Song (Migration)

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 that the applicant was not complicit in, reckless, or indifferent to the Subclass 186 visa application. It was submitted that the applicant did not give carte blanche to anyone to lodge any visa application for her and that she was under the belief that she qualified for the Subclass 188 visa and instructed that only a Subclass 188 visa application be made.
The applicants appeared before the presently constituted Tribunal on 5 August 2020 by telephone to give evidence and present arguments. The Tribunal was assisted by an interpreter in the English and Mandarin languages.
The applicants were represented in relation to the review by their registered migration agent. The representative attended the hearing.
At the hearing, the Tribunal discussed with the applicant the evidence before it, including information on the Department’s file, information on the Tribunal’s files and the oral evidence given at the hearing held on 2 August 2018. The applicant was given an opportunity to respond to the Tribunal’s concerns regarding her claims and evidence and an extension of time was granted, until 12 August 2020, for further submissions to be made.
At the hearing, the Tribunal informed the applicant of the non-disclosure certificate issued by the Department under s.375A. The Tribunal explained to the applicant that it was of the view that the certificate is valid as it appears to provide a valid public interest reason for the non-disclosure of the information, which relates to investigations by the Department of various entities and individuals suspected of being involved in setting up shelf companies to sponsor and/or nominate wealthy Chinese nationals for permanent visas. The representative agreed that the certificate, on its face, appears valid. In relation to the nature of the information covered by the certificate, the Tribunal informed the applicant that while the investigations conducted by the Department refer to various companies and individuals, there was no specific information about the company that nominated her (Australian YTHY Investment Management Pty Ltd) though there was a reference to YTHY International which has a similar name. The Tribunal also noted that the migration agent Yi Sun was noted as one of the agents used to lodge applications with the Department.
While the information suggests that migration agent Yi Sun was used to lodge non-genuine applications on behalf of various parties, there was no information about Yi Sun’s involvement in the lodgement of the Subclass 186 visa for the applicant or the associated nomination. The Tribunal accordingly formed the view that the information covered by the non-disclosure certificate is of limited assistance, and hence not relevant, to the issues which must be determined in the circumstances of this particular case.
On 12 August 2020, the Tribunal received submissions from the representative regarding the scope of the applicant’s authority for visa applications to be lodged on her behalf and the Tribunal’s jurisdiction to review the Subclass 186 visa refusal.
After careful consideration of the evidence before it, the Tribunal has concluded, for the following reasons, that the application for the Subclass 186 visa was validly made, that the Tribunal has jurisdiction to review the delegate’s decision and that the decision under review should be affirmed on the basis that the applicant does not satisfy cl.186.233 for the grant of the visa.
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”.
Whether a visa application is invalidated as a result of third-party fraud will be contingent on the conduct of the applicant and the nature of the agency relationship between the parties.
If the applicant is complicit in the fraud or ‘indifferent’ to it, in the sense of being indifferent to an agent acting unlawfully or dishonestly, as explained in Gill, the visa application will not be invalidated by the third party’s conduct.
In considering whether the Subclass 186 visa application made on behalf of the applicant was invalidated by fraud, the Tribunal has considered the evidence before it regarding the applicant’s relationship with the agency that she had engaged China, the scope of the authority given by the applicant in relation to the types of visas that could be lodged on her behalf, the applicant’s knowledge about whether another person in Australia would be involved with the visa application and the applicant’s conduct throughout the visa application process.
Information on the Department’s file
An application for an Employer Nomination (Subclass 186) visa was lodged with the Department on 8 July 2016. The application consisted of the visa application form which identified Ms Wenyu Song as the primary visa applicant and Mr Xinyu Tang and Qiuxuan Tang as secondary visa applicants. The form indicated that the applicant was seeking an exemption from the English requirement. It also indicated that the nominated occupation is ‘Chief Executive or Managing Director’ and that the applicant does not have a suitable skills assessment from the relevant assessing authority.
The visa application form included personal information about the applicants, including their dates of birth, passport information and contact details. The form also included information regarding the applicants’ education and employment history. It contained declarations in relation to the applicants’ health and character, none of which were of concern.
The visa application form included details of the transaction reference number (TRN) of the associated nomination. In relation to the employer nomination declarations in the form, the applicant declared that a related nomination had been lodged with the Department.
The visa application form indicates that a migration agent, Yi Sun from Intensive Immigration Firm (MARN 1068900), was authorised to act on the applicants’ behalf.
The Department’s file also indicates that scanned copies of the applicants’ Chinese passports were provided. No other supporting documents appear to have been provided in support of the visa application.
An acknowledgement of application letter dated 8 July 2016 was issued by the Department and emailed to Yi Sun at the email address provided in the visa application form.
A letter notifying the applicants of the grant of a bridging visa, dated 15 February 2017, was issued by the Department together with the bridging visa grant notices. The notices relevantly indicated that the applicants had been granted bridging A visas in connection with their Employer Nomination (Subclass 186) visa application. The notification letter, together with the bridging visa notices, was sent to Yi Sun by email.
Also included on the Department’s file is a notice of grant of a bridging B visa (multiple travel facility) in respect of the second named applicant, Mr Xinyu Tang, on 10 April 2017 for a period of three months. The notice indicated that the bridging visa was issued in association with the pending application for the Employer Nomination (Subclass 186) visa. The notice for the bridging B visa was sent to Yi Sun by email.
On 12 June 2017 the Department wrote the applicant inviting her to comment on adverse information received. The letter was sent by email to Yi Sun. A copy of the letter was also sent to the applicant by post to her address at Box Hill VIC, however, the letter was returned to the Department as undelivered mail on 3 July 2017.
The letter sets out the adverse information as follows:
The Department has conducted checks to confirm the information that you provided in your application. During this process we have received unfavourable information which does not support your application.
Inquiries made by the department indicate that the business you have been nominated by does not actively operate in a manner that would be reasonably expected of a business trading in Australia.
I have reached a preliminary finding that you have provided false or misleading information in support of your visa application as you have made claims about entering into employment with a company that does not actively operate.
In your EN186 Visa application, you stated that your nominated occupation was Chief Executive or Managing Director. You have declared in your application that the associated nomination Transaction Reference Number (TRN) is: EGOBM8XWT5.
In your EN-186 visa application, you were asked the following question:
“Agree to take up the position for at least two years?”
You have answered “Yes” to this question on your application form.
You have declared in your visa application that you will be working in the position of Chief Executive or Managing Director for your nominator AUSTRALIA YTHY INVESTMENT MANAGEMENT PTY LTD and receive a salary of $182,000.
It is a requirement for your EN-186 visa application, that you will undertake the employment referred to in the corresponding nomination application. The relevant regulation is provided below:
ENS Direct Entry
186.212
The position to which the application relates will provide to the applicant the employment referred to in the application for approval.
As the information before the department indicates the nominator was not in a position to provide you with the employment stated in the nomination application for approval, I have drawn an initial conclusion that the declaration in your application form stating that you agree to work in the nominated position for a minimum period of two years to be a false or misleading declaration to the department - as it is not possible to work in a position that is not available.
Additionally, the declaration on your application form that your nominated occupation for your nominator AUSTRALIA YTHY INVESTMENT MANAGEMENT PTY LTD and your annual salary is $182,000 appears to be a false or misleading declaration to the department.
As a result, I have drawn preliminary finding that your visa application may not meet
Regulation 186.212 as detailed above.
As this may have an adverse impact on your visa application, you are invited to provide comment on these findings before a decision is made on your visa application.
…….
As there is evidence suggesting that a person included in this application has provided, or caused to be provided, a bogus document or false or misleading information in relation to this visa application, the applicant(s) listed above may fail to satisfy PIC 4020(1), with the result that this visa application may be refused.
You may provide comment on the information that is considered to be false or misleading or the document that is considered to be bogus, and specify if you believe there are any 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, to justify the waiver of any or all of PIC 4020(1) and (2) to justify the granting of the visa.
On 24 July 2017, the delegate made a decision to refuse to grant the applicants the Employer Nomination (Subclass 186) visas. The notification of the decision, together with the decision record, were sent to Yi Sun by email.
The decision record indicates that the applicant had failed to provide a response to the adverse information. The delegate found that the nominated occupation was not available to the applicant at the time she made the application and that the declarations made in relation to the position and nominated salary and the agreement to take up the position for a minimum period of two years was false and misleading information in a material particular in relation to the visa application.
Information on the Tribunal’s file
An application for review was lodged with the Tribunal on 28 July 2017. The review application form, which was lodged online, indicated that the applicant had made the application for the review and that correspondence in relation to the review should be sent to the applicant. An address in Shanghai China was provided, as was a mobile number and an email address.
On 22 January 2018, the Tribunal received a request for access to documents by a migration agent, Mr Yida Xu from YD Solutions, whom the applicant had appointed as her representative and authorised recipient.
In his submissions to the Tribunal, Mr Xu stated that the applicant had an ENS, Subclass 186, visa refused on 24 July 2017 and that the VEVO check shows that the applicant still has a valid bridging visa, thus he assumes that a review of the decision to refuse the ENS application has been lodged with the Tribunal. It was submitted that the review application may have been lodged by the applicant’s previous migration agent Ms Yi Sun. It was submitted that this agent is extremely irresponsible as she had not informed the applicant about the appeal application and has disappeared.
Mr Xu submitted that the applicant knows nothing about her appeal application, including the case file number, and for this reason she would like to appoint him (Mr Xu) as her new representative to receive all future communications on her behalf.
Mr Xu requested access to documents and information regarding her ENS appeal, including the review application form, supporting documents and correspondence between the Tribunal and previous agent. Mr Xu also requested access to all documents and information regarding the appeal application of the ENS nomination (TRN EGOBM8XWT5), if possible, without the consent of the nominator (Australia YTHY Investment Management Pty Ltd), as the nominator had also disappeared.

On 6 February 2018, the Tribunal released a copy of its file in full to Mr Xu. In relation to the Department’s file, Mr Xu was informed that the request for the Department’s file had been transferred to the Department for action.
On 21 May 2018, the applicant’s matter was constituted to a member for consideration. The Tribunal, differently constituted, wrote to the applicant pursuant to s.359A of the Act inviting the applicant to comment on information which, subject to the applicant’s comment or response, may be the reason, or part of the reason for affirming the decision under review. The information related to the Tribunal’s decision to affirm the decision made by the Department refusing the nomination made by Australia YTHY Investment Management Pty Ltd in relation to the applicant. The Tribunal explained that the information was relevant to the requirement in cl.186.233, which requires that the nomination in relation to the applicant has been approved.
On 13 June 2018, the Tribunal received correspondence from Ms Yuan Yu from AIMS Migration indicating that she had been appointed to act as the representative and authorised recipient in relation to the application for review.
On 19 and 21 June 2018, the Tribunal received detailed submissions and accompanying documents, including a detailed statement from the applicant regarding her interactions with an agency in China, her travel to Australia and the visa application lodged on her behalf.
It was submitted that the applicants are victims of a migration scam and that they had not authorised migration agent Ms Yi Sun to lodge a nomination and related Subclass 186 visa application on their behalf. It was submitted that an appeal to the Tribunal of the nomination and related Subclass 186 visa refusal was lodged with the Tribunal without the knowledge of the applicant and that the agent is now non-reachable. Ms Yu submitted that they have been instructed by the applicant to file a complaint against Yi Sun with the Department.
It was submitted that the applicant and her family decided to migrate to Australia in 2013 and engaged Shanghai East Travel Service Co. Ltd (Shanghai Donglu) in China to provide them with advice on visa strategies and services suitable to their circumstances.
Ms Yu set out the applicant’s interaction with the various parties in a table and submitted that the circumstances of the applicant’s dealings with the agency in China were as follows:
·     On 28 December 2013, by the request of Shanghai Donglu, the applicant signed an agreement with Australia YTHY International Development Group Pty Ltd (AYIDG) for 188/888 visa services.
·     On 28 December 2013 and 9 January 2014, the applicant paid a total deposit of RMB 50,000 to AYIDG.
·     On 26 August 2015, the applicant paid RMB 1,000,000 to AYIDG as service fees for investment migration (188/888 visa application services).
·     On 21 December 2015, following the instruction of Shanghai Donglu, the applicant paid AUD 16,577 to an Australian company named Australia YTHY Recruiting Pty Ltd for legal and third-party fees.
·     On 15 January 2016, Shanghai Donglu emailed the applicant an employment agreement with the proposed salary $97,000 for a temporary work visa with Australia YTHY Investment Management Pty Ltd. The visa applicant was not requested to sign, nor did she sign, the employment agreement.
·     On 25 February 2016, Shanghai Donglu requested the applicant to sign a supplementary agreement with AYIDG, adding the services of applying for a Tourist 600 visa, Sponsored Work 457 and 186 visas, and associated bridging visas to the service agreement.
·     On instructions from Shanghai Donglu, the applicant and her family entered Australia on visitor visas in July 2016.
·     The applicant requested, on numerous occasions, to meet the migration agent in Australia to discuss their migration plans, but Shanghai Donglu did not provide the contact details of the agent. The applicant has never had any contact with migration agent Yi SUN (MARN: 1068900).
·     On 22 December 2016, upon the applicant’s request, Shanghai Donglu arranged for the applicant and AYIDG to sign a further supplementary agreement which stipulated the deadlines and refund policy for various applications, including 188/888 and 186 visa applications.
·     In January 2017 Shanghai Donglu instructed the applicant and her family to enter Australia and requested them to remain onshore until further instruction. The applicants entered Australia on 11 February 2017 as holders of Subclass 600 visas and remained onshore.
·     The applicant continued to contact Shanghai Donglu for information about their visa as their Subclass 600 visa was due to expire and they wished to enrol their daughter in school.
·     In March 2017 Shanghai Donglu sent the applicants their bridging visa grant letters. This was the first time that the applicant and her family came to know that a Subclass 186 visa was lodged since they arrived in Australia in July 2016.
·     In April 2017 the applicant’s spouse travelled to China and visited Shanghai Donglu’s office to request visa information in person, after which he was provided with a reference number.
·     The applicants were anxious about their visa application status and continued to request Shanghai Donglu to provide the onshore migration agent’s details so they could meet in person. Shanghai Donglu became non-cooperative and was completely un-contactable in September 2017.
·     After losing contact with Shanghai Donglu the applicants became suspicious. They requested family friends in China to visit Shanghai Donglu’s office after which they discovered that the company had moved office and staff were not contactable. The applicant and her family realised that they were involved in an organised migration scam.
·     In early 2018 the applicant engaged another registered migration agent for further advice. The applicants were shocked when they were advised that their Subclass 186 visa had been refused while they were in Australia and that a review of the visa refusal was lodged by the same agent (Yi Sun), who lodged their visa application without their consent.
·     The applicants are victims of third-party misconduct of providing false and misleading information to the Department without their knowledge.
In relation to the information in the visa application that was said to be false or misleading, as set out in delegate’s decision record, it was submitted that:
·     Shanghai Donglu provided the applicant with an employment agreement to view in January 2016, but the applicant was not requested to sign the agreement and has not signed any agreements with an Australian company.
·     The applicants did not have the contact details of Yi SUN (MARN: 1068900), nor did they give any migration agent the authorisation to lodge a Subclass 186 visa application on their behalf.
·     All applications, including the nomination application and the related Subclass186 visa application, and the AAT review applications for nomination and visa refusal decision were lodged by Yi Sun (MARN: 1068900) without the applicant’s authorisation or consent.
·     The applicants had no knowledge that the Subclass 186 visa application was lodged on their behalf at the time of the application.
·     The applicants had no knowledge of the nomination and related 186 visa application refusals at the time of decision.
·     The applicants had no knowledge that a review of the Subclass 186 visa refusal was lodged with the Tribunal at the time of the review application.
·     The information and documents provided with the application were forged and the information in the visa application was provided by Yi Sun without the applicant’s authority or knowledge.
·     Yi Sun has been reported to the Department of Immigration for her conduct.
Attached to the submissions, were copies of documents in Chinese, together with accredited NAATI translations. The Tribunal has had regard to each of these documents and has extracted the relevant paragraphs as follows.
·Residence Visa Application Commission Agreement between Australia YTHY International Development Group Pty Ltd (AYIDG) (referred to as Party A) and the applicant (referred to as Party B), dated 28 December 2013. The agreement sets out the service fees and payment methods in some detail. The agreement, under the heading, Party B shall co-operate, relevantly states:
II. Party B shall cooperate
Party B and her family members shall cooperate in the following matters in accordance with the requirements of the
Department of Immigration and Border Protection, Australia or related authorities in order to facilitate visa application:
1. Authorise Party A to act on her behalf in terms of the handling of necessary forms, translations, notarization/certification, business registration, asset valuation, and audit of financial statements necessary for the execution of the visa application and shall promptly pay the fees in accordance with the proof.
2. Meet at the appointed place within the prescribed time.
3.Party B shall do her best to cooperate in regard to the confirmation of the management documents required by Party A during the operation of the Australian company.
4. Party B shall bear her salaries and personal related taxes incurred during the operation of the company, and Party B shall cooperate with Party A in accordance with Party A's requirements to pay relevant salaries and taxes.
5. Party B shall cooperate with Party A to meet Australian individual assets requirement set by the Department of Immigration and Border Protection.
6. Party A will arrange 4 categories of visas for Party B: 600 visa, 457 visa, 188 visa and 888 visa, among which Party A will try to apply for 457 for Party B. If Party B's 457 visa is not approved, Party B should cooperate with Party A to continue to use 600 visa to complete the business operations in Australia in order to be able to apply for 188 visa and 888 visa.
7. Party B shall fulfil the stay requirements set by the Department of Immigration and Border Protection after obtaining the 188 visa.
8. If the 188 visa is not approved, Party A can arrange the application for permanent residency using the most convenient method (migration for business sponsored senior management) for Party B based on the status of Party B at that time (as a shareholder of the Australian company). Party B may not withdraw halfway.
9. If a visa is refused due to a visa officer's mistake, Party B shall cooperate with Party A in MRT appeal.
10. Party B shall pay the corresponding third-party fees in accordance with the current requirements of the Department of Immigration and Border Protection due to its annual changes of fees. The third-party fees provided now are for reference only.
3. If there is any change to one of the following circumstances, the service shall be deemed to have been fulfilled by Party A and Party A shall not refund the service fee and other expenses already paid by Party B:
1. Party B unilaterally suspend or withdraw her visa application.
2. The visa has not been approved because Party B or her family fails to meet the health and character requirements of the Department of Immigration and Border Protection, and the reasons are subject to the ones listed on the refusal letter of the Department of Immigration and Border Protection.
3. Party B fails to fully “cooperate” as stipulated in Article 2 of this Agreement.
4. Party B expresses her intention not to continue with visa application to the visa processing authority.
5. Party B changed her postal address or number as confirmed in this Agreement and failed to inform Party A in a timely manner, which directly or indirectly led to visa refusal.
4. Party A shall keep Party B’s visa application confidential. Without the consent of Party B, Party A shall not disclose the personal data provided by Party B and the fact of her applying for a visa to a third party and shall not display the visa information of Party B to a third party for the purpose of marketing.
5. If Party B's visa application is not approved, Party A shall only receive a fee of RMB 3,000 as the handling fee, and Party A agrees to return the service fees paid by Party B within 20 days of receipt of the refusal letter.
6. If there are unresolved issues, Party A and Party B may sign a supplementary agreement on the basis of consensus. The supplementary agreement and this agreement have the same legal effect. The supplementary agreement must be signed and sealed by both Party A and Party B before taking effect. Any supplementary agreement signed in the name of an individual or not in the name of Party A or any supplementary term not confirmed by the seal of Party A shall be irrelevant to this Agreement.
7. Except as provided in this Agreement, neither Party A nor Party B may arbitrarily terminate or modify this Agreement. If any dispute arises during the implementation of this agreement, they shall resolve the dispute through friendly negotiations. If the negotiation fails, they can apply to Shanghai Municipal Arbitration Commission for arbitration.
8. This Agreement shall become effective upon the signatures of both Party A and Party B from the signing date of this Agreement until the day Party B obtains a visa or receives a refusal letter.
9. This agreement is in duplicate, one copy for each of Party A and Party B and both copies have equal legal effect.
·Supplementary Agreement A between AYIDG and the applicant dated 25 February 2016, which provides:
Party A and Party B signed the "Australia Migration Project Entrustment Service Contract” in December 2013. Now after negotiation between Party A and Party B, Party B is willing to engage Party A in the application of 186 permanent visa and bridge visa, as well as the 188+888 and 600 visa, so as to ensure that Party B holds a bridging visa and can legally arrive in Australia to wait for the approval of 186 visa or 188 visa. Subject to the approval of one of the two visas between 186 permanent resident visa and 888 permanent resident visa shall prevail, the application for the other visa shall terminate. In order to actively execute this project, the two parties are hereby signing this Supplementary Agreement, and this Agreement shall be an effective part of the above-mentioned commission agreement for both parties to implement.
1. The provisions of Paragraph 6 of Article 2 of the original contract “Party A will arrange 4 categories of visas for Party B: 600 visa, 457 visa, 188 visa and 888 visa, among which Party A will try to apply for 457 for Party B. If Party B's 457 visa is not approved, Party B should cooperate with Party A to continue to use 600 visa to complete the business operations in Australia in order to be able to apply for 188 visa and 888 visa.” shall be changed to: “Party A will arrange 5 categories of visa applications: 600 visa, bridging visa, 186 visa, 188 visa, and 888 visas for Party B. Subject to the approval of one of the two visas between 186 permanent resident visa and 888 permanent resident visa, the application for the other visa shall terminate.
2. Before Party B's 186 visa or 188 visa is granted, Party A will process 600 visa, bridging visa, and her child(ren)'s overseas study application [the cost of overseas study shall be borne by Party A itself (translator’s note: could be a typo error in the original, as the context suggests the cost is Party B’s)], to ensure that Party B can legally work in Australia and the child(ren) may study as usual after the bridging visa is effective and before the 186 visa or 188 visa is approved.
The Supplementary Agreement A goes on to set out the fees payable in respect of the Subclass 186 visa application, which includes the nomination application fee of $540, visa application fees for the applicant and each member of her family, training fees, advertising costs and other costs.
·Supplementary Agreement B between Australia YTHY International Development Group Pty Ltd and the applicant dated 22 December 2016 entitled “Additional Terms” which provides:
Party A: AUSTRALIA YTHY INTERNATIONAL DEVELOPMENT GROUP PTY LTD
Party B: SONG Wenyu
After friendly negotiation between Party A and Party B regarding Party A's handling of Australian migration for Party B, the two parties have reached the following additional terms:
1) Both parties agree that the application for the 186 employer sponsored visa must be completed by 31 May 2018. If it cannot be completed by this date and Party B is not willing to continue to wait for the processing of 186 visa, Party A should immediately proceed to move 188 visa forward to 888 visa;
2) The 188 to 888 migration must be completed before 27 December 2019, otherwise Party B may choose to have an unconditional refund;
3) If the visa application from 188 to 888 is not approved, Party A will only charge a handling fee of RMB 3,000 (third-party fees which have already occurred will be non-refundable) and agree to return the service fees that Party B has paid within 20 days after the refusal letter is received.
The applicant also provided copies of the payment receipts, together with translations.
In a signed statement, dated 19 June 2018, the applicant provided details of her dealings with East Travel (Shanghai Donglu), to whom she paid large sums of money. The applicant stated that she has been scammed by engaging Shanghai Donglu to handle their immigration matters. In relation to the initial service agreement, signed on 28 December 2013 with AYIDG, the applicant stated that it was in relation to Subclass 188/888 visa applications. She stated that she was assured that the agency had a very high success rate and they were promised that, if they followed their procedure, they would get a permanent residence visa. She stated that, at the request of the agency, they paid $16,577 to another Australian company, YTHY Recruiting Pty Ltd on 21 December 2015 as legal fees for the Australian immigration lawyer to process their case.
The applicant stated that on 25 February 2016, they were requested by Shanghai Donglu to sign a supplementary agreement which added new visa types. She stated that in June of that year (2016) they travelled to Australia on visitor visas as arranged by Shanghai Donglu. They requested to meet the Australian immigration lawyer that they (Shanghai Donglu) had engaged, but they were turned down by Shanghai Donglu on the basis that the lawyer was too busy.
The applicant stated that upon realising that neither the original service agreement, or the supplementary agreement, mentioned the duration of the contract, they strongly requested that a supplementary agreement regarding the duration of the contract be signed with AYIDG which stipulated the deadline of the visa application and refund policy. The applicant stated that they travelled to Australia on 11 February 2017 as holders of Subclass 600 visas and waited for further instructions from Shanghai Donglu. The applicant stated that they were unable to enrol their child in school due to their visa status. She stated that they were becoming anxious as their visa was soon to expire and, after constant pressure, in March (2017), Shanghai Donglu sent them their bridging visa grant letters from which they came to know that the application submitted on their behalf was for a Subclass 186 visa.
The applicant stated that their requests to meet the immigration lawyer in Australia were not answered and her spouse had to travel to China in April 2017 to raise concern with Shanghai Donglu and enquire about the progress of their visa application, after which they were eventually provided with an application reference number. She stated that Shanghai Donglu continued to ignore their requests to meet the Australian lawyer handling their immigration matter and eventually the agency became unreachable. They became suspicious and requested a friend in China visit their office, after which they found out that the office had been vacated and they realised they had been scammed.

The applicant stated that it became more difficult for them to find out about their visa status and they had no choice but to engage another lawyer to assist them in checking their visa status using the application reference number, which was the only information they had at the time. The applicant stated that it was only in January (2018) that they found out their visa application had been rejected and was in the process of appeal. The applicant stated that they had still not had any contact with the immigration lawyer engaged by Shanghai Donglu and no relevant information has ever been given to them despite their efforts to communicate with the agency. They later found out that others had also been scammed by Shanghai Donglu.
In submissions to the Tribunal dated 25 July 2018 the applicant’s former representative, Ms Yu, provided submissions and documents, including evidence of the applicant’s qualifications and employment history. Also provided was an ASIC Current and Historical Company extract for the nominator Australia YTHY Investment Management Pty Ltd which indicates that the applicant was appointed as the Company Secretary on 1 August 2016 and that she held 30% of the shares in the company since 24 December 2015.
The representative also provided a copy of a decision made by the Office of the Migration Agents Registration Authority (OMARA) on 6 July 2018 cancelling Yi Sun’s registration as a migration agent for a period of five years. The decision record details complaints made by over 15 individuals, including the applicant, about Yi Sun’s conduct in handling their migration matters. The applicant’s complaint, as detailed, is that Yi Sun is negligent because she did not notify the applicant of the letter to comment on the adverse information sent by the Department and that she had not informed them of the refusal. It was noted that the applicant could not contact the agent and their office had been emptied. Copies of the service agreements were provided to OMARA. In her response to the applicant’s complaint, Yi Sun stated that the applicant had engaged Shanghai Donglu in China and that they were the applicant’s point of contact. Yi Sun stated that she had sent the natural justice letter and decision record via QQ messages to the agent in China.
Evidence given at the hearing on 2 August 2018
At the hearing before the previously constituted Tribunal, on 2 August 2018, the applicant indicated that the information in the visa application form, including personal particulars, qualifications and employment history was largely correct. She confirmed that she had signed an agreement for immigration services, as requested by the agency in China, Shanghai Donglu, and that she had paid a total of approximately CNY 1.05 million, which is approximately AU$ 200,000. The applicant gave evidence that when they were at the agency’s office, which was in the same building as the Australian consulate, there were a lot of other customers who were signing agreements.
The applicant gave evidence that all the information they had given Shanghai Donglu in support of the visa application was correct and that she had no idea about being sponsored by Australia YTHY Investment Management Pty Ltd. She stated that they were told that the visa was a Subclass 188 investment visa and that if she paid a certain amount of money they would assist her in setting up a company in Australia, register the company in her name in Australia and she could travel to Australia and run the company and apply for permanent residence after four years. The applicant confirmed that she had done some research about the Subclass 188 visa (business innovation and investment) and that it was just as described by the agency, a four year visa which would allow them to run a business and apply for permanent residence after four years.
The applicant gave evidence that she had no idea when the Subclass 186 visa was lodged and had never met the Australian migration agent that assisted with lodging their visa application. She gave evidence that before March 2017, when they received information about the bridging visa related to the Subclass 186 visa application, they had no idea that they were even granted a bridging visa.
When asked about the agreement signed with Shanghai Donglu for migration services which indicates that one of the visas to be applied for is the employer sponsored Subclass 186 visa, the applicant stated that other types of visas were added to the service agreement and they were told by the agency that because they (the applicants) had a very good educational backgrounds and employment experience they could apply for the Subclass 186 visa. The applicant then reiterated that they had no idea that the Subclass 186 visa application had already been lodged.
In post hearing submissions, the applicant’s former representative, Ms Yu, submitted, by reference to the judgement of Gill at [42], [45], [50] and [51], that given the applicant’s limited English language ability and accessibility to information, they relied heavily on the migration agency in China. It was submitted that the Subclass 188 visa application was one of the visas included in the service agreement and that the applicants had little understanding of the Australian migration system and had little influence to give general authority to the Chinese agency about which visa to apply for. It was submitted that the service contract indicated that the case would be handled by a lawyer and the applicant was misled into believing that the application would be handled with integrity and lawfully by a professional in Australia.
The representative noted that while the service contract was signed by an Australian entity, there is no evidence to show that it was eligible to provide immigration assistance. It was submitted that the applicant had provided correct information and genuine documents to the agency in Shanghai, but they had no control or influence over whether a fit and proper person would handle their case lawfully or honestly.
The representative further submitted that despite their efforts to communicate with the agent handling their matter in Australia, Shanghai Dongu never provided the contact details and the applicants had no idea, until some eight months after lodgement, that a visa application had been made. It was submitted that the applicant was in no position to be complicit in the fraudulent actions of the agent when the application was lodged.
In relation to the migration agent that lodged the visa application (Yi Sun), it was submitted that there was never an agreement signed with that agent and no fee directly paid to her. It was submitted that the applicant cannot be said to have been indifferent to the conduct of the agent as she had no information about who the migration agent was. In referring to the OMARA decision, the representative submitted that Yi Sun was found to have acted fraudulently by providing false and misleading information which had been contrived for the purposes of deceiving the Department and the applicant into believing that a valid application had been made. It was submitted that the applicants were victims of an organised scam.
Discussion of the evidence before the presently constituted Tribunal
At the hearing on 5 August 2020, the Tribunal discussed with the applicant the evidence before it regarding the Subclass 186 visa application, including the service agreements relating to the lodgement and processing of the Subclass 186 visa. The applicant emphatically insisted that they had no idea that a Subclass 186 visa had been lodged on 8 July 2016. She stated that the agency in China refused to provide them with any information about that visa application and that they had become aware of it at the last Tribunal hearing. The applicant stated that she had never signed any application form nor authorised anyone to lodge that visa application. The Tribunal acknowledged that she would not have signed the visa application form as it was lodged electronically.
The Tribunal noted that information on the Department’s file indicates that she and members of her family were granted bridging A visas on 15 February 2017 on the basis of an Employer Nomination (Residence) Subclass 186 visa application. When asked about her knowledge of the grant of the bridging A visas, the applicant stated that they contacted the agency in Shanghai about the type of visa they were holding but they have never had any contact with the migration agent Yi Sun.
The Tribunal put to the applicant that in her written statement to the Tribunal she had indicated that in March 2017 they became aware that they had been granted bridging A visas on the basis of the Subclass 186 visa application. In response, the applicant stated that while they were notified by the agency about the visa, they actually had no knowledge or information about the nature of the bridging A visa or the Subclass 186 visa or what those visas were.
The Tribunal noted that the applicant was in Australia at the time she became aware that she had been granted a bridging A visa on the basis of a Subclass 186 visa and asked the applicant if she had made any enquiries about the type or nature of those visas and what they permitted her to do in Australia. In response, the applicant stated that they did not know anyone in Australia except for the agency in Shanghai and they assumed that if the agency in Shanghai is lawful then the visas must be lawful. The Tribunal expressed that the applicant appears to have placed a lot of trust in the agency. The Tribunal noted that in the circumstances, where the applicant had later discovered that the visa application lodged on her behalf was not that which she was expecting i.e. a Subclass 186 visa and not a Subclass 188 visa as she had believed, that she would have undertaken some investigation or enquires about the type or nature of the visa that the agency had arranged to be lodged on her behalf. In response to this concern, the applicant stated that as she had explained in her previous statement, she tried to make enquiries but the agency in Shanghai did not respond to them. The Tribunal expressed to the applicant that if the agency was so non-responsive to her enquiries, then surely this would have alerted her that something was amiss and would have raised some suspicion in her mind about the conduct of the agency.
The Tribunal noted that if the agency had consistently failed to respond to her queries or provide information as she has claimed, then it was incumbent on the applicant, who was in Australia at the time, to make some effort or independent enquiries to ascertain the nature of the visa that had been applied for on her behalf. When this concern was put to the applicant, she stated that they did become suspicious and that is why her spouse travelled to China in April 2017 to speak to the agency about the application. She gave evidence that the agency had assured them they would assist them with applying for a visa after they arrived in Australia on the visitor visa (Subclass 600) and that they had qualified for the permanent residence investment visa. The applicant stated that they only ever had contact with the agency in Shanghai and had no contact with anyone in Australia.
In relation to the application for review of the decision to refuse to grant the Subclass 186 visa, the applicant stated that they had no idea how to apply for review or the process. In her response to the Tribunal’s queries about how she came to know that a review application had been lodged, the applicant gave evidence that she sought advice from another agent in Australia, Mr Xu, who made enquiries online and through other channels about what happened to their visa application, after which he informed them, in January 2018, that the visa application had been refused and that a review application had been lodged.
The Tribunal discussed with the applicant the service agreements she signed with AYIDG, which were arranged by Shanghai Donglu in China for the provision of immigration services. The Tribunal put to the applicant that the agreements, which were in Chinese and had been signed by her, indicate that she had engaged an agency/company to apply for various visas on her behalf and that she was aware, or should have been aware, through entering into those agreements that an employer sponsored Subclass 186 visa was one of the visa types that could be applied for on her behalf.
The Tribunal also discussed with the applicant the clauses in the agreement and information in her statement, and in the former representative’s submissions (Ms Yu), which indicate that she was aware that someone in Australia, namely an migration lawyer or agent, would be involved in the preparation and lodgement of the visa application on her behalf. In response, the applicant stated that there was no specific explanation written in the agreement to illustrate the nature of the Subclass 186 visa. She stated that while they were informed that the Subclass 186 visa is a permanent visa, they were not told that it was an employer nomination visa. She stated that even though they knew what the Subclass 188 visa was, they were told by the agency that they also qualified for that type of visa. She stated that they had no idea and just relied on what the agency had told them.
The Tribunal discussed with the applicant the terms and conditions of the service agreements, which the Tribunal noted were quite broad in their scope of the types of visas that could be applied for on her behalf and also included detailed information about the nature of the visa applications and what they would involve. The Tribunal noted that the agreement signed in 2013 indicated that if the Subclass 188 visa was not approved then they would “arrange the application for permanent residency using the most convenient method (migration for business sponsored senior management)” and that lodgement of that visa would depend on the applicant’s status at that time as a shareholder of the Australian company. It also noted that the agreement provided that “if a visa application is refused due to a visa officer mistake”, the applicant “shall co-operate with [AYIDG] in MRT appeal”. The Tribunal also noted that the agreement refers to third party fees being payable and that the applicant would have to pay those fees. The agreement also noted that the applicant would not be entitled to a refund if she suspended or withdrew her visa application.
The applicant stated that she was told that they had to sign this agreement before Shanghai Donglu would assist them to apply for the visas. The applicant stated that she did not understand the content of the agreement and just signed it because that was what they were asked to do. She stated that it was company procedure and they followed it. The Tribunal explained to the applicant that the service agreement was in the Chinese language and that by signing that agreement she had agreed to its terms and conditions as set out.
The Tribunal then discussed with the applicant the first supplementary agreement that she had signed on 25 February 2016, which was a few months prior to the lodgement of the Subclass 186 visa application, which stated that after negotiation between the parties, the applicant is willing to engage the company in the application for a 186 permanent visa and bridging visa, in addition to other visa applications, so as to ensure that the applicant holds a bridging visa and can legally arrive in Australia to wait for the approval of a 186 visa or 188 visa.
In response, the applicant stated that she does not understand and has no knowledge of that. She was informed that she qualified for the Subclass 188 visa and was of the understanding that this was the visa that would be granted to them. The Tribunal again noted that the supplementary agreement that she had signed clearly indicated that a Subclass 186 visa is one of the visas for which an application would be made on her behalf. The applicant stated that she did not understand the nature of that visa and that if they were given sufficient information then they would not be in the situation that they find themselves.
The Tribunal put to the applicant that she would have been aware of the types of visas that could be applied for on her behalf, as indicated by the service agreements, and asked the applicant what efforts, if any, she had made to inform herself about those visa types or the differences between them. In response, the applicant stated that they tried but could not do any further research on the different types of visas. The Tribunal considers that the applicant could have made efforts to inform herself of the nature of the visa that had been applied for on her behalf. As explained to the applicant at the hearing, she had been residing in Australia since February 2017 and could have approached a Mandarin speaking agent in metropolitan Melbourne to ask about the different visa types noted in the service agreement, especially regarding the difference between the employer nomination Subclass 186 visa and Subclass 188 investor visa.
In response to the above concerns, the applicant stated that it was common sense that when a person is told by their agency that they are lawful that they would not think about approaching other agencies. She stated that they were assured by the agency that a proper and lawful visa had been applied for. The Tribunal expressed to the applicant that in light of her earlier evidence that the agency in China was difficult to contact, unresponsive to their queries and refused to give them the contact details of the agent in Australia, then it would make more sense for a person in those circumstances to make further enquiries to get some reassurance about what the agency was lodging on their behalf. In response, the applicant stated that the agency is well known and had assisted other people to obtain residency in Australia, so they trusted them and did not doubt their credibility or professionalism and did not consider it necessary to seek a second opinion.
The Tribunal noted that the supplementary agreement, which included the lodgement of the Subclass 186 visa, provided details about the employer nomination application including the filing fees, the training costs and advertising costs for which the applicant was liable to pay. The Tribunal noted that if the applicant had any interest in the nature or the type of visa application that was being applied for on her behalf, there was sufficient information in the service agreement which indicated that an employer nomination and Subclass 186 visa would be applied for on her behalf and that she was liable for all the related costs. The Tribunal further noted that the second supplementary agreement, which she signed on 22 December 2016, which was about four months after the visa application was lodged, suggests that she was well aware at that time that an employer nomination Subclass 186 visa had been lodged on her behalf and was pending before the Department. The Tribunal noted that in her written statement it was stated that she had requested that the agreement stipulate a timeframe for the processing of the Subclass 186 visa application, and that if it was not so completed by 31 May 2018, and she was not willing to continue to wait, then AYIDG would proceed to lodge a Subclass 188 visa.
In response, the applicant stated that she had no clue about the Subclass 186 application and always assumed it was a Subclass 188 visa. The Tribunal did not consider the applicant’s response to be credible, as put to the applicant at the hearing, the agreement, which clearly stated that a “186 employer sponsored visa” was processing was written in her own language. The Tribunal further noted that she had relied on those agreements in her complaint to OMARA about Yi Sun’s conduct in handling the Subclass 186 visa application. It also noted that she had indicated in her written statement that the second supplementary agreement was an amendment that she had requested be made as the previous service agreements had not specified a timeframe for the processing of the various visa applications. In response, the applicant again stated that they always believed it was a Subclass 188 visa.

The Tribunal noted that the agreements she had signed were quite detailed as to the services that would be provided and included lodgement of an employer nomination, a Subclass 186 visa and even the purchase of shares on her behalf in an Australian company. The Tribunal noted that there is evidence that those services were subsequently provided, including the purchase of 30% of the shares in an Australian registered company as evidenced by the ASIC statement provided by her previous representative Ms Yu. The applicant again stated that she had no clue about the criteria for the Subclass 186 visa and they only found out from their former agent who represented them before the Tribunal at the last hearing.
The Tribunal put to the applicant that the evidence before it indicates that she had entered into a service agreement with a company, through the agency in Shanghai, which clearly stipulated that a number of visas would be lodged on her behalf. The Tribunal expressed its observation that the applicant appears to have completely and unquestionably trusted the agency and agreed for any number of visa types to be applied for on her behalf without any checks or verification. The Tribunal put to the applicant that she was on notice that a number of visa types could have been applied for on her behalf and that she had paid little attention and had turned a blind eye to the types of the visas that she had agreed could be applied for on her behalf. The Tribunal put to the applicant that it appears she was focused on being granted a residence visa and appears to have made limited efforts to query or verify how that visa would be obtained.
In response, the applicant stated that she had little knowledge or information and that ‘party A’ are the professionals and she trusted them. She was told by the agency that they had to sign the agreement and they did. She stated that she was just following company process when she signed the agreement, but she had no idea about the type of visa or what was even in the application. The applicant stated that she had never had contact or communication with the agent that lodged the visa application. The Tribunal put to the applicant that she was nevertheless aware that an agent in Australia would be involved with the lodgement of the visa application. In response, the applicant stated that the agency in Shanghai informed them that they (Shanghai Donglu) would be in charge of the application and that they (the applicants) did have to worry about anything.
The Tribunal also discussed with the applicant the complaint lodged with OMARA in relation to migration agent Yi Sun, which also included the provision of the service agreements to OMARA. The applicant confirmed that her former migration agent assisted her with lodging that complaint and that she has never had any contact with Yi Sun.
In discussing the issue of PIC 4020, the Tribunal explained to the applicant that there is no suggestion that a bogus document was provided with the visa application. In relation to whether there was false or misleading information in relation to the visa application, the Tribunal noted that while it could not identify the specific information or declarations referred to in the natural justice letter issued by the Department on 12 June 2017, there was other information in the visa application form that could potentially be considered false or misleading, such as the provision of the TRN for the associated nomination which implied that there was a genuine position with an Australian business that was available to her and that she would be taking up the position of Chief Executive or Managing Director with the nominator.
In response, the applicant stated that they had no clue about the Subclass 186 visa as they are not legal professionals. She stated that this was the first time they have ever heard about it and they have no idea. The Tribunal put to the applicant that she may have been aware that there was some employment arrangement because according to her former agent’s submissions, Ms Yu, she had been given a copy of an employment contract. The applicant denied that she had ever been given an employment contract. She insisted that she had never seen any employment agreement. The Tribunal drew the applicant’s attention to the submissions made by Ms Yuan Yu in which she stated that on 15 January 2016, Shanghai Donglu emailed her an employment agreement with a proposed salary of $97,000 for a temporary work visa with the nominator, Australia YTHY Investment Management Pty Ltd, and that she had not signed it. The applicant stated that they had no idea about the position or the salary. The Tribunal expressed its doubt that Ms Yu would have contrived this submission given it was quite detailed and consistent with information in the service agreements.
The Tribunal asked the applicant whether there are any compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justify the granting of the visa. In response, the applicant stated that they did not know about the application and that the case has had a negative impact on them. She stated that they have been deceived and while it is true that they did not pay attention, they are honest people who want to clear their names. The applicant stated that they would like to live and work in Australia.
The Tribunal also discussed with the applicant the requirement in cl.186.233, which requires that the nomination in relation to the applicant be approved, the applicant stated that she understood that issue which had been raised with her by the previous Tribunal member. She did not make any further comment in relation to that issue.
In relation to the applicant’s claim that she was not aware of the application for review and had not authorised the lodgement of that application, the Tribunal raised with the applicant and the representative the issue of whether the Tribunal has jurisdiction to review the application in light of the applicant’s claim that she had never authorised, nor had any knowledge of, the review application. The Tribunal noted that the service agreement with AYIDG in December 2013 includes a review application to the MRT, which, post 1 July 2015, is the Migration Review Division of the AAT and that the applicant may have authorised an application for review upon signing the agreement.
In response, the applicant stated that it was a standard contract which had to be signed by every client. She stated that it was not very specific to them. The Tribunal also noted that the supplementary agreements were not so general and were in fact highly specific to their circumstances. The Tribunal drew the applicant’s attention to the supplementary agreement signed in December 2016 which provides that if the employer nomination Subclass 186 visa, which was pending at that time, was not processed by a specific date, a different course of action (i.e. lodgement of the Subclass 188) would then be taken.
The applicant then stated that when they signed the agreement, they had no idea what the MRT was about. She stated that the agency did not fulfil their duty with the contract and that they acted fraudulently. She stated that while she may have signed the contract, she did not fully understand what was included in that agreement. The applicant stated that she trusted a registered migration agency and authorised them to do things only on the condition that it was legal. She stated that they did not authorise them to make up information or act unlawfully. The Tribunal expressed to the applicant that she appears to have entered into an agreement and unquestionably trusted the agency to lodge any number of visa types on her behalf and that there was very limited evidence before the Tribunal which establishes that she had given specific instructions to the agency about the type of visa application that could be lodged on her behalf. In response, the applicant stated that they just lacked specific knowledge and they trusted this registered company.
Post hearing submissions
By reference to the service agreements, it was submitted that while the applicant may have given authority to AYIGD to make various applications, including a Subclass 186 visa application and an appeal to the MRT, as it then was, the terms of the agreements did not permit Yi Sun to act for the applicant or lodge the Subclass 186 visa without the applicant’s consent. It was submitted that the visa application, including the declarations made in the form, were made by Yi Sun without the applicant’s knowledge.
It was submitted that the applicant, who had only engaged with AYIGD, always understood that the application that would be lodged was the Subclass 188 visa. It was submitted that it was only as a result of her ongoing engagement, and some time after the review had been made, that the applicant found out about the Subclass 186 visa application having been made, refused and then reviewed by the Tribunal. It was submitted that the applicant subsequently found out that she had been the victim of an immigration scam. It was further submitted that the applicant was neither reckless, wilfully blind or indifferent, and she had only expected that AYIDG would conduct itself lawfully and not act illegally in relation to her visa application. It was submitted that on this basis, the application is invalid as it was infected with third party fraud.
In relation to the issue of the Tribunal’s jurisdiction, submissions were made that on one view, the Tribunal does have jurisdiction as clause 9 of the contract, which states that the applicant “shall cooperate with [AYIDG] in an MRT appeal”, contemplates that a review may be lodged. It was submitted that the alternative view, is that the Tribunal does not have jurisdiction because the applicant was not aware of the Subclass 186 visa application, refusal or the application for review and therefore could not have consented to the application for review. The representative favoured the first view on the basis that the scope of clause 9 authorised the lodgement of a review application in respect of any of the visa applications covered by the contract, including the Supplementary Agreement.
Having regard to the relevant legal principles relating to fraud claims, as set out above, the Tribunal has carefully considered the evidence before it as follows.
Considerations
The issues that arise in this review are: Firstly, whether the application for the Employer Nomination (Subclass 186) visa, which was lodged with the Department on 8 July 2016, was invalidated by third party fraud. Secondly, whether the Tribunal has jurisdiction to review the Department’s decision. Thirdly, if the visa application was validly made and the Tribunal has jurisdiction in this review, whether PIC 4020 is engaged in this case. Fourthly, if PIC 4020 is not engaged, whether the applicant is the subject of an approved nomination as required by cl. 186.233.
Was the Subclass 186 visa application invalidated by fraud?
The applicant’s claim, as understood by the Tribunal, is that she had not authorised the lodgement of the Subclass 186 visa application and that she had only understood that a Subclass 188 would be lodged on her behalf. It was also submitted that, notwithstanding that the service agreements provided for the lodgement of a Subclass 186 visa application, the agreement was with AYIDG and not with migration agent Yi Sun. In considering these claims, the Tribunal has had regard to the evidence before it as follows.
The applicant’s claim and insistence that she had no clue that a Subclass 186 visa was lodged on her behalf and that she had only ever intended to lodge a Subclass 188 visa is simply not supported by the evidence before the Tribunal.

100. The Tribunal considers that there is a substantial amount of evidence before it to indicate that the applicant had entered into an agreement for the provision of immigration services which included the lodgement of an Employer Nomination Subclass 186 visa.
101. The Tribunal is prepared to accept that the applicant may not have been aware that on 8 July 2016 the Subclass 186 visa had actually been lodged by migration agent Yi Sun on her behalf. The Tribunal also accepts that the applicant had no contact with Yi Sun either before or during the processing of the visa application. However, these factors, in the Tribunal’s view, do not invalidate the visa application. This is because the evidence before the Tribunal indicates that the applicant voluntarily entered into an agreement with AYIDG, which was facilitated by Shanghai Donglu in China, for the purpose of securing an Australian residence visa for herself and her family.
102. The relationship between AYIDG and migration agent Yi Sun is not entirely clear, though it appears from the information contained in the OMARA decision record that Ms Yi Sun acted as the migration agent for the applicants on instructions from Shanghai Donglu, whom the applicant and Ms Yi Sun had indicated was the applicant’s point of contact. Ms Yi Sun had indicated, as noted in the OMARA decision, that correspondence in relation to the applicant’s matter was sent to a person at Shanghai Donglu via QQ messages.
103. The Tribunal also considers that the applicant understood that a third-party in Australia would be handling her migration matters. While the applicant may not have known the identity or contact information of the person handling her visa application, it is evident from her written statement to the Tribunal where she stated that she had paid “AUD16,577 to another Australian entity named Australia YTHY Recruiting Pty Ltd on 21 December 2015 as legal fees for the Australian immigration lawyer to process our case” that she was well aware that a person in Australia, whom she understood to be a lawyer, would be handling her migration applications.
104. The Tribunal acknowledges that Ms Yi Sun was not a lawyer, however, she was at the time of the visa application a registered migration agent and it is apparent on the evidence before the Tribunal that Ms Yi Sun had acted on instructions from Shanghai Donglu, being the agency that facilitated the negotiations and agreements between AYIDG and the applicant for the provision of migration services. The Tribunal considers that by entering into the agreement with AYIDG for the provision of migration services, which included the payment of legal fees to a third party, the applicant had indirectly authorised the lodgement of the visa applications which were made by migration agent Yi Sun. Alternatively, the Tribunal considers that the scope of the authority given to AYIDG to lodge visa applications on the applicant’s behalf included authorising or instructing a third party, in this case Ms Yi Sun, to lodge visa applications on behalf of the applicant as specified in the various agreements.
105. The Tribunal has also considered the applicant’s claim that she had understood that a Subclass 188 visa would be lodged on her behalf and that she was not aware that a Subclass 186 visa application had been lodged, refused and a review application lodged.
106. The evidence before the Tribunal suggests that the applicant was aware, or should have been aware, since signing the first supplementary agreement on 25 February 2016, which was four months before lodgement, that a “Subclass 186 permanent visa”, as stated in the agreement, is one of the types of visas that could be applied for on her behalf.
107. The Tribunal further notes that the second supplementary agreement, which was signed by the applicant on 22 December 2016, which was some five months after the lodgement of Subclass 186 visa, indicates that a “Subclass 186 employer sponsored visa” was processing. In her written statement to the Tribunal, the applicant stated that she had instigated the terms of the second supplementary agreement upon realising that there was no duration mentioned in the contract. The Tribunal considers that the terms of the second supplementary agreement, which indicated that a Subclass 188 would be lodged for the applicant if the Subclass 186 employer sponsored visa is not completed 31 May 2018 and the applicant is not willing to wait for the processing of the 186 visa, is evidence that the applicant was aware, at least since December 2016, that a Subclass 186 visa and not a Subclass 188 visa had been lodged on her behalf. The Tribunal considers that if the applicant had understood that only a Subclass 188 investment visa would be lodged on her behalf as she has claimed, then she would have been on notice since December 2016, that the application lodged on her behalf and processing at that time was the employer sponsored Subclass 186 and not a Subclass 188 investment visa.
108. The terms of the second supplementary agreement, which was instigated by the applicant, indicate that the applicant was willing to wait, at least until 31 May 2018 for the Subclass 186 employer sponsored visa to be processed, and that if this did not occur and she was not willing to wait any further, that AYIDG would proceed with lodging the Subclass 188 visa. There is limited evidence before the Tribunal which indicates that the applicant took any action or instructed that only a Subclass 188 investor visa be lodged on her behalf. The applicant was aware, or should have been aware, that any number of visa types could be lodged, and she appears to have acquiesced without concern or question to whichever type of visa Shanghai Donglu had arranged to have lodged on her behalf. The evidence before the Tribunal suggests that the applicant’s main concern was with the timeframe within which she would be granted a visa and not with the type of visa that was being lodged on her behalf.
109. The evidence before the Tribunal also indicates that the applicant was again put on notice, in March 2017, which was some eight months after the Subclass 186 visa application was lodged and before the refusal of that application, that a Subclass 186 visa application was pending and that she and members of her family had been granted bridging A visas on that basis. In her written statement to the Tribunal, the applicant claimed that this was the first time she became aware that of the Subclass 186 visa application. When this was discussed with the applicant at the hearing, the applicant gave evidence that while she was notified by the agency about the visa, she did not have any actual knowledge or information about the nature of the bridging visa or the Subclass 186 visa or what those visas were.
110. The fact that the applicant did not comprehend, or lacked information about, the nature of the visas does not assist the applicant in this case. As noted at the hearing, the applicant was in Australia at the time she became aware that she had been granted a bridging A visa on the basis of a Subclass 186 visa. Despite claiming to have understood that a Subclass 188 would be lodged on her behalf, the applicant appears to have made limited effort to check or enquire about the type or nature of the employer nomination Subclass 186 visa that had been applied for on her behalf.
111. The Tribunal has considered the applicant’s response that she did not know anyone in Australia except for the agency in Shanghai and that she had assumed that the agency in Shanghai had acted lawfully. As expressed at the hearing, the applicant appears to have trusted the agency without question or enquiry, notwithstanding the fact that the visa lodged on her behalf was the Subclass 186 visa and not the Subclass 188 as she had understood would be lodged. The applicant appears to have made limited efforts to check or enquire about what was being lodged on her behalf.
112. The Tribunal has considered the applicant’s claim that she had attempted to make enquiries with the agency in Shanghai, but they would not respond to her. The Tribunal considers that this does little to assists the applicant in establishing that she was entirely innocent in the circumstances. The Tribunal notes that the applicant was in Australia since lodgement of the Subclass 186 visa application and could have sought advice from a Mandarin speaking agent in Australia about the nature or the type of visa that had been applied for on her behalf. The applicant appears to have only sought advice from a migration agent in Australia in late 2017 after the agency in Shanghai became completely unresponsive and had disappeared.

113. The applicant paid a large sum of money to Shanghai Donglu for visa services and she expected that they would secure residence visas for her and her family given the agency’s good reputation and claim of having a high success rate. However, the applicant appears to have turned a blind eye to the agency’s conduct despite irregularities, including, as indicated by the applicant, the agency’s refusal to provide the contact details of the person handling the applicant’s migration matters in Australia and the agency’s non-responsiveness to the applicant’s correspondence and queries.
114. The Tribunal considers that the applicant was on notice, at least since December 2016, and later in March 2017, that the agency had arranged for the lodgement of an employer sponsored Subclass 186 visa application and not a Subclass 188 investor visa. There is limited evidence before the Tribunal which demonstrates that the applicant had given the agency instructions to only lodge a Subclass 188 investor visa on her behalf. On the contrary, the evidence before the Tribunal suggests that the applicant had consented to the lodgement of the Subclass 186 visa and, as indicated by the second supplementary agreement signed by her on 22 December 2016, she was willing to wait until 31 May 2018 for the ‘186 employer sponsored’ permanent visa to be processed, and that if this did not so transpire, the agency would arrange for the Subclass 188 visa application to be made.
115. The applicant claims to have had no knowledge or information about the employer sponsored Subclass 186 visa, yet she appears to have made limited efforts to seek independent advice or enquire about the nature of that visa.
116. The applicant stated that she expected the agent to have acted professionally and lawfully in relation to her migration matters, yet she chose to wilfully ignore the fact that the agency had arranged for an employer sponsored Subclass 186 visa to be lodged on her behalf and not the Subclass 188 visa that she believed would be lodged. The applicant was willing to await the outcome of the employer sponsored Subclass 186 visa application until 31 May 2018 and made limited efforts to verify its integrity or her eligibility for that type of visa despite being in Australia and having access to other Mandarin speaking immigration professionals. The Tribunal considers that the applicant simply chose to turn a blind eye to the lawfulness or otherwise of the agency’s conduct, in the hope that the professional fees paid by her to the agency would result in the grant of a visa.
117. Having carefully considered all the evidence before it, the Tribunal is satisfied that the applicant authorised the lodgement of the Subclass 186 visa application. The Tribunal is also satisfied that the scope of the authority included lodgement of the visa application by migration agent Yi Sun in Australia. The Tribunal considers that the applicant was recklessly indifferent, or wilfully blind, as to whether or not the agent, being AYIDG as facilitated by Shanghai Donglu or Yi Sun who acted on instructions from Shanghai Donglu, had acted unlawfully or dishonestly to achieve the desired outcome of securing a visa for the applicant and her family. The applicant has not established to the satisfaction of the Tribunal that she is an innocent victim of fraud.
118. The Tribunal considers that the conduct of Shanghai Donglu, or migration agent Yi Sun acting on instructions from Shanghai Donglu, did not constitute a fraud on the applicant. The Tribunal is satisfied that the application for the Subclass 186 visa has not been invalidated by third party fraud.
119. Given the above, the Tribunal finds that the Subclass 186 visa application was validly made pursuant to s.46 of the Act, and as such, the delegate had the power to make a decision to refuse the application.
Was the application for review application validly made and does the Tribunal have jurisdiction to conduct the review?
120. The review application form indicates that the applicant was the person who had applied for the review.
121. In the course of the review, the applicant claimed that she was not aware that an application for review of the decision to refuse the Subclass 186 visas had even been lodged with the Tribunal. This raised the issue of whether the Tribunal has jurisdiction to conduct a review in this case.

Section 347(2) of the Act sets out who may apply to the Tribunal for review of a decision under Part 5, that is, who has ‘standing’. For decisions to refuse an Employer Nomination (Subclass 186) visa in the migration zone, which is a Part 5-reviewable decision under s. 338(2), the application for review may only be made by the non-citizen who was the subject of the decision: s.347(2)(a).

123. While the review applicant need not complete the form themselves, there must be the requisite intention by the person with ‘standing’ to apply. In SZMME v MIAC [2009] FMCA 323, the Court held there was no valid application for review where the applicant claimed his agent made an application without his knowledge and denied the signature on the application was his. Given the applicant’s claim that she had no knowledge of the review, the Tribunal put to the applicant that it may not have jurisdiction to conduct a review on the basis that the review application was not validly made.
124. In post hearing submissions, the representative acknowledged that on one view, the Tribunal may find that it has no jurisdiction given the applicant’s evidence that she was not aware that a Subclass 186 visa application had been lodged, refused and a review of the decision sought. Submissions were also made for the alternative view that the Tribunal does have jurisdiction given the terms of clause 9 in the agreement signed by the applicant with AYIDG in 2013 for immigration services, which contemplates that an appeal to the MRT would be made in the event a visa application is refused. Submission were made for the Tribunal to find that it has jurisdiction to review the decision on this basis.
125. The Tribunal notes that while the applicant had indicated at the hearing that she had no knowledge of the review application, she appears to have nevertheless engaged with the review process. Mr Xu, the agent who first contacted the Tribunal in relation to the review, sought information about the review application which he suspected had been lodged by the applicant’s former migration agent Yi Sun. While Mr Xu’s submissions indicated that the applicant was not aware of the review application, there was no indication at that time that the applicant had not consented to the lodgement and/or the processing of the review application. The applicant also engaged the services of Ms Yuan who made extensive submissions to the Tribunal in relation to the issues that arose in the review. The applicant also appeared before the Tribunal, differently constituted, and before the present Tribunal to give evidence and present arguments in support of the review application. At no time did the applicant indicate that she did not authorise or had not consented to the review process which had been instigated by the lodgement of the review application on her behalf.
126. Having regard to all of the evidence before it, including the terms of the service agreement which includes the lodgement of an appeal in the event of a visa refusal and the applicant’s conduct and engagement during the review process, the Tribunal is satisfied that the applicant, being the person who has standing to apply for review, wanted the decision to refuse the visa application to be reviewed by the Tribunal and had consented to the review application being made.
127. The Tribunal notes that if it was to accept the applicant’s initial contention that she had no knowledge of nor authorised the review application, then the Tribunal’s jurisdiction would not be engaged in this case. In the circumstances, the delegate’s decision in respect of the Subclass 186 visa application would stand. This would not put the applicant in any better position in her quest to have the delegate’s decision set aside due to invalidity.
Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in a material particular?
128. PIC 4020 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).
129. There is no suggestion that a bogus document has been given, or caused to be given, in relation to the Subclass 186 visa application. In fact, the only documents that appear to have been provided in support of that application are the applicants’ passports.
130. As to whether there is evidence of information that is false or misleading in a material particular that had been given in relation to the visa application, the Tribunal notes that it was unable to identify the information referred to by the delegate in the natural justice letter and the decision record. While the visa application itself may be considered misleading in that it presupposes that the applicant is applying for a genuine position that has been so nominated by business operating in Australia, the Tribunal considers that the wording of PIC 4020(1) refers to information that is given in relation to the application for the visa. In other words, it must relate to information that is given either in the visa application form or in the supporting evidence.
131. The delegate noted that the applicant had provided false or misleading information about entering into employment with a company that does not actively operate and that in her EN-186 visa application, she answered “Yes” to the question “Agree to take up the position for at least two years?”. It was also noted that the applicant declared in the the visa application that she will be working in the position of Chief Executive or Managing Director for the nominator Australia YTHY Investment Management Pty Ltd and receive a salary of $182,000.
132. The Tribunal reviewed the visa application form but could not find any reference to the question regarding the applicant agreeing to take up the position for two years or where she had declared that she will be working as a Chief Executive or Managing Director for Australia YTHY Investment Management Pty Ltd for a salary of $182,000.
133. On 30 July 2020, the Tribunal wrote to the Department enquiring about the information identified in the natural justice letter and decision record as being false or misleading as the Tribunal had been unable to identify the record of responses in the visa application. In response, the Department provide a copy of an employment contract between the applicant and the nominator Australia YTHY Investment Management Pty Ltd which indicated that the position was for two years and the salary is for $182,000. The Tribunal sought to confirm whether the employment contract was provided with the visa application or the nomination application, to which the Department responded in writing confirming that it was provided with the nomination application.
134. While the terms of the employment contract may contain false or misleading information about there being a genuine employment arrangement between the applicant and Australia YTHY Investment Management Pty Ltd, the Tribunal notes that the employment contract was provided in relation to the nomination application and did not form part of the visa application. While the visa application form provides details of a nomination TRN, there was no mention in the visa application form or any of the supporting documents of who the nominator was or that the applicant had entered into an employment agreement with them. The TRN for the nomination was required to be provided to enable the applicant to make a valid visa application as was indicated on the online application form.
135. While the visa application form indicates that the nominated occupation is “Chief Executive or Managing Director” and that the applicant is seeking an exemption from the English and Skills assessment requirements, these responses are not of themselves false or misleading as they relate to facts about which information has been provided as part of the nomination.
136. It appears that the false or misleading information about the employment relationship, being for a position that does not genuinely exist, has been provided as part of the nomination application and not the visa application. PIC 4020(1) makes the visa applicant responsible for information in the visa application, while the information in the nomination was presumably given, or caused to be given, by the nominator, who is a separate legal entity from the visa applicant in this case. While the phrase ‘given in relation to’ has a broad meaning and encompasses any information given as part of an application, the Tribunal does not consider that the information encompasses that which was given as part of a related nomination application. This is because PIC 4020(1) specifically refers to information that is ‘given’ in relation to ‘the visa application’ or a previously held visa.
137. The application for the visa consisted of the visa application form and the applicants’ passports. The applicant confirmed that the personal and other information in the visa application form was correct and that there is no information before the Tribunal to suggest that any of the health or character declarations were false or misleading.
138. Given the above, the Tribunal considers that there is no evidence before it that information that is false or misleading in a material particular had been given or caused to be given in relation to the visa application or a visa that the applicant held in the 12 months before the application was made. It follows that PIC 4020 is not engaged in this case and the applicant satisfies PIC 4020(1).
Approved nomination
139. Clause 186.233(3) requires that the nomination of the position has been approved.
140. Information before the Tribunal indicates that the nomination in relation to the applicant was refused on the basis that the delegate was not satisfied that the nominator was lawfully and actively operating a business in Australia. The applicant was put on notice using the procedure in s.359A that the associated nomination in relation to her had been refused. This issue was also discussed with the applicant at the hearing. As indicated above, the applicant maintained that she was not aware of any nomination or related visa application that had been lodged on her behalf.
141. It is not in dispute that the associated nomination has not been approved. The Tribunal therefore finds that the requirements of cl.186.233 have not been satisfied and has decided to affirm the decision under review on this basis.
142. The secondary applicants applied for their visas on the basis of being members of the family unit of the first named applicant. As the first named applicant does not meet a requirement for the visa, it follows that the Tribunal must also affirm the decision in respect of the secondary applicants.
DECISION
143. The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) visas.
R. Skaros
Senior Member

[2020] AATA 4014

10 September 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Jurisdiction

Judicial Review

Procedural Fairness

Statutory Construction

Standing

Natural Justice