Wang (Migration)

[2018] AATA 2197

Wang (Migration) [2018] AATA 2197 (9 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ye Wang
Miss Xiaoyu Gu

CASE NUMBER:  1710162

DIBP REFERENCE(S):  BCC2016/4163378

MEMBER:Wan Shum

DATE:9 May 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa.

The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 09 May 2018 at 3:14pm

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Whether grounds for cancellation exist – Employment not commenced – Whether the visa should be cancelled – Whether the applicant is an innocent third party to the fraud of the sponsor – Actions of applicant not consistent with victim of fraud – Failure to update Department of changed circumstances – Whether the visa should be cancelled – Limited matters weighing against cancellation – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 137Q, 137S, 137T, 348
Migration Regulations 1994 (Cth), r 2.50AA

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 3 May 2017 to cancel the first named applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa under s.137Q of the Migration Act 1958 (the Act).

2. The visa had been granted on 20 August 2015 on the basis that the first named applicant (the applicant) would be employed by Global Traffic (QLD) Pty Ltd in the nominated position of Marketing Specialist (ANZSCO 225113). The nominated position was to be located in Mackay, Queensland.

3. As a consequence of investigations undertaken by the Immigration department, it became apparent that the applicant did not commence employment with Global Traffic (QLD) Pty Ltd. The delegate subsequently cancelled the visa on the basis that the applicant had not satisfied the Minister that he had made a genuine effort to commence employment within the period prescribed by the regulations. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicants have sought review of the decision to cancel their visas and were represented in relation to the review by a registered migration agent.

5. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is that with respect to the applicant. The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.137T(1) of the Act. As no decision was involved in the visa cancellation under s.137T(1), the Tribunal has no jurisdiction with respect to the other applicant.

6. The applicant appeared before the Tribunal by phone from China to give evidence and present arguments on 14 March 2018. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The other applicant and the representative were also available by teleconference from the same location in Adelaide.

7. During the hearing the Tribunal referred to information contained in documents in the departmental file which are covered by a non-disclosure certificate issued by a delegate of the Minister of Immigration. The Tribunal informed the applicant and his representative of this during the hearing, and the representative expressed concern that the applicant had not been informed of the information prior to the visa being cancelled. The Tribunal noted the concerns and indicated it would provide a copy of the non-disclosure certificate following the hearing and invited the applicant’s comments on the validity of the certificate. The representative responded in writing stating that it was unfair that the applicant was not given information covered by the non-disclosure certificate. While the full documents were not released, as the Tribunal has put the information it considered adverse to his case to the applicant during the hearing and in writing after the hearing, it considers that the applicant has been made aware of the relevant information to his case.

8. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. Under s.137Q the Minister has the power to cancel a ‘regional sponsored employment visa’ on specified grounds. ‘Regional sponsored employment visa’ means a visa of a kind included in a class of visas that has the words ‘Employer Nomination’ in its title and is prescribed by the regulations for the purposes of the definition in s.137Q(3). The visas currently prescribed by r.2.50AA of the Migration Regulations 1994 are: Subclass 119 (Regional Sponsored Migration Scheme); Subclass 187 (Regional Sponsored Migration Scheme) and Subclass 857 (Regional Sponsored Migration Scheme).

10. The applicant had applied for a Subclass 187 - Regional Sponsored Migration Scheme visa on the basis that he would be employed by Global Traffic (QLD) Pty Ltd in the nominated position of Marketing Specialist (ANZSCO 225113).

11. Global Traffic (Qld) Pty Ltd is owned by Zyra and Perry Meka. It is a related business entity under The Trustee for Global Traffic (Qld) Unit Trust. This group of businesses was monitored by the department following an allegation that money was paid through a third party recruitment company connecting Australian companies with overseas employees based on fraud. It appears there was evidence that the sponsor, in particular Mr Perry Meka, was involved in fraud of sponsoring People's Republic of China nationals. The fraud appears to have involved payment by applicants for non-genuine nominations and visa applications process.

12. On 14 November 2016, the sponsor was asked by an Immigration officer for information regarding the applicant’s position including occupation, period and location of employment, evidence of work in nominated position and any evidence of pay. On 15 November 2016, a response was received from Zyra Meka advising that they “have been through the employment and payroll records and can confirm for you that we don’t have a record of the individual on our books”. According to departmental notes, in a telephone call on the same day, the sponsor further confirmed that they had never sponsored the applicant and the applicant was not employed with the sponsor.

    Before the department

13. The applicant responded to the department’s notice of intention to consider cancelling his visa on 5 April 2017. In the response, he claimed that after his visa was granted, Global Traffic (QLD) Pty Ltd did not notify him or give him a commencement date for employment. He considered there may have been a number of different reasons why he was not notified of a commencement date by Global Traffic (QLD) Pty Ltd, and speculated that the employer no longer needs the position or employee, and that it is possible that they found another employee in the year it took to grant the visa. He speculated that it could be because the business was deteriorating and they could not afford or were unwilling to pay for unnecessary staff and costs. The applicant wrote that he did not understand the seriousness of non-commencement and highlighted a paragraph from his visa grant letter where it stated that his visa may be cancelled if he did not make a genuine effort to comply with the obligations to commence employment within 6 months of the visa grant and/or remain employed in the nominated position in the regional area for at least two years. He said he was unable to contact the director, Perry Meka, directly because when he applied for the position “all the job was done by the HR of the company including selection of my resume and phone interview”. He claimed that he had tried the general office telephone number to speak to “someone responsible for [his] employment… but no one can give me a definite reply.” The applicant also wrote that he had been informed by migration advisers that it was not possible to cancel his visa unless the employer reported him to the department. He added that it was the employer who should contact him to arrange commencement of his employment and it was impossible for him to force the employer to arrange a paid job for him. The applicant further claimed that his wife was living in Sydney from the visa grant date so he had to stay in Sydney to wait for notice to commence employment from Global Traffic (QLD) Pty Ltd.

    On review

14. Prior to the hearing, the representative made submissions that the applicant claimed that he genuinely wanted to contact Global Traffic (QLD) Pty Ltd but did not have any contact information for the business owner, Perry Meka, because the hiring process was done via the company’s recruitment agent. The applicant was not informed of the date of commencement of employment when he signed the contract. The applicant had used an employment service to secure the nominated position. The agent recruited the applicant on behalf of Global Traffic (QLD) Pty Ltd. Thus, his efforts to contact his agent were efforts made to commence employment. The applicant had been told by the previous agent that the business was going into liquidation. His actions to continue contacting the agent was normal, and the information given by the previous agent that the business was going into liquidation is an acceptable explanation for his non-commencement of employment and his visa should not be cancelled. In addition, the representative referred to the circumstances of the other applicant, Ms Gu, stating that she had divorced the applicant in Australia. It was stated that the divorce had resulted in extreme hardship for her in both a social and personal context, and that while she was looking for support she discovered a local Australian Protestant Christian church on the internet and has become a churchgoer. It was submitted that the visas should not to be cancelled because the ex-wife is now a Christian and the cancellation would lead to removal in breach of Australia’s non-refoulement obligations. It was also submitted that there is a spelling mistake in the visa cancellation decision letter, and that the cancellation was invalid because of the error in the letter.

15. During the hearing, the applicant claimed that he had found the job through an agent, a job-seeking or employment agency. In relation to the circumstances which resulted in his visa cancellation, the applicant expressed the view that it was the employer who should contact him regarding the date he should start work. He claimed that he was informed by the agent that the company had gone under a restructure and to wait for a period of time, but he heard nothing more despite trying to contact the agent several times. The applicant said he did not know the contact details of the employer, but that he really wanted to work for them. He did not relocate to Queensland as he was waiting for the company to tell him when to start. The applicant added that he had asked the agent whether he should go directly to the employer of the head company and the agent said it was pointless. The Tribunal discussed with the applicant the information before it which indicated that the group of companies the employer was part of had been investigated, and they had informed the department that the applicant was not on the payroll or employment records. The applicant said that this was normal as he never commenced work there. The applicant said it was their responsibility to contact him about commencing employment.

16. The Tribunal referred to the information that the director, Perry Meka, had been involved in fraud of sponsoring People's Republic of China nationals. The applicant said that this is the first time he had heard of it. He said if there was any kind of fraud, he was the victim. He was a genuine job seeker and that he was the victim if they did not have any intention of offering him a job. The Tribunal queried whether he had contacted the department to advise them that he had not been able to commence employment. The applicant’s response was that he did not; he did not know what the problem was and did not know there was fraud involved. The Tribunal indicated it had doubts as to the truthfulness of his responses, and was particularly concerned that he did not make attempts to advise the department that he had not commenced work. When asked why his visa should not be cancelled, the applicant said he had spent a lot of time in Australia and had tried to communicate with his employer. He expressed the view that the visa was cancelled for reasons out of his control.

17. The applicant told the Tribunal at the hearing that he had paid $10,000 to the agent to find him a job including the visa application fees. He thought it was reasonable to pay an amount to the agent to look for a job for him. He had heard through friends about the employment agency. When he graduated, it was extremely difficult for him to find a job online as he did not have permanent residency. So he used the agency.

18. The Tribunal noted the applicant had made a citizenship application and queried why he had done this, given that he had not complied with the visa obligations to commence employment and remain employed in a regional area for 2 years. The applicant said that he was granted the visa in 2015 and that he applied for citizenship in 2016 because enough time had passed and he was eligible for citizenship. He also said that he did not know there was fraud involved, and he could have tried other ways to stay in Australia to get permanent residency. He confirmed that he remained in Sydney prior to returning to China, and did not move to the regional area. His plan was to move there after receiving notification from his employer, but he never received notice of a commencement date.

19. The applicant advised that he had returned to China in 2017 after his visa was cancelled and that he has found a job in Shanghai. The applicant confirmed that he is no longer married and that he and his ex-wife had separated in 2016, before the visa was cancelled. He told the Tribunal that he had not informed the department of the separation.

20. Following the hearing, the Tribunal wrote to the applicant with information it considered would be the reason or a part of the reason for affirming the decision under review and also provided a copy of the non-disclosure certificate.

21. The response from the representative was that the applicants are victims of fraud and that s.137Q does not apply. It was submitted that the applicant was not aware of the deception, and had obtained the offer of employment from a dishonest agency believing that the agents could represent Global Traffic (QLD) Pty Ltd. It was submitted that several calls were made to the agent regarding when employment would commence which demonstrated his genuine attempts to commence employment. In respect of the $10,000 paid by the applicant to the agent, it was submitted that this was reasonable and that the amount paid should not lead to a conclusion that the applicant had any awareness that the employment was not a genuine position. It was submitted that the applicant was the victim of fraud and should not be held accountable for not commencing employment.

    Validity of cancellation

22. The representative has submitted that the decision letter contained a typographical error in respect of the applicant’s name. The Tribunal has considered this submission but does not accept that a typographical error with the applicant’s name in the decision letter invalidates the decision. It notes s.137S requires the Minister to give notice of the decision to cancel the visa but that failure to give notice of the decision does not affect the validity of the decision.

23. The Tribunal also rejects the submission that the cancellation should be reversed under s.137Q and that the grounds for cancellation of the applicant’s visa should have been considered under s.116 because the applicant was a victim of fraud. As the applicant held a regional sponsored employment visa, Subdivision GC - Cancellation of Regional Sponsored Employment Visas under Division 3, Part 2 of the Act clearly has relevance to this cancellation. It is unclear to the Tribunal why the provision of s.116 is considered to be more appropriate in these circumstances. Whether he is the victim of fraud is relevant to the discretion as to whether the visa should be cancelled or not, and not which section of the Act his visa should have been cancelled under.

    Whether the ground of cancellation exists - employment not commenced

24. Under s.137Q(1) the Minister may cancel the visa if satisfied that the visa holder has not commenced the employment referred to in the relevant employer nomination within the period prescribed by the regulations and the person does not satisfy the Minister that they have made a genuine effort to commence that employment within that period. The relevant periods are specified in r.2.50AA.

25. There is no dispute that the applicant did not commence employment with Global Traffic (QLD) Pty Ltd as a Marketing Officer. He did not do any work for the nominator after the Subclass 187 visa was granted as required despite claiming to be aware of the obligations.

26. The applicant claims to be an innocent victim of fraud, and that he was not aware that the employment was not genuine. The Tribunal has doubts about this. When responding to the notice of intention to consider cancelling his visa (NOICC), he claimed to have his application and phone interview with the human resource section of the business, but on review has also claimed that it was all arranged by the agent he had previously used. The applicant knew the name of the business and the location of the business, and claims that he made an attempt to contact somebody responsible for recruitment/employment at the business regarding his employment but was not given a definitive answer. The Tribunal would expect that if the applicant had actually made an attempt to contact the human resource section of the business, then the response would be similar to that given to the department during the investigations, that they had no records of his employment. The applicant states that he was aware of his obligation to commence employment within 6 months. If the applicant had genuinely expected to commence employment with Global Traffic (QLD) Pty Ltd, and made several attempts to contact the employer and/or the agent he used to secure the nomination and visa to no avail, the Tribunal would have expected the applicant to then contact the department. But he did not contact the department. The applicant had said in his response to the NOICC that the letter grant said that the visa “may be” cancelled so he did not understand the seriousness of not commencing employment and that he had been advised by migration advisers that it was not possible to cancel the visa unless the employer reported him to the department. While there is nothing before the Tribunal to confirm his claim about the advice he obtained, it certainly does not appear to be reliable. In any case, it seems to the Tribunal that the applicant was hoping that his visa would not be cancelled because he did not believe the employer would report him and/or he did not believe it would come to the attention of the Immigration department.

27. The applicant said that he was aware that his visa was granted on the basis that he would be employed in regional Australia for at least two years. But instead, he remained in Sydney and lodged a citizenship application in 2016 which included his wife, who he told the Tribunal that he had been separated from since 2016. He has never informed the department that he has separated from his wife, even though the response to the NOICC was given to the department in April 2017. The applicant did not commence employment, did not relocate to a regional part of Australia, did not inform the department that he had not commenced employment and then lodged a citizenship application. He did not inform the department that he was divorced from his wife, but instead said that he had to remain in Sydney instead of moving to regional Australia as his wife was living in Sydney from the visa grant date. The Tribunal does not consider these actions to be those of an individual who is a victim of fraud. It considers the applicant was attempting to obtain a benefit, permanent residency, based on a nomination from an employer that he had no intention of working for. The applicant even took steps to obtain citizenship, knowing that he had not complied with the Subclass 187 visa obligations.

1. The Tribunal has taken into account the comments and response to the information. The Tribunal accepts that the applicant used the services of a migration agent to lodge his visa application, as set out in the visa application form. It accepts that the visa application fee was paid on his behalf by an agent. In terms of the $10,000 in fees, the Tribunal considers the amount of itself inconclusive as to the knowledge of the applicant. It accepts that fees paid to migration agents will include a service fee component in addition to the visa application fee, but notes that the applicant has not provided any corroborative evidence of the total amount paid to that agent for their services. Given his different responses as to whether he had direct contact with Global Traffic (QLD) Pty Ltd prior to the nomination, the Tribunal has doubts that he was not aware that the position was never genuine. In any case, the Tribunal considers that he became aware that there was an issue shortly after the visa grant. None of the applicant’s assertions as to the number of attempts made to contact his former agent and/or the business directly have been supported by any evidence of these attempts. He claims that he used WeChat and mobile calls to communicate, which may explain why there are no records which can be provided. Nonetheless, the Tribunal found his evidence vague and unconvincing as to his attempts.  He did not give any specifics as to the dates of his attempts. Even if the Tribunal were to accept that the applicant did contact the employment agent regarding commencing employment, which it does not, it does not consider that contacting an employment agent several times is a genuine effort to commence employment. The applicant also claimed that he had spoken to somebody enquiring about his employment after his visa was granted by phoning the business directly, but did not give a name or date when this occurred.

2. If his account were true, and he had made genuine efforts, the Tribunal would have expected him to contact Immigration to advise that he had not been able to commence employment following his visa grant. The visa grant was based on his undertaking that he intended to live and work in a regional area for at least 2 years after the visa was granted. Instead, he remained in Sydney and made an application for citizenship in 2016 (his visa had only been granted in July 2015), despite never commencing employment. He did not attempt to move to the location for which his regional employment was supposed to be based. It thus appears to the Tribunal that he was attempting to obtain permanent residency and then citizenship for himself on a false premise - that he would be working in regional Australia as a marketing officer for at least two years.

3. The Tribunal has had regard to the submissions that the applicant was not aware of the fraud allegations regarding the employer and accepts that he had used an employment agency to find the position for him. The applicant claims that if he knew there was fraud involved, he would have obtained permanent residency some other way. He made a citizenship application in a relatively short time after his visa was granted, and the Tribunal does not consider that he had any genuine intention to work as a Marketing Officer for Global Traffic (QLD) Pty Ltd. He included his former wife in his citizenship application, and continued to refer to the other applicant as his wife in his response to the NOICC. He did not inform Immigration that they had separated/divorced despite telling the Tribunal that they had separated in 2016, and that it had happened prior to the visa being cancelled.

4. The Tribunal is not satisfied that the applicant made a genuine effort to commence employment with Global Traffic (QLD) Pty Ltd because he had not informed Immigration and did not make any efforts to relocate to the regional area of Australia as required by his visa. It has serious doubts that the applicant was not aware that his sponsorship was not a genuine offer of employment.

5. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.137Q exists. As the power to cancel under s.137Q is discretionary, the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

   Consideration of discretion

6. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘Regional sponsored employment visa cancellation’.

7. The applicant came to Australia in 2008 to study when he was 17. The applicant had stated in his response to the notice to consider cancellation of his visa that he had met a lot of good people and made new friends and considers Australia his new home. He did not think the grounds to cancel his and his wife’s visas were justified. The Tribunal does not consider that the length of time he has been in Australia and that he has studied and made friends here a reason for not cancelling the visa.

8. The applicant claims that the circumstances were exceptional and out of his control and that he should not bear the punishment for not commencing employment with Global Traffic (QLD) Pty Ltd, and they should bear some responsibility. The Tribunal understands that Mr Perry Meka’s involvement is, or has been, under investigation. Regardless of the outcome of the investigation and whether any penalties were imposed on the business(es) and Mr Meka, the applicant stood to benefit from the fraud and did not take any steps to inform Immigration that there was a problem with his employment.

9. The applicant has said that he was not aware of the regional employment being a fraud, and that he would have tried to obtain permanent residency some other way if he been aware. While the applicant claims he was not aware that the process was fraudulent and the employment was not genuine, of which the Tribunal has doubts, he would have become aware that he was not going to commence employment with Global Traffic (QLD) Pty Ltd shortly after the visa was granted in July 2015. The applicant did not make any attempts to inform or engage with the department at any stage prior to being contacted about the visa cancellation in January 2017.

10. The Tribunal has taken into account that the applicant wishes to have permanent residency in Australia. He made a citizenship application in a relatively short time after his visa was granted, and the Tribunal does not consider that he had any genuine intention to work as a Marketing Officer for Global Traffic (QLD) Pty Ltd. He included his former wife in his citizenship application, and continued to refer to the other applicant as his wife in his response to the NOICC. He did not inform Immigration that they had separated/divorced despite telling the Tribunal that they had separated in 2016, and that it had happened prior to the visa being cancelled.

11. It acknowledges that another party’s visa has also been cancelled under s.137T. The visa was granted to the applicant on the basis that he would be employed for at least two years in regional Australia and he remained in Sydney until his departure for China following his visa cancellation. The applicant’s ex-wife remains in Australia. The Tribunal does not consider that the consequential cancellation of another party’s visa to be a reason for not cancelling the applicant’s visa, particularly given that the other party was granted the visa as his spouse, and they now claim to be divorced.

12. Aside from the possibility that the applicant may not be able to re-enter Australia without applying for another visa, there are no relevant mandatory legal consequences of the cancellation such as detention, as the applicant has since departed Australia. On review, submissions were made regarding the religious beliefs of the applicant’s ex-wife. However, while she is claiming to fear persecution if she were to return to China because of her religious beliefs, the applicant himself returned to China and has found employment. The Tribunal notes that the former wife and the applicant are no longer spouses. It has taken into account that submissions have been made that the cancellation would lead to removal in breach of Australia’s non-refoulement obligations but notes that his former wife is able to make a protection visa application herself while in Australia if she wishes to. According to the information provided by the applicant at the hearing and in the submissions, they are divorced and she is no longer a member of his family unit. The Tribunal does not consider that the other applicant’s fear of persecution if she were to return to China is a reason for not cancelling the applicant’s visa.

13. The Tribunal has had regard to the submissions that the applicant was not aware of the fraud allegations regarding the employer and accepts that he had used an employment agency to find the position for him. The applicant claims that if he knew there was fraud involved, he would have obtained permanent residency some other way. This seems to have been the ultimate goal.

14. Considering the circumstances as a whole, the Tribunal concludes that the visa should remain cancelled.

    DECISION

15. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 187 -  Regional Sponsored Migration Scheme visa.

16. The Tribunal has no jurisdiction with respect to the other applicant.

    Wan Shum

    
    

    Member