Wang (Migration) - [2023] AATA 1980

Wang (Migration) [2023] AATA 1980 (29 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Fang Wang
REPRESENTATIVE:  Mr Brett Li (MARN: 9792769)
CASE NUMBER:  2209435
HOME AFFAIRS REFERENCE(S):          BCC2020/1954045
MEMBER:Noelle Hossen
DATE:29 June 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 29 June 2023 at 10:20am

CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – incorrect answers in the visa application – employment offer letter – business founder had never sponsored any workers – processing by specialist employment agency – impact on the applicant’s family – serious medical condition – employment obtained in a different occupation – properties and business ownership in Australia – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5(1), 97-105, 107-109, 140, 189, 198
Migration Regulations 1994, r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
Wan v MIMA (2001) 107 FCR 133
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 Home Affairs to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant did not comply with Sections 101(b) and 103 of the Act, as she provided an incorrect answer in the ENS visa application form, and a bogus supporting document. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant provided submissions from her daughter and submissions to the Tribunal prior to the hearing. The applicant had provided a copy of the Decision of the Delegate to the Tribunal. The applicant provided further submissions after the hearing as requested by the Tribunal.
The applicant appeared before the Tribunal on 17 March 2023 to give evidence and present arguments. The Tribunal also received oral evidence from her husband Bing Ni. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wang (Migration)

Details

AGLC: Wang (Migration) [2023] AATA 1980
Case: [2023] AATA 1980
Decision Date: 29 June 2023

CaseChat Overview and Summary

This matter concerned the cancellation of the applicant's Subclass 155 (Five Year Resident Return) visa. The Department's delegate had concluded that the applicant had provided incorrect answers and submitted a bogus document in support of her subclass 186 (Employer Nomination Scheme) visa application, leading to its cancellation under section 109 of the Migration Act 1958 (Cth). The applicant disputed these findings, asserting that her employment and nomination by Cawarra Cosmetics Pty Ltd were genuine.

The primary legal issues before the court were whether the applicant had failed to comply with sections 101(b) and 103 of the Act by providing false or misleading information or documents, and consequently, whether her visa was liable for cancellation. Specifically, the delegate found that the employment offer letter was a bogus document, as investigations revealed the named business owner had no record of sponsoring workers or dealing with the Department, and the purported employee had never worked for the company.

The court considered the applicant's detailed explanation of her engagement with Shanghai Overseas Chinese Exit Entry Services Co Ltd (SOCEES), a state-owned recruitment agency, and her belief in the genuineness of the employment offer. The applicant provided evidence, including statutory declarations from SOCEES employees and emails, to support her claim that she had genuinely applied for and been offered a position. She also detailed her subsequent difficulties in commencing employment, including the sponsor business failing to meet her upon arrival in Australia and subsequently indicating they might not be able to offer her the job due to changing business circumstances. The court noted that the applicant's migration agent also believed the nomination and visa application were genuine.

The decision under review was set aside.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Based on the above information the delegate concluded that the applicant provided incorrect answers and submitted a bogus document in support of her ENS visa application. The Delegate found that she had not complied with Section 101(b) and 103, and accordingly, his ENS visa was liable for cancellation under Section 109 of the Act.Decision about noncompliance In the NOICC responses dated the 18 and 22 February 2022 the applicant and her agent provided the following reasons why they do not agree that there was non-compliance:“The visa holder had not provided or been involved in provision of false or misleading information/documentation to the department. She maintains that her employment and nomination by Cawarra cosmetics Pty Ltd were genuine.The Visa holder had previously worked in the cosmetics and beauty industry in Shanghai for about 21 years in managerial positions. In January 2014 she first met the General manager of Shanghai overseas Chinese exit entry services Co Ltd (SOCEES) approached her to work in Australia, on the basis that many Australian cosmetic companies wished to expand their business in China and an expertise would be a great asset to their businesses. SOCEES was a State-owned company with a good reputation and represented the local Chinese government to some extent in some matters relating to overseas Chinese. As a special and professional recruitment agency with some exclusive rights authorised by the Chinese government, SOCEES acted for many American and European companies to hire local professional people in China. The Visa holder could see no reason for a State-owned company to provide false information to her in her application for such a long time.Between March 2014 and March 2015 SOCEES introduced several Australian companies to her and she undertook several interviews and was even offered a job in August 2000 and 14 x 1 of these Australian companies. However, she declined this offer because she thought their business activities were not closely related to her career.In early March 2015 the General manager of SOCEES told her the human resource manager (HR) for the sponsor business would be visiting China in mid-March 2015 to interview a few candidates and offered to arrange an interview for her. The Visa holder applied for the nominated position through SOCEES and on 17 March 2015 was interviewed by a “white Australian,” who introduced himself as the HR manager of Cawarra Cosmetics, but she does not recall his name. Interviews were conducted with the Visa holder and many other candidates at SOCEES’ office in Shanghai. Her interview was conducted in English, with a SOCEES staff member as the interpreter. The Visa holder had no doubt regarding the genuineness of this position and of the interview, noting the HR manager was very knowledgeable about cosmetics, beauty products and the industry, and they discussed many technical issues during the interview.On 27 April 2015 the Visa holder received an email from SOCEES advising she had received an employment offer from the sponsor business and asking her to attend their office to sign the agreement. Over the following few months, she provided her personal documents and details to SOCEES, who communicated with the sponsor business directly.Following receipt of the NOICC, the Visa holder contacted the 3 people she had dealt with from SOCEES, seeking clarification and evidence regarding the circumstances around the nomination and Visa application. She found that her Visa application had been prepared and lodged by a migration lawyer/agent, arranged by SOCEES, named Simone Kerney. The visa holder then contacted Ms Kearney, who provided copies of emails showing that all the sponsors documents for the nomination had been provided directly to Ms Kearney, by the sponsors lawyer. Ms Kearney had been instructed by the sponsor to prepare the Visa application. Ms Kearney also believed the nomination and Visa application related to a genuine position.To nominate the Visa holder for an ENS visa, the sponsor business would need to have provided full information and documents about their business operations, business certificates, tax returns and financial reports, BAS statements from ATO portal, staff details and organisational chart, staff training activities etc. as a private company all the above information and documents of the employer are private and strictly confidential. It is hard to imagine the large volume of information and documents such as these could be accessed by 3rd party without the consent and delivery of the sponsor business.After the Visa was granted the Visa holder was advised by an employee of SOCEES to book a hotel in Newtown Sydney for 3 days. The reason given was that the sponsor business is located approximately 8 hours’ drive from Sydney so it would not be possible for the Visa holder to travel there on the same day she arrived in Sydney. The Visa holder was told by the SOCEES employee that the sponsor business would send someone to Sydney airport to pick her up and her family and send them to the hotel, then later to take them to the sponsor businesses office.However, when the Visa holder and her family arrived at Sydney airport, despite waiting one and ½ hours, no one came to collect them. They made their own way to the hotel and waited there to be contacted by the sponsor business. After they had stayed at the hotel for the booked period of 3 days, they had still not been contacted by anyone from the sponsor business. The Visa holder extended her hotel booking for a further 3 days.During that time, she kept contacting SOCEES asking for advice what is going on and was told by the employee that the sponsoring businesses financial circumstances and their business directions may change in the coming financial year due to potential risks in the relationship between Australia and China though they may not be able to offer her this job anymore. SOCEES advised her that they are still contacting the sponsor business and waiting for final confirmation. During this time, she extended her hotel booking a further 5 daysOn 19 June 2016 she again contacted the SOCEES employee confirmed most likely the sponsor business would not offer her the job anymore because in their communications with the sponsor business their response had been very reluctant and uncertain. The employee said she believed the sponsor was deliberately delaying her onboarding request and that they would continue to contact the sponsor business to ask them to consider employing the Visa holder.The applicant provided the following supporting documents to the delegate of the Department:Statutory declaration made by the Visa holder on 18 February 2022 referring to the information summarised aboveScreenshots from a mobile phone of a booking for Summerhouse Newton between 13 and 16 June 2016; further booking between 16 and 21 June 2016; and a further booking between 21 and 22 June 2016.Letters in Chinese with an English translation from the following people after the NOICC was issued, who the Visa holder have referred to above as being the SOCEES ‘s employees with whom she had been in contact and supporting her claimed version of events namely Min Chen , stating they were a business assistant at SOCEES and was the translator at the interview with the Visa holder on 17 March 2015 conducted by representative or the sponsor business sent to China for recruitment.Ruijin Yang, stating they are former employee of SOCEES who in early June 2016 was responsible for making arrangements for the Visa holder and her family to travel to Australia to take up employment there.Zhengjun Ye stating they were, the General manager of SOCEES, had introduced the Visa holder to a few Australian companies and in March 2015 to the sponsor business.The following emails in English translation relating to the Visa holders claimed discussions with SOCEES employees:From Hongju Chen, dated 28 February 2014, requesting the visa holder’s resume and further information from her. from herFrom Hongju Chen, dated 3 March 2014 sending an assessment form to the Visa holderFrom Cheryl, dated 27 April 2015 sending an employment agreement for the Visa holder, and asking her to attend their office to sign it. In the NOICC response the Visa holder claims this was the agreement in relation to the sponsor businessFrom Larissa of SOCEES dated 13 August 2014, referring to an attached offer of employment and asking her to attend their office to sign it. In the NOICC response the Visa holder claims this is an email between her and SOCEES’s regarding an offer of employment from another Australian business.”

Ratio Decidendi

Legal Principle Established

The Delegate considered the evidence gathered and concluded that the nomination that the applicant referred to in her ENS visa application was not actually lodged by or on behalf of Cawarra Cosmetics Pty Ltd. He concluded that the visa application did not relate to a position for which the applicant had been nominated in TRN EGO8P417LMConsideration that the applicant did not comply with Section 103 of the Act. The applicant had provided an offer of employment in support of her ENS visa application dated the 18 April 2015 offering the applicant an offer of Corporate General Manager. Investigations by the Department revealed that the no such person by the name of Kristy Basanwicz ever worked for the company and that the business owner had never had any dealings with the Department and had no intention of sponsoring an overseas worker in the position of Corporate General Manager. The Delegate concluded that the offer of employment was a bogus document. Based on the above information the delegate concluded that the applicant provided incorrect answers and submitted a bogus document in support of her ENS visa application. The Delegate found that she had not complied with Section 101(b) and 103, and accordingly, his ENS visa was liable for cancellation under Section 109 of the Act.Decision about noncompliance In the NOICC responses dated the 18 and 22 February 2022 the applicant and her agent provided the following reasons why they do not agree that there was non-compliance:“The visa holder had not provided or been involved in provision of false or misleading information/documentation to the department. She maintains that her employment and nomination by Cawarra cosmetics Pty Ltd were genuine.The Visa holder had previously worked in the cosmetics and beauty industry in Shanghai for about 21 years in managerial positions. In January 2014 she first met the General manager of Shanghai overseas Chinese exit entry services Co Ltd (SOCEES) approached her to work in Australia, on the basis that many Australian cosmetic companies wished to expand their business in China and an expertise would be a great asset to their businesses. SOCEES was a State-owned company with a good reputation and represented the local Chinese government to some extent in some matters relating to overseas Chinese. As a special and professional recruitment agency with some exclusive rights authorised by the Chinese government, SOCEES acted for many American and European companies to hire local professional people in China. The Visa holder could see no reason for a State-owned company to provide false information to her in her application for such a long time.Between March 2014 and March 2015 SOCEES introduced several Australian companies to her and she undertook several interviews and was even offered a job in August 2000 and 14 x 1 of these Australian companies. However, she declined this offer because she thought their business activities were not closely related to her career.In early March 2015 the General manager of SOCEES told her the human resource manager (HR) for the sponsor business would be visiting China in mid-March 2015 to interview a few candidates and offered to arrange an interview for her. The Visa holder applied for the nominated position through SOCEES and on 17 March 2015 was interviewed by a “white Australian,” who introduced himself as the HR manager of Cawarra Cosmetics, but she does not recall his name. Interviews were conducted with the Visa holder and many other candidates at SOCEES’ office in Shanghai. Her interview was conducted in English, with a SOCEES staff member as the interpreter. The Visa holder had no doubt regarding the genuineness of this position and of the interview, noting the HR manager was very knowledgeable about cosmetics, beauty products and the industry, and they discussed many technical issues during the interview.On 27 April 2015 the Visa holder received an email from SOCEES advising she had received an employment offer from the sponsor business and asking her to attend their office to sign the agreement. Over the following few months, she provided her personal documents and details to SOCEES, who communicated with the sponsor business directly.Following receipt of the NOICC, the Visa holder contacted the 3 people she had dealt with from SOCEES, seeking clarification and evidence regarding the circumstances around the nomination and Visa application. She found that her Visa application had been prepared and lodged by a migration lawyer/agent, arranged by SOCEES, named Simone Kerney. The visa holder then contacted Ms Kearney, who provided copies of emails showing that all the sponsors documents for the nomination had been provided directly to Ms Kearney, by the sponsors lawyer. Ms Kearney had been instructed by the sponsor to prepare the Visa application. Ms Kearney also believed the nomination and Visa application related to a genuine position.To nominate the Visa holder for an ENS visa, the sponsor business would need to have provided full information and documents about their business operations, business certificates, tax returns and financial reports, BAS statements from ATO portal, staff details and organisational chart, staff training activities etc. as a private company all the above information and documents of the employer are private and strictly confidential. It is hard to imagine the large volume of information and documents such as these could be accessed by 3rd party without the consent and delivery of the sponsor business.After the Visa was granted the Visa holder was advised by an employee of SOCEES to book a hotel in Newtown Sydney for 3 days. The reason given was that the sponsor business is located approximately 8 hours’ drive from Sydney so it would not be possible for the Visa holder to travel there on the same day she arrived in Sydney. The Visa holder was told by the SOCEES employee that the sponsor business would send someone to Sydney airport to pick her up and her family and send them to the hotel, then later to take them to the sponsor businesses office.However, when the Visa holder and her family arrived at Sydney airport, despite waiting one and ½ hours, no one came to collect them. They made their own way to the hotel and waited there to be contacted by the sponsor business. After they had stayed at the hotel for the booked period of 3 days, they had still not been contacted by anyone from the sponsor business. The Visa holder extended her hotel booking for a further 3 days.During that time, she kept contacting SOCEES asking for advice what is going on and was told by the employee that the sponsoring businesses financial circumstances and their business directions may change in the coming financial year due to potential risks in the relationship between Australia and China though they may not be able to offer her this job anymore. SOCEES advised her that they are still contacting the sponsor business and waiting for final confirmation. During this time, she extended her hotel booking a further 5 daysOn 19 June 2016 she again contacted the SOCEES employee confirmed most likely the sponsor business would not offer her the job anymore because in their communications with the sponsor business their response had been very reluctant and uncertain. The employee said she believed the sponsor was deliberately delaying her onboarding request and that they would continue to contact the sponsor business to ask them to consider employing the Visa holder.The applicant provided the following supporting documents to the delegate of the Department:Statutory declaration made by the Visa holder on 18 February 2022 referring to the information summarised aboveScreenshots from a mobile phone of a booking for Summerhouse Newton between 13 and 16 June 2016; further booking between 16 and 21 June 2016; and a further booking between 21 and 22 June 2016.Letters in Chinese with an English translation from the following people after the NOICC was issued, who the Visa holder have referred to above as being the SOCEES ‘s employees with whom she had been in contact and supporting her claimed version of events namely Min Chen , stating they were a business assistant at SOCEES and was the translator at the interview with the Visa holder on 17 March 2015 conducted by representative or the sponsor business sent to China for recruitment.Ruijin Yang, stating they are former employee of SOCEES who in early June 2016 was responsible for making arrangements for the Visa holder and her family to travel to Australia to take up employment there.Zhengjun Ye stating they were, the General manager of SOCEES, had introduced the Visa holder to a few Australian companies and in March 2015 to the sponsor business.The following emails in English translation relating to the Visa holders claimed discussions with SOCEES employees:From Hongju Chen, dated 28 February 2014, requesting the visa holder’s resume and further information from her. from herFrom Hongju Chen, dated 3 March 2014 sending an assessment form to the Visa holderFrom Cheryl, dated 27 April 2015 sending an employment agreement for the Visa holder, and asking her to attend their office to sign it. In the NOICC response the Visa holder claims this was the agreement in relation to the sponsor businessFrom Larissa of SOCEES dated 13 August 2014, referring to an attached offer of employment and asking her to attend their office to sign it. In the NOICC response the Visa holder claims this is an email between her and SOCEES’s regarding an offer of employment from another Australian business.”