Li (Migration)

[2019] AATA 5481

Li (Migration) [2019] AATA 5481 (27 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Yunjun Li

VISA APPLICANT:  Mr Minsen Li

CASE NUMBER:  1819087

DIBP REFERENCE:  BCC2018/1988744

MEMBER:Rosa Gagliardi

DATE:27 November 2019

PLACE OF DECISION:  Melbourne

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

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

Statement made on 27 November 2019 at 4:11pm

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Public Interest Criterion 4020 – false or misleading information given in relation to previous visa application – bogus document – previous application claimed full-time employment for five years, with employment certificate attached – previous application prepared by agent – criterion applies only to current application or one for a visa held within 12 months before current application – previous application more than 12 months ago – refusal of visa within three years for false or misleading information – previous application withdrawn by applicant and not refused by Department – decision under review remitted

LEGISLATION

Migration Act 1959 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 600.213(a), Schedule 4, criterion 4020

CASES

Arora v MIBP [2016] FCAFC 35

Batra v MIAC [2013] FCA 274

Trivedi v MIBP [2014] FCAFC 42

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 14 June 2018 to refuse to grant the applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 7 May 2018. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.cl.600213(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because it was considered that the applicant had given, or caused to be given, to the Minister information that is false or misleading in a material particular in relation to a prior visa application.

3. The review applicant/sponsor appeared before the Tribunal on 12 November 2019 to give evidence and present arguments. The Tribunal also received oral evidence the sponsor’s wife, Ms Ling Li as well as from the visa applicant overseas.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.cl.600213(a) 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).

7. The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.

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

8. The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and the term ‘bogus document’ is defined in s.5(1) of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.

9. The requirement in PIC 4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant: PIC 4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.

10. 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.

11. Prior to lodging this visa application, the applicant had applied for a Sponsored Family Stream application FA 600 on 2 May 2017.  In response to ‘Question 34 What is your employment status?’ the applicant advised that he was employed by Fuqing City Gaoshan Liudan Furniture for 5 years as a sales manager.  Attached with the application was a document titled ‘Employment Certificate’ signed and dated 23 March 2017, which confirmed the claimed employment and stated the applicant was the ‘Sales manager of our company since Mar.2012’.

12. However the applicant had previously lodged a Tourist Stream FA 600 in Guangzhou on
    23 November 2016.  When contacted in relation to this 2016 application, the applicant advised the overseas office he used to work at a plastic factory in Fuqing but the ‘factory bust up in 2012’ and that he was at that time unemployed. 

13. On 7 May 2018 the visa applicant lodged a Sponsored Family Stream application FA600 (the present visa application).  In response to the question regarding employment, the applicant advised he was a Manager and Self-employed aquafarming business owner since 2012 (evidence has been submitted).  The applicant was invited to comment on the inconsistency over the various applications. 

14. A response was provided stating:

    The applicant admits that during his second SC600 visa application his formal migration agent did submit some incorrect information and document regarding his employment.  However, he claims that the application form was wholly prepared by his formal migration agent and the employment certificate was manufactured by the agent too.  As the formal migration agent insisted that a full-time employment would really help the applicant get the visa approval, the applicant was reluctant but had to follow the agent’s direction and instructions.

15. The Tribunal and the Department did not find that the applicant had provided false or misleading information or a bogus document in relation to the visa application under review (what is being referred to as the third application filed on 7 May 2018).  The alleged bogus document and false information was provided in relation to the second application made on 2 May 2017.

16. PIC4020(1) requires that that there is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Administrative Appeals Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

    ·The application for the visa; or

    ·A visa that the applicant held in the period of 12 months before the application was made.

17. The intent of the regulations is that PIC4020(1) can only be imposed in respect of the visa before the before the Department and the Tribunal, being this latest visa application lodged on 7 May 2018.  As the Tribunal does not have evidence that the applicant has provided false or misleading information or a bogus document in relation to this application, PIC4020(1) is not applicable.  Similarly, the applicant has not provided false or misleading information in relation to a previous visa, because the applicant has never held a visa to Australia. 

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

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

19. 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). 

20. As the second visa application is the subject of PIC 4020 (lodged on 2 May 2017) the Tribunal is required to assess whether the applicant has had a visa refused on the basis of a failure to satisfy PIC 4020(1). 

21. The Tribunal has carefully examined the Departmental records and has found that there is no refusal decision in respect of the application lodged on 2 May 2017.  This is because it was withdrawn on 10 July 2017.  The applicant has submitted evidence that this is the case and the Departmental records show that a refusal decision was never made in respect of that second application lodged on 2 May 2017, as the withdrawal was accepted by the Department.

22. In such circumstances, PIC4020(1) cannot be applied on the basis that a previous visa application was refused because false or misleading information or a bogus document was submitted to the Department.  The effect of the withdrawal, prior to any decision being made, is to nullify the fact the applicant had provided false or misleading information. 

23. Clearly, it appears that the applicant on discovering that providing the false information would not enhance his chances of obtaining the visa, decided to withdraw.  In retracting the application altogether after having provided false or misleading information, the regulations permit the applicant to lodge a further visa on the basis that a refusal was never made in a previous application and the Tribunal is required to deal with it in that way.

24. Therefore, PIC 4020(2) does not apply.

    Has the applicant satisfied the identity requirements?

25. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.  The Tribunal does not have any evidence before it to indicate that the applicant is putting false claims forward regarding his identity and the Department made no such finding either.

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

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

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

28. The Tribunal does not have any information about the applicant or any other family unit member having provided false information in respect of their identity or that they have failed to satisfy PIC 4020(2A).  As such, PIC 4020(2B) does not apply.

    Conclusion

29. On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl.cl.600213(a).

    DECISION

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

    ·Public Interest Criterion 4020 for the purposes of cl.cl.600213 of Schedule 2 to the Regulations.

    Rosa Gagliardi
    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. 

    …