He (Migration)

[2020] AATA 2736

He (Migration) [2020] AATA 2736 (21 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Biying He

VISA APPLICANT:  Mr Yongqiang He

CASE NUMBER:  1825570

DIBP REFERENCE(S):  BCC2017/3681986

MEMBER:Ian Garnham

DATE:21 April 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 (Visitor) visa:

·Public Interest Criterion 4020 for the purposes of cl.600.213 of Schedule 2 to the Regulations.

Statement made on 21 April 2020 at 1:00pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – genuine temporary visitor – employment checks in China – inconsistent employment details – income from sales commission – disrupted telephone interview – decision under review remitted   

LEGISLATION

Migration Act 1958, ss 5(1), 65
Migration Regulations 1994, Schedule 2, cl 600.213; Schedule 4 Public Interest Criterion 4020

CASES

Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Trivedi v MIBP [2014] FCAFC 42      

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 Immigration on 27 June 2018 to refuse to grant the applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 9 October 2017.

3. The Departmental (Department of Home Affairs (DOHA)) delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.600.213 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because they were not satisfied that the visa applicant met Public Interest Criterion 4020.

4. The review applicant appeared before the tribunal on 16 January 2020 to give evidence and present arguments. The tribunal also received oral evidence from the visa applicant by teleconference.

5. The tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

7. A submission dated 16 January 2020 was submitted to the tribunal.[1]

   [1] At FF: 45-46 (AAT)

8. For the following reasons, the tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.600.213 for the grant of the visa. 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).

10. 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.

    Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?

11. 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 (see the attachment to this decision). 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.

12. 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.

13. 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.

    Background:

14. The visa applicant is seeking to visit his sister (the review applicant) and wife who is also currently present in Australia as a student.  The visa applicant has a son (now 11yo) from a previous marriage and since the application was made he has now come to Australia as a student.  The visa applicant has had sole custody of his son since he divorced from his first wife in April 2012.[2]

    [2] At F: 47 (AAT)

15. In the application the visa applicant stated he was employed as ‘Managers’ since 8 March 2009 with the Tianjin Saint Promise Packaging Co. Ltd, he included his business and mobile telephone numbers.  He also included a letter and translated copy from his employer, on company letterhead dated 25/09/2017.  The letter referred to the visa applicant’s identity certificate number, provided his after tax income, and stated that his position was ‘purchasing manager, electrical welding engineer’, and that he had been employed at the company since March 2009.[3]      

    [3] At FF: 92-93 (DOHA)

16. Notably the visa applicant declared all of his previous unsuccessful visa applications with the application.  He made 5 previous applications to come to Australia; In 2014 two student visa applications, 3 tourist visa applications in 2015 and 2016, and in May 2017 he made a further student visa application as a secondary applicant to his wife.

17. Because DOHA was concerned about what they considered to be inconsistent information they requested that the Australian Embassy in Shanghai conduct an employment check.

18. When DOHA attempted to contact the business on the provided telephone number the calls were unanswered.  On 13/12/2017 DOHA contacted the visa applicant directly on his mobile telephone and conducted an interview with him.

19. During this interview the following issues of concern were raised:

    ·The visa applicant could not state what year he graduated with his Diploma of Metering and Engineering and is recorded as saying that he moved to Tianjin with his qualification in 2000.  At this time he would have been 15 years old. 

    ·The visa applicant is also recorded as saying he was a welder for a ship repair company in Tianjin from 2000 to 2008 which is inconsistent with information he provided in a 2015 visa application.

    ·In the interview he said he worked as a ‘Purchasing Assistant and Purchasing Manager’ at Tianjin Saint Promise Packaging Co. Ltd since 2009; which is inconsistent with the employment letter he provided with his application as cited above (paragraph 15).     

    ·The visa applicant was unsure about his monthly income tax amount and his cited annual income of around RMB 16K which is inconsistent with his education background and employment history and the salary is much higher than the local market level.

    ·When the interviewer asked for the company address and contact number he was heard to be shuffling papers.  When asked if he was able to be contacted on the company’s telephone number, the visa applicant is recorded as saying he was at a client’s office.  The visa applicant is then recorded as saying he was on the way to a client’s office by car with a driver.  When the interviewer asked to be put on speaker to speak to the driver, the visa applicant is recorded as saying he had just stepped out of the car.

20. Following this interview the delegate was concerned that the visa applicant’s employment information provided with the visa application was inconsistent with the information provided in previous applications and at the interview.  Overall they deemed; …that the applicant has attempted to mislead the Department, in order to achieve a favourable outcome for his Family Sponsored visa application. 

21. On 19 January 2018 the delegate set out the matters of concern, (in paragraph 19) and they were sent to the visa applicant for comment.[4]

    [4] At FF: 46-49 (DOHA)

22. On 16 February 2018 the visa applicant provided the following relevant information in response:

    ·Submission from migration agent setting out responses to the adverse information

    ·Completed Form 1023 (Notification of incorrect answer(s))

    ·Qualification Certificate and Academic transcript

    ·Business licence and search record for Tianjin Saint Promise Packaging Co. Ltd

    ·Financial records for Tianjin Saint Promise Packaging Co. Ltd for 2016

    ·Company car usage record for the periodn12/12/2017 to 14/12/2017

    ·Contact information and titles of the contacts at Tianjin Saint Promise Packaging Co. Ltd including the visa applicant

    ·An extensive letter from the visa applicant setting out explanations concerning the interview and his employment and setting out why he believes misunderstandings occurred in relation to the interview

23. Despite the provision of this information the delegate was not satisfied that the visa applicant had not provided false and/or misleading information about his employment throughout the application process outlined above.

    Consideration:

24. At the hearing the visa applicant provided information that is consistent with the information he provided in response to DOHA’s record.  For the following reasons I am satisfied that the visa applicant has not deliberately attempted to mislead the Department:

    ·The visa applicant’s lengthy explanation about the debacle of the telephone interview that was conducted is both plausible and consistent with the documentary evidence he has provided.  He said that, at the time, he was nervous and confused and was not given an opportunity to correct his answers or advised of the conclusions that had been reached by the interviewer.

    ·The visa applicant has consistently said that following his graduation he worked for approximately two years as an electrical welder for a ship building company.  He then began working for the company he now works for in a training role as a purchasing assistant in 2009.  This company is partially family owned and over the years has gone through changes of ownership and business structure whereby the visa applicant is now a purchasing manager and also responsible for managing electrical welding works.

    ·The documentary evidence confirms that the visa applicant is a 9% shareholder in the company and at the hearing he also explained that he receives a commission for sales made.  This adequately explains why the visa applicant receives an income that exceeds local market rates.

    ·The visa applicant has provided extensive detailed information about the Tianjin Saint Promise Packaging Co. Ltd that confirms his role and work history with the company.

    ·The visa applicant also provided contact details for his general manager who was available to be contacted during the hearing.  Based on the documentary evidence provided and the credibility of the visa and review applicant’s evidence provided at the hearing the tribunal deemed it was unnecessary to contact his general manager.     

25. The evidence that I have outlined above indicates that at the Departmental interview with the visa applicant incorrect and inaccurate conclusions were reached based on his failure to immediately provide accurate and explicit reasons.  The concise and extensive documentary evidence that was provided in response to the Department’s concerns appears to have been ignored.

26. There is no compelling or convincing evidence before the tribunal that the visa applicant has sought to deliberately falsify information or provided false and/or misleading information throughout this application process.  On the contrary, I am manifestly satisfied that the visa applicant’s past and current employment history has been accurately and correctly provided as set out above.  

27. Therefore, the applicant meets PIC 4020(1).

    Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(1)?

28. PIC 4020(2) requires the Tribunal to be satisfied that the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing 3 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2AA).

29. There is no evidence before the tribunal that the visa applicant or any member of his family unit has been refused a visa because of a failure to satisfy PIC 4020. 

30. Therefore, PIC 4020(2) is met.

    Has the applicant satisfied the identity requirements?

31. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.

32. With the application the visa applicant provided a copy of the identity page of his passport[5] and copies other documents that contain his photograph, including his student report card[6] and his graduation certificate for his Electrical Welding course[7].    

    [5] At FF: 15-16 (DOHA)

    [6] At FF: 18-19 (DOHA)

    [7] At FF: 63-64 (DOHA)

33. Therefore, the applicant meets PIC 4020(2A).

    Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?

34. PIC 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2BA).

35. There is no evidence before the tribunal that the visa applicant or any member of his family unit has been refused a visa because of a failure to satisfy the identity requirements.

36. Therefore PIC 4020(2B) is met.

37. On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl.600.213.

    DECISION

38. The Tribunal remits the application for a Visitor (Class FA) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 600 (Visitor) visa:

    ·Public Interest Criterion 4020 for the purposes of cl.600.213 of Schedule 2 to the Regulations.

    Ian Garnham
    Member

    ATTACHMENT

    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.  

    …