Wang (Migration)

[2017] AATA 745

Wang (Migration) [2017] AATA 745 (16 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Mian Wang
Ms Wang
Mr Bu Wang

CASE NUMBER:  1516342

DIBP REFERENCE(S):  Bcc2015/888999

MEMBER:Antonio Dronjic

DATE:16 May 2017

PLACE OF DECISION:  Melbourne

DECISION:The tribunal remits the applications for Skilled (Residence) (Class VB) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 887 (Skilled - Regional) visas:

·Public Interest Criterion 4020 for the purposes of cl.887.223 of Schedule 2 to the Regulations.

Statement made on 16 May 2017 at 2:46pm

CATCHWORDS

Migration – Skilled (Residence) (Class VB) visa – Subclass 887 (Skilled-Regional) – Bogus documents/Misleading information – Misleading information regarding previous skill visa application – 3 year ban – Waiver provision – Compelling circumstances – Businesses provide employment for Australians

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 887.223, PIC 4020

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 11 November 2015 to refuse to grant the applicants Skilled (Residence) (Class VB) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 19 March 2015. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of Public Interest Criteria 4020(2) for the purposes of cl.887.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. According to the primary decision record submitted by the applicants with their review application, the first named applicant was refused a visa on a ground of providing a bogus document or false and misleading information to the department in relation to the application for a skilled visa subclass 190. This application was refused by the delegate on 22 February 2013. As the current visa application was lodged at the department on 19 March 2015, the delegate found that the PIC 4020(2) is engaged. The delegate further found that waiver criteria as per PIC 4020(4) was not met and proceeded to decision on 11 November 2015.

4. The applicants lodged the applications for review with the tribunal on 27 November 2015. The applicants were represented in relation to the review by their registered migration agent. With the application, they submitted the following relevant documents:

   ·Legal submissions claiming that PIC4020 bar was wrongfully imposed; that the three years bar should be waived, and if the tribunal does not waive the requirements of PIC 4020(2), the tribunal should refer the matter to the Minister for the exercise of his discretion under s.351 of the Act. The applicant’s representative sought waiver of PIC4020 (2) arguing the existence of compelling circumstances affecting the interest of Australia that would justify the visa grant. He submitted that the applicant is operating a successful export-import business in Australia and employs Australian citizens. If he is no longer able to stay in Australia, his employees and his business partner would suffer significant financial loss. The representative further submitted that the interest of Australia would be affected in terms of ‘reduction of taxation income’. It was further submitted that the applicant makes charity contributions and is actively contributing to the prosperity of Australian economy;

   ·Copy lease agreement for shop 11 and 11A, Erskine Shopping Centre at Mandurah signed by the applicant in April 2013;

   ·Bundle of tax invoices related to payment of rent by the business operated by the applicant (Leather Time Bag and Case);

   ·Copy certificate of registration of a trademark dated 11 June 2014 related to girls and ladies clothing issued to the applicant;

   ·ASIC extract as evidence of registration of a business name Dawn Town by the applicant on 21 October 2013;

   ·Copy GST registration for King Stage Pty Ltd dated 12 June 2015

   ·ABN registration of King Stage Pty Ltd dated 11 June 2015;

   ·Financial records for the year ending 30 June 2013 for Mr Wang trading as Leather Time Bag and Case;

   ·Financial records for the year ending 30 June 2014 for Mr Wang trading as Leather Time Bag and Case;

   ·Financial records for the year ending 30 June 2015 for Mr Wang trading as Leather Time Bag and Case;

   ·Bundle of PAYG payment summaries for employees of the applicant’s business;

   ·Document headed ‘Employees Summary” listing the employees and periods of employment at the applicant’s business;

   ·Joint Statement made by Mian and Ke Wang dated 26 November 2015, outlining their immigration history; stating that in March 2013 Mr Wang set up his first retail shop in Australia which traded under the name of Leather Time Bang and Case; that in October 2013 he set up another shop that traded under the name of Dawn Town; that he invested over $300,000 in these businesses; that he employed 4 part time employees at these two shops and that in June 2015 his business was ‘upgraded’ from a sole trader to a private company named King Stage Pty Ltd. The applicants further stated that in March 2015, Mr Wang set up another company West Reflection Pty Ltd with a business partner Mr Qiang Zhang who is an Australian licenced custom broker and that he invested additional $200,000 in this company. It was submitted that Ms Wang is volunteering at the school attended by their son and that Mr Wang joined a Baptist church as a volunteer (enclosing two Certificates of appreciations);

   ·Character Reference Letters provided by employees of Foundation Christian College (list is at tribunal folio 109);

   ·Bundle of character reference letters for the applicant and his family provided by their friends (lists are at tribunal folios 114 and 130); and

   ·Bundle of BAS statements for the applicant dating from March 2013 to March 2015.

5. On 28 February 2017, the tribunal wrote to the applicants advising them that it considered material before it and was unable to make a favourable decision on this material alone and invited the applicants to attend the hearing on 2 May 2017.

6. On 18 April 2017, the applicant’s representative, Mr Christopher Levingston, wrote to the tribunal submitting that the applicant did not provide a bogus document in relation to his application for subclass 190 visa.

7. On 27 April 2017, the applicant’s representative, provided legal submissions arguing that the work reference letter provided by the applicant with his application for subclass 190 visa was not a bogus document. He enclosed a copy of the work reference letter dated 6 January 2012 written by Mr Wang Zhuojun.

8. The applicants appeared before the tribunal 2 May 2017 to give evidence and present arguments. The tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicants were represented in relation to the review by their registered migration agent who attended the tribunal hearing.

9. In his evidence, Mr Wang stated that he first arrived in Australia in November 2012 as a holder of a subclass 475 visa that was valid until 6 November 2015. He confirmed that he applied for subclass 190 visa on 31 August 2012 and that the department refused this application on 22 February 2013 because the delegate found that he had provided a bogus document in a form of a work reference letter with his visa application. The application for subclass 190 visa was therefore refused because he failed to meet the PIC 4020(1) for the purposes of cl.190.216.

10. I noted that in his submissions, the applicant disputes that he provided a bogus document with the application for subclass 190 visa. I explained to the applicant that I am not reviewing the decision to refuse a subclass 190 visa application. I explained to the applicants the requirements of PIC 4020(2) and cl.887.223. I further explained to the applicants that the tribunal tasks is to determine whether the decision on the earlier visa application was in fact ‘because of’ the provision of a bogus document or false or misleading information and if so whether circumstances exist that fall within the requirements of PIC 4020(4)(a) or (b) which justify the granting of the visa and, therefore, the requirements of PIC 4020(2) should be waived.

11. The applicants’ representative requested additional time to provide legal submissions on this issue. I noted that the representative was appointed more than 12 months ago and that he had sufficient time to provide legal submissions. I indicated that I will make decision on his request after I take the evidence from the review applicant.

12. I noted that the applicants’ representative requested that the tribunal waive the requirements of PIC 4020(2) and if the tribunal is not willing to do so, refer the matter to the Minister for the exercise of his discretion under s.351 of the Act.

13. I explained to the applicant that the tribunal had regard to the Minister’s Guidelines on ministerial powers and will not refer the matter to the Minister. According to Minister’s Guidelines, amongst cases that should not be brought to his attention are cases where a person was found not to satisfy a fraud related PIC for the grant of visa.  

14. I inquired with the applicant if he applied for any other visa either from offshore or while in Australia. He stated that his company, King Stage Pty Ltd, lodged the nomination application with the department in December 2016, for the purposes of subclass 187 visa application. He reiterated that he did not lodge visa application and was in Australia at the time when the business lodged nomination application with the department.

15. I noted that in his submissions of 27 November 2015, his, than representative, submitted that there are compelling circumstances that affect the interests of Australia that justify the granting of the visa. I invited the applicant to raise any additional compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen, that justify the granting of the visa.

16. Mr Wang stated that he is currently the proprietor of two Australian companies. In March 2013, he opened his first retail shop in Australia which traded under the name of Leather Time Bang and Case and in January 2014 he opened another retail shop that traded under the name of Dawn Town.

17. In May 2015, he registered King Stage Pty Ltd which currently operates both retail shops and undertakes wholesale activities. Mr Wang hols 65% of the company shares and remaining 35% is owned by his Australian business partner. Both Mr Wang and his business partner are company directors. The company’s turnover for 2015 financial year was approximately $500,000. The company employs four part time employees and all of them are Australian citizens or Australian permanent residents. Mr Wang is employed by the company as a Managing Director and is paid wages by the business. During the past financial tear, the company operated with a profit of approximately $5,000.  

18. In May 2015, together with his business partner, the applicant registered another company named Brook International Customs and Logistics Pty Ltd. Mr Wang and his partner hold 50% of shares each and both of them are company directors. The business helps its customers to do custom clearance, is engaged in freight forwarding and import and export of goods. The company has no employees and its turnover in 2015 financial year was approximately 200,000 to 300,000. During the past financial tear, the company operated with loss.

19. I inquired whether these two businesses will have to close if the applicant is no longer allowed to reside in Australia. Mr Wang stated that the business has a five years lease agreement for the shops; that it will be difficult to continue to operate the businesses if he is not in Australia because he works as a Managing Director of King Stage Pty Ltd. He stated that the businesses will have to close if he is not allowed to remain in Australia. I inquired why his business partner would not be able to continue operating businesses. Mr Wang stated that his business partner lacks sales experience.

20. Mr Wang submitted that he has provided many character reference letters with his application; that he made contribution to Australian society by bringing Asian culture to Australia and that by allowing people like him and his family, the Australia will achieve the best immigration outcome.

21. I granted the applicants additional time until 9 May 2017 to provide further submissions and documentary evidence in support of their applications.

22. On 6 May 2017, the applicants’ newly appointed representative sought an extension of time to provide submissions and additional documentary evidence. The tribunal granted an extension of time until 16 May 2017.

23. On 16 May 2017, the applicants’ representative submitted:

    ·Legal submissions acknowledging that the previous representatives focused rather heavily on the merits of the Department’s decision in relation to the refusal of the190 visa application under PIC4020(1) and conceding that this is not within the scope of the current  AAT review. The current submissions are focused on waiver provisions as per PIC 4020(4). It was submitted that the following compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen justify the grant of visas to the applicants:

    oSignificant time has lapsed since the initial subclass 190 refusal decision (over four years ago);

    oThe incident causing the review applicant to fail PIC4020(1)(b) is an out-of character, one-off occurrence;

    oGeneral good behaviour of the applicant is established by various character reference submitted to the AAT;

    oThe first named applicant’s business partner, Mr Qiang Zhang is an Australian citizen who made significant financial investment ($210,000) in two companies he operates jointly with Mr Wang. It was submitted that if Mr Wang is no longer able to remain in Australia, both businesses will have to close and as a result, Mr Zhang and his partner will lose their significant investment and suffer severe financial and emotion hardship;

    oA current part time employee of King Stage Pty Ltd, Ms Lea, who is an Australian citizen, will lose her job and would suffer extreme financial hardship as she rely heavily on the income generated from her current employment;

    oA current employee of King Stage Pty Ltd, Ms Raven,  who is an Australian citizen, will lose her job and would suffer financial hardship;

    oIn the event of the winding-up of the businesses (an inevitable outcome of the review applicant’s departure from Australia, should the waiver not be exercised in his favour), the lessors (the business owners by extension) from whom the businesses are leasing the property, would also might also suffer significant loss, should business cease operating and the shareholder(s) become bankrupt;

    oExplanation how will the applicants be affected if the tribunal decides not to waive the requirements of PIC 4020(2)

    ·Statutory Declaration of Mr Qiang Zhang dated 11 May 2017, explaining how Mr Zhang will be emotionally and financially affected if Mr Wang is no longer able to remain in Australia; stating that Mr Wang plays an essential and vital role in both companies; explaining that two shops operated by King Stage Pty Ltd are located in Western Australia and that, because he lives and works at Melbourne, he would not be able to continue to operate these businesses; stating that if the businesses are closed he would lose $210,000 that he invested in the businesses; will have to pay the rest of the lease for two shops which will cause en extreme hardship for him;

    ·Statutory Declaration of Ms Ze Qing Fan (Mr Qiang Zhang’s partner) dated 10 May 2017;

    ·Statutory Declaration of Ms Joyce Lea (an Australian citizen and a part time employee of King Stage Pty Ltd) dated 15 May 2017 stating how she will be affected if the business ceases its operations;

    ·Ms Ke Wang’s Statutory Declaration (the second named applicant) dated 11 May 2017 explaining how she and her family will be affected if the tribunal decide not to waive the PIC 4020(2);

    ·Mr Wang’s Statutory Declaration fated 15 May 2017, reiterating statements previously provided to the tribunal and explaining that his current employees will be adversely affected if the business ceases its operations;  

    ·ASAIC Company extract for Brook International Customs And Logistics Pty Ltd, as evidence of equal shareholding in this business by Mr Wang and Mr Zhang;

    ·ASAIC Company extract for King Stage Pty Ltd, as evidence of Mr Zhang’s directorship and shareholding in this business;

    ·ANZ Bank statements as evidence of Mr Zhang’s investment in Brook International Customs And Logistics Pty Ltd;

    ·Copy BAS Statements related to the fort named applicant’s business;

    ·Copy Tax Assessment notice for Mr Wang for 2016 financial year; and

    ·Copy correspondence exchanged between the applicant and his advisors. (titled supplementary information)

24. The applicants requested the tribunal member to suppress the publication of the review applicants’ names under section 378 of the Act, when publishing its decisions, on the basis that the child applicant is under the age of 18, and does not wish to be identified.

25. For the following reasons, the tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

26. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.887.223 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: cl.4020(1); and

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

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

    ·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy cl.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: cl.4020(2B) and (2BA).

27. The requirements in cl.4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: cl.4020(4). However, this waiver does not apply to the identity requirements in cl.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?

28. There is no evidence before me that the applicants submitted a bogus document, or false or misleading information in relation to their current visa application.

    Has a visa previously been refused on the basis of a failure to satisfy cl.4020(1)?

1. Clause 4020(2) requires the tribunal to be satisfied that the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy cl.4020(1) in the period commencing 3 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: cl.4020(2AA). 

2. Based on the evidence before me, including the oral evidence of the first named applicant given at the hearing and a copy of the departmental decision record dated 22 February 2013 related to the refusal of the application for subclass 190 visa, I am satisfied that the first named applicant was refused a visa because of a failure to satisfy cl.4020(1) in the period commencing 3 years before the application was made and ending when the visa is granted or refused. The second named applicants were refused a subclass 190 visas on the basis that they were not members of a family unit of a person who holds subclass 190 visa.

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

3. The requirements of cl.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.

4. 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.

5. Based on the evidence before me, including financial records for the first named applicant’s business; copies of BAS statements; ASIC extracts; list of employees at the first named applicant’s business; statutory declarations provided by the first named applicant, his business partner and his wife; I accept that the first named applicant and his partner operate two businesses in Australia. I further accept that these two businesses provided and continue to provide employment for Australian citizens and permanent residents who will be adversely affected if the businesses cease to operate. This finding is based on statutory declarations provided by Ms Lea, Ms Raven and Mr Zhang.

6. Based on the statements provided by the first named applicant, Mr Zhang and his partner, I am satisfied that the first named applicant’s business partner, Mr Qiang Zhang is an Australian citizen and that he made significant financial investment in two companies operated jointly with Mr Wang. I accept that if Mr Wang is no longer able to remain in Australia, both businesses will have to close and as a result, Mr Zhang will suffer severe financial hardship.

7. I also accept Mr Zhang’s statement that without Mr Wang, he would not be able to run the businesses and will have to close them. Consequently, Australia’s trade or business opportunities would be adversely affected.

8. I observe that the department refused the applicants’ application for subclass 190 visa on 22 February 2013 and that 3 years ban expired on 22 February 2016.

9. I have considered more than 30 character reference letters provided in support of the applicants’ request to this tribunal to waive the requirements of PIC 4020(2) and I accept that many of the Australian citizens who submitted these letters will be adversely affected if the applicants are unable to remain in Australia.

10. In deciding whether to waive the PIC 4020(2) I did not consider how will my decision effect the applicants as only the circumstances affecting Australia, Australian citizens or permanent residents or eligible New Zealand citizens, are relevant for the tribunal consideration of PIC4020(4).

11. I am satisfied that the claims and evidence before me, on cumulative basis, constitute compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen, permanent resident or eligible New Zealand citizen that would justify the granting of a subclass 887 visa to the applicant.

12. Accordingly, the tribunal finds that the applicant satisfies the requirements of PIC 4020(4).

    Has the applicant satisfied the identity requirements?

13. Clause 4020(2A) requires an applicant satisfy the tribunal as to his or her identity. 

14. Having regard to the visa applicants’ passports located on the Department's file the tribunal is satisfied as to the visa applicants’ identify. Therefore, the applicants meet PIC 4020(2A).

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

15. Clause 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 cl.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: cl.4020(2BA).

16. There is no evidence before the tribunal that the applicant or members of his family have been refused a visa because of a failure to satisfy identity requirements during the relevant period. Therefore the applicant meets PIC 4020(2B).

17. On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl.887.223.

    Non-publication Order

18. The applicants requested the tribunal member to suppress the publication of the review applicants’ names under section 378 of the Act, when publishing its decisions, on the basis that the child applicant is under the age of 18, and does not wish to be identified.

19. In order to restrict the publication of certain matters, the tribunal must be satisfied that it is in the public interest to do so. The tribunal notes that the decision record contains the name of the child who is under 18 years of age. This, in my view is not the matter of public interest and I decided not to restrict the publication of this decision.

    DECISION

20. The tribunal remits the applications for Skilled (Residence) (Class VB) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 887 (Skilled - Regional) visas:

    ·Public Interest Criterion 4020 for the purposes of cl.887.223 of Schedule 2 to the Regulations.

    Antonio Dronjic
    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. 

    …