Yao (Migration)
[2024] AATA 1651
•5 June 2024
Yao (Migration) [2024] AATA 1651 (5 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS: Ms Meiting Yao
Mr Kai Song
Mr Junyi SongREPRESENTATIVE: Mr John Love
CASE NUMBER: 2117557
HOME AFFAIRS REFERENCE(S): BCC2019/535534
MEMBER:George Hallwood
DATE:5 June 2024
PLACE OF DECISION: Adelaide
DECISION:The Tribunal remits the applications for Business Skills (Residence) (Class DF) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 892 (State/Territory Sponsored Business Owner) visas:
·Public Interest Criterion 4020 for the purposes of cl 892.322 of Schedule 2 to the Regulations
Statement made on 05 June 2024 at 9:08am
CATCHWORDS
MIGRATION – Business Skills (Residence) (Class DF) visa – Subclass 892 (State/Territory Business Owner) visa – false or misleading information in the visa application – bogus document – police clearance – secondary applicant wanted for alleged fraud – civil actions taken against the applicant’s businesses – compassionate or compelling circumstances – contribution to the community and church – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 65
Migration Regulations 1994, Schedule 2, cl 892.322; Schedule 4, Public Interest Criterion 4020; rr 1.03, 1.12
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
Salopal v MIBP [2018] FCA 1308
Singh v MIBP [2016] FCA 156
Trivedi v MIBP [2014] FCAFC 42
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 Home Affairs on 9 November 2021 to refuse to grant the applicants Business Skills (Residence) (Class DF) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The applicants applied for the visas on 2 May 2017. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl 892.322 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because there was evidence before the Minister that the secondary applicant, Mr Kai Song, had given, or caused to be given, a bogus document or information that is false or misleading in a material particular in relation to the application.
3. The applicants appeared before the Tribunal on 25 January 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Jing Hua, Ms Zhe Liu and Pastor Effendi. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
4. The applicants were represented in relation to the review.
5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
6. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 892.322 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).
7. 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?
8. 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. 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.
9. 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 Federal Court has commented that the Tribunal should first determine whether a document is a ‘bogus document’ as defined in s 5(1) of the Act then go on to consider whether there is no evidence that an applicant has given or caused it to be given to a party listed in 4020(1): Salopal v MIBP [2018] FCA 1308 at [88].
Is there a bogus document?
Under s 5(1) of the Act, a bogus document is one that the Minister reasonably suspects:
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.
Mr Kai Song is a secondary applicant as a member of the family unit of the primary applicant for a Business Skills (Residence) (Class DF) State/Territory Sponsored Business Owner (Subclass 892), Ms Meiting Yao.
Relevantly to this review, on 23 October 2018 the Department was provided with A Notarial Certificate of No Criminal Records (NCNCR) issued by the Notary Public Office, Wuchang City, Heilongjiang Province, The People’s Republic of China and dated 15 May 2018 in relation to Mr Kai Song. In assessing the visa applications, further information was sought on 6 November 2018 including the following information in relation to Mr Song:
· Certified copy of your Household Register - Hukou
· Police clearance certificate obtained from Jiangsu Province
Mr Song’s then new representative requested further time as he had just taken over the matter and because obtaining Mr Song’s police report and family book presented some unexpected difficulties as he “changed location of his abode in China before he came to Australia”. Time was granted and on 21 December 2018 further documents were provided to the Department including:
· A Certificate issued by Fendou Border Control Police Station, Dongning Public Security Bureau dated 28 November 2018, in relation to Mr Kai Song stating in part ‘there are no criminal offences recorded against Kai Song during his stay in Dongning City for the period from May 2012 to January 2015’;
· A Certified copy of the applicants Household Register - Hukou;
· A Domestic Resident Residence Information form showing that Mr Song had been renting a residence in Dongning city, Heilongjiang between May 2012 and when the information was collected on 30 December 2015;
· A Statutory declaration signed by Mr Kai Song dated 14 December 2018;
· A Statutory declaration signed by Ms Meiting Yao dated 14 December 2018;
· A Statutory declaration signed by Ms Meihong Yao dated 05 December 2018; and,
· Two documents titled ‘Civil Judgements 1 and Civil Judgements 2’ related to Mr Kai Song, Ms Meiting Yao and others.
The Department had concerns that the documents which related to Mr Song’s police clearance may be bogus. Neither the NCNCR nor the certificate from the Dongning security bureau had been issued by the applicant’s home province which would be the normal procedure for a police clearance in China. The Department sought clarification through the Chinese Ministry of Public Security (CMPC) as to the genuineness of these documents and Mr Song’s assertion in his Statutory Declaration that he had no recorded criminal offences. The CMPC response included:
“…SONG Kai… is a wanted person alleged for the crime of credit card fraud.
The Notarial Certificate of No Criminal Records (NCNCR) provided by SONG Kai was genuinely issued by Wu Chang Notary Office of Heilongjiang province. However, the Certificate issued by Dong Ning Public Security Bureau of Heilongjiang province which used to apply for the NCNCR was counterfeit.….”.
On 17 May 2019 the Department provided the applicant with an invitation to comment on this adverse information and in particular the suspected bogus certificate from the Dong Ning Public Security Bureau [Dong Ning Certificate].
On 10 June 2019 Mr Song provided a response including a submission from his appointed migration agent together with:
·a police certificate from Dong Ning Municipal Security Bureau dated 18 November 2018 certifying that there are no criminal offences recorded against Mr Song;
·a sample of a Chinese police report;
·a notary’s envelope with translation; and
·a statutory declaration signed by Mr Song and dated 10 June 2019.
Key to Mr Song’s submission in relation to the Dong Ning Certificate is that the certificate alleged to have been used to obtain the NCNCR was dated 28 November 2018, and so could not have been used to obtain the NCNCR which was dated 15 May 2018. Mr Song also pointed out that for a Notary to issue an NCNCR, a police certificate is provided to the Notary, who retains the police certificate, and then provides the NCNCR. Mr Song was in Australia at the time the NCNCR was issued so the documents were organised by a service provider he had sourced through the internet.
Mr Song had previously explained to the Department that once a provisional 163 visa was issued in 2012, he returned to China to build his business to help fund his family in Australia. While in China his business collapsed due to financing problems: initially capital funding evaporated when a relative and business associate who was also a government official was detained for alleged illegal dealings; then, because he was unable to repay money he and his companies had borrowed including from private loan lenders - referred to as ‘sharks’ by Mr Song.
Mr Song acknowledged that there had been civil actions taken against his companies but affirmed that he had no criminal record. His representative’s submission stated that the Dong Ning Certificate’s were references rather than police reports but that they demonstrated that at the time they were written the applicant was not listed on the national criminal database. The representative also stated that Adept Migration Services had also recently conducted a check on the Chinese database and that the applicant had no criminal record listed.
The Department, on 16 June 2020, again sought clarification from their Beijing Post to address the issues raised by the applicant. The Beijing Post sought clarification from the International Cooperation Department (ICD) of the Chinese Ministry of Public Security and their response included:
"...The investigation revealed that the Non-criminal Conviction Certificate issued by the Huan Feng Police Station of Hanshan County Public Security Bureau (PSB), which SONG Kai used to apply for the Notarial Certificate of No Criminal Records is counterfeit. In addition, the certificate issued by Fen Dou Bian Fang Police Station of Dong Ning PSB is also counterfeit..."
In response to a further invitation to comment on adverse information the applicant provided a submission signed by his representative, Mr Frank Richter on 28 July 2020 which contained the summary:
On basis of all the evidence we submit that that Schedule 4, clause 4020 should not have been applied for following reasons:
Applicant never submitted any false documents. Notary certificate from notary Wang Yaoqi of Wuchang City, Heilongjiang Province is genuine one.
Police report obtained (through professional police report service agent) at Huan Feng police station at Hanshan County, Anhui province and used to obtain above notary police report, was never submitted to DOHA.
Unofficial police reference letter from Fen Dou Bian Fang police station is as per best belief of the applicant to be genuine one, as it was obtained through a friend. Just because there is no official record of issue, does not necessary means that it is not genuine one.
Information submitted in the above notary report should be true and correct. In your email you are not disputing that any information in any of the alleged bogus documents is not correct.
I (migration agent) have through my own contacts in China re-checked the criminal records on Chinese database and confirm all of the above, but as already mentioned cannot provide any official confirmation of it, but do trust the person who accessed the information.
Nowhere you point out that any information given in any of the alleged bogus document is incorrect, so it is assumed that it is, as you do not allege that any bogus information was given only that counterfeit documents were submitted.
Applicant made all reasonable attempts to obtain his police clearance from China. Beside the items above also sent his sister-in-law Yao Meihong to his home town police station and they refused to issue police report. Why?
By Chinese law which as we all know is twisted by local government people in position of power, applicant should be issued with police report, even if it is negative. Applicant cannot answer the question why his sister-in-law was refused his police report, which she should not have been. His notion about refusal is that a local government official is trying to obtain some above the law advantage over the issue he had with one of his relatives who committed suicide, so the government official thinks that he may be able to recoup his financial losses through the applicant, hence there were some remarks placed on his police records in his home town. This is applicant's understanding of the situation. Cases like this are common in China, where relatives are targeted if the person concerned cannot be found or is out of reach.
Examples:It was in the news not so long ago that children were held as hostage in China unable to leave, because they wanted parents to return to face false allegations.
Some years ago a Chinese lady who has been living in Australia for number of years and was married to an Australian, upon return to her home town she was arrested, because she was an accountant in a company that after her departure was liquidated, and as local lord lost money in that company, he held her responsible. Sop her husband had to pay the official's losses of AUD700,000 for her to be released.None of the documents if they are false (and information therein) was submitted purposefully (and applicant had no knowledge of them being false. So applicant did not submit them to mislead DOHA so his visa could be granted. He was merely trying to meet the criteria.
Notary police certificate from Wuchang City is not false and you confirmed it.
Applicant also believes that it does not contain any false information, and you in your natural justice do not dispute that information is false either. In fact you do not dispute that any information is false, only that documents mentioned are forgeries, so it is assumed that if the documents are forged information contained therein is correct.
Police report to obtain above notary police report was obtained through the business that facilitates such reports, for clients who are not in China and cannot return there or have no one to obtain it or any other reason. It would be natural to expect that the police report obtained through them would be genuine one, and this is what applicant did. Naturally he cannot guarantee this, but normally people would trust most of businesses to provide genuine services, and so did the applicant. If they let him down and he trusted them it clearly points out that if they provided him with false document/information it was not his purpose to mislead DOHA therefore he did not submit it purposefully.
Police reference letter that was obtained from by Fen Dou Bian Fang Police Station of Dong Ning was arranged through the friend, and applicant trusts that person and believes that it is a genuine copy, however as it was accessed through informal channels there is no records on the system that it was issued. As already stated it is not official police report, and as such was unable to be used to obtain notary version of the police report with kit, it is just reference letter to back up his claim that there is nothing negative on his police report in China. This was further verified by me (migration agent) through my own unofficial channels accessing police data base. But again for this reason cannot provide any written reference because if found out the person who accessed it would be in diabolical trouble.
Applicant made a genuine attempt to obtain police report in his home province through his relatives, and by law should have been given one, regardless of what the report may contained. But for some unexplained reason this did not happen. Assumption can only be made that some local high ranking official has some vendetta against him or wants to use him for his own purposes.
It is therefore very obvious that all attempts that applicant made and all documents / information he obtained were made in good faith to meet criteria, and not and I repeat NOT purposefully to mislead DOHA to grant him a visa.
On 19 April 2021 Mr Song provided a further Statutory Declaration signed and dated that same day. The Statutory Declaration provided an update as to his character. Together with the Statutory Declaration was a brief email submission from his migration agent reiterating that Mr Song does not have a criminal record either in Australia or China, and requesting that a waiver be granted for the provision of the requested police clearance certificate from Jiangsu Province.
The Department, on 15 July 2021, again offered the applicant an opportunity to respond in relation to the adverse information about counterfeit documents. Mr Song responded with a further Statutory Declaration signed and dated 15 September 2021 which I have summarised below. Mr Song:
relied on an online system which claimed to be, and he believed was, official to obtain his ‘Non-criminal Certificate’ from China;
obtained the Non-criminal Certificate’ [NCNCR dated 28 November 2018] through the online process which stated that he had no criminal offences - and which he continues to believe is correct, not misleading or false;
had a relative in China access a second online official system obtaining a local administration office certificate [the Dong Ning certificate] which he also believes is correct;
does not believe the information obtained by the Department from the Chinese authorities is genuine;
had no criminal record prior to his departure from China and had never been involved in conduct that may have been criminal; and
has never attempted to mislead the Australian government as to his legal status in China; is fearful of returning to China because of the prospect of being wrongfully detained.
During the hearing, Mr Song told the Tribunal that he had never lived in Heilongjiang Province. At his previous migration agent’s suggestion, he had used a Domestic Resident Residence Information form that said he had once lived in Heilongjiang Province to obtain his police clearance as he had been unable to obtain one from Jiangsu Province. Mr Song said that the combination of his agent’s advice, and the fear of further persecution and torture in China persuaded him to take this action. He said this matter has haunted him for a long time and his whole family is under a lot of stress, not knowing how to make it right.
Mr Song still contends that the documents he provided were genuine and that the information they contain is correct. He put to the Tribunal that there were people in China that would like to see him returned there for there own purposes, either political or financial, that had the power to influence what was contained in police records. His evidence relating to his interrogation and torture at the hands of what he believes were government officials was provided as evidence of the power of officials.
In order for a document to be a bogus document there only needs to be a suspicion that the document is bogus. In this matter, Mr Song has admitted that false information was provided about him having lived in Heilongjiang Province to obtain his police clearance as he had been unable to obtain a clearance from police in Jiangsu Province and was afraid to return there. On the morning of the hearing a submission on behalf of Mr Song was provided to the Tribunal describing him as having provided untrue information. The definition contained in s 5(1)(c) of the Act when read in conjunction with PIC 4020(1) requires that there is no evidence before the Minister (or Tribunal) that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth a document that the Minister reasonably suspects is a document that was obtained because of a false or misleading statement. The Tribunal recognises that the test of reasonable suspicion is a very low bar.
The Tribunal is satisfied on the applicant’s own evidence that the NCNCR issued by the Notary Public Office, Wuchang City, Heilongjiang Province, The People’s Republic of China and dated 15 May 2018 in relation to Mr Kai Song was obtained using a false or misleading statement, and that Mr Song was aware that a false or misleading statement had been used for the purpose of obtaining this document for some considerable time before bringing it to the attention of the Minister (or Tribunal).
Based on information provided by the International Cooperation Department (ICD) of the Chinese Ministry of Public Security the Tribunal is also satisfied that it is reasonable for the Tribunal (in the shoes of the Minister) to suspect that the certificates or letters of support from Ding Nong and Hanshan County were also obtained because of a false or misleading statement whether or not made knowingly.
The Tribunal is also satisfied that each of the above documents have been given, or been caused to be given to the Minister, an officer, the Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth in relation to the visa application.
Therefore, 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 reg 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 satisfied that the requirements should be waived.
Compelling circumstances that affect the interests of Australia
The applicant put to the Tribunal that he and his wife operate a grocery business that employs people in Australia. They operate the business lawfully and pay taxes. Mr Song also operates a landscaping business, and their son is studying for a Bachelor of Computing Science. This was corroborated by other witnesses, tax returns and financial statements in evidence, and there is no reason for the Tribunal to doubt this. Relevantly policy relating to compelling circumstances that affect the interests of Australia - PIC 4020(4)(a) is contained in Departmental Policy - Migration Regulations at 6.10.3.1. The Tribunal considers that this policy, while not binding on the Tribunal, is appropriate and consistent with the need for the circumstances to be compelling.[1] The policy states in part:
It is departmental policy that compelling circumstances affecting the interests of Australia would not include circumstances where the applicant merely claims that, if granted the visa, they would:
· work and pay taxes in Australia,
· pay fees to an education provider; or
· spend money in Australia.
[1] See Singh v MIBP [2016] FCA 156 at [20] which comments ‘compelling circumstances’ are limited to those which have a special or strong persuasive force.
The applicant also put that accepting lies, interrogation, and torture by another State as a method of blocking access to a visa would amount to a compelling circumstance affecting the interests of Australia. In this case, the substantive matter relates to a subclass 482 - Business Skills (Residence) (Class DF) visa and whether Public Interest Criterion 4020 for the purposes of cl 892.322 of Schedule 2 to the Regulations are satisfied. Protection matters are not before the Tribunal.
For the reasons stated, the Tribunal is not satisfied that there are compelling circumstances that affect the interests of Australia.
Compassionate or compelling circumstances that affect the interests of an Australian
At the hearing Ms Yao gave oral evidence describing her family’s involvement with the Evangelist church which helps many families from Indonesia, Chile and China as well as Australian. In particular the church funds and assists with the building of other churches, provides people with financial support, helps people to manage family relationship issues, and helps people with studies and language skills. Ms Yao helps families with broken relationships - assisting them to rebuild their associations with each other.
Witnesses Zhe Liu, Jing Hua, and Pastor Effendi all gave oral evidence of the support and contribution Ms Yao and Mr Song provide in their community to Australians and others.
Post hearing, a Statutory Declaration signed on 7 February 2024 by a 64-year-old Australian citizen [Ms A] was provided to the Tribunal. By way of background Ms A stated that she has resided in Australia since 1995 and has been an Australian citizen since 1999. Ms A came to Australia to escape family violence and has suffered from mental illness including schizophrenia - paranoia and severe depression for over 25 years during which time she has attempted suicide several times. Ms A describes the support she has received from Ms Yao and Mr Song. She has no family members and lists Ms Yao as her emergency contact. Ms A states that over seven years she has been assisted by Ms Yao and Mr Song her condition has improved and she is “less burden to our government”. She indicates that without Ms Yao and Mr Song she could not survive. Since her son died in a car accident Ms A’s medical condition got worse but with the help of Ms Yao’s family, she has hope. While Ms A is not a member of Ms Yao’s and Mr Song’s family, over the past seven years a close relationship resembling a family relationship has formed. They often eat and occasionally holiday together. Ms Yao and Ms A call each other sister. For these reasons the Tribunal is satisfied there are compassionate circumstances that affect the interests of an Australian citizen that justify the granting of the visa.
Should the requirements be waived, having regard to those compassionate circumstances?
Having found that the applicant has demonstrated deceptive conduct leading to the giving of a bogus document, and also finding that there are compassionate circumstances that affect an Australian citizen, the Tribunal must now consider whether those circumstances weighed against the severity of the applicant's deceptive conduct in considering whether to exercise the discretion to waive the requirements of PIC 4020(1).
Mr Song has relayed to the Tribunal that he was aware that he had never lived in Heilongjiang Province, and that police documents had been provided on the basis that he had once lived there. It is vitally important to Australia’s ability to secure its borders that information relied on when issuing visa’s is based on genuine documents and information that is not false or misleading. Mr Song’s actions and continued deception as described above weighs heavily against the Tribunal using its discretion to waive the requirements. In this case, the Tribunal is satisfied that, whether a threat exists or not, Mr Song is genuinely fearful that he will experience further detention, interrogation and torture if he returns to China. The description of the detention and torture Mr Song was subject to over a period of 38 days from 7 September 2013 to 15 October 2013 is described in a statutory declaration of Yu Ouyang’s which includes a translated statement of Mr Song from Chinese to English dated 8 February 2024. Mr Song’s fear of further horrific torture mitigates his deception to which I now attribute moderate weight.
The compassionate circumstances are of Ms A, an Australian citizen, with severe mental health issues and with demonstrated tendency to suicide who does not believe she would be alive without the support of Mr Song’s family, and does not see how she can survive without them. Ms A has no family in Australia or elsewhere, has few friends as “because I had schizophrenia, everyone was feeling scared of me and deliberately kept their distance from me. Ms Yao and her family offered their care”. The Tribunal is satisfied that these compassionate circumstances that affect an Australian citizen weigh heavily in favour of waiving the requirements of PIC 4020(1).
Statutory declarations and witnesses appearing before the Tribunal attest to the caring and compassionate nature of Mr Song and his family since they have lived in Australia, and of their assimilation into and contribution to their community.
Having considered these circumstances, overall the Tribunal is satisfied that the requirements of PIC 4020(1) should be waived.
Has the applicant satisfied the identity requirements?
PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.
There is nothing before the Tribunal to suggest that the applicant’s identity is in question. The Tribunal is satisfied that the applicant’s documents on file match the applicant’s identity. For these reasons the Tribunal is satisfied as to his identity.
Therefore, the applicant meets PIC 4020(2A).
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?
PIC 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 PIC 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: PIC 4020(2BA).
There is nothing before the Tribunal that suggests the applicant or any member of the family unit (as defined in reg 1.12) have been refused a visa in the relevant period because of a failure to satisfy PIC 4020(2A). At the hearing the applicant stated that they had not been refused a visa for failure to meet the requirements of PIC 4020(2A) and nor had any member of their family unit.
Therefore PIC 4020(2B) is met.
Concluding paragraphs
On the basis of the above, the applicant satisfies PIC 4020 for the purposes of cl 892.322.
Because Mr Kai Song’s visa application is secondary to Ms Meiting Yao’s, as is their son’s Mr Junyi Song’s, and the refusal of his application affected all of those in the family unit, this decision also relates to the reasons for refusal of the other family members. All applications that are part of this application are to be remitted for reconsideration.
DECISION
The Tribunal remits the applications for Business Skills (Residence) (Class DF) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 892 (State/Territory Sponsored Business Owner) visas:
· Public Interest Criterion 4020 for the purposes of cl 892.322 of Schedule 2 to the Regulations
George Hallwood
Member
ATTACHMENT
Migration Regulations 1994
Schedule 4
(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.
…
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