Zhang (Migration)

[2020] AATA 448

Zhang (Migration) [2020] AATA 448 (20 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Shuhan Zhang
Ms Donglian Sun
Miss Felicia Xihe Zhang
Miss Floria Ximu Zhang

CASE NUMBER:  1805011

DIBP REFERENCE(S):  BCC2016/2300522

MEMBER:Terrence Baxter

DATE:20 January 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the applications for Regional Employer Nomination (Permanent) visas for reconsideration, with the direction that the first‑named applicant meets the following criteria for Subclass 187 – Regional Sponsored Migration Scheme visas:

·public interest criterion 4020 for the purposes of cl.187.213(1) of Schedule 2 to the Regulations.

·cl.187.233(3) of Schedule 2 to the Regulations.

Statement made on 20 January 2020 at 12:36pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Office Manager – false or misleading information – site visit – deliberate deception by applicant unfounded – position genuinely available – nomination refused – decision substituted – nomination approved – decision under review remitted


LEGISLATION
Migration Act 1958 (Cth), ss 5, 65
Migration Regulations 1994(Cth), rr 1.13, 5.19, Schedule 2, cls 187.212, 187.213(1), 187.233, Public Interest Criterion 4020

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
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 Immigration on 8 February 2018 to refuse to grant the applicants Regional Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 8 July 2016. The delegate refused to grant the visas on the basis that the first-named applicant (the applicant) did not satisfy the requirements of cl.187.213(1) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant had met public interest criteria 4020 (PIC 4020). The delegate was not satisfied that there were grounds to justify a waiver of PIC 4020. The delegate also noted that cl.187.233 of Schedule 2, which required the applicant to be the subject of an approved nomination, had not been satisfied because the nomination lodged by Ocean International Pty Ltd as trustee for the Y & B Family Trust (the nominator) was refused on 24 January 2018 and that accordingly the applicant did not satisfy cl.187.233(3).

3. 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 Office Manager for the nominator.

4. The delegate also found that the second-named, third-named and fourth-named applicants could not be granted Subclass 187 visas, as they did not meet the secondary visa criterion (cl.187.311) requiring each of them to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 187 visa. The delegate also found that the third‑named and fourth-named applicants could not be granted Subclass 187 visas, as they did not meet the primary visa criterion (cl.187.212) requiring them to hold an offer of employment that has been considered in an application for approval.

5. The applicants lodged an application for review of the delegate’s decision with the Tribunal on 26 February 2018.

6. The applicant appeared before the Tribunal on 11 September 2019 to give evidence and present arguments.

7. The applicants were represented in relation to the review by their registered migration agent.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. There are two issues that arise in this case. The first issue is whether the visa applicant meets public interest criterion 4020 (PIC 4020) and the second is whether there is an approved nomination.

   Public interest criterion 4020

10. Clause 187.213(1) requires, among other things, that the applicant satisfies PIC 4020 for the grant of the visa. The relevant requirement in this case is 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).

11. The requirements in PIC 4020(1) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). 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?

12. 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.

13. 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.

14. 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.

15. As stated above, the applicant applied for a Subclass 187 visa to work in the nominated position of Office Manager for the nominator. The applicant stated in the application form that his nominated occupation was Office Manager. He also declared that the position to which the application related was a position nominated under r.5.19 of the Regulations by providing details in the application of a nomination that had been lodged with the Department of Immigration and Border Protection (as it then was) (the Department).

16. Records of the Department show that on 2 August 2017, Departmental officers visited the premises at 4/954 Kingston Road, Waterford West, Queensland, which is the address specified in the nomination application for the location of the nominated position. It is also the business address provided on the employment contract submitted to the Department in support of the visa application.

17. The Departmental records further show that:

    a.    on the day of the visit, Departmental officers observed that the premises were locked and closed and there was no signage or other evidence to indicate that the nominator operated a business from the location.

    b.    the results of the site visit indicated to the Department that the business OCEAN INTERNATIONAL PTY LTD as Trustee for the Y & B FAMILY TRUST was not operating at the location specified on the nomination application form. Additionally, it appeared that the business was not operating in a manner that supports the claim of a genuine need for a full‑time position in the occupation of Office Manager.

18. Clause 187.212 of Schedule 2 sets out the following criterion for the grant of a Subclass 187 visa:

    The position to which the application relates will provide to the applicant the employment referred to in the application for approval.

19. The Department invited the applicant to comment on the information set out in paragraphs 15 to 18 above. The Department’s letter stated – “Given the information currently held, it appears that the position to which your application relates is not genuinely available, and will not provide you with the employment referred in that nomination application”.

20. The Tribunal notes that the Department’s letter invited the applicant to provide comment and/or additional information in relation to the specified information, and made no reference to the applicant having provided false or misleading information.

21. The applicant provided, in response to the Department’s letter, his letter dated 18 December 2017, a submission from his representative and a response from the nominator. In his letter, the applicant described how he had become aware of the position and how he had successfully applied for the position of Office Manager. He stated – “Of all the information provided from me, I firmly believe that there is no bogus, fraudulent or misleading information; I shall never do any of such conduct at all.”

22. At the hearing, the applicant repeated his claim that no false or misleading information was provided by him. He said that everything that he had said in the application and his letter of 18 December 2017 was true. He gave evidence that he was unaware of the arrangements that the nominator had in place at the time of the visit by Departmental officers on 2 August 2017 because he was not in Australia at that time. The applicant’s representative made submissions that no false or misleading information had been provided and that the applicant could not have had knowledge of the circumstances of the visit in August 2017 because of his evidence that he was offshore at that time.

23. The definition of information that is false or misleading in a material particular in PIC 4020(5) requires the information to be false or misleading at the time it is given. The Tribunal finds that information was given by the applicant to the Department in the application lodged on 8 July 2016 and in his letter response dated 18 December 2017.

24. The delegate found that in the application, the applicant made the following declaration:

    “The applicants declare that they:

    Understand that visa may be cancelled if the employment is not commenced within six months of arriving in Australia, or six months after the visa is granted in Australia, or if the position is left within two years of commencement of employment with the nominated employer.”

25. The Tribunal has read the application and can find no such declaration by the applicant.

26. The delegate also found that the applicant’s declaration in the application form stating that he agreed to work in the nominated position for a minimum period of two years to be a false or misleading declaration to the Department, as it is not possible to work in a position that is not available.

27. Once again, the Tribunal has read the application and can find no such declaration by the applicant.

28. The delegate also found that the applicant had declared on the application form that his annual salary was $50,000.00. The delegate found that this appeared to be a false or misleading declaration to the Department.

29. Again, the Tribunal has read the application and can find no such declaration by the applicant.

30. Having considered all of the evidence, and based on the information provided by the applicant to the Department as set out in paragraph 23 above, the Tribunal is satisfied that, in the circumstances of this particular case, there was no purposeful falsehood or deception involved on the part of the applicant. The Tribunal is accordingly satisfied that there is no evidence that the applicant has given, or caused to be given, information that is false or misleading in a material particular in relation to his application.

31. Therefore, the applicant meets PIC 4020(1) for the purposes of cl.187.213(1).

32. In view of the above finding, it is not necessary for the Tribunal to consider waiver of PIC 4020(1).

    Is there an approved nomination?

33. Clause 187.233 as applicable in this case requires that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia. The position must be the 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.

34. In addition, this criterion also requires that:

    ·the person who will employ the applicant is the person who made 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.

35. Records of the Department indicate that the nominator made an application to have the position of Office Manager approved, with the applicant as nominee, to the Department on 7 July 2016. The nomination application was refused on 24 January 2018 and the nominator sought review of that decision with the Tribunal on 13 February 2018.

36. On 20 January 2020, the Tribunal (as presently constituted) set aside the Department’s decision to refuse to approve the nomination and substituted a decision to approve the nomination by Ocean International Pty Ltd as trustee for the Y & B Family Trust.

37. Therefore, cl.187.233(3) is met in relation to the applicant.

38. The second-named, third-named and fourth-named applicants applied on the basis that each of them is a member of the family unit of the applicant. Their applications will also be determined on remittal to the Department for reconsideration in light of the Tribunal’s findings in relation to the first-named applicant.

39. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

40. The Tribunal remits the applications for Regional Employer Nomination (Permanent) visas for reconsideration, with the direction that the first-named applicant meets the following criteria for Subclass 187 – Regional Sponsored Migration Scheme visas:

    ·public interest criterion 4020 for the purposes of cl.187.213(1) of Schedule 2 to the Regulations.

    ·cl.187.233(3) of Schedule 2 to the Regulations.

    Terrence Baxter
    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.

    …