Song (Migration)

[2018] AATA 3905

Song (Migration) [2018] AATA 3905 (4 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Wenyu Song
Mr Xinyu Tang
Ms Qiuxuan Tang

CASE NUMBER:  1716475

HOME AFFAIRS REFERENCE(S):           BCC2016/2299879

MEMBER:John Cipolla

DATE:4 September 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 04 September 2018 at 9:43am

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 Employer Nomination Scheme – position of Chief Executive Officer or Managing Director – nomination refused – false and misleading information – adverse information about the nominating person – victim of a migration scam – application lodged without the applicant’s knowledge – business operating lawfully and actively – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 65, 375

Migration Regulations 1994, Schedule 2 cl 186.213, 186.233; rr 1.13A, 1.13B; Public Interest Criterion 4020

CASES

Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Brown v Citizen’s Life Insurance Co Ltd (1904) 2 SR (NSW) 202
Gill v Minister for Immigration and Border Protection [2016} FCAFC 142
Kaur v MIBP [2017] FCAFC 184
Lloyd (Pauper) Appellant v Grace [1912] AC 716
Lysaght Bros & Co Ltd v Falk (1905) CLR 443
Plaintiff M64/2015 v MIBP [2015] HCA 50
Singh v MIBP [2014] FCCA 1816
Singh v MIBP [2015] FCCA 2776
Sran v MIBP [2013] FCCA 37
Trivedi v MIBP [2014] FCAFC 42
Vyas v MIAC [2012] FMCA 92

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 24 July 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 8 July 2016. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Chief Executive or Managing Director.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.213 as the delegate determined that the applicant had provided false and misleading information in the application for the visa in breach of Public Interest Criterion 4020(1) of Schedule 2 to the Regulations because the applicant declared in the visa application that the sponsoring business Australia YTHY Investment Management Pty Ltd would be able to provide her with employment as a Chief Executive Officer or Managing Director on a salary of $182,000.00. Evidence before the Department indicated that the sponsoring business was not in a position to provide this employment to the applicant as it was not lawfully and actively operating.

6. The applicant lodged an application for review with the Tribunal on 28 July 2017.

7. On 6 June 2018 the Tribunal wrote to the applicant inviting the applicant to comment on information that the Tribunal considered could be the reason, or part of the reason, for affirming the decisions under review. The Tribunal in its letter noted that on 8 July 2016 the first named applicant had lodged an application for a Subclass 186 visa that is the subject of this review noting her husband and child as secondary visa applicants. The letter noted that on 9 June 2017, the nomination lodged by Australia YTHY Investment Management Pty Ltd, being the nomination for the purposes of the visa application, was refused by the Department of Immigration. The Tribunal noted that on 27 April 2018, the Tribunal had dismissed the application lodged by Australia YTHY Investment Management Pty Ltd.  The Tribunal noted that on 15 May 2018, the Tribunal confirmed its dismissal of the application lodged by Australia YTHY Investment Management Pty Ltd and as a result, the decision under review was taken to be affirmed.  The letter noted that the nomination relied on to satisfy cl.186.233 must be one which was made at the time of the visa application and therefore it was not possible to rely on another nomination.

8. The Tribunal received a response to this letter on 20 June 2018 provided by the applicant’s legal representative. The letter noted that the applicant did not knowingly lodge an application for an employer nomination visa and was the victim of a migration scam.  The letter noted that on 8 July 2016 a migration agent Ms Yi Sun lodged a Subclass 186 visa application on behalf of the applicant and her husband and daughter without the applicant’s authorisation. The submission noted that as a result of the Departmental refusal the applicant was the subject of a three-year exclusion period, which precluded her from making any further visa applications. The submission notes that the applicant had no knowledge of the application being lodged on her behalf, that she never signed an employment agreement with the nominating company in Australia nor did she authorise any migration agent to lodge a Subclass 186 visa application on her behalf. The submission notes that the misleading information provided to the Department was provided by the former migration agent Ms Sun without the applicant’s knowledge.

9. The submission makes reference to a timeline of events. This timeline indicates that on 28 December 2013 the applicant attended the Shanghai East Travel Service and signed an agreement for service and fees with the nominating business. This document indicates that the applicant was signing an agreement for a Subclass 188 /888 visa. On 28 December 2013 and 9 January 2014 the applicant paid a total deposit of RMB 50,000 to the nominating business Australia YTHY International Development Pty Ltd.  On 26 August 2015 the applicant paid a further RMB 100,000 to Australia YTHY International Development Pty Ltd for what she believed to be an investment migration visa subclass188/888.  On 21 December 2015 following the direction of Shanghai East Travel Service 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, the applicant received an email from Shanghai East Travel Service with an employment agreement citing a proposed salary of AU$97,000 for a temporary work visa with Australia YTHY International Development Pty Ltd. The applicant was not requested to sign the employment agreement nor did she sign the agreement. On 25 February 2016 Shanghai East Travel Service requested the applicant to sign a supplementary agreement with Australia YTHY International Development Pty Ltd adding additional services including applying for a Subclass 600 Tourist visa, a Subclass 457 and 186 visa and an associated Bridging Visa. Shanghai East Travel Service then requested the applicant and her family to enter Australia on visitor visas in July 2016.

10. During the applicant’s visit to Australia in July 2016 she was requested a number of times to meet the onshore migration agent to discuss their migration plans however prior to her arrival in Australia the applicant was not provided with contact details for an on shore migration agency. On 22 December 2016 at the applicant’s request, Shanghai East Travel Service organised for the applicant and Australia YTHY International Development Pty Ltd to sign a further supplementary agreement which stipulated deadlines and a refund policy for various applications including the Subclass 188, Subclass 888 and Subclass 186 visa applications. On 17 January 2017 Shanghai East Travel Service instructed the applicant and her family to enter Australia and requested them to remain onshore awaiting further instruction. The applicant and her family entered Australia on 11 February 2017 as holders of Subclass 600 visitor visas and have remained predominantly onshore in Australia awaiting further instruction from Shanghai East Travel Service.

11. Without knowledge of the fact that their Subclass 600 visa was due to expire when they were in Australia, the applicant and her husband enrolled their daughter in a local school.  In March 2017 Shanghai East Travel Service sent the applicant’s letters from the Department indicating they had been granted Bridging visas. It was at this point that the applicant came to learn that applications for Subclass 186 visas had been lodged on her behalf when she was inside Australia in July 2016.

12. In April 2017 the applicant’s husband and daughter flew back to China and visited Shanghai East Travel Service to request further information from them. The Shanghai East Travel Service was not cooperative and was not contactable after September 2017.

13. Without knowledge of her visa status, in early 2018, the applicant engaged another Migration Agent and was shocked to learn that an application lodged on their behalf for a Subclass 186 visa had been refused whilst inside Australia and that the same migration agent, Ms Yi Sun had lodged review applications to the Tribunal without the knowledge of the applicant.

14. The submission concludes that the applicant and her family had been the victims of an organised visa scam. Further to this that any information and documents provided to the Minister were forged without the applicants consent. The migration agent Ms Yi Sun lodged applications and provided false and misleading information and documents in online applications without the authority or knowledge of the applicant. The applicant’s current migration agent has instructed the Tribunal that this migration scam and unethical practice of this migration agent have been reported to the Department.

15. The applicant also provided a detailed statement for the Tribunal about the series of events pertaining to the prospective migration to Australia which has been duly considered by the Tribunal.

16. At the outset of the review hearing the Tribunal went into detail about the merits review process. The Tribunal made reference to the Departmental decision record and the basis for the delegate’s refusal which has been discussed above. The Tribunal noted that based on the evidence before it the nomination lodged by Australia YTHY Investment Management Pty Ltd had been refused by the Department of Immigration in a decision dated 9 June 2017. The Tribunal noted that on 27 April 2018 it had dismissed the application for merits review lodged by Australia YTHY Investment Management Pty Ltd. The Tribunal noted on the basis of this evidence the applicant was not able to meet the requirements of cl 186.233(3) of the Migration Regulations. The Tribunal noted that the Departmental delegate had refused the visa application on the basis of the applicant not meeting the requirements of cl.186.213 as the delegate determined that the applicant had provided false and misleading information in the application for the Subclass 186 visa in breach of Public Interest Criterion 4020(1) of Schedule 2 to the Regulations. The applicant advised that she was contesting this finding by the delegate that she had provided false and misleading information to the Department in her Subclass 186 visa application.

17. The applicant gave her name and date of birth.  The applicant advised that she was born in China. The Tribunal asked the applicant about her education history. The applicant advised that she completed high school studies in China in 1996 and that after completing her studies she went on to university. The applicant advised that during her high school study she learnt the Japanese language and that she undertook a Bachelor of Economics in Japan, a degree of 4 years duration. The applicant stated that the tuition was in Japanese and that she spoke fluent Japanese and that she had spent 8 years in Japan in total. The applicant further advised that she completed a Masters in Economics in Japan.

18. The Tribunal asked the applicant what work she undertook upon returning to China and whether she applied her economic studies to her employment. The applicant stated that she worked for a Japanese company in China based in Shanghai. The applicant advised that the name of the company was Panasonic and that she worked for this company for 10 years. The applicant stated that she worked as an assistant to the General Manager and that she was involved in human resources.

19. The Tribunal made reference to the application form for the visa that is the subject of this review. The Tribunal noted that the applicant in that form provided her name and date of birth. She further advised that her current passport was issued to her on 8 June 2011 and was valid until 7 June 2021 and had been issued in Shanghai. The Tribunal asked the applicant where she was born and she advised in Sichuan province. The applicant advised the name and date of birth of her spouse and daughter and advised that she was married on 31 May 2004. The Tribunal made reference to the address in the visa application form and the applicant confirmed that this address was correct at that point in time. She also confirmed that her mobile phone number provided with the application was also correct.

20. The Tribunal asked the applicant about the engagement of a migration agent to assist her with the application for the visa. The Tribunal noted that the visa application form made reference to a migration agent called Yi Sun working for Intensive Immigration Firm based in Queen Street Melbourne. The applicant stated that she had no idea about the migration agent.

21. The Tribunal noted the applicant’s employment history provided in the application for the visa and asked the applicant whether it was an accurate reflection of her employment history or not and the applicant stated that it was partly accurate. The Tribunal went through each of the respective positions of employment to confirm the accuracy of the employment history detailed in the visa application form and the applicant confirmed that the details were correct.

22. The Tribunal made reference to a document provided by the applicant to the Tribunal at review titled Residence Visa Application Commission Agreement dated 28 December 2013.  The Tribunal noted that this agreement made reference to the payment of RMB50,000 at the time of signing the agreement a further amount of RMB1,000,000.00 to be paid after the sponsor company was reviewed and 30% of shares were confirmed, a further fee of RMB250,000 to be paid after the nomination letter from the state government or Department of Immigration and Border Protection was received and a service fee of RMB200,000 to be paid at the time of the permanent residence application. The Tribunal asked the applicant whether this money had been paid as per the agreement. The applicant stated that the migration agency that she engaged with in Shanghai told her to enter into this agreement. The Tribunal asked the applicant whether she paid money to the migration agency in Shanghai and she advised that she paid an amount of RMB 1,000,005.00 the equivalent of AUD $200,000.00. The Tribunal asked for the location of this migration agency in Shanghai and the applicant advised it was located at 19 West Road and was in the same building as the Australian Consulate.

23. The Tribunal asked the applicant what she did to check the provenance of this business before handing over such a large amount of money. The applicant stated that she went to the agency, that the agency placed a lot of advertisements in newspapers with testimonials from previous customers. She advised the staff members that she interacted with were professional and provided evidence of their success rate in obtaining migration outcomes to Australia. They noted that the Australian consulate was located just below the company’s office and the applicant stated that she formed the view that the company was a professional outfit.

24. The Tribunal asked the applicant whether she had lost AUD$200,000.00. The applicant advised that she had lost this money and that there was no redress available to her in China and no prospect of compensation.

25. The Tribunal noted that based on its earlier questioning the information provided by the applicant in the visa application was largely correct and the Tribunal asked the applicant whether she provided this information to the migration agent in Shanghai, and the applicant confirmed that she did.

26. The Tribunal noted that the application for the visa that is the subject of this review was lodged on 8 July 2016. The Tribunal noted that the applicant stated that she was intending on working for a business in Australia, Australia YTHY International Development Group Pty Ltd in the capacity of Chief Executive Officer or Managing Director. The Tribunal asked the applicant whether this was her expectation. The applicant stated that she had no idea about the type of application that was lodged.

27. The Tribunal asked the applicant what her understanding was about the visa type that she was applying for when she paid AUD$200,000.00 in Shanghai. The applicant advised that she was told by the migration agent in Shanghai that she was applying for a Subclass 188 visa. She advised that the migration agent told her that they would help her to register a company in her name in Australia and then she would travel to Australia and run the company and that after 4 years she would be able to obtain permanent residence. The Tribunal asked the applicant whether she made any checks of the company on the Internet and she advised that she did.

28. The Tribunal asked the applicant what she learned about the Subclass 188 visa. The applicant advised that she was told that it enabled you to establish a company in Australia, then run it for 4 years and then make an application for permanent residence and that she was further advised that this was a very successful pathway for obtaining permanent residence.

29. The Tribunal asked the applicant whether she had any idea about the sponsoring company Australia YTHY International Development Group Pty Ltd and she advised that she had no idea about this company.

30. The Tribunal noted that the applicant was in Australia at the time the visa application was lodged on 8 July 2016. The Tribunal noted that the applicant arrived in Australia on 29 June 2016 and departed Australia on 26 July 2016. The Tribunal asked the applicant what provenance checks she undertook whilst she was in Australia to determine the legitimacy of the visa that she was applying for. The applicant stated that she did not know when the application was lodged or who the lawyer in Australia was. She advised that the agency in Shanghai arranged for her and her family to be in Australia. The applicant stated that she was told that they could meet with a lawyer in Australia when they arrived but had no opportunity to do this. The Tribunal asked the applicant whether she had a lawyer or a migration agent representing her interests in Australia as well is the agency in Shanghai. The applicant stated it was just the Shanghai agency acting for her.

31. The Tribunal made reference to the applicant’s history of visits to Australia. The Tribunal noted that the applicant visited from 29 June 2016 to 26 July 2016. The Tribunal noted that this coincided with the lodgement of the visa application that is the subject of this review. The Tribunal noted that the applicant was again in Australia from 11 February 2017 until 24 January 2018 and the Tribunal asked the applicant what she was doing in Australia at that time. The applicant stated that she was taking care of her daughter who was studying in Australia and that she was living in rental accommodation in Melbourne. She advised that her husband was also in Australia during this period and that he opened up a shop in the Melbourne suburb of Malvern.  She advised that it was a Japanese restaurant. She advised that her husband bought the restaurant at a cost of more than $100,000. The Tribunal asked the applicant why her husband would invest in Australia prior to the grant of permanent residence. The applicant stated that in 2017 her husband returned to China to try to contact the Shanghai agency to find out what was going on with the visa application. The applicant’s husband met with the head of the company and they advised the applicant’s husband that the visa that they had been granted allowed them to purchase a business in Australia and to work in Australia. The applicant’s husband then returned to Australia and found a business that he was happy to invest in.

1. The Tribunal asked the applicant what her plans were. The applicant stated that she thought that she had engaged the Shanghai agency to apply for a Subclass 188 visa. The applicant stated that her plans were currently dealing with the visa application that is the subject of merits review and that they had given no real thought to anything beyond that. The applicant stated her predominant concern was the education of her young daughter at this point in time.

2. The Tribunal divulged to the applicant the existence of the Section 375A certificate on the Tribunal file. The Tribunal noted that it had formed the view that the certificate was valid and the Tribunal advised that it was prepared to give the applicant the gist of the information covered by the certificate and enable her to comment on it. The Tribunal noted that the information pertained to a Departmental investigation around a number of companies that have been established in Australia as a vehicle to nominate Chinese nationals for prospective permanent residence and that the companies were not actively and lawfully operating. The applicant was invited to comment on this.

3. The applicant made reference to the statement that she provided to the Tribunal at review. The Tribunal advised the applicant that it had considered the information provided in the statement. The applicant advised that she never intended to provide incorrect information to the Department of Immigration. The applicant stated that she and her husband provided personal information to the agency in Shanghai which was reflected in the visa application form. The applicant stated that she was the victim of fraud. The applicant stated she did not even know that she had been issued with a bridging visa pertaining to the refusal of the Subclass 186 visa in March 2017. The applicant stated that she trusted the agency in Shanghai believing it was a professional organisation. The applicant stated that she had no idea about the nominating business in Australia, that she had never been given a copy of the visa application lodged by this agency and that she had never seen a copy of the residence visa application commission agreement at folio 73 on the Tribunal file.

4. The applicant advised that she and her husband travelled to China to meet with the Shanghai migration agency but the offices were empty and it was at that point that the applicant became aware that she had been the victim of fraud. The applicant made reference to her extensive education and employment background and stated that it was not necessary for her to engage a company to help with the application for permanent residence because of her own skills but they seem to be a legitimate company that she trusted.

5. The Tribunal made reference to a document the applicant provided to the Tribunal at review titled the Residence Visa Application Commission Agreement which indicated that the visa that was being applied for comprised of 4 categories of visas, namely a Subclass 600 visa, a Subclass 457 visa, a Subclass 188 visa and a Subclass 888 visa. The applicant stated that she did not know an application for a Subclass 186 visa had been lodged and believed that she was applying for a Subclass 188 visa which would enable her to purchase and run a company in Australia and then after 4 years make an application for permanent residence. The hearing concluded.

6. The Tribunal received a post hearing submission dated 25 July 2018. The submission notes that the primary objective of seeking merits review was to challenge the Departmental finding with regard to the application of PIC4020. The submission notes that the applicant engaged a migration agent in China to assist with the visa application. The submission notes that internet censorship in China is extensive and that the Chinese government keeps tight control on the internet. The submission notes that without access to an open and accessible Internet the visa applicant relied heavily on the migration agent in China to provide Australian visa information. Submission notes that this was compounded by the applicant’s poor knowledge of English. The submission notes that the Shanghai East travel service engaged by the applicant was sourced through an advertisement in a reputable local newspaper. Submission notes that this agency was located in a building in Shanghai 3 levels above the Australian Consulate general. Submission notes that during the consultation with the migration agent the applicant was shown the offices of the Australian Consulate general and the applicant formed the view that she was dealing with a reputable company.  The applicant was shown a number of service contracts and visa approval letters for these applicants who had successfully migrated to Australia through the services of this agency.

7. The submission makes reference to the case of Gill v Minister for Immigration and Border Protection [2016} FCAFC 142. The submission notes that this case made reference to an appellant who did not speak good English and had limited knowledge of the Australian legal and migration system and who had retained a registered migration agent to assist him in obtaining a visa. The case also made reference to the fact that there was no finding by the primary judge “that the appellant’s indifference as to how his agent carried out his retainer to assist the appellant in obtaining a visa extended so far as to countenance or authorise the agent in engaging in fraud or dishonesty”.  The submission notes that the applicant had limited understanding of the Australian legal and migration system and limited ability to distinguish between the different visa categories noted in the Commission Agreement.  The submission notes that all documents provided to the Department were obtained and passed on by the Chinese agency in Shanghai. The submission notes that there had never been any direct contact between the applicant and the agent. The submission notes that “providing all relevant and genuine information and documents to the Chinese agency with their general authority to apply for an Australian visa does not mean that the visa applicants had control or influence over whether a fit person would handle the case lawfully or honestly”.  The submission claims that no form of general authority was given to the agent in relation to the lodgement of the visa application. The submission notes that the agent fabricated claims in order to deceive both the applicant and the Department. The submission notes that the migration agent’s registration authority found that the agent had acted fraudulently and as a consequence the applicant “should not bear the consequences of the agent’s fraudulent actions. As the victim of an organised visa scam, the only remedy for the visa applicant is to have the fraudulently affected result set aside”.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant meets the requirements of cl.186.233.  Further to this whether the applicant meets the requirements of cl.186.213(1) namely Public Interest Criterion 4020(1).

   Nomination of a position

9. Clause 186.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream. The position must be one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

10. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made the nomination

    ·the nomination has been approved and has not been subsequently withdrawn

    ·there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of r.1.13A and r.1.13B); or it is reasonable to disregard any such information

    ·the position is still available to the applicant, and

    ·the visa application was made no more than six months after the nomination of the position was approved.

11. On 9 June 2017, the nomination lodged by Australia YTHY Investment Management Pty Ltd, being the nomination for the purposes of the visa application, was refused by the Department of Immigration. On 15 May 2018, the Tribunal dismissed the application lodged by Australia YTHY Investment Management Pty Ltd for merits review and as a result, the decision under review was taken to be affirmed.

12. Therefore, cl.186.233 is unable to be met as the nomination application by Australia YTHY Investment Management Pty Ltd has not been approved.

    Other criteria

13. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.186.213(1) for the grant of the visa. Broadly speaking, this requires that:

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

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

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

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

14. The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.

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

15. The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and the term ‘bogus document’ is defined in s.5(1) of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.

16. The requirement in PIC 4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant: PIC 4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.

17. While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42.

18. The evidence before the Tribunal indicates that the applicant engaged an agent in Shanghai whom she instructed to pursue an application for permanent residence.  The evidence indicates that the applicant paid a substantial amount of money to this agent to apply for a visa and provided personal details to the agent for the purpose of the application. The evidence indicates that the applicant paid AUD$200,000.00 for the visa application.  The evidence of the applicant, when questioned by the Tribunal about her understanding of what visa she was applying for, was that she was applying for a Subclass 188 visa.  The applicant advised at hearing that it was her understanding that this visa would enable her to have a company in Australia, registered in her name and that she would travel to Australia to run the company and after 4 years of doing this she would be granted permanent residence.  The applicant claimed to have no knowledge of the Subclass 186 visa being applied for based on her working for the nominating company in Australia, Australia YTHY Investment Management Pty Ltd.

19. The evidence before the Tribunal indicates that the applicant made the application for the visa on 8 July 2016. The evidence before the Tribunal indicates that the applicant was in Australia at the time that the visa application was lodged, having arrived on 29 June 2016 and departing 26 July 2016. When asked what provenance checks she had made of the nominating business, Australia YTHY Investment Management Pty Ltd, the applicant advised that she did not know when the visa application was lodged nor did she know who the lawyer was in Australia.  The applicant claimed that the agency in Shanghai had advised her that she could meet with a lawyer in Australia but that there was no opportunity afforded for her to do this. The applicant’s evidence indicates she did not engage in such provenance checks of the Australian business.

20. The pre-hearing submission referred to above notes that on 21 December 2015, following instruction from the Shanghai East Travel Service the applicant paid AUD $16,577 to Australia YTHY Development Group Pty Ltd “as service fees for investment migration”.  Further to this the submission notes that on 15 January 2016, the applicant received an email from Shanghai East Travel Service with an employment agreement citing a proposed salary of AUD$97,000 for a temporary work visa with Australia YTHY Investment Management Pty Ltd.  This indicates that the applicant was cognisant of the fact that a prospective employment arrangement with an Australian business, Australia YTHY Development Group Pty Ltd, also referred to as Australia YTHY Development Group Pty Ltd had been entered into despite the fact that the applicant was not been requested to sign an agreement.  

21. The evidence clearly indicates that the applicant paid money to Australia YTHY International Development Group for investment migration. The submission notes that on 25 February 2016 the Shanghai East Travel Service requested the applicant to sign a supplementary agreement with Australia YTHY International Development Group Pty Ltd adding additional services which included applying for a Subclass 600 Tourist visa, a Subclass 457 and 186 visa and an associated Bridging visa.  Shanghai East Travel Service then requested the applicant and her family to enter Australia on visitor visas in July 2016. This communication to the applicant would have alerted her to the fact that the agency in Shanghai that she had engaged with and paid a significant amount of money to, in order to effect a migration outcome to Australia were advising her of additional visas services that included Subclass 600, 457, and 186 visas.  The communication also indicates that the applicant had paid money to an Australian company for what she believed to be investment migration.  The Tribunal finds the applicant had enough information before her to make enquiries whilst in Australia about the existence of the company Australia YTHY International Development Group and to ensure that in the event it was a company she was investing in, the company was lawfully and actively operating.  The evidence indicates that this company was offering the applicant a temporary employment contract yet the applicant did nothing by way of probity checks of this company whilst in Australia to satisfy her that it could provide her with employment.  The applicant’s failure to do this was to her peril, and the Tribunal finds that the large amount of money she paid for a prospective migration outcome was significant and warranted probity checks which the applicant failed to undertake.

22. The applicant’s representative in submissions at review notes that internet censorship in China is strictly controlled by the government but there would have been nothing to preclude the applicant undertaking probity checks onshore in Australia and using the internet to do this.  The evidence indicates that the applicant’s husband purchased a business in Malvern Victoria and this would have required engaging in probity checks to ensure that the business was a sound investment.  The Tribunal is of the view that if the applicant and her husband were able to navigate their way around the purchase of a business in a foreign country they no doubt would have been able to engage in probity checks on the ground in Australia pertaining to the migration services that they had paid for to facilitate their prospective migration to Australia.

23. The Tribunal accordingly finds based on the evidence before it that the applicant did knowingly provide false and misleading information to the Department in support of a Subclass 186 visa application.  The Tribunal makes this finding on the basis of the following factors.  The applicant paid AUD $200,000 to the Shanghai East Travel Service to obtain a permanent migration outcome for herself and her family.  This d is a significant amount of money and given the applicant’s education background and skillset she would have not been constrained in undertaking probity checks to ensure that her $200,000.00 investment would yield the desired results for her.  The payment of AUD$16,577 by the applicant for so called ‘legal and third party fees’ on 21 December 2015 and the employment agreement that the applicant was e-mailed by the Shanghai East Travel Service on 15 January 2016 containing an agreement to work with Australia YTHY International Development Pty Ltd at a proposed salary of AUD$97,000 under a temporary work visa would have provided the applicant with sufficient information about the type of visa application she was making.  Further to this on 25 February 2016 the applicant was sent and asked to sign a supplementary agreement with Australia YTHY International Development Pty Ltd adding the services of additional visa applications noting Subclasses 600, 457 and 186.  This communication despite the fact it was not signed by the applicant would have alerted her to the fact that a number of prospective visa applications could be lodged on her behalf including a Subclass 186 visa application.

24. For the requirements in cl.4020(1) and (2) to be engaged, it is not necessary to show knowing complicity by the visa applicant in the fraud. This applies both to the provision of bogus documents, and information that is false or misleading in a material particular.

25. Where false or misleading information or a bogus document is given by an agent without the knowledge of the applicant, a question arises as to whether or not PIC 4020 is engaged. However, the weight of authority now makes it clear that the words ‘given or caused to be given’ do not import a mental element.[1] It is neither necessary for an applicant to be aware that false information has been given by the agent, nor that the applicant gave instructions to provide false information to the agent in order to be responsible for false or misleading information being given.[2]

    [1] Vyas v MIAC [2012] FMCA 92 (Driver FM, 17 May 2012) at [68]. This view was endorsed in Sran v MIBP [2013] FCCA 37 (Judge Nicholls, 17 January 2014).

    [2] Singh v MIBP [2015] FCCA 2776 (Judge Whelan, 14 October 2015) at [49].

1. Where an applicant lodges a visa application through an agent, the applicant, being a principal, will be bound under the common law principles of agency by the acts of an agent acting within the scope of his or her authority. Actual authority may be express or implied[3] and a principal can be liable for the actions of an agent, even if the agent’s act is unlawful or amounts to fraud.[4] As a result, even where an applicant did not fill out an application form, he or she may be found to have caused false or misleading information to be given to a specified person, and thus not to have complied with PIC 4020, despite allegations of fraud by a migration agent.[5] 

   [3] Lysaght Bros & Co Ltd v Falk (1905) CLR 443 as cited in Sran v Minister for Immigration and Anor [2014] FCCA 37 at para.66.

   [4] Brown v Citizen’s Life Insurance Co Ltd (1904) 2 SR (NSW) 202; Lloyd (Pauper) Appellant v Grace [1912] AC 716 as cited in Sran at paras.63 and 78.

   [5] For example, in Singh v MIBP [2015] FCCA 2776 (Judge Whelan, 14 October 2015), the Court found at [56] that ‘[i]t is consistent with the conclusions of Buchanan J in Trivedi that the provisions of s.98 of the Act should apply to PIC 4020 and that an applicant should be deemed to have completed an application form where he or she causes a form to be filled out or his/her behalf’.

2. In Sran v MIBP[6] the Court considered an applicant’s claims that the false and misleading information, in this case a non-existent TRA skills assessment reference, was provided in the visa application as a result of migration agent fraud. In that case, the applicant had instructed the agent to lodge a visa application, a fee was discussed and the applicant knew that the visa application was to be made. The Court considered these facts were sufficient to ground the Tribunal’s finding that an agency agreement was established for that purpose and that the visa application was validly made.[7]

   [6] [2014] FCCA 37 (Judge Nicholls, 17 January 2014).

   [7] Sran v MIBP [2013] FCCA 37 (Judge Nicholls, 17 January 2014) at [44], [53], [64] and [78]. See also Singh v MIBP [2014] FCCA 1816 (Riethmuller J, 20 August 2014).

3. The evidence indicates that the applicant entered into an agreement with the Shanghai East Travel Service which served an objective of facilitating permanent residence to Australia.  The applicant travelled to Australia on a number of occasions and as noted was present in Australia at the time the visa application was lodged.  Her being in the jurisdiction would have given her every opportunity to ensure that the $AUD200,000 she had expended on this exercise would yield the desired outcome and she failed to do this.  The evidence indicates that the 186 application was lodged by a discredited and now de-registered migration agent Ms Yi Sun without the consent of the applicant.  However as noted the applicant would have been aware from her interactions with the Shanghai agency in December 2015 and in January 2016 and the agreement provided to her in February 2016 that an Australian company was available to her for the purpose of investment migration and a temporary work visa.  The document she was provided with and asked to sign in February 2016 clearly indicated that the Subclass 186 visa was an additional visa application being pursued on her behalf.   The applicant could have attended the Department whilst she was in Australia to check on the provenance of the applications lodged on her behalf and she failed to do this.

4. The cumulative consideration of all of these factors leads the Tribunal to find that the applicant does not meet PIC 4020(1).

   Should the requirements of PIC 4020(1) or (2) be waived?

5. The requirements of PIC 4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in r.1.03), that justify the granting of the visa. The decision-maker must first be satisfied that there are such circumstances, then must consider whether to exercise the discretion to waive the requirements, having regard to those circumstances: Kaur v MIBP [2017] FCAFC 184.

6. The expressions ‘compelling circumstances’ and ‘compassionate or compelling circumstances’ are not defined for these purposes. To be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied: see Plaintiff M64/2015 v MIBP [2015] HCA 50. The ordinary meaning of ‘compassionate’ relates to feelings of sympathy, sorrow, pity or concern for others.

7. For the following reasons, the Tribunal is not satisfied that the requirements should be waived.

8. There is no evidence before the Tribunal which establishes the existence of compelling circumstances affecting the interests of Australia or compassionate and compelling reasons that affect the interests of an Australian citizen, and Australian permanent resident or eligible New Zealand citizen.

9. Therefore the requirements of PIC 4020(1) should not be waived.

10. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.186.213(1).

    DECISION

11. The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

    John Cipolla
    Senior Member

    
    

    ATTACHMENT A

    186.233(1)      The position to which the application relates is the position:

    (a)nominated in an application for approval that seeks to meet the requirements of:

    (i)subparagraph 5.19(4)(h)(i); or

    (ii)subregulation 5.19(2) as in force before 1 July 2012; and

    (b)in relation to which the declaration mentioned in paragraph 1114B(3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)      The person who will employ the applicant is the person who made the nomination.

    (3)      The Minister has approved the nomination.

    (4)      The nomination has not subsequently been withdrawn.

    (4A)    Either:

    (a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

    (5)      The position is still available to the applicant.

    (6)      The application for the visa is made not more than 6 months after the Minister approved the nomination.