Yang (Migration) - [2018] AATA 5383

Yang (Migration) [2018] AATA 5383 (6 November 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Dazhi Yang
Ms Yongmei Zhu
Mr Wenlu Yang
CASE NUMBER:  1715849
DIBP REFERENCE(S):  BCC2017/1784698
MEMBER:John Cipolla
DATE:6 November 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 06 November 2018 at 12:16pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – Corporate General Manager – subject of an approved nomination – nomination application refused – false and misleading information – sponsoring business not lawfully and actively operating – agency arrangement – lack of probity checks – waiver of requirement – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 186.213, 186.233; Schedule 4, PIC 4020
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
Sran v MIBP [2014] FCCA 37
Trivedi v MIBP [2014] FCAFC 42

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 Immigration on 14 July 2017 to refuse to grant the applicants Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 19 May 2017. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).
The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.
In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Corporate General Manager.
The delegate refused to grant the visas because the applicant did not meet cl.186.213 as the delegate determined that the applicant had provided false and misleading information in the application for the visa in breach of Public Interest Criterion 4020(1) of Schedule 2 to the Regulations because the applicant declared in the visa application that the sponsoring business Zia Information Technology Pty Ltd would be able to provide him with employment as a Corporate General Manager on a salary of $182,000.00. Evidence before the Department indicated that the sponsoring business was not in a position to provide this employment to the applicant as it was not lawfully and actively operating.
The applicant lodged an application for review with the Tribunal on 21 July 2017.
On 16 August 2018 the Tribunal wrote to the applicant inviting the applicant to comment on information that the Tribunal considered could be the reason, or part of the reason, for affirming the decisions under review. The Tribunal in its letter noted that on 19 May 2017 the first named applicant had lodged an application for a Subclass 186 visa that is the subject of this review noting his wife and child as secondary visa applicants. The letter noted that on 9 June 2017, the nomination lodged by Zia Information Technology Pty Ltd, being the nomination for the purposes of the visa application, was refused by the Department of Immigration. The Tribunal noted that on 25 July 2018, the Tribunal had dismissed the application lodged by Zia Information Technology Pty Ltd. The Tribunal noted that on 9 August 2018, the Tribunal confirmed its dismissal of the application lodged by Zia Information Technology Pty Ltd and as a result, the decision under review was taken to be affirmed. The letter noted that the nomination relied on to satisfy cl.186.233 must be one which was made at the time of the visa application and therefore it was not possible to rely on another nomination.
The Tribunal received a response, a letter from the applicant dated 29 August 2018. The applicant in his response noted that he signed a Subclass 186 Employer Nomination visa application with a business Shanghai Donglv on 24 June 2016 and that all of the personal documents that he provided to this business including his curriculum vitae was true and correct and that he did not provide any falsified information.
The applicant stated that on 25 July 2016 he received an employment agreement issued by Zia Information Technology Pty Ltd and that on 17 October 2016 he received an employer file from Donglv. The applicant claimed that at that time he undertook an online check of the nominating business Zia Information Technology Pty Ltd and determined that it was an existing company however that he had no idea that Zia Information Technology Pty Ltd was not an eligible employer to nominate him for a Subclass 186 visa.
The applicant stated that on 17 May 2017 he travelled to Melbourne with his family holding a Subclass 600 tourist visa. The applicant claims that on 19 May 2017 the Shanghai agent Donglv submitted the Subclass 186 visa application on behalf of the applicant and provided its own business email address for communication with the Department. The applicant claims that he was not notified that the employer nomination had been refused on 9 June 2017, nor did he know that Zia Information Technology Pty Ltd lodged an appeal to the Administrative Appeals Tribunal on 27 June 2017, nor did he know that on 24 June 2017 the Department requested further information regarding his visa application.
The applicant stated that during the visa process he did not provide Donglv with any falsified information or documents and that he was unaware that Zia Information Technology Pty Ltd was not eligible to nominate him. The applicant submitted that it was unfair to apply Public Interest Criterion (PIC) 4020 to him and that the application of this clause should be lifted.
At the outset of the review hearing the Tribunal went into detail about the merits review process. The Tribunal made reference to the Departmental decision record and the basis for the delegate’s refusal which has been discussed above. The Tribunal noted that based on the evidence before it the nomination lodged by Zia Information Technology Pty Ltd had been refused by the Department of Immigration in a decision dated 9 June 2017. The Tribunal noted that on 9 August 2018 it had dismissed the application for merits review lodged by Zia Information Technology Pty Ltd. The Tribunal noted on the basis of this evidence the applicant was not able to meet the requirements of cl 186.233(3) of the Migration Regulations. The Tribunal noted that the Departmental delegate had refused the visa application on the basis of the applicant not meeting the requirements of cl.186.213 as the delegate determined that the applicant had provided false and misleading information in the application for the Subclass 186 visa in breach of Public Interest Criterion 4020(1) of Schedule 2 to the Regulations. The applicant advised that he disagreed with the finding by the delegate that he had provided false and misleading information to the Department in his Subclass 186 visa application.
The applicant gave his name and date of birth. The Tribunal asked the applicant whether he completed high school and he advised that he did and that in his senior years of high school he studied a vocational course in industrial residential building and construction. The Tribunal asked the applicant about his work history since completing high school. The applicant stated that he initially worked as a computer technician before commencing work with a furniture company initially as a designer and then in sales. The applicant stated that he worked his way up to management of a furniture business and was currently the sales manager of the furniture company.
The Tribunal asked the applicant when he came to Australia for the first time and he advised in 2014 in February for a period of 2 weeks. The Tribunal asked the applicant what the purpose of this trip to Australia was and he advised it was for tourism purposes. The Tribunal asked the applicant where he toured and he advised to Sydney, Melbourne, and Canberra and that his wife, son and mother-in-law accompanied him on this visit.
The Tribunal asked the applicant how he made the application for a visitor visa, the applicant advised that he lodged the application himself in Beijing in China. The Tribunal explained the factors that the department looks at prior to the grant of a visitor visa, namely that an applicant needs to convince the department that they genuinely intend to visit and that there is sufficient incentive to return to their home country at the end of the proposed visit. The applicant stated to this end he provided copies of his house title, registration of a car, bank information and a leave certificate for his child from his child’s school. The Tribunal noted that the applicant visited Australia for a second time, the applicant advised that this was between 17 May 2017 and 28 August 2017.
The Tribunal asked the applicant why he spent 3 months in Australia at that time and how he was able to obtain leave from his employer. The applicant stated that the furniture company that he was the sales manager for was his own company. The Tribunal asked the applicant whether he close the business down for the duration of his visit and he advised that he obtain somebody else to manage it on his behalf.
The Tribunal asked the applicant why he came to Australia for 3 months and what his objective for spending this amount of time in Australia was. The applicant stated that on 24 June 2016 he signed an agreement for the lodgement of a Subclass 186 visa with an agent in Shanghai, Mr Fong Lu. The applicant stated that the agent advised that they would help him to find an employer in Australia that would sponsor him. The applicant stated that the reason he came to Australia is that he was informed by the agent in Shanghai that they had found an employer and that he should lodge an application in Australia because it would be processed faster.
The Tribunal asked the applicant how much he paid the agent in Shanghai and the applicant advised an amount of RNB 610,000 which roughly converted to AUD$123,000.00.
The Tribunal noted that this seemed to be a lot of money to pay for a visa outcome and asked the applicant whether he paid in a lump sum or in instalments. The applicant stated that he paid in instalments the first was the amount of $24,600 as a deposit, a second payment of $39,250 upon receipt of a letter from an employer and a third instalment of $24,600 once he received an employer file number. The Tribunal asked the applicant whether he paid the remaining balance and the applicant advised that after they undertook an employer check online and determined that the company that was sponsoring him existed he did not know at that point that the company was ineligible to nominate him.
The Tribunal asked the applicant what checks he undertook of the company that was sponsoring him for employment during the 3 months that he was in Australia between May and August 2017. The applicant stated that before he left China for Australia the agent in Shanghai advised him that the business that was sponsoring him was located in Melbourne and that somebody would pick him up and show him the company. The Tribunal asked the applicant whether this happened. The applicant stated that when he arrived in Australia he was told that the branch of the company was going through an adjustment and change of address and the applicant stated that the agent did not send anybody to pick him up in Australia. The applicant claimed that the agent advised him that he needed to find a school for his son for the duration of their stay. The Tribunal asked the applicant whether he found a school and he advised that he approached a number of schools and eventually enrolled his son at Ranch View School in Melbourne.
The Tribunal asked the applicant during the time that he was in Australia whether he purchased real estate. The applicant stated that he bought an off the plan apartment located in Monash in Victoria for which he paid a $50,000 deposit. The applicant stated that the balance of the purchase price, namely $450,000 needed to be paid at the end of 2019 upon the completion of the apartment.
The Tribunal asked the applicant why he would be expending this money if he didn’t have permanent residence in Australia. The applicant advised that he thought he would obtain permanent residence. The Tribunal stated that a prudent person that was migrating overseas with their family would undertake probity checks of a prospective business to ensure that it was a legitimate option particularly if they were paying $123,000 to affect the grant of a visa. The Tribunal asked the applicant what probity checks he undertook. The applicant stated that before he signed the agreement with the agent in Shanghai that he went to check out the agency. He noted there were 3 branches of this company. He advised that one of the offices of the company was located in the same building as the Australian consulate in Shanghai. The applicant stated that according to his understanding the company had run the business for a long period of time and the company had a branch in Australia. The applicants stated that they obtained a friend in Australia to check out the Australian office on their behalf.
The Tribunal asked the applicant whether he checked out the Australian office of the agent when he was in Australia and he advised that he did not.
The Tribunal noted that the applicant in his submission dated 29 August 2018 advised that he had signed a 186 employer nomination visa application on 24 June 2016 and that all of the documents that he provided to the agent in Shanghai were true and correct. The Tribunal noted that where an applicant lodges a visa application through an agent, the applicant, being a principal, will be bound under the common law principles of agency by the acts of an agent acting within the scope of his or her authority. The Tribunal noted that this authority may be express or implied and that a principle can be liable for the actions of an agent, even if the agents act is unlawful or amounts to fraud. The applicant was invited to comment on this. The applicant stated that he paid money to an agent and that all the personal information and documents that he provided in support of the application were genuine. The applicant stated that after the visa application was refused he and his family returned to China.
The Tribunal noted that the applicant had departed Australia on a Bridging B visa which suggested that he had an expectation that he would be able to return to Australia at a later point in time. The applicant stated that the agent asked him to make the application for this type of Bridging visa. The Tribunal asked the applicant whether this was the discredited agent from Shanghai and he advised that it was. The applicant stated that the agent expected the applicant and his family to stay in Australia continuously throughout the appeal process.
The Tribunal asked the applicant whether there was any further information that he wanted to provide with regard to the review. The applicant stated that he had provided information to an investigator in Australia who was undertaking investigations of the agent that he had engaged on his behalf. The applicant stated that there were many victims of migration fraud who had been promised permanent residence through the Employer Nomination scheme by unscrupulous agents in Shanghai. The applicant made reference to Fan Zhi Jia as being party to this fraud. The applicant stated that many hundreds of people had been affected by this migration fraud. The applicant stated that he believed that the application of PIC 4020 was unfair and should be lifted.
The Tribunal took evidence from the applicant’s wife Yonhmei Zhu. The Tribunal invited the witness to provide any evidence that she wished the Tribunal to consider. The applicant’s wife advised the Tribunal that all the information provided with the visa application was true and that she and her husband did not know that the agent they had engaged was involved in a migration scam. The witness stated that the agent encouraged them to enrol their child in school in Australia and that his education would be free which was incorrect. The witness stated that she hoped that PIC 4020 would be lifted.
The applicant advised that he wished to provide some further evidence to the Tribunal. The applicant stated that when he and his family returned to China they did not intend to stay in Australia in the short term. He advised that he had purchased a property in Australia and that he hoped when the property was settled he and his family could go to Australia and take over the home on a visitor visa.
The Tribunal asked the applicant’s representative whether there was anything that she wished to add. The representative stated that prior to her client coming to Australia in the hope of obtaining a Subclass 186 visa he had a good migration history and that he had no intention to stay in Australia and breach the law. She advised that when her client engaged the agent in Shanghai in China he provided correct information and documents in support of the application. She advised that her client was not notified of the refusal of his Subclass 186 application by the Department nor was he aware that the sponsoring company had sought merits review after their nomination application was refused. The representative stated that due to the fact that the applicant was not notified of the nomination refusal he lost an opportunity to withdraw or take any other action with regard to his own review. The representative stated that with regard to the application of PIC 4020 that her client had entrusted the agent in Shanghai to make an application on his behalf and was one of many victims of a sophisticated agency that had scammed a lot of prospective visa applicants. The applicant’s representative stated that there were compelling and compassionate reasons for lifting PIC 4020 in the circumstances of the case.
The applicant added that there were many people that were the subject of immigration fraud at the hands of the agent in Shanghai. The applicant stated again that he believed that the application of PIC 4020 in his case was unfair. The applicant stated that during the time that he was in Australia he had purchased real estate, he had purchased a motor vehicle, and had entered into a rental agreement and they needed to finalise their affairs before they departed Australia.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the requirements of cl.186.233. Further to this whether the applicant meets the requirements of cl.186.213(1) namely Public Interest Criterion 4020(1).
Nomination of a position
Clause 186.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream. The position must be one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.
In addition, this criterion also requires that:
·the person who will employ the applicant is the person who made the nomination
·the nomination has been approved and has not been subsequently withdrawn
·there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of r.1.13A and r.1.13B); or it is reasonable to disregard any such information
·the position is still available to the applicant, and
·the visa application was made no more than six months after the nomination of the position was approved.

On 9 June 2017, the nomination lodged by Zia Information Technology Pty Ltd Australia being the nomination for the purposes of the visa application, was refused by the Department of Immigration. On 9 August 2018, the Tribunal dismissed the application lodged by Zia Information Technology Pty Ltd for merits review and as a result, the decision under review was taken to be affirmed.
Therefore, cl.186.233 is unable to be met as the nomination application by Zia Information Technology Pty Ltd has not been approved.
Other criteria
The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.186.213(1) for the grant of the visa. Broadly speaking, this requires that:
·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and
·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 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: PIC 4020(2) and (2AA); and
·the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and
·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA).
The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.
Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?
The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and the term ‘bogus document’ is defined in s.5(1) of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.
The requirement in PIC 4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant: PIC 4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.
While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42.
The evidence before the Tribunal indicates that the applicant engaged an agent in Shanghai whom he instructed to pursue an application for permanent residence. The evidence indicates that the applicant paid a substantial amount of money to this agent to apply for a visa and provided personal details to the agent for the purpose of the application. The evidence indicates that the applicant paid AUD$123,000.00 for the visa application. The applicant demonstrated an understanding of the visa that he was applying for, namely that it was a Subclass 186 visa that enabled him to work for a nominating company in Australia, Zia Information Technology Pty Ltd, in the position of Corporate General Manager.
The evidence before the Tribunal indicates that the applicant made the application for the visa on 19 May 2017. The evidence before the Tribunal indicates that the applicant was in Australia at the time that the visa application was lodged, having arrived on 17 May 2017 and departing on 28 August 2017. When asked what probity checks he had made of the nominating business, Zia Information Technology Pty Ltd, the applicant advised that he had checked the company online and found it was operating and that he expected when he arrived in Australia an agent would meet him and take him to the company but this did not transpire. The Tribunal asked the applicant whether he made enquiries of the Department to check on the processing of his visa application and the associated nomination and he advised that he did not. Despite the absence of probity checks the applicant enrolled his son in school, entered into a residential tenancy agreement, paid a AUD$50,000.00 deposit on an off the plan apartment with a balance of $450,000 to be paid at the end of 2019 and purchased a Jeep motor vehicle. The applicant’s evidence indicates he did not engage in any meaningful provenance checks of the Australian business despite the money he expended on the visa and money he expended during the 3 months of residence in Australia in 2017.
The Tribunal is of the view that if the applicant and his wife had the capacity to navigate their way around the purchase of an off the plan property in a foreign country, that they no doubt would have been able to engage in probity checks on the ground in Australia pertaining to the migration services that they had paid for to facilitate their prospective migration to Australia and check out the bona fides of the business, Zia Information Technology Pty Ltd that was going to provide the applicant with a paid position of Corporate General Manager at a salary of $AUD182,600.00.
The Tribunal accordingly finds based on the evidence before it that the applicant did knowingly provide false and misleading information to the Department in support of a Subclass 186 visa application. The Tribunal makes this finding on the basis of the following factors. The applicant paid AUD $123,000 to a Shanghai agent to obtain a permanent migration outcome for himself and his family. This is a significant amount of money and given the applicant’s education background and skillset he would have not been constrained in undertaking probity checks to ensure that this not insignificant investment would have yielded the desired results for him. The payment of a AUD$24,600 deposit by the applicant, followed by a further AUD$39,250 after receiving advice the visa application was lodged and a further AUD$24,600 when a letter was received pertaining to the employer filing a nomination, along with the provision of personal information and documents for a Subclass 186 visa on 24 June 2016 to the agent in Shanghai would have provided the applicant with sufficient information about the type of visa application he was making.
For the requirements in cl.4020(1) and (2) to be engaged, it is not necessary to show knowing complicity by the visa applicant in the fraud. This applies both to the provision of bogus documents, and information that is false or misleading in a material particular.
Where false or misleading information or a bogus document is given by an agent without the knowledge of the applicant, a question arises as to whether or not PIC 4020 is engaged. However, the weight of authority now makes it clear that the words ‘given or caused to be given’ do not import a mental element.[1] It is neither necessary for an applicant to be aware that false information has been given by the agent, nor that the applicant gave instructions to provide false information to the agent in order to be responsible for false or misleading information being given.[2]
[1] Vyas v MIAC [2012] FMCA 92 (Driver FM, 17 May 2012) at [68]. This view was endorsed in Sran v MIBP [2013] FCCA 37 (Judge Nicholls, 17 January 2014).
[2] Singh v MIBP [2015] FCCA 2776 (Judge Whelan, 14 October 2015) at [49].
Where an applicant lodges a visa application through an agent, the applicant, being a principal, will be bound under the common law principles of agency by the acts of an agent acting within the scope of his or her authority. Actual authority may be express or implied[3] and a principal can be liable for the actions of an agent, even if the agent’s act is unlawful or amounts to fraud.[4] As a result, even where an applicant did not fill out an application form, he or she may be found to have caused false or misleading information to be given to a specified person, and thus not to have complied with PIC 4020, despite allegations of fraud by a migration agent.[5]
[3] Lysaght Bros & Co Ltd v Falk (1905) CLR 443 as cited in Sran v Minister for Immigration and Anor [2014] FCCA 37 at para.66.
[4] Brown v Citizen’s Life Insurance Co Ltd (1904) 2 SR (NSW) 202; Lloyd (Pauper) Appellant v Grace [1912] AC 716 as cited in Sran at paras.63 and 78.
[5] For example, in Singh v MIBP [2015] FCCA 2776 (Judge Whelan, 14 October 2015), the Court found at [56] that ‘[i]t is consistent with the conclusions of Buchanan J in Trivedi that the provisions of s.98 of the Act should apply to PIC 4020 and that an applicant should be deemed to have completed an application form where he or she causes a form to be filled out or his/her behalf’.
In Sran v MIBP[6] the Court considered an applicant’s claims that the false and misleading information, in this case a non-existent TRA skills assessment reference, was provided in the visa application as a result of migration agent fraud. In that case, the applicant had instructed the agent to lodge a visa application, a fee was discussed and the applicant knew that the visa application was to be made. The Court considered these facts were sufficient to ground the Tribunal’s finding that an agency agreement was established for that purpose and that the visa application was validly made.[7]
[6] [2014] FCCA 37 (Judge Nicholls, 17 January 2014).
[7] Sran v MIBP [2013] FCCA 37 (Judge Nicholls, 17 January 2014) at [44], [53], [64] and [78]. See also Singh v MIBP [2014] FCCA 1816 (Riethmuller J, 20 August 2014).
The evidence indicates that the applicant entered into an agreement with the Shanghai agent which served an objective of facilitating permanent residence to Australia. The applicant travelled to Australia on a number of occasions and as noted was present in Australia at the time the visa application was lodged. He being in the jurisdiction would have given him every opportunity to ensure that the $AUD123,000 he had expended on this exercise would yield the desired outcome and he failed to do this. The evidence indicates that the Subclass 186 application was lodged by a discredited agent in Shanghai. However as noted the applicant would have been aware from his interactions with the Shanghai agency in June 2016 that he was making an application for a Subclass 186 visa and the applicant exhibited an understanding that if granted this visa would enable him to work for Zia Information Technology Pty Ltd as a Corporate General Manager. The applicant could have attended the Department whilst he was in Australia during the 3 months from May to August 2017 to check on the provenance of the application lodged on his behalf and he failed to do this.
The cumulative consideration of all of these factors leads the Tribunal to find that the applicant does not meet PIC 4020(1).
Should the requirements of PIC 4020(1) or (2) be waived?
The requirements of PIC 4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in r.1.03), that justify the granting of the visa. The decision-maker must first be satisfied that there are such circumstances, then must consider whether to exercise the discretion to waive the requirements, having regard to those circumstances: Kaur v MIBP [2017] FCAFC 184.
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.
For the following reasons, the Tribunal is not satisfied that the requirements should be waived.
There is no evidence before the Tribunal which establishes the existence of compelling circumstances affecting the interests of Australia or compassionate and compelling reasons that affect the interests of an Australian citizen, and Australian permanent resident or eligible New Zealand citizen.
Therefore the requirements of PIC 4020(1) should not be waived.
On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.186.213(1).
DECISION
The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.
John Cipolla
Senior 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.
…