Chen (Migration)
[2023] AATA 2294
•7 June 2023
Chen (Migration) [2023] AATA 2294 (7 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS: Mr Xing Chen
Ms Xiao Han
Miss Yutong HanREPRESENTATIVE: 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 affirmedLEGISLATION
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 2934STATEMENT 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 from the applicants Mr Chen and Ms Han concerning new evidence that had arisen from the two witnesses.
The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The Tribunal exercised its discretion to hold the second hearing by Microsoft Teams. During the COVID-19 pandemic, special circumstances exist for the video hearing. The Tribunal also considered the Tribunal’s objective of providing a review that is fair, just, economical and expedient. A hearing by video achieved this end. The hearing of 3 February 2023 was conducted in person.
The applicant provided to the Tribunal a copy of the delegate's decision.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
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 EVIDENCE
Definitions
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.
Relevant to the PIC 4020 issue is the decision of Umer vs Minister for Immigration & Anor [2017] FCCA 2934, (Umer) Judge Lucev, reasoned [43]:
‘Whether an answer is misleading does not necessarily depend upon its correctness, but may also depend upon what is omitted from the answer: Sandoval vs Minister for immigration & Multicultural Affairs [2001] FCA 1231; (2001) 194 ALR the 1 at [46] per Gray J.’
Briefly, in Umer, the review applicant (an Australian citizen, son of the visa applicant and sponsor and mother of the review applicant) answered a question in the visa application: ‘Has this applicant previously travelled to Australia or previously applied for a visa?’ The review applicant was to answer “Yes” or “No”. The review applicant did not answer the question at all. The fact was that the visa applicant had previously applied for a visa and had been refused.
Further, in Umer, Judge Lucev at stated the following at [46]:
‘The visa question asks whether the visa applicant has done one or other or both of the things referred to in the question, namely previously travelled to Australia or previously applied for a visa. In this case, The Review Applicant had previously applied for a visa (and been refused), and the Review Applicant knew this. By not answering the Visa Question at all and not taking any steps to clarify the non-answer, the information provided by the Review Applicant, and therefore by the Visa Applicant, that is what was omitted from the answer, or not answered was misleading: Trivedi at [32]-[33] and [43] per Buchanan J, as found by the AAT.
In the above circumstances, there was no error in the analysis of the AAT decision: Patel at [19] per Buchanan J, and the AAT was correct to find that the Review Applicant’s failure to answer the question was an omission which was misleading for the purposes of PIC 4020(5). In the circumstances, no jurisdictional error in the AAT Decision is established by ground 4.’
The term ‘information that is false or misleading in a material particular’ is defined in
PIC 4020(5) and the term ‘bogus document’ is defined in s 5(1) of the Act. In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.
The requirement in PIC 4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant: PIC 4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.
While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42.
The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.
The PIC 4020 commenced on 2 April 2011. Applications made on or after this date come within the purview of PIC 4020. It refers to an applicant who must have ‘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
·Information that is false or misleading in a material particular.
Section 4020(5) provides that information that is false or misleading in a material particular is information that is false or misleading at the time it was given and relevant to any criteria which may be considered when making a decision on the application.
Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?
The Form 80, paragraph 19 directs the applicant to give details of all periods of employment and unemployment. The applicant’s Form 80 Part F – Employment at Clause 19 requires the applicant to ‘Give details of all employment and unemployment
Employment includes:
·All paid employment
·Self-employment/family business
·Work experience/internships
·Unpaid employment/volunteer work
Unemployment includes:
·From date of birth up until first employment
·All gaps/Breaks between employment
·All Gaps between education
The applicant provided the following information, in answer to the question in paragraph 19:
Date from
Date to
Name of business/company
Occupation
Address of business /company
Country
Sept 2012
Current
Crazy Wings
Chef and Manager
Chef duties, Management
1A/158 Gowan Rd Sunnybank Hills, QLD 4109
Australia
Dec 2011
Jan 2012
NightOwl
Retail store
400 George St CBD QLD 4000
Australia
In completing the answer in paragraph 19 expressly includes unpaid employment and voluntary work. A director is an employee of the corporation, subject to agreement and/or the discretion of the shareholder/s. Whether the director is paid or voluntary is irrelevant. The applicant was obliged to answer the question by including all occupations whether paid or unpaid.
Paragraph 19 is relevant because, Long Sheng provided to DOHA a reference letter signed by Ms Han dated 1 July 2017. This letter was provided as a reference by the applicant’s employer for the benefit of the applicant concerning his employment. This letter confirms the applicant was in employment with Long Sheng, from 27 September 2012 to 13 April 2014 as a part-time restaurant manager; from 14 April 2014 as a full-time restaurant manager holding a subclass 457 visa. The reference letter states that Mr Chen has been in the position for over 3 years and to set out the duties of the applicant as the restaurant manager. The letter was signed by
Ms Han. Effectively, the letter confirms the applicant satisfying the three-year full-time employment criteria, in the Period.
The non-disclosure of the directorship gives the reference letter a significance because it appears to be independent. If the Tribunal did accept that he did not disclose the directorship for the reason that he followed the advice of his representative, it would not relieve him of consequences of PIC 4020.
The applicant in his submission states ‘the fact of being a director will not affect our application for Subclass 190 visa, and the Subclass 190 visa does not stipulate against the application by director. Therefore, there was no need for us to avoid mentioning the fact that can be easily verified’.
Further, the applicant, made aware of Umer decision, by responding that when applying for the Subclass 190 visa, the applicant prepared all the forms and did ‘hesitate about whether to write about the job position of director’. The applicant reasoned because he did not receive a director’s salary, he is not required to disclose the directorship in his visa application. He consulted his the migration representative who advised him that there was no position of director in ANZSCO implying that as the director position need not be disclosed. The applicant followed that advice.
The Form 80 dated 19 February 2018 requires the applicant to read, complete and sign his form 80. Upon signing, declares that ‘the information I have supplied in or with this form is complete, correct and up-to-date in every detail.’
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.
DOHA obtained an ASIC search of Long Sheng showing the applicant was a director from 31 January 2014 until liquidation. In his evidence, the applicant explains why he was made a director. Ms Han’s husband returned to China permanently. Effectively, Mr Cui left the business to her. It appears without choice, Ms Han accepted the role of continuing the Long Sheng businesses. Therefore, she became the sole director and shareholder.
Because Ms Han wished to return to China to see her daughter Miss Y who was living with Ms Han’s mother, both the applicant and Ms Han considered necessary for there to be a director in Australia. Ms Han resigned and the applicant became the sole director from
31 January 2014.
The applicant’s evidence in the hearing is consistent with his appointment, with Ms Han continuing to hold the fully paid 100 shares. The evidence from Ms Han is that the reason she ‘stayed’ with the business is that it was her funds used to acquire the franchise. The funds were considerable and must have played a part in keeping the business open.
Consideration of waiving the Sec. PIC 4020(4)
The applicant was the director of Long Sheng, chef and a restaurant manager in a business Crazy Wings (Sunnybank) Restaurant.
The applicant submitted in his personal statement provided to the Tribunal dated
5 October 2021 (after the first hearing). He said he was nervous; it was his first time before a Tribunal. His submission is set out below:
‘1. My 457 visa was granted in April 2014, and my additional position changed to a Director was in January 2014. I applied for 190 Visa in October 2017, which all visas was applied after January 2014. I had asked our previous immigration agent when preparing the materials for the 190 visa application, that he said there was no issue keeping both positions.
2. I believe that I did not mislead the immigration department because my job was as a restaurant manager at Crazy Wings at that time, and that was what I really do every day. Also, the restaurant was not a fast-food restaurant. It was a formal dining restaurant, which I did not provide any false materials during the whole application process.
3. The relationship between Sitong Fan, Junkai Cui, Xiao Han and I. Since 2012, Junkai Cui and Sitong Fan have hired me to work in their restaurant. When I worked at Crazy Wings, Xiao Han and Junkai Cui were married, and Sitong Fan was their friend. Until 26 July 2015, our relationship was only employer and employee.
4. I do not know about tax declaration because I said at the beginning that I was only engaged in bookkeeping. Xiao Han has been communicating with the accountant about how to declare tax, so I don’t know the financial details, so I can’t answer the tax declaration question.
5. The Garden City store Management: because both restaurants were under the same company and same bank account, therefore all bookkeeping was recording together, and we prepared the Garden City stores stock in Sunnybank Hills restaurant, so I did the bookkeeping and stock control for Garden City store.
6. Restaurant marketing strategies: both stores need to run the Promotion at the same time. That’s the reason I engaged in the menu design. I don’t know the specific operation situation there.
7. Xiao Han did not spend the whole time in China. She just went back to China on her annual leave every year. Regarding the employees’ salary, I thought the Member asked me how she paid her salary during her one month in China, and I was not very sure about it at that time.
8. I have been living in Australia since 2005 and have spent most of my life here. Now I have a stable job and two lovely children. However, I am worried that if I leave Australia I will not be able to integrate into the environment and find a job, which will cause the financial crisis for my family.
9. I took care of my step-daughter (Miss Zi) since she was three years old. Unfortunately, we cannot reach her father both in China and in Australia now. I was her real father in her mind, she often asked us why her little brother could stay with us in Australia, but she could not. My wife (Ms Xiao Han) concerns she may lack love and a sense of safety; once she has a chance, she will fly to China to spend some time with our daughter. Because of our case, we cannot bring our daughter to Australia, which is the deepest sadness to my wife and me.
10. Due to the Covid-19, My wife and I cannot return to China since February 2020, and our daughter cannot come to Australia because she is not holding a permanent resident visa. However, our daughter has been learning English since she was a child to prepare for school in Australia. Therefore, we hope we can re-unit in Australia as soon as possible.
Finally, we want to thank you for taking the time to read the statement. I hope my explanation will address the concerns you mentioned. If you have any questions and concerns, please feel free to contact us. If you need further information or evidence, we will provide it as soon as possible.
Yours sincerely,
Chen Xing ’
(Signature)
05/10/2021A significant factor is that Zi may qualify for Australian citizenship as she was born in Australia and is ten years old.
PIC 4020(4) requires the Tribunal to consider the matters which may be relied upon to waive PIC 4020(1).
The applicant provided the Tribunal with numerous references as to his conduct within the community, his family and friends reside. The Tribunal has found the applicant did not satisfy PIC 4020 only by reason he did not fully set out his directorship. Those circumstances were surrounded by family matters, in particular assisting his future wife’s financial and family position. Effectively, and the Tribunal accepts Ms Han being left with the financial obligation to continue the business and to continue to visit her daughter Zi in China. The financial position of Ms Han’s finances were used to acquire the business and more substantially, from the time Mr Cui returned to China forever, leaving his daughter with Ms Han, who reluctantly sought and obtained the assistance of her mother in caring for Zi while both she and the applicant attempted to salvage the business but to no avail.
While it is of little importance when considering PIC 4020, sufficient evidence was given by the applicant, Ms Han and witnesses that while Long Sheng had the restaurant and the food court, the applicant did not participate in the running of the food court. Further, the restaurant was open for long hours particularly Thursday, Friday and Saturday which required the applicant and Ms Han to work more than the hours required. Witness Mr ‘Eddie’ Huang frequented the restaurant regularly. He was living with the applicant and Ms Han in a boarding arrangement. He witnessed the applicant carrying out the duties of a restaurant manager. Eddie had the applicant working from the time before the restaurant opened to the time after the restaurant closed. The restaurant was involved charcoal grilled chicken wing dishes for seated patrons, while it also catered for takeaway patrons.
Eddie said that he did not go to the food court at Garden City shopping centre. Eddie was of the view the restaurant closed around June or July 2017.
Mr ‘Charlie’ Li also provided evidence that he and the applicant studied together in Australia. Charlie was employed as a cook at the restaurant, though probably more casual that part-time, working 15 to 20 hours per week. Charlie worked according to a roster, the hours were from 4pm to 12am every day, but closed on public holidays. Ms Han also came to the restaurant when busy.
Both the applicant and Ms Han are employed as the testimonials state. The applicant has qualifications:
a.Bachelor degree in Science, business and Technology - Griffith university
b.Diploma of Hospitality - Royal Brisbane Institute of Technology;
c.Diploma of Information Technology (Systems Administration) – Martin College;
Ms Han has qualified with;
a.Diploma of Business Studies – Kelly College;
b.Business summer course at QIBT;
c.Accounting from Griffith University;
d.International Business from James Cook University;
The Tribunal takes into account the following testimonials and references:
a.The applicant entered Australia in 2004. Ms Han entered Australia in 2007.
b.Ms Han was born in 1988, and is the mother of Zi born in 2012, presently living with her grandmother in China[2], though wishing to return to Australia.
[2] Mrs Binghui Wang (mother of Ms Han) provided a statement supporting Zi returning to Australia to be with her mother.
c.The applicant and Ms Han have a son B who lives with the applicant and Ms Han.
d.Personal reference from Doctor Cindy HY Tan (veterinarian). She has known the applicant and Ms Han since 2015 as their pets’ veterinarian. They have 4 cats and 2 dogs though one Curtis terminally ill and she states that to the couple are kindhearted genuine and honest people who are always very polite and 100% committed to provide care for their pets.
e.Mr Huming Huang, development manager in Brisbane provides a statutory declaration of the character of the applicant having known him for 11 years.
f.A personal reference from Mrs Binghui Wang mother of Ms Han and currently caring for Zi. Her mother visits Zi about every 6 months but to Mrs Wang confirms her daughter having adjusted to living and working in the Australian environment and sees the need for her child to live with her.
g.The child Zi has written a letter to her baby brother living in Brisbane seeking a realisation that she will be living with him.
h.Mr Chau Lam Mr Chau is the accounts manager who had worked with the applicant for almost 4 years. He testifies to the applicant being a hard-working kind and honest person. He is very dedicated to his family. And wishes for consideration be given to the applicant continue to reside in Australia.
i.Reference by Peter Hutchings who was known the applicant for over one year and has worked very closely with him. Mr Hutchings is an Australian resident though moving from New Zealand to Australia. He refers to the applicant being a family man and as always with his 2-year-old child and acknowledges his daughter of 10 years who is yet to come to Australia. Mr Hutchings explains that he knows the applicant in a professional way they had some casual dinners with him the applicant has now transitioned from been a colleague to a client of Mr Hutching’s and he says ‘he’s hands down one of the best’.
j.
Mr Yang Yang Qing provides a character reference for the applicant. He is the General Manager of Golden Elite Group Pty Ltd and has now the applicant since 2018 (least
4 years). He certifies that during the time the referee has worked with the applicant is not only built a strong working relationship but also become good friends. The referee describes him as being a very hard-working kind and genuine person with high work ethics and positive personal attributes.
k.Referees Yaxin Cheng and Long Qi prior reference for their dearest friends Xiao Han and Xing Chen who are effectually known as Hannah and William. They support the granting of permanent residency. They are close friends of Hannah and William for 14 years in all that time I have proven to be kind, genuine, enthusiastic and hard-working.
l.Referee Xiaoying Li is a chartered accountant and as a senior tax accountant working for a firm in Brisbane. The referee knows Xiao Han (also known as Hannah) for 6 years since 2017 when both she and Hannah were working as mortgage brokers. She says that Hannah has always been kind, generous and caring for others and has always been trying to help other people where she can. She testifies that she could not have gone through so many hard times without her help. She wishes for the family to continue to live in Australia.
m.Referee Jing Ding states that for over 20 years (since 2000) Jing Ding has been studying in the same class at the Zhengzhou Middle School in China. He says that the applicant has been a generous and kind person since young and is willing to help fellow classmates. He certainly has helped the referee and to his family a lot since arriving in Brisbane. Again, he wishes for the applicant and his family to continue to contribute to the community in Australia.
n.
Referee Lu Zhang has known Xing Chen for over 7 years since 2015 when he first came to Australia. He believes Mr Chen to be a warm-hearted man.
Mr Chen helped considerably when he arrived in Australia. They became good friends and he is one of the most honest, reliable person he has ever met. He acknowledges Mr Chen facing challenges about his own permanent visa and wishes to say something on his behalf.
Mr Xing Chen the applicant has also provided a concluding statement in respect of his permanent residency and ensuring his views have been considered, his statement is set out in full:
Xing Chen concluding statement:
I came to Australia in 2005 and my wife came to Australia in 2007. My wife and I have spent most of our lives in Australia. Now I have a stable job and 2 lovely children.
…
We are deeply sorry for the fact that we did not write about Director in the form 80, but we did not intend to mislead the Visa Officer. The fact of being a director will not affect our application for subclass 190 visa, and the subclass 190 visa does not stipulate against the application by a director. Therefore, there is no need for us to avoid mentioning this fact that can be easily verified. However, we are still very regretful about the current result, and we hope that the Member can give us an opportunity to correct our mistakes.
Both of our children were born in Australia. As for my eldest daughter, she could not stay with us due to our busy business in the shop. We could not live or study in Australia due to the Condition 4020. She really wishes to be accompanied by her parents, but we were unable to return to China for over 2 years due to the COVID-19 pandemic. We are very afraid of her mental problems when she asked us in the video call “why can’t I go to Australia to study, why can’t I be accompanied by my parents”.
As the second child is 2 years old. He fits in well with the Australian environment and likes to go to the park and plays with other kids. I am very worried whether I will be able to adapt into the environment in China, where I have been away for 17 years. I have no work experience in China, so I may not be able to find a job, which will lead to difficulties in my children’s life will stop
We really appreciate that the Member can give us the opportunity to explain our real situations. We are deeply sorry for our mistakes. We hope you can give us a chance to continue living in Australia, and we will try our best to make our contributions to the Australian community.
XING CHEN
XIAO HAN
05. 01. 2023.While the references attest to the applicant’s character, and is in employment, also to the couple who have benefited Australian society, there are no factors which the Tribunal considers relevant to waiving the PIC 4020.
There are matters not within PIC 4020(4), which the Minister can consider is a reason for making a decision more favourable to the applicants.
·Mrs Han has a daughter, an Australian born person now aged 10 years, who resides in China with her maternal grandmother only for the reason that, her mother could not care for her while both the applicant Mr Chen and Ms Han will work in the business.
·The applicants have lived in Australia for a substantial period of time and it would be very difficult for the family to return to China to live now in an economic environment very different from Australia.
·While the applicant decided to take on the directorship, the mitigating factor is that he need not have taken on that role as it could have been conducted by Ms Han from China. However, for whatever reason the applicant Mr Chen took on the role without reward.
·Mr Chen and Ms Han now have a child YC together who was born in Australia.
·Mr Chen is tertiary qualified and is in employment and his employer has provided a reference. It perhaps may be Ms Han is in employment the details of which are unknown. It is of course open to the applicant to provide more detailed information to their present circumstances.
The applicants have not asked the Tribunal to consider making a submission to the Minister for Ministerial intervention. However, the Tribunal has considered the matter of the Minister intervening pursuant to s. 351 of the Act. Section 351 provides a personal discretion for the Minister to intervene in a case where there is a refusal of the application but there may be unique or exceptional circumstances to intervene.
For reference, the applicants may wish to consider a submission to the Minister to exercise that personal discretion. The ministerial guidelines are set out in the Department’s website at:
>
Therefore, the applicant does not meet PIC 4020(1) or (4).
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 Berry
MemberATTACHMENT
Migration Regulations 1994
Schedule 4
4020(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a)the application for the visa; or
(b)a visa that the applicant held in the period of 12 months before the application was made.
(2)The Minister is satisfied that during the period:
(a)starting 3 years before the application was made; and
(b)ending when the Minister makes a decision to grant or refuse to grant the visa;
the applicant and each member of 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 1958
s 5 Interpretation
(1) In this Act, unless contrary intention appears:
…
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)purports to have been, but was not, issued in respect of the person; or
(b)is counterfeit or has been altered by a person who does not have authority to do so; or
(c)was obtained because of a false or misleading statement, whether or not made knowingly.
…
0
5
0