LI (Migration)

[2020] AATA 2492

LI (Migration) [2020] AATA 2492 (20 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Wenshuo LI

CASE NUMBER:  1805441

DIBP REFERENCE(S):  BCC2016/3922890

MEMBER:Jennifer Cripps Watts

DATE:20 April 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for an Employer Nomination (Permanent) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 186 - Employer Nomination Scheme visa:

· Public Interest Criterion 4020 for the purposes of cl.186.213 of Schedule 2 to the Regulations.

Statement made on 20 April 2020 at 11:59am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream ­– Interpreter – false or misleading information in a material particular – relationship status – claimed separation from former spouse – not formally divorced – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.213; Schedule 4, PIC 4020

CASES
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 (the delegate) on 12 February 2018 to refuse to grant the applicant an Employer Nomination (Permanent) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the Subclass 186 visa, in the Temporary Residence Transition stream, on 22 November 2016, in the nominated position of Interpreter (ANZSCO 272412), relating to a nomination for the position by Dr Nicholas C Doong.   

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.186.213 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied the applicant met Public Interest Criteria (PIC) 2020 because she was found to have given, or have caused to be given, to the Minister false or misleading information in a material particular: cl.186.213(1).

4. On 13 February 2020, the Tribunal wrote to the applicant inviting her to attend a hearing scheduled on 3 March 2020, at 9:30am Sydney time.  The applicant responded, informing the Tribunal that she is in China and unable to travel to Australia.  In the alternative, the Tribunal offered her a phone hearing and the option of scheduling the hearing later in the day at a time more agreeable to her, given she is in a different time zone.  The applicant’s migration agent advised the Tribunal by phone that there was no need to change the hearing time.  It is noted on the Tribunal file that, in concluding the call, the case officer reminded the migration agent that the applicant should provide any additional information before the scheduled hearing that she wishes to be considered on the review.  Submissions were provided the day before the hearing.

5. The applicant appeared before the Tribunal by phone on 3 March 2020 to give evidence and present arguments. The applicant is herself an Australian qualified interpreter in the Mandarin and English languages.  She did not request an interpreter.  Her English was excellent and the phone line was clear throughout the hearing.  At the beginning of the hearing, the applicant was invited to request that questions be repeated or rephrased if need be, but apart from occasional clarification, which is usual in migration hearings, the Tribunal is satisfied that there were no communication or language issues.    

6. The applicant was represented in relation to the review by her registered migration agent, Ms Yuan Tian.  Ms Tian did not attend the hearing.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.186.213 for the grant of the visa. Broadly speaking, this requires that:

   ·     there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and

   ·     the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and

   ·     the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and

   ·     neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA).

9. If an applicant does not meet the requirements in PIC 4020(1) and (2), they 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.

10. The applicant applied for the Subclass 186 Employer Nomination Scheme visa in the Temporary Residence Transition stream. Subdivisions 186.21 and 186.22 are the primary criteria that must be satisfied for the grant of the visa. All criteria must be satisfied at the time a decision is made on the application. Relevantly, cl.186.213(1) requires that the applicant satisfy, among other things, PIC 4020. Relevantly, the visa the applicant held in the 12 months prior to making the Subclass 186 application was a Subclass 457 visa; the visa application was made on 26 February 2013 and it was granted on 24 September 2013.

11. The applicant was previously married, in Australia, to a Mr He, who entered Australia in 2006 on a Chinese passport holding a student visa.  According to Department records, he last departed Australia in May 2016 on a flight to China.  Essentially, it is the applicant’s relationship with Mr He, and certain facts and matters relating to it, that led to the unfavourable PIC 4020 decision made by the delegate. 

12. In relation to the applicant’s Subclass 186 visa application, the false or misleading information relating to a material particular, identified in the delegate’s decision, was that the applicant claimed to have separated from her husband, Mr Jie He, within the same year they married, 2013.  However, the delegate considered this to be false or misleading information, because although it was accepted the applicant was married to Mr He in May 2013, the delegate did not accept that the applicant and Mr He separated in December 2013, as the applicant claimed.   Reasons were given including in the delegate’s decision, including that Mr He, three years after the claimed separation, among other things, still indicated his address to be that of the applicant’s in Ultimo, where they previously lived together, on his New South Wales driver’s licence; and, in 2017, Mr He was still included as a beneficiary on the applicant’s superannuation policy.  In addition, the applicant claimed Mr He moved back to China in 2013.  However, it transpired (in 2016) that he had not left Australia at all.  The applicant claimed that the only contact she had with Mr He after he said he was leaving in around mid-2013 was by Wechat and that she had no knowledge that Mr He had remained in Australia the whole time, until she was told by the police in April 2016. 

13. The applicant has claimed at the time of application, and continues to claim at the time of this decision, supported by written and oral evidence, that:

    a.She and Mr He were married (in May 2013) after she made her Subclass 457 visa application (in February 2013);

    b.Mr He travelled offshore in around July 2013 (about a week before the birth of their child in Sydney);

    c.Before the Subclass 457 visa was granted (in September 2013), she informed the Department (in August 2013) she was married to him but that he would not be included in the application as a member of her family unit because he was offshore (in China);

    d.To her knowledge, Mr He returned to China in around July 2013 after the couple argued about where their child should be raised – Mr He wanting them to return to live with his parents and the applicant wanting to continue to reside in Australia;

    e.They continued to communicate by Wechat after Mr He left their home in Ultimo, the applicant hopeful that he would return to the relationship;

    f.From July 2013, Mr He never resided at or returned to the applicant’s residence in Ultimo were they had resided together;

    g.In December 2013 they separated while talking on Wechat, on the basis of the applicant’s continued refusal to return to and settle in China with Mr He’s parents in Fujian Province;

    h.In April 2016, the police attended the applicant’s place of residence in Ultimo and she was informed that the applicant was in the Villawood Detention Centre, relating to criminal matters and that he had not departed Australia in mid-2013 as she believed, but had continued to reside onshore;

    i.At all times between mid-2013 and April 2016 the applicant believed that Mr He was living and working in China; and

    j.Declaring herself ‘separated’ in her Subclass 186 visa application was correct information, and not false or misleading in a material particular.

14. In relation to her Subclass 457 visa application, in August 2013 the applicant provided the Department with a birth certificate for the secondary applicant, indicating Mr He to be the father.  When the 457 visa application was being assessed, the applicant was asked to clarify her married relationship with Mr He and, in September 2013, in response to the Department’s inquiry, informed them in writing that Mr He was working in China and that she was not planning to include him in her Subclass 457 visa application. 

15. The applicant gave evidence at the Tribunal hearing that she and Mr He had been in a relationship since late 2011, they married in May 2013 and, in July 2013, about a week before she gave birth to their baby, Mr He left her because she refused to go back to China with him.  The applicant said Mr He told her he was going back to China without her.  She thought that is where he went, in around July 2013, but remained hopeful that they would reconcile.  She said they communicated by Wechat for some months before eventually having a disagreement significant enough for them to separate in December 2013 (about three or so months after the 457 visa was granted).  During this period, the applicant suffered emotionally and mentally and needed to have her mother come out from China to help with the newborn baby, because she was alone and had no-one else to help her when she returned to work. 

16. The applicant said that because she did not include Mr He in her 457 visa application as a dependant, she did not think she needed to provide information of the separation (after the visa was granted) to the Department.  In the Subclass 186 application that was lodged in November 2016, that is the subject of this review, the applicant declared that she was separated (from Mr He), in answering the question in the online form at page 2 of 14: 

    Q.       Relationship status

    A.        Separated

17. When the visa applicant was assessed, the delegate was concerned that the applicant, by 2017, was still not formally divorced from Mr He.  The Tribunal is unconcerned, in the circumstances of this case, that the applicant has not formalised her divorce from Mr He yet.  It is not unusual for finalisation of a divorce to take some years, particularly where there are ongoing custody issues, as there appear to have been in this case.  In addition, the applicant has been attempting to finalise the divorce in China, not Australia, with the parties living in different provinces and dealing with demands relating to custody of the child (their grandson) by Mr He’s parents.  

18. The Tribunal took oral evidence from the applicant at her Tribunal hearing and spent around two or so hours obtaining a thorough and detailed account of the inception and development of the applicant’s marriage to Mr He, their separation, her knowledge of his whereabouts from 2013 onwards, the status of their divorce proceedings and the applicants’ personal circumstances during the relevant time period, including that they are parents of a young child (the secondary applicant), which was consistent with the position she has always maintained. 

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

19. 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).  This case does not involve the giving of a bogus document.

20. The requirement in PIC 4020(1) not to provide false or misleading information applies whether or not the Minister became aware of the 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 information was provided by the applicant knowingly or unwittingly.

21. 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.

22. The applicant was considered to have given spontaneous and consistent evidence at the Tribunal hearing and was very credible in her account of the events throughout the relevant periods when she held a Subclass 457 visa, and relevant events prior to and after the granting of the visa that give context to the information she provided while she held the Subclass 457 visa, from 2013 to 2017.  The applicant also provided, in the Tribunal’s view, entirely plausible explanations about some of the matters that were previously in dispute, relating to the status of her marriage to Mr He and his whereabouts from 2013 to 2016. 

    Background and version of events the Tribunal accepts

23. The applicants are Chinese nationals, mother and son.  After a few years studying in Australia, the applicant applied for a Subclass 457 visa in February 2013 and was granted the visa on the basis of an approved nomination by Dr Nicholas Doong, which was granted in September 2013.  The secondary applicant was born in Australia in July 2013.   The Tribunal has had regard to the online Subclass 457 visa application, generated on 26 February 2013, where the applicant included that she had never been married and that she was about four months pregnant.  The Tribunal is satisfied that the information was correct when the applicant was lodged on the same date.

24. The applicant was about four months pregnant when she applied for the Subclass 457 and, in May 2013, married Jie Hi, the father of her child.  He is also a citizen of China and was living and working in Australia at the time, having arrived here holding a Subclass 572 student visa in 2009.  Both the applicant and Mr He’s names are indicated as the parents on the child’s New South Wales birth certificate.

25. The applicant was asked at the Tribunal hearing whether she and Mr He had discussed him being included as a dependant in the February 2013 Subclass 457 visa application before she applied for it and she said she they had.  The applicant said she asked him if he wanted to be included, but said Mr He told her he did not need to be included (as a secondary applicant) because he had his own visa.  The applicant said she believed him, because at the time she said she had no reason not to.  The applicant said he had a good job as a chef and that the restaurant owner, who the applicant says she had met, spoke highly of Mr He as a valued employee.  For these reasons, the applicant said she thought he was sponsored by the restaurant and held a work visa.  On 24 September 2013, before the applicant’s 457 visa was granted, there is documentary evidence that she responded to a request for information from the Department, in writing, that her husband, He Jie, was ‘currently’ working in China and that she was not planning to include him in her visa application.  The applicant provided a New South Wales birth certificate for their son, who was born in July 2013, indicating Mr He to be the child’s father. 

26. However, it appears Mr He did not have his own visa in 2013.  Departmental records dated 17 February 2020 indicate Mr He’s last substantive visa, a Subclass 572 student visa, ceased on 10 August 2011 and he appears not to have held another substantive or bridging visa from that date until he departed Australia on 27 May 2016, indicating he was probably onshore unlawfully for all or part of the period from August 2011 to May 2016.  There was some suggestion he may have been convicted of a criminal offence or offences during that time.  The movement record indicates that Mr He has not returned to Australia at any time since May 2016.  He had been detained and held at the Villawood Detention Centre and was deported in May 2016. 

27. In May 2013 the applicant married Mr He.  In July 2013, the applicant gave birth to their son in Sydney, shortly before which Mr He moved out of their Ultimo residence and told the applicant that even if she wasn’t coming with him, he was going back to China without her.  Even though pressure had been put on her to go back to China to have the baby, the applicant did not capitulate and insisted on remaining in Australia to give birth.  The applicant said that, at the time, she hoped that Mr He would return to Australia and they would reconcile.   

28. Shortly after Mr He and the applicant’s mother, who had just had surgery in China, was called on by the applicant and made an emergency trip to Australia to help the applicant with the new baby because she was on her own.  Evidence confirming the surgery and travel of the applicant’s mother has been provided and there is no reason to think that she travelled to Australia in mid-2013 for any other purpose. 

29. The applicant says she and her husband communicated by Wechat after he left their Ultimo home in 2013, which she says gave her no reason to think he was not in China; because she said that is where he told her he was going and he was still trying to persuade her to go to China and live with him and his parents.  In response to questions asked of her at the Tribunal hearing, it was explained by the applicant that, after the baby was born, greater pressure was being put on her by Mr He and his family for her to agree to live in Fujian Province in China with Mr He’s parents, who placed importance on having their only son and grandson living with them.  The applicant said that Mr He is their only child and, because he was getting older and his parents thought this would be the only son he would have, they wanted both him and his son to live with them in their home as it would be their only opportunity to raise a grandson. 

30. The applicant’s mother stayed with her in Ultimo for about three months and, in October 2013, the applicant, the baby, and her mother, all returned to China.  The baby has remained in China with his maternal grandparents since then.  The applicant returned to Australia, to resume work at Dr Doong’s Surgery, in late November 2013, the same month her Subclass 457 visa was granted.  In November 2016, the applicant applied for the Subclass 186 visa that is the subject of this review.  It was refused on 12 February 2018 and, since around that time, the applicant has primarily resided in China with her parents and 7 year old son, awaiting a decision on the review relating to her Subclass 186 visa application.

1. It was not until December 2013, when the applicant was back onshore, that the applicant says she and Mr He had an argument on Wechat about the matter of she and their child living in China with his parents that resulted in the relationship ending for good, when Mr He told her if she would not relocate to China with the baby, they would not be together anymore. 

2. The applicant says she thought Mr He was still in China in December 2013 and only found out he had not been in China at all during the relevant period (from 2013 onwards) by New South Wales police officers, when they attended her home in Ultimo, on the basis that this was the address on Mr He’s licence; he had not changed the address on his licence when he left in mid-2013.  They told her that Mr He was in the Villawood Detention Centre relating to criminal matters and that he was about to be deported, which he subsequently was, in May 2016.  The applicant was asked at the Tribunal hearing if she knew what the criminal charges were and said she was not sure of the details but thought it might have been something to do with fake ID’s. 

3. On 22 November 2016, the applicant applied for a Subclass 186 visa in the Temporary Residence Transition stream identifying Dr Nicholas C Doong as the nominator for the position of Interpreter relating to the visa application.  At the time of application, she held a Subclass 457 visa on the basis of an approved nomination, also by Dr Nicholas C Doong.

4. The Tribunal has heard from the applicant that, from the time his son was born, Mr He has had no contact with the child, nor has he provided any financial support; the Tribunal is satisfied that it appears he has played no parental role in the child’s life at any time.  The applicant’s son is now nearly seven years of age and continues to reside in China with his maternal grandparents, as does the applicant now.  She returned to China in April 2018, made a brief trip back to Australia in December 2018, and said she returned to China to continue living with her family (up to the time of this decision), in Shandong Province. 

5. The applicant provided information to the Department in 2017 that she intended to divorce Mr He, but this divorce is not yet finalised.  At the Tribunal hearing, the applicant said that finalising the divorce (in China) has taken an unnecessarily long period of time because Mr He’s parents have made things difficult because they wanted to be granted custody of her son.  The matter was not finalised, as the applicant had hoped it would be, at the beginning of 2020.  This is because before the divorce and custody arrangements for the child were settled and paperwork signed, travel bans were put in place in China, just before the 2020 Chinese New Year, which has prevented the applicant from travelling to the home city of Mr He to sign the requisite paperwork to finalise the divorce.  Given the current COVID-19 situation, the Tribunal considers it reasonable to think that it is unlikely the divorce has been finalised at the time of this decision.

6. The delegate did not accept the applicant’s claim that she was unaware that Mr He was residing in Australia from 2013 to 2016 and had concerns that, although she claimed they separated in December 2013, the applicant and Mr He were still cohabiting in the Ultimo apartment up until April 2016.

7. The only information that can be said to be false or misleading, in the Tribunal’s view, is that in September 2013 the applicant informed the Department that her husband was overseas in China.  However, the Tribunal is satisfied that the applicant genuinely thought he was in China at the time and therefore the information was not purposely untrue.  In both the Subclass 457 visa application and in response to requests from the Department for more information relating to the application in August 2013, specifically why her husband was not included in the visa application, the Tribunal is satisfied that there was no element of fraud or deception present on the part of the applicant when the information, that her husband was not included in the visa because he was working in China, was provided, and that they separated in December 2013.

8. Dr Doong sponsored the applicant for the Subclass 457 visa which was granted to her in in September 2013 and is the holder of the approved nomination for the position of Interpreter relating to the applicant’s Subclass 186 visa application that is the subject of this review.  The Tribunal has before it many written references, including from Dr Doong, co-workers, patients and friends who all speak very highly of the applicant as an interpreter and as a person of good character.  From around 2013 to 2018, the applicant worked at Dr Doong’s Surgery in Enfield assisting with the day to day activities in his medical practice in her capacity as an interpreter in the Mandarin, Cantonese and English languages, before returning to China to live temporarily in early 2018 while awaiting an outcome in her visa matter.

9. At the time of this decision, Departmental records indicate Dr Nicholas C Doong was approved as a standard business sponsor under s.140GB of the Act and that the nomination for the position of Interpreter was approved on 11 March 2017 and it has not been withdrawn.

10. The Tribunal has carefully considered relevant documentary and oral evidence and is in no doubt that the applicant married Mr He in May 2013, separated from him in December 2013 and that she was misled, deceived – as to his whereabouts - and manipulated by Mr He, who appears to have provided no support whatsoever to her or their son since he was born, in July 2013, nor played any parental role in his upbringing.  In the circumstances, and for the reasons given, the Tribunal finds that the applicant did not provide false or misleading information to the Minister in relation to the application for the Subclass 186 visa, or the Subclass 457 visa that the applicant held in the period of 12 months before the Subclass 186 visa application was made.

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

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

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

13. There is no evidence before the Tribunal that the applicants have had a visa refused previously because of a failure to satisfy PIC 4020(1).

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

    The applicant’s identity

15. PIC 4020(2A) requires the Tribunal to be satisfied as to the applicant’s identity.  There is no information before the Tribunal that the applicant’s identity is in question or that the applicant have previously failed to satisfy identity requirements.

16. Therefore, PIC 4020(2A) and PIC 4020(2B) are met.

17. In this case, PIC 4020(4) is not applicable.

18. On the basis of the above, the applicant satisfies PIC 4020 for the purposes of cl.186.213.

    DECISION

19. The Tribunal remits the application for an Employer Nomination (Permanent) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 186 - Employer Nomination Scheme visa:

    · Public Interest Criterion 4020 for the purposes of cl.186.213 of Schedule 2 to the Regulations.

    Jennifer Cripps Watts
    Member

    ATTACHMENT

    Migration Regulations 1994

    Schedule 4

    4020(1)         There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

    (a)the application for the visa; or

    (b)a visa that the applicant held in the period of 12 months before the application was made.

    (2)The Minister is satisfied that during the period:

    (a)starting 3 years before the application was made; and

    (b)ending when the Minister makes a decision to grant or refuse to grant the visa;

    the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).

    (2AA)However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

    (2A)The applicant satisfies the Minister as to the applicant’s identity.

    (2B)The Minister is satisfied that during the period:

    (a)starting 10 years before the application was made; and

    (b)ending when the Minister makes a decision to grant or refuse to grant the visa;

    neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).

    (2BA)However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

    (3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.

    (4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:

    (a)compelling circumstances that affect the interests of Australia; or

    (b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

    justify the granting of the visa.

    (5)In this clause:

    information that is false or misleading in a material particular means information that is:

    (a)false or misleading at the time it is given; and

    (b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.

    …

    Migration Act 1958

    s.5      Interpretation

    (1) In this Act, unless contrary intention appears:

    …

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)purports to have been, but was not, issued in respect of the person; or

    (b)is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)was obtained because of a false or misleading statement, whether or not made knowingly.  

    …