairs. And in this case it has decided that there is simply no evidence of any attempt to misrepresent the state of affairs. At the time of application the Tribunal accepts that she was working at [Business 1] at the time of application, so the Tribunal is not satisfied that the application contained any false or misleading information at all.

Therefore the Applicant does meet PIC 4020(1) in the sense that the Tribunal has found that there was no giving of information that is false or misleading in a material particular as defined in PIC 4020(5).
On the basis of this information the Applicant does satisfy PIC 4020 for the 25 purposes of clause 600.213.

Decision

The Tribunal remits the application for a Visitor (Class FA) Visa for reconsideration with the direction that the Applicant meets the following criterion for a Sub-class 600(Visitor Visa), and that is: public interest criterion 4020 for the purposes of clause 600.213 of schedule 2 to the regulations.

And that is the decision.

END OF ORAL DECISION [12.01 pm]