Zheng (Migration)

[2022] AATA 2335

Zheng (Migration) [2022] AATA 2335 (18 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Huiping Zheng
Mr Zhuowan Mai
Ms Minjing Mai
Mr Jiaheng Mai

REPRESENTATIVE:  Mr Leo Yuanzhe Ren

CASE NUMBER:  1835278

HOME AFFAIRS REFERENCE(S):          BCC2017/3137053

MEMBER:Nicola Findson

DATE:18 May 2022

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the applications for Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 186 - Employer Nomination Scheme visa:

·Public Interest Criterion 4020 for the purposes of cl.186.213 of Schedule 2 to the Regulations.

Statement made on 18 May 2022 at 3:22pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – a bogus document was provided to the Department – there are compassionate or compelling circumstances affecting the interests of Australian permanent residents – requirements of PIC 4020(1) should be waived – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cl 186.213, Schedule 4 Public Interest Criterion 4020

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
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 13 November 2018 to refuse to grant the applicants Employer Nomination (Permanent) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 30 August 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 (Cth) (the Regulations). The delegate was not satisfied she met Public Interest Criterion (PIC) 4020(1) set out in Scheduled 4 of the Regulations and was not otherwise satisfied that there were compelling or compassionate circumstances to waive PIC 4020.

3. The applicants appeared before the Tribunal on 17 September 2021, to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

4. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.

5. The Tribunal has concluded the matter should be remitted for reconsideration. The Tribunal has found Ms Zheng provided false and misleading information in relation to her Employer Nomination (class EN) Employer Nomination (Subclass 186) visa application in respect of a material particular and therefore does not satisfy PIC 4020(1) in Sch 4 of the Regulations. However, the Tribunal is persuaded that the requirements of PIC 4020(1) should be waived in the circumstances of the case for compassionate or compelling reasons affecting the interests of an Australian citizen or permanent resident. The Tribunal’s reasons follow.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 186.213 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).

7. 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.

8. The delegate’s decision provided to the Tribunal by the applicants for the purpose of the review, records that the applicant provided the Department with an International English Language Testing (IELTS) Test Report Form (Number: 17AU001648ZHEH111A), to demonstrate her English language ability, as required for her visa application.  The decision records that Departmental investigations revealed that scores listed in the Test Report Form do not match with scores in the IELTS Database.  The decision records that the applicant was invited to provide comments on the suspected bogus document or false or misleading information supplied to the Department, or to provide a statement indicating compelling and/or compassionate reasons as to why the requirements of PIC 4020 should be waived.  The applicant did not provide a response to this invitation.

9. On 13 November 2018, the delegate found that the applicant did not satisfy PIC 4020, for the purposes of cl.186.213 for the grant of the visa. In addition, the delegate found that the secondary applicants had made no claims against the primary criteria for the Subclass 186 visa, and nor did they satisfy the requirements of cl.186.311.

10. At hearing, the applicant, who is a citizen of China, told the Tribunal that she first arrived in Australia, with her husband and two children, as the holder of a Subclass 457 visa in September 2013.  She said that at this time she was sponsored to work as a Hairdresser.  She told the Tribunal that she was not required to satisfy any English requirements for this visa, because it was a high wages visa.

11. The applicant told the Tribunal that at the time this application was lodged, she was very busy with work, studies and home life.   She said, in addition, that she is not a well-educated person, and was unfamiliar with how to navigate the visa application process.  She said she engaged an agent, Mr Yi Feng Wang, to help her and her family apply for visas to remain in Australia.  She told the Tribunal that she did not know what was done on her behalf in relation to the visa applications.  She said that she was unaware of the requirements that needed to be satisfied for the visa, specifically the English requirement, and she confirmed she had never undertaken an IELTS test.  She indicated that she was unaware of the Department’s letter inviting a response to the adverse information, because her agent did not tell her about the invitation.  She told the Tribunal that her agent did ultimately tell her that the visas had been refused.  However, when she queried why, he did not engage in any conversation with her.  She said he simply told her to either “appeal” or “go home”.  She said that she was shocked and distressed when she eventually came to learn the reason for the visa refusal.  She told the Tribunal that the fake English test document had been provided to the Department without her knowledge. She told the Tribunal that she tried to talk again to Mr Wang about the IELTS test report he had provided with her application, but he threatened her by telling her she would not be able to apply for any other visa to remain in Australia. She indicated she was frightened to complain about the agent’s actions to anyone, because he held her passport.  She told the Tribunal she did not know what to do about her situation.

12. The Tribunal discussed with the applicant that the requirements of PIC 4020 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 or permanent resident (not the applicant’s themselves).  The applicant told the Tribunal that she had sought review of the refusal decision because she wanted to remain in Australia and for her children to have a better life.  She told the Tribunal that her daughter was engaged to an Australian permanent resident and was in the midst of planning their wedding in 2022.  She said their relationship would be affected if the family was required to leave Australia.  The applicant said that she is a specialised and experienced hairdresser.  She told the Tribunal that she was presently working in a salon that would find it difficult to continue to operate without her services.

13. At the hearing, the applicant’s representative submitted that the applicant appears to have been the victim of an unscrupulous man, Mr Wang, who has never been registered as a migration agent and who is no longer in Australia.  The representative submitted that the applicant does not dispute that a bogus document was provided to the Department. However, he said it was important for the applicant to explain to the Tribunal the circumstances around how the document came to be submitted, and that she had no knowledge of its provision to the Department.  The representative reiterated that there are compassionate and compelling circumstances in this case, relevant to the waiver of the requirements in PIC 4020.

14. Following the hearing, the applicant provided to the Tribunal additional material in support of the application, including Statutory Declarations sworn by Mr Jia Hui Lim and Mr Zhijun Cal. 

15. Mr Lim, in his Statutory Declaration sworn on 30 September 2021, declares that he is an Australian permanent resident, holding a Skilled Regional (Subclass 887) visa granted on 16 March 2021. He declares that the third-named applicant is his fiancé and he sets out the background to their relationship as well as their plans for the future.  Mr Lim declares that he and the third-named applicant live with his mother, who suffers with a significant health issue, and that they care for her together.  The document also outlines that Mr Lim suffered a serious car accident in 2019, and his injuries (including a broken arm and leg) required surgery as well as metal orthopaedic implants, and that he continues to be monitored and receive treatment by the Royal Perth hospital.  He declares that he experienced depression following his accident and that the third-named applicant has supported him in his physical and mental health recovery.  He declares that he cannot imagine a life without the third-named applicant; that he is close with all of her family members; and that his life would be “crushed” if they were required to leave Australia.

16. A Statutory Declaration sworn by Mr Cal on 19 October 2021, explains that the applicant is an employee in his business, which trades as a boutique hair salon (‘Hair-Tastic’).  He states that the applicant is a highly skilled hairstylist, who is critical to the operation of his business.  He states that he has invested significantly in his small business, and trusts and relies heavily on the applicant’s professional skills and strong client base to continue to operate.  He states that he would be unable to replace the applicant and that it would be very difficult for his business to remain viable in the industry, particularly at the current time, if she were required to leave Australia.

    Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?

17. 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.

18. 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.

19. 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.

20. In this case, Departmental investigations of the IELTS test report lodged in support of the applicants’ visa application revealed that the scores listed in the test report (17AU001648ZHEH111A) did not match with the scores in the IELTS database. 

21. The Tribunal has considered the applicant’s evidence that she had never undertaken an English test, and that her previous agent had lodged it the IELTS test report document with the visa application without her knowledge.  However, the weight of authority makes it clear that PIC 4020 may still be engaged whether or not the applicant was aware that a bogus document or false or misleading information had been provided by an agent.

22. On the basis of this evidence, the Tribunal is satisfied that the IELTS Test Report Form, recording that the applicant undertook a test on 29 July 2017, and provided by the applicant to the Department with her Subclass 186 visa application, is a bogus document as defined in s.5(1) of the Act.  This is because the Tribunal finds that it purports to have been, but was not, issued in respect of the applicant.

23. Therefore, the Tribunal finds that there is evidence that the applicant gave to the Minister (in the form of the Departmental delegate) a bogus document in relation to his Subclass 457 visa application, and therefore, he does not meet PIC 4020(1).

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

24. 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.

25. 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.

26. The Tribunal has considered the applicant’s claims that she is a specialised and experienced Hairdresser who is crucial to the business operations of her current employer.  The applicant has provided evidence from Mr Cal in support of these claims.  The Tribunal accepts that the applicant’s employer relies on her skills and experience to operate and that it would be very difficult for his business to remain viable in the industry, particularly at a time when skilled workers are in short supply, if the applicant was required to leave Australia.

27. The Tribunal has also had regard to the evidence before it that the applicant’s daughter, the third-named applicant, is currently engaged to Mr Lim, an Australian permanent resident, who is currently recovering from a serious car accident and who relies on his fiancé to, among other things, provide care to his mother.  The Tribunal accepts that Mr Lim’s physical and emotional health would be impacted by any separation between himself and the third-named applicant. The Tribunal also accepts that the third-named applicant shares a close bond with Mr Lim’s mother, who suffers ill health, and who is important in the provision of her care.   It is the view of the Tribunal that these matters combined are sufficient to demonstrate that there are compassionate or compelling circumstances affecting the interests of Australian permanent residents in this case.

28. Therefore, the requirements of PIC 4020(1) should be waived.

    Has the applicant satisfied the identity requirements?

29. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.  

30. There is no evidence before the Tribunal to suggest that there is any concern regarding the identity of the applicant. The Tribunal is satisfied as to the applicant’s identity.

31. Therefore, the applicant meets PIC 4020(2A).

    Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?

32. PIC 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2BA).

33. There is no evidence before the Tribunal that the applicant or any member o the family unit have been refused a visa in the relevant period because of a failure to satisfy cl.4020(2A).

34. Therefore PIC 4020(2B) does not apply.

35. On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl 186.213.

    DECISION

36. The Tribunal remits the applications for Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 186 - Employer Nomination Scheme visa:

    ·Public Interest Criterion 4020 for the purposes of cl 186.213 of Schedule 2 to the Regulations.

    Nicola Findson
    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.

    …