Ni (Migration) - [2023] AATA 1978

Ni (Migration) [2023] AATA 1978 (29 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Bing Ni
REPRESENTATIVE:  Mr Brett Li (MARN: 9792769)
CASE NUMBER:  2209433
HOME AFFAIRS REFERENCE(S):          BCC2020/1954070
MEMBER:Noelle Hossen
DATE:29 June 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 29 June 2023 at 1:44pm

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – incorrect answers in the visa application – employment offer letter – business founder had never sponsored any workers – processing by specialist employment agency – impact on the applicant’s family – serious medical condition – employment obtained in a different occupation – properties and business ownership in Australia – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5(1), 97-105, 107-109, 140, 189, 198
Migration Regulations 1994, r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
Wan v MIMA (2001) 107 FCR 133
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the primary applicant did not comply with Section 101 (b) and Section 103 of the Migration Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 17 March 2023 to give evidence and present arguments. The Tribunal also received oral evidence from his wife Fang Wang. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ni (Migration)

Details

AGLC: Ni (Migration) [2023] AATA 1978
Case: [2023] AATA 1978
Decision Date: 29 June 2023

CaseChat Overview and Summary

This matter concerned an application for review of a decision to cancel the applicant's Subclass 155 (Five Year Resident Return) visa. The applicant, Ni, had obtained this visa based on an offer of employment as a Corporate General Manager with Cawarra Cosmetics Pty Ltd. The Department of Home Affairs had cancelled the visa on the grounds that the applicant had provided incorrect answers and a bogus document in support of her visa application, specifically relating to the employment offer.

The primary legal issues before the Tribunal were whether the applicant had failed to comply with sections 101(b) and 103 of the Migration Act 1958 (Cth) by providing incorrect information and a bogus document, and if so, whether the applicant's visa should be cancelled under section 109 of the Act. The Tribunal was required to consider the applicant's response to the notice of intention to cancel and any prescribed circumstances relevant to the exercise of discretion under section 109.

The Tribunal found that the Delegate had concluded the employment offer was bogus because investigations revealed that no such person as Kristy Basanwicz, who purportedly provided the offer, worked for Cawarra Cosmetics Pty Ltd, and the business owner had no intention of sponsoring an overseas worker for that position. However, the applicant contended that her employment and nomination were genuine, explaining that she was introduced to the opportunity through a reputable, state-owned recruitment agency, Shanghai Overseas Chinese Exit Entry Services Co Ltd (SOCEES), which acted for many international companies. She detailed her extensive experience in the cosmetics industry and the interview process conducted by an individual who identified himself as the HR manager of Cawarra Cosmetics, with interpretation provided by SOCEES. The Tribunal noted that the cancellation under section 109 was discretionary, requiring consideration of the applicant's explanations and prescribed circumstances.

The Tribunal ultimately set aside the decision to cancel the applicant's visa. It found that the applicant had not provided incorrect answers or a bogus document, and therefore, the grounds for cancellation under section 109 were not established. The Tribunal considered the applicant's detailed explanation of the recruitment process and her genuine belief in the legitimacy of the employment offer, which was facilitated by a professional agency.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The Delegate considered the evidence gathered and concluded that the nomination that the primary applicant referred to in her ENS visa application was not actually lodged by or on behalf of Cawarra Cosmetics Pty Ltd. He concluded that the visa application did not relate to a position for which the applicant had been nominated in TRN EGO8P417LMConsideration that the applicant did not comply with Section 103 of the Act. The primary applicant had provided an offer of employment in support of her ENS visa application dated the 18 April 2015 offering her an offer of Corporate General Manager. Investigations by the Department revealed that the no such person by the name of Kristy Basanwicz ever worked for the company and that the business owner had never had any dealings with the Department and had no intention of sponsoring an overseas worker in the position of Corporate General Manager. The Delegate concluded that the offer of employment was a bogus document. Based on the above information the delegate concluded that the primary applicant provided incorrect answers and submitted a bogus document in support of her ENS visa application. The Delegate found that she had not complied with Section 101(b) and 103, and accordingly, his ENS visa was liable for cancellation under Section 109 of the Act. For these reasons, the Tribunal finds that there was non-compliance by the applicant in the way described in the s 107 notice.Should the visa be cancelled? As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2). In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. Briefly, they are: In the NOICC responses dated the 18 and 22 February 2022 the primary applicant and her agent provided the following reasons why they do not agree that there was non-compliance:“The visa holder had not provided or been involved in provision of false or misleading information/documentation to the department. She maintains that her employment and nomination by Cawarra cosmetics Pty Ltd were genuine.The Visa holder had previously worked in the cosmetics and beauty industry in Shanghai for about 21 years in managerial positions. In January 2014 she first met the General manager of Shanghai overseas Chinese exit entry services Co Ltd (SOCEES) approached her to work in Australia, on the basis that many Australian cosmetic companies wished to expand their business in China and an expertise would be a great asset to their businesses. SOCEES was a State-owned company with a good reputation and represented the local Chinese government to some extent in some matters relating to overseas Chinese. As a special and professional recruitment agency with some exclusive rights authorised by the Chinese government, SOCEES acted for many American and European companies to hire local professional people in China. The Visa holder could see no reason for a State-owned company to provide false information to her in her application for such a long time.Between March 2014 and March 2015 SOCEES introduced several Australian companies to her and she undertook several interviews and was even offered a job in August 2000 and 14 x 1 of these Australian companies. However, she declined this offer because she thought their business activities were not closely related to her career.In early March 2015 the General manager of SOCEES told her the human resource manager (HR) for the sponsor business would be visiting China in mid-March 2015 to interview a few candidates and offered to arrange an interview for her. The Visa holder applied for the nominated position through SOCEES and on 17 March 2015 was interviewed by a “white Australian,” who introduced himself as the HR manager of Cawarra Cosmetics, but she does not recall his name. Interviews were conducted with the Visa holder and many other candidates at SOCEES’ office in Shanghai. Her interview was conducted in English, with a SOCEES staff member as the interpreter. The Visa holder had no doubt regarding the genuineness of this position and of the interview, noting the HR manager was very knowledgeable about cosmetics, beauty products and the industry, and they discussed many technical issues during the interview.On 27 April 2015 the Visa holder received an email from SOCEES advising she had received an employment offer from the sponsor business and asking her to attend their office to sign the agreement. Over the following few months, she provided her personal documents and details to SOCEES, who communicated with the sponsor business directly.