Zhang (Migration) - [2023] AATA 107

Zhang (Migration) [2023] AATA 107 (7 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Yanchun Zhang
Mr Chang Liu
REPRESENTATIVE:  Mr Xiaoyang Wang (MARN 1808431)
CASE NUMBER:  1931579
HOME AFFAIRS REFERENCE(S):          BCC2017/1522842, BCC2015/3906300, BCC2019/5729451, BCC2017/1522782, BCC2017/1522703
MEMBER:K. Chapman
DATE:7 January 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants Business Skills (Residence) (Class DF) visas.

Statement made on 07 January 2023 at 3:50pm

CATCHWORDS

MIGRATION – Business Skills (Residence) (Class DF) visa – Subclass 890 (Business Owner) – bogus document submitted with visa application – notarial certificate from home country attesting no criminal record – verification checks – credibility – proven financial offence with no conviction in Australia, large debts to ATO, allegations of fraud in home country and Australia and Interpol red notice – attempts to blame other people and limited insight into own actions – reasonable suspicion of bogus document – no compassionate or compelling circumstances to waive requirements – member of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65, 359(2), 359A, 375A
Migration Regulations 1994 (Cth), Schedule 2, cl 890.222, Schedule 4, criterion 4020(1)
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
ReMIMA; ex parte Durairajasingham [2000] 168 ALR 407
Selvaduraiv MIEA [1994] FCA 1105
Singh v MIBP [2018] FCAFC 52
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 Home Affairs, on 30 October 2019, to refuse to grant the applicants Business Skills (Residence) (Class DF) visas under s 65 of the Migration Act 1958 (Cth) (‘the Act’). The first named applicant, Mrs Yanchun Zhang, applied for the visa on 16 December 2015. She included her son Mr Chang Liu, the second named applicant, in the visa application.
The delegate refused to grant the visas on the basis that the first named applicant (hereafter ‘the applicant’) did not meet the requirements of cl 890.222 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). Relevantly, the delegate assessed the applicant did not satisfy the requirements of Public Interest Criterion 4020 (PIC 4020) and there were no compassionate or compelling circumstances to warrant waiver of this criterion. In particular, the delegate determined that the submitted Chinese Notarial Certificate Number 6129, regarding the applicant having no criminal record, is a bogus document. On 6 November 2019, the applicant applied to the Tribunal for review of the visa refusal decision, providing a copy of that decision with her application.
On 30 August 2022, the Tribunal wrote to the applicant, through her representative then on the record, pursuant to s.359(2) and s.359A of the Act. This correspondence invited the applicant to provide information regarding the PIC 4020 waiver provision and to comment on, or respond to, the following information:
a.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Zhang (Migration)

Details

AGLC: Zhang (Migration) [2023] AATA 107
Case: [2023] AATA 107
Decision Date: 7 January 2023

CaseChat Overview and Summary

This matter concerned an application for a Subclass 890 (Business Owner) visa by Ms Zhang, and a secondary application by another applicant. The primary dispute revolved around whether Ms Zhang had provided a bogus document or false or misleading information in support of her visa application, specifically a notarial certificate from China attesting to her lack of a criminal record. The Tribunal was required to determine if Ms Zhang met Public Interest Criterion (PIC) 4020, which mandates that applicants must not have provided bogus documents or false or misleading information, and that they have not had previous visa refusals due to such failures, unless specific exceptions apply.

The Tribunal's reasoning focused on the assessment of PIC 4020(1). It considered the definition of a "bogus document" under section 5(1) of the Migration Act 1958 and the meaning of "information that is false or misleading in a material particular" under PIC 4020(5). The Tribunal noted that the requirement under PIC 4020(1) applies regardless of whether the applicant knowingly provided the document or information, and whether the decision-maker became aware of it through the applicant's own disclosure. The Tribunal found that the applicant had not provided evidence to contest the validity of a certificate detailing adverse information, which cited a public interest ground. Despite the applicant's assertions of procedural unfairness and suggestions of her former husband's involvement, the Tribunal was satisfied that the Chinese Notarial Certificate Number 6129 was bogus, based on departmental verification checks.

The Tribunal concluded that Ms Zhang failed to satisfy PIC 4020(1) due to the submission of the bogus notarial certificate. Consequently, the Tribunal found that the second applicant, as a member of the family unit, also failed to satisfy the secondary applicant requirements for the visa. The Tribunal affirmed the decision not to grant the Business Skills (Residence) (Class DF) visas to the applicants.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. consideration of claims and evidence The issue in this review is whether the applicant meets Public Interest Criterion 4020 (PIC 4020), as required by cl 890.222 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) may 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.

Decision

Reasons for decision

As the applicant does not satisfy the requirements for the Subclass 890 visa, it follows that the second named applicant does not satisfy the secondary applicant requirements for the visa. The Tribunal so finds. decision The Tribunal affirms the decision not to grant the applicants Business Skills (Residence) (Class DF) visas.K. ChapmanMemberATTACHMENTMigration Regulations 1994Schedule 44020(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 1958s 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.…

Ratio Decidendi

Legal Principle Established

The Tribunal also notes the guidance concerning these matters from the Full Federal Court in the matter of Singh v MIBP [2018] FCAFC 52. In particular, the Tribunal has paid careful regard to the following guidance in that decision [at 144]:“Where an issue of the proper construction or application of PIC 4020 is raised, Trivedi and Patel authoritatively state that where a visa applicant has given or caused to be given to a relevant decision-maker a document which is a “bogus document” as defined, or information that is false or misleading in a material particular as defined, to determine whether PIC 4020 is satisfied or not, it is not necessary to show knowing complicity by the visa applicant as long as the material is purposely untrue.”Consideration of Notarial Certificate Number 6129 submitted with the Subclass 890 visa application As is relevant to the present review, the document in issue is a purported Chinese Notarial Certificate Number 6129, dated 5 April 2017, with respect to the applicant. It indicates she has no criminal record in China during her residence in that country up to 29 May 2013. The delegate’s visa refusal decision, a copy of which was provided to the Tribunal by the applicant, indicates that the Department assessed the document to be bogus following enquiries with the Qilu Notary Public Office, Jinan City, Shandong Province in China. As previously outlined, the Tribunal invited the applicant to comment on, or respond to, several pieces of potentially adverse information through its correspondence of 30 August 2022. In summary, the written response of the applicant denies any wrongdoing and contests any bogus document was submitted in relation to her visa application. Indeed, the applicant critiques the Department’s verification check conducted in China, provides fresh Notarial Certificates indicating she lacks a criminal record in China and contends the Interpol Red Notice issued in respect of her in 2016 is no longer current as it cannot be located on an open source internet search. The Tribunal has carefully considered the submissions of the applicant. During the review hearing, the Tribunal discussed with the applicant and the representative the validity of the s 375A Certificate, dated 15 November 2019, covering the potentially adverse information referred to above. The applicant and the representative were invited to comment upon its validity. No contest was made regarding the validity of the s 375A Certificate. Having carefully considered that Certificate, the Tribunal is satisfied it is valid given it appropriately cites a public interest ground. The Tribunal canvassed the particulars of Notarial Certificate Number 6129 with the applicant at length during the review hearing, including ‘the gist’ of information pertaining to the Department checks in April 2018 that suggested the document was bogus (as outlined in the Tribunal’s correspondence of 30 August 2022). The applicant contended she was not given procedural fairness by the Department because they did not inform her that they questioned the authenticity of her Notarial Certificate, rather suggesting they indicated it was the Certificate of her son in question. The applicant also indicated her former husband acquired her Notarial Certificate Number 6129 whilst she was in Australia and inferred he may have played a role in any documentary deficiencies. Further, the applicant suggested the former migration agent of her former husband advised that the Department questioned the veracity of her son’s Notarial Certificate and that a person in a Notarial Office in China had the same surname as the former agent, however she couldn’t remember clearly due to the passage of time.