Wisdom Investments Group Pty Ltd (Migration) - [2023] AATA 2248

Wisdom Investments Group Pty Ltd (Migration) [2023] AATA 2248 (12 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Wisdom Investments Group Pty Ltd

REPRESENTATIVE:  Ms Liuzhuo Chen (MARN: 1687418)
CASE NUMBER:  1927017
HOME AFFAIRS REFERENCE(S):          OPF2019/5239
MEMBER:Antonio Dronjic
DATE:12 January 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to take one or more of the actions specified in s 140M of the Migration Act 1958.

Statement made on 12 January 2023 at 1:47pm
CATCHWORDS
MIGRATION – sponsorship bar – satisfaction of sponsorship obligation – providing records – personal bank statements – business bank account statements – other payment records – false or misleading information – net salary amounts – discrepancies between payslips and bank statements – lack of knowledge on how to use the software – lack ‘purposeful falsity’ – sponsorship application or variation criteria no longer met – adverse information – Illegal Worker Warning Notice (IWWN) – whether reasonable to disregard – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 140L, 140M
Migration Regulations 1994 (Cth), rr 1.13A, 2.59, 2.83, 2.89, 2.90, 2.91
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 take an action under s 140M of the Migration Act 1958 (Cth) (the Act) in relation to the applicant’s sponsorship.
The applicant was last approved as a standard business sponsor on 14 June 2016 for a period of five years. On 10 September 2019, the delegate decided to bar the applicant for 24 months from making applications for approval as a standard business sponsor and temporary activities sponsor under s 140M of the Act. The delegate found that:
·     The applicant failed to satisfy a sponsorship obligation by failing to provide records and information to the Minister (reg 2.83);
·     The applicant provided false or misleading information (reg 2.90); and
·     The application or variation criteria was no longer met as the applicant has been the subject of administrative action by a Department (Australian Border Force) that administers or enforces the law and therefore circumstances at reg 2.91 exist.
The applicant lodged an application for review with the Tribunal on 25 September 2019. The delegate’s decision record submitted with the review application by the applicant contains a summary of the monitoring of the applicant undertaken by the Department and the ongoing correspondence between the Department and the applicant, including a Notice of Intention to Take Action (NOITTA) dated 16 July 2019 and the applicant’s response to the notice of 27 August 2019.
On 9 October 2019, the Department issued a s 375A non-disclosure certificate in respect of three documents provided to the Tribunal. On 22 October 2022, the Tribunal wrote to the applicant’s authorised person, inviting her comments on the validity of the s 375A non‑disclosure certificate.
On 5 October 2022, the applicant’s representative provided submissions and documentary evidence in support of the application. The list of documents is attached to this decision record and marked Attachment A.
On 4 November 2022, the Department issued a new s 375A non-disclosure certificate in respect of the same three documents previously covered by the certificate from 9 October 2019. This time a new s 375A certificate stated that disclosing the information would be contrary to public interest because it would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods, and where the information was provided in confidence, the provider of the information has not consented to the disclosure of the information to the review applicant.
On 18 November 2022, the applicant’s representative provided submissions and documentary evidence in support of the application. The list of documents is attached to this decision record and marked Attachment B.
By letter dated 28 November 2022, the Tribunal noted that it had considered the material before it but was unable to make a favourable decision on this information alone. Accordingly, the Tribunal invited the authorised person to appear before it to give evidence and present arguments relating to the issues arising in relation to the application for review at a hearing on 10 January 2023.
Ms Chen appeared before the Tribunal on behalf of the applicant in her role of a company director and managing director to give evidence and present arguments. 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 decided to set aside the decision under review and substitute a decision not to take one or more of the actions specified in s 140M.
CONSIDERATION OF CLAIMS AND EVIDENCE
Sections 140K, 140L and 140M of the Act provide for the imposition of sanctions on approved sponsors in certain circumstances.
Under s 140M, if prescribed circumstances exist, the Minister (and the Tribunal on review) may take one or more of the following actions:
·     cancelling the sponsorship approval in relation to a class to which the sponsor belongs;
·     cancelling the sponsorship approval for all classes to which the sponsor belongs;
·     barring the sponsor for a specified period from sponsoring more people under the terms of any existing approval; and
·     barring the sponsor for a specified period from making future applications for sponsorship approval in relation to one or more classes of sponsor.
For these purposes, the circumstances are prescribed in regs 2.89–2.94B and include circumstances in which the Minister, or Tribunal on review, is satisfied there has been: a failure to satisfy a sponsorship obligation; provision of false or misleading information; sponsorship application or variation criteria no longer met; a contravention of the law; unapproved changes to a program; a failure to pay additional security; a failure to comply with certain terms of an agreement; or a failure to pay medical and hospital expenses.
Where a prescribed circumstance has been found to exist, the Regulations prescribe criteria that must be taken into account when determining what action, if any, to take: regs 2.89–2.94B. These criteria, as they relevantly apply to the circumstances of this case, are set out in the Attachment C to this decision.
Preliminary matters
The Tribunal observes that bar on the sponsor imposed by the Department on 10 September 2019 for the period of 24 months expired on 10 September 2021.
At the commencement of the hearing, the Tribunal informed the applicant that it has reviewed the information on the Department’s files sought to be protected from disclosure. The Department attempted to protect the information that would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods. The information relates to a monitoring recommendation report, standard tactical plan and risk management assessment. The Tribunal’s preliminary view is that the s 375A certificate is valid and it explained the gist of the information to the applicant.
The Tribunal further explained to the applicant that, in making its decision, the Tribunal will not rely on those documents as they predominantly relate to the Department’s internal investigative methods.
Ms Chen stated that she has been living, studying and operating several businesses in Australia since 2008. In 2010, she completed master’s in management at Monash University. She has also completed several English language tests (including an IELTS test) where she achieved an average score of 7 or 7.5. The Tribunal was satisfied that Ms Chen has a good command of the English language and invited her to communicate with the Tribunal in the English language. The Tribunal further informed Ms Chen that, if at any point she is unable to understand the questions or finds it difficult to express herself in the English language, she should alert the Tribunal and it will then ask the interpreter to assist. Both Ms Chen and her representative agreed with this proposal.
Does a circumstance for the taking of an action exist?
In the present case, the delegate found that the applicant failed to satisfy a sponsorship obligation by failing to provide records and information to the Minister (reg 2.83); it provided false or misleading information (reg 2.90); and that the application or variation criteria was no longer met as the applicant has been the subject of administrative action by a Department (Australian Border Force) that administers or enforces the law and therefore circumstances at reg 2.91 exist.
Failure to satisfy a sponsorship obligation: reg 2.89
The Minister may take one or more of the actions in s 140M if satisfied the sponsor has failed to satisfy a sponsorship obligation referred to in Division 2.19 of the Regulations: reg 2.89(2).
On 17 June 2019, the applicant received a Notice requesting records and/or information and was advised that the applicant is required to comply with reg 2.83 of the Regulations to provide specified records. The applicant had 14 days to respond.
The Department requested documents and information regarding the sponsored person, Ms Chiu. Specifically, the delegate requested records of the money paid to Ms Chiu for the period 1 November 2018 to 30 April 2019 that are capable of being verified by an independent person.
On 30 June 2019, the applicant submitted various documents to the Department including Ms Chiu’s personal bank statements. According to the applicant’s explanation, the reason for providing personal and not business bank statements at that time was that the business bank statements did not display employees’ names but were only shown as “Multiple Transfers’.
The applicant also submitted that the request of 17 June 2019 did not specify that the bank statements had to relate to the business account and that the personal bank statement coming from Ms Chiu would satisfy the Department’s requirement as it is a document that can be verified by an independent person.
The Tribunal considered the Department’s request of 17 June 2019 and accepts the applicant’s submissions that the request does not specify the type of bank statements required.
Despite the applicant’s explanation why the business bank account statements were not provided earlier, the delegate concluded that, as the official business document was not provided within the timeframe of its very first request (by 1 July 2019), this was considered as a failure to provide records. In the primary decision record, the delegate acknowledged that the sponsor did not fail to keep the records requested but it had failed to provide said records when requested.
Apart from the required bank statement, the applicant provided other requested documents in a timely manner. The applicant submitted that a sponsor’s bank statement is not the only type of independently verifiable document that can demonstrate compliance with the sponsorship obligations under reg 2.82 and reg 2.83, and that the applicant in fact provided to the Department PAYG payment summaries and a report generated from Tax Agent Portal of the ATO. Both documents are independently verifiable documents evidencing the payment records of the employee. In addition, the applicant provided Chiu’s personal bank statements, Chiu’s payslips, time records and leave records.
The applicant further submitted that, upon receiving the NOITTA, it provided the correct business bank statements to the Department within the approved timeframe of the NOITTA and before the primary decision.
While the Tribunal acknowledges that the applicant did not provide the business account bank statements within the period specified by the delegate, the Tribunal accepts the applicant’s submissions that the failure to provide a single document in time (business bank statements) does not mean that the applicant failed to meet the obligations under reg 2.83, considering that other independently verifiable documents concerning the payment records were provided to the Department.
The Tribunal is satisfied that the other documents provided by the applicant to the Department, when considered in combination, would, in the Tribunal’s view, satisfy the obligation in reg 2.83. requiring the applicant to provide the types of records specified in reg 2.82. The Tribunal further notes that the applicant, upon receipt of the NOITTA, and before the delegate’s decision, provided its bank statements for the relevant period.
Accordingly, the Tribunal is not satisfied that the prescribed circumstance in reg 2.89 exists for the purpose of s 140M of the Act.
False or misleading information: reg 2.90
One or more of the actions in s 140M may be taken if the sponsor has provided false or misleading information to Immigration or the Tribunal: reg 2.90(2).
On 30 June 2019, the applicant submitted to the Department Ms Chiu’s bank statements and her payslips. The delegate found that the applicant provided false or misleading information because there were nine occasions where the net salary amounts on the payslips did not match the net salary amounts shown on Ms Chiu’s bank statements. The delegate concluded that the applicant provided payslip records misrepresenting the salary payments to its sponsored worker and that this constituted the provision of false and misleading information to the Department.
The question for the Tribunal is to determine whether discrepancies between Ms Chiu’s payslips and payments of her salary as recorded in her personal bank account statements constitute the provision of false or misleading information to the Department.
The applicant inter alia submitted that:
‘Payslip records provided to the Department are the exact same records recorded in the company’s system, generated by the applicant’s accounting software ‘Reckon’, issued by the applicant, and received by the sponsored person. The payslip records provided to the Department are the only version the applicant had. While all the information recorded in the provided payslips were correct, it was the applicant’s payment made that was incorrect’.
According to the applicant’s explanation, the discrepancies were caused using an accounting software (Reckon) that has a confusing interface. The sponsor mistakenly believed that the annual leave loading can be paid at the time of termination which resulted in the incorrect payments.
This is illustrated by the example provided by the applicant in its submissions:
‘Using the payslip for the pay period 12/11/2018-18/11/2018 as an example, all the information recorded on this payslip including the annual leave hours, annual leave rate and annual leave-loading rate, and net salary should be paid to the employee is correct and genuine. The sponsored employee should be paid $900.94 as net salary. However, the applicant only paid the sponsored employee $855.70. So, the sponsored employee was not paid correctly’
The applicant submitted that:
·     The owner does not have relevant background in accounting as she studied management only and she has not employed any accountant or bookkeeper to help her managing the payrolls;
·     Upon receiving the NOITTA, the applicant also immediately rectified its mistake by reimbursing the sponsored person for all past annual leave loading and provided payment proof to the department; and
·     After receiving the NOITTA, the applicant stopped using Reckon and started to use MYOB for payslips management.
There is no prescribed definition of the expression “false or misleading information” for the purposes of the reg 2.90. The question is determined based on the particular facts and circumstances.
Based on the evidence before it, the Tribunal is satisfied that payslips provided to the Department contain misleading information, as they imply that the applicant was paid the amount stated on the payslips. The Tribunal finds that, on nine occasions, the information recorded in the provided payslips does not correspond to the amount that was actually paid to the applicant as evidenced in her personal bank account statements.
Therefore, the payslips themselves misrepresent the actual amount that Ms Chiu received. This is not the case where discrepancies occurred because of a software error. It is rather the applicant’s lack of knowledge of how to use the software that resulted in the errors.
The applicant claims in its submissions that the applicant was not aware of this mistake before receiving the notification from the Department. The Tribunal notes that the information may be false or misleading even if the person who provided it did not know it was false or misleading.
The Tribunal accepts that the applicant had no intention to mislead the Department. The fact that the applicant submitted to the Department both documents (payslips and Ms Chiu’s personal bank statements) at the same time is an indication that the applicant did not have an intention to defraud or deceive the Department. Consequently, the essential element of ‘purposeful falsity’ of the information is lacking and the applicant therefore, in the Tribunal’s view, has not breached reg 2.90.
Accordingly, the Tribunal is not satisfied that the prescribed circumstance in reg 2.90 exists for the purpose of s 140M of the Act.
Criteria no longer met: reg 2.91
The Minister may take one or more of the actions in s 140M if the sponsor no longer satisfies the prescribed criteria for approval of the sponsorship or for variation of the terms of the sponsorship: reg 2.91(2).
In the present matter, the delegate found that the applicant no longer satisfies reg 2.59(g) as there was adverse information known to the Department about the applicant or a person associated with the applicant.
It is not disputed by the applicant that, on 23 May 2018, it was issued an Illegal Worker Warning Notice (IWWN) for employing illegal workers or individuals in breach of his or her visa conditions. On 20 June 2018, the applicant applied for a withdrawal of the IWWN and provided supporting documents and submissions. On 22 August 2018, the delegate decided not to withdraw the IWWN.
The Tribunal explained to Ms Chen that it does not have jurisdiction to review the validity of the IWWN of 23 May 2018. It further noted that it was conceded by her representative that the IWWN exists and as such it is ‘adverse information’.
‘Adverse Information’ is defined in reg 1.13A. In this case, reg 1.13A(2)(c) is applicable as the applicant has been the subject of an administrative action. According to the departmental policy guidance, administrative action adverse information includes information that the person has been issued with an IWWN for employing illegal workers or individuals in breach of their visa conditions.
The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[1] Specifically, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision-makers in relation to the application of the Act and the Regulations and that they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.[2]
[1] See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634
[2] See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429, Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; Visnumolakala v Minister for Immigration [2006] FMCA 1209; Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship [2007] FMCA 1492 at [55]

The applicant submitted that the delegate failed to consider reg 2.59(g)(ii) that enables the applicant to meet the criteria of a standard business sponsor despite adverse information is found as long as the decision-maker finds it is reasonable to disregard the adverse information. The Tribunal accepts this submission as the primary decision record contains no reference to the delegate’s consideration of reg 2.59(g)(ii).
According to the departmental policy guidance, factors that should be considered when deciding whether it is reasonable to disregard adverse information include:
·     the nature and seriousness of the adverse information;
·     whether the adverse information arose recently or a long time ago;
·     how the adverse information arose, including the credibility of the source of the adverse information;
·     whether the adverse information has been substantiated, for example, by a formal action or finding by a court, department or regulatory authority (a ‘competent authority’) – or whether there are investigations, disciplinary actions or proceedings that are not yet finalised;
·     where the adverse information is an unsubstantiated allegation, the credibility of the information and its source;
·     whether the conduct or circumstance of concern is likely to reoccur (including whether there have been steps taken to guard against this);
·     how relevant the adverse information is to the person’s suitability as an approved sponsor or nominator;
·     whether there are any compelling circumstances affecting the interests of Australia.
The Tribunal considered the above factors. Although the Tribunal considers information that a person has been issued with an IWWN for employing illegal workers to be serious and relevant to the sponsor’s suitability as an approved sponsor, the Tribunal finds that this notice was issued on 23 May 2018 – some four and a half years ago.
There are significant differences between the applicant’s and the Department’s version as to what happened and what was stated by the business owner and her brother during the Compliance visit conducted by the Department on 23 May 2018, which make the reliability of the source of the adverse information questionable. There was no audio recording of this interview.
The applicant claims that the business owner, Ms Michelle Chen, stated during the site visit that her brother, Mr Liang (Michael) Chen, only came to the restaurant on two occasions. According to the Compliance visit report notes of 23 May 2018, Ms Chen stated that her brother has been working at the restaurant for ‘one or two months’ and was not paid as he was just helping her in the kitchen for a few hours a day.
The applicant submitted documentary evidence in support of its claim that Mr Chen was not in Australia from 6 May 2018 to 22 May 2018 (he was in China) which contradicts the delegate’s findings that he was working in a restaurant for one or two months (the IWWN was issued with the dates from April 2018 to 23 May 2018).
The applicant also provided restaurant staff’s attendance sheets as evidence that Mr Chen’s name is not recorded on the attendance sheets of April and May 2018; restaurant’s roster of 23 May 2018 as evidence that Mr Chen did not work at the restaurant on that day and statutory declaration dated 29 May 2018 from Ms Chen explaining the misunderstanding and why her brother’s two attendances at the restaurant were in a domestic context; statutory declaration dated 29 May 2018 from Mr Chen and a letter from Mr Chen’s partner Ms Chiu confirming that Mr Chen did not work at the restaurant.
It was acknowledged in the Compliance visit report of 23 May 2018 that Ms Chen and her brother requested assistance of a Fuzhou interpreter. As there was no Fuzhou interpreter available, a Mandarin interpreter was arranged despite the explanation provided by Ms Chen that her brother could understand Mandarin but cannot respond in it.
The Tribunal acknowledges that the adverse information has been substantiated by way of the Department issuing the IWWN on 23 May 2018. However, the Tribunal also notes that Mr Chen’s visa was not cancelled by the Department because of the alleged breach of the no work condition imposed on his visa.
In her evidence, Ms Chen stated that on 29 May 2018, together with her brother and her representative, she attended the interview with the officers of the Department related to a Notice of Intention to Consider Cancellation (NOICC) issued in respect of her brother’s alleged breach of the no work condition imposed on his bridging visa. She gave evidence that the officer of the Department offered her a deal to accept the IWWN (stating that her brother was working in her restaurant) and, in exchange, the Department would not proceed with her brother’s visa cancellation. Again, no record of interview or audio or video recording of this interview was made available to the Tribunal by the Department (despite the Tribunal’s request made to the Department on 27 October 2022).
Given that Mr Chen has applied for a Subclass 186 visa as dependent family member of his partner, it is unlikely that the alleged conduct will reoccur.
Based on the evidence before it, the Tribunal is satisfied that it is reasonable to disregard the adverse information that the applicant was the subject of an administrative action. It follows that the applicant meets reg 2.59(g)(ii) for the purposes of reg 2.91(2).
Accordingly, the Tribunal is not satisfied that the prescribed circumstance in reg 2.91 exists for the purpose of s 140M of the Act.
Action to be taken
As the Tribunal finds that none of the circumstances for s 140L(1)(a) exist, it follows that the power to take an action under s 140M does not arise.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to take one or more of the actions specified in s 140M of the Migration Act 1958.
Antonio Dronjic
Member

Attachment A
·Australian Border Force. Notice requesting sponsorship records and/or information (with itemised documentary requirements numbered 1-9) dated 17 June 2019
o3.1 1 – Employment list
o3.2 3 – ASIC Office address change details
o3.3 3 – ASIC Officeholder change details
oMs Chiu payslips 29 October 2018 – 5 May 2019
o3.6 5 Yihsuan Chiu ANZ Access Advantage Bank statement 5 October 2018 – 5 December 2018
o3.8 5 Yihsuan Chiu ANZ Access Advantage Bank statement 5 December 2018 – 5 February 2018
o3.5. 5 – Yihsuan Chiu ANZ Access Advantage Bank statement 5 February 2019 – 5 April 2019
o3.7 5 Yihsuan Chiu ANZ Access Advantage Bank statement 5 April 2019 – 5 May 2019
o3.9 6 – Yihsuan Chiu time worked records. 29 October 2018 – 5 May 2019
o3.10 7 – Yihsuan Chiu leave record. 12 November 2018 to 26 April 2019.
oYihsuan Chiu Tax return 1 July 2017 to 30 June 2018. In line with 3.11 Point 8.
o3.12 9 – Yihsuan Chiu migration agent fee invoice for 457 visa and nomination. 12 September 2016.
o3.13 – Yihsuan Chiu Email between Michelle and Megan Growth at ABF re. payment summary not lodged with the ATO.
o3.14 – ATO Tax Agent Portal report. Yihsuan Chiu report PAYG Payment summaries. 9 July 2019.
o3.15 – Australian Border Force letter. Notice of Intention to Take Action dated 16 July 2019.
o3.16 – Statutory Declaration sworn by Donald Robert Stone declared at Apollo Bay on 27 July 2019.
o3.17 – Statutory Declaration sworn by Francis Damien Buhanan declared at Great Ocean Road Health on 27 July 2019.
o3.18 – Statutory Declaration sworn by Jacqueline Alexander Coutts (slightly illegible) declared at Apollo Bay on 26 July 2019..
o3.19 – Statutory Declaration sworn by Luyu Wang declared at Westpac Bank Apollo Bay on 29 July 2019.
o3.20 – Statutory Declaration sworn by Wantong Zhang declared at Ringwood on 28 July 2019.
o1.16 – NOICC – Department of Immigration and Border Protection dated 25 May 2018.
o1.17 – Record of decision whether to cancel visa. Department of Home Affairs dated 29 May 2018.
o1.15 – Form 1099 Notice of intention to consider cancellation under section 116 of the Migration Act 1958. – Liang Chen. Form appears to be incomplete. No date.
o4.13 – Multiple transfer details part 3.
o4.14 – Multiple transfer details part 4
o4.15 – Multiple transfer details part 5
o4.16 – Multiple transfer details part 6
o4.17 – Multiple transfer details part 7
o4.18 – Screenshot of application software.
o4.19 – Fungleafood Pty Ltd. Meat and Seafood invoices from 28 November 2018 to 10 July 2019
o4.20 – Statutory Declaration sworn by Chung Chia Lin at Apollo Bay on 29 July 2019.
o4.1 – Commonwealth Bank of Australia. Notification of annual leave loading transferred. From Danying Chen to mailto:[email protected]
o4.2 – SNG Partners letter to Danying Chen regarding annual leave loading dated 27 August 2019.
o4.3 – SNG Partners letter to Danying Chen advising when annual leave loading should be paid dated 30 July 2019.
o4.4 – Annual leave loading transferred screenshot. From Chinese restaurant to Yihsuan Chiu. 29 July 2019.
o4.5 – Commonwealth Bank of Australia Business Transaction Account bank statement. Statement no. 33 1 January 2019 – 31 March 2019. In the name of “Directors Unit 51 51-53 Great Ocean Road Apollo Bay Vic 3233.
o4.6 – Commonwealth Bank of Australia Business Transaction Account bank statement. Statement no. 32 1 October 2018 – 31 December 2018. In the name of “Directors Unit 51 51-53 Great Ocean Road Apollo Bay Vic 3233.
o4.7 – Commonwealth Bank of Australia. Wisdom Investments Group Pty Ltd. Business Transaction Account. Account information and list of transactions from 1 April 2019 – 30 April 2019.
o4.8 – Chinese passport biodata page copy. Chia-Lin Chung. Date of expiry 20 August 2025.
o4.9 – Colac Otway Shire health inspection report Apollo Surfcoast Chinese (Wisdom Investment Group Pty Ltd) dated 16 August 2018.
o4.10 – Letter of observation / support from delivery person Dongbo (illegible) from Funglea Foods regarding Yihsuan Chiu. Undated.
o4.11 – Multiple transfer details part 1.
o4.12 – Multiple transfer details part 2.
o1.6 – Receipt of dishwasher liquids. PHD Import and Export. Dated 4 may 2018.
o1.7 – Photograph of dishwashing liquid.
o1.8 – Nisbets Express Catering Equipment. Tax Invoice for dishwasher dated 17 April 2018
o1.9 – Chinese passport biodata page copy. Liang Chen. Date of expiry 12 August 2025, and Australian passport biodata page copy. Danying Chen. Date of expiry 22 August 2026.
o1.10 – Commonwealth Bank of Australia Smart Access bank account in the names of Yihsuan Chiu and Liang Chen. Account information and list of transactions from 1 November 2017 – 28 May 2018.
o1.11 – Staff attendance sheets April – May 2018.
o1.12 – Roster dated 23 May 2018
o1.13 – Wedding invitation and evidentiary photographs.
o1.14 – Department of Immigration and Border Protection. Form 956 Advice by a Migration Agent / exempt person of providing immigration assistance. 29 May 2018.
o1.0 – Email from Migration Agent to DIBP in response to NOICC. 29/5/2018
o1.1 – Further email from Migration Agent to DIBP in response to NOICC dated 29 May 2018
o1.2 – Statutory Declaration sworn by Danying Chen at Box Hill on 29 May 2018.
o1.3 – Statutory Declaration sworn by Liang Chen at Box Hill on 29 May 2018.
o1.4 – Cathay Pacific Passenger E-ticket receipt for Mr. Liang Chen for travel from Fuzhou China to Hong Kong on 19 May 2018, and then Hong Kong to Melbourne on 20 May 2018, then return Melbourne to Hong Kong 9 May 2018, and then Hong Kong to Fuzhou China on 9 May 2018. Travel from Fuzhou China to Hong Kong on 25 May 2018, and Hong Kong to Melbourne on 26 May 2018.
o1.5 – Applicant and sister’s household registration.
o2.2 – Attachment A – Household registration document.
o2.0 – Email sent from Migration Agent to Department of Home Affairs requesting the withdrawal of the Illegal Worker Warning Notice issued to Wisdom Investments Pty Ltd on 23 May 2018.
o2.1 – Email sent from Migration Agent to Department of Home Affairs regarding withdrawal of Illegal Worker Notice dated 20 June 2018.
o2.3 – Attachment B – Invitation letters submitted for previous visitor visa applications. Comprising of Invitation letter addressed to the Visa Officer, dated 21 December 2015; Invitation letter addressed to the Visa Officer dated 15 January 2017; ASIC Certificate of Registration of a Company – Wisdom Investments Group Pty Ltd. (19/12/2011); Westpac Bank proof of account balance. Danying Chen. 13 December 2016; REIV Contract of Sale of Real Estate. 11 McLennan Street Apollo Bay dated 21 October 2015
o2.4 – Attachment C – Statutory Declaration sworn by Liang Chen at Box Hill on 29 May 2018.
o2.5 – Attachment D – Statement by Yihsuan Chiu, defacto partner of Liang Chen, as an explanation of her partner’s situation dated 19 June 2018.
o2.6 – Attachment E – Commonwealth Bank of Australia Smart Access joint account in the names of Yihsuan Chiu and Liang Chen. Account information and list of transactions from 1 November 2017 – 28 May 2018.
o2.7 – Attachment F – Wedding invitation and evidentiary photographs.
o2.8 – Cathay Pacific Passenger E-ticket receipt for Mr. Liang Chen for travel from Fuzhou China to Hong Kong on 19 May 2018, and then Hong Kong to Melbourne on 20 May 2018, then return Melbourne to Hong Kong 9 May 2018, and then Hong Kong to Fuzhou China on 9 May 2018. Travel from Fuzhou China to Hong Kong on 25 May 2018, and Hong Kong to Melbourne on 26 May 2018.
o2.9 – Attachment H – Chinese passport biodata page Liang Chen. Date of expiry 12 August 2025.
o2.10 – Attachment I – Request from migration agent to Department of Home Affairs for movement records dated 8 June 2018.
o2.11 – Attachment J – Nisbets Express Catering Equipment. Tax Invoice for dishwasher dated 17 April 2018
o2.12 – Attachment K – Letter from Mike McQuinn Plumbing regarding the assistance he received from Liang Chen to install the commercial dishwasher that Apollo Surfcoast Chinese Restaurant on 17 April 2018. Dated 19 June 2018.
o2.13 – Attachment L – Invoice from Mike McQuinn Plumbing for installation of dishwasher on 30 April 2018.
o2.14 – Attachment M – Statutory declaration sworn by Danying Chen at Box Hill on 29 May 2018.
o2.15 – Attachment N – PHD Import & Export Receipt for dishwashing liquid dated 4 May 2018.
o2.16 – Attachment O – Photograph of dishwashing liquid.
o2.17 – Attachment P – Roster dated 23 May 2018
o2.18 – Attachment Q – Staff attendance sheets April – May 2018.
o2.19 – Attachment R – Email from Migration Agent to DIBP in response to NOICC. 29/5/2018
o2.20 – Submission – Email sent from Migration Agent to Department of Home Affairs regarding withdrawal of Illegal Worker Notice dated 23 May 2018.
o2.21 – Email sent from migration agent to Lisa Mingos at Department of Home Affairs regarding the location of Liang Chen when he was alleged to have worked dated 22 June 2018.
o2.22 – Attachment S – Movement records for Liang Chen, dated 22 June 2018
o2.23 – Email received from the Department of Home Affairs in response to email sent from migration agent on 22 June 2022.
o2.24 – Illegal Worker Warning Notice. Department of Immigration and Border Protection. Form 1155, with reference to Liang Chen and issued to Wisdom Investments Pty Ltd. 23 May 2018.
o2.25 – Department of Immigration and Border Protection. Decision on request to withdraw the Illegal Worker Warning Notice dated 212 August 2018.
o4.33 – Australian Border Force. Notice of Decision to Bar Wisdom Investments Group Pty Ltd for a period of 24 months from making applications for approval as a standard business sponsor and temporary activities sponsor dated 10 September 2019.
o4.21 – Statutory declaration sworn by Donald Robert Stone at Apollo Bay on 278 July 2019.
o4.22 – Statutory Declaration sworn by Francis Damien Buhanan declared at Great Ocean Road Health on 27 July 2019.
o4.23 – Statutory Declaration sworn by Jacqueline Alexander Coutts (slightly illegible) declared at Apollo Bay on 26 July 2019
o4.24 – Statutory Declaration sworn by Luyu Wang declared at Westpac Bank Apollo Bay on 29 July 2019.
o4.25 – Statutory declaration sworn by Danying Chen at Apollo Bay on 26 August 2019
o4.26 – Statutory declaration sworn by Wantong Zhang declared at Ringwood on 28 July 2019.
o4.27 – Statement by Fei Liu dated 29 July 2019
o4.28 – Nanyang Foodservice invoice dated 27 March 2019
o4.29 – Nanyang Foodservice invoice dated 22 May 2019
o4.30 – Nanyang Foodservice invoice dated 16 April 2019
o4.31 – Nanyang Foodservice invoice dated 27 February 2019
o4.32 – Video presentation of application software.
o5.8 – CCTV footage of Liang in Doncaster Melbourne on 22 May 2018.
oLegal submission from Bardo Lawyers undated.
o5.2 – Academic records for Danying Chen. 29 April 2010
o5.3 – Monash University proof of qualification letter. 2 March 2010
o5.4 – Social media chat records.
o5.5 – “Liang was out on 25 April 2018” – social media.
o5.6 – “Liang was out on 25 April 2018” – Social media.
o5.7 – Email from C Michelle to migration agent substantially in Chinese. Index tab states that this is a flight ticket to Taiwan for May 2018.
o5.0 – MYOB invoice addressed to Michelle Chen for dates 17 November 2019 – 30 November 2019.
o5.1 – Screenshots of ReckonOne payslips.
Attachment B
·6.0 – Fei Li current statement [declaration made 27 July 2019, signed and witnessed on 12 October 2022]
·6.1 – Chats between Chen and Chiu
ATTACHMENT C – Extract from the Migration Regulations 1994
2.89   Failure to satisfy sponsorship obligation
…
(3) For paragraph 140L(1)(b) of the Act, the criteria that the Minister must take into account in determining what action (if any) to take under section 140M of the Act in relation to the circumstance mentioned in subregulation (2) are:
(a)   the past and present conduct of the person in relation to Immigration; and
(b)   the number of occasions on which the person has failed to satisfy the sponsorship obligation; and
(c)   the nature and severity of the circumstances relating to the failure to satisfy the sponsorship obligation, including the period of time over which the failure has occurred; and
(d)   the period of time over which the person has been an approved sponsor; and
(e)   whether, and the extent to which, the failure to satisfy the sponsorship obligation has had a direct or indirect impact on another person; and
(f)    whether, and the extent to which, the failure to satisfy the sponsorship obligation was intentional, reckless or inadvertent; and
(g)   whether, and the extent to which, the person has cooperated with Immigration, including whether the person informed Immigration of the failure; and
(h)   the steps (if any) the person has taken to rectify the failure to satisfy the sponsorship obligation, including whether the steps were taken at the request of Immigration or otherwise; and
(i)    the processes (if any) the person has implemented to ensure future compliance with the sponsorship obligation; and
(j)    the number of other sponsorship obligations that the person has failed to satisfy, and the number of occasions on which the person has failed to satisfy other sponsorship obligations; and
(k)   any other relevant factors.
…
2.90   Provision of false or misleading information
…
(3) For paragraph 140L(1)(b) of the Act, the criteria that the Minister must take into account in determining what action (if any) to take under section 140M of the Act in relation to the circumstance mentioned in subregulation (2) are:
(a)   the purpose for which the information was provided; and
(b)   the past and present conduct of the person in relation to Immigration; and
(c)   the nature of the information; and
(d)   whether, and the extent to which, the provision of false or misleading information has had a direct or indirect impact on another person; and
(e)   whether the information was provided in good faith; and
(f)    whether the person notified Immigration immediately upon discovering that the information was false or misleading; and
(g)   any other relevant factors.
…
2.91   Application or variation criteria no longer met
…
(3) For paragraph 140L(1)(b) of the Act, the criteria that the Minister must take into account in determining what action (if any) to take under section 140M of the Act in relation to the circumstance mentioned in subregulation (2) are:
(a)   the nature of the applicable sponsorship criteria that the person no longer meets; and
(b)   whether, and the extent to which, the failure to continue to satisfy the criteria for approval as a work sponsor or family sponsor, or to continue to satisfy the criteria for approval of a variation, has had a direct or indirect impact on another person; and
(c)   the reason why the person no longer satisfies the applicable sponsorship criteria, including whether the failure to satisfy the criteria is within the person’s control; and
(d)   the steps (if any) the person has taken to ensure that the person will satisfy the applicable criteria in the future; and
(e)   any other relevant factors.
…