He (Migration)

[2018] AATA 3554

He (Migration) [2018] AATA 3554 (16 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Yufei He
Mr Longjiang Ji
Mr Mingyu Ji
Mr Yilin He

CASE NUMBER:  1715842

HOME AFFAIRS REFERENCE(S):           BCC2016/2691845

MEMBER:John Cipolla

DATE:16 August 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 16 August 2018 at 9:33am

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Whether the applicant provided false and misleading information in the application – Whether the sponsoring business was found to be not lawfully operating in Australia - Where the applicant claims the information was provided without her consent by a migration agent – Where the applicant claims to have undertaken sufficient probity checks on the migration agent and sponsoring business – Probity checks undertaken not sufficient – Applicant did knowingly provided false and misleading information – Whether the requirements should be waived – No compelling circumstances - Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65
Migration Regulations 1994 (Cth), Schedule 2, cls 186.213, 186.233, Schedule 4, PIC 4020

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
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 and Border Protection on 14 July 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 15 August 2016. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Sales and Marketing Manager.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.213 as the delegate determined that the applicant had provided false and misleading information in the application for the visa in breach of Public Interest Criterion 4020(1) of Schedule 2 to the Regulations because the applicant declared in the visa application that the sponsoring business CFF Finance Management NSW Pty Ltd would be able to provide her with employment as a Sales and Marketing Manager on a salary of $182,000.00. Evidence before the Department indicated that the sponsoring business was not in a position to provide this employment to the applicant as it was not lawfully and actively operating.

6. The applicant lodged an application for review with the Tribunal on 21 July 2017.

7. On 6 June 2018 the Tribunal wrote to the applicant inviting the applicant to comment on information that the Tribunal considered could be the reason, or part of the reason, for affirming the decisions under review. The Tribunal in its letter noted that on 15 August 2016 the applicant had lodged an application for a Subclass 186 visa that is the subject of this review noting her husband and children as secondary visa applicants. The letter noted that on 8 June 2017, the nomination lodged by CFF Finance Management NSW Pty Ltd, being the nomination for the purposes of the visa application, was refused by the Department of Immigration. The Tribunal noted that on 23 April 2018, the Tribunal had dismissed the application lodged by CFF Finance Management NSW Pty Ltd.  The Tribunal noted that on 9 May 2018, the Tribunal confirmed its dismissal of the application lodged by CFF Finance Management NSW Pty Ltd and as a result, the decision under review was taken to be affirmed.  The letter noted that the nomination relied on to satisfy cl.186.233 must be one which was made at the time of the visa application and therefore it was not possible to rely on another nomination.

8. The Tribunal received a response to this letter on 20 June 2018, provided by the applicant’s legal representative. The response noted that the applicant did not knowingly lodge an application for an employer nomination visa but a previously engaged agent did so without her knowledge. The letter noted that the bogus information provided to the Department was provided by her former agent not by the applicant directly. The letter noted that the applicant had merely signed a cost agreement with the agent and paid money to the agent and that the visa application was not signed by the applicant herself. The letter asserts that somebody forged the applicant’s signature on the application form.

9. The Tribunal scheduled a hearing for 31 July 2018 and the applicant gave evidence to the Tribunal by telephone with the assistance of an accredited Mandarin interpreter. The applicant’s representative was present at the review hearing.

10. At the outset of the review hearing the Tribunal went into detail about the merits review process. The Tribunal made reference to the Departmental decision record and the basis for the delegate’s refusal which has been discussed above. The Tribunal noted that based on the evidence before it the nomination lodged by CFF Finance Management NSW Pty Ltd had been refused by the Department of Immigration in a decision dated 8 June 2017. The Tribunal noted that on 9 May 2018 it had dismissed the application for merits review lodged by CFF Finance Management NSW Pty Ltd. The Tribunal noted on the basis of this evidence the applicant was not able to meet the requirements of cl 186.233(3) of the Migration Regulations. The Tribunal noted that the Departmental delegate also refused the visa application on the basis of the applicant not meeting the requirements of cl.186.213 as the delegate determined that the applicant had provided false and misleading information in the application for the visa in breach of Public Interest Criterion 4020(1) of Schedule 2 to the Regulations. The applicant advised that she was contesting this finding by the delegate that she had provided false and misleading information to the Department in her Subclass 186 visa application.

11. The applicant gave her name and date of birth. The Tribunal made reference to the applicant’s application form for a permanent employer-sponsored or nominated visa that was submitted to the Department of Immigration. The Tribunal asked the applicant whether her passport that had recently expired was able to be retrieved. The applicant confirmed that it was. The applicant provided the passport number, the place of issue, the date of issue and the date of expiry. The applicant provided details of the residential address that was provided with the visa application. The applicant provided the date of her marriage as being 22 December 2004. The visa application noted that it was 10 February 2005. The applicant provided the details of the province in which she was born. She provided her husband’s date of birth, and her two son’s dates of birth. She also provided details of her education history after completion of high school and her employment history in China for the past 10 years. The Tribunal noted that the details provided by the applicant in her evidence corresponded to those provided in the visa application apart from the discrepancy in the date of her marriage.

12. The Tribunal asked the applicant whether she had ever worked as a Sales and Marketing Manager in China. The applicant advised that she had worked in this position in her own company. She advised that this company was established in 2011 when she absorbed a 60% share in a company known as Ningbo Dongfeng Dining Management Pty Ltd which was located in Ningbo City.

13. The Tribunal asked the applicant whether she had ever worked for Ningbo Yinghou Four Seasons Northeast Cu and she advised that she had. The Tribunal noted that this evidence corresponded with the employment history provided in the visa application.

14. The Tribunal noted that the application for the visa that the applicant had lodged was an application for a permanent employer sponsored or nominated visa. The applicant stated that she entrusted everything to a migration agent to submit on her behalf. The Tribunal made reference to the visa application form and once again noted that apart from the discrepancy in the marriage date all of the information provided in the form appeared to be true and correct. The Tribunal asked the applicant where this information came from. The applicant stated that she filled in the form herself and scanned all the information and documents and sent the application form and associated documents to a migration agent who undertook certification of the documents for her. The applicant stated that she had the documents in her possession.

15. The Tribunal asked the applicant how much she had paid the migration agent in Shanghai for their services. The applicant stated a total of RNB 700,000 Yuan and that she paid this amount in instalments.  The Tribunal noted that this equated to AUD$138,649.  The Tribunal noted that most people would not be able to afford to pay a migration agent such a large amount in order to obtain a visa. The Tribunal asked the applicant what probity checks she undertook pertaining to the migration agent prior to the payment of such a large amount of money to ascertain the agent’s bona fides. The Tribunal noted that the visa application was lodged on 15 August 2016. The Tribunal noted that the applicant arrived in Australia on 6 August 2016 as the holder of a visitor visa and departed Australia on 23 August 2016 and thus she was in Australia at the time of the lodgement of the visa application which would have enabled her to undertake probity checks on the ground in Australia.

16. The applicant stated that she went to Shanghai to check on the migration agent three times before she signed the agreement and was satisfied about the probity of the agent. The applicant stated that this agent was registered with government authorities in China and that she had undertaken checks of this. She further advised that the migration agent’s office was in the same building as the Australian Consulate general in Shanghai which further increased her confidence in the agent.

17. The Tribunal asked the applicant what probity check she undertook to determine whether CFF Financial Management NSW Pty Ltd was a legitimate business and able to provide her with the employment that she claimed it would be able to in her visa application. The applicant advised that she did not lodge the application but it was lodged by the agent on her behalf.

18. The Tribunal advised the applicant that it was struggling to understand how a person could entrust an agent to apply for a visa and pay them a significant amount of money, namely RNB 700,000 Yuan, without undertaking thorough probity checks of the agent and the nominating business. Once again the Tribunal noted that the applicant was present in Australia as the holder of a visitor visa over the period in which the visa application was lodged. Indeed the Tribunal noted that the applicant was in Australia for 10 days before the visa application was lodged on 15 August 2016, which would have given her an opportunity to undertake probity checks on the ground in Australia to ascertain that the sponsoring business was a legitimate business able to offer her employment. The applicant was invited to comment on these concerns. The applicant stated that when she travelled to Australia in August 2016 she was accompanied by her 2 sons and her parents as visitors. She advised that the documents submitted to the Department were submitted on her behalf by an agent.

19. Once again the Tribunal reiterated that it was struggling to understand how a person would pay such a significant amount of money without checking the credentials of the agent who was submitting the application form on her behalf, and further ascertaining the credibility of the business that was going to sponsor her in the nominated position.  The applicant stated that she had to pay a certain amount of money when she entered into the agreement with the agent, and that after the employers agreement to sponsor her had been secured she had to pay a further amount of RNB 300,000 Yuan. The Tribunal stated that it struggled to understand why she would pay the RNB 300,000 Yuan instalment without undertaking probity checks to firstly ascertain that the sponsoring company existed, to secondly ascertain that there was a legitimate position for the applicant to go into before she would commit to herself and her family migrating permanently to Australia. The applicant was invited to comment on these concerns.

20. The applicant stated that she undertook a Google search of the business and was satisfied that it was a registered company.  Further to this the applicant noted that the company’s location was in a prime CBD position and she felt that if the company was not genuinely operating it would not be able to take up a prime position of real estate.

21. The Tribunal asked the applicant what her expectation in lodging this visa application was. The applicant stated that it would enable her to come to Australia to work as a Sales and Marketing Manager and that she would have to make a living in this position.

22. The Tribunal noted that the applicant had provided evidence to the Department and to the Tribunal at review that she had worked in the past as a Sales and Marketing Manager for Ningho Yingzhou Four Seasons Northeast Cu. The applicant was asked what the key attributes of this role were. The applicant stated that she was involved in the management of daily operations and recruitment. She advised that this was a hospitality company located in a commercial square in China. The applicant advised that her role was more General Manager not Sales and Marketing Manager. The Tribunal asked the applicant what the tasks of the position of General Manager entailed. She advised the selection of new businesses, the training of employees and the supervision of procurement and finance.

23. The Tribunal noted that the applicant, according to her evidence, had Googled the sponsoring business CFF Finance Management NSW Pty Ltd, and that this business was going to employ the applicant to work as a Sales and Marketing Manager. The Tribunal asked the applicant what she believed the tasks of this position would be. The applicant stated that according to the agent that she engaged she was told that she would be involved in human resources training.

24. The Tribunal asked the applicant what she learnt about the sponsoring business from the Google search that she undertook. The applicant stated that when she undertook the Google search she could see that the business had an Australian Business Number, she could see the address of the business, and that the address of the business was identical to the address of the business provided in the visa application. The Tribunal asked the applicant what proactive steps she took to ascertain what tasks she would be assuming in the role if the visa was granted. The applicant stated that the searches indicated that the characteristics of the business were involvement in human resource management, recruitment and training.

25. The Tribunal made reference to the applicant’s travel history to Australia from China. The Tribunal noted that the applicant first travelled to Australia on 31 January 2013 until 5 February 2013 and asked why she spent 5 days in Australia at this point in time. The applicant stated that she travelled to Australia with her eldest son as holders of visitor visas. She advised that she wanted to check out the environment in Australia and that she and her son visited Melbourne and Sydney, that her son was 7 years old at the time she further advised that her husband travelled with them as well. The Tribunal asked the applicant whether she had any family in Australia and she advised that she did not.

26. The Tribunal asked the applicant about her visit to Australia from 11 May 2015 to 17 May 2015. The Tribunal asked what the purpose of that visit was. The applicant stated that she was checking a lot of things out in Australia and that she got in touch with a migration agent about prospective migration to Australia.

27. The Tribunal asked the applicant about her visit to Australia from 17 October 2015 to 24 October 2015 and asked what that visit was for. The applicant stated that the trip related to the purchase of a block of land in French’s Forest in Sydney for the construction of a home. The Tribunal asked the applicant whether she purchased the land and she advised that she did, at a cost of AUD$1.21 million. She advised that there was a mortgage on the property through an Australian bank, the National Australia Bank, of AUD$970,000.  The Tribunal asked the applicant whether she still owned the block of land and she advised that she did and that she was currently having a home built on the block at a cost of AUD$1.4 million. She advised that it will be completed in approximately 2 to 3 months.

28. The Tribunal noted that given that the applicant had expended AUD$1.21 million on a block of land in October 2015 in French’s Forest in Sydney and given the fact that she had a mortgage for $970,000 with the National Australia Bank on this property, and that she was currently constructing a house with a construction value of AUD$1.4 million, why she would make such a huge financial commitment to Australia prior to the grant of permanent residence. The Tribunal noted that given this investment that one would expect that prior to pursuing permanent residency the applicant would have undertaken very thorough probity checks to ascertain the legitimacy of the application for permanent residency and the legitimacy of the business that was sponsoring her to work as a Sales and Marketing Manager. The applicant was invited to comment on this. The applicant stated that many Chinese people come to Australia and buy land and houses. The applicant stated that she lodged a visa application on 15 August 2016 and that she did not lodge it by herself. She stated that the purchase of the property had nothing to do with living in Australia and that the purpose of the purchase was that if her children wanted to come to Australia to study in the future that her parents and her children would have somewhere to live for the duration of their studies. The applicant stated that she was told by the migration agent who lodged the application on her behalf that she was in a queue for the visa application.  

29. The Tribunal made reference to PIC4020(1).  The Tribunal noted that this requires that 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 the application for the visa. The Tribunal noted that in the application for the visa the applicant stated that she would be working for at least 2 years for an Australian nominating business namely, CFF Finance Management NSW Pty Ltd and that she would be receiving a salary in the position of $182,000 per annum. The Tribunal noted that the Departmental delegate had found that this information provided by the applicant in the application for the visa appeared to be false or misleading. The applicant was invited to comment on this.

1. The applicant stated that she feels that she was wronged and that the visa application form had been submitted without her ever being able to see the form. The applicant stated that she signed an agency agreement with the agent. The applicant stated that she checked out the agent in Shanghai and they appear to be a legitimate agency that she could trust. The applicant stated that in March 2017 she brought her children to Australia to study.

2. The Tribunal noted that the evidence before it indicated that the applicant had instructed the agent to lodge the application on her behalf and the applicant confirmed that that was the case. The Tribunal noted that the evidence indicated that a fee for the agent’s services was discussed and she confirmed that a fee was discussed and she paid the fee by instalments.

3. The Tribunal asked the applicant whether she knew what type of visa application was being made and she advised that it was a Subclass 186 visa. The applicant stated that she was advised that there were delays in the processing of her application due to problems with the agent that she had engaged. The applicant stated that when she found out about this she was 4 to 5 months pregnant with her third child. The applicant stated that she returned to the Shanghai premises of the agent that she initially engaged and was advised that the premises had not been leased by any company since around May or June 2017.

4. The Tribunal confirmed with the applicant that she currently had two children studying in Australia and she advised that she had two children studying in Australia at Pittwater House in Sydney from April 2017 to March 2018 for almost one year. She advised that her parents stayed in Australia to look after her children and that her husband came over from time to time as well. The applicant stated that she returned to China when she was about to give birth to her daughter who was born on 17 November 2017. She advised her sons were now in China and no longer studying in Australia.

5. The Tribunal noted that the evidence before it indicated that CFF Finance Management Pty Ltd did not exist and that it was not an actively and lawfully operating company in Australia.  The Tribunal noted that the applicant’s evidence indicated that she had undertaken checks of the agent that she engaged in Shanghai and that she was satisfied with this persons credentials.  The Tribunal noted that the applicant had undertaken probity checks of the sponsoring business on the internet.  The applicant had also paid a very large amount of money for the services of the agent and this suggested that the applicant would have undertaken relevant probity checks before paying each of the instalments for the lodgement of the visa application.  The applicant also gave evidence that she was aware that the agent was lodging a 186 application for her to work in an Australian business as a Sales and Marketing Manager and indeed the applicant was in Australia during the lodgement of the application which would have given her every opportunity to undertake further probity checks of the sponsoring business.  The Tribunal noted that this evidence suggested that the applicant’s agent was acting within the scope of the authority the applicant had vested in the agent. The applicant was invited to comment on this.

6. The applicant started that it was her understanding that the qualification of the agent had been nullified.  The Tribunal asked the applicant whether there was any further evidence that she wanted to provide at the review hearing and she advised that she did not.  The applicants representative was invited by the Tribunal to provide a post hearing submission addressing the applicability of PIC4020(1) in this case.

7. A post hearing submission was received by the Tribunal on 6 August 2018 which has been duly considered.

8. The submission notes that the applicant made an application for a Subclass 186 visa on 15 August 2016. The submission notes that the nomination came from an Australian business CFF Finance Management NSW Pty Ltd (CFF) who lodged a nomination application with the Department on 9 June 2017. The submission confirms that during the review hearing the information provided by the applicant in her visa application was true and correct and that the only discrepancy was a wrong date of marriage. The applicant submits that this is indicative of the fact that there were no bogus documents or false and misleading information submitted to the Department with application for a Subclass 186 visa. The submission made reference to the Tribunal’s questioning around the due diligence checks that the applicant undertook prior to the payment of AU$130,000 to have a migration agent assist with the application. The submission notes that the applicant at hearing submitted that it was her belief that the employer had the requisite qualifications to hire overseas staff and that she had undertaken probity checks of the migration agency that assisted her in Shanghai.

9. The submission notes that the applicant gave testimony at the review hearing that she had purchased a parcel of land in French’s Forest and that her sons have been enrolled at a local school in Sydney for one year but as a result of the negative visa outcome they had returned to China. It noted that it was the hope of the applicant that her sons could be educated in Australia. In summary the submission contends that the applicant did not provide misleading or bogus information in her application for a Subclass 186 visa and that she undertook due diligence of the prospective Australian employer. Furthermore that the salary of AUD$180,000 that she was being offered provided further verification around the legitimacy of the position being offered to her.

10. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant meets the requirements of cl.186.233.  Further to this whether the applicant meets the requirements of cl.186.213(1) namely Public Interest Criterion 4020(1).

    Nomination of a position

12. Clause 186.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

13. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the nomination

    ·the nomination has been approved and has not been subsequently withdrawn

    ·there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of r.1.13A and r.1.13B); or it is reasonable to disregard any such information

    ·the position is still available to the applicant, and

    ·the visa application was made no more than six months after the nomination of the position was approved.

14. On 8 June 2017, the nomination lodged by CFF Finance Management NSW Pty Ltd, being the nomination for the purposes of the visa application, was refused by the Department of Immigration. On 9 May 2018, the Tribunal dismissed the application lodged by CFF Finance Management NSW Pty Ltd for merits review and as a result, the decision under review was taken to be affirmed.

15. Therefore, cl.186.233 is unable to be met as the nomination application by CFF Finance Management NSW Pty Ltd has not been approved.

    Other criteria

16. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.186.213(1) 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).

17. 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?

18. 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.

19. 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.

20. 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.

21. The evidence before the Tribunal indicates that the applicant engaged a migration agent in Shanghai whom she instructed to pursue an application for permanent residence.  The evidence indicates that the applicant paid a substantial amount of money to this agent to apply for the visa and provided personal details to the agent for the purpose of the application. The evidence indicates that the applicant paid in excess of AUD$130,000 for the visa and that she was aware that she was applying for a Subclass 186 visa which required her to be the subject of an approved nomination by an Australian business. The evidence indicates that the applicant was aware of the fact that this visa if it was approved would enable her to reside in Australia on a permanent basis and work for an Australian business in the nominated occupation.

22. The evidence before the Tribunal indicates that the applicant made the application for the visa on 15 August 2016. The evidence before the Tribunal indicates that the applicant visited Australia between January and February 2013, again in May 2015 and again in October 2015, and that the applicant was in Australia from 6 August 2016 until 23 August 2016, the period that traversed the lodgement of the visa application that is the subject of this review.  The applicant had every opportunity at this point to meet directly with her prospective employer and ensure the probity of the nomination and she chose not to do this.  The applicant’s evidence indicates that the only checks that she undertook to ensure that the sponsoring business was operating in Australia was searching that the business had an ABN and googling the business address which indicated that it was located in a prime CBD position.

23. The Tribunal does not accept the applicant’s evidence that these checks were sufficient to satisfy her that the business was operational and that the business was capable of offering her ongoing employment in Australia at the stated salary.  The evidence indicates that the applicant paid a large amount of money to obtain permanent residence.  Further to this the proposed Australian business was going to pay the applicant a substantial salary of AUD$182,000.  One would expect that a prudent person would undertake active steps to ensure that there was an actively and lawfully operating company in Australia, that they would make direct contact with the business and ensure that the business had a need for a Sales and Marketing Manager and had the ability to pay their salary.  The Tribunal finds that the fact that the applicant and her family were migrating to Australia from China on the basis that she was going to work for an Australian company would necessitate the applicant undertaking very thorough probity checks.

24. The evidence indicates that the applicant had every opportunity to undertake such checks and she, as noted, made a number of visits to Australia prior to the lodgement of the visa application and was in Australia at the time the application was lodged. 

25. The Tribunal finds that the applicant did not obtain probative evidence that the position was available and open to her.  The evidence suggests that the applicant was led to believe that the payment of a substantial amount of money for the visa was a guarantee that she was buying permanent residence.  The Tribunal’s findings in this respect are further fortified by the fact that prior to the grant of permanent residence the applicant paid in excess of AUD$1,000,000.00 on the purchase of a block of land in Sydney and that she has expended AUD$1,400,000.00 on the construction of a house on this property which is close to being completed.

26. The Tribunal accordingly finds that the applicant did knowingly provide false and misleading information to the Department in support of her Subclass 186 visa application as she attested in the application for the visa to the fact that she would be employed by CFF Finance Management NSW Pty Ltd for at least 2 years at an annual salary of $AUD182,000  The Tribunal finds that the absence of probity checks by the applicant to determine that the business was actively and lawfully operating and was able to provide her with employment as a Sales and Marketing Manager for at least 2 years was purposely false.  The Tribunal finds that a person migrating to a new country with their family members to take up a position of employment would ensure that the job offer open to them was a legitimate one and able to sustain the family post their migration to Australia. The Tribunal finds that the provision of this information was not the result of an innocent mistake.

27. Therefore, the applicant does not meet PIC 4020(1).

    Should the requirements of PIC 4020(1) or (2) be waived?

28. The requirements of PIC 4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in r.1.03), that justify the granting of the visa. The decision-maker must first be satisfied that there are such circumstances, then must consider whether to exercise the discretion to waive the requirements, having regard to those circumstances: Kaur v MIBP [2017] FCAFC 184.

29. The expressions ‘compelling circumstances’ and ‘compassionate or compelling circumstances’ are not defined for these purposes. To be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied: see Plaintiff M64/2015 v MIBP [2015] HCA 50. The ordinary meaning of ‘compassionate’ relates to feelings of sympathy, sorrow, pity or concern for others.

30. There is no evidence before the Tribunal which establishes the existence of compelling circumstances affecting the interests of Australia or compassionate and compelling reasons that affect the interests of an Australian citizen, and Australian permanent resident or eligible New Zealand citizen.

31. Therefore the requirements of PIC 4020(1) should not be waived.

32. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.186.213(1).

    DECISION

33. The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

    John Cipolla
    Senior Member

    
    

    ATTACHMENT A

    186.233(1)      The position to which the application relates is the position:

    (a)nominated in an application for approval that seeks to meet the requirements of:

    (i)subparagraph 5.19(4)(h)(i); or

    (ii)subregulation 5.19(2) as in force before 1 July 2012; and

    (b)in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)      The person who will employ the applicant is the person who made the nomination.

    (3)      The Minister has approved the nomination.

    (4)      The nomination has not subsequently been withdrawn.

    (4A)    Either:

    (a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

    (5)      The position is still available to the applicant.

    (6)      The application for the visa is made not more than 6 months after the Minister approved the nomination.