Ngo (Migration)

[2019] AATA 2602

Ngo (Migration) [2019] AATA 2602 (25 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Thi Minh Chau Ngo

VISA APPLICANT:  Mr The Nhan Nguyen

CASE NUMBER:  1724964

DIBP REFERENCE(S):  CLD2017/39862162

MEMBER:John Billings

DATE:25 June 2019

PLACE OF DECISION:  Melbourne

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

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

Statement made on 25 June 2019 at 5:38pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – validity of s 375A certificate – false or misleading information in a material particular – veracity of claimed employment – payment of social insurance as required by law – no corresponding deduction in payslips – side agreement to procure own health insurance – delegate unable to verify health insurance card – ‘evidence’ for the purpose of PIC 4020 – sufficiently probative – telephone inquiries – no site visit – National Business Registration website – other supporting document – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 600.213; Schedule 4, PIC 4020

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
El Jejieh v MHA (No.2) [2019] FCCA 840
MIBP v Singh [2016] FCAFC 183
Sharma v MIMAC [2013] FCCA 1280
Talukder v MIAC [2009] FCA 916
Talukder v MIAC [2009] FMCA 223
Trivedi v MIBP [2014] FCAFC 42

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 18 September 2017 to refuse to grant the visa applicant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant, Mr Nguyen, applied for the visa on 9 August 2017. The delegate refused to grant the visa on the basis that Mr Nguyen did not satisfy the requirements of cl.600.213 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because he did not satisfy PIC (Public Interest Criterion) 4020. The delegate expressed concerns about Mr Nguyen’s employment contract and whether he was actually employed by his stated employer: see further below.

3. The review applicant, Ms Ngo, is Mr Nguyen’s spouse.  Ms Ngo applied for review on 13 October 2017.  She provided a copy of the primary decision to the Tribunal.   

4. Ms Ngo was represented in relation to the review by her registered migration agent.

5. There was no hearing.  In the circumstances of the case the Tribunal considers that it should decide the review in Ms Ngo’s favour on the basis of the material before it: see s.360(2)(a) of the Act.  

6. Ms Ngo is a 34 year old Australian citizen born in Vietnam.  She works part time as a nurse in Melbourne.

7. Mr Nguyen is a 33 year old national of Vietnam.  According to the visa application his occupation is graphic designer and he is employed in Ho Chi Minh City by a company named Nhat Tien Co. Ltd.[1] (“Nhat Tien”). 

   [1] In the material before the Tribunal the company name does not always appear in precisely the form Nhat Tien Co. Ltd., which appears to be an abbreviation.  The Tribunal has confirmed with the Department’s officers in Vietnam that relevant inquiries relate to one and the same company.  

8. A Details of Relatives form submitted to the Department indicates that Ms Ngo has one sister in Australia. Her parents and two brothers are in Vietnam.  Mr Nguyen’s parents, two sisters and one brother are in Vietnam.

9. Ms Ngo and Mr Nguyen were married in Vietnam in June 2017.  The stated purpose of the visa application was for Mr Nguyen to visit Ms Ngo and understand more about her life in Australia. 

10. The primary decision details the matters that concerned the delegate; investigations conducted by the Department; and Mr Nguyen’s response to the delegate’s concerns.  In summary, the delegate observed that Mr Nguyen’s May 2015 labour contact stated that “social insurance” payable under Vietnamese law would be contributed to by him and the employer whereas his payslips for May, June and July 2017 showed no deduction for social insurance.  The delegate then noted that an investigation by telephone on 29 August 2017 led to concerns about whether Mr Nguyen was actually employed by Nhat Tien.  The primary decision does not elaborate on the telephone inquiries.  The Tribunal refers further to the telephone inquiries below. 

11. In Mr Nguyen’s response to the Department’s invitation to comment he said, in effect, that he and his employer agreed for him to procure his own health insurance but it was not possible for him to sign the labour contract without social insurance being stipulated.  He suggested that officers conduct a site visit to confirm that he was employed by Nhat Tien.  Notwithstanding the existence of documents relating to the side agreement about Mr Nguyen’s health insurance, the delegate considered Mr Nguyen’s claims to be implausible for the reason that social insurance payments were required by law.  The delegate further noted that a health insurance card had been recently issued (in April 2017) and could not be verified.  The delegate considered that Mr Nguyen’s suggestion about a site visit did not address the Department’s concerns.

12. The Department’s file contains notes about the telephone inquiries made on 29 August 2017.  The notes are covered by a non-disclosure certificate given under s.375A of the Act.  The Tribunal refers further to the certificate below.  In essence it is recorded in the notes that an officer telephoned Nhat Tien and spoke to a man identified as Huy.  The officer asked to him to transfer the call to Mr Nguyen but Mr Huy said that there was nobody with the same name working for the company.  Mr Huy also said he had been working for the company for about two years. 

13. On 19 November 2018 the Tribunal issued an invitation to Ms Ngo under s.359A of the Act, inviting her to comment on or respond to adverse information, being the essence of what is recorded in the notes about the telephone inquiries made on 29 August 2017.

14. On 19 November 2018 the Tribunal also scheduled a hearing for 11 December but cancelled the hearing after Ms Ngo responded to the s.359A invitation and the Tribunal decided that further investigations should be conducted.  (Among other persons nominated to give evidence in December 2018 was Ms Thanh Tam Duong, Director of Nhat Tien). 

15. The response to the s.359A invitation was a letter in Vietnamese with English translation.  The letter was by Ms Duong.  It was dated 26 November 2018.  Ms Duong confirmed that Mr Nguyen had been working for Nhat Tien since 2 May 2015.  Ms Duong wrote that the company approved Mr Nguyen’s proposed leave in 2017.  Ms Duong further wrote that Mr Hoang Van Huy “is not the employee in charge of personnel” and did not have “the awareness of the employee of the company”.  She said that Mr Huy “abused his power” in replying to the Department’s officer as he did. 

16. Ms Duong’s letter includes Nhat Tien’s website address in the letterhead[2].

    [2] >

    On 4 December 2018 the Tribunal requested the Department to verify Ms Duong’s letter.  The Department provided a response or “referral outcome” in December 2018 but in January 2019 the Tribunal had to make further inquiries to confirm that the Department was referring in the response to the same company.  In March 2019 the Department confirmed that.  

17. The Department’s response in December 2018 indicated that a check of the Vietnamese National Business Registration website found an entry for Nhat Tien dated 16 June 2017 that recorded the number of employees to be two only.  (The document included the following words in Vietnamese that the Department said referred to the total number of employees: Tổng số lao động).  The response stated that given the small size of the company and that Mr Huy had worked there for about two years at the time the officer spoke to him (in August 2017) “it is reasonable [to conclude] that [Mr Huy] knew the people he was working with”.  Concerning Mr Nguyen’s labour contract, the response stated that while the contract was signed on 2 May 2015, inexplicably it recorded Mr Nguyen’s national ID card issued on a future date, in June 2015. 

18. On 15 April 2019 the Tribunal issued a further invitation to Ms Ngo under s.359A inviting her to comment on or respond to the further information provided by the Department in December 2018.

19. In the meantime, in April 2019 Ms Ngo submitted letters in support of the application, one written by her, one by a medical practitioner, and one by a Catholic bishop.  The letters are primarily directed to matters that could be taken into account if waiver of PIC 4020(1) were being considered. 

20. On 29 April 2019 there was a response to the second s.359A invitation.  Ms Ngo’s representative referred to Vietnamese law concerning registration for companies with two or more members/shareholders and submitted in effect that registration of a company with two or more members did not indicate that the company had only two employees.  The representative noted that Ms Duong had already confirmed Mr Nguyen’s employment and said that Ms Duong was prepared to give oral evidence about that.  The submission was accompanied by relevant company and business registration documents with English translations, and extracts from Law 68/2014/QH13 on Enterprises. 

21. The company documents show Ms Duong and another person (Hoang Quoc Hoi) as “contributors”.  Ms Duong’s is described there as “Director”. 

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Non-disclosure certificate

23. The non-disclosure certificate, given under s.375A of the Act, is dated 17 October 2017.  As to the Tribunal’s obligations with regard to s.375A certificates see generally MIBP v Singh [2016] FCAFC 183.

24. On 19 November 2018 the Tribunal provided a copy of the certificate to Ms Ngo and invited submissions as to the validity of the certificate.  The Tribunal pointed out that it would in any event have regard to its obligations under s.359A of the Act. 

25. The certificate is unsigned.  In a case decided on 18 April 2019 – months after the Tribunal invited submissions – the Federal Circuit Court ruled that an unsigned certificate is invalid: see El Jejieh v MHA (No.2) [2019] FCCA 840 at [23].

26. In the circumstances it is unnecessary to say more than that the certificate purported to cover the record of “integrity checks” regarding which the Tribunal gave particulars in the first s.359A invitation. 

    PIC 4020

27. The relevant part of PIC 4020 is extracted in the attachment to this decision.

28. The issue in the review is whether Mr Nguyen meets PIC 4020 as required by cl.600.213 for the grant of the visa.

29. PIC 4020(1) requires that there is no evidence that he 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 he held in the 12 months before the application was made.

30. The requirements in PIC 4020(1) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4).

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

31. 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.

32. 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.

33. 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.

34. It is important for the present case to note what is meant by “evidence” for the purpose of PIC 4020(1).  In Talukder v MIAC [2009] FMCA 223 at [20] Edmonds FM said:

    The use of the word “evidence” in my view establishes that the clause requires something more than the mere existence of information suggestive of falsity. It requires some probative information. In other words, a decision maker cannot simply take any information suggestive of falsity as sufficient for the purposes of the clause. The decision maker must satisfy himself or herself that the information is acceptable as evidence pointing to false or misleading information having been given for the purposes of establishing the validity of the visa application and that the falsity or misleading information was material to the visa application.

35. In Sharma v MIMAC [2013] FCCA 1280 at [36] Judge Manousaridis said:

    “[E]vidence” is used in PIC4020 to impose a requirement that whatever facts are conveyed by the material relied upon to establish that information given in connection with the application for a … visa was false or misleading in a material particular, they must be facts that are sufficiently probative to lead to that conclusion. Stated more simply, “evidence”, as that word appears in PIC4020, means material that is sufficiently probative to lead to the conclusion that information given in connection with the application for a … visa was false or misleading in a material particular.

    See also Talukder v MIAC [2009] FCA 916 at [20].

36. In the Tribunal’s view, the information considered by the delegate, and the further information that is now available, is not sufficiently probative to lead to the conclusion that Mr Nguyen gave false or misleading information or a bogus document. 

37. The matter of social insurance, and what the labour contract has to say on the subject, is really a matter between Mr Nguyen and Nhat Tien, and between them and the Vietnamese Government.  Even if the Tribunal were able to conclude that Mr Nguyen and Nhat Tien avoided a legal obligation to contribute to social insurance, the Tribunal would not consider there to be sufficiently probative evidence to lead to the conclusion that Mr Nguyen was not employed by Nhat Tien as he claimed to be.

38. The June 2015 date of issue of Mr Nguyen’s national ID that appears in the labour contract signed in May 2015 is perhaps another matter.  The possibilities include that there was a typographical error or that the date was inserted after the labour contract was signed after the issue date was ascertained.   Still the Tribunal would not consider there to be sufficiently probative evidence to lead to the conclusion that Mr Nguyen was not employed by Nhat Tien as he claimed to be.

39. The “material particular” for the purpose of PIC 4020(1) is Mr Nguyen’s employment and not his compliance with laws concerning social insurance.  It is material because it concerns the genuineness of Mr Nguyen’s intention to stay in Australia only temporarily: see cl.600.211.  The statement reportedly made by Mr Huy, an employee of Nhat Tien, in August 2017 is therefore of concern.  That may be “information suggestive of falsity” on Mr Nguyen’s part.  But there is the whole of the evidence to consider.  That now includes Ms Duong’s letter, the business registration documents, other supporting documents, and even the Nhat Tien website. 

40. It seems possible, when the Tribunal requested inquiries be made to verify Ms Duong’s letter, that had there been a site visit or some other inquiry made directly of Ms Duong or about Ms Duong, the Department’s response may actually have been to confirm that Mr Nguyen was indeed a longstanding employee of Nhat Tien.  It is not clear why the delegate considered that Mr Nguyen’s suggestion about a site visit did not address the Department’s concerns.  Resources may have not allowed for a site visit.  But, for whatever reason, the only further investigation undertaken was the inspection of the Vietnamese National Business Registration website. 

41. The literal translation of what appeared on the National Business Registration website may be that Nhat Tien had two employees, but this seems ambiguous when considered in the light of the business registration documents that have been submitted and the provisions of Vietnamese law that the representative referred to.  In the Department’s response to the Tribunal the Department, apparently without more, drew the inference that Mr Huy must have known who the employees of Nhat Tien were.  The business registration documents themselves name two persons other than Mr Huy (as “contributors” in the English translation).  The inference that Mr Huy must have known everyone employed by Nhat Tien is not a reasonable inference to be drawn from the information on the National Business Registration website, in the Tribunal’s view.  The Tribunal considers that the available information, including what reportedly appears on the National Business Registration website, is not sufficiently probative evidence to lead to the conclusion that Mr Nguyen was not employed by Nhat Tien as he claimed to be.

42. Therefore, Mr Nguyen meets PIC 4020(1).

43. In the circumstances it is not necessary for the Tribunal to consider the waiver provisions.  That is, it is not necessary for the Tribunal to consider whether there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in r.1.03), that justify the granting of the visa.

44. The Tribunal does observe however that it is an unfortunate state of affairs that approximately two years after Ms Ngo and Mr Nguyen were married Mr Nguyen has not been able to visit Ms Ngo in Australia and develop his thinking about possible migration.  Instead, the Department’s movement records and other evidence indicate that, when Ms Ngo’s employment has permitted it, they have spent some time together in Vietnam and neighbouring countries.  Ms Ngo’s letter to the Tribunal and the letters that were submitted in April in her support indicate that there are matters that would have warranted serious consideration for waiver had that been required. 

    DECISION

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

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

    John Billings
    Senior 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 …

    (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.  

    …