Tang (Migration)

[2018] AATA 5583

Tang (Migration) [2018] AATA 5583 (19 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Thi Thu Thuy Tang

CASE NUMBER:  1715324

DIBP REFERENCE(S): BBC2017/2621976 BCC2009/203829

MEMBER:Jennifer Cripps Watts

DATE:19 October 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Skilled (Residence) (Class VB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 886 (Skilled - Sponsored) visa:

·Public Interest Criterion 4020 for the purposes of cl.886 of Schedule 2 to the Regulations.

Statement made on 19 October 2018 at 12:40pm

CATCHWORDS
MIGRATION – Skilled (Residence) (Class VB) visa – Subclass 886 (Skilled - Sponsored) visa – procedural fairness – Federal Circuit Court remittal – bogus documents – verifiable information – false and misleading information – identity requirements – compelling or compassionate circumstances – Australian citizen child – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5(1), 65, 359A, 375A
Migration Regulations 1994, Schedule 2, r 1.03, cl 886, Public Interest Criteria 4020

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
Trivedi v MIBP [2014] FCAFC 42

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 on 31 July 2012 to refuse to grant the applicant a Skilled (Residence) (Class VB) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 28 May 2009. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.886 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied she met the Public Interest Criteria (PIC) 4020 character requirements and there were no compelling or compassionate circumstances to justify waiving the criteria.

3. On 10 June 2016, the Tribunal affirmed the decision of the delegate to refuse the visa.  The applicant appealed the decision to the Federal Circuit Court (FCCA).  On 10 July 2017, the FCCA remitted the matter by consent to the Tribunal to determine the matter according to law, essentially on the basis that the Tribunal denied the applicant procedural fairness by not disclosing a s.375A certificate that was on the Department file, noting that “at least some of the information covered by the certificate was relevant, or potentially relevant, to the issues arising on the review…”.  The Department was ordered to pay the applicant’s costs in the matter.

4. The applicant was represented in relation to the review by her registered migration agent, Ms Christine Rodan.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

6. The applicant, who is a citizen of Vietnam, applied for a Subclass 886 visa that was refused by the delegate in 2012 because she was found to have provided a bogus document, that is, a reference from her employer stating that she had done 900 hours’ work experience which, after conducting a site visit, the delegate considered to be non-genuine.  The reference was provided with her TRA skills assessment application.  The applicant was invited to respond to this adverse matter.  The delegate considered the response and was not satisfied that the applicant met PIC 4020 or that there was any claim made or evidence that would justify waiving the criteria and the visa was refused.

7. The applicant applied to the Tribunal for review in August 2012, the decision was affirmed on review in June 2016 and the applicant appealed to the FCCA.  The matter was remitted to the Tribunal by consent in July 2017.  The essence of the FCCA reasons and orders made have been referred to above.

8. The Department file contained a s.375A certificate, issued in 2014, that was not disclosed to the applicant at the 2016 Tribunal hearing.  After the applicant’s matter was constituted to this member, a letter was sent inviting the applicant to comment on or respond to information, including the validity of the s.375A certificate (a copy of which was provided to the applicant), and also relevant facts and matters that are the subject of the certificate, namely the Integrity Report prepared by the Department after the 2011 site visits to the bakery, one on 24 May 2011 (when they were informed the owner was not there) and then a second on 2 June 2011 (when the owner was there).  The contents of the report refer to the manner in which the Department conducted itself during the site visits to the bakery in 2011 and also what information they obtained.

9. On 20 September 2018, the Tribunal sent the applicant, through her migration agent, an invitation to attend a scheduled hearing on 10 October 2018.  Ms Rodan responded to inform the Tribunal that she would not be available that day and advised that there was no-one else from her firm who could attend the hearing.  The Tribunal postponed the hearing to 13 November 2018 to accommodate Ms Rodan’s commitments.  The hearing has subsequently been cancelled due to a favourable decision having been made.

10. A response to the s.359A letter sent on 20 September 2018 was due on 2 October 2018 and a response, attaching a number of additional documents, was received on that date, including copies of:

    a.Written response from Ms Rodan, signed and dated 2 October 2018

    b.A response to the (second) hearing invitation indicating that the applicant would attend the rescheduled November 2018 hearing

    c.Documents entitled “Payslip” from the Bradbury Bakery, with the applicant’s name and address in Douglas Street, Panania, for the periods:

    i.13/08/2018 to 18/08/2018                  25 hours

    ii.20/08/2018 to 25/08/2018                  25 hours

    iii.03/09/2018 to 08/09/2018                  25 hours

    iv.10/09/2018 to 15/09/2018                  25 hours

    v.24/09/2018 to 29/09/2018                  25 hours

    d.Photographs showing the applicant with two female children

    e.Australian Citizenship Certificate (xxxxxxxx763) issued in September 2016 indicating that on 23 June 2016 the child, Karen, acquired Australian citizenship

    f.Victorian Birth Certificate for the child, Karen, indicating that the parents are Thi Thu Thuy Tang and Hong Thien Nguyen and that the birth was registered on 15 July 2016

    g.Written submissions from Ms Rodan

    h.Written submissions from the applicant.

11. The Tribunal has considered the response to the s.359A letter and attached documents.  The payslips are not considered to be verified or verifiable documents, on the evidence that has been provided.  However, the Tribunal accepts, on the face of it, that the applicant has been working for the Bradbury Bakery from mid-August 2018 to 29 September 2018.

12. The applicant and her migration agent have each provided written submissions in which it is claimed that the work reference that was considered to be non-genuine by the delegate at the time of application was not a bogus document and also addressing PIC 4020 matters, including that there are now compelling or compassionate reasons why the visa should be granted.  Namely, that the applicant now has an Australian citizen child, born in June 2016, to a man called Hong Thien Nguyen, who she says at the time was a permanent resident.  Both the applicant and Mr Nguyen are named on the child’s birth certificate, a copy of which has been provided, as the parents.  There is evidence before the Tribunal that the child born in June 2016, Karen, acquired Australian citizenship on 23 June 2016.

13. According to the applicant’s written statutory declaration, declared on 25 September 2018, she:

    a.Is a citizen of Vietnam, born there in 1988

    b.First arrived in Australia holding a student visa in 2006

    c.Studied a Certificate III in Patisseries and a Diploma of Hospitality Management and completed these studies in 2009

    d.Was required, as part of her course requirements, to complete 900 hours of work experience which she says she did (in a volunteer capacity) from February 2008 until December 2008 at St Albans Hot Bread Bakery (the bakery) under the supervision of someone called Hai, described as the baker and manager of the business, and learnt how to make various bread, pastries, cakes, tarts and Vietnamese rolls from recipes and was helped by other bakers with measuring ingredients

    e.Kept records of the hours she worked, but did not retain them after she passed the course and was given a reference

    f.Says the owner of the bakery did not attend the premises often and that the applicant saw Ms Vo only twice in the time she worked there in 2008

    g.Finished working there in December 2008 after she claims to have finished the 900 hours work experience (but possibly as many as 960 hours), because the owner said she could stay on working there but without being paid

    h.Is of the view that the owner was unhappy with her because she would not agree to continue to work at the bakery without pay

    i.Received a satisfactory result in her IELTS test and a successful TRA assessment in March 2009

    j.Strongly denies that the work reference she provided with the visa application that is the subject of this review was found by the delegate to not be genuine

    k.Was not aware, prior to being asked to comment, that the Department had conducted a site visit at the bakery

    l.Tried to contact the (previous) owner to verify the work reference, in September 2014, but was informed by the new owner that the previous owner had gone to Vietnam

    m.Advises that by then the business had changed its name to “Jenny Bakery”

    n.Says that the person, Hai, who was her supervisor declined to help verify her work experience and told her that there were other people who had done work experience and had the same problems with the previous owner

    o.Found getting work difficult, had a baby, could not work for some time and continued to find it hard to get work as a baker

    p.Had a child, Chloe, in January 2013 and she is a Vietnamese citizen (information contained elsewhere in submissions indicates that her father is Mr Lei Li who has departed Australia and lives in China)

    q.Had another child, Karen, in June 2016 and she is an Australian citizen (because the biological father, Mr Nguyen, was a permanent resident when she was born)

    r.Advises that both (different) fathers of the children are not involved in their lives and she does not know where the father of Karen is

    s.Found a job as a pastry chef, working 25 hours a week at Bradbury Shopping Centre in Sydney, and moved to Sydney in August 2018 to take up the job

14. The applicant’s migration agent has provided written submissions, dated 11 October 2018 and declares that the submissions are based on instructions from her client, the applicant in this matter.  Some background is given including the attempts the applicant says she made to obtain some verifiable information to support the claim that the work reference that was provided to TRA was not a bogus document

15. Ms Rodan’s submissions refer to the 2016 Tribunal decision record referring to the Department’s evidence as “persuasive” that the owner of the bakery did not provide a reference stating that the applicant had worked 900 hours there, but that the evidence, in the applicant’s view, is not persuasive.  It is submitted that the 2016 Tribunal’s view that the applicant’s evidence was vague as to details relating to her employment and baking ingredients was plausible because of the amount of time that had passed since she performed the tasks and the hearing.

16. The applicant takes issue with the some aspects of the site visits, conducted in May and June 2011, including that there is no evidence that the Department, when they conducted the site visit in June 2011 and spoke to the owner of the bakery, confirmed her identity, and that the responses she gave were not “spontaneous” as it was claimed they were because the site visit was effectively arranged. 

17. It is submitted that the veracity of the responses by someone the applicant refers to as purporting to be Ms Vo at the June 2011 site visit raises serious concerns because:

    a.The Departmental officers did not check her identify

    b.Ms Vo was not pressed by the officers to explain why students would be working for her for free

    c.Seeks to characterise Ms Vo speaking with her sister about photographs from which she was asked to identify the applicant or people who had worked for her as “collusion” and that the Department allowed it

    d.She confused the names of the two people identified in the photographs who did work for her, one for the other

    e.There is no mention that she was shown the written reference that the applicant provided to TRA with her skills assessment application

18. There is no evidence before the Tribunal that the officers did not confirm Ms Vo’s identity and the Tribunal’s view, notwithstanding this, is that it is more likely than not that they did confirm her identity.  The Tribunal does not accept that the site visit was so fatally flawed in what was essentially a fairly standard visit and interview with the owner of a bakery and resulting integrity report based on the interview and observations of the officers who attended.

19. Regarding the suggestion by the applicant that Ms Vo’s answers at the June 2011 site visit were not spontaneous, there is no evidence before the Tribunal that Ms Vo was put on notice that the June 20111 site visit would be about whether or not the applicant had completed 900 hours work experience and had provided the applicant with a written reference to that affect.  It appears to be suggested that Ms Vo, when shown a number of photographs where she identified two people from them who had worked at the bakery got their names mixed up and had not provided reliable evidence about the other people in the photographs not working for her or doing 900 hours’ work experience.  The Tribunal is not convinced that transposing two names of two people she had identified in two photographs render her statements unreliable about whether or not they worked there, or that her stating that none of the other people in the photographs she was shown (which included the applicant) had not worked for her at the bakery was likewise not reliable information.

20. Regarding the site visit in June 2011, consideration has been given to the submission that it was not satisfactorily confirmed that it was Ms Vo who was interviewed at the bakery on that occasion.  However, there is no evidence before the Tribunal that indicates it was not her, or that it was someone else.  There are references to Ms Vo talking to her sister, which seem to lend weight to it being a reasonably held view that the person the Departmental officers spoke to was Ms Vo, the owner of the bakery.

21. The applicant claims that there was no ‘purposeful falsity’, or intention to provide incorrect or untrue information and that she did do the 900 hours work experience, and obtained a written reference from Ms Vo and that she provided the document to the TRA ‘in good faith’.  She received a positive skills assessment and says that she then decided she did not need to keep records of her work hours at the bakery.  The Tribunal accepts that the applicant, if she had documentary evidence of the work she did in 2008, may have decided not to keep those documents after she was successfully assessed by TRA in 2009, but the fact remains that there is no verifiable documentary evidence before the Tribunal that the applicant worked for St Albans Hot Bread from February to December 2008 for 900 hours and the reference she provided is at odds with the information provided by Ms Vo to the Departmental officers on 2 June 2011.  The applicant has submitted that she approached Mr Hai, who she claims was her supervisor at the bakery and that he declined to provide her with any confirmation of her employment, but says he told her that other people had also complained about being in a similar position to the applicant.  Again, although there may be a reason why Mr Hai did not agree to confirm the applicant’s employment, if she did work at the bakery for 900 hours, the fact remains that the applicant has not provided evidence from the man she claims was her supervisor. 

22. The Tribunal has considered the submissions that the person who was interviewed at the site visit on 2 June 2011 was not identified positively as Ms Vo and that therefore the evidence obtained from the interviewee, including mis-identifying two people who worked at the bakery by confusing their names with each other and is not persuaded that it is likely the person was not Ms Vo, the owner at that time, or that she was confused about the other people in the photographs shown to her who she said had not worked at the bakery.

23. The applicant is claiming there are strong compelling and compassionate circumstances that affect the interests of Australia and the interests of an Australia citizen that justify the grant of the subclass 886 visa (that is the subject of this review).  She has provided evidence, in the form of an Australian citizenship certificate, indicating that she has an Australian citizen child.

24. The issue in this review is whether the visa applicant meets PIC 4020 as required by cl.886 of the Regulations, 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 three 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).

25. 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?

26. 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.

1. 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.

2. 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.

3. There is no evidence before the Tribunal that would suggest that the Departmental officers did not follow appropriate procedures when conducting the site visits in May and June 2011.

4. It is confirmed in the 2018 submissions, relevantly, that the applicant in 2012 provided the Department with a copy of the work reference in question, indicating it was provided by Ms Vo (dated 16 December 2008) and also provided a copy of her TRA application.

5. At the June site visit, it is recorded that Ms Vo told the officers she did not provide a written reference to the applicant.  On the basis that the Tribunal is not convinced that Ms Vo provided the applicant with a written reference stating that she had worked for 900 hours at the bakery (for the purpose of providing supporting documents for her skills assessment application), the Tribunal reasonably suspects that the reference dated 16 December 2008 is a document that is counterfeit or has been altered by a person who does not have authority to do so and the TRA  skills assessment notification letter was false or misleading at the time it was given.

6. These matters are material to the cl.886.223(1) criterion, that the “skills of the applicant have been assessed by the relevant assessing authority as suitable for the applicant’s nominated skilled occupation” in relation to the visa application.

7. Therefore, the applicant does not meet PIC 4020(1).

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

8. 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.

9. 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.

10. The Tribunal has made findings that the applicant has provided a bogus document and false and misleading information.  This raises serious concerns about her credibility, in the mind of the Tribunal.

11. The applicant has provided an Australian citizenship certificate for her child, Karen, and a birth certificate indicating that the father of the child is Mr Hong Thien Nguyen, a waiter, who was at the time the child was born an Australian permanent resident, but she claims not to know the whereabouts of Mr Nguyen and suggests that perhaps he has returned to Vietnam.  While accepting that his name is on the birth certificate and that the child, Karen, has been granted citizenship on the basis of Mr Nguyen’s migration status, the Tribunal accepts that the child is an Australian citizen.  The applicant is a citizen of Vietnam and she claims that her other daughter, born in 2013, is also a citizen of Vietnam, although also mentions that the father of that child has probably returned to China indicating that he may be a citizen of China and that this child may be as well, or at least entitled to Chinese citizenship.

12. Notwithstanding reservations the Tribunal has about the applicant’s credibility because adverse PIC 4020 findings have been made about her, for the following reasons the Tribunal is satisfied that the requirements should be waived.

13. Compelling or compassionate circumstances must be circumstances that affect the interests of Australia, an Australian citizen or permanent resident or eligible New Zealand citizen.  It is accepted that the applicant has a child born in 2016 for whom evidence of Australian citizenship has been provided, not the visa applicant.

14. The Australian citizen child, Karen, born in 2016, and her right as a citizen to reside in and derive benefits from residing in Australia are considered to be compelling and compassionate circumstances.

15. Therefore the requirements of PIC 4020(1) and (2) should be waived.

    Has the applicant satisfied the identity requirements?

16. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.  There is no evidence before the Tribunal that the applicant’s identity is in issue.

17. Therefore, the Tribunal is satisfied, for the purpose of making a decision in this matter, that the applicant meets PIC 4020(2A).

    Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?

18. PIC 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2BA).

19. There is no evidence before the Tribunal that the applicant or any member of the family unit has been refused a visa in the relevant period because of a failure to satisfy PIC 4020(2A).

20. Therefore PIC 4020(2B) does not apply.

21. On the basis of the above, because the Tribunal has made findings there are compelling and compassionate circumstances for waiving the requirement that the applicant meets the character requirements, the applicant satisfies PIC 4020 for the purposes of cl.886.

    DECISION

22. The Tribunal remits the application for a Skilled (Residence) (Class VB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 886 (Skilled - Sponsored) visa:

    ·Public Interest Criterion 4020 for the purposes of cl.886 of Schedule 2 to the Regulations.

    Jennifer Cripps Watts
    Member

    ATTACHMENT

    Migration Regulations 1994

    Schedule 4

    4020(1)         There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

    (a)the application for the visa; or

    (b)a visa that the applicant held in the period of 12 months before the application was made.

    (2)The Minister is satisfied that during the period:

    (a)starting 3 years before the application was made; and

    (b)ending when the Minister makes a decision to grant or refuse to grant the visa;

    the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).

    (2AA)However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

    (2A)The applicant satisfies the Minister as to the applicant’s identity.

    (2B)The Minister is satisfied that during the period:

    (a)starting 10 years before the application was made; and

    (b)ending when the Minister makes a decision to grant or refuse to grant the visa;

    neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).

    (2BA)However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

    (3)To avoid doubt, subclauses (1) and (2) apply 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.

    (4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:

    (a)compelling circumstances that affect the interests of Australia; or

    (b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

    justify the granting of the visa.

    (5)In this clause:

    information that is false or misleading in a material particular means information that is:

    (a)false or misleading at the time it is given; and

    (b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.

    …

    Migration Act 1958

    s.5      Interpretation

    (1) In this Act, unless contrary intention appears:

    …

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)purports to have been, but was not, issued in respect of the person; or

    (b)is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)was obtained because of a false or misleading statement, whether or not made knowingly. 

    …