Liu (Migration)

[2023] AATA 2029

Liu (Migration) [2023] AATA 2029 (26 June 2023)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jianxuan Liu
Ms Meiling Xu
Miss Yunyi Liu

REPRESENTATIVE:  Ms Yanqiu Dong (MARN: 0742754)

CASE NUMBER:  2109044

HOME AFFAIRS REFERENCE(S):          BCC2021/407760

MEMBER:Peter Emmerton

DATE OF DECISION:  26 June 2023

DATE CORRIGENDUM

SIGNED:12 July 2023

PLACE OF DECISION:  Adelaide

AMENDMENT:  The following corrections are made to the decision:

The words “When asked about the applicant Li Wei Liu’s employment information, Mr Wu advised that he could not remember” at paragraph [15] of the Tribunal’s decision are to be replaced with:

• “When asked about the applicant Jianxuan Liu’s employment information, Mr Wu advised that he could not remember.”

The words “The delegate observed Mr Chen demonstrated limited knowledge regarding the applicant Weiwei Liu’s employment details” at paragraph [20] of the Tribunal’s decision are to be replaced with:

·“The delegate observed Mr Chen demonstrated limited knowledge regarding the applicant Jianxuan Liu’s employment details.”

Statement made on 12 July 2023 at 2:41pm

Peter Emmerton
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jianxuan Liu
Ms Meiling Xu
Miss Yunyi Liu

REPRESENTATIVE:  Ms Yanqiu Dong (MARN: 0742754)

CASE NUMBER:  2109044

HOME AFFAIRS REFERENCE(S):          BCC2021/407760

MEMBER:Peter Emmerton

DATE:26 June 2023

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits all the applications for Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 186 - Employer Nomination Scheme visas:

·Public Interest Criterion 4020 for the purposes of cl 186.213(1) of Schedule 2 to the Regulations

Statement made on 26 June 2023 at 12:22pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – false or misleading information or bogus document provided in relation to previous visa application – work experience and reference – manager contacted by department had no access to work records – lapse of time, casual workers in rural area paid in cash, limited records at the time and remaining, and workplace now ceased operations – manager’s responsibilities and knowledge of operations – Australian employer’s recruitment process – skills tested before employment consistent with claimed employment, training and experience – additional, comprehensive information provided to tribunal – no sufficient evidence to conclude that information false or misleading or document bogus, and substantial cumulative evidence to support genuineness – members of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 57, 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.213(1), Schedule 4, criterion 4020(1), (5)

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 Home Affairs on 9 July 2021 to refuse to grant the applicants Employer Nomination (Permanent) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 12 March 2021. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl 186.213(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because they believed that the visa applicant had provided or caused to be provided, a bogus document or false or misleading information in relation to this visa application. Therefore PIC 4020 is not satisfied and subsequently the requirements of 186.213(1) can-not be satisfied.

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

4. The Tribunal notes there is a Non-disclosure Certificate, (NDC) issued under s.375A. The Tribunal does not consider it relevant in its deliberations in this case and has not considered the information contained within the certificate when considering this case nor disclosed the information covered by the Certificate.

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 186.213(1) 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.

8. The Tribunal has read and carefully considered the following evidence presented to the Department.

   ·Request for Health Examinations - LIU, YUNYI

   ·Request for Health Examinations - LIU, JIANXUAN

   ·Covering letter(EMAIL) – POINT OF CONTACT YAN RONG YE - (migration agent)

   ·Covering letter(EMAIL) – POINT OF CONTACT YAN RONG YE - (migration agent)

   ·Request for Health Examinations - XU, MEILING

   ·IMMI Bridging Visa Grant Notification XU, MEILING

   ·IMMI Bridging Visa Grant Notification

   ·Application

   ·LIU, Jianxuan, 30SEP1994-Australian Federal Police Clearance

   ·LIU, Jianxuan, 30SEP1994-Resume

   ·XU, Meiling, 14NOV1996-Australian Federal Police Clearance

   ·LIU, Yunyi, 09JAN2017-Birth Certificate

   ·LIU, Jianxuan, 30SEP1994-Overseas Police Clearance

   ·XU, Meiling, 14NOV1996-Overseas Police Clearance

   ·LIU, Jianxuan, 30SEP1994-International English Language Testing System (IELTS)

   ·XU, Meiling, 14NOV1996-Marriage Certificate

   ·XU, Meiling, 14NOV1996-Passport

   ·LIU, Yunyi, 09JAN2017-Passport

   ·LIU, Jianxuan, 30SEP1994-Passport

   ·LIU, Jianxuan, 30SEP1994-Birth Certificate

   ·LIU, Jianxuan, 30SEP1994-Form 80

   ·LIU, Jianxuan, 30SEP1994-National ID

   ·LIU, Jianxuan, 30SEP1994-Photo

   ·LIU, Jianxuan, 30SEP1994-Employment Contract LIU Jianxuan

   ·LIU, Jianxuan, 30SEP1994-Employment History - NoA FY2018-20

   ·LIU, Jianxuan, 30SEP1994-Employment History - PAYG FY2018-20

   ·LIU, Jianxuan, 30SEP1994-Skills Assessment-ENS

   ·LIU, Jianxuan, 30SEP1994-Employment History - Extracted Payslips FY2021

   ·LIU, Jianxuan, 30SEP1994-Position Description Skilled Meat Worker

   ·LIU, Jianxuan, 30SEP1994-Work Reference-ENS

   ·XU, Meiling, 14NOV1996-Birth Certificate

   ·XU, Meiling, 14NOV1996-Form 80

   ·XU, Meiling, 14NOV1996-National ID

   ·XU, Meiling, 14NOV1996-Photo

   ·XU, Meiling, 14NOV1996-Request for English Waiver Spouse

   ·LIU, Yunyi, 09JAN2017-Photo_Child

   ·Request for BVA of the secodary applicant Yunyi LIU

   ·Email reply to RMA re RE Request for BVA for the secondary applicant Yunyi LIU

   ·IMMI Bridging Visa Grant Notification - BCC2021 407760 - 185644938 - LIU, YUNYI

   ·IMMI s57 Natural Justice - LIU, JIANXUAN

   ·IMMI s57 Natural Justice - LIU, JIANXUAN.PDF

   ·LIU, Jianxuan, 30SEP1994-Statement by applicant LIU Jianxuan

   ·LIU, Jianxuan, 30SEP1994-Supporting Letter by Current Employer

   ·LIU, Jianxuan, 30SEP1994-Skills Shortage - Recruitment Efforts by Current Employer

   ·LIU, Jianxuan, 30SEP1994-Cash Wage Is Allowed-Regulation released - Business & Human Rights Resource Centre

   ·LIU, Jianxuan, 30SEP1994-Chinese Workers Without Benefits

   ·LIU, Jianxuan, 30SEP1994-Existence of None-Work Contract and None-Social Insurance Payment East Asia Forum China

   ·LIU, Jianxuan, 30SEP1994-Ceased Operation - Fujian Province Minqing County Meicheng Livestock Slaughterhouse

   ·IMMI Refusal Notification with Decision Record

   ·ICSE Notes LIU, Jianxuan

   ·[NDC SENSITIVE] Referral Outcome - LIU, Jianxuan

   ·[NDC CERTIFICATE] LIU, Jianxuan

9. The Tribunal has read and carefully considered the following evidence presented to the Tribunal.

   ·Representative submission 13 July 2022

   ·Skill Assessment of applicant, Narasell Pty Ltd, 22 November 2017

   ·Statement of Rodney Dennis Holmes, MINTRAC Overseas registered assessor, 23 March 2022

   ·Statutory Declaration of Jianxuan Liu , 17 May 2022

   ·Declaration of Legal Representative, Fujian Province Minqing County Meicheng Livestock Slaughterhouse, 3 March 2022

   ·Statement of former HR manager of Meicheng Livestock Slaughterhouse, 22 April 2022

   ·Assorted documents – China

   ·Outline statement of Stephen Smith, 9 April 2022

   ·Statement of Aimee Hanson, former landlord, Remax Vision, 6 May 2022

   ·Statement of Daniel Golledge, friend, stamped 26 April 2022

   ·Statement of Pui Chan, friend, colleague, stamped 26 April 2022

   ·Statement of Rosanne Ancog, friend of Applicants’ wife, 1 May 2022

   ·Statement of CFO, Narasell, Bernard Van der Rijt, 21 March 2022

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

10. 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.

11. 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.

12. 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.

13. The applicant had provided, in support of the subclass 457 visa application dated 12 December 2017 which was granted on 19 January 2018, information including a work reference dated 27 November 2017 (CLD2017/49449331– LIU, Jian Xuan, 30SEP1994-Work Reference-TBE-AP-457). This document refers to the applicant’s employment at a business named Fujian Province Minqing County Meicheng Livestock Slaughterhouse from 3 November 2013 in the position of Boner.

14. The delegate claimed that as a result of routine checks of the applicant’s work experience for the purposes of assessing the current application, the department received information which indicates that information contained in the above-mentioned work reference may be false or misleading in relation the applicant’s skills.

15. A Departmental officer contacted the company on 11 May 2021 on the mobile number (13 774588888) listed on the Work Reference. A man answered the phone. He stated he was the General Manager, Mr Wu Yueguang. When asked about the applicant Li Wei Liu’s employment information, Mr Wu advised that he could not remember. He referred the Departmental officer to contact the company’s Human Resources Manager, Mr Chen Zhennan on the telephone number 0591-22593566. Mr Wu advised that the HR manager Mr Chen Zhennan was the person in charge of staffing as well as manufacturing and has been working for the company for 7-8 years. Mr Wu advised that Mr Chen Zhennan is given the appropriate authorisation to answer the interview because Mr Chen knows staff employment information.

16. In the course of the conversation Mr Wu Yueguang stated the Slaughterhouse closed on 1 April 2021. In addition, the General Manager also explained that all the meat worker/labourers for whom he signed the employment letters, worked on a casual basis with a monthly salary of around RMB2000-3000. They were paid in cash with no pay slips and no employment contracts. He stated they used to have staff profiles for employees, however, all his files were destroyed or lost in the flood that occurred in September 2016. The Tribunal has verified the existence of the claimed floods and notes that 449 deaths occurred with an estimated damage to property of USA $22 billion.[1]

    [1] Masters, Jeff; Henson, Bob (15 July 2016). "Earth's 5th Costliest Non-U.S. Weather Disaster on Record: China's $22 Billion Flood". The Weather Underground.

17. When contacted, Mr Chen Zhennan advised the officer he joined the company in 2016. The delegate noted this information was inconsistent with that declared by the General Manager, (7-8 years working experience). This was subsequently explained to the Tribunal’s satisfaction in Mr Chen’s Declaration to the AAT dated 22 April 2022, explaining his original and subsequent employment circumstances.

18. He also stated to the officer the company had ended/ceased the business in early 2021 but he was still working in the office at the time of the conversation. The delegate noted Mr Chen showed very limited knowledge of the company's key and basic information including products, business scope and staff information though he declared working there for 5 years (Y2016-Y2021). He showed no knowledge of production lines, unable to state colleague names in his (HR) department. He could not state shareholder/ managers’ names of the company. He could only remember there is an accountant, whose surname is Zhang. He could not tell the officer the full name of the accountant and any other staff names in the administration team. The Tribunal notes that it is not uncommon to obfuscate rather than reveal information that might be considered personal or sensitive, particularly in relation to the Chinese authorities if information has not been agreed as suitable for release to a third party. Culturally it is considered more polite than not complying.

19. The Tribunal notes that as it was someone purporting to be an Australian official, who could not be verified, calling unannounced, at a time when Australia and Chinese diplomatic relations were at a very low point, it is unsurprising that cooperation is likely to be scant and cautious.

20. The delegate observed Mr Chen demonstrated limited knowledge regarding the applicant Weiwei Liu’s employment details. Mr Chen provided exactly the same information as showed on the employment letter (applicant’s position, commerce date, and date of birth). When the departmental officer further enquired what detailed tasks and responsibilities the applicant performed, Mr Chen provided very vague information.  He could not provide the detailed duties the applicant performed. Mr Chen also showed no idea in which unit the applicant was working nor the workers names with whom the applicant worked. Mr Chen advised that the applicant’s position was that of a boner. The delegate noted the information was inconsistent with the information on the work reference letter (according to the work reference the applicant was working as slaughter and boner). This was again explained to the satisfaction of the Tribunal in Mr Chen’s Declaration to the AAT dated 22 April 2022.

21. The delegate, based on the vague information provided in the absence of any other official evidence to support the applicant’s employment there, reached a preliminary view that the work Reference the applicant had submitted for the purposes of their subclass 457 visa application was false or misleading in relation to the applicant’s skills and experience.

22. On 4 June 2021, the applicant was invited to comment pursuant to section 57 of the Migration Act on the delegate’s preliminary view that he appeared not to satisfy PIC 4020(1) and invited him to specify whether there are compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, that would justify the granting of the visa.

23. On 30 June 2021, the following documents were provided in response to the invitation to comment:

    • Statement by applicant LIU, Jianxuan
    • Supporting Letter by Current Employer
    • Continuous Recruitment Efforts by Current Employer
    • Evidence of residential address in China
    • Cash Wage Is Allowed Regulation released - Business & Human Rights Resource Centre
    • Chinese Workers Without Benefits
    • Existence of None-Work Contract and None-Social Insurance Payment East Asia Forum China Workers Role 2019
    • Ceased Operation - Fujian Province Minqing County Meicheng Livestock Slaughterhouse

24. The Tribunal notes the view held by the delegate based upon the applicant’s submissions dated 30 June 2021 which state details about his employment at Fujian Province Minqing County Meicheng Livestock Slaughterhouse. It also details his period of employment, the employment process in obtaining his job in Australia and explains the wage payment system in China. The delegate concluded some weight could be given to this statement however it was not supported by corroborating evidence demonstrating employment with Fujian Province Minqing County Meicheng Livestock Slaughterhouse.

25. The Tribunal has been provided with additional information not supplied to the delegate which provides more comprehensive evidence upon which it can draw its conclusions. It has sufficient corroborating evidence to allow it to conclude that the visa applicant’s claims of employment are accurate.

26. The supporting letter by the current employer dated 21 March 2022 makes statements on how the applicant was recruited and the skills that the applicant had since working with them from 8 February 2018. Little weight was afforded to this document as it was not considered proof the applicant was employed with the previous employer Fujian Province Minqing County Meicheng Livestock Slaughterhouse. The delegate appears to have failed to consider or comment on the fact that the visa applicant must have learned the skills he displayed to his new employer prior to that point and these skills take training and considerable practical experience.

1. The Tribunal has been provided with additional documents from the CFO of the current employer and also the General Manager of the processing plant employing the visa applicant. Detailed statements were provided clearly indicating a high-level recruitment process was utilised to ensure skilled workers were being brought to their plant, not unskilled labour. The cost of such an appropriately comprehensive recruitment program is substantial and not undertaken by an employer without expected sound economic benefit. Importing unskilled labour would not provide an adequate return on investment.

2. It is observed that the skills assessments were undertaken prior to employment and overseen by the Australian General manager in situ. It is self-evident that the skills required would have been obtained prior to the skills assessment and subsequent employment process. As previously stated, such skills take a considerable time to develop and could not have realistically been attained only after the applicant commenced employment in Australia. It is noted that the Australian accredited assessor determined the applicant had a skill level equivalent to a Certificate lll in his chosen field. The Tribunal understands this would usually take a minimum of 2 years to achieve. The Certification was supplied to the Tribunal.

3. The Tribunal notes the delegate dismissed the evidence of multiple advertisements associated with recruitment as they were not proof that the applicant was employed at Fujian Province Minqing County Meicheng Livestock Slaughterhouse. The Tribunal agrees that it is not direct evidence. However, it does add to the cumulative body of narrative evidence supporting the recruitment claims, even though they do not provide outcomes associated with the applicants under consideration and those subsequently employed.

4. The Tribunal accepts the various articles and information provided in the submissions dated 30 June 2021 as informative background and enlightening in relation to employment practices in rural China which are in stark contrast to Australian norms. They add weight to the argument that some of the delegate’s evidential expectations were potentially unrealistic in the Chinese employment context which is markedly different to the high level of compliance demanded of Australian enterprises. The Tribunal is acutely aware of this reality from previous experience and gives the information moderate weight.

5. The delegate stated, ‘The evidence for Fujian Province Minqing County Meicheng Livestock ceasing operation and opening of another slaughterhouse, I give no weight to this document as it shows only that the business is no longer operating.’ The Tribunal disagrees with this assumption. It clearly supports the assertions made by Mr Chen in his statement to the Tribunal dated 22 April 2022 as to why the knowledge he was able to provide, some considerable time after the plant’s closure was of a general nature. The Tribunal would have been surprised if he still legitimately had access to detailed documentation as he was no longer an employee and should not normally have been able access to sensitive personal details of ex-employees. The employee in question had departed the company approximately 3 years earlier and it is not a requirement to keep the employment records for that period post-employment termination. 

6. The statement in part is as follows.

   …..‘Second, my relationship with the slaughterhouse workers

7. As mentioned above, during my tenure as a contractor from 2012 to 2016, I recruited and managed some of the line workers in the slaughterhouse. The workers in the original factory were not under my management and had very little contact with me. After I was officially appointed as the HR Manager in May 2016, all personnel were managed by me, and the production lines were no longer distinguished.

   Third, the limited understanding of the slaughterhouse

8. In view of my special relationship with the slaughterhouse, I was only responsible for recruiting and managing human resources, and the organizational structure, supply, production and sales of the Slaughterhouse had nothing to do with me. Therefore some of the questions asked during the telephone interview are beyond my knowledge.

   Fourth, knowledge of the workers

9. I have kept records of all the workers I recruited and managed, and have always been keeping them. After receiving several telephone interviews, I had put together a short list of all workers who had gone overses to work, including their names, birthday, position, employment start and end date. Therefore, when the Department officers interviewed me later, I was able to accurately say their names, birthdays and other information based on this list I summarised. However their end date. Therefore, when the Department officers interviewed me later, I was able to accurately say their names, birthdays and other information based on this list I summarised. However their job duty records were not completely accurate because most workers took two positions at the same time, slaughtering and boning, during the peak production time, and only one position during the off-peak time. Some workers position records are accurate, some were only noted one position according to my memory due to the large number of workers. I have frankly informed the Department officer that I had prepared the list following the previous telephone interview.’…..

10. The Tribunal has some sympathy for Mr Chen’s desire that the regular telephone demands being made by the Department during which they seek verification of previous employee’s work history and the subsequent assumptions, assessments and decisions being made, to cease, as they were detrimental to his wellbeing.

11. It notes the following statements.

    …..’ I have terminated my employment with the Slaughterhouse following its closure on O l April 2021. Out of respect for the Australian Immigration Department and for the purpose of being accountable to all former employees, I have been cooperating with the telephone interview and providing as much information as I could. But my career and personal life should not be interrupted indefinitely because of my respect. The endless interrogation-style telephone interviews of Australian Immigration officers and the worry that my answers could have a major impact on the fate of these workers once caused my insomnia and made me suffer from anxiety.’ …..

    …..’I hereby request the Australian Immigration Department to officially end such a telephone investigation. China's special national conditions determine that such an investigation has major problems whether in terms of the exceptionally long lapse of time since their leave or the one­ sided investigation method via telephone interview. The inaccurate information drawn from the interview for making major decisions on whether to grant a visa is insufficient as legal basis.’ …..

12. The Tribunal has reflected upon its own experiences in relation to ex-employees some substantial time after they ceased their working relationships. It has formed the view that it would be unable to provide information any more detailed than that provided by Mr Chen in his circumstances, if faced with similar circumstances. It is satisfied that the information provided by Mr Chen is relevant and as accurate as could reasonably be expected. In fact, highly detailed information could raise some potential questions of authenticity.

13. The Tribunal is satisfied that there is not sufficient evidence to conclude that the applicant has given, or caused to be given a bogus document, or information that is false or misleading in a material particular. In fact, it has concluded there is a substantial body of evidence which supports the opposing view.

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

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

15. 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).

16. The Tribunal has no evidence before it that the applicant or any member of the family unit (as defined in reg 1.12) have been refused a visa in the relevant period because of a failure to satisfy PIC 4020(1)

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

    Has the applicant satisfied the identity requirements?

18. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.

19. In Australia, the National Identity Proofing Guidelines, established by the Attorney-General’s Department, defines identity as “... some combination of characteristics or attributes that allow a person to be uniquely distinguished from others within a specific context”.  The Department of Home Affairs (the Department) relies on a system that establishes a migrant’s identity by exploring the ‘three pillars of identity’, regardless of whether they are applying for protection or more regular migration pathways. The three pillars are: biometrics (physical attributes); documentation; and narrative. The narrative pillar comprises both objective data points such as nationality and ethnicity and subjective material including family composition, schooling, employment and training, or travel history.

20. The Tribunal having reviewed the visa applicants Passport photographs and details in conjunction with the verified relevant life and work history, has concluded that the identity of the visa applicants is as asserted by them. The Tribunal does not have any evidence before it to demonstrate a different conclusion is warranted.  

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

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

22. 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).

23. There is no evidence before the Tribunal that 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.

24. Therefore PIC 4020(2B) is met.

25. On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl 186.213(1) and subsequently cl.186.213.

    DECISION

26. The Tribunal remits all the applications for Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 186 - Employer Nomination Scheme visas:

    ·Public Interest Criterion 4020 for the purposes of cl 186.213(1) and subsequently cl 186.213 of Schedule 2 to the Regulations

    Peter Emmerton
    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.

    …