Ju (Migration)

[2020] AATA 1788

Ju (Migration) [2020] AATA 1788 (10 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Heqian Ju

CASE NUMBER:  1716489

HOME AFFAIRS REFERENCE(S):          BCC2016/2837191

MEMBER:Jennifer Cripps Watts

DATE:10 March 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

Statement made on 10 March 2020 at 12:12pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) – Subclass 186 (Employer Nomination Scheme) – direct entry stream – bogus document or false or misleading information – different nominating employer, position and salary in visa application – possible fraud by migration agent – no approved nomination – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 1, para 1114B; Schedule 2, cls 186.213, 186.233; Schedule 4, PIC 4020

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 (the delegate) on 14 July 2017 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 26 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. When an application is made for a Subclass 186 visa, as a Schedule 1 requirement, the applicant must identify an approved business sponsor (s.140GB of the Act), in paragraph 1114B(3)(d), that is nominating them, seeking to meet r.5.19(4) of the Regulations, to work in a specified position. 

5. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Sales and Marketing Manager for TTG E-Business Pty Ltd (TTG) as declared in her visa application.

6. The delegate refused to grant the visa because the applicant did not meet cl.186.213(1) of Schedule 2 to the Regulations because the delegate was not satisfied the applicant met Public Interest Criteria (PIC) 4020.

7. On 14 July 2017 the applicant’s visa was refused and, on 28 July 2017 she applied for review and provided the Tribunal with a copy of the delegate’s decision.  On 30 October 2017 the applicant was invited to attend a scheduled hearing and responded to the Tribunal that she would attend her hearing by phone, from China. 

8. The applicant attended the Tribunal hearing, by phone from China, on 19 November 2019 to give evidence and present arguments.  

9. The applicant was represented in relation to the review by her registered migration agent, Ms Helen Chen.  Ms Chen did not attend the hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The determinative issue on which the visa was refused was that the applicant did not satisfy the requirements of cl.186.213 because she did not meet PIC 4020.  The delegate found that she had provided a bogus document or false or misleading information, in a material particular, in relation to her Subclass 186 visa application that is the subject of this review.  The applicant was informed by the Tribunal, when the hearing invitation was sent to her, that another issue had arisen on the review and that was that she does not have a nomination relating to the visa application that is the subject of the review.

12. To be granted a Subclass 186 visa, all criteria must be satisfied at the time a decision is made on the application.

13. Subclause 186.213 of Schedule 2 to the Regulations requires, among other things, that the applicant satisfies specified public interest criteria; relevant to this case, PIC 4020.

14. Subclause 186.233 of Schedule 2 to the Regulations includes as a requirement that an applicant be the subject of a nomination approved by the Minister. The approved nomination must be the same company that was identified in the Schedule 1 declaration made by the applicant at the time of application.

    Public Interest Criteria

15. Broadly speaking, PIC 4020 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).

16. 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). 

    Is there an approved nomination?

17. For nomination of a position, cl. 186.233 of Schedule 2 to the Regulations requires, among other things, and relevant to this case, in summary, that;

    ·The position to which the application relates is the position nominated in an application for approval that seeks to meet the requirements of subparagraph 5.19(4)(h)(i) 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;

    ·The Minister has approved the nomination; and

    ·The nomination has not subsequently been withdrawn.

18. Department records indicate that on 21 August 2015, FGS Information Technology Pty Ltd made a nomination application relating to the applicant, who applied for a visa on the same day.  On 9 June 2017, both were refused.  No application for review was made by either applicant.  This information provides context in the current matter but is not material to the issue on the review.

19. On 26 August 2016, the applicant applied for the visa that is the subject of this review.  The applicant declared she would be working in the position of Sales and Marketing Manager for TTG receiving a salary of $182,000 per annum.

20. It is noted in the delegate’s decision that, on 12 June 2017, before a decision had been made, the applicant was provided with an invitation to comment on adverse information and given 28 days to comment and that no response was received.  This related to the visa application for the Subclass 186 visa she had made on 26 August 2016, declaring TTG to be the nominating company.

21. On 14 July 2017, the applicant received notification from the Department that the Subclass 186 visa had been refused.  The applicant says she believed her sponsor, up until that time, was FGS Information Technology Pty Ltd, who had made an offer of employment to her, working in the occupation of Marketing Manager for a salary of $65,000 a year.  When the applicant received the delegate’s decision to refuse her visa, she said it was only then that she realised that it was another company, TTG, that was included in the visa application as the nominating company and that the occupation of Sales and Marketing Manager had an annual salary of $182,000.   In essence the applicant claims that the nominating company, position and salary were not what she had been included in her visa application which, she says, was completed and lodged for her by a migration agent.

22. The information in the visa application relating to the declarations as to the sponsor and salary to be paid was found by the delegate to be false and misleading information in a material particular relating to the visa application and the visa was refused on that basis.

23. The applicant provided the Tribunal with a typewritten statement, dated 5 November 2019, in which she explains that she was a victim of fraud by a company in China, Shanghai Pudong Donglu Overseas Affairs Services Pty (“Shanghai Immigration Consulting Agency”) (SICA) that offered to facilitate an arrangement whereby she would be nominated by an Australian company, FGS Information Technology Pty Ltd, for a Subclass 186 visa, working as a Sales and Marketing Specialist with an annual salary of $65,000.  The applicant included in her visa application that she had a Melbourne based migration agent, [Mr A], of [Migration agency].  The applicant says that she believed it was FGS Information Technology Pty Ltd that was nominating her, based on a contract of employment she was shown by SICA, which has been provided to the Tribunal, that related to her Subclass 186 visa application, together with a screen shot confirming receipt of payment for the nomination application.  It is acknowledged that the applicant provided these documents to the Tribunal. 

24. The FGS Information Technology Pty Ltd employment agreement, dated 7 May 2015, is addressed to the applicant and includes that the position is that of Marketing Specialist with a salary of $65,000 a year. 

    Nomination of a position

25. 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, which is not applicable in this case as the visa application was made on 26 August 2016.

26. 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.

27. As mentioned earlier, in the hearing invitation and again orally at the Tribunal hearing, the applicant was informed that in addition to satisfying PIC 4020 as required under cl.186.213, cl.186.233 must also be met and requires that the nomination identified in 1114B(3)(d) of Schedule 1 of her visa application has been approved and not withdrawn. 

28. The applicant provided written and oral evidence relating to matters concerning the visa refusal on the basis that she did not satisfy PIC 4020, a requirement to satisfy primary criterion cl.186.213.  These were discussed with her at length at the hearing.

29. In addition, the applicant was reminded that she had been informed before and at the beginning of the hearing, that without TTG having an approved nomination relating to her Subclass 186 visa application she would not be able to meet cl.186.233.  The applicant responded indicating she understood because she said her migration agent had explained it to her.

    Conclusion

30. On 26 August 2016, the applicant lodged a Subclass 186 visa application identifying as the nominating company as TTG E-Business Pty Ltd.  The Tribunal acknowledges that the applicant claims that she has been a victim of a migration scam perpetuated by an agency in China, Shanghai PudongDonglu Overseas Affairs Services Pty Ltd (“Shanghai Immigration Consulting Agency”).  The applicant said they assisted her with her application and in finding her employment and a sponsor in Australia in support of her visa application.

31. Detailed written submissions were provided by Ms Chen, dated 29 January 2018.  The applicant provided a written statement, dated 5 November 2019, in which she gave largely consistent oral evidence at the Tribunal hearing about the circumstances in which she says she was scammed as detailed in Ms Chen’s 2018 submissions. 

32. When her application was being assessed by the Department in 2017, a procedural fairness was sent to the applicant, but it elicited no response.  The applicant has submitted that the reason for this was because neither the company in Shanghai, nor her Australian migration agent, informed her of the letter inviting her comment. 

33. On the evidence before the Tribunal, it appears possible that the applicant may have been a victim of migration fraud by [Mr A] in the manner she has described.  [Mr A]’s migration agent registration was cancelled by the Australian Office of the Migration Agents Registration Authority, in its decision dated 6 July 2018.  However, the applicant applied for a Subclass 186 visa on 26 August 2016 and, relating to that application, has no approved nomination (as identified in Schedule 1 of her visa application at r.1114B(3)(d)) and cannot, for that reason, meet the criteria for the grant of the visa.

34. The applicant is required to meet all primary criteria and, as she does not meet cl.186.233, it is not necessary to consider whether she meets the other primary criteria.

35. For the reasons given, cl.186.233 is not met. 

36. In these circumstances, there appears to be no reason why the applicant would be barred, under s.48 of the Act, from applying for another visa.    

37. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Direct Entry stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.

    DECISION

38. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

    Jennifer Cripps Watts
    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.