Ji (Migration)

[2019] AATA 5050

Ji (Migration) [2019] AATA 5050 (11 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Xuanbei Ji
Mr Yihan Wang

CASE NUMBER:  1908900

DIBP REFERENCE(S):  BCC2017/3754542

MEMBER:Susan Trotter

DATE:11 November 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa.

The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 11 November 2019 at 3:50pm

CATCHWORDS
MIGRATION – cancellation – Regional Sponsored Migration Scheme visa – Subclass 187 – Information supplied in visa application – bogus documents – intention to work for two years – delay in grant of nomination and visa – applicant’s pregnancies and periods of maternity leave – voluntary liquidation of company – responses to Department by company’s managing director – related managers at related companies – decision under review set aside with regard to the first applicant, no jurisdiction with regard to the second applicant

LEGISLATION

Migration Act 1959 (Cth), ss 100, 101(b), 103, 107, 109(1), 140, 359AA

CASES

Bretag v IRT & MILGEA (1991) 33 FCR 87

Rani v MIMA (1997) 80 FCR 379

Sai Chi Noriman Mak v IRT & MILGEA (1994) 48 FCR 314

Tien v MIMA (1998) 89 FCR 80 at 96

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 to cancel the applicants’ Subclass 187 - Regional Sponsored Migration Scheme visas under s.109(1) of the Migration Act 1958 (the Act).

2. The first-named applicant (the applicant) is a 26-year-old citizen of China and was granted the visa on 22 May 2017 having been nominated by, and the subject of an approved nomination of, RESA Operational Pty Ltd (RESA) for the position of Office Manager, and having applied for the visa on 14 January 2016.

3. On 29 June 2018, the then Department of Home Affairs (the Department) sent a formal Notice of Intention to Consider Cancellation (NOICC) of the visa to the applicant.

4. On 8 April 2019, the delegate cancelled the visa on the basis that there was a ground for cancelling the visa, namely that the applicant did not comply with ss.101(b) and 103 of the Act. In particular the delegate found that the applicant provided incorrect information to the Department in her application for the visa the subject of this review lodged 14 January 2016 and in the corresponding Employer Nomination application lodged 29 April 2015, on the basis that the applicant provided incorrect information indicating that she would undertake employment with RESA in the nominated position for at least two years. Additionally the delegate considered that in support of her visa application and the related employer nomination, the applicant submitted or caused to be submitted bogus documents. Further, having regard to the prescribed circumstances to be considered, the delegate concluded that the discretion to cancel the visa should be exercised.

5. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 14 August 2019 and provided the Tribunal with a copy of the delegate’s decision.

6. The applicant appeared before the Tribunal on 10 October 2019 to give evidence and present arguments.

7. The applicant was represented in relation to the review.

8. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   ISSUES

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.

11. Relevantly in this case, s.101(b) of the Act provides that a person’s visa application form must be filled in in such a way that no incorrect answers are given or provided and s.103 of the Act provides that a person must not give, present, produce or provide a bogus document or cause that to occur.

12. Subsection 5(1) of the Act provides as follows in relation to a ‘bogus document’:

    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.

13. If there is non-compliance in the way described in the notice given to the applicant under s.107 of the Act, and cancellation is not prohibited by s.113, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

14. It follows that the issues to be determined by the Tribunal are as follows:

    (a)Has a valid notice been issued under s.107 of the Act? And, if so,

    (b)Is there non-compliance in the way described in the s.107 notice? And, if so,

    (c)Should the visa be cancelled?

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. As a preliminary matter, the Tribunal discussed with the applicant a medical certificate provided to the Tribunal, just prior to hearing, certifying that the applicant attended her general practitioner on 8 October 2019 and that she is impacted by post-partum depression. When queried as to what regard the applicant wished the Tribunal to have of the certificate. The applicant responded that she has been impacted by post-partum depression before and is feeling the same types of symptoms at the moment. Accordingly, the Tribunal indicated that if the applicant wished to take breaks at any time or was experiencing difficulty during the hearing at any time, she should let the Tribunal know so that the Tribunal could accommodate her needs as required. The Tribunal observes that the applicant did not raise any issues in this regard during the subsequent duration of the hearing.

16. The documentary evidence before the Tribunal, including relevant documents also before the Department, included as follows:

    (a)  Letter dated 17 July 2016 apparently physically signed by Mr Anthony Le Messurier, Managing Director;

    (b)  Letter dated 27 December 2016 apparently electronically signed by Mr Anthony Le Messurier, Managing Director, Renewable Energy Solutions Australia Holdings Ltd;

    (c)  RESA letter dated 30 June 2017, signed by A E Le Messurier, confirming maternity leave for the applicant from 1 July 2017 to 30 October 2017;

    (d)  Department notes as follows:

    Information

    I/V conducted

    Notes

    Spoke to Tony (owner of the business) on 12/10/2017 at 11:00…

    …

    …

    I introduced myself and asked the following questions.
    Have you ever sponsored an overseas worked to work in your organisation?
    No. We have lot of dealings with China and India. I am looking for someone who speaks Chinese. But I have not employed anyone yet.

    Have you ever engaged the services of a migration agent or other person to represent your company to sponsor overseas worker?
    No

    Have you lodged any nomination applications with the Department?
    No.

    Have you provided any company documents like financial documents to anyone to represent your company to sponsor overseas workers?
    No

    Have you engaged the services of another person to recruit employees for your business? Or you directly interview them?
    I have not engaged the service of anyone. I directly interview them.

    (e)  Email from Mr Le Messurier to the Department dated 13 October 2017 with various questions posed by the Department and responses noted in italics as follows:

    Dear Tony

    Thank you for your time on the phone earlier.

    With regards to the application lodged to the Department that we discussed on the phone, can you please answer the following questions:

    1.Have you ever engaged the services of, or instructed, another person to act on your behalf or liaise with the Department? No

    2.Have you ever authorised, or instructed, another person to lodge a Permanent Employer nomination for your company? No

    3.Did you have an intention to sponsor an overseas workers in the following positions. If available and they have appropriate Visa’s, this is to boost our China business which is basically on hold, we have concentrated in India (while we find suitable people) where we have similar positions, but they are employed in India, different culture and communication situation.

    Officer Manager with a salary of $55000.00

    Sales Representative (Industrial Products) with a salary of $190000.00

    Corporate Services Manager with a salary of $190000.000 and

    Specialist Manager with a salary of $185000.00

    4.Did you supply company documents such as: Profit and Loss statements and Employment contract to another person in support of bringing an overseas worker to Australia to work within your business. Not to another person, we certainly have discussed Contracts, as we would with any prospective employee, but only in general terms and how they work. We do not hand out P&L (Financial) statements to any prospective employees.

    (f)    RESA letter dated 31 October 2017, signed by A E Le Messurier, confirming maternity leave for the applicant from 1 November 2017 to 30 July 2018.

    (g)  Letter from Mr Le Messurier dated 6 July 2018 stating, among other things, that he does not recall receiving or taking a phone call on 12 October 2017 as described by the Department and that the Department may have spoken to Michael Le Messurier, the General Manager of VoltLogic Solar Pty Ltd, who would be replying correctly in regard to VoltLogic Solar Pty Ltd at that time.

    (h)  Email from Tony Le Messurier on 13 September 2018 stating that the applicant was settling in very well and was an integral part of their progress into exporting.

    (i)    Payslips for the applicant headed “Voltlogic Solar Pty Ltd – The Solar Man” from 27 July 2018 to 23 October 2018.

    (j)    Various emails between August 2018 and October 2018 showing the applicant liaising with various persons in relation to the business, VoltLogic Solar Pty Ltd.

    (k)   Report to creditors dated 14 December 2018 in relation to VoltLogic Solar Pty Ltd (in Liquidation) formerly trading as RESA Intellectual Property Pty Ltd.

    (l)    Credit listing of VoltLogic Solar Pty Ltd (In Liquidation) with priority creditors (employees) listed as including the applicant

    (m) Australian citizenship certificates for the applicant’s two children.

    (n)  Email from the Department to Mr Tony Le Messurier dated 8 March 2019 noting, among other things, that:

    (i)Information before the Department indicated that on 12 October 2017, an officer phoned and confirmed she was speaking to him and a record of that conversation shows that he advised that RESA was looking to employ someone who spoke Chinese, but did not at that time employ anyone and had not sponsored any overseas workers and had never sponsored anyone with the applicant’s name nor lodged any application with the Department in support of such an application.

    (ii)On 13 October 2017, the Departmental officer sent an email to him requesting that he answer similar questions to those answered on 12 October 2017, via email, and the Department received a response from Mr Le Messurier confirming that RESA had never lodged a sponsorship nomination.

    (o)  Email from Mr Le Messurier dated 27 March 2019 confirming that the applicant commenced full-time employment with RESA on 19 June 2017, sought and was granted maternity leave from 1 July 2017 to 31 October 2017, extended on request from 1 November 2017 to 30 July 2018, with her returning to work on 1 July 2018 and her employment being terminated on 23 November 2018 following the company going into voluntary liquidation.

    (p)  Email from the applicant to the Department dated 1 April 2019 including as follows:

    I commenced full time employment for RESA Operations Pty Ltd on 19 June 2017 and worked for RESA for 2 weeks as training, and I asked for and was granted maternity leave from 1 July 2017 to 30 October 2017. My first baby [name intentionally deleted by Tribunal] was born on [date intentionally deleted by Tribunal] and I requested a extend for my maternity leave from 1 November to 31 July 2018.

    I went back for work on 1 July 2018 and stopped working for RESA Operations Pty Ltd on 23 November 2018 since RESA Operations Pty Ltd went into voluntary liquidation around 21 November 2018. I attach my payslips and bank statements below. In the last period from 31october 2018 to 23 November 2018, I did not receive my wages and payslips.

    After losing my job, I did not seek for a new job because I am in late stage of regnant. I gave birth to my second baby [name intentionally deleted by Tribunal] on [date intentionally deleted by Tribunal] and my Nicolas is just 18 months old. Because my two children are so small, I do not have time to seek for a new job at this moment. I will find a job in regional area as mu children can leave my care.

    (q)  Letter from Fair Entitlements Guarantee Branch, Attorney-General’s Department dated 5 September 2019, enclosing a cheque in relation to the applicant’s entitlement as a former employee with VoltLogic Solar Pty ltd (In Liquidation) with her years of service recorded as 0.41 with a commencement date of 1 July 2018.

    (r)   A statement of the applicant dated 10 September 2019, annexing corroborating documents, included the following:

    (i)Mr Tony Le Messurier does not recall receiving a phone call from the Department in October 2017 and suggests that such a phone call may have been taken by Mr Michael Le Messurier, General Manager of VoltLogic Solar Pty Ltd, in which case the information in the phone call would have been correct as it pertained to VoltLogic Solar Pty Ltd.

    (ii)VoltLogic Solar Pty Ltd is a fully owned subsidiary within the RESA group.

    (iii)Ms Xuanbei Ji commenced work with RESA, went on unpaid maternity leave two weeks after her initial commencement, and returned to work on 1 July 2018 until the company went into voluntary liquidation in November 2018.

    (iv)On 5 December 2016, the applicant found out that she was pregnant and her body reacted poorly to the pregnancy. This, together with the anxiety of waiting for her visa for a long time meant that her health got worse.

    (v)As she and her husband did not have any relatives in Australia who could give them a hand, they decided go back to China, where family members could look after her, to await the decision in relation to the visa.

    (vi)On 22 February 2017, she was notified that the Subclass 187 visa had been refused, which was a major blow to her. She then provided further documents and then the Subclass 187 visa was granted on 22 May 2017.

    (vii)She and her husband returned to Australia on 27 May 2017. She wanted to familiarise herself with her work as soon as possible before she gave birth, and started her first day in the company on 19 June 2017.

    (viii)Given her bad health at the time, she knew that her job performance was poor, so she suggested to Mr Le Messurier that she did not need to be paid and she used the days before she commenced maternity leave to familiarise herself with the work.

    (ix)After receiving the Notice of Intention to Consider Cancellation, she quickly contacted Mr Le Messurier and ended her maternity leave ahead of time and returned to work on 1 July 2018.

    (x)During August 2018, she was feeling unwell and thought she was feeling unwell and thought she was sick but discovered she was pregnant again.

    (xi)The company then faced a bankruptcy crisis and stopped paying wages and gradually laid off many colleagues.

    (xii)On 30 November 2018, the company declared bankruptcy owing her four weeks wages.

    (xiii)On 6 September 2019, she received a remittance from Fair Entitlements Guarantee in relation to the outstanding wages owing to her.

    (xiv)Her husband has been living in Australia for more than 10 years. She has been in Australia since 2013. Her two children were born in Australia and are Australian citizens.

    (xv)She and her husband purchased a house in Australia and her husband established a business in Australia a year ago. Her family have become incorporated into the Australian community. The cancellation of the visa will bring enormous hardship for her family, especially for the children who are Australian citizens.

    (s)  Statement of Anthony Le Messurier dated 22 September 2019 stating as follows (unedited):

    1)     I did not receive a call from the Department of Home Affairs on 12 October 2017 regarding the 187 subclass 187 visa application for Ms. Xuanbei Ji, nor do I ever recollect having a discussion around that time in any form with the Department and certainly not in the form suggested with any member of the Department.

    2)     I had sponsored Ms.. Xuanbel Ji to work for the company;

    3)     I had lodged a nomination application with the Department;

    4)     I had provided company documents including financial documents to the Department;

    5)     The company had employed Ms Xuanbel Ji; and I had lodged an application with the Department and provided company documents in support of an application, for Ms. Xuanbel Ji.

    6)     The claims stated in the cancellaiton decision for Ms. Xuanbel Ji are, in my view, inaccurate and groundless.

    7)     I have agreed Ms. Xuanbel Ji to have 2 maternity leaves.

    8)     I can offer Ms. Xuanbel Ji a position as the Office Manager in my current company but based in country South Australia.

17. The applicant’s evidence at hearing included as follows:

    (a)  Her understanding of why the Department has cancelled her visa is that: 1) Immigration believes that right before they were about to make the decision to cancel the visa she was not participating in any work; and 2) they rang Tony (Mr Le Messurier) and during the conversation they believe he said something like that he did not know her and also Tony has stated that he has never sponsored her; and also 3) they believe there are discrepancies about what she was begin paid according to the nomination, the contract and her payslips.

    (b)  She waited a long time for the visa. She applied for the visa on 14 January 2016 and it took nearly 18 months for it to be granted. By that time, she was pregnant with her first child (born 2 August 2017) and she therefore agreed to work without pay from 19 June to 30 June 2017 from when she then took maternity leave. However, by this stage, she had been waiting for the visa for nearly a year and had had continuing telephone calls and SMS messages with Mr Anthony Le Messurier from the time he agreed to employ her and sponsor her visa until when it was actually granted.

    (c)  The two companies, RESA and VoltLogic Solar Pty Ltd, were based out of the same location at Tweed Heads. There was a shop front and a warehouse. During the period 19 June to 30 June 2017, the applicant was not working every day. She only worked a few days, familiarising herself with the company’s products and services. Throughout this time she was mainly meeting with Mr Tony Le Messurier. When queried as to whether she met other employees, given that the nominated position was that of Office Manager, she replied that she understood her role was to deal with the customers in the Chinese market but she also expected that she would have to communicate with other employees of the company.

    (d)  She did not meet Michael Le Messurier and has not done so to this date.

    (e)  Even though her employment contract was with RESA, she was not surprised to find that she was working for VoltLogic Solar Pty Ltd because it was a subsidiary of RESA.

    (f)    When queried as to how it could be that Michael Le Messurier was the General Manager of VoltLogic Solar Pty Ltd and she did not know him, she responded that Mr Michael Le Messurier was the General Manager of VoltLogic Solar Pty Ltd before she went on maternity leave. When she returned to work, she is not sure whether Michael was still involved, and the General Manager had changed to a person named Stephen and she didn’t even see him much.

    (g)  She went back to work on 1 July 2018 but was not paid until August 2018. She then worked there until the business went into liquidation.

    (h)  Her subsequent work in July 2018 to October 2018 included contacting companies in China and trying to source new products/cheaper suppliers from China. During that period, she reported to the manager, a male named Andrew, and to Mr Anthony Le Messurier.

    (i)    Her husband has been living in Australia for more than 10 years. She has been in Australia since 2013. Her two children were born in Australia and are Australian citizens. They have purchased a house in Australia.

    (j)    She disagrees with all of the reasons listed for cancelling her visa. Her children are Australian citizens. Her son has been to China and did not like it. There were many people there and the air was so polluted that he became sick. Her daughter has never been to China.

    (k)   If the visa remains cancelled it would mean that she and husband would have to return to China with the children. They could not leave the children by themselves.

    (l)    As regards non-compliance with condition 8202 of the Subclass 573 student visa she previously held, in not being enrolled in a course of study between 31 March 2015 and 15 March 2016, she knew that she would have a work contract at the end of 2014/ beginning of 2015. She was moving from Sydney to Brisbane for that. She does not dispute that there may have been a period of non-enrolment. It was when she was anticipating commencing work. She did not study because her migration agent advised her that the working visa was going to be granted and she was asked to come to Brisbane.

1. Mr Anthony Le Messurier’s evidence to the Tribunal included as follows:

   (a)  He was not expecting a telephone call from the Tribunal but is aware of the application and was available to give evidence.

   (b)  As Managing Director of RESA, he sponsored the applicant to work for RESA and she had to wait for her visa to come through before they could fully employ her. The whole process took a long time. RESA was her employer.

   (c)  When queried as to when the applicant worked for the company, he responded that he does not have the exact dates in front of him but there were two periods of maternity leave. However, there was a period of work before the maternity leave. He was her supervisor before she started maternity leave. She started to help without being paid. He can only guess the period of work before maternity leave. He guesses that it was about six or seven months. Her work was all inside the office, setting up systems to purchase and sell inside the Chinese market. Primarily the applicant was dealing with him and another engineer inside RESA. She was starting to establish contacts in China both on the purchase and selling sides. Her language skills were integral to this. As far as he recalls, the applicant was paid for this work but he cannot really recall because it was a bit start and stop with her going on maternity leave. It might have been just a little bit.

   (d)  He does not recall the conversation he is said to have had with a Departmental officer on 12 October 2017 at all. The only thing he can suggest is that someone accidentally spoke to his son, Michael. However, he has spoken to his son and he has said that he does not recall any conversation either. When queried as to whether Michael has met the applicant, he responded that his son was the manager of another company, VoltLogic Solar Pty Ltd, that operated from the same office and his son would have known of the applicant but might not have had anything to do with her prior to her taking maternity leave.

   (e)  He cannot explain why the applicant would have received payslips from VoltLogic Solar Pty Ltd when she returned to work in 2018, other than the two companies had exactly the same shareholders and that maybe it was some accounting mechanism between the related companies. VoltLogic Solar Pty Ltd had the licence to sell RESA’s intellectual property. RESA purchased, manufactured and sold it and then delivered it to VoltLogic Solar Pty Ltd who then sold it to the consumer. They were related companies with the same shareholders.

   (f)    Michael, as the General Manager for VoltLogic Solar Pty Ltd, was in and out of the office a lot. He may not have known the applicant before she took maternity leave but he certainly would have known about her afterwards even if he had not met her. That is the only explanation for what the Department says they were told in the telephone call, otherwise ‘it is all out of whack’.

   (g)  When he found out there was a problem, he wrote to the Department straight away. He sent them a very firm letter saying it was not right.

   (h)  He does not recall receiving an email on 13 October 2017 or responding to that email.

   (i)    He was travelling a lot at this stage and sometimes signed letters physically and sometimes used an electronic signature.

   (j)    He has not re-opened his business in South Australia. He would be happy to take the applicant back and give her a job there. She did a great job.

2. The applicant’s further evidence to the Tribunal after Mr Anthony Le Messurier’s evidence included, as follows:

   (a)  The Tribunal put to the applicant, pursuant to the procedure set out in s.359AA of the Act, concerns in relation to Mr Anthony Le Messurier’s evidence that she worked with RESA for six to seven months prior to taking maternity leave as opposed to her evidence that she worked for two weeks. The applicant responded that, as stated earlier, there had been some time period between her being offered the job and applying for the visa and being granted the visa, during which she was in regular telephone and SMS contact with Mr Anthony Le Messurier throughout that time.

   (b)  The Tribunal also put to the applicant, pursuant to the procedure set out in s.359AA of the Act, concerns in relation to Mr Anthony Le Messurier’s evidence that Michael Le Messurier would have known the applicant as opposed to her evidence that she had never met him. The applicant responded that when she recommenced working in July 2018, there was a new manager, Stephen, and even though Michael might still have been the General Manager of VoltLogic Solar Pty Ltd, he was in and out of the office a lot and she was only there for a few months before the company went into liquidation and she just did not meet him in that time, even though she was aware of him.

   Issue 1 - Has a valid notice been issued under s.107 of the Act?

3. 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 complied with the statutory requirements.

   Issue 2 – Is there non-compliance in the way described in the s.107 notice?

4. On 29 June 2018, the delegate issued a notice under s.107 of the Act setting out the relevant provisions and the particulars of the non-compliance. In particular it was stated that there had been non-compliance in that the applicant as follows:

   (a)  In her application for the visa the subject of this review lodged 14 January 2016 and in the corresponding Employer Nomination application lodged 29 April 2015, the applicant provided incorrect information indicating that she would undertake employment with RESA in the nominated position of Office Manager for at least two years, such that s.101(b) had not been complied with.

   (b)  In support of her visa application and the related employer nomination, the applicant submitted bogus documents, being:

   (i)A letter dated 17 July 2016 allegedly signed by Mr Anthony Le Messurier, Managing Director of RESA;

   (ii)A letter dated 27 December 2016 also allegedly signed by Mr Anthony Le Messurier;

   (iii)Form 1404 Regional Sponsored Migration Scheme – Regional Certifying Body indicating that RESA, represented by Mr Tony Le Messurier, proposed to nominate Ms Xuanbei Ji for the position of Office Manager;

   (iv)Profit and loss statement for RESA, for the period July 2014 to June 2015;

   (v)Description of Office Manager role for RESA;

   (vi)A job advertisement for the position of Office Manager with RESA;

   (vii)A letter dated 5 May 2015, allegedly signed by Mr Tony Le Messurier, Managing Director, outlining RESA’s need for their proposed officer manager;

   (viii)A contract manufacturing agreement made on 10 December 2014 between RESA and Ningbo GINLONG Technologies Co. Ltd; and

   (ix)Organisational chart for RESA;

   such that s.103 had not been complied with.

5. The issues therefore to be determined by the Tribunal as to whether there is non-compliance described in the s.107 notice are whether:

   (a)  The statements in the employer nomination lodged on 29 April 2015 and the visa application lodged on 14 January 2016 stating that the application would be undertaking employment with RESA in the nominated position of Office Manager for at least two years was an incorrect answer because it was considered that the applicant’s employment with VoltLogic Solar Pty Ltd was arranged after the issuance of the NOICC in order for the application to maintain her visa status.

   (b)  The documents provided in support of the visa application and employer nomination were (therefore) bogus documents.

   Were incorrect answers given or provided in the employer nomination application or in the visa application?

6. Notably, s.100 of the Act provides that an answer to a question is incorrect even though the person who gave the answer did not know that it was incorrect.

7. In relation to a different provision of the migration law, Public Interest Criterion 4020, which relevantly refers to false or misleading information, the Federal Court in Trivedi v MIBP [2014] FCAFC 42 concluded that an element of fraud or deception by some person is necessary to attract the operation of that provision, stating as follows:

   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 that the information was purposely untrue in order for PIC 4020 to be engaged. However, importantly an element of fraud or deception by some person is necessary to attract the operation of the provision as is recognised in the case of Trivedi v the Minister of Immigration and Border Protection [2014] where Judge Emmett stated:

   It is apparent from the terms of PIC 4020 that it addressed the problem of attempts to work a fraud or deception on the assessment of claims for a visa. I would not infer any apparent intention to disqualify a visa applicant who could explain an innocent mistake in a document or information provided by them. PIC 4020 is not directed, in my view, to innocent, unintended or accidental matters. However, different questions arise when information or documents provided in support of an application are revealed as false, in the purposely untrue sense of that term.

   In my view, it should be accepted that an element of fraud or deception is necessary in order to attract the operation of PIC 4020. To take the example of bogus documents, a counterfeit document is not produced accidentally.

8. The Tribunal considered all of the evidence before it, particularly taken together with the chronology of the nomination application and visa application from application to approval to grant stretching out over a number of years, with the nomination application made on 29 April 2015 and approved 29 October 2015 and the visa application having been made on 14 January 2016 and granted on 22 May 2017.

9. The circumstances of the 12 October 2017 phone call from the Department, apparently to Mr Anthony Le Messurier, are instrumental to the Department’s findings in relation to the false information and bogus documents. Reliance is also placed on there being no payslips or employment records for the applicant prior to July 2016 when the applicant took maternity leave.

10. The Tribunal accepts Mr Anthony Le Messurier’s evidence that he does not recall any such phone call and disputes that he would have said as stated in the phone call. Notably, however, the number recorded as being the number telephoned used by the Department to contact Mr Anthony Le Messurier is also the same number provided for the Tribunal to contact Mr Anthony Le Messurier and upon which the Tribunal did contact him.

11. The Tribunal accepts that it is plausible that the phone call of the Department on 12 October 2017 may have been with Mr Michael Le Messurier, notwithstanding the Department’s officer’s notes that he spoke to ‘Tony’. The Tribunal accepts that Mr Michael Le Messurier may not have been aware of the applicant until July 2018 or after. Nonetheless, the phone call and subsequent email remain somewhat curious and are not necessarily explained on the evidence.

12. However, having had the opportunity of speaking with Mr Anthony Le Messurier at length, the Tribunal accepts that he recruited and sought the services of the applicant and sponsored her employment. Of some concern in this regard is the email to the Department, from an email address which Mr Anthony Le Messurier confirmed as his email address, on 13 October 2017. Although the email answers, in response to the Department’s questions, do not exactly mirror the recorded content of the 12 October 2017 telephone conversation, it is of some concern that the email notes that Mr Anthony Le Messurier has never engaged the services of, or instructed, another person to act on his behalf or liaise with the Department in circumstances where the employer nomination application was facilitated by a migration agent. Further, it is of concern that the answers in the email suggest employment in the future, rather than previously, of a person if they have an appropriate visa.

13. Having taken into account all of the evidence before if, the Tribunal concludes that what has actually occurred in relation to this matter is that RESA was desirous of employing the applicant in the position advertised by them and that there were numerous contacts between the applicant and Mr Le Messurier to this end leading up to the applicant’s visa being granted on 22 May 2017. However, by that time the applicant was six to seven months pregnant and it was not practical for her then to commence work as had been intended. The Tribunal is satisfied that the applicant and Mr Le Messurier nonetheless had a number of discussions about the intended role and the company’s business and that the applicant did attend RESA’s workplace on at least a few occasions prior to commencing maternity leave.

14. While, as already noted, the phone call with the Department on 12 October 2017 and subsequent email of 13 October 2017, are not necessarily satisfactorily explained, what the Tribunal has to consider is whether incorrect answers were given in the nomination application and visa application, and whether bogus documents were consequentially provided.

    Nomination application lodged 29 April 2015

15. In the nomination application at page 7, RESA declared that it would provide the applicant with full-time employment for two years as follows:

    Will provide full-time employment for the visa applicant for at least two years.

    Yes

    Visa application lodged 14 January 2016

16. In the visa application at page 12, the applicant has declared that she had provided complete and correct information in the form and any attachments. In support of the application, letters dated 17 July 2016 and 27 December 2016 allegedly signed by Mr Anthony Le Messurier were provided.

17. Based upon the telephone call interview of 12 October 2017, and given the absence of payslips or employee records for the applicant prior to 1 July 2018, the Departmental delegate concluded that they considered it likely that the applicant’s employment was only arranged after issuance of the NOICC in order to maintain her visa status. Accordingly, the delegate found that incorrect information was provided in the nomination application and the visa application, and consequently concluded that the documents provided in support of those applications were bogus. In essence the Departmental delegate has relied upon evidence of subsequent events to assess as a matter of fact whether the answers in the nomination application and visa application at an earlier point in time were incorrect. To this end, the Federal Court in Bretag v IRT & MILGEA [1991] 33 FCR 87 and Sai Chi Noriman Mak v IRT & the MILGEA (1994) 48 FCR 314 held that that evidence of subsequent events could be admitted where the subsequent events/evidence tend logically to show the existence of the facts that existed at an earlier time. However, this needs to also be seen in the context that neither the prospective employer or employee in these circumstances can predict the exact date of grant of a visa or what circumstances might arise in the intervening period.

18. The Tribunal has had the benefit of closely questioning both the applicant and Mr Le Messurier at hearing. The Tribunal considers it important to bear in mind that these circumstances all occurred in the context of a submitted intention to employ the applicant originating in 2015 which was not able to come to fruition, for visa reasons, until May 2017, by which time the applicant was well advanced in her first pregnancy. It is entirely plausible in those circumstances that the applicant and Mr Le Messurier kept in contact throughout this period and that the applicant took advantage of some time prior to the birth of her child to familiarise herself with the company and its business in this period and in the period between grant of the visa and preparing for the birth of her child.

19. In considering whether an incorrect answer was given in either the nomination application or the visa application, or in documents provided in support of those applications, the Tribunal considers it important to test the correctness of the answers at the time given, not at a subsequent time when, in hindsight, circumstances have changed. Although reliance may be placed upon subsequent events if they tend logically to show the existence of earlier facts, that should not be reliance on other possible explanations as to subsequent facts.

20. While Mr Anthony Le Messurier’s answers to the Department’s questions in the email of 13 October 2017, if not the 12 October 2017 telephone call, might be suggestive of no past intention to sponsor an overseas employee, having had regard to Mr Anthony Le Messurier’s various statements and his unequivocal evidence at hearing, the Tribunal is satisfied that RESA genuinely sponsored the applicant and intended to employ her. Notably, although after issuing of the NOICC, the applicant did commence employment with a company within RESA’s holding group.

21. Having had regard to all matters, and in particular to the evidence of the applicant and Mr Anthony Le Messurier at hearing, the Tribunal is satisfied that at the time the answers were given in these applications, on 29 April 2015 and 14 January 2016 respectively, the answers were correct and at that time the company intended to provide the applicant full-time work for two years and the applicant intended to work in the nominated position. The Tribunal is therefore satisfied and finds that no incorrect answers were given or provided in this respect in relation to either the nomination application or visa application. Further, the Tribunal is not satisfied that bogus documents were provided in relation to this genuinely held plan for RESA to sponsor and employ the applicant. It follows that there was no non-compliance in the way described in the s.107 notice.

    Issue 3 - Should the visa be cancelled?

22. Given the Tribunal’s findings, the Tribunal concludes that there is not non-compliance in the way described in the s.107 notice and it is not necessary to consider this issue. The Tribunal observes, however, that had it been necessary to consider this issue, it would be required to have regard to the applicant’s responses to the s.107 notice about the non-compliance and the prescribed circumstances set out in r.2.41 of the Migration Regulations 1994, that is, the correct information, the content of the genuine document (if any), whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document, the circumstances in which the non-compliance occurred, the present circumstances of the visa holder, the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act, any other instances of non-compliance by the visa holder known to the Minister, the time that has elapsed since the non-compliance, any breaches of the law since the non-compliance and the seriousness of those breaches, any contribution made by the holder to the community and other relevant factors. In this regard, the Tribunal considers that the applicant’s present circumstances of being the parent of two Australian citizen children, her and her husband’s now ownership of a property and business in Australia and associated connection with the community, would be matters which, in the Tribunal’s view, would weigh significantly in favour of the discretion to cancel the visa not being exercised.

    Secondary applicant

23. The only decision that is before the Tribunal is the decision with respect to the applicant. The second-named applicant’s visa was cancelled not by a decision, but by force of the operation of s.140 of the Act, which made the cancellation of the second-named applicant’s visa self-executing on the cancellation of the first-named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the second-named applicant’s visa cancellation under s.140, the Tribunal has no jurisdiction with respect to him.

    DECISION

1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa.

2. The Tribunal has no jurisdiction with respect to the other applicant.

   Susan Trotter
   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.