Liu (Migration)

[2022] AATA 4290

Liu (Migration) [2022] AATA 4290 (2 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Faxian Liu
Miss Xiaomeng Liu
Mrs Yan Zhou

REPRESENTATIVE:  Mr Lorenzo Boccabella (MARN: 9580738)

CASE NUMBER:  1930955

HOME AFFAIRS REFERENCE(S): BCC2016/3974842 BCC2016/4147783 BCC2016/4147888

MEMBER:Mary Sheargold

DATE:2 December 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications 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) visas:

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

Statement made on 02 December 2022 at 2:36pm

CATCHWORDS
MIGRATION – Business Skills (Residence) (Class DF) visa – Subclass 890 (Business Owner) – police clearance from home country revoked – untested allegation of fraud – clearance obtained by lawful means and later revocation does not make it bogus – earlier clearance not revoked – false or misleading information provided in visa application – no outstanding charges at time of visa application – summonsed to appear before procuratorate but not formally charged – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 359AA, 375A
Migration Regulations 1994 (Cth), Schedule 2, cl 890.222(a), 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. Faxian Liu and his daughter, Xiaomeng Liu, migrated to Australia in early 2014.  Mr Liu was a successful businessman in China, but he wished for Xiaomeng to have access to an Australian education and to have opportunities in life outside China.  After discussions with friends, he decided to settle in Melbourne so that Xiaomeng could attend Presbyterian Ladies’ College in Burwood, the school he was told would be best for his daughter, and he set about establishing his Australian business in the macadamia nut trade.  His wife, Yan Zhou, remained in China to care for both Mr Liu’s and her own ageing parents. 

2. By November 2016, Mr Liu felt he was in a position to make an application for a permanent residence visa for himself and for his family.  The family applied for these Subclass 890 visas on 25 November 2016.  The Department’s assessment of the application became protracted after a series of events occurred in China culminating in the Chinese government’s decision to revoke the police clearance Mr Liu had provided to the Department as part of his application. 

3. While the delegate was not apprised of the exact nature of the documents originally provided to the authorities to obtain Mr Liu’s clearance, they nonetheless relied on the fact that the Chinese government had asserted Mr Liu provided false or misleading information to the relevant police authority when the clearance was obtained, and determined that this meant Mr Liu had provided a bogus document to the Department. This led to the conclusion that Mr Liu could not meet the requirements in Public Interest Criterion 4020(1), and therefore could not meet cl.890.222(a) of Schedule 2 to the Migration Regulations 1994 (Cth).

4. The reason for the revocation of Mr Liu’s police clearance by the Chinese government stems from an untested allegation against Mr Liu for fraud.  This allegation was made in 2016, over 2 years after Mr Liu had left China.  Around the same time that Mr Liu’s police clearance was revoked in 2019, the Chinese government issued an Interpol Red Notice in respect of Mr Liu.  This notice has sat in the Department’s records for several years, and no steps have been taken to arrest Mr Liu and extradite him to China. 

5. Further, according to Mr Liu, at no point in time has any representative of the Chinese government attended Mr Liu’s home address, where his wife has continued to reside, to seek Mr Liu out, to attempt to arrest him, or to question him regarding the alleged fraud of which he stands accused.  Although Mr Liu became aware of the allegations against him, he completely refutes any wrongdoing in relation to his dealings with the relevant business in China.  He pleaded to the Tribunal that he would not receive a fair hearing in China if he returned there and was arrested, and for that reason, neither he nor Xiaomeng has returned to China to visit Yan Zhou and the rest of their family in over 7 years.

6. Xiaomeng came to Australia as a 14-year-old girl.  She is now a 23-year-old woman who has completed a Bachelor degree at The University of Melbourne, and who aspires to continue her studies here.  Mr Liu was frank throughout the hearing in declaring the family’s motivation in being in Australia was Xiaomeng’s bright future.  Mr Liu explained that he can operate his business from anywhere, and that he had been involved in macadamia nut trade when he was in China.  He told the Tribunal that he exports over 1,000 tonnes of macadamia nuts to China every year without any trouble from the Chinese authorities.

7. Mr Liu and Miss Liu appeared before the Tribunal on 17 November 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicants’ friends, Mr Fan Yang and Ms Winnie Chung.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.  They were represented in relation to the review.  The representative attended the Tribunal hearing.

8. In my view, and with the benefit of the additional evidence Mr Liu has provided at review, there is no evidence available to demonstrate that Mr Liu did, at any time, provide a bogus document to the Department.  Nor, in my view, did he provide any false or misleading information to the Department as part of his application for this visa.  I have decided to remit these applications for reconsideration on the basis that Mr Liu does meet the requirement in PIC 4020(1), and my reasons for making this decision are set out below.

   consideration of claims and evidence

9. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 890.222(a) for the grant of the visa. Broadly speaking, this requires that:

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

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

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

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

10. 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.

11. Relevantly, on 28 January 2020, the Department issued a non-disclosure certificate pursuant to s.375A of the Act (the certificate) covering several documents on its file relating to the investigations into Mr Liu and his alleged criminal activity in China.  The certificate states that the disclosure of sensitive communication between the Department and offshore partner agencies contained in those documents “would be contrary to the public interest because the information may disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods.”

12. On 14 October 2022, the Tribunal wrote to the applicants advising them that the Department had issued the certificate, stating that my preliminary view was that the certificate was valid.  A copy of the certificate was enclosed.  The applicants were invited to comment in writing regarding the validity of the certificate by 28 October 2022.  At 7:52pm on 28 October 2022, Mr Boccabella provided a 5 page submission arguing the certificate was not valid and that the materials sought to be protected should be disclosed to Mr Liu.  Specifically, Mr Boccabella based his arguments on an assumption that the materials protected related to Mr Liu’s position in China and for this reason argued that there was no overriding public interest immunity in maintaining the confidentiality of documents that addressed the allegations made by the Chinese authorities in respect of Mr Liu.

13. Respectfully, the Tribunal disagrees with Mr Boccabella’s characterisation of the materials protected by the certificate.  It is plain that Mr Liu, his previous migration agent, and Mr Boccabella are all already aware that allegations have been made against Mr Liu in China.  What the Department seeks to protect is not that information itself.  The Department seeks to protect information regarding the practices and processes that were followed by the Department that resulted in it becoming aware of the allegations.  In my view, the Department has met the requisite threshold to claim public interest immunity and I am satisfied that the certificate is valid.

14. Having said that, I was happy to discuss with Mr Liu and Mr Boccabella the existence of documents such as the Interpol Red Notice on the Departmental file.  It is arguable that this notice could have been put to Mr Liu pursuant to s.359AA of the Act.  However, in the totality of the circumstances and taking into consideration the evidence and submissions already available to me by that time, it was clear that the notice added nothing further to the weight of the allegations that Mr Liu had ultimately brought to my attention of his own volition.  The notice was issued on 16 April 2019, over 3 years after Mr Liu was allegedly summonsed to appear before the Kunming People’s Procuratorate.

15. While the Tribunal respects all the practices followed by the Department in seeking additional information regarding Mr Liu prior to granting his Subclass 890 visa, for all the reasons detailed below, I am not satisfied that any of these investigations gives rise to proof that Mr Liu provided the Department with a bogus document with his application, nor that he provided any false or misleading information to the Department as part of his application.

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

16. 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.

17. 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.

18. 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.

19. During the course of the delegate’s assessment of Mr Liu’s application, the delegate became aware of a potential issue regarding Mr Liu in China.  That issue was the fraud allegations regarding Mr Liu made on 3 February 2016.  It was after the Department began investigating this that the Chinese authorities revoked Mr Liu’s police clearance.  The timing is critical here.  When Mr Liu applied for his Subclass 890 visa, he provided a valid, notarised police clearance from his home province.  At the hearing, Mr Liu explained to me that he had sent his brother in law to get the certificate for him, as he was in Australia.  His brother in law produced his identity card, Mr Liu’s identity card, and Mr Liu’s family booklet to the police officials.  All the correct and usual processes were followed.  The notarised, translated copy of the certificate confirms that this occurred.  There is no evidence available to me at review to demonstrate that the police certificate was obtained by anything other than lawful means.

20. In my view, the police clearance cannot constitute a bogus document.  The fact that the authorities later revoked the clearance does not make the original a bogus document.  There is no evidence that Mr Liu provided the Chinese authorities with anything other than correct and genuine documentation when the clearance was issued.  In my view, the certificate is accurate in its statement that “Liu Faxian had no criminal record during his period of residence in the People’s Republic of China up to May 7, 2017.”  An earlier notarised police clearance was provided to the Department at the time the application was made.  That clearance was in the same wording but covering only to 9 November 2016.  There is no evidence that the Chinese authorities have revoked or sought to revoke that original clearance document provided.

21. It is not necessary for the Tribunal to postulate as to the Chinese government’s motivation for revoking Mr Liu’s May 2017 police clearance in circumstances where such a decision was made only after the Australian government began to make enquiries regarding Mr Liu’s suitability for the grant of a Subclass 890 visa.  The Chinese authorities’ assertion that the clearance was revoked because Mr Liu provided false information to the police when the clearance was obtained is simply not made out, and I accept Mr Liu’s account of the manner in which the police clearance was obtained.  I accept this not only because Mr Liu’s evidence came across as credible, but because it is confirmed in the clearance document itself, where reference to his brother in law and documents produced to obtain the clearance are articulated plainly.  It is sufficient for me to make findings of fact, as I am required to do, that the police clearance provided to the Department with Mr Liu’s application does not fall within the definition of bogus document in s.5(1) of the Act. 

22. However, this finding does not rule out the possibility that Mr Liu provided the Department with any false or misleading information as part of his application.  The application was made on 25 November 2016, and the allegations against Mr Liu and summons to appear before the authorities was made on 3 February 2016.  On 21 November 2016, Mr Liu executed a completed Form 80 as part of his visa application.  At item 36, he ticked ‘No’ on the boxes asking if he had ever been charged with an offence that was awaiting legal action, and whether he had an arrest warrant or Interpol notice outstanding.  The Tribunal is satisfied that the Interpol notice was issued almost 2.5 years after Mr Liu completed the Form 80, and therefore has no concerns with his answer to that question.

23. The question of whether he had ever been charged with an offence that was awaiting legal action was also answered in the negative.  The Chinese authorities advised the Department after the application was made regarding the allegations against Mr Liu in February 2016.  However, Mr Liu was not in China at the time these allegations were made and he did not respond to the alleged notice summonsing him to appear before the Protectorate.  In my view, Mr Liu has never been formally charged in relation to the alleged fraud allegations against him.  Even if he knew about the existence of a summons to appear prior to completing his Form 80, and it is not clear whether he did, he was within his rights to answer the question regarding outstanding charges in the negative. 

24. Having considered all of the evidence available to me, I am satisfied that Mr Liu provided genuine documents to the Department and that his answers on his Form 80 were accurate to the best of his knowledge at the time he completed the form.  Therefore, I am satisfied that Mr Liu meets PIC 4020(1).

25. On the basis of the above, the applicant does satisfy PIC 4020(1) for the purposes of cl 890.222(a). Given these findings, the appropriate course is to remit the application to the Department for reconsideration, including in relation to the secondary applicants.

    decision

26. The Tribunal remits the applications 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) visas:

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

    Mary Sheargold
    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.

    …