Zhang (Migration) - [2019] AATA 2145

Zhang (Migration) [2019] AATA 2145 (12 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Haixia Zhang
Mr Guangqing Yang
Ms Yueran Yang
CASE NUMBER:  1715848
DIBP REFERENCE(S):  BCC2017/198987
MEMBER:John Cipolla
DATE:12 April 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) visas.

Statement made on 12 April 2019 at 10:07am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent)(Class EN) – Subclass 186 (Employer Nomination Scheme) – false and misleading information – false claims of entering into employment – company not lawfully operating – no evidence before tribunal which established the existence of compelling circumstances – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65, 98
Migration Regulations 1994, Schedule 2, rr 1.03, 1.13A, 1.13B, cls 186.213, 186.233, Public Interest Criterion 4020
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Brown v Citizen’s Life Insurance Co Ltd (1904) 2 SR (NSW) 202
Kaur v MIBP [2017] FCAFC 184
Lloyd (Pauper) Appellant v Grace [1912] AC 716
Lysaght Bros & Co Ltd v Falk (1905) CLR 443
Plaintiff M64/2015 v MIBP [2015] HCA 50
Singh v MIBP [2014] FCCA 1816
Singh v MIBP [2015] FCCA 2776
Sran v MIBP [2013] FCCA 37
Trivedi v MIBP [2014] FCAFC 42
Vyas v MIAC [2012] FMCA 92
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 7 July 2017 to refuse to grant the applicants Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 16 January 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.186.213 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because of the following. The delegate concluded that there was evidence that the applicant had provided or caused to be provided false or misleading information, or bogus documentation to the Department, in relation to the application for the visa. The delegate noted that inquiries that had been made by the Department which found that the business the applicant had been nominated by did not actively and lawfully operate. The delegate concluded that the applicant had made false claims about entering into employment with a company that did not actively operate. Further to this that the applicant had declared that they agreed to take up the position of Advertising Manager with the nominating business KTN Recruiting Pty Ltd at an annual salary of $182,000. Further to this the applicant had declared that they agreed to take up the position for at least 2 years.
The Departmental decision record indicates that on 31 May 2017 the Department issued a natural justice letter to the applicant in writing, inviting her to comment on information that was adverse to the application. The applicant failed to respond to the…

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) [2019] AATA 2145
Case: [2019] AATA 2145
Decision Date: 12 April 2019

CaseChat Overview and Summary

This matter concerned an appeal by an applicant for an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), against the refusal of their application. The applicant's migration agent argued that the applicant had no intention of providing misleading evidence and that the imposition of Public Interest Criterion 4020 was unfair, attributing the applicant's predicament to misinformation from a third party, Sun Yi, who had allegedly been arrested for migration fraud. The Tribunal was asked to determine whether the applicant met the requirements of cl.186.233 and cl.186.213(1), specifically Public Interest Criterion 4020(1).

The court was required to consider two primary legal issues. Firstly, whether the applicant met the requirements of cl.186.233, which pertains to the nomination of a position, including the employer being the nominator, the nomination being approved and not withdrawn, the absence of adverse information, the continued availability of the position, and the timing of the visa application relative to the nomination approval. Secondly, the court had to determine whether the applicant satisfied Public Interest Criterion 4020(1), which prohibits the provision of bogus documents or false or misleading information in relation to the visa application or a previous visa held within the preceding 12 months.

The Tribunal found that cl.186.233 could not be met because the nomination lodged by KTN Recruiting Pty Ltd had been refused by the Department of Immigration and subsequently affirmed by the Tribunal. Regarding Public Interest Criterion 4020, the Tribunal noted that the applicant's representative had not presented evidence to establish that the company was lawfully operating or that there were compelling circumstances justifying a waiver of the criterion. The applicant's claim of embracing Christianity in Australia, raised for the first time at the review hearing, was not considered a basis for a protection visa application, and there was no evidence to suggest compelling circumstances that would warrant a waiver of PIC 4020.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Employer Nomination (Permanent) (Class EN) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Tribunal asked the applicants migration agent whether she wished to raise any issues. The agent stated that from the beginning of the application the applicant had no intention to provide misleading evidence to the Department. The agent stated that the imposition of Public Interest Criterion 4020 was really unfair. The applicant’s representative stated that the applicant’s predicament had arisen as a consequence of misinformation from Sun Yi. The representative stated that she had just received details from compliance advising that Sun Yi had been arrested with regard to migration fraud. The hearing concluded.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant meets the requirements of cl.186.233. Further to this whether the applicant meets the requirements of cl.186.213(1) namely Public Interest Criterion 4020(1).Nomination of a position Clause 186.233 requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream. The position must be one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position. In addition, this criterion also requires that:·the person who will employ the applicant is the person who made the nomination·the nomination has been approved and has not been subsequently withdrawn·there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of r.1.13A and r.1.13B); or it is reasonable to disregard any such information·the position is still available to the applicant, and·the visa application was made no more than six months after the nomination of the position was approved. On 8 June 2017, the nomination lodged by KTN Recruiting Pty Ltd, being the nomination for the purposes of the visa application, was refused by the Department of Immigration. On 9 August 2018, the Tribunal dismissed the application lodged by KTN Recruiting Pty Ltd for merits review and as a result, the decision under review was taken to be affirmed. Therefore, cl.186.233 is unable to be met as the nomination application by KTN Recruiting Pty Ltd has not been approved.Other criteria The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.186.213(1) for the grant of the visa. Broadly speaking, this requires that:·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and·the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and ·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA).

Decision

Reasons for decision

The applicant raised for the first time at the review hearing on 9 April 2019 that she has embraced Christianity in Australia. There is nothing that would prevent the applicant from lodging a protection visa application onshore if the applicant believed that she has a well -founded fear of persecution upon return to China because of her religion.DECISION The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.John CipollaSenior MemberATTACHMENTMigration 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

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