LIN (Migration)

[2019] AATA 5061

LIN (Migration) [2019] AATA 5061 (18 October 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Mr Hai Lin

Mrs Yaping Liu

Miss Zecheng Lin
Miss Yuanshan Lin
Miss Claire Lin

CASE NUMBER:  1802971

DIBP REFERENCE(S):  BCC2016/3579496 BCC2016/3617527

BCC2016/3617654 BCC2016/3617691 BCC2018/1130364 BCC2018/509375

MEMBER:  Susan Trotter

DATE AND TIME OF

ORAL DECISION AND REASONS:          18 October 2019 at 1:46 pm (QLD time)

DATE OF WRITTEN RECORD:                8 November 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for Business Skills (Residence) (Class DF) visas for reconsideration, with the direction that the first-named applicant meets the following criteria for a Subclass 890 (Business Owner) visa:

·Public Interest Criterion 4020(1) for the purposes of cl.890.222(a) of Schedule 2 to the Regulations.

CATCHWORDS

MIGRATION – Business Skills (Residence) (Class DF) visa – Subclass 890 (Business Owner) – false or misleading information in a material particular – discrepancies in wage summaries and PAYG statements – element of fraud or deception – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 890.222; Schedule 4, PIC 4020

CASES
Trivedi v MIBP [2014] FCAFC 42

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 30 January 2018 to refuse to grant the visa applicants Business Skills (Residence) (Class DF) Subclass 890 visas under s.65 of the Migration Act 1958 (the Act).

2. At the hearing on 18 October 2019, the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The primary visa applicant, referred to as the applicant throughout the remainder of these Reasons, is a 47-year-old citizen of China and he applied for the visa on 20 October 2016. The second-named visa applicant is a 43-year-old citizen of China and is the partner of the applicant. The third, fourth and fifth named applicants are the children of the applicant and the second-named applicant.

4. The criteria for the grant of this visa are set out in Part 890 of Schedule 2 to the Migration Regulations, which will be referred to as the Regulations throughout the remainder of these Reasons. The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

5. The delegate refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl.890.222 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant met Public Interest Criterion 4020 (PIC 4020) as required. In particular, the delegate found that documents provided by the applicant in support of the visa application, including a table summarising the wages of eligible employees and payslips for those employees, showed gross payment of wages for the nine month period 1 October 2015 to 30 June 2016 as higher than the gross payments in those employees’ respective PAYG statements declared to the Australian Taxation Office, suggesting that the wages relied upon for the visa application were either overinflated by the applicant to meet the requirements of cl.890.214 or gross payments were under declared to the Australian Taxation Office.

6. The delegate consequently found that the applicant had provided false and misleading information in support of the visa application and, in particular, in relation to the requirement in cl.890.214 of Schedule 2 to the Regulations such that PIC 4020(1) and consequently cl.890.222 of Schedule 2 to the Regulations were not met.

7. As regards the secondary applicants, the delegate was therefore not satisfied that they each were a member of the family unit of the person who was the holder of a Subclass 890 visa as required to meet the secondary criteria found in cl.890.321 of Schedule 2 to the Regulations.

8. The applicant appeared before the Tribunal on 18 October 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

9. The applicants were represented in relation to the review.

10. The issue in this review is whether the applicant meets PIC 4020 as required by cl.890.222 of Schedule 2 to the Regulations for the grant of the visa. Public interest criterion 4020(1) provides as follows:

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(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.

1. Pursuant to PIC 4020(4), the requirement in PIC 4020(1) can be waived if there are certain compelling or compassionate reasons justifying the grant of the visa.

2. The applicant’s evidence at hearing to the Tribunal included that the documents provided to the Department in support of the visa application were provided from information he had provided to his migration agent and accountant. He told the Tribunal that he provided all of the documentation such as payslips, receipts, invoices, and anything to do with the finances or accounting matters to his accountant. He told the Tribunal that he subcontracted everything to his accounting company from the start of his business for various reasons, including that he did not have a good knowledge about Australian accounting and because of his lack of fluidity in the English language. He told the Tribunal that for anything of a professional nature, he engaged professional people to undertake matters for him and he relied upon them in that regard.

3. The applicant said his personal involvement in relation to payment of the employees was filling out their payslip or envelope that he gave to them when he paid them and he obtained those from the post office. He then provided those documents accordingly to his accountant, together with all other financial documents for the accountant to provide advice to him, including in relation to complying with whatever obligations he had regarding financial matters to the Australian Tax Office and otherwise in Australia.

4. His accountant at the time, Yi Yan Accounting Firm, was his accountant from approximately 2015 to 2016, however he experienced a number of issues with this accounting firm, including because they frequently changed the accountant with whom he was dealing, and this ultimately led him to, in 2017, engage a new accountant and that accountancy firm was Fidel Accounting Services (Fidel).

5. The applicant said that he first found out that there was an issue with the information provided to the Department of Immigration in relation to the visa application when his migration agent told him of the letter received from the Department. His first reaction when he found out was that he was quite shocked. He had known there were issues with his previous accounting firm because he himself had made the decision prior to that time to engage another accounting firm. However, he was still shocked in any event once he was advised of the concerns raised by the Department. He arranged for his new accountant to do a second re-check of all the information and accounts. When they did this and looked at all the books and all the information they discovered that some individual staff had had some errors made in relation to their superannuation and wages. He immediately reviewed all the staff salaries and rectified the correct superannuation entitlements and any matters where there was a shortfall. Going through all the books with him doing a lot of the work as well as the new accounting firm, took some three weeks. There were also some errors picked up in relation to stock and they were also rectified with the Australian Taxation Office as required.

6. He had to pay his new accountants additional monies to undertake this rectification of financial information for the period of time identified over which his previous accounting firm had made errors. Additionally, he spent quite a substantial amount of time himself personally re-checking and arranging things, noting that this was a holiday period of the year in

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December 2017/ January 2018, for some of which time his new accountants Fidel were on vacation.

1. The applicant also gave some evidence to the Tribunal about the continuing viability of this business notwithstanding that they have had some lean times and that they have had difficult times in that the expected customer population has at times been less than thought but he has been continuing to put in place strategies to continue to increase and maintain customer levels.

2. He told the Tribunal that he now has three employees, one full time and two other part-employees time and, additionally, he works at least four days per week in the business.

3. The applicant adamantly told the Tribunal that he had never at any time intended to deceive the Department and did not instruct any of his advisers to do so on his behalf. He told the Tribunal that he was taught from the time he was a young child to never lie and he was very shocked when he found that the figures were wrong and he can only link it with the frequent changes of accountant at his previous accounting firm.

4. The applicant also referred to statements provided to the Department which outlined difficulties he was going through at the time in question with his own health, which have now rectified in part but which additionally necessitated his reliance on the professional advisors that he instructed.

5. The Tribunal also canvassed with the applicant at hearing a letter that Fidel provided to the Department on the applicant’s behalf on 8 January 2018 in relation to the discrepancies notified by the Department. In particular, the Tribunal canvassed with the applicant a paragraph on page 2 of that letter suggesting that the applicant had prepared the summary of wages information himself, incorrectly using the net wages instead of the gross wage amount.

6. The applicant clarified that the reference to that in the accountant’s letter was a reference to the time when he and Fidel were trying to identify and rectify the errors that the Department had brought to his attention, rather than referring to a time itself when his previous accountants had actually been responsible for putting together the summary of figures. The Tribunal accepts that the reference in that 8 January 2018 letter is as explained by the applicant.

7. Turning to whether the applicant has given or caused to be given information that is false or misleading in a material particular in relation to the application for the visa, the Tribunal notes that the term “information that is false or misleading in a material particular” is defined in PIC 4020(5) and ‘bogus document’ is defined in s.5(1) of the Act.

8. The Tribunal notes that the requirement in PIC 4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the Minister becomes 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.

9. 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.

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While PIC 4020 refers to information that is false in the sense of purposely untrue it is not necessary for the Minister or the Tribunal on review to conclude that the applicant was aware that the information was purposely untrue in order for PIC 4020 to be engaged. However, importantly an element of fraud or deception by some person is necessary to attract the operation of the provision as is recognised in the case of Trivedi v the Minister of Immigration and Border Protection [2014] where Judge Emmett stated:

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

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

1. There is no information before the Tribunal to indicate that the applicant has given a bogus document as defined in s.5(1) of the Act in relation to the visa application or a visa that the applicant held in the 12 months before the application was made.

2. In relation to whether the applicant has provided information that is false or misleading in a material particular as defined in PIC 4020(5), the applicant has maintained that none of the information relating to the business’s employees that was provided to the Department in support of the visa application was false or misleading in the sense that he was shocked when it was brought to his attention by his migration agent that the Department had concerns about discrepancies in the wage summaries and the PAYG statements as was raised in the Department’s letter of 22 December 2017 (folios 96B to 97B of Department file number BCC2018/1130364).

3. The applicant told the Tribunal that immediately upon becoming aware of this issue he arranged for his newly appointed accountant, who had been appointed in 2017, to recheck all of the documents and that process took over three weeks and involved both him and his new accountants and included rectifying incorrect superannuation payments that had been made to his employees. He also arranged for the lodging of amended PAYG summaries for each of his employees, with his employees where relevant also then doing amended taxation returns.

4. The applicant’s evidence was consistent with the documents on the Department’s file, including a letter from the new accountants, Fidel, to the Department dated 6 January 2018 (folios 175 and 176 of Department file number BCC2018/509375), and the amended PAYG summaries, all dated relevantly 28 December 2017 (folios 148, 149 and 151 and 152 of Department file number BCC2018/509375).

5. The Tribunal has also had regard to an explanation letter that the applicant provided to the Department dated 9 January 2018 (folios 206 and 207 of Department file BCC2018/509375), and written submissions provided on behalf of the applicant emphasising, consistent with the applicant’s evidence, that the applicant never intended to mislead or deceive the Department nor did he need to in order to qualify for the visa.

6. Further, the Tribunal had regard to the applicant’s evidence and also his written submissions
   and the letter of explanation provided to the Department, as to the applicant’s need to rely upon his accountant’s advice, including because of his personal health problems at the relevant time and his unfamiliarity with the accounting system in Australia and his unfamiliarity or lack of intimate familiarity with the English language.

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1. The Tribunal also accepts that the applicant was not aware of the mistakes his previous accountant made and that he relied upon the advice of his then accountants as professionals to provide reliable advice in relation to his obligations for the purposes of the Australian Taxation Office and other purposes in Australia.

2. The Tribunal acknowledges the concerns raised by the delegate about the discrepancies in the information provided in support of the visa application. However, having had regard to all of the information before it, the Tribunal is not satisfied that the applicant or any other person sought to mislead or deceive. As regards the applicant’s former accountants, there is no evidence before the Tribunal that there was deliberate fraud or deception on their part, as opposed to error. The Tribunal accepts the applicant’s consistently given and plausible explanations for how the discrepancies in information came about and also acknowledges the prompt steps taken by the applicant to correct the discrepancies and errors, including by arranging for amended PAYG statements and meeting all additional costs associated with rectifying the mistakes, including as regards his employees and the Australian Taxation Office, in addition to extra professional fees for his new accountants.

3. As already indicated, an element of deception is necessary to attract the operation of the PIC 4020 provision, as referred to in Trivedi. The Tribunal does not consider any such element of fraud or deception exists in the circumstances before it.

4. Given these matters, the Tribunal finds that there is no evidence that the applicant has given or caused to be given to the Minister, and officer, the 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 12 months before the application was made.

5. Accordingly, the applicant meets PIC 4020(1). Therefore, the Tribunal finds on review of all of the evidence before it that the applicant meets PIC 4020(1) for the purposes of cl.890.222 of Schedule 2 to the Regulations.

6. As regards the secondary applicants, they each applied on the basis of being a member of the family unit of the applicant. Accordingly, the secondary applicants’ application will be determined by reference to the outcome of the applicant’s application on remittal to the Department for reconsideration.

7. The Tribunal observes additionally that, as discussed with the applicant at hearing, consistent with paragraph 8.2 of the Tribunal’s President’s direction on Conducing Migration and Refugee Reviews of 30 June 2015 that, as a general rule, and as the Tribunal has done in relation to this application, where the delegate has made an adverse decision on a particular criteria or issue, the Tribunal should restrict its reviews to those matters.

8. Accordingly, given the Tribunal’s findings and decision the appropriate course is to remit the application to the Minister to consider the remaining criteria for a Subclass 890 visa.

   DECISION

9. The Tribunal remits the application for Business Skills (Residence) (Class DF) visas for reconsideration, with the direction that the first-named applicant meets the following criteria for Subclass 890 (Business Owner) visa:

   · Public Interest Criterion 4020(1) for the purposes of cl.890.222 of Schedule 2 to the Migration Regulations 1994.

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Susan Trotter Member

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