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

1. 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.

2. 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.

3. 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.The Departmental files BCC2017/1522842, BCC2015/3906300 and BCC2017/1522842 contain information regarding allegations and the Departmental processing of those allegations. The Tribunal notes that this material is subject to a certificate pursuant to s.375A of the Act dated 15 November 2019 (see enclosed certificate, you are invited to comment upon its validity if you wish to do so). The ‘gist’ of the material contained under cover of the certificate is:

   ·Ms Yanchun Zhang allegedly deceptively obtained significant funds in China prior to June 2013 and transferred them to Australia;

   ·In August 2015, Ms Yanchun Zhang was reported to the Queensland Police Service for allegations of commercial fraud;

   ·In 2016 an Interpol Red Notice was issued in respect of Ms Yanchun Zhang, who is wanted by the Chinese authorities in relation to allegations concerning the crime of ‘illegal absorbing public deposits’;

   ·Ms Yanchun Zhang established two companies, Jiuwanban Aust Pty Ltd and Jiuwanban Runcorn Pty Ltd which both have large debts to the ATO;

   ·The Department of Home Affairs in Australia referred Notarial Certificate No.6129 to Australian Government officials in China for verification checks. In April 2018, an Australian Government official confirmed with the Qilu Notary Public Office, Jinan City, Shandong Province that it did not issue the Notarial Certificate of no criminal record in respect of Ms Yanchun Zhang; and

   ·AFP records indicate Ms Yanchun Zhang has a proven offence, with no conviction recorded, for ‘Valueless Cheque Discharge Debt Liability or Obligation’ dated 14 December 2015.

4. The Tribunal’s correspondence outlined that the above information is relevant to the review because it tends to suggest the applicant has given or caused to be given to an Officer of the Department a bogus document, specifically the Notarial Certificate. Further, this information is also relevant to the review because it tends to suggest the applicant has a history of dishonesty. The correspondence also noted that if the Tribunal relies on this information in making its decision, it may affirm the decision under review as the applicant would not satisfy Public Interest Criterion 4020 (‘PIC 4020’) and therefore not meet the requirements of cl 890.222 of Schedule 2 to the Regulations.

5. Following the issuance of this invitation, the applicant changed her representative and she was granted an extension of time to respond. On 10 October 2022, the applicant submitted, through the current representative (‘the representative’) voluminous material in response to the Tribunal’s invitation. The material included, but is not limited to, submissions, Notarial Certificate information, Interpol information, banking records, educational documentation, business registration material, taxation records, Police clearance, character references and commercial information. The applicant subsequently submitted a new AFP clearance, Notarial Certificate, Business Registration information and character references. The Tribunal has duly considered all submitted information.

6. The applicants appeared before the Tribunal on 14 December 2022 to give evidence and present arguments. The Tribunal took the evidence of each applicant in person. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages, with the applicants confirming they understood the interpreting service. The applicants were represented in relation to the review by the representative, who was permitted to make verbal submissions at the review hearing.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   consideration of claims and evidence

8. 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).

9. 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?

10. 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.

11. 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.

12. 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.

13. 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

14. 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.

15. 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.

16. 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.

17. 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.

18. The applicant told the Tribunal that upon learning of the claim that her Notarial Certificate Number 6129 was non-genuine, she got in contact with the Notarial Office but found ‘there was a change in institutional structure’. She then went through a friend to acquire a new Notarial Certificate from a different Notary. The applicant maintained that the original Notary no longer worked in the issuing Office and she obtained subsequent Notarial Certificates from other officials demonstrating she has no criminal record in China. The applicant also doggedly maintained her claim that the Department did not provide her procedural fairness because they focussed on her son’s submitted Notarial Certificate.

19. When asked by the Tribunal why it should not prefer the information from the Department that the purported Notarial Certificate Number 6129 is a bogus document, to the evidence she submitted seeking to demonstrate otherwise, the applicant responded that she was telling the truth, she has no criminal record in China and she understands how people work in the Notarial Office with them sometimes not being responsive to inquiries. The Tribunal has carefully considered the evidence of the applicant concerning these matters. For completeness, the Tribunal notes that the second named applicant gave brief evidence indicating his mother had raised everything he was going to say on the central issue.

    Consideration of other allegations contained in the Department files

20. The Tribunal also canvassed with the applicant the other matters raised in its correspondence of 30 August 2022. Regarding debts to the Australian Taxation Office (ATO), the applicant contended that cashflow difficulties led to her companies acquiring the debts. She confirmed one of her companies accumulated a $160,000 debt to the ATO in 2016 that is being paid off in an instalment plan over several years. The applicant also confirmed another of her companies in Australia had wound up with a taxation debt but the ATO decided not to pursue it. Further, the applicant later informed the Tribunal she was duped by a member of the Chinese community in Australia to purchase a defective restaurant business and this exacerbated her difficulties in relation to amassing debts.

21. The applicant confirmed she had a proven offence, without conviction, for passing a valueless cheque in Australia. She claimed she had been ‘entrapped’ by the bearer of the cheque, who was a member of the Chinese community in Australia. According to the applicant, she told this person not to deposit the cheque until she obtained further funds but he did so to cause trouble for her. She informed the Tribunal she plead guilty on the advice of her lawyer at the time. The second named applicant advised that it was a former personal friend who set up his mother, which was particularly upsetting.

22. Regarding the Interpol Red Notice being issued by the Chinese authorities in 2016 and allegations of ‘illegal absorbing public deposits’, the applicant initially advised she doesn’t know about why the Notice was issued and could not explain it to the Tribunal. She later contended she was a well known business person in China and someone may have impersonated her to set up bogus affairs in her name. At a later point in the hearing, with reference to the Interpol Red Notice, the applicant contended that she gave a business in China to her brother before she departed. According to her, he was a gambler who ‘will do anything’, inferring there may be some connection to him.

23. During the review hearing, the Tribunal raised with the applicant that it might have concerns with her credibility given the dishonesty offence proven against her, that an Interpol Red Notice had been issued in 2016 and she had significant taxation debts. The applicant was invited to comment and outlined that she was mislead and cheated by a member of the Chinese community in Australia to purchase the restaurant business, she gave up money for her son’s education to invest in the failed business and her son also lost additional money in that business. The applicant maintained that regardless of any potential issue with Notarial Certificate Number 6129, she has always conducted herself honestly. She lamented that others have obtained Permanent Residence in Australia ‘without contributing a cent of tax’ to this country. The applicant also informed the Tribunal, somewhat curiously, that in Australia she has ‘always paid tax correctly and honestly.’ Additionally, the applicant advised she had helped many people in Australia by providing them with employment opportunities and remedial massage services. The Tribunal has carefully considered the applicant’s evidence regarding these matters.

    Analysis

24. The Tribunal notes that in determining whether it is satisfied that prescribed criteria for a visa are met, it is not required to uncritically accept the evidence of an applicant. As Heerey J observed in Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105 at [7]:

    A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out.

25. Similarly, the Tribunal notes the following observations of McHugh J in Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 at [67]:

    If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.

26. The Tribunal has carefully considered all the evidence in the present matter. The Tribunal notes that the Department assessed the submitted Notarial Certificate Number 6129 as a bogus document, following liaison with the Qilu Notary Public Office, Jinan City, Shandong Province in April 2018. The Tribunal prefers this evidence to the documentary and verbal evidence of the applicant in support of her contention that the document could not be bogus. The Tribunal does so, given the official source of the information informing the Departmental assessment regarding the legitimacy of the document. Additionally, there is no persuasive evidence before the Tribunal suggesting malfeasance on the part of the Departmental Officer, or the Chinese official, in relation to the verification check of Notarial Certificate Number 6129. That the applicant has provided subsequent clear Notarial Certificates, and contends the Interpol Red Notice is no longer current, does not displace the veracity of the assessment performed by the Department in 2018 concerning the legitimacy of Notarial Certificate Number 6129. Indeed, it is worth pausing to reflect upon that the Interpol Red Notice was issued in 2016, reasonably proximate in time to Notarial Certificate Number 6129 being obtained in 2017 by the applicant, who was in Australia at that time.

1. Furthermore, the Tribunal developed concerns with the credibility of the applicant during the review hearing for the following reasons. During her evidence she sought to blame others for the predicaments in which she found herself. For example, the applicant variously sought to blame her former husband, the former migration agent of her former husband (who may have had the same surname as a person in a Notarial Office in China) and staff at the Notarial Office for not performing the verification check properly. Additionally, the applicant sought to blame her brother for potentially influencing the issuance of the Interpol Red Notice, or alternatively, unknown persons in China who may have impersonated her as she was purportedly a well known business person in that country.

2. Regarding her failed business activities in Australia, that resulted in significant taxation debts to the Commonwealth, the applicant blamed a member of the Chinese community for cheating her. Indeed, at one point during her evidence the applicant stated she had ‘always paid tax correctly and honestly’, in contradiction to the evidence demonstrating she owed a significant taxation debt. The matter of passing the valueless cheque, for which she plead guilty, was suggested to be the fault of another mischievous member of the Chinese diaspora who set her up. When considered holistically, the Tribunal considers the narrative of the applicant to be fanciful and a display of limited insight into her own actions. Accordingly, the Tribunal has assessed the applicant to lack candour regarding her visa application and business dealings.

3. On balance, the Tribunal is not satisfied that the evidence submitted by the applicant displaces the assessment of the Department that Notarial Certificate 6129 has not been validly issued. The Tribunal finds that there has been an element of fraud or deception by some person in the creation of that document, in the sense articulated by the authorities of Singh and Trivedi. For the sake of completeness, the Tribunal records it does not accept that the applicant has unwittingly been duped by her former husband, or a former migration advisor, or a dishonest Chinese official, in the submission of that document. This view is buttressed by the lack of candour displayed by the applicant at hearing, as previously outlined.

4. In addition, the Tribunal finds that the submitted Notarial Certificate Number 6129 ‘purports to have been, but was not, issued in respect of the relevant person’ and that it is ‘counterfeit or has been altered by a person who does not have authority to do so’, and therefore it is a bogus document.

5. Following consideration of the above matters, the Tribunal reasonably suspects that the applicant has given, or caused to be given, to an Officer of the Department of Immigration a bogus document within the meaning of subsection 5(1) of the Act, being the Notarial Certificate Number 6129. Therefore, the applicant does not satisfy the requirements of cl.4020(1).

6. For the sake of completeness, the Tribunal also records it is satisfied that the second named applicant had no role in submitting the bogus document. Therefore, the Tribunal does not reasonably suspect that the second named applicant has given, or caused to be given, to an Officer of the Department of Immigration a bogus document within the meaning of subsection 5(1) of the Act. Therefore, the second named applicant satisfies the requirements of cl.4020(1).

7. Given the Tribunal has found the applicant does not satisfy cl.4020(1), it must now consider the waiver provision.

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

8. 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.

9. 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.

10. For the following reasons, the Tribunal is not satisfied that the requirements should be waived. During the review hearing, the Tribunal canvassed whether there are any compassionate or compelling circumstances that justify the granting of the visas to the applicants and the waiver of PIC 4020(1). The applicant advised that she had moved into the remedial massage business, following the closure of her restaurant interests. The applicant explained that she had established one remedial massage clinic, with another being prepared to open. She submitted documentary material supporting this contention and the Tribunal accepts she has commenced business in this field.

11. The applicant informed the Tribunal that she presently has one employee and four subcontractor massage therapists engaged by her operational clinic. She has two more individuals preparing to be engaged by the applicant’s business. The aforementioned persons are a mixture of Australian citizens, Australian permanent residents and those on the pathway to permanent residence. The applicant submitted that these individuals would be denied work, and her business would close, if her Subclass 890 visa was not granted. Whilst the Tribunal accepts some upset and economic disadvantage would be experienced by the individuals employed or engaged in the applicant’s remedial massage business, it does not consider the submitted circumstances to be of sufficient gravity to justify the granting of the Subclass 890 visa to the applicants and the waiver of PIC 4020(1).

12. The applicant also contends that if she is not granted the Subclass 890 visa, her business will be forced to close and Australian citizens and permanent residents will be deprived of remedial massage opportunities, including participation in free community based clinics. Whilst the Tribunal accepts there might be some disruption to the patients of the applicant’s remedial massage offerings, it does not consider the submitted circumstances to be of sufficient gravity to justify the granting of the Subclass 890 visa to the applicants and the waiver of PIC 4020(1).

13. The applicant submits that she has developed friendships with Australian citizens and Australian permanent residents (including with patients) and has provided some assistance to such persons. Character references have been submitted in that regard. If the applicant departs Australia, then those relationships will cease in their present form. Whilst the Tribunal accepts there might be some upset and inconvenience to the applicant’s friends if she departs Australia, it does not consider the submitted circumstances to be of sufficient gravity to justify the granting of the Subclass 890 visa to the applicants and the waiver of PIC 4020(1).

14. The applicant submits that if she is not granted the Subclass 890 visa, her business will be forced to close, she will have to return to China, Australia will lose the economic benefit she is generating (including the lost opportunity for her to expand her business activities as the holder of a permanent residence visa) and it will be unlikely she will be able to repay her debt to the Australian Taxation Office due to the strict currency controls imposed by the Chinese Government. Whilst the Tribunal accepts that some economic generation by the applicant in Australia will cease, and the applicant’s debt to the Commonwealth may not be repaid if she cannot remain working in Australia, it does not consider the submitted circumstances to be of sufficient gravity to justify the granting of the Subclass 890 visa to the applicants and the waiver of PIC 4020(1).

15. It is further submitted that the second named applicant is in gainful employment in Australia, he is of good character and he has many Australian citizen friends. Indeed, written references have been submitted regarding these matters. If the second named applicant must depart Australia, his employer will lose his services and his friendships will be unable to continue in their present form. Having regard to the relevant evidence, the Tribunal accepts these matters. The Tribunal is therefore satisfied that the second named applicant’s employer will experience some workforce difficulty if he departs Australia and his friendship circle will experience some upset. However, the Tribunal does not consider the submitted circumstances to be of sufficient gravity to justify the granting of the Subclass 890 visa to the applicants and the waiver of PIC 4020(1).

16. For completeness, the Tribunal records that it is not satisfied there are any compelling circumstances that affect the interests of Australia such as to justify the grant of the visa to the applicants. The economic generation (present and future), remedial massage service offering and employment matters (regarding the applicant, those individuals engaged by the applicant and also the second named applicant’s employment situation) canvassed above do not, in the view of the Tribunal, constitute circumstances of sufficient gravity to justify the granting of the Subclass 890 visa to the applicants and the waiver of PIC 4020(1).

17. The Tribunal has carefully assessed the evidence provided in relation to the grounds for waiver of the requirements in PIC 4020. The Tribunal notes that if the waiver is not granted, pursuant to the provisions of cl.4020(2), the applicants would be subject to a three year ban on applying for further Australian visas (unless the ban is waived by a future decision maker in accordance with cl.4020(4)). Whilst accepting in these circumstances there would be some emotional hurt for each Chinese national applicant if the Subclass 890 visas are not granted, the Tribunal is not satisfied that compassionate or compelling circumstances are present such as to warrant the waiver of the requirements in PIC 4020(1) as outlined above.

18. Following careful consideration, the Tribunal finds that no compassionate or compelling circumstances are present concerning either of the applicants, or any other Australian citizen or permanent resident (or eligible New Zealand citizen), that justify the granting of the visas and warrant the waiver of the requirements of PIC 4020(1). Nor are there any compelling circumstances that affect the interests of Australia that warrant the waiver of the requirements of PIC 4020(1).

19. Therefore, the requirements of PIC 4020(1) should not be waived with respect to the applicant. Accordingly, the applicant does not satisfy the requirements of the Subclass 890 visa.

20. Having regard to the above matters, the applicant does not satisfy PIC 4020 for the purposes of cl 890.222. There is no persuasive evidence before the Tribunal to suggest the applicant satisfies the requirements for any visa Subclass. The Tribunal so finds.

21. 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

22. The Tribunal affirms the decision not to grant the applicants Business Skills (Residence) (Class DF) visas.

    K. Chapman
    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.

    …