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 Departmental invitation to comment. Based on the evidence before the delegate they concluded that the applicant did not satisfy Public Interest Criterion 4020, subclause 4020(1) and that accordingly the requirements of cl.186.213 were not met.
The Tribunal received an application for review on 21 July 2017. The applicants sought a confirmation of lodgement via an email dated 31 July 2017 and a written acknowledgement was provided. Annexed to the application was a copy of the Departmental decision record.
On 14 March 2018 the Tribunal was advised that the applicant had engaged a Migration Agent, Ms Angel Lu Jiao, and the relevant appointment of representative form was provided to the Tribunal.
On 19 March 2018 the Tribunal was advised by the applicant’s representative that the applicant was considering travelling overseas, a registry officer of the Tribunal advised the applicant’s representative to ensure that they inform the Tribunal of travel dates and relevant contact details if the applicant intended to travel.
On 16 August 2018 the Tribunal wrote to the applicant inviting the applicant to comment on or respond to certain information which the Tribunal considered would, subject to the applicant’s comments or response, be the reason, or part of the reason, for affirming the decision under review. The particulars of the information were as follows. That the applicant had lodged an application for an employer nomination visa with the Department of Immigration on 16 January 2017. The Department of Immigration refused the visa application in a decision made on 7 July 2017. That the applicant lodged a review application with the Tribunal on 21 July 2017. That 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. That on 23 June 2017 KTN Recruiting Pty Ltd lodged an application for a review of the decision to refuse the nomination application. On 25 July 2018, the Tribunal dismissed the application lodged by KTN Recruiting Pty Ltd. On 9 August 2018, the Tribunal confirmed its dismissal of the application lodged by KTN Recruiting Pty Ltd noting that as a result, the decision under review was taken to be affirmed. The Tribunal noted that this information was relevant because cl.186.233 requires that the nomination made in relation to the applicant by her nominating employer had been approved by the Minister. The letter noted that if the Tribunal relied on this information it may find the nomination in relation to the applicant had not been approved and consequently the decision under review would be affirmed. The Tribunal noted that the nomination relied on to satisfy cl.186.233 must be the one which was made at the time of the visa application and therefore it was not possible to rely on another nomination.
The letter further noted that with regard to Mr Guangqing Yang’s review (a secondary visa applicant) the Tribunal was of the view that the application is not a valid application because in order to have made a valid application, the applicant, must have been in Australia at the time the delegate refused the visa application on 7 July 2017 and at the time the review application was lodged with the Tribunal on 21 July 2017. The Tribunal noted that the evidence before it indicated that the applicant did not appear to be in Australia on those dates.
The Tribunal received a response to the 359A letter including a statement from the applicant dated 29 August 2018. The applicant advised that she signed a Subclass 186 visa application service contract with a Chinese based migration business called Shanghai Donglv. The applicant stated that the Chinese agent suggested that she travel to Australia to lodge her visa application. The applicant travelled to Australia on 9 January 2017 with her daughter. The applicant was then put in touch with an Australian agent by the name of Sun Yi who lodged the application on her behalf on 16 January 2017 and the applicant was granted a Bridging A visa. The applicant was then advised on 14 February 2017 that the Department had requested information pertaining to the sponsoring company’s structure and that the application was being processed smoothly. The applicant received notification of a visa refusal on 20 July 2017. The applicant stated that after the visa was refused she went to the 2 addresses provided pertaining to the nominating business one in Brighton and one in Footscray and at that point she also checked the ASIC website to learn that the sponsoring company was not actively operating. The applicant advised that she then sought an interview with an investigative officer from Australian Border Force pertaining to her being a victim of immigration fraud. The applicant provided a copy of the statement that she made to Border Force dated 28 March 2018.
On 19 September 2018 the Tribunal forwarded a hearing invitation to the applicant inviting her to attend a hearing scheduled for 2 November 2018. The applicant’s migration agent forwarded a response to the hearing invitation on 24 September 2018.
On 22 October 2018 the applicant’s migration agent contacted a registry officer at the Tribunal advising that the applicant had been suffering with headaches and dizziness and had a mental health issue and that it was not suitable for her to attend a hearing before February 2019. The applicant’s representative sought a rescheduling of the hearing. Annexed to this request was a medical certificate from Dr Julie Wang dated 19 October 2018 advising that the applicant was suffering with moderate adjustment disorder and depressive symptoms and that the hearing should be postponed until February 2019.
The Tribunal considered the postponement request and agreed in the circumstances that the hearing should be postponed. On 25 October 2018 the Tribunal wrote to the applicant through her representative inviting the applicant to attend a hearing scheduled for 1 February 2019. The applicant’s representative forwarded a signed response to hearing invitation confirming the applicant’s attendance at the rescheduled hearing. On 24 January 2019 the applicant’s representative contacted a registry officer of the Tribunal. She advised that “my client ZHANG Haixia is not physically able to attend the hearing scheduled on 1 Feb. Her health is getting worse in the past months. Attached please find a medical certificate. Please kindly reschedule the hearing if it is allowed”. Annexed to the request was a medical certificate from Dr Julie Wang dated 23 January 2019. Dr Wang noted that the applicant was a patient of her facility. Dr Wang noted that the applicant’s adjustment disorder and depressive symptoms had worsened over the past 3 months. Dr Wang noted that she was considering treatment options and that in the light of the applicant’s mental health state she felt that the applicant would benefit from having her interview with the Tribunal postponed until June 2019. The Tribunal wrote to the applicant on 25 January 2019 advising that it had agreed to a further request that the hearing be postponed and advising that the Member would notify the applicant of the rescheduled hearing date.
On 11 March 2019 the Tribunal invited the applicant to attend a hearing scheduled for 9 April 2019. The Tribunal noted in its hearing invitation that “the Tribunal has consented to the postponement of the review hearing on 2 previous occasions. The Tribunal will only consent to a further postponement in exceptional circumstances. If there are medical or mental health reasons that preclude the applicant from attending a hearing the Tribunal will require a comprehensive report from an appropriate medical specialist that provides evidence as to why the applicant would be precluded from attending a review hearing before the Tribunal. The Tribunal noted that the applicant has provided written submissions to the Department and the Tribunal. The Tribunal noted that if the applicant was unable to attend the hearing the applicant may elect for the Tribunal to proceed to decision on the basis of evidence already submitted. The applicant could also provide any supplementary evidence up until the date of the scheduled hearing.”
On 18 March 2019 the applicant’s representative contacted the Tribunal seeking to postpone the hearing advising that there were two main reasons. The applicant’s representative noted that “my client ZHANG Haixia is having an overseas business trip to Beijing. She will depart Melbourne on 28 March 2019, be back Melbourne on 16 April 2019. The flight ticket and her company statement are attached. I have a business trip to Shanghai. I will depart Melbourne on 17 April, and be back Melbourne on 3 May. The itinerary is attached. Please kindly approve the postponement request”.
The Tribunal considered the applicant’s third request for a postponement of the review hearing scheduled for 9 April 2019. The Tribunal gave careful consideration to the request but decided not to postpone the hearing. However in notifying the applicant of the refusal of the request to postpone in a letter dated 18 March 2019, the Tribunal invited the applicant to attend the hearing by telephone. The applicant’s representative contacted the Tribunal on 18 March 2019 with regard to the hearing postponement request. A file note of the conversation was made by the relevant registry officer with the applicant’s representative. That file note indicates that “she understands that this is the third time that RA is requesting hearing postponement, earlier due to health reasons and now due to work. She further said that RA is feeling better now that she has just started work again and it will be difficult for her to manage 2 things overseas and if the hearing can be postponed”. On 22 March 2019 the applicant’s representative wrote to the Tribunal to advise that the applicant had a busy schedule on her business trip and that there was no time to engage in a telephone hearing. A number of documents pertaining to the business trip were provided to the Tribunal.
The Tribunal considered this additional information. On 26 March 2019 the Tribunal wrote to the applicant to say that the request for a third postponement had been given proper consideration however the Tribunal had elected to proceed with the hearing as planned. The Tribunal in this letter noted that if the applicant was unable to attend the hearing that the applicant may elect for the Tribunal to proceed to decision on the basis of evidence already submitted and was able to submit any supplementary evidence up until the date of the scheduled hearing.
The applicant attended the hearing scheduled for 9 April 2019 via videoconferencing facilities from Melbourne. The applicant’s representative attended the hearing as did the applicant’s dependent daughter, Yueran Zhang and the applicant’s employer, Mr George Wang.
At the outset of the review hearing the Tribunal went into detail about the merits review process. The Tribunal made reference to the Departmental decision record and the basis for the delegate’s refusal. The Tribunal noted that based on the evidence before it the nomination application lodged by KTN Recruiting Pty Ltd had been refused by the Department of Immigration in a decision made on 8 June 2017. The Tribunal noted that the application by KTN Recruiting Pty Ltd for merits review was dismissed by the Tribunal on 25 July 2018 and that the dismissal was confirmed on 9 August 2018. The Tribunal noted that based on that evidence before it the applicant was not able to meet the requirements of cl.186.233(3) of the Migration Regulations. The Tribunal noted that the Departmental delegate had refused the visa application on the basis that the applicant did not meet the requirements of cl.186.213 of the Migration Regulations with the delegate determining that the applicant had provided false and misleading information in the application for the Subclass 186 visa in breach of Public Interest Criterion 4020(1) of Schedule 2 to the Migration Regulations.
The Tribunal made reference to the 359A letter dated 16 August 2018 which invited the applicant to comment on or respond to information that the Tribunal considered would, subject to the applicant’s comments or response, be the reason, or part of the reason, for affirming the decision under review. The Tribunal noted that the applicant provided a response to the invitation to comment which is dated 29 August 2018. The applicant also provided a copy of a statement that she made to the Department of Home Affairs compliance section pertaining to her being a victim of immigration fraud dated 28 March 2018. The Tribunal noted that these documents had been given due consideration.
The applicant gave her personal details. The Tribunal asked what year the applicant completed high school in China and she advised in 1996. The Tribunal asked the applicant about her post high school qualifications and she advised that she had a Diploma of Business English that she obtained in Beijing followed by a Bachelor degree for teaching Chinese as second language. The Tribunal asked the applicant to outline her employment background post study. The applicant stated that she worked for training institution in Beijing as a Trainer and Teacher. She also worked for a telecommunications company in Beijing involved in modem installation and after sales service. She also worked for a steel company in Beijing in sales. The Tribunal asked the applicant whether she ever worked as an Advertising Manager in Shanghai and she advised that she had not.
The Tribunal noted that the applicant had signed the Subclass 186 visa application on 22 January 2015 with the assistance of a Chinese agent Shanghai Donglv. The applicant confirmed that this was correct. The Tribunal asked the applicant how much she paid in total to this company for their migration services and she advised around AUD$170,000.00. The applicant advised that this money was paid in 3 instalments the first on 22 January 2015, the second on 27 February 2015 and the third on 13 May 2015.
The Tribunal asked the applicant prior to the payment of this substantial amount what probity checks she undertook to determine the bona fides of Shanghai Donglv. The applicant advised that she visited at least 15 migration agents in Beijing and compared agents. The applicant stated that a friend of hers visited Shanghai Donglv on her behalf and determined that it appeared to be a legitimate business. The Tribunal asked the applicant whether she approached the Australian Consulate in Shanghai or Beijing to obtain information about migration agents that were reputable to assist in migration to Australia. The applicant advised that she did not pursue this as she did not know how to.
The Tribunal asked the applicant whether she attempted to clarify how much money she should be paying in order to affect a migration outcome to Australia. Further to this whether the applicant sought information from the Department of Immigration’s website. The applicant stated that she checked a large number of migration agents in Beijing and that the quotes for migration were between RMB1.1 million and 2 million and that she did not look at the Departmental website. The applicant stated that some websites in China were blocked by the government. The Tribunal noting that there were over 1 million Australians with Chinese ancestry that it doubted the Departmental website would be blocked by the Chinese government.
The Tribunal stated that it seemed strange that the applicant would pay a substantial amount of money for the services of a Chinese agent without undertaking any probity checks with the Australian immigration authorities. The applicant was invited to comment on this observation. The applicant stated that her friend Ping Jia checked out a number of migration agents on her behalf.
The Tribunal asked the applicant why she would trust this person to undertake these probity checks. The applicant stated that they had been friends for many years, that Ping Jia spoke very good English and that her English was not very good.
The Tribunal asked the applicant when she came to Australia and she advised on 9 January 2017. The Tribunal asked the applicant when the visa application was lodged and she advised 16 January 2017. The Tribunal noted that based on evidence provided to the Tribunal by the applicant that she had a migration agent representing her in Australia by the name of Sun Yi. The Tribunal noted the applicant’s statement of 29 August 2018 at paragraph 3 where she states that on 14 February 2017 she attended Sun Yi’s office and was advised that in December 2016 the Department had requested more information pertaining to the company structure of the nominating employer KTN Recruiting Pty Ltd. The Tribunal noted that the applicant stated that Sun Yi arranged for her staff to submit the requested information to the Department, that the application was going smoothly and that Sun Yi arranged for the applicant to apply for a Medicare card.

The Tribunal invited the applicant to comment on paragraph 3 of her statement of 29 August 2018. The applicant confirmed that she did meet with Sun Yi on 14 February 2017 and that Sun Yi denied she was the applicant’s solicitor however after 2 hours she showed the applicant information relevant to the company KTN Recruiting Pty Ltd.
The Tribunal asked the applicant whether at the time of her arrival on 9 January 2017 she was aware that KTN Recruiting Pty Ltd was her nominating employer and the applicant confirmed that she was aware of this fact.
The Tribunal asked the applicant what steps she undertook to verify that the business KTN Recruiting Pty Ltd was actively and lawfully operating in Australia. The applicant stated that when she arrived in Australia she expected to start work for KTN Recruiting Pty Ltd straightaway but she was told by Shanghai Donglv that she could not work for KTN Recruiting Pty Ltd until the nomination had been approved.
Once again the Tribunal asked the applicant what steps she undertook to determine that KTN Recruiting Pty Ltd wasn’t actively and lawfully operating business. The applicant stated that she “just listened to the migration agent and stupidly I did not carry out any investigation.”
The applicant stated that after she arrived in Australia she felt as though she was wasting her time. The applicant stated that she told her migration agent that while she was waiting for the nomination approval by KTN Recruiting Pty Ltd that she could look for another job and that after the nomination application by KTN Recruiting Pty Ltd had been approved she could work for them.
The Tribunal asked the applicant whether she had returned to China since her initial arrival and she advised that she had returned to China in January 2018 for 2 weeks, again from 25 December 2018 to 20 January 2019, and from 28 March 2019 for 10 days.
The Tribunal asked the applicant what type of visa she currently held and she advised a Bridging A visa with work rights and a Bridging B visa if she needed to travel.
The Tribunal asked the applicant what her long-term objectives for staying in Australia were. The applicant stated that she had made a significant effort to affect a permanent migration outcome to Australia with a hope that she would be able to live and work in Australia. The applicant stated that she provided real and correct information to the migration agent but did not know how they would deal with the documents and information she provided to them. The applicant stated that she did not receive the natural justice letter from the Department dated 31 May 2017. The applicant stated that she gave no authority to Sun Yi the agent in Australia to engage in the conduct that she engaged in.
The Tribunal asked the applicant whether she was currently working in Australia and she advised she was working in sales for Australia Pacific Real Estate Company.
The Tribunal asked the applicant about her marital status that she advised that when she lodged the application she was married, that she has been divorced since January 2019. The applicant stated that she had a daughter aged 14 years.
The Tribunal asked the applicant whether she had purchased real estate in Australia and she advised that in January 2017 she purchased an apartment off the plan from Australian Pacific Real Estate at a cost of $510,000 and that she had paid a $50,000 deposit. The applicant stated that no further payment is due until completion in 2023. The Tribunal asked the applicant why she would purchase an off the plan property in Australia when she did not have permanent residence and the applicant claimed that her current employer and colleagues had also purchased properties off the plan and she followed them. The Tribunal asked the applicant where she was currently living and she advised in a suburb of Melbourne, Vermont, where she was renting accommodation.
The Tribunal asked the applicant whether there was any further evidence that she wanted to provide. The applicant stated that the migration agents in China, Shanghai Donglv were not agents with good qualifications. However the applicant claimed that they had good personal connections with the Chinese government and that people that had been subject of migration fraud by this agency had complained to authorities in China, had got nowhere with their complaints because of the connection between the Chinese government and this agency. The applicant stated that the agent in Australia Sun Yi had been the subject of compliance action by the Department and her qualifications had been cancelled. The applicant stated that she had heard from her current migration agent that Sun Yi would be punished for being involved in migration fraud. The applicant stated that the evidence established that Sun Yi was a ‘cheater’ and had provided false information to the Department.
The applicant stated that she respected Australian laws and the decision of the Department. The applicant stated that she had paid a lot of money to affect a migration outcome and through ignorance and stupidity she had lost money. The applicant stated that the Department had taken action against Sun Yi. The applicant stated that this agent should not have provided false information to the Department and to have misled the Department.
The applicant stated that after she came to Australia she came to know about the church and that she believed in Jesus. The applicant stated that religion was very important for her. The Tribunal advised the applicant that the applicant’s embracing of religion was not directly relevant to the review before it and that the relevant issue before the Tribunal was whether the applicant met public interest criterion 4020(1).
The Tribunal took evidence from Mr George Wang, the applicant’s current employer. The Tribunal asked what evidence the witness wish to provide. The witness stated that he met the applicant for the first time around 2 years ago. He advised that the applicant had asked him to help her find the business KTN Recruiting Pty. He advised that he had searched the Internet and found that it was a registered business with 2 addresses one in Footscray and one in Brighton. The witness stated that the address in Footscray was a retail shop and at the address in Brighton was an office building. The witness stated that the applicant told him that the agent that she had engaged in China was a fraud. The witness stated that he told the applicant to obtain legal advice. The witness stated that he offered the applicant a job as a sales manager and that she had been working for his business for almost 2 years and had made a good contribution to his company.
The witness stated that he and the applicant had recently returned to China for a business trip which they curtailed to allow the applicant to attend the Tribunal’s rescheduled hearing. The witness stated that the applicant was a victim of a scam in China and that the company that was to nominate her was a fraud. The witness stated that he was an Australian citizen and that the applicant had made a solid contribution to his business. The witness stated that he was not a religious person. The witness stated that the applicant should be allowed to stay in Australia that his company needed her but he was not able to nominate her until her migration issues had been resolved.
The Tribunal took evidence from the applicant’s daughter. The applicant’s daughter who was aged 14 read from a prepared statement. She advised the Tribunal that she liked Melbourne, that it was a very friendly city and that people knew how to enjoy nature. The witness stated that she had good teachers and that she was allowed to watch movies without restriction, and that teacher’s at school responded to her and that this was not the case in China. The witness stated that Australia was a very peaceful country and that the environment was good and that it was a multicultural country. The witness stated that she did not experience bullying at school and that she was allowed to solve problems and be creative. She was able to be involved in role-plays, teamwork, and discussions and that if she had to return to China with her mother she would not be able to keep up with the education program in that country. She further advised that her mother would need to find a new home and a new job. The witness stated that she and her mother had embraced Christianity and that their church Pastors did not want them to leave Australia.
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).
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?
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.
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 evidence before the Tribunal indicates that the applicant engaged what she described as a visa application service in China Shanghai Donglv whom she instructed to pursue an application for permanent residence. The evidence indicates that the applicant paid a substantial amount of money to this agent to apply for a visa and provided personal details to the agent for the purpose of the application. The evidence indicates that the applicant paid close to AUD$200,000.00 for the visa application and the services of an agent in Australia. The evidence provided by the applicant was that she was applying for a Subclass 186 Employer Nomination visa, sponsored by KTN Recruiting Pty Ltd to work for them in the role of Advertising Manager, a visa that she was aware would lead to the grant of permanent residence.
The evidence indicates that on 16 February 2015 the applicant was advised by Shanghai Donglv that an employer had been found to sponsor her for a permanent residence visa, KTN Recruiting Pty Ltd. Indeed as the applicant stated in her interview with Departmental Compliance in March 2018 at point 17, she was sent through a copy of the employment contract to sign and return and at the same time was provided with an invoice for the next 2 progress payments to Shanghai Donglv for their services.
The applicant in February 2015 would have been able to undertake probity checks of the proposed Australian employer and there would have been a strong impetus to do so given that this was prior to two further progress payments being made.
The evidence before the Tribunal indicates that the applicant made the application for the visa on 16 January 2017 almost 2 years after the identification of the nominating employer KTN Recruiting Pty Ltd and the applicant signing a contract with them in February 2015. The applicant had a substantial period of time to check the provenance of the Australian business to ensure that the position of Advertising Manager was available to her and that the Australian business had the capacity to provide her with ongoing employment, but she failed to do this.
The evidence before the Tribunal indicates that the applicant was in Australia at the time that the visa application was lodged, having arrived on 9 January 2017. Indeed the applicant was in Australia a week prior to the lodgement of the visa application and during the processing of the application which was not finalised by the Department until July 2017, a period of 7 months. The applicant would have had every opportunity to initiate probity checks whilst on the ground in Australia to ensure that the business KTN Recruiting Pty Ltd was lawfully and actively operating and that it was able to offer her full time employment as an Advertising Manager.
The applicant in her response to the 359A letter dated 29 August 2018 stated that it was only after the visa was refused that she went to the two addresses provided pertaining to the nominating business, one in Brighton, and one in Footscray, and that it was only at that point she checked the ASIC website to learn that the sponsoring company was not actively operating.
The evidence of the applicant’s current employer Mr George Wang was that he assisted the applicant with the above ASIC search and to ascertain whether the business KTN Recruiting Pty Ltd was registered and that they drove to the addresses provided for the business and ascertained one address appeared to be a retail shop and the other an office building.
The Tribunal finds that the applicant’s failure to undertake probity checks during the time that she was paying large instalments of money for migration services in 2015 was to her peril. The Tribunal finds that the large amount of money paid by the applicant for a prospective permanent migration outcome was significant and warranted the judicious checking of the business to make sure it was a going concern and able to meet its employment obligations to her . The Tribunal finds that these checks would be vitally important as the applicant was seeking a permanent migration outcome to a foreign country and that her dependent daughter was part of her migration plans.
The Tribunal is of the view that the applicant because of her education background would have been able to navigate her way around an application for permanent residence to Australia and would have been undertaking the relevant probity checks of the company in the 2 years before her arrival and on the ground in Australia after her arrival pertaining to the migration services that she had paid for to facilitate her prospective migration to Australia and of the Australian company that was sponsoring her.
The Tribunal accordingly finds based on the evidence before it, that the applicant did knowingly provide false and misleading information to the Department in support of a Subclass 186 visa application. The Tribunal makes this finding on the basis of the following factors. The applicant paid in close to AUD $200,000 to Shanghai Donglv and additional money to Sun Yi in Australia in order to obtain a permanent migration outcome for herself and her daughter. This is a significant amount of money and, given the applicant’s education background and skillset, she would not have been constrained in undertaking probity checks to ensure that her financial investment would yield the desired results for her. In February 2015 the applicant signed an employment contract with KTN Recruiting Pty Ltd. The provision of this information pertaining to KTN Recruiting Pty Ltd would have enabled the applicant to undertake probity checks prior to her entry to Australia in January 2017, and prior to the lodgement of the visa application something that she failed to do.
For the requirements in cl.4020(1) and (2) to be engaged, it is not necessary to show knowing complicity by the visa applicant in the fraud. This applies both to the provision of bogus documents, and information that is false or misleading in a material particular.

Where false or misleading information or a bogus document is given by an agent without the knowledge of the applicant, a question arises as to whether or not PIC 4020 is engaged. However, the weight of authority now makes it clear that the words ‘given or caused to be given’ do not import a mental element.[1] It is neither necessary for an applicant to be aware that false information has been given by the agent, nor that the applicant gave instructions to provide false information to the agent in order to be responsible for false or misleading information being given.[2]
[1] Vyas v MIAC [2012] FMCA 92 (Driver FM, 17 May 2012) at [68]. This view was endorsed in Sran v MIBP [2013] FCCA 37 (Judge Nicholls, 17 January 2014).
[2] Singh v MIBP [2015] FCCA 2776 (Judge Whelan, 14 October 2015) at [49].
Where an applicant lodges a visa application through an agent, the applicant, being a principal, will be bound under the common law principles of agency by the acts of an agent acting within the scope of his or her authority. Actual authority may be express or implied[3] and a principal can be liable for the actions of an agent, even if the agent’s act is unlawful or amounts to fraud.[4] As a result, even where an applicant did not fill out an application form, he or she may be found to have caused false or misleading information to be given to a specified person, and thus not to have complied with PIC 4020, despite allegations of fraud by a migration agent.[5]
[3] Lysaght Bros & Co Ltd v Falk (1905) CLR 443 as cited in Sran v Minister for Immigration and Anor [2014] FCCA 37 at para.66.
[4] Brown v Citizen’s Life Insurance Co Ltd (1904) 2 SR (NSW) 202; Lloyd (Pauper) Appellant v Grace [1912] AC 716 as cited in Sran at paras.63 and 78.
[5] For example, in Singh v MIBP [2015] FCCA 2776 (Judge Whelan, 14 October 2015), the Court found at [56] that ‘[i]t is consistent with the conclusions of Buchanan J in Trivedi that the provisions of s.98 of the Act should apply to PIC 4020 and that an applicant should be deemed to have completed an application form where he or she causes a form to be filled out or his/her behalf’.
In Sran v MIBP[6] the Court considered an applicant’s claims that the false and misleading information, in this case a non-existent TRA skills assessment reference, was provided in the visa application as a result of migration agent fraud. In that case, the applicant had instructed the agent to lodge a visa application, a fee was discussed and the applicant knew that the visa application was to be made. The Court considered these facts were sufficient to ground the Tribunal’s finding that an agency agreement was established for that purpose and that the visa application was validly made.[7]
[6] [2014] FCCA 37 (Judge Nicholls, 17 January 2014).
[7] Sran v MIBP [2013] FCCA 37 (Judge Nicholls, 17 January 2014) at [44], [53], [64] and [78]. See also Singh v MIBP [2014] FCCA 1816 (Riethmuller J, 20 August 2014).
The evidence indicates that the applicant entered into an agreement with Shanghai Donglv which served an objective of facilitating permanent residence to Australia. The applicant signed the contract of employment with KTN Recruiting Pty Ltd in February 2015 and she travelled to Australia in January 2017 and as noted was present in Australia at the time the visa application was lodged. Her being in the jurisdiction would have given her every opportunity to ensure that the money she had expended on this exercise would yield the desired outcome and she failed to do this. The evidence indicates that the Subclass 186 application was lodged by now de-registered migration agent Ms Yi Sun however the signing of the visa application and the signing of the employment contact with the nominating business indicates it was lodged with the full knowledge of the applicant.
The applicant could have attended the Department whilst she was in Australia to check on the provenance of the applications lodged on her behalf and she failed to do this. Indeed as has been noted the applicant took no active steps to check on the provenance of the nominating business until after the visa application was refused in July 2017.
The cumulative consideration of all of these factors leads the Tribunal to find that 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 r.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 not satisfied that the requirements should be waived.
There is no evidence before the Tribunal which establishes the existence of compelling circumstances affecting the interests of Australia or compassionate and compelling reasons that affect the interests of an Australian citizen, and Australian permanent resident or eligible New Zealand citizen.
Therefore the requirements of PIC 4020(1) should not be waived.
On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.186.213(1).
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 Cipolla
Senior 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.
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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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