Lin (Migration)

[2021] AATA 5213

Lin (Migration) [2021] AATA 5213 (21 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Kaiyan Lin
Mr Qilun Liu

CASE NUMBER:  2110024

HOME AFFAIRS REFERENCE(S):          BCC2021/334742

MEMBER:Andrew McLean Williams

DATE:21 December 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the first-named Applicant’s Subclass 186 -  Employer Nomination Scheme visa.

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

Statement made on 21 December 2021 at 4:55pm

CATCHWORDS
MIGRATION – cancellation – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – incorrect information in visa application – employment history – verification checks showed no record of employment with one claimed employer and that another was not officially registered until after claimed employment – no documentary evidence and vague oral evidence – statements from claimed colleagues and employer unable to be tested – allegation of ‘pay for visa’ activities – discretion to cancel visa – members of family unit – consequential cancellation of husband’s visa – child an Australian citizen by applicants’ permanent residency – best interests of child – first applicant not currently working – residence and financial prospects – decision under review affirmed for first applicant, no jurisdiction for second applicant

LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 109(1), 140(1), 245AS(1), 359A, 359AA, 375A(1)(a), (2)(b)
Migration Regulations 1994 (Cth), r 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248
Singh v Minister for Immigration [2016] FCCA 2464

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made on 5 August 2021 by a Delegate of the Minister for Home Affairs, cancelling the first-named Applicant’s Subclass 186 - Employer Nomination Scheme (‘ENS’) visa, pursuant to s.109(1) of the Migration Act 1958 (‘the Act’).

2. The Delegate cancelled the ENS visa on the basis that the first-named Applicant had not complied with s.101(b) of the Act, by reason of the Delegate having concluded that the Applicant had provided incorrect information in support of her visa application. The issue in the present case is whether that ground for cancellation is made out, and, if so, whether the visa should be cancelled.

3. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first-named Applicant (‘the Applicant’), as the primary visa holder. The other visa, as held by the Applicant’s husband Mr Qilun Liu was automatically cancelled, in consequence of the cancellation of the Applicant’s visa. In other words, Mr Qilun Liu’s visa was cancelled not in consequence of any decision that might now enliven the review jurisdiction of the Tribunal, but instead by reason of the automatic operation of s.140(1) of the Act. As no ‘decision’ was involved in the cancellation of Mr Qilun Liu’s visa, the Tribunal has no review jurisdiction with respect to that visa cancellation.

4. The Applicants appeared before the Tribunal on 9 November 2021 to give evidence and make submissions. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The Applicants were represented in relation to the review by Ms Mengpei Gao, of Ascent Lawyers, Brisbane. Ms Gao also attended the Tribunal hearing on 9 November 2021, and had arranged for the lodgement of written submissions and other supporting evidence on 9 November 2021.  Further materials were submitted by Ms Gao on 15 November 2021, with leave granted for same by the Tribunal during the hearing.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the Applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with any of sections 101, 102, 103, 104, 105, or 107(2) of the Act. Broadly speaking, these provisions require non-citizens to provide correct information in their visa applications, and on their in-bound passenger cards; not to provide ‘bogus documents’; and to notify the Department of any incorrect information of which they become aware; or in relation to any relevant changes in their circumstances, after the date of the lodgement of their visa application.

8. 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. Extracts of the Act relevant to this case are now attached to this decision.

9. In the present matter, a notice under s.107 of the Act - given in the manner of a Notice of Intention to Consider Cancellation (‘NOICC’) - was given to the Applicant on 15 July 2021. At no stage has the Applicant sought to contend that the NOICC does not conform with the requirements under s.107. Equally, the Tribunal has independently formed the view that the Delegate had reached the necessary state of mind to engage s.107, and that the NOICC issued under s.107 complies with the statutory requirements. Accordingly, the Tribunal is satisfied that the s.107 precondition for the exercise of the cancellation power under s.109 has been satisfied, in this instance.

   Was there non-compliance as described in the s.107 notice?

10. The issue before the Tribunal is whether there was non-compliance in the manner described in the s.107 notice, and if so, whether the visa should be cancelled.

11. The non-compliance identified and particularised in the NOICC was non-compliance with section 101(b) of the Act, which provides that a visa applicant must complete their visa application in such a way that (b), ‘no incorrect answers are given or provided’.

12. The NOICC particularises that on 21 September 2014 the Applicant lodged an application for a Temporary work (skilled) (Subclass 457) visa, by means of the Department of Home Affairs on-line portal.  On page 12 of the application, the Applicant was required to provide details of her prior employment.  On page 14, the Applicant was then required to declare that any information provided by her as part of the application process was not false or misleading.  The Applicant specified that her prior employment included time working for the ‘Guangzhou Determination Network Technology Company’ as a Management Consultant, from 10 April 2012 until 20 September 2014; and employment with the ‘Guangzhou Yi Mei Culture Communication Company’ as an Administration Manager, from 7 December 2011 until 31 March 2012.  That information was duly declared by the Applicant on the Subclass 457 application to be neither false, or misleading.

13. The NOICC then goes on to further particularise that on the basis of the information contained in the 21 September 2014 Subclass 457 application, the Applicant and her husband were granted a Subclass 457 visa on 19 November 2014; and that the Applicant then used her status as a 457 visa holder to lodge an application for an Employer Nomination (‘ENS’) (Subclass 186) visa on 25 May 2017, again by means of the Department’s on-line portal, and sponsored by Medical Data Services Pty Ltd for the specified occupation of ‘Management Consultant’ (ANZSCO 224711) . 

14. On pages 9 and 10 of the Subclass 186 application, the Applicant was again required to provide details of her employment history.  On pages 15 and 16, the Applicant was required to declare that the information contained in the application did not include any false or misleading information.  As part of the Subclass 186 visa application, the Applicant had stated that her past employment history included her having worked for the Guangzhou Determination Network Technology Company as a Management Consultant from 10 April 2012 until 20 September 2014; and her working with the Guangzhou Yi Mei Culture Communication Company as an Administration Manager, from 7 December 2011 until 31 March 2012.  The Applicant once again certified that this information was neither false, or misleading.

15. The NOICC issued on 15 July 2021 next particularises that efforts were made by the Department to check the accuracy of the employment history information provided by the Applicant in each of the abovementioned visa applications.  This did not occur until after the visas had already been issued.  Foreign Affairs staff in China, acting on behalf the Department of Home Affairs, were unable to contact the Guangzhou Determination Network Technology Company by telephone; and further investigations undertaken at that point revealed that this company had not even been registered as an official entity until a date that was after the employment dates that had been specified by the Applicant in her visa applications. Although Departmental Officers were able to make successful telephone contact with the Guangzhou Yi Mei Culture Communication Company, they were informed that the Guangzhou Yi Mei Culture Communication Company had no record of the Applicant having ever worked there. In light of this information, the Department took the view that the Applicant had probably not been employed by either of the two nominated Chinese companies; and that the employment history information provided by the Applicant on the Subclass 457 and Subclass 186 visa application forms was probably incorrect information, probably provided by the Applicant as part of her visa application(s) in breach of s.101(b) of the Act; such that the (then operative) Subclass 186 visa granted to the Applicant on 27 February 2018 may be liable to cancellation, under s.109.

16. In response to the invitation contained in the NOICC, the Applicant made submissions to the Department of Home Affairs on 28 July 2021, and on 4 August 2021 (‘the NOICC response’).

17. In the NOICC response, the Applicant contends that she did not provide false information, and re-iterated that she had worked for both of the specified Chinese companies. 

18. In relation to the Guangzhou Determination Network Company, supporting statements were provided as part of the NOICC response from a Mr Tianyi Liu, and also from a Mr Haode Liao; and the Applicant submitted further evidence demonstrating changes in the listed telephone and e-mail contact addresses for the Guangzhou Determination Network Company over the period between 2015 and 2017, thus affording a possible explanation as to why Officials from the Department of Foreign Affairs in China had been unable to contact that company using the 2014 telephone number that had been provided by the Applicant in her visa application(s).  The Applicant also submitted that, whilst it was acknowledged that the Guangzhou Determination Network Company was not officially registered as a company until 1 January 2015, open-source internet searches had revealed blogs and online chat messages - in March and July 2011 - each revealing online discussions in relation to the Guangzhou Determination Network Company; thus suggesting that this company was in operation (in some form at least), prior to the date of its official registration.

19. In relation to the Guangzhou Yi Mei Culture Communication Company, the Applicant submitted a statement from a Ms Minxin Ye, who is reputed to be a former employee of the Guangzhou Yi Mei Culture Communication Company between 2010 and 2013, who vouches for the Applicant’s employment at that company at the time claimed by the Applicant; as well as a statutory declaration from the Applicant herself, detailing all of her unsuccessful recent efforts to attempt to contact the Guangzhou Yi Mei Culture Communication Company in order to obtain further proof of her past employment; and some other tangential evidence (such as photographs of a desk in an office), that are claimed to show that the Applicant had worked at the Guangzhou Yi Mei Culture Communication Company during the period claimed. 

20. Ultimately, in her NOICC response, the Applicant submitted that she had only worked for the Guangzhou Yi Mei Culture Communication Company for about 75 working days in total, almost ten years ago now, such that it should not come as a surprise that this company has no record of her employment; such that it now should not be a matter that is held against her. 

21. In her response to the NOICC the Applicant also made various submissions as to why the discretion in s.109 of the Act should not be exercised in a manner resulting in the cancellation of her visa. These submissions will be held over for consideration by the Tribunal, further below, in conjunction with the other recent submissions made by the Applicant in relation to the question of the exercise of the cancellation discretion.

22. On 5 August 2021, a Delegate of the Minister made the visa cancellation decision.  For reasons which are now obviously overtaken by the requirement for the Tribunal’s fresh consideration of the cancellation power, the Delegate took the view that none of the information submitted by the Applicant in response to the NOICC was sufficient to preclude the Delegate exercising her discretion, in favour of cancellation of the visa. 

23. On 6 August 2021 the Applicant commenced this Application for Review.

24. The Applicant lodged submissions and evidence before the Tribunal in support of her Application for Review on 2 November 2021.  The submitted materials include an mp4 file, in the form of a video of a male person in China ‘speaking to camera’ and claiming to be a Mr Ziyu Che, from the Guangzhou Determination Network Technology Company.  There is also a translation of that video statement available for the Tribunal’s consideration.  The Applicant’s submissions and evidence as supplied on 2 November 2021 will also be considered and assessed by the Tribunal, further below.

    Additional Information before the Tribunal, pursuant to s.375A:

25. During the hearing on 9 November 2021 the Tribunal also disclosed to the Applicant the fact of there now being a certificate issued to the Tribunal by the Department of Home Affairs on 15 October 2021 under s.375A of the Act, in relation to certain other information now before the Tribunal, yet not previously disclosed to the Applicant as part of the NOICC issued to her by the Department, on 15 July 2021.

26. Pursuant to s.375A(2)(b), the Tribunal must do all things necessary to ensure that the document or information subject to the s.375A certificate is not disclosed by the Tribunal to any person, other than a member of the Tribunal as constituted for the purpose of determining the Application for Review.

27. As has been recognised by the Full Court of the Federal Court in Singh v Minister for Immigration & Anor ([2016] FCCA 2464, per Kenny, Perram & Mortimer JJ, at [12]), the existence of the s.375A certificate gives rise to an obvious tension between the obligations inuring in the Tribunal under s.375A(2)(b), and an obligation simultaneously arising under s.359A: which does require that the Tribunal provide an Applicant with “clear particulars” regarding any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review.

28. Ultimately, in light of Singh (ibid, at [52]), the Tribunal is obliged to disclose the fact of the s.375A certificate to the Applicant, and the Full Court made plain (at [53] – [58]) that, in most cases, the general obligation to afford procedural fairness to an applicant is the ascendant consideration, which requires that the subject matter covered by a s.375A certificate should (in most cases) be disclosed to an Applicant, by means of carefully devised particulars, drawn in such a manner so as to not disclose the confidential information otherwise covered by the s.375A certificate.

29. In the present case, the information provided to the Tribunal under cover of the s.375A is quite different from that previously provided to the Applicant in the NOICC given under s.107; which now affords the specific grounds for any putative cancellation under s.109.

30. Notwithstanding the s.375A information being different to that expressed in the s.107 notice, the Tribunal has formed the view that the information covered by the s.375A certificate is still such that, were it to be accepted, it would afford at least a part of the reason for affirming the decision under review (per s.359A(1)(a)); such that in the specific circumstances arising in this case the Tribunal has determined there is a need to disclose particulars of the s.375A certificate material, and that the best way within which to do that has been by means of affording the Applicant with broad oral particulars of the s.375A certificate information, delivered during the hearing on 9 November 2021, pursuant to s.359AA. The particulars so delivered were that:

    -The Department had received information that the Applicant’s sponsored employment with Medical Data Services Pty Ltd was “pay for visa” activity, in contravention of s.245AS of the Act;

    -In 2014, a female person had met with a company representative from Medical Data Services Pty Ltd and had offered a payment of $30,000 in exchange for that employer agreeing to employ the Applicant, for an ensuing period of two or three years.  The employer then accepted a payment in that amount for sponsoring the Applicant;

    -Periodically thereafter, the same female person gave to a representative from Medical Data Services Pty Ltd further cash payments, which were understood by the company representative to be monies handed over to defray costs associated with the Applicant’s on-going employment.

31. During the hearing, the Tribunal also put to the Applicant that she had provided a declaration as part of her Subclass 186 visa application that she had not engaged in any conduct in contravention of s.245AS of the Migration Act. In response, the Applicant denied being involved in pay-for-visa activities; denied having the financial capacity to make such a payment; and stated that the only payment she had ever made was in the form of the payment of a $10,000 fee to her migration agent, known to her as “Monica”, who had organised her employment with Medical Data Services Pty Ltd.

32. At the conclusion of the hearing conducted on 9 November 2021, the Tribunal wrote to the Applicant’s authorised representative enclosing a copy of the s.375A certificate, and inviting submissions by close of business on 16 November 2021 regarding: (i), the validity of the s.375A certificate; and (ii), any further response that the Applicant may wish to make to the overview of the particulars provided orally by the Tribunal during the hearing on 9 November 2021 (‘the s.359AA invitation’).

33. On this de novo hearing of the Application for Review the Tribunal is obliged to re-consider all of the evidence previously submitted by the Applicant to the Department of Home Affairs in response to the NOICC; as well as any new evidence and submissions provided to the Tribunal in relation to the exercise of the cancellation power unders.109. This now includes any new information received by the Tribunal from the Department under s.375A, and as given by the Applicant to the Tribunal in response to the particulars of the s.375A certificate information provided to her under s.359AA.

    Applicant’s submissions in response to particulars of the s.375A notice information:

34. The Applicant’s authorised representative made a response to the s.359AA invitation on 15 November 2021. No challenge has been entered by the Applicant to the validity of the s.375A certificate. Rather, the Applicant further submits (by way of a statutory declaration dated 15 November 2021), that she did not provided any funds to her visa sponsor Medical Data Services Pty Ltd, and nor did she or her husband authorise payment to that company by anyone else. The Applicant also stated that she had attempted to contact Mr Kevin Lee at Medical Data Services Pty Ltd, in an effort to obtain information from him confirming that he had not been in receipt of any monies to employ the Applicant. However, the Applicant had been unsuccessful in her attempts to contact her former ENS Scheme employer.

1. Despite not being able to contact the employer, the Applicant had managed to find a publicly accessible transcript from a New South Wales ICAC hearing, conducted on 29 September 2020, containing testimony before the ICAC given by a Ms Maggie Wang. 

2. The Applicant now submits to the Tribunal a copy of that ICAC hearing transcript (pages 653 – 700), which includes reference to the Applicant’s employment by Medical Data Services Pty Ltd, trading as ‘Smart-line Home Loans’. 

3. The ICAC transcript evidence submitted by the Applicant reveals a Ms Maggie Wang as having informed the ICAC (presumably under oath), that she had worked in association with a person named “Monica”, in relation to several visa applications by Chinese persons involving pay-for-visa activity.  Maggie Wang informed the ICAC that she would arrange sponsoring employers to agree to sponsor Chinese visa applicants in exchange for their receiving a cash payment, which was often $30,000; and that other payments were then also often made after the initial payment to sponsoring employers, in order to defray ongoing employment expenses. 

4. In the specific case of the Applicant’s employment, Maggie Wang told the ICAC that Mr Kevin Lee and Smart-line Home Loans was different in character to other cases, as, unlike other instances of cash-for-visa conduct admitted by her during the ICAC hearing, the Applicant’s employment at Smart-line Home Loans - although still the subject of an “introduction fee” paid to the sponsoring employer - was nonetheless an instance of legitimate sponsored employment, because the Applicant was not charged the enlarged fee that was usually charged to other foreign nationals, and the Applicant had continued to work for Smart-line Home Loans for an ongoing period of two or three years, beyond the point of the grant of the visa. 

5. In her submission to the Tribunal made on 15 November 2021 the Applicant now submits that this ICAC transcript evidence shows that her employment by Medical Data Services Pty Ltd was genuine employment, and that the Applicant had neither the motivation nor financial capacity to make the alleged payments.

   Applicant’s Response to the s.375A notice information – An Assessment:

6. The Tribunal is not satisfied that the evidence of Maggie Wang before the ICAC is actually dispositive of the s.375A information before the Tribunal, in the manner now contended by the Applicant in her further submission in response to it. The s.375A information is contrary to the testimony of Maggie Wang before the ICAC, and is to the effect that Medical Data Services Pty Ltd did receive a $30,000 cash inducement to employ the Applicant, as well as other periodic payments to defray other costs arising in consequence of the Applicant’s ongoing employment.

7. The Tribunal also notes - at page 693 of the ICAC transcript submitted by the Applicant – that Maggie Wang conceded under cross-examination that Smart-line Home Loans had received “an introduction fee of some sort” for agreeing to employ the Applicant.  That the Applicant then actually continued to work for that employer for a further period of two or more years beyond the approval of her visa, and in a manner that may ultimately have been dissimilar to other foreign nationals introduced by Ms Wang to other pay-for-visa sponsors, is then a matter that is hardly to the point. 

8. In light of the s.375A certificate information, the Tribunal does not accept as creditable the Applicant’s evidence given during the Tribunal hearing - and as then subsequently re-stated by her after the hearing, in her statutory declaration dated 15 November 2021 - denying any involvement in pay-for-visa activity, and denying the payment by her, or by persons associated with her of fee to secure her pay-for-visa employment with Medical Data Services Pty Ltd. The Tribunal therefore concludes on the balance of probabilities that the Applicant’s declaration given on 25 May 2017 that no person included in the 186 visa application has engaged in conduct in contravention of s.245AS(1) of the Act was false and misleading.

   Applicant’s Submissions and Evidence to the Tribunal regarding alleged breach of s.101

9. As is indicated above, substantive submissions and supporting evidence from the Applicant were provided to the Tribunal prior to the 9 November hearing, on 2 November 2021. By those submissions and accompanying evidence, the Applicant continues to maintain that she had been employed by the Guangzhou Determination Network Technology Company, and by the Guangzhou Yi Mei Culture Communication Company, and that she did not provide incorrect information in support of her Subclass 457 and Subclass 186 visa applications, in breach of s.101, as now contended in the NOICC.

10. In broad compass, the Applicant submits that the Delegate had failed to take sufficient account of the evidence previously provided in her NOICC response to show the operation of the Guangzhou Determination Network Technology Company even before the date of its official registration on 1 January 2015; and that the lack of evidence from the Guangzhou Yi Mei Culture Communications Company verifying the Applicant’s claimed employment with that entity does not now serve to disprove her claimed employment by that company.  The Applicant also submits that she had no reason to provide incorrect information, because her past employment history was not information that was essential to her prospects for obtaining the visas, given that the Applicant’s academic qualifications when applying for a Subclass 457 visa, and her past-employment whilst in Australia between 26 February 2015 and 25 May 2017 by Medical Data Service Pty Ltd when applying for the Subclass 186 visa were sufficient - in and of themselves - to allow the Applicant to be issued with a requested visas.   

11. As to the Applicant’s contention (as expressed in the Applicant’s submission to the Tribunal dated 2 November 2021, at pages 7 – 10) that she had no need/motive to provide incorrect information as part of either visa application - as prior employment is a matter ascribed very little weight during the visa assessment process - the Tribunal assesses that submission to be misplaced.  When visa applications are lodged by means of the Department of Home Affairs on-line portal, the application form invites the provision of specific information (including employment history), and requires the making of declarations regarding the accuracy and truthfulness of any information that is so provided.  If circumstances arise subsequently wherein that information cannot be confirmed by the Department, a prima facie question does arise as to whether the information has been provided in breach of s.101. In those circumstances questions as to either motive, or the lack of any specific need to provide the impugned information, have no bearing on the question as to whether the ground for cancellation is made out.

12. On the basis that the Application for Review is conducted as a de novo hearing it becomes necessary for the Tribunal to consider all of the evidence submitted by the Applicant, either on 28 July 2021 and 4 August 2021 in response to the NOICC, or now before the Tribunal in demonstration of the assertion that the Applicant is not in breach of s.101 of the Act. The Tribunal will now consider that evidence under separate sub-headings, referable to each of the impugned employers:

    Information provided by the Applicant to show her employment with the Guangzhou Determination Network Technology Company:

13. Under cover of her NOICC response to the Department, the Applicant has provided a statement dated 22 July 2021 from a Tianyi Liu; together with a statement dated 22 July 2021 from a Mr Haode Liao.  Tianyi Lie states that he/she worked for the Guangzhou Determination Network Technology Company from May until September 2013 as a telemarketing advertising Sales Representative, and had met the Applicant at work at that company during this period, on the basis that the Applicant supervised sales representatives, and would have a weekly meeting with sales representatives ‘every Monday’.

14. Meanwhile, Mr Haode Liao claims to have introduced the Applicant to his friend Mr Ziyu Che in January 2012 over dinner, and that during this dinner meeting, Ziyu Che had offered the Applicant a job.  Haode Liao also states that Ziyu Che later told him that the Applicant “was quite helpful and great at her administration job in the company”.  Haode Liao also stated that, in 2017, Ziyu Che changed his contact details, due to his having debt and matrimonial issues.

15. It is a feature of this case that there are no extrinsic documents in the form of (for example), pay records, income tax records, or employee identification cards that might be used as corroborative evidence in support of the claimed past employment by the Applicant with the two Chinese companies that have been nominated by her.  Instead, the Tribunal is now asked to rely on statement evidence, such as that detailed in the two immediately preceding paragraphs. 

16. Ultimately, the Tribunal is not prepared to attach any weight to the statements ostensibly given by either of Tianyi Liu, or Mr Haode Liao.  Neither of these persons were called to give direct oral evidence before the Tribunal, such that the provenance of their information was unable to be further tested, by means of independent questioning from the Tribunal.  In light of the other information now before the Tribunal that casts real doubt on the truthfulness of the Applicant’s supporting visa information; and in the complete absence of any other extrinsic documentary evidence (such as that described above) tending to confirm the fact of employment, the Tribunal proceeds on the basis that neither of these statements can be accepted, particularly in the absence of any opportunity to properly test the credit of the claimed authors of those statements.  The Tribunal is not even in a position to know with confidence that persons by thes names Tianyi Lie or Haode Liao exist in real life, as no evidence establishing proof of their identity has been submitted into evidence before the Tribunal. Accordingly, no weight is attached by the Tribunal to this statement evidence.

17. In her submissions to the Tribunal made on 2 November 2021, the Applicant has now also provided a further statement made by Mr Ziyu Che (dated 22 October 2021), as well as an mp4 video of a male person in China ‘speaking to camera’ and claiming to be Mr Ziyu Che, from the Guangzhou Determination Network Technology Company.  An accompanying translation of the video specifies that Ziyu Che was the major shareholder and person in charge of Guangzhou Determination Network Technology Company since 2011, although Ziyu Che also therein concedes that the company was not officially registered until 2015. 

18. Ziyu Che says that the Applicant was introduced to him over dinner by his friend Mr Haode Liao in January of 2012, and the Applicant was thereafter recruited by him and was employed by the Guangzhou Determination Network Company from April 2012 until September 2014.  When the Applicant approached him in September 2014 and announced her intention to move abroad, Mr Ziyu Che says that he provided her with a work reference letter, dated 18 September 2014, signed by him and affixed with the company seal of the Guangzhou Determination Network Technology Company Ltd. 

19. Similar to Tianyi Liu, and Mr Haode Liao, Mr Ziyu Che was also not made available for cross examination by the Tribunal, although in his case the Tribunal has at least been afforded the benefit of a Chinese government photographic identity card that assists to establish the identity of the person revealed in the video evidence.  However, the Tribunal is still not prepared to attach any weight to the evidence given by Ziyu Che, as the provenance of the evidence given by him is also unable to be tested by the Tribunal by means of cross examination.  It is a matter of quite obvious and still unresolved concern that the Tribunal is being asked to accept the accuracy of an employment reference given by Mr Ziyu Che and dated 18 September 2014, to which has been affixed the company seal of a company that Mr Ziyu Che himself admits was not registered until subsequently, on 1 January 2015.  The obvious unresolved implication of same is that Mr Ziyu Che is prepared to embellish documentary evidence by means of affixing a company seal before that was legally permissible, thus attaching to the document the vestiges of formality, such that it might be afforded greater credibility, and weight. The Tribunal is not prepared to accept Mr Ziyu Che’s untested evidence, particularly in the circumstances where there is no other contemporaneous documentary evidence tending in aid of showing the fact of the Applicant’s employment by the Guangzhou Determination Network Technology Company between April 2012 and September 2014.  In light of the other information now before the Tribunal that casts doubt upon the accuracy of the Applicant’s visa information, the Tribunal proceeds on the basis that testimonial evidence of this kind is not able to be accepted, in the absence of any proper opportunity to test the creditworthiness of the statement maker.  Accordingly, the Tribunal attaches no weight to the statement evidence of Mr Ziyu Che.

20. In addition to the statement evidence just described, the Applicant also gave direct oral testimony when she was before the Tribunal regarding her claimed employment by the Guangzhou Determination Network Technology Company.  The Applicant stated that the company sold warehouse inventory software, and that she had been responsible for supervising the day-to-day efforts of the sales workforce.  Yet, when asked by the Tribunal to specify the product name of the software being marketed to customers, features of the product and the names of key customers to whom the software had been sold, the Applicant only gave what the Tribunal assesses as vague and highly circumspect answers, not in keeping with the level of detail and familiarity with product and customers that could be expected in the case of a person now claiming to have occupied the employment role now claimed by the Applicant.  In light of that, the Tribunal did not find the Applicant to be a persuasive witness, in terms of her evidence regarding her prior employment.     

21. The Applicant has also submitted information and evidence to show that the Guangzhou Determination Network Technology Company (specifically Mr Che) changed contact details several times, after 2016.  Although this may explain the basis for the obvious difficulties experienced by Foreign Affairs Officers attached to the China post during their efforts to contact that company, it is not evidence that is relevant to an effort to allay the concerns that have been raised, regarding the need to adduce evidence confirming the Applicant’s past employment.

    Information provided by the Applicant to show her employment with the Guangzhou Yi Mei Culture Communication Company:

22. Under cover of her NOICC response, the Applicant has provided a statement dated 21 July 2021 from a Ms Minxin Ye, who says that she was employed by the Guangzhou Yi Mei Culture Communication Company as a part-time accountant between 2010 and 2013.  During this period Ms Minxin Lei states that she met the Applicant, who also working at that company, in December 2011. 

23. The Tribunal is not prepared to attach any weight to the evidence from Ms Minxin Ye, for similar reasons to those expressed by the Tribunal in relation to the other statements produced by the Applicant in support of her claims of employment.  In the case of this particular witness, the Tribunal also does not even have the benefit of evidence confirming proof of identity for Ms Minxin Ye.  

24. The Applicant has also submitted a statutory declaration from herself dated 28 July 2021 (later confirmed in a further statutory declaration dated 1 November 2021), setting out all her extensive - yet ultimately unsuccessful - efforts to obtain evidence from the Guangzhou Yi Mei Culture Communication Company in further proof of her past employment by that company. Included among these materials is a text exchange with a claimed former colleague from the Guangzhou Yi Mei Culture Communication Company, an Annie Jing Shue, that includes some photographs which the Applicant now claims reveal her actual desk and workspace at the Guangzhou Yi Mei Culture Communication Company in 2010; and an official statement from the Guangshou Yi Mei Culture Communication company confirming that the Applicant had recently contacted them seeking confirmation of her employment, which they declined to confirm.   All of this evidence is assessed by the Tribunal as equivocal, and as not being in furtherance of the need for the Applicant to produce sufficiently reliable evidence in proof of her claim of employment at the Guangzhou Yi Mei Culture Communication Company between 7 December 2011 and 31 March 2012. 

25. In the submissions prepared by Ascent Lawyers (those now dated 2 November 2021) it is contended - among other things - that the lack of evidence of past employment should not be construed as evidence demonstrating that the Applicant did not work at the nominated companies; and that it is unreasonable and unfair that the Applicant now be required to bear the adverse consequence of not being able to adduce evidence in 2021 relating to proof of employment as long ago as 2011-2012 and 2012-2014.  The Tribunal concludes that contention to be one that is misdirected.  By the making of the (now impugned) visa applications, the Applicant authorised the Australian government to make enquiries to determine (to its own satisfaction) the eligibility of the Applicant to stay in Australia. So too, the making by the Applicant of the visa declarations that were necessary for lodgement of the visa applications (particularly in circumstances where these were lodged with the assistance of an advising migration agent), ought to have been sufficient to put the Applicant on notice of the need for her to retain adequate records in proof of her claimed past employment, in the event that the need to do that were to arise in the future.  

26. For all of the foregoing reasons, the Tribunal concludes that there was non-compliance with s.101(b) by the Applicant in the manner described in the s.107 notice, thus enlivening the potentiality of visa cancellation under s.109.

    Should the visa be cancelled?

27. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the Applicant under s.107, it is necessary to consider whether the visa should be cancelled, pursuant to s.109(1). Cancellation in this context is an entirely discretionary consideration, as there are no mandatory cancellation circumstances specified under s.109(2).

28. In exercising this discretionary power, the Tribunal must consider the Applicant’s response (if any) to the s.107 notice, and must have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, these are:

    ·     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.

29. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual (PAM3) ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa; Australia’s obligations under international obligations; and ‘any other relevant matters’.

    The Correct Information

1. The Applicant declared employment with the Guangzhou Determination Network Technology Company from April 2012 until September 2014 and the Guangzhou Yi Mei Culture Communication Company from 7 December 2011 until 31 March 2012.  The Applicant has not provided sufficient evidence that is dispositive of the non-compliance particularised in the NOICC, such that the Tribunal concludes that the correct information is that the Applicant was not employed by either of these companies.  The Tribunal attaches significant weight to this factor in favour of affirming the visa cancellation decision.

   Whether the decision to grant a visa was based, wholly or partly, on incorrect information

2. The Applicant’s past employment history was taken into account by the Delegate, when determining whether to grant her a Subclass 457 visa, and subsequently, a Subclass 186 visa.  Had the lack of acceptable evidence confirming the fact of that prior employment been known by the Delegate at the time of originally conferring the visa(s), the Delegate may well have made a contrary decision.  The Tribunal gives this consideration further weight in support of affirming the cancellation decision.

   The circumstances in which the non-compliance occurred

3. The circumstances of the non-compliance with s.101 are as have been described in these reasons. In light of all of the information detailed in these reasons, the Tribunal concludes that the Applicant provided incorrect information in support of her visa application(s) in order to achieve a favourable migration outcome. There is no evidence to suggest that the incorrect information was provided in consequence of circumstances that were beyond the Applicant’s control. The Tribunal gives this consideration significant weight in favour of affirming the cancellation decision.

   The present circumstances of the visa applicant

4. The Applicant and her husband are residing in Parkinson in Brisbane, in a home that they purchased (subject to a mortgage) in June of 2020.  The Applicant has given birth to a male child, ‘E’, who was born on 24 February 2019. 

5. E has Australian citizenship, by reason of his parent’s Australian permanent residency status as at the date of E’s birth.  The Applicant is now engaged in full-time home duties, in care of E.  Meanwhile, the Applicant’s husband Mr Qilun Liu is engaged in full-time employment as a division manager/metal fabricator for Stonegate International Pty Ltd (trading as Stonegate Industries), constructing vehicle trailers.  The Applicant and her husband own no property in China, and the Applicants parents-in-law sold their only property in China in order to fund the Applicant and her husband moving to Australia.  The Applicant’s father-in-law, who is in Australia on a short stay category of visa, also currently resides with the Applicant and her husband and son. 

6. There is evidence before the tribunal that the Applicant is undergoing psychological treatment for symptoms of depression and anxiety.

7. The Tribunal attaches some weight to these matters, in favour of setting aside the visa cancellation decision.

   The subsequent behaviour of the applicant regarding her obligations under Subdivision C of Division 3 of Part 2 of the Act.

8. There is no other information before the Tribunal - other than that already described in these reasons - now suggesting any other non-compliance by the Applicant with her obligations under Division 3 of Part 2 of the Migration Act.

9. The Applicant has continued to maintain there is no non-compliance with s.101 of the Act and maintains that assertion even in light of the information put to her regarding the information disclosed to the Tribunal under cover of a certificate issued under s.375A of the Act. In response to particulars afforded to her under s.359AA the Applicant has then sought to submit other evidence, that is now assessed by the Tribunal on the balance of probabilities as only tending towards confirming the Applicant having engaged in activities that are in breach of s.245AS of the Act. The Tribunal now attaches considerable weight to this factor in support of affirming the cancellation decision.

   Any other instances of non-compliance by the visa holder known to the Minister

10. There is no information before the Tribunal regarding other instances of non-compliance by the Applicant known to the Minister.  The Tribunal attaches a small measure of weight to this factor, in favour of setting aside the visa cancellation decision.

    The time that has elapsed since the non-compliance

11. The non-compliance under examination transpired on 21 September 2014 and 25 May 2017.  This is respectively 7 years and 3 months, and 4 years and 7 months ago, which is a lengthy period of time.  The Applicant and her husband appear to have been hard working and contributing members of the Australian community during that intervening period.  The Tribunal now attaches some weight to this factor, in favour of setting aside the visa cancellation decision.

    Any breaches of the law since the non-compliance and the seriousness of those breaches

12. There is no information before the Tribunal regarding other breaches of the law by the Applicant that are already known to the Minister.  The Tribunal attaches a small measure of weight to this factor, in favour of setting aside the visa cancellation decision.

    Any contribution made by the holder to the community.

13. There is evidence before the Tribunal that the Applicant’s husband being gainfully employed and that the Applicant and her husband make donations to the RSPCA, when redeeming CommBank ‘reward points’. The Tribunal attaches a very small measure of weight to this factor, in further favour of setting aside the visa cancellation decision.

    Whether there would be consequential cancellations under s.140.

14. The visa held by the Applicant’s husband Mr Qilun Liu would also remain cancelled under s.140 in consequence of the Tribunal affirming the visa cancellation decision. The Tribunal attaches a further small measure of weight to this factor, in favour of setting aside the visa cancellation decision.

    If there are children whose interests would be affected by cancellation, or consequential cancellation,

15. The Tribunal is required to consider the best interests of any child arising pursuant to Australia’s international obligations under the Convention on the Rights of the Child (‘CRC’) and the International Covenant on Civil and Political Rights (‘ICCPR).  In this regard, the Applicant has an infant son ‘E’, born on 24 February 2019, now making E approximately 34 months of age.  E has Australian citizenship, by reason of his parent’s status as Australian permanent residents as at the date of his birth.

16. The Applicant submits that in the event that she and her husband were to be required to return to China, E would also be required to travel China with them, thus losing the benefits and entitlements of his Australian citizenship.  Due to his foreign citizenship, E would be precluded from entering mainland China in the foreseeable future, because of Covid-19, and E’s foreign citizenship will also mean that E will be unable to attend a public school in China, yet the financial circumstances of the Applicant and her husband are such that they could not then afford to send E to an international school instead, such that there is a risk that E’s opportunities for education will be compromised in the event that the Applicant’s visa is subject to cancellation. 

17. The Applicant also raises concerns that E is an anxious and introverted child, and the upheaval and disruption of a move to China would likely be too much for him.  The Tribunal notes that E is not yet of school age, and is being raised in a Mandarin-speaking household by his biological parents. There is no specific expert opinion evidence referable to E’s anxiety or introvert tendencies that is now before the Tribunal.  According to country information reports prepared by DFAT and accessible to the Tribunal, Guangzhou natives working or studying abroad are allowed to re-register at their previous permanent hukou (household registration) residence upon their return to China, and overseas-born children of Chinese parents do become eligible for public education, once their parents have re-registered in accordance with Chinese household registration requirements.

18. The Tribunal does now attach some weight to these considerations in favour of E as matters that are in further support of a setting aside of the visa cancellation decision. Ultimately however, the Tribunal concludes that the concerns expressed by the Applicant regarding E’s future access to educational opportunities in China are overstated and that E will have equivalent access to educational opportunities in China as do to other Chinese-born children; and that the best interests of E are to be served by his remaining in the care and custody of his biological parents, even I circumstances in which they are required by law to depart from Australia. There are no specific convention obligations under either the CRC or the ICCPR that preclude the possibility for cancellation of the Applicant’s visa, under s.109.

    Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.

19. There is no evidence before the Tribunal that the removal of the Applicant and her husband from Australia in consequence of the visa cancellation would be in breach of Australia’s non-refoulement or family unity obligations.

    Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.

20. In the event that the Tribunal affirms the visa cancellation decision, each of the Applicant and her husband would become illegal non-citizens and thus become liable to be detained under s.189 and to removal from Australia under s.198, in the event that they do not voluntarily depart from Australia before that.  The Applicant and her husband would each be impacted by s.48 which would have the result that they will have only limited further options for applying for other visas whilst still onshore in Australia; and they will be affected by Public Interest Criteria (‘PIC’) 4013, which may prevent the Applicant from being granted a temporary visa ,other than a Bridging E visa to allow the Applicant to remain onshore temporarily whilst making acceptable departure arrangements.

21. The Tribunal attaches a small measure of weight to these considerations, in further favour of setting aside the visa cancellation decision.

    Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).

22. In her NOICC response, the Applicant submits that the future financial prospects for herself and her husband and child in China are now very uncertain, and are unsettling.  They own no property in China; have no alternative employment arranged in China; only limited family support, and uncertain prospects for now finding suitable accommodation.  The Applicant and her husband have only limited savings and poor prospects for obtaining alternative employment in China that is as well remunerated as that to which they have become accustomed over the past more than six years whilst living in Australia. 

23. The Applicant also raises the concern that her family is unable to afford the cost of return airfares to China, or to afford those further costs associated with hotel quarantine upon their first arrival in mainland China, and now holds concerns for the health and welfare of her father-in-law (who presently resides with the Applicant and her husband in Australia); and for her own depressive condition becoming further exacerbated, in the event that she is now required to return to China after having invested everything over the past more than six years in relocating to Australia. The Tribunal does attach some further weight to these considerations in favour of setting aside the visa cancellation decision.

24. Ultimately, the Tribunal concludes that the discretionary factors that support affirming the visa cancellation decision still do outweigh those other matters and considerations that support of setting aside the visa cancellation decision.

    Decision

25. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 186 -  Employer Nomination Scheme visa.

26. The Tribunal has no jurisdiction with respect to the other applicant, Mr Qilun Liu.

    Andrew McLean Williams
    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.