Song (Migration)

Case [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…

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Song (Migration) [2018] AATA 3905
Case
[2018] AATA 3905
Decision Date

CaseChat Overview and Summary

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 Employer Nomination Scheme. The applicant sought to have a decision refusing their visa application reviewed by the Tribunal. The refusal was based on the assertion that false and misleading information had been provided, and that there was adverse information concerning the nominating person, who was alleged to be a victim of a migration scam. The application was reportedly lodged without the applicant's knowledge, though the business itself was stated to be operating lawfully and actively.

The primary legal issues before the Tribunal were whether the applicant met the requirements of clause 186.233 of the Migration Regulations 1994, and further, whether the applicant satisfied Public Interest Criterion 4020(1) as required by clause 186.213(1). Clause 186.233 outlines specific criteria relating to the nominated position, the employer, the approval and withdrawal of the nomination, the absence of adverse information about the nominator or associated persons, the continued availability of the position, and the timeframe for visa application following nomination approval.

The Tribunal considered the applicant's submission that they had limited understanding of the Australian migration system and had provided documents to a Chinese agency with general authority to apply for a visa, without direct contact with the migration agent. It was argued that the applicant should not bear the consequences of the agent's fraudulent actions, particularly as they were a victim of a visa scam. The Tribunal noted that the migration agent's registration authority had found the agent had acted fraudulently. However, the Tribunal ultimately found that the applicant did not satisfy PIC 4020 for the purposes of clause 186.213(1).

The Tribunal affirmed the decision not to grant the applicant the Employer Nomination (Permanent) (Class EN) visas.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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 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. 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.

Decision

Reasons for decision

On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.186.213(1).DECISION The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.John CipollaSenior MemberATTACHMENT A186.233(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.

Ratio Decidendi

Legal Principle Established

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