Chen (Migration) - [2023] AATA 2294

Chen (Migration) [2023] AATA 2294 (7 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Xing Chen
Ms Xiao Han
Miss Yutong Han
REPRESENTATIVE:  Mrs Yun Hua (MARN: 1805152)
CASE NUMBER:  1828978
HOME AFFAIRS REFERENCE(S):          BCC2018/801829
MEMBER:Ian Berry
DATE:7 June 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants Skilled Nominated (Permanent) visas and does not have jurisdiction to consider the application by the third named applicant.
The Tribunal refers this matter to the Minister for Home Affairs for consideration of the exercise of the Ministers powers in section 351 of the Migration Act 1958 to substitute a decision that is more favourable to the applicants.

Statement made on 07 June 2023 at 3:13pm
CATCHWORDS
MIGRATION – Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 (Skilled - Nominated) – false or misleading information given in visa application – applicant’s directorship of employer not declared – became unpaid director while wife visited home country – three years’ relevant employment in 10 years before invitation to apply – long residence and work history, and difficulty reintegrating into home country – members of family unit – Australian-born child now residing with grandparents in home country may qualify for citizenship – no jurisdiction to consider child’s application – referred for ministerial consideration – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65, 351
Migration Regulations 1994 (Cth), Schedule 2, cl 190.216, Schedule 4, cl 4020(1), (4)
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Trivedi v MIBP [2014] FCAFC 42
Umer v Minister for Immigration [2017] FCCA 2934
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 September 2018 to refuse to grant the applicants Skilled Nominated (Permanent) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 19 February 2018. The delegate refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl 190.216 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the applicant misled the Minister by not declaring in his visa application and Form 80, that he was the director of Long Sheng which was his employer at a relevant time.
The applicants Mr Xing Chen and Ms Xiao Han appeared before the Tribunal on 20 July 2021, Mr Xing Chen appeared on 26 October 2022, Mr Xing Chen and Ms Xiao Han appeared on

28 November 2022 and Mr Xing Chen and Ms Xiao Han appeared on 3 February 2023.
Hearing dates scheduled for 2 July 2021, and 10 June 2022 were cancelled.
On 26 October 2022, witnesses Mr Huang and Mr Li gave oral evidence by telephone. Mr Xing Chen and Ms Xiao Han both gave evidence on 28 November 2022. On 3 February 2023, evidence was taken again…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chen (Migration)

Details

AGLC: Chen (Migration) [2023] AATA 2294
Case: [2023] AATA 2294
Decision Date: 7 June 2023

CaseChat Overview and Summary

This matter concerned an appeal by an applicant for a Skilled Nominated (Permanent) visa (Subclass 190) against the decision to refuse the visa. The primary issues before the Tribunal were whether the applicant had provided false or misleading information in relation to Public Interest Criterion 4020, whether the applicant had met the employment requirements for the visa, and whether the Tribunal had jurisdiction to consider the visa application of a third applicant, identified as Miss Y.

The Tribunal was required to determine if the applicant had knowingly provided false or misleading information in a material particular, as stipulated by PIC 4020. This involved assessing whether the applicant had failed to declare his directorship of Long Sheng International Pty Ltd, a company involved in a restaurant franchise. The Tribunal also had to consider whether the applicant had been employed full-time as a café or restaurant manager by Long Sheng for at least three years within the relevant ten-year period prior to his invitation to apply. Finally, the Tribunal needed to ascertain its jurisdiction regarding the visa application of Miss Y, who was the daughter of the applicant and his wife.

The Tribunal found that the applicant had knowingly provided false or misleading information in a material particular, thus failing to satisfy PIC 4020. While acknowledging the applicant's long residence and work history in Australia, and the potential difficulties in reintegrating into his home country, these factors did not overcome the breach of PIC 4020. The Tribunal also determined that it lacked jurisdiction to consider the visa application of Miss Y, as she was not within its jurisdiction at the time of the decision.

Consequently, the Tribunal affirmed the decision not to grant the Skilled Nominated (Permanent) visas to the applicants. The matter was referred to the Minister for Home Affairs for consideration of the exercise of ministerial powers under section 351 of the Migration Act 1958 to substitute a more favourable decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be affirmed the decision not to grant the applicants Skilled Nominated (Permanent) visas and does not have jurisdiction to consider the application by the third named applicant CONSIDERATION OF CLAIMS AND EVIDENCEDefinitions The names have the following meanings or descriptions:·Long Sheng means Long Sheng International Pty Ltd.·Ms Han was born in the Peoples Republic of China in 1988. Is the mother of Zi (once known as Y, now married to the applicant.·Crazy Wings was a franchise owned the franchisor Crazy Wings of which Long Sheng became a franchisee operating a restaurant in Sunnybank.·Mr Cui was the husband of Ms Han until divorced who now lives in the Peoples Republic of China. They separated in 2015. He was an original director and shareholder with Ms Han and with a friend of Mr Cui. ·Zi (formerly known as Y) was born on 27 September 2012 at the Sunnybank Private Hospital, Sunnybank, Brisbane and is the daughter of Mr Cui and Ms Han, who now lives in China with Ms Han’s parents, with whom Ms Han and the applicant wish to reunite. She now may qualify as an Australian citizen.·Applicant is the husband of Ms Han and have a young boy together B born in Brisbane. They married in 2018. In 2015, he became a director of Long Sheng. He is the step father of Zi. Since, the primary review applicant of the Subclass 190 visa application.·PIC 4020 means Public Interest Criteria 4020. ·DOHA is the Department of Home Affairs.·Period is the ten year period from before the grant of the invitation on 4 January 2018, between 5 January 2008 and 4 January 2018.·YC is a child of the applicants born in Australia in 2020.The issues for determination For decision by the Tribunal are the following issues:·Did the applicant provide to DOHA, information which was either false or misleading under PIC 4020? ·Was the applicant employed full-time as a café or restaurant manager by Long Sheng for at least three years in the period?·Does the Tribunal have jurisdiction to decide the visa application of Miss Y?PIC 4020 this review whether the applicant meets PIC 4020 as required by cl 190.216 for the grant of the visa. Annexed to this decision is PIC 4020. Broadly speaking, this requires that:·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and·the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and·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 is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA). ·The applicant has not provided false or misleading information in a material particular that is false or misleading at the time it was given and relevant to any of the criteria the Minister may consider when making a decision on application whether or not the decision is made because of that information.

Decision

Reasons for decision

Because the third named applicant is not within the jurisdiction of the Tribunal at the date of decision, it has no jurisdiction to consider making a decision in respect of her.DECISION The Tribunal affirms the decision not to grant the applicants Skilled Nominated (Permanent) visas and does not have jurisdiction to consider the application by the third named applicant.The Tribunal refers this matter to the Minister for Home Affairs for consideration of the exercise of the Ministers powers in section 351 of the Migration Act 1958 to substitute a decision that is more favourable to the applicant’s.Ian BerryMemberATTACHMENTMigration Regulations 1994Schedule 44020(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:(a)the application for the visa; or(b)a visa that the applicant held in the period of 12 months before the application was made.(2)The Minister is satisfied that during the period:(a)starting 3 years before the application was made; and(b)ending when the Minister makes a decision to grant or refuse to grant the visa;the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).(2AA)However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.(2A)The applicant satisfies the Minister as to the applicant’s identity.(2B)The Minister is satisfied that during the period:(a)starting 10 years before the application was made; and(b)ending when the Minister makes a decision to grant or refuse to grant the visa;neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).(2BA)However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.(3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.(4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:(a)compelling circumstances that affect the interests of Australia; or(b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;justify the granting of the visa.(5)In this clause:information that is false or misleading in a material particular means information that is:(a)false or misleading at the time it is given; and(b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.…Migration Act 1958s 5 Interpretation(1) In this Act, unless contrary intention appears:…bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:(a)purports to have been, but was not, issued in respect of the person; or(b)is counterfeit or has been altered by a person who does not have authority to do so; or(c)was obtained because of a false or misleading statement, whether or not made knowingly.…

Ratio Decidendi

Legal Principle Established

The Tribunal is satisfied the applicant knowingly provide false or misleading information in a material particular.Consideration of the PIC 4020(4) criterion. The applicant is a citizen of the Republic of China who arrived in Australia on 29 June 2004 after the grant of his student visa TR-676. Ms Han arrived in Australia on 19 July 2007 having been granted a visa as a dependent of her then husband Mr Cui.Long Sheng directorships A summary of the Long Sheng directorships were:a.Mr Cui was one of the original directors, serving from 3 February 2012 to 31 January 2014.b.Mr Sitong Fan was a director from 3 February 2012 to 31 January 2014.c.Ms Han, a director from 1 August 2013 to 1 May 2016.d.The applicant was a director of Long Sheng from 31 January 2014 to liquidation on 24 May 2018. The only shareholder at the date of liquidation on the application of the ATO[1], was Ms Han. Mr Cui and Mr Sitong Fan were the shareholders prior to Mrs Han and it can be assumed they transferred their shares to Ms Han. Background of Long Sheng[1] Australian Taxation Office. In a Letter dated 15 March 2012, from the franchisee’s solicitors to the franchisor’s solicitors returned the duly executed Kaizhi franchise agreement with cheques made payable to the franchisor’s solicitors and to Crazy Wings. The terms of the Kaizhi franchise agreement, required the franchisee to pay an initial Master Franchise Fee of $125,000 payable in two instalments of $75,000 and $50,000. A Renewal Fee of $125,000; royalty fees ranging from 6% the gross sales for the first Franchise business then 4% the second. The franchise term was for five years, which gave the franchise certain rights including the use of the name Crazy Wings (Sunnybank). The undated franchise agreement (Long Sheng franchise agreement) between Crazy Wings and Long Sheng was given to the Tribunal. Long Sheng owned 2 businesses:a.Shop 1A, Gowan Road Sunnybank Hills (restaurant) was established as a dining/takeaway restaurant;b.another Crazy Wings food outlet was established in the food court of the Westfield Garden City, Mt Gravatt shopping centre (food court). In 2012, the applicant entered an employment with Long Sheng. In 2014, Long Sheng sponsored his UC-457 visa for the position café or restaurant manager. His salary was $55,000 and to work for 38 hours per week. The restaurant ceased operations in, at the earliest, in December 2016 and to the latest June 2017 when the applicant states his employment as a restaurant manager from September 2013 to June 2017. The Order of the Federal Court of Australia (General Division) made 27 July 2018, liquidated Long Sheng. An explanation provided by the Ms Han as to why the applicant became a director deserves mention. The Tribunal accepts, as plausible, that the applicant needed to be the director as Ms Han was travelling to China to see her daughter. Ms Han’s mother was caring for her as both Ms Han and the applicant were involved in the businesses and working long hours. Long Sheng needed a director located in Australia. Coupled with that explanation is the evidence of Ms Han that she provided the capital to start the business by acquiring he franchise. It appears Mr Cui and Mr Fan both left Long Sheng only after two years of the business. Ms Han was left with the responsibility of carrying on the business.