2105090 (Migration)

[2022] AATA 3599

2105090 (Migration) [2022] AATA 3599 (25 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

MIGRATION AGENT:   Lu (Gloria) Zhang (a lawyer)

CASE NUMBER:  2105090

MEMBER:Michael Cooke

DATE:25 August 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa.

Statement made on 25 August 2022 at 2:57pm

CATCHWORDS
MIGRATION – cancellation – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – genuine effort to commence employment and be engaged for 2 years – employment terminated within 2 years – department and border force investigation found cash payment from agent to employer and concluded position did not exist – applicant’s claim to have been unaware of dealings between agent and employer – left job and sold home, moved to regional city in Australia, self-studied and partner took part-time work – attended orientation day at workplace – told that job no longer available – ICAC investigation into ‘cash for visas’ – son’s health and education and applicant’s engagement with community – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 137Q(2), 245AR, 245AS, 359A, 376
Migration Regulations 1994 (Cth), r 2.50AA

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.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 April 2021 to cancel the applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa under s.137Q of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.137Q on the basis that the employment terminated within 2 years of the person commencing that employment; and the person does not satisfy the Minister that they made a genuine effort to be engaged in that employment for the required 2-year period.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 16 November 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. Her representative attended via her colleague Mr Li.

5. The applicant was sent a subsequent Invitation pursuant to s.359A of the Act on 8 March 2022 as follows:

   INVITATION TO COMMENT ON OR RESPOND TO INFORMATION – [THE APPLICANT]

   I am writing on instruction from the Member conducting your review, in relation to the application for review made by you in respect of a decision to cancel your Subclass187 - Regional Sponsored Migration Scheme visa.

   In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

   Please note, however, that we have not made up our mind about the information.

   The particulars of the information are:

   ·     Information sourced from a Department and Border Force investigation indicates that a secret illegal contract existed between your agent ([Ms A]) and your nominator ([Company 1]) to provide you with an occupation ([Occupation]) in [City] which was a prerequisite for your successful migration to Australia with your family members.

   ·     Information sourced from a Department and Border Force investigation indicates that a payment was made to your nominator ([Company 1]) by your agent ([Ms A]) of $15,000 in cash. This was to cover your first 3 months’ salary. An additional payment of the balance of the contract (being $29,000) was also made.

   ·     Information sourced from a Department and Border Force investigation indicates [Ms A] visited the business in 2018 and asked that the secret contract documents be destroyed.

   This information is relevant to the review because it indicates that your claims in oral evidence that:

   ·Your position ([Occupation]) was genuine.

   ·After your induction day you did not return to work because your agent ([Ms A]) told you to not attend until advised by her are contradicted by the ABF/Departmental information and that the actual position ([Occupation]) was fictitious and part of an (undisclosed) “cash for visas” scam which is the subject of Australian Border Force and Departmental investigation.

   The above particulars are relevant because they indicate that your employment as a [Occupation] was part of an undisclosed and unlawful contract between your proposed employer ([Company 1]) and your agent ([Ms A]) in contravention of s.245AR and s.245AS of the Act and that the employment position with [Company 1] - did not really exist.

   The discovery of the above activity involving [Ms A] and [Company 1] is relevant to the review because it undermines your claim in oral evidence that your employment was genuine and that you did not complete the required two years of employment with your nominated employer ([Company 1]) because you were instructed to do so by [Ms A] and, furthermore, that you did make a genuine effort to do so.

6. Relevantly, if the Tribunal relies on all this information concerning the contravention of sponsorship-related benefit provisions and information that the position was not actually in existence it may also be relevant to the consideration of various factors in exercising the Tribunal’s discretion to cancel your visa because it may indicate that you have breached reg.137Q(2) and the cancellation of your Subclass 187 visa - should be affirmed.

   You are invited to give comments on or respond to the above information in writing.

7. The applicant (through her representative) responded to the Invitation as follows:

   RE: AAT Matter Number: 2105090

   Review Applicant’s Name: [the applicant]

   In reply to the Tribunal’s letter dated 8 March 2022, we are instructed to provide a signed statutory declaration by the review applicant outlining facts.

   With respect to the Tribunal’s letter and the attached statutory declaration, we wish to make the following submissions:

   Firstly, we note that [the applicant] claimed that she was not involved in or have any direct knowledge of any deals between the agent [Ms A] and the nominator [Company 1] for her sponsorship application. If that is in fact true, then [the applicant] should be considered the victim of a migration crime rather than the perpetrator. We further submit that if [the applicant] was involved in the scheme in the beginning one would expect her, the agent and the employer would have negotiated the “contract” jointly and she would have much earlier contact with the employer rather than a much later date after her arrival in Australia. Further, if there was an agreement in place prior to [the applicant]’s arrival in Australia and the position does not exist, a reasonable person would expect [the applicant] still be ‘paid’ according to the contractual terms of employment soon after she landed in Australia to avoid detection by the department instead of delaying in engaging employment and risks exposing the illegal scheme. The fact that the agent demanded further payments from [the applicant] in a later stage and after her inability to start the employment proves that there wasn’t a prior agreement between the parties for payments of a fictional position and salary. Thus, [the applicant]’s claim that she wasn’t aware of any dealings between the agent and the employer prior must be true.

   Secondly, [the applicant]’s claim is consistent with the fact that she and her ex-partner genuinely believed that she was offered the position with the employer in [City], where they made numerous attempts to settle there. The fact that they eventually moved into [City], the fact she even started self-study in accounting to advance her professional knowledge in the nominated position, and the very fact she met the employer with the agent for her employment all prove that she had the genuine believe that the position does exist. We further note that [the applicant]'s ex-partner even declined a full-time job offer and took the part-time role instead, so he can look after their child on the genuine belief that [the applicant] will start full time work with the sponsor soon. If she had the knowledge that the position does not exist a reasonable person would not expect she would act in such ways.

   Thirdly, if both the department’s finding and [the applicant]’s claim that she has no knowledge of such a scheme was in place were true, then we do submit that [the applicant] would be frustrated in meeting her contractual obligations with the unscrupulous employer, she was unable to meet the criteria under S137Q due to circumstance beyond her control, and her visa therefore should not be cancelled under S137Q per the departmental policy.

   Fourthly, if the Tribunal is still of the view that [the applicant] was directly involved in a cash for visa scheme, that the position does not genuinely exist in the first place, then S137Q should not apply as she cannot be making genuine effort to start or maintain her employment for 2 years if the position is fictional. [The applicant]’s visa should not be cancelled under S137Q, and the department would have applied the wrong legislation.

   Lastly, we do submit that on the balance of probabilities [the applicant] acted honestly with the department and the Tribunal, she had the genuine belief that the position did exist, that she acted according to the ‘professional advice’ by the agent, that she made genuine attempts to meet S137Q criteria, that she did make the genuine effort to start and engaged in the employment within a reasonable period, and her inability to do so was due to factors beyond her control, that there are strong compelling and compelling circumstances for the visa not to be cancelled as previously submitted.

   Please do contact us should the tribunal require further information or clarification.

8. The representative also included the following Statutory Declaration from the applicant:

   I, [the applicant] of [Address] make the following declaration under the Statutory Declarations Act 1959:

   1. My name is [the applicant] and I was born on [Date]. I am currently living at [Address] with my [Age]-year-old son, [Master B].

   I Genuinely Believed that the Position was Available to me

   2. In October 2016, I contacted the agent again and was detailed to introduce my circumstances, academic qualifications, IELTS scores and work experience. The agent told me that I have good working experience and English skills, according to their experience, should be able to find a suitable job in Australia and if the employer was willing to sponsor me, then I would be able to migrate to Australia. I asked them how could I find a suitable job in Australia while I was located in China; Google, Facebook and Twitter are all blocked in China due to the country's Great Firewall and Chinese government also limited access to foreign websites. It was very slow to access some foreign websites or it would show error directly. My agent said they could provide us recruitment service if we needed. They had a large network of clients who were looking for staff and some job vacancies would only appear via them. Their team always worked as the conduit between local businesses and overseas workers who looking to migrate. They also said they would do their best to help their clients find an ideal company which is best for their career growth and they had already helped a lot of clients find good jobs and careers. Many oversea workers they served before got promoted in companies and already migrated to Australia. So, I asked them to provide me recruitment service as well.

   3. About one week later, my agent responded me and said that [Company 1], a company in [City] was looking for [an Occupation] and asked me whether I was willing to work there. I was informed that this is not only a genuine position, but also a high potential job. Though the salary was not high, the company is a well-established and accredited company locally and it would be greatly beneficial to my career development.

   4. The employed asked for a lot of information from me for assessment. After they had received my resume and graduation certificates, they further requested to view my master's and undergraduate’s transcripts and my IELTS score. The agency told me that the employer was interested in knowing my average grade points and specific course grades. Later, the agent also asked me a lot about my current position by that time. They told me there were other candidates competing for this offer at the same time. I thought the employer was very prudent and I felt nervous during the process of assessment. Later I was informed that the employer was satisfied with my background after strict assessment of my background. My husband and I were both very excited about this good news.

   5. I sincerely believed it was a genuine position for me with stable income and the employer has decided to hire me, as they have conducted such strict assessment on my background and requested so many documents from me. If it was a cash-for-visa job, they did not have to make it so complicated. When I worried that the employer might not want me because of my pregnancy, they assured me by saying “How great opportunity it is. So many people want this offer, but the employer was not satisfied with them. The employer just like you because of your excellent resume”. That’s why I never had any doubt on it.

   6. I was told that I needed to pay for the visa fee and agent fee, including the agent’s recruitment service, but I was never informed that any money needs to be paid to employer for sponsorship. I am not aware of the transaction took place between the agent and the employer until I was contacted by ABF. The ABF requested my assistance to explain everything I knew and I actively cooperated with them, telling them everything I knew.

   Genuine Efforts I Have Made to Move to [City]

   7. I did make great efforts to relocate to [City] to start the job. In the beginning of May 2018, my husband, my son and I moved to [City]. After my family arrived in [City], we started to seek a rental house. My husband and I both liked [Suburb 1] which is quiet and really beautiful. But it is a little bit far from [Company 1]. It would take about 50 minutes’ drive to and from work. But I did not want to spend much time on commuting. And we gave up the options in that suburb. We could only accept the houses which are within ten minutes’ drive from the company. Then, I inspected 3 houses which are all within ten minutes’ drive from the company and finally signed 12 months lease on one of these properties. From the first day we arrived at [City], we have been actively preparing for my work in [Company 1].

   8. Before the orientation, I had already started to prepare this new job at home. I borrowed a book for [Computer program] from my [Occupation] friend and started to read it, and I also bought related e-books from Amazon. I was actively preparing and expecting the new job at that time.

   9. While I was waiting for my induction in [City], the boss of [Employer] offered my husband a full-time job as their new [workplace] in [Street] was about to open, and my husband declined this full-time offer and only took the weekends and weekday nights positions, because we thought at least one of us need to be available to take care of our young child after I started work. And also, I did not have driving license and my husband needed to drive me to work every workday after I started work. So, we decided that I would be a full-time worker and he would stay at home and took a part-time job. He did not go and look for other full-time job for months until we were informed by the agent that the job was no longer available. If we knew this was a cash-for-visa position, we would not have made so much efforts moving to [City] with my whole family and settled down, while my son was still very young and in poor health. If we knew we would never have the job, my husband would have accepted the full-time job offer and started his full-time job straight away. We did not need to stay at home and waited for so long for the agent’s confirmation and response. We were not in sound financial situation and we eagerly need at least one of us to work full-time and provide family income. However, I thought the starting date was delayed because of myself, as I had to give birth and take care of my newborn child, so I felt very sorry and waited for the agent to talk to the employer and start my full-time work at the meanwhile my husband only took part-time position. I did sincerely believe this is a genuine position for me.

   10. In the end of June 2018 I was informed by the agency that due to the disruption caused by my pregnancy and family affairs; the job was taken by someone else. I was told that the employer was still satisfied with me and wanted me to work for them. I just needed to wait for their arrangements. And they also said they would arrange me to report to the employer first as I was required to start work within 6 months of my first arrival in Australia and the employer would employ me under leave without pay first, then they would arrange new position for me.

   11. Several days before I reported duty to the employer, a lady called [Ms A] added me on WeChat. She told me she was the person who would take me to report to the employer and she also claimed herself as a consultant of [Company 1] who deals with recruitment and visa matters. In the meeting with [Ms A], she said the position was no longer available as the position was already taken by someone else. She also said since I didn’t start working in time, I would face problems with my visa. She demanded more money to resolve this issue. Initially we weren’t prepared to pay her anymore for the visa process, but after considering the risks to our visa, we agreed to her demand.

   12. In Jul. 2018, I was asked to report duty to my employer. I was personally received by my boss that day. I took the initiative to tell my boss that the company was about 7km from my home, and I was learning to drive for my driver's license. I told him that my husband could drive me to work every day. My boss said getting a driver's license wasn't easy and he provided me with a document about production safety and some questions for me to answer. [Ms A] who took me to report to the employer told me to answer the questions after reading he document, then she and the boss went to another office. It took me a little bit long time to read the data and answered the questions that the boss provided. [Ms A] talked with my boss for a while and then came back. After answering the questions, I gave the papers to the boss. After reading the papers, the boss gave me a Policy handbook of the company. At that time, I thought that the action of my boss giving me the Policy handbook might be regarded as a recognition of me to some extent. Through this process, the boss didn’t talk to me much and I didn't know what to talk with him as well. However, [Ms A] seemed to know my boss very well, and I just thought the boss may not be very warm to people that he didn’t know well. After a while, my boss took us to another office to fill up some forms in preparation for employment and a lady started to guide me how to fill in the various forms. I remembered that the lady who assisted me in handling the employment information also kindly said: "we welcome you". All of this made me feel like I was hired, and I would soon begin to work for the company. During the orientation, although the boss did not talk to me much and he seemed a little bit apathetic, which I thought he might be reluctant to talk to people that he didn’t know well, I got to know their workplace and I saw a lot of staffs working for them. It is a well-established company. And I felt relieved and more eager to work for them. This is the first time I attended job orientation in Australia and from my side, I found everything normal.

   13. After the orientation, I self-studied accounting-related skills while waiting for the employer to call me to go to work. I thought after the orientation my job would start very soon. However, up until Sep. 2018, they still did not notify me to start working at company. I became flustered and contacted the agent, [Ms C] again. The agency said that they couldn't help me anymore in my situation. They had done their best to help me to talk to my employer about keeping my job. After some time, the agency told me via WeChat voice call that the situation of the company has changed, and my job is no longer going to be available.

   14. In member’s letter, it is mentioned that [Ms A] as immigration consultant provided the business with [the applicant]’s resume. However, she added my WeChat only few days before my orientation day. I did not know her earlier than that. My agent is [Agency], and the boss of agency is [Ms C], who I have always been contacting. Only a few days before orientation, [Ms C] informed me that a person called [Ms A] would accompany me to report to the employer. I had no idea about the relationship between them or any transaction or agreement between the agency and the employer.

   15. As more related news disclosed, I started to realize what I might have been innocently involved in. If that is in fact the case, I am very sorry and I would be the victim of the scheme between the agency and the employer. I was never told about the amount of money needs to be paid to the employer for the sponsorship. I had always been convinced that it was a real job and I had always felt that the employer decided to hire me after the strict examination of my background. And I did make great efforts to relocate to [City] and start the job. If I had known there was any unlawful agreement, I definitely would not accept this job offer and I would not move to [City]. Now I very regretted trusting them.

   16. I do apologise for not able to relocate to [City] to start my employment immediately after the visa grant. Giving birth to my son had taken so much time and my father-in-law was ill. I was so frustrated with these situations and could not manage everything property. I was very sorry for that.

   17. I have always sincerely believed it was a genuine position from my side. I wasn’t aware of the secret dealings between the agency and employer, so I was not able to make any comments on that whether it was in fact or not. I am so sorry to be a victim in this scheme and I had no intention to lie to anyone. I humbly please the member to consider my personal circumstances and don’t cancel my permanent residency. I would do my best to become a helpful person contributing and serving Australian community.

1. The applicant was informed by the Tribunal that the earlier s.375A Certificate attached to the file had been revoked by the Department.

2. Instead, a s.376 Certificate had been issued and attached to the Department file as follows:

   CERTIFICATE AND NOTIFICATION REGARDING ADMINISTRATIVE APPEALS TRIBUNAL’S DISCRETION TO DISCLOSE CERTAIN INFORMATION UNDER s376 OF MIGRATION ACT 1958

   In Confidence folios

   I notify the Administrative Appeals Tribunal that s376 applies to a written statement by the Managing Director of [Company 1], [Mr *] and the GCN referral of TRIM reference number(s) CLD2021/6515910, CLD2020/38661481, CLD2020/38787360, of file number BCC2020/2720078, because it was given to the Minister, or to an officer of the Department, in confidence, and section 375A does not apply

3. The applicant was invited to comment on the new s.376 Certificate as follows:

   Dear Mr Li

   Please be informed that the 375A Certificate has been revoked (attached) and that the Department has now issued a new s.376 Certificate (attached). The “gist” of the new s.376 Certificate is as follows:

   Australian Border Force inquiries into sponsoring businesses ([Company 1] & [Company 2] (related companies)) have revealed the following:

   ·[Ms A], an immigration consultant, provided the business with [the applicant]’s resume.

   ·[The applicant] was sponsored by the business.

   ·[The applicant] attended an interview and induction in 2017 but did not attend the business afterwards.

   ·The business received $15,000 cash payment to cover [the applicant]’s first 3 months’ salary in addition to payment of the balance of the contract being $29,000.

   ·[Ms A] visited the business in 2018 and asked that the contract documents be destroyed.

   The Tribunal is of the opinion the s.376 Certificate is valid.

4. The applicant replied to the Invitation to Comment as follows:

   Dear Registrar,

   In response to your request dated 22nd Nov 2021, we are instructed to provide the following documents:

   1.        Statutory Declaration 23 Nov 2021

   2.        Conversation Record with Agent

   3.        [Master B] In Better Health Condition in Australia

   4.        [Master B] Frequently Entered Hospital During His Short Stay in China

   Should you have any further inquiries, please do not hesitate to contact us.

   Kind regards,

   Lu (Gloria) Zhang

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   THE HEARING

6. The Tribunal addressed the issue of genuine intent and its effect on the cancellation power of the delegate. Cancellation can be compulsory or discretionary - it informed the applicant. The delegate found that the applicant had

   ‘completed one day of employment with their nominated employer, [Company 1]’.

7. The delegate found that:

   ‘the visa holder did not complete the required two years of employment with their nominated employer, [Company 1], for which they were nominated under the RSMS program nor did they make a genuine effort to do so’.

8. The delegate decided that the applicant should be cancelled. The Tribunal on review could set aside or affirm that decision as the decision was discretionary.

9. The Tribunal then informed the applicant it was aware of her circumstances and personal history since her visa grant and which she had outlined in her documentation. This included her marriage breakdown and distress, her baby son’s ill health, her income, her integration into the community, her return to China due to her father in law’s illness, her determination to return to [City], her marital separation, her loss of twins, her desire to stay in Australia. She had also presented various complimentary testimonials from [City] residents and the Chinese community. She indicated they had helped them on many occasions and wanted her to remain in [City].

10. The Tribunal asked the applicant about the migration agent who had facilitated her visa. The person in charge was [Ms C] – she informed. In an answer to a Tribunal question the applicant said she had not been reading the English language press. She did not know that the ICAC (NSW Independent Commission Against Corruption) were looking to speak to [Ms C], but it appears she had left the country. She was believed to be overseas. It appears she is an Australian citizen.  The applicant was asked whether she had ever met [Ms C]. She said she had met her once when she was in Sydney grocery shopping and [Ms C] had gifted her son a toy type lolly pop.

11. The Tribunal asked the applicant whether she knew a person called [Ms A]. Yes, she replied. She was the person who brought her to see the employer in [City]. She called herself an ‘employee consultant’.

12. The Tribunal informed the applicant that [Ms A] was a witness at ICAC - according to the Sydney Morning Herald (SMH). She was linked to Mr Darryl Maguire (the former Member for Wagga Wagga in the NSW Parliament) in an alleged ‘cash for visas’ scam. [Ms A] told ICAC that Chinese visa applicants were sourced from a list held by [Ms C].

13. The Department of Home Affairs Secretary (Mr Pezzullo) told the SMH that his Department was investigating the matter alongside the ICAC. This was also in reference to Mr Darryl Maguire (former State MP for Wagga Wagga) according to the article in 2021. He had been using a company to facilitate the alleged scam - but not Auskey Visa Solutions owned by Ms Hao.

14. The Tribunal then addressed the s.375A Certificate on the Department file. It asked if she had seen it. The applicant said she had not received it. The representative said he had received it and he thought his colleague passed it on to her. She then informed that she had seen the email but had not seen the actual Certificate. The Tribunal then read out the s.375A Certificate for her edification. The Tribunal then explained what the Certificate entailed.

15. The Tribunal informed the applicant that there was a Border Force and ICAC investigation going on concerning the [City] area and that two of the people she had named were involved in the investigation. There was the Certificate and there was the allegation that the two named people (who were also named in the SMH) as part of the investigation into the former Member for [City] in the NSW State Parliament - Darryl Maguire. The Tribunal invited the applicant to comment on the individuals in question.

16. She then indicated she had been sent from China to [University] on a separate visit to Australia and she came across the migration agency when out shopping In [Suburb 2] She went in and asked them whether she was eligible to migrate. The employee told her that based on her English fluency and academic skills and if she had a willing sponsor, she would be eligible to migrate. She further asked what the likely salary would be like. They told her it would be around AUD$50,000. As the figure was not much different to her Chinese salary, she decided to return to her teaching position in China. In 2016 she was pregnant, but her twins passed away. She felt miserable and wanted to leave China and reached out to [Ms C] for advice in October 2016. She did not feel that [Ms C] was involved in the alleged activities.

17. She informed that in November 2020 [Ms C] had called her. She revealed that people were investigating the [City] matter and instructed her not to contact her or reply to emails or calls and not give out any information. She was very confused. [Ms C] hung up suddenly and when she called her back, she did not answer the telephone. She then realized the job in [City] was not real. She had previously believed it was - based on the strict vetting of her background curriculum vitae. She had a comfortable job in China, and she would not have thrown it in to work in a distant country town in another land on a whim.

18. The Tribunal then presented the adverse information in the Department decision. She had given some of the reasons to the delegate it identified. The Tribunal, however, wanted to talk about another matter. This concerned the actual day when she met her sponsor employer in [City].

19. The Tribunal asked her what she did when she showed up to work at [Company 1]. She informed that she attended work at the nominated employer. According to the employer’s version she showed up at the induction - but did not return. She replied to the Tribunal that she went to [City] in May 2018. This was 5 months after her arrival. She was worried even though the agency told her not to worry. By the end of July, the agency told her that, as she was pregnant, they had given another person the job. She did not go back because the agency told her to wait. They still wanted her because of her Chinese connection. But [Ms C] told her to stay at home and to report to the employer in early July. She was to wait for their call from the employer. She would be notified to start work. She and her husband stayed home because her son’s health was not good. They decided not to send him to preschool - to prevent infection with his medical problem. Neither sought a full-time job for that reason and they awaited the call. She planned to work full time. She was waiting and called the agency to ask. Then subsequently they told her in late September that the circumstances had changed. The job was no longer available.

20. The Tribunal asked her why, subsequently, she or her husband did not approach [Company 1] directly with her husband. The applicant responded that the agency had told her before to contact them first. She was warned of adverse consequences if she did not do exactly as they asked. On the orientation day she met the boss, but she told the boss she was 7 kilometres away and she was learning to drive. The boss told her the license was not easy to obtain. The boss did not talk much to her and he was quite familiar with [Ms A] who brought her over there. She took it that he was not comfortable with people he did not know well so she thought it better to let [Ms A] do the talking. When she was filling in the information [Ms A] and the boss went to a different office together, so she was not aware of anything they said.

21. The applicant confirmed that [Ms C] was the main person she talked to. She did not know what to do. They had sold their home in China and moved everything to Australia. She had resigned her job. [Ms C] blamed her for the baby situation and the outcome of the process. They then both decided to stay in [City]. The Tribunal said it had read all the information concerning her integration with the [City] community.

22. The Tribunal then summarised her visa history in a nutshell. She informed she had met [Ms C] initially in an office in [Suburb 3] on level two of the building. When she decided to migrate to Australia, she naturally approached her. [Master B] was born in China and was [Age] months old on arrival. He has thalassemia. She had no reason to refuse the job as they were living on her husband’s part time job and they really needed the money. She conceded that it was her fault that she delayed things due to [Master B]’s birth. They claimed her having the baby and then sudden return to China for her husband’s father’s illness was her fault and the delay and disruption caused the employment problem. Nevertheless, they still needed someone of Chinese background but there was no immediate job.

23. The Tribunal ascertained that the applicant arrived in Australia [in] December 2017. [Master B] was born in the August. She was told they would employ her in [City]. Her husband returned first to China. [Master B] got a fever in late January, so she left the return to China to February. [Master B] had further issues with his illness in China so she did not return till May 2018. One of the reasons given by the agency for their lack of follow up employment was blamed on this event.

24. The Tribunal then informed the applicant of the hardship considerations available in a situation of potential breach of s.137Q. This included her quitting her job and selling up everything to go to Australia.

25. The Tribunal asked the applicant why the employer claimed that after the induction that she just did not show up to work. She was asked if the actual employer had ever contacted her subsequently. She replied that she believed that the job offer was genuine. She wondered whether the pregnancy was the fault. The agent told her multiple applicants had applied but they only wanted her. She could give screen shots for the Member to peruse if it he wanted proof of this claim. Hence, she firmly believed the offer. She had left all her contact details with the employer but was not contacted. She was clueless why they would not have contacted her, and it was very strange.

26. The Tribunal opined that unusual behaviour in [City] had attracted the attention of ICAC and the named individuals were being investigated. A Border Force investigation was also ongoing. When she was cautioned by the agent, she thought there was no reason to intervene further until she was called by Border Force. She was happy to tell them the whole truth. She had been even made an appointment which was then cancelled by them due to COVID19. They then asked for a full statement which she gave them gladly. They informed her that due to her comprehensive statement they did not need to speak to her again. No authorities had contacted her subsequently. She had never seen [Ms A] in [City] or [Ms C] again.

27. The applicant was asked whether she wanted to make a personal statement. She indicated she did. She said that she had never paid any money to the employer and believed that the job offer was genuine. She relocated to [City] and despite the job fiasco she still lived there. She asked the Tribunal to consider her child and her marriage ending and her general situation.

28. The applicant’s representative opined that if there had been a serious Border Force issue with the applicant she would have been cancelled under different sections of the Act.She appeared to be of no further interest to Border Force

29. The Tribunal opined that having read the SMH information that was a question it intended to ask. The Tribunal asked the representative whether her Border Force statement was confidential. He replied that he was not representing her at that time but opined that there was no further evidence adduced and she was cancelled under s.137Q. She had remained in [City] and her intention was always to work there. She did not intend to breach s.137Q. The position of [Master B] - a permanent resident - must always be considered. [Master B] was still at preschool.

30. The applicant informed that each day she takes care of [Master B] and home schools him as he was still awaiting a school placement. On weekend friends helped look after him so she could work and was informed that there was always a job there for her and if she went back to work - childcare arrangements could be made for her.

    CONSIDERATION OF CLAIMS AND EVIDENCE

31. Under s.137Q the Minister has the power to cancel a ‘regional sponsored employment visa’ on specified grounds. ‘Regional sponsored employment visa’ means a visa of a kind included in a class of visas that has the words ‘Employer Nomination’ in its title and is prescribed by the regulations for the purposes of the definition in s.137Q(3). The visas currently prescribed by r.2.50AA of the Migration Regulations 1994 are: Subclass 119 (Regional Sponsored Migration Scheme); Subclass 187 (Regional Sponsored Migration Scheme) and Subclass 857 (Regional Sponsored Migration Scheme).

    Does the ground for cancellation exist? (employment terminated within 2 years)

32. Under s.137Q(2) the Minister may cancel the visa if satisfied that the visa holder commenced the employment referred to in the relevant employer nomination (whether or not it was commenced within the period prescribed by r.2.50AA); and the employment terminated within 2 years of the person commencing that employment; and the person does not satisfy the Minister that they made a genuine effort to be engaged in that employment for the required 2-year period.

33. Findings and reasons on:

    ·the employment referred to in the related employment nomination.

34. The Tribunal is satisfied that the applicant visa holder commenced the employment referred to in the relevant employer nomination in that she performed an orientation day at the employer’s [City] office - including signing paperwork.

    ·whether visa holder was engaged in that employment for 2 years, and

35. The Tribunal finds that the applicant visa holder was not engaged in that employment for 2 years as she was informed by her agent that her job was no longer available.

    ·if not, whether the Tribunal is satisfied the visa holder made a genuine effort to be engaged for the 2-year period.

36. The Tribunal finds from the applicant’s evidence that the applicant visa holder did make a ‘genuine effort to be engaged for the 2-year period’. However, it appears she was a victim of a (now established) migration scam and was unable to work for the 2-year period by the non-performance of her employer of its visa obligation. The Tribunal notes that she has remained living with her son in [City] and has provided evidence of her genuine and successful proactive engagement with her local community.

37. For these reasons, the Tribunal is not satisfied that the relevant ground for cancellation in s.137Q exists. It follows that the power to cancel the applicant’s visa does not arise.

    DECISION

38. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa.

    Michael Cooke

    
    

    Senior Member