Bai (Migration)

[2022] AATA 1847

Bai (Migration) [2022] AATA 1847 (19 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Yutian Bai
Ms Yuexin Sheng
Master Tianyang Bai
Master Tianyu Sheng

REPRESENTATIVE:  Mr Simon Morris, solicitor

Mr David Sulan, S.C.

CASE NUMBER:  2117999

HOME AFFAIRS REFERENCE(S):          BCC2020/2009840

MEMBER:Alan McMurran

DATE:19 May 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 186 -  Employer Nomination Scheme visa.

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 19 May 2022 at 6:23pm

CATCHWORDS

MIGRATION – cancellation – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 Employer Nomination Scheme – position of Finance Manager – applicant failed to notify the Department of change to sponsored occupation – non-compliance as described in the notice – changes in circumstances between application and immigration clearance – applicant appointed as Director of a related entity – applicant performed the nominated role – cancellation power does not arise – decision under review set aside      

LEGISLATION

Migration Act 1958, ss 5(1), 97-105, 107-109, 140
Migration Regulations 1994, r 2.41

CASES

Salama v Minister for Immigration and Border Protection [2017] FCA 2
Sandoval v Minister for Immigration and Multicultural Affairs [2001] FCA 1237; (2001) 194 ALR 71

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 30 November 2021 for review of a decision made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 186 - Employer Nomination Scheme visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the visa holder failed to inform the Department of his change in circumstances prior to being immigration cleared, namely that the applicant would be performing the occupation of Non-Executive Director with ASF Kaili Resource Pty Ltd (‘the nominator”), which, if correct, enlivened grounds for cancellation under section 109 of the Act.

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. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant).

   Second, third and fourth-named applicants

5. The visas in respect of the second to fourth-named applicants (“other applicants”), were automatically cancelled as a consequence of that cancellation, not by a decision, but by force of the operation of s 140(1) of the Act, which provides that where the Minister’s powers to cancel arise under s.109, a visa held by another person because of being a member of the family unit of the (primary) person, is also cancelled.  

6. As no decision was involved in the visa cancellation under s 140(1), the Tribunal has no jurisdiction with respect to the other applicants.

   Hearing

7. The applicants appeared in person before the Tribunal on 29 April 2022 to give evidence and present arguments. The Tribunal received oral evidence from the first and second-named applicants, and from Mr. Jianzhong Yang and Mr. Long Zhao. Several other witnesses were made available by telephone and video should they be called upon by the Tribunal. They were not called upon for oral evidence.

8. On inquiry by the Tribunal, no adjournment was sought or further extension of time, and the applicants indicated they were ready to proceed. The Tribunal has set out the evidence below in these reasons.

9. The applicants were represented in relation to the review. The applicants’ Senior and Junior counsel appeared for the hearing with the applicants’ solicitors, from the firm Piper Alderman. Senior Counsel, Mr Sulan S.C., made some further oral submissions when invited to do so by the Tribunal on conclusion of the hearing, and provided a further written submission on 16 May 2022.

10. The applicants and witnesses were assisted at hearing by an interpreter in the Mandarin to English languages. No issue was raised as to the interpretation provided on the day by the witnesses, or by the interpreter herself.

    Outcome

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware, and of any relevant changes in circumstances.

13. The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

    Background

14. The applicants are all citizens of the Peoples’ Republic of China. The first named or primary applicant (“the applicant”) is 41 years-old and has accounting qualifications and a financial management background, both in China and in Australia. The other applicants as family members are the spouse of the applicant and his two children aged respectively 14 and 6.

15. The applicants all reside in Sydney, where the applicant works and runs his own company business. The children attend school and are cared for primarily by their mother, who does not work at present.

16. The applicant has been granted 3 substantive visas to enter Australia. Firstly, in January 2013 on a short stay (Business) Subclass 456 visa, then on 14 March 2014 a short stay (Business) Subclass 600 visa (for 3 years), and finally, an Employer Nomination Scheme, Direct Entry Stream (Subclass 186) visa, on 18 May 2017 ( “the visa”). The visa allows skilled workers who are sponsored and nominated to live and work in Australia permanently.

17. This was the visa cancelled by the Department. Consequent upon the cancellation, the applicant has lost his substantive visa and is prevented from making application for a further substantive visa, or for citizenship, pending this review. If the review is unsuccessful, the applicant and the family must return to China. The applicant currently was granted a Bridging visa, to await the visa outcome.

18. The applicant was nominated for the position of ‘Finance Manager’ (ANZSCO code 132211), which includes the alternative title of ‘Chief Financial Officer’. The applicant has set out in detail his working background in an affidavit produced for these proceedings, and not reproduced in these reasons, other than relevantly for the purposes of decision-making.

19. The applicant and his family migrated from China to Australia where they have lived permanently since August 2017.

20. The applicant was sponsored by ASF Kaili Resource Pty Ltd (“ASF”), a corporate entity, validly registered, operating, and active in Australia and since re-named Kaili Minerals Management Pty Ltd (“the nominator”). The nomination by ASF was approved for a Finance Manager on 16 May 2017, and the applicant granted the visa on 18 May 2017.

21. The Department issued a Notice of Intention to Consider Cancellation under s.107 of the Act (“the NOICC”) on 26 October 2020. The applicant responded by his solicitor to the Department on 6 November 2020. The Department considered the applicant’s response and then decided under s.108 that there was non-compliance in the way described on the NOICC, and in the exercise of discretion, proceeded to cancel the visa under s.109. The cancellation was issued on 25 November 2021.

22. The applicant was engaged to work for ASF in the position of Chief Financial Officer (“CFO”) under a contract of employment dated 8 April 2016, and which employment commenced in Australia on 1 November 2017. The employment ceased by agreement on 1 November 2018, following a change in ownership and management of the nominator.

23. There is no issue that the applicant was engaged to work for ASF, but the issue arising concerns whether the applicant failed to notify the Department after lodging the visa application, that his sponsored occupation had changed from CFO to that of a Non-Executive Director (“the director role” / the “director”) with ASF. The factual details are outlined below. The applicant was appointed director on 9 November 2016 to the Kaili Resources Group, Kaili Resources Limited (”Kaili Resources”). Importantly, according to the ASIC records and the available information, and contrary to the delegate’s finding, the applicant was not appointed as a director to ASF, but only to Kaili Resources.

24. S.104 of the Act requires that changes to circumstances are to be notified where the applicant is outside Australia after the application has been made and before the applicant is immigration cleared.[1]

    [1] S.104(3)

25. In this instance, the applicant remained in China after making the application on 26 July 2016 and did not advise the Department of his appointment as the director of Kaili Resources before he was immigration cleared on his arrival in Australia on 2 August 2017.

    Submissions and applicant’s information relied upon

26. The applicant has made lengthy and multiple submissions in support of the application.

27. The submissions in summary set out the statutory framework for cancellation, the factual background, supporting evidence from the applicant with affidavits from officers of ASF and Kaili Resources, legal submissions as to why the Tribunal should find that the cancellation power does not arise, and a detailed analysis of supporting cases and court decisions.

28. The Tribunal does not repeat all those detailed submissions here which would be impractical and unnecessary and which are now contained in the Tribunal’s file, reduced to 3 volumes of documents for the hearing, and more than 2000 folios. The Tribunal however has had regard to the available information, considered all the documents produced, the oral evidence, and as outlined below, the information necessary to support relevant findings in these reasons.

29. In addition to the legal arguments submitted and dealt with concerning the NOICC, the applicant has also addressed some of the discretionary elements[2], with lengthy submissions on whether those discretionary considerations weigh in favour of not cancelling the visa.

    [2] Reg.2.41

30. For reasons of preserving where possible the applicant’s confidentiality and privacy as to facts and circumstances affecting the applicant’s family, and where it is not necessary to repeat those submissions and supporting information and documentation in order to conclude the decision-making process, those personal family details are not repeated or set out in these reasons.

31. Suffice to point out, that the Tribunal has considered all the materials submitted. The decision, however, deals only with those matters necessary to conclude the matter and not otherwise.

    Did the NOICC comply with the requirements in s 107?

32. In the present case, there is firstly a question as to whether the notice issued by the Minister’s delegate complied with s 107.

33. S.107 states (in part):

    (1)“If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101,102,103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

    a.Giving particulars of the possible non-compliance;

    b.Stating that, within a period stated in the notice as mentioned in subsection 1A, the holder may give the Minister a written response”…[extract ends]

34. S.108 provides that the Minister is to consider any response and decide whether there was non-compliance in the way described in the notice [3][emphasis added].

    [3] S.108(b)

35. In this instance, consideration by the delegate included the delegate’s findings that:

    ·the ‘change of circumstance’ was the applicant’s appointment as director of another company, Kaili Resources Ltd,  which occurred before the lodgement of the application;

    ·the applicant’s appointment as a non-executive director of that corporation, seven months before his engagement as an employee of the nominator was a change of occupation, and not the employment relied upon by the applicant in the contract of employment as finance manager;

    ·the applicant did not disclose to the Department his engagement as non-executive director and this ‘change of circumstance’ to his visa application;

    ·the applicant was remunerated as a ‘director’ by the applicant, according to an ASIC report; the applicant’s tax return also referred to his employment as ‘director’, using a different ANZSCO code and which was the basis for his income declared to the ATO;

    ·there was no additional information available to the department officer to show the applicant actually performed the role of ‘finance manager’ with ASF.

36. In deciding what role the applicant was actually performing after the visa was granted, the delegate gave weight to the available objective information, comprising the ASIC report on his appointment, the applicant’s submitted tax returns describing him as a ‘director’, the different ANZSCO code reference to that of Finance Manager in the ATO returns, and the dearth of information of what tasks the applicant actually performed in terms of his duties in the role he was performing.

37. The applicant did not seek to challenge the issue of the NOICC and made no submissions that the notice should not have been issued. The focus of the applicant’s challenge was that the delegate wrongly decided that there was ‘non-compliance’, because of a factual error in the notice. If the error was proved, then the submission followed that the power to cancel the visa under s.109 did not arise, because there was no non-compliance in the way described in the notice.

38. Taking into account the information considered and available to the Minister’s delegate, and the particulars provided in the NOICC of possible non-compliance, the delegate had reached the state of mind necessary to conclude that the applicant had failed to comply with s.104 by not advising the Department of his change of circumstance, and which information affected the decision to grant the visa.

39. Whether the non-compliance relied upon in the NOICC was made out, or in error, is a separate question, and dealt with below. As already noted, the applicant seeks to challenge the finding that there was non-compliance in the way described in the notice and the ensuing decision under s.108.

40. The consideration by the delegate, including rejecting the applicant’s response, prefaced the decision under s.108 that there was non-compliance. The delegate considered that[4] :

    ·The decision to grant the visa holder an ENS visa was wholly based on incorrect information in that the visa holder failed to notify the Department under s.104 of the change to his circumstances prior to being immigration cleared, namely that he would be performing the occupation of Non-Executive Director with ASF Kaili Resource Pty Ltd.

    ·In response to the Notice, the visa holder stated the description of his occupation in his tax returns has no bearing on the income derived nor does it alter the fact he was employed in the CFO position that was nominated in the visa application.

    ·The visa holder failed to provide any evidence to indicate that, upon his arrival in Australia, he actually performed the role of ‘Finance Manager’, the position that was nominated in the visa application, and the occupation which enabled the visa to be granted, and where the applicant otherwise may not have been eligible for the grant of the visa.

    ·The circumstances in which the non-compliance occurred when the visa holder failed to inform the Department of his change in circumstances prior to being immigration cleared, enlivened grounds for cancellation.

    [4] Department cancellation decision 25 November 2021 at par (d) under “Part D – decision whether to cancel”

41. The issue of a s.107 notice is a precondition to deciding whether there was non-compliance by the visa holder under s.108, in the way described in the notice. In doing so, the delegate in this case had regard to the applicant’s response as provided by his representative within the required period for responding.

42. The Tribunal finds that the delegate had reached the necessary state of mind to engage s 107, and that the notice issued under s 107 complied with the statutory requirements.

    Was there non-compliance as described in the s.107 notice (NOICC)?

43. The ensuing issue is whether there was non-compliance in the way described in the NOICC, and if so, whether in the proper exercise of discretion[5], the visa should then be cancelled.

    [5] Having regard to the matters in r.2.41

44. The possible non-compliance identified and particularised in the NOICC, issued 26 October 2020, was non-compliance by the applicant with s.104 of the Act, in the following respects:

    ·that the applicant did not notify the Department that he was appointed Non-Executive Director (“NED”) with ASF Kaili Resource Pty Ltd on 9 November 2016, six months prior to the grant of the ENS visa.

    ·that he failed to notify the Department of the change to his circumstances before being immigration cleared, which rendered incorrect answers already given in the visa application, namely on page 11 where he answered the nominated position was ‘Finance Manager’, and page 19 where he stated ‘yes’ to agreeing to undertake this position for at least two years

45. The statutory scheme under the Act has been summarised in the applicant’s detailed submissions made 22 April 2022 and is not repeated here. Section 104, relied upon as the reason for issuing the Notice, is set out in full in the Attachment to these reasons.

46. The Tribunal’s inquiry set out to determine on the available objective information responses to the following factual inquiries:

    ·What was the timeframe for the applicant’s NED appointment

    ·When was it made and recorded by the regulator (ASIC)

    ·Was the appointment as NED to the nominator, or a related or subsidiary company, and if so, was that appointment a relevant “change of circumstance” to the nominated position

    ·Did the applicant perform work in the nominated position, or as NED, or both

    ·What is the relevance of errors in the ATO information provided about the applicant’s position and salary information produced

    ·In sum, was there non-compliance by the visa-holder in the way described in the NOICC

47. The Tribunal finds it useful at this point to set out in full, so as not to dilute or reframe the context, the applicant’s latest written submissions[6]:

    [6] 16 May 2022

    “APPLICANT’S SUPPLEMENTARY SUBMISSIONS

    1.These submissions are filed pursuant to the invitation extended by the Tribunal during the hearing of 29 April 2022. They supplement Mr Bai’s submissions filed 22 April 2022 (AS) and should be read with those submissions. These submissions are not intended to replace AS. Mr Bai continues to rely upon the evidence filed with the Tribunal.

    The relevant question for the Tribunal

    2. It is a jurisdictional precondition to the exercise of the Tribunal’s discretion to cancel Mr Bai’s visa under s 109 of the Migration Act 1958 (the Act) that the Tribunal first decide under s 108(b) that Mr Bai did not comply with s 104(1). In so deciding, the Tribunal is limited to considering whether Mr Bai did not comply with s 104(1) in the manner described in the s 107 notice issued to Mr Bai.

    3. Section 104 provides: [extract from the Act omitted]

    4. Mr Bai submitted his application form on 26 July 2016: CB 35. He received his visa on 18 May 2017 (CB 177), at a time when he was outside of Australia. Mr Bai was immigration cleared on 2 August 2017 (Bai I, [33]). Accordingly, s 104(1) only applies to changes in circumstances between 26 July 2016 and 2 August 2017: s 104(3).

    5. The relevant question is, therefore, whether there was a change in circumstances between 26 July 2016 and 2 August 2017 that meant that an answer in Mr Bai’s application form was incorrect in the way specified in the s 107 notice in the new circumstances.

    The correct legal approach to incorrectness

    6. Under s 101 of the Act, a non-citizen is required to ensure that “no incorrect answers are given or provided” in an application form for a visa: Visa applications to be correct. A non-citizen must fill in or complete his or her application form in such a way that: (a) all questions on it are answered; and (b) no incorrect answers are given or provided.

    7. As Gray J explained in Sandoval v Minister for Immigration and Multicultural Affairs [2001] FCA 1237; (2001) 194 ALR 71 at 83–84 [38], s 101 was inserted into the Act by the Migration Reform Act 1992 (Cth) (as amended by the Migration Amendment (Border Integrity) Act 2007 (Cth), which inserted the words “or complete” into the chapeau to s 101 and the words “or provided” in s 101(b)). Before the enactment of s 101, the Act provided that non-citizens who had entered Australia may become illegal entrants in circumstances where the visa holder had given “a statement that was false or misleading in a material particular”: see s 20(1)(c)(ii) of the Act as at 31 December 1989; see also the Explanatory Memorandum to the Migration Reform Bill 1992, pp 6–7 and 30–3. In Sandoval at [46], Gray J held that the legislature’s abandonment of the term “misleading” in favour of “incorrect” suggested that “whether an answer passes the test of s 101(b) is to be assessed on what is in, rather than what is omitted from, the answer” (emphasis added). In Salama v Minister for Immigration and Border Protection [2017] FCA 2 at [64], her Honour Perry J endorsed that reasoning.

    No incorrectness in the manner described in the s 107 notice

    8. The focus has to be on what the s 107 notice says. The notice stated (and see CB 307):

    “Possible non-compliance with section 104 It appears you have not complied with section 104 of the Act because you did not notify the Department of the change to your circumstances, namely that you were appointed Non-Executive Director with ASF Kaili Resource Pty Ltd on 9 November 2016, six months prior to the grant of your ENS visa. If you failed to notify the Department of a change to your circumstances before being immigration cleared which rendered answers in that visa application incorrect, namely on page 11 where you answered your nominated position was 'Finance Manager', and page 19 where you stated 'yes' to agreeing to undertake this position for at least two years, you did not comply with section 104 of the Act.”

    9. This proceeds on the basis of two mistakes.

    10. Mr Bai was not at any time appointed a director of ASF Kaili Resource Pty Ltd (ASF Kaili): CB 1035-1045. He was only ever appointed as a non-executive director of Kaili Resources Limited (Kaili Resources). Kaili Resources is a different company to ASF Kaili.

    This mistake, of itself, is a sufficient basis to set aside the delegate’s decision to cancel Mr Bai’s visa. There was no incorrectness in the way set out in the s 107 notice. The Tribunal does not need to go further.

    11. Separately, however, the fact Mr Bai was appointed a non-executive director of Kaili Resources on 9 November 2016 as an additional role to his executive employment function as CFO of ASF Kaili does not mean he breached s 104. This is because Mr Bai’s appointment as a non-executive director of the parent company (Kaili Resources) did not mean that he did not intend to act as CFO of ASF Kaili – it did not make the answer that Mr Bai gave in his application incorrect in the sense explained in Sandoval.

    12. So much was apparent from three key aspects of the evidence that emerged (consistently with the affidavit evidence) at the hearing.

    13. First, although Mr Bai was appointed non-executive director of Kaili Resources on 9 November 2016, Mr Bai was never paid for that role. He only commenced receiving a salary ($185,000 per annum) when he started working as the CFO of ASF Kaili in November 2017: Bai I, [34], CB 285-296, 298-299, 301. This salary, and the fact and timing of its payment, was entirely consistent with the contract provided to the Department in support of Mr Bai’s application (CB 264-273). In other words, Mr Bai’s appointment as non-executive director of Kaili Resources did not change his obligation to work as CFO of ASF Kaili and did not change how he was paid by ASF Kaili for that work.

    14. Second, Mr Bai actually did the work that he was engaged to do as CFO.

    15. ASF Kaili was the administrative hub for the broader Kaili Resources Group: Yang I, [13.4]- [13.5]. Mr Yang explained to Mr Bai before he took up the role of CFO of ASF Kaili that the Kaili Resources Group was in need of serious capital investment. It was Mr Bai’s role as CFO of ASF Kaili to obtain that investment, consistently with the skills that he had developed including in his companies in China (and see Bai I, [28]; Yang I [16], see also Bai I, [13]-[23] and [35]-[36]).

    16. In short, it was Mr Bai’s role as CFO of ASF Kaili to hook a ‘big fish’ investor for the broader corporate group. This is what Mr Bai sought to do. Mr Bai’s evidence is set out in some detail in his affidavit (Bai I, [34]-[49]). There is no reason for the Tribunal to disbelieve that evidence: each of Mr Yang and Mr Zhao substantially corroborate Mr Bai’s account (and see also Yang I, [20]-[23]; Zhao I, [9]-[16]).

    17. It is true that the Tribunal does not have before it written budgets, spreadsheets, or documents of that nature, evidencing the work that Mr Bai did as CFO of ASF Kaili. While this may be counter-intuitive from an Australian perspective, the lack of this material is explicable by two things, being:

    a. the different cultural practices associated with ASF Kaili. As Mr Bai explained at the hearing, his meetings at ASF Kaili were informal or by telephone, something which Mr Bai explained “might be due to the different culture of Australia and China. We generally have meetings not like sitting down very formally”; and

    b. the size of ASF Kaili. Each of Mr Bai, Mr Yang and Mr Zhao gave evidence that there were only about five people employed by the company. It is not unexpected that there would be limited documentation produced.

    18. Ultimately, Mr Bai succeeded in hooking the ‘big fish’ investor. Yitai Group (Hongkong) Co., Ltd invested through a subsidiary in April 2018 (Bai I, [45], [48]; CB 279-280). Thereafter, Mr Bai left the company: Bai I, [49].

    19. Third, each of Mr Yang and Mr Bai gave evidence that, in contrast to his work as CFO of ASF Kaili, Mr Bai’s work as non-executive director of Kaili Resources was very limited. Mr Bai gave oral evidence that he attended one or two board meetings as a non-executive director of Kaili Resources, and that he signed documents that were presented to him. Mr Yang gave oral evidence that was in substantially similar terms. Neither Mr Bai nor Mr Yang regarded Mr 4 Bai’s role as non-executive director of Kaili Resources as of especial significance: Bai I, [58]; Yang I, [25].

    Conclusion

    20. For the reasons set out above, also in AS, the jurisdictional precondition to the Tribunal exercising its discretion under s 109 to cancel Mr Bai’s visa has not been met. The Tribunal should accordingly set aside the delegate’s decision to cancel Mr Bai’s visa.

    21. If, contrary to this, the Tribunal finds Mr Bai has not complied with s 104 of the Act in the way set out in the s 107 notice, then, for the reasons set out in AS, the Tribunal should, in the exercise of its discretion under s 109, set aside the delegate’s decision to cancel Mr Bai’s visa.

    David Sulan SC Dominic Delany Banco Chambers Alinea Chambers 16 May 2022”

1. In dealing with the factual inquiry referred to above, the Tribunal finds that the relevant timeframe for notification in accordance with s.104 is as submitted, in the period 26 July 2016 to 2 August 2017 (“the relevant period”), being from lodgement of the application until the applicant was immigration cleared.

2. The Tribunal finds that the applicant was appointed NED during the relevant period on 9 November 2016, and held that appointment until his resignation, recorded by ASIC on 9 November 2018.

3. The Tribunal finds, however, that the NED appointment of the applicant was to a separate corporate entity, Kaili Resources Ltd, a part of the Kaili Resources Group of companies, and at law a separate legal entity. This was an error in the NOICC[7], and as submitted by the applicant, the applicant was not appointed to a role as director of ASF during the relevant period, or at all.

   [7] NOICC, under the heading “ Possible non-compliance with section 104”

4. It follows that the Tribunal finds therefore it is satisfied that there was no incorrectness in the way set out in the s 107 notice, and the applicant’s submission must be accepted.

5. The Tribunal has also had regard to the applicant’s oral evidence in addition to his affidavit, and the evidence of Mr Yang and Mr Zhao. The Tribunal accepts that evidence.

6. The Tribunal finds on the evidence that the applicant had the necessary skills and qualifications acquired over his lengthy financial experience in China and then in Australia, first as an accountant and financial executive with the PRC, and then on his own behalf as financial manager of ASF, charged principally with responsibility for the continued viability of that enterprise and subsequently its financial partnership and acquisition by a substantial investor. It follows that the Tribunal finds it is satisfied that the applicant in fact performed the role for which he was nominated, as financial manager/CFO of ASF.

7. The Tribunal has considered what follows from the clear error by the accountant in preparing the company information and personal taxation returns for the applicant. The evidence is that the applicant delegated this responsibility which he left to Mr Zhao as the company’s accountant. The applicant stated in evidence that he checked the return when presented to him, but only “for the figures” (or words to that effect). He did not notice the description that he was being paid as a ‘director’. The evidence did confirm however, that despite that error, all salary payments to the applicant were made in fact by ASF, not from the entity  Kaili Resources Limited. The evidence shows and the Tribunal finds that the applicant received no payments for his role as NED.

8. The Tribunal finds that there is nothing in the disclosed reporting error as to his job description to the ATO that changes the actual role and tasks performed by the applicant. In answering its own question, the Tribunal finds that the applicant’s admitted errors of fact do not alter the finding as to what circumstance existed during the relevant period, namely, that the applicant was performing the role for which he had been nominated.

9. Cumulatively, having listened carefully to the evidence at hearing, and having considered all the available information, the Tribunal finds that the submissions set out above align with the Tribunal’s factual findings that there was no non-compliance as claimed in the NOICC.

10. As a result, the Tribunal finds that the cancellation power under s 109 was never enlivened as the claimed non-compliance in the notice had not occurred, and the decision must be set aside.

    Conclusion on non-compliance

11. The Tribunal finds that there was no non-compliance by the applicant in the way described in the s 107 notice.

12. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

    Second to Fourth named applicants

13. As no decision was involved in the visa cancellation under s 140(1) in respect of the family members, the Tribunal finds it has no jurisdiction with respect to the other applicants.

    DECISION

14. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 186 -  Employer Nomination Scheme visa.

    The Tribunal has no jurisdiction with respect to the other applicants.

    Alan McMurran
    Member

    
    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

    (1)In this Act, unless the 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.

    97Interpretation

    In this Subdivision:

    application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

    passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

    Note:Bogus document is defined in subsection 5(1).

    98Completion of visa application

    A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

    99Information is answer

    Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

    100Incorrect answers

    For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

    101Visa applications to be correct

    A non‑citizen must fill in or complete his or her application form in such a way that:

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    103Bogus documents not to be given etc.

    A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.

    * This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

    104Changes in circumstances to be notified

    (1)If circumstances change so that an answer to a question on a non‑citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.

    (2)If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.

    (3)If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.

    (4)Subsection (1) applies despite the grant of any visa.

    107Notice of incorrect applications

    (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

    (a)     giving particulars of the possible non‑compliance; and

    (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

    (i)if the holder disputes that there was non‑compliance:

    (A)shows that there was compliance; and

    (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

    (ii)if the holder accepts that there was non‑compliance:

    (A)give reasons for the non‑compliance; and

    (B)shows cause why the visa should not be cancelled; and

    (c)      stating that the Minister will consider cancelling the visa:

    (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

    (ii)if the holder gives the Minister a written response within that period—when the response is given; or

    (iii)otherwise—at the end of that period; and

    (d)     setting out the effect of sections 108, 109, 111 and 112; and

    (e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

    (f)      requiring the holder:

    (i)to tell the Minister the address at which the holder is living; and

    (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

    (1A)The period to be stated in the notice under subsection (1) must be:

    (a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

    (b)     otherwise—14 days.

    (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

    (a)     visas of a stated class; or

    (b)     visa holders in stated circumstances; or

    (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

    (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

    (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

    108Decision about non‑compliance

    The Minister is to:

    (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

    (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

    (a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

    (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

    (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.