Song (Migration) - [2020] AATA 4014

Song (Migration) [2020] AATA 4014 (10 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Wenyu Song
Ms Qiuxuan Tang
Mr Xinyu Tang
CASE NUMBER:  1915369
DIBP REFERENCE(S):  BCC2016/2299879
MEMBER:R. Skaros
DATE:10 September 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) visas.

Statement made on 10 September 2020 at 2:48pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Subclass 186) – Federal Circuit Court remittal – whether applicant complicit in migration agent fraud – PIC4020 does not apply – tribunal unable to identify incorrect information – associated nomination not approved – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 375A
Migration Regulations 1994 (Cth), Schedule 2, cls 186.213, 186.233(3), PIC4020
CASES
Gill v Minister for Immigration and Border Protection [2016] FCAFC 142
Kaur v Minister for Immigration and Border Protection [2019] FCAFC 53
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35
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 Immigration on 24 July 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Subclass 186) visas under s.65 of the Migration Act 1958 (the Act).
The application for the visas was made on 8 July 2016. 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 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate found that Public Interest Criterion 4020 (PIC 4020) had not been met.
A copy of the delegate’s decision record was provided with the application for review.
The applicants appeared before the Tribunal, differently constituted, on 2 August 2018.
On 4 September 2018, the Tribunal, differently constituted, affirmed the decision under review on the basis that PIC 4020 had not been satisfied and on the basis that the nomination of the position in relation to the applicant had not been approved.
On 1 October 2018, the applicant applied for judicial review of the Tribunal’s decision. The matter was remitted by consent on the basis that the Tribunal fell into error by not considering Gill v Minister for Immigration and Border Protection [2016] FCAFC 142 as the applicant raised a claim of fraud by the agent, and the Tribunal did not make findings as to whether the applicant was complicit in the fraud or was indifferent as to whether the agent used unlawful or dishonest means to obtain a visa.
On 24 February 2020, the Tribunal received submissions from the applicant’s representative contending that the Subclass 186 visa application is invalidated by third party fraud. It was submitted that the applicant did not know that a Subclass 186 visa was lodged on her behalf, that she had never agreed or authorised the making of that application, that she did not authorise the migration agent Yi Sun to make the Subclass 186 visa application and…

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 Song (Migration)

Details

AGLC: Song (Migration) [2020] AATA 4014
Case: [2020] AATA 4014
Decision Date: 10 September 2020

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Ms. Song, against a decision of the Administrative Appeals Tribunal (AAT) which affirmed the refusal of her Subclass 186 Employer Nomination (Permanent) visa application. The core of the dispute revolved around allegations of fraud in the visa application process, with Ms. Song claiming she was an innocent victim of a migration agent's fraudulent conduct.

The legal issues before the court were whether the applicant's visa application was invalidated by the alleged fraudulent conduct of a third party, and consequently, whether the Tribunal had jurisdiction to review the decision. A further issue was whether the Tribunal erred in finding that the provisions of Public Interest Criterion 4020 (PIC 4020) were not engaged, given the Tribunal's inability to identify false or misleading information provided in relation to the visa application.

The court considered the principles established in High Court and Full Federal Court decisions, particularly *Kaur v Minister for Immigration and Border Protection*, regarding the invalidation of visa applications due to third-party fraud. These principles establish that an application may be invalidated by fraud, but this depends critically on the applicant's role. The applicant must prove, to a high standard, that they were neither complicit in the fraud nor indifferent to the means used by the agent. The Tribunal found that it could not identify the specific false or misleading information that would engage PIC 4020, and importantly, it was unable to identify that the applicant was complicit in or indifferent to any fraud.

The Tribunal affirmed the delegate's decision, finding that PIC 4020 was not engaged as it could not identify false or misleading information. The Tribunal also found that the associated nomination was not approved. The court, therefore, affirmed the decision under review.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Tribunal further found that PIC 4020 is not engaged in this case as the Tribunal was unable to identify the information referred to by the delegate as being false or misleading information that had been given in relation to the visa application. CONSIDERATION OF CLAIMS AND EVIDENCE In submissions to the Tribunal, the representative requests the Tribunal to find that the application for the Subclass 186 visa is invalid because of third party fraud and that the Tribunal does not have jurisdiction to review the decision on the basis that it is an invalid application. The representative referred to a number of authorities relevant to the issue of whether fraudulent conduct on the part of an agent invalidates an application for a visa. The Tribunal has had regard to the applicable legal principles in the relevant authorities as follows. Relevant legal principles relating to claims of fraud in migration matters The fraudulent conduct in this case is alleged to be the lodgement of the Employer Nomination (Subclass 186) visa application, including any information, declarations or documents provided as part of that application, which the applicant claims to have had no knowledge of nor authorised to be lodged on her behalf. The principles applicable to the determination of whether fraudulent conduct vitiates a visa application, which arose from the High Court’s decision in SZFDE[1] and four decisions of the Full Court of the Federal Court,[2] were set out in the judgment of the Full Court of the Federal Court in Kaur v Minister for Immigration and Border Protection[2019] FCAFC 53 (Kaur), which also involved claims by the applicant in that case of fraudulent conduct by a migration agent. [1] SZFDE v Minister for Immigration and Citizenship [2007] HCA 35.[2] Singh v Minister for Immigration and Border Protection [2016] FCAFC 141 (Singh); Gill v Minister for Immigration and Border Protection [2016] FCAFC 142 (Gill); Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213 (Maharjan) and SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146 (SZRUR). The principles, as set out at paragraph 56 in the judgement in Kaur, are:First, the Act does not constitute an exhaustive statement as to when an application for a visa is valid; it “leaves ... room for relevant fraudulent conduct on the parties of a migration agent or third party to invalidate an application” (Singh at [45]). A purported visa application prepared with the assistance of an agent may be invalidated by fraud in accordance with the principles discussed by the High Court in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 (Singh at [52]). Secondly, whether a visa application prepared by a migration agent which includes fraudulent information will be invalidated depends on the role of the applicant. “[I]t is critical to establish whether the visa applicant colluded in the fraud or was, as the Full Court put it in Gill, ‘indifferent as to whether the agent used unlawful or dishonest means to obtain a visa’” (Marharjan at [53], citing Gill at [50]). Thirdly, whether a purported visa application is valid is a “jurisdictional fact” that the Court must determine for itself (where the issues arises) (Marharjan at [35], [44], [122]). Fourthly, the applicant has the onus of proving that “she or he has been the (innocent) victim of such a fraud” (Marharjan at [78]). An applicant must satisfy the court to the requisite standard that she or he was “neither complicit in the fraud nor ‘indifferent’ to it, in the limited and particular sense explained in Gill and Singh”. “That is, as the Chief Justice observed in SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; 216 FCR 445 at [51], a heavy burden”.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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