Gu (Migration)

[2022] AATA 1828

Gu (Migration) [2022] AATA 1828 (16 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jie Gu
Ms Miao Su
Mr Ziming Gu
Mr Haiming Gu

REPRESENTATIVE:  Mr Michael  Kah (MARN: 9256535)

CASE NUMBER:  2114361

HOME AFFAIRS REFERENCE(S):          BCC2020/2134494

MEMBER:Joanne Bakas

DATE:16 May 2022

PLACE OF DECISION:  Adelaide

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 16 May 2022 at 5:13pm

CATCHWORDS

MIGRATION – cancellation – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 - Employer Nomination Scheme – incorrect information in the visa application – occupation of a welder (First Class) – genuine intention to work for sponsoring employer – employment agreement terminated – applicant departed Australia – family illness – impact of the COVID-19 pandemic – communication difficulties – death of migration agent – decision under review set aside   

LEGISLATION

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs 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 delegate was of the view that the applicant had not complied with section 101(b) of the Act.  According to the delegate, the applicant provided an incorrect answer to a question on his visa application dated 5 November 2019 regarding his declaration that he agrees to take up the position of Welder at Vawdrey Australia Pty Ltd for at least two years.

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

5. The applicant appeared before the Tribunal on 3 May 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The applicants were represented in relation to the review and at the hearing, by Mr Michael Kah and by barrister, Mr Nicholas Poynder.

7. The Tribunal exercised its discretion to hold the hearing by audio and video conference on MS Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by MS Teams, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by MS Teams. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

8. 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

9. 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.

10. 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.

11. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 (Notice of Intention to Consider Cancellation) complied with the statutory requirements. This was not in dispute by the applicant.

    Was there non-compliance as described in the s 107 notice?

12. The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101(b) of the Migration Act 1958 which requires a non-citizen to fill in or complete his or her application form in such a way that no incorrect answers are given or provided.

13. In considering s 101(b), the delegate also noted the application of the following provisions of the Act:

    a.Section 98 - Completion 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.

    b.Section 99 - Information 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.

    c.Section 100 - Incorrect 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.

    d.Section 111 - Cancellation provisions apply whether or not non-compliance deliberate

    To avoid doubt, sections 107, 108 and 109 apply whether the non-compliance was deliberate or inadvertent.

14. On 29 October 2019 Vawdrey Australia Pty Ltd (Vawdrey) lodged an Application for Employer Nomination for a Permanent Appointment for the applicant to work in the occupation of a welder (First Class) on a salary of $55,382.

15. On 14 November 2019, a Nominated Position as an Approved Appointment in the Employer Nomination (Direct Entry) scheme was approved by a delegate of the Minister allowing Vawdrey to sponsor the applicant in the position of a welder (First Class) on a salary of $55,382.

16. The applicant lodged an application for Permanent Employer Sponsored or Nominated Visa on 5 November 2019.  The applicant in their visa application under the heading ENS/RMS Declarations  had declared “Yes” in response to whether they agree to take up the position for at least two years.

17. As a result of the answer the applicant provided on the visa application form and meeting all other relevant criteria he was granted his Employer Nomination visa on 18 December 2019. He met the criteria for this visa based on the fundamental requirement that he would be working as a welder (First Class) for Vawdrey for a period of at least two years.

18. However, the sponsored business indicated that they contacted the applicant on numerous occasions to confirm an estimated start date to commence employment. After many attempts by the sponsored business and not receiving a response it appeared that he had no genuine intention to work for Vawdrey and as a result of their enquiries his employment agreement was terminated by Vawdrey on 13 August 2020.

19. The section 107 notice dated 14 September 2021 details that the non-compliance with section 101(b) appears to be as a result of the  applicant not having a genuine intention to work for Vawdrey. Information before the delegate indicated to them that Vawdrey attempted to contact the applicant on numerous occasions to confirm an estimated date for commencement of work. As no response was received the sponsor concluded that he had no intention of planning to come to Australia in the near future and terminated the employment agreement on 13 August 2020.

20. The notice also details that Departmental records indicate the applicant entered Australia on 29 December 2019 as the holder of the Employer Nomination Scheme (ENS) visa and departed Australia on 01 January 2020. This visit was 11 days after the grant of his visa. If he was intending to commence employment with his sponsored business the delegate considers it a reasonable expectation for him to make contact with his sponsored business to arrange a start date whist in Australia. There is no evidence that he made any contact with Vawdrey to confirm his commencement date of employment.

21. The applicant then returned to Australia, again as the holder of the ENS visa on 08 April 2021 and is currently residing in Australia. The ENS requires him to have a sponsored position of employment, however since Vawdrey Australia terminated his employment, it appears he no longer has an approved offer of employment.

22. It appears to the delegate that the applicant provided an incorrect answer on his visa application and that he had no intention of ever working for Vawdrey. As such the delegate considers that the applicant has not complied with section 101(b) of the Act as it appears he provided an incorrect answer with regard to his employment on his ENS visa application form.

23. The delegate also relied upon an email dated 13 August 2020, from Mr Thierry Chan of Vawdrey stating that after his visa application had been approved, they contacted the nominee many times for an estimated date of commencement of work but he has not indicated any intention of planning to come to Australia in the near future.

24. The applicant provided a response to the delegate on 8 October 2021 and it included submissions and a personal statement and supporting documents such as bank statements and a residential tenancy agreement.  After considering his response, the delegate decided there were grounds to cancel the visa and after considering prescribed criteria and discretionary criteria, decided to cancel the visa due to non-compliance of section 101(b) of the Act.

25. The applicant’s evidence at hearing and in his written submissions included the following:

    a.His intention to work for Vawdrey never changed. He still wishes to commence employment with them.  However, due to various circumstances he has not been able to commence employment.

    b.As soon as he received his visa he arrived in Australia. This was around Christmas time in 2019. He visited Vawdrey’s site but found it was closed.  Due to the holiday period he was not able to contact any staff from Vawdrey.

    c.His mother in law living in China, became ill at that time and he went back to China to take care of family matters.  He booked flights for January 2020 and February 2020 but they were cancelled due to the COVID-19 pandemic. He nevertheless arranged through a friend in Melbourne to lease a property in preparation for his return to commence work at Vawdrey and to make the transition easier for his children. His aunty sold one of her properties which settled in December 2020 to help him have the funds to settle abroad. At that time he had not expected the pandemic to last anywhere near as long as it did.

    d.After the pandemic commenced he was anxious to return to Australia and contacted his agent in Shanghai, Mr Jianwen Yuan from Shanghai Juntong Overseas Affairs Co Ltd (Juntong) . He did not have a start date for Vawdrey.  His agent had informed him that whenever he arrived back in Australia  he would contact Vawdrey on the applicant’s behalf and arrange a start date. However, his agent, passed away in April 2020 and he had no one’s contact details.

    e.Prior to this his agent had been upset with him for going to Australia without notifying him and with trying to contact Vawdrey himself while in Australia.  He then did not think to contact the Department of Home Affairs as his agent would have been upset with him.

    f.After his agent died, he tried to find a contact number for Vawdrey and tried to contact them but his call was never responded to and he assumed they were still closed because of the pandemic.

    g.He was finally able to purchase an airline ticket in April 2021 and he came to Australia with his eldest son. He purchased a motor vehicle so that he could get to work and then Melbourne went into a lockdown and he was limited to a 5km radius. 

    h.He was very surprised and saddened when he received a letter in September 2021 about the cancellation of his visa. He had been paying rental for a property since about February 2020 to prepare to work for Vawdrey.  He did not want to lose the job.  He had not heard from Vawdrey at all.

    i.He had no contact form anyone between the time his agent passed away and receiving the section 107 notice.

    j.It appears from his representative’s investigations that Vawdrey probably retained Guide Group to handle the migration of its skilled employees recruited form overseas.  However, the applicant was never contacted by this agency.

    k.He is still waiting for a commencement date with Vawdrey and wishes to work with them. This has always been his intention and so he correctly out in his application that he intends to take up the position there for at least two years.

    l.His failure to commence work with Vawdrey was not because he did not intend to work for Vawdrey. He had expended time and resources in trying to follow through with his desire to commence work. It came about as a result of an unfortunate lack of communication between himself and Vawdrey, compounded by the death of his only contact with Vawdrey (Mr Yuan), real  or assumed closures of Vawdrey because of a Christmas period and COVID-19 pandemic and the lack of effective communication between Vawdrey and himself. 

    m.He was genuine when, in his vias documents, he said he agreed to take up the employment position with Vawdrey for at least two years.

26. The documentation provided by the applicant in support of his position included the following:

    a.A letter dated 29 April 2022 from the managing director of Juntong, Ms Jessica Huang, stating that Mr Yuan was in Australia in April 2020 when he died.  The applicant contacted Juntong in May 2020 asking for help to inform Vawdrey that he is unable to return to Australia due to travel restrictions. However, since his application for his 186 Australian visa had been successfully granted his application was finalised before Mr Yuan died and the company did not do anything for him. In addition the company confirmed that they provided the applicant’s full resume and his email address and mobile number to Vawdrey. Their company had not received any communication from Vawdrey after May 2020.

    b.A certified translation of a retainer agreement dated 6 May 2019 between the applicant and Mr Jiawen Yuan of Juntong.

    c.A file note of the applicant’s representative’s telephone conversation with  Mr Thierry Chan of Vawdrey, dated 29 April 2022, which states that despite Mr Chan informing the Department of Home Affairs in an email dated 13 August 2020 that they were never contacted by Mr Gu despite their attempts to contact him, that in fact Mr Chan had only ever contacted migration agent, Mr Frank Cai of Guide Group in Melbourne about the applicant’s availability, not the applicant himself or his agent, Mr Yuan.

    d.The notifications of the grant of subclass 186 visas to the applicant and his family on 18 December 2019 which show they were sent by the Department of Home Affairs to Mr Cai’s email at Guide Group.

    e.Mr Cai confirmed in an email dated 2 May 2022 that he received instructions to lodge a nomination application on behalf of Vawdrey for Mr Gu to work in the position of Welder (First Class) in relation to a subclass 186 ENS on 29 October 2019 as well as a visa application on behalf of the applicant in relation to a subclass 186 ENS on 5 November 29019 and that he never had any cause to contact Mr Gu directly at any time.

27. I note the delegate noted that the applicant did not make any contact with Vawdrey despite their webpage including a ‘Contact Us’ section and that he had adequate time to contact his sponsoring employer after his visa was granted to confirm the start date of his new employment.

28. The Tribunal notes that there are substantial submissions regarding the difficulties faced by the applicant in relation to communications and additional evidence that was not before the delegate.  The Tribunal has formed the view that the applicant was truthful in his evidence regarding the circumstances he found himself in following the grant of his visa.

29. Having considered all of the evidence before it, the Tribunal is satisfied that the applicant was genuine when he responded that he did intend to work with Vawdrey for at least to years.

30. For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s 107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise. 

    DECISION

31. 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.

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

    Joanne Bakas
    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.

    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.