Zhu (Migration)

[2023] AATA 3462

Zhu (Migration) [2023] AATA 3462 (21 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Wenhua Zhu
Mr Zhongxun Lu
Mr Jia Jie Lu

REPRESENTATIVE:  Ms Lu Jiao (MARN: 1467887)

CASE NUMBER:  2110303

HOME AFFAIRS REFERENCE(S):          BCC2018/2559941

MEMBER:Stephen Witts

DATE:21 September 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Business Skills (Permanent) visas.

Statement made on 21 September 2023 at 9:52am

CATCHWORDS
MIGRATION – Business Skills (Permanent) visa – Subclass 888 – applicants did not satisfy public interest criterion (PIC) 4020 – applicant gave false or misleading information – state government nomination – some degree of intentionality in the conduct of the applicant in regard to the provision of this misleading information – requirements of PIC 4020(1) should not be waivered – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 888.215

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Trivedi v MIBP [2014] FCAFC 42
Kaur v MIBP [2017] FCAFC 184

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 6 August 2021 to refuse to grant the applicants Business Skills (Permanent) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 9 July 2018. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl 888.215 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate made a decision that the applicants did not satisfy public interest criterion (PIC) 4020 in that the primary applicant has given, or caused to be given, to the Minister, an officer, the Administrative Appeals Tribunal, or 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 the application for the visa, or a visa that the applicant held in the period of 12 months before the application was made.

3. The applicant, Ms Wenhua Zhu, appeared before the Tribunal on 19 September 2023 to give evidence and present arguments.

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicants were represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 888.215 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).

8. 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?

9. 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.

10. 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.

11. 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.

12. The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at the hearing.

13. The Tribunal notes it has been provided with a copy of the relevant delegate’s decision record dated 6 August 2021 by the applicants.

14. In this decision it was asserted by the delegate that on 16 November 2020 the primary applicant provided evidence to the department that was of a nongenuine nature. According to the delegate on 22 February 2022 the department wrote to the applicant outlining concerns that the Form 1414 provided by the applicant may be false and misleading in a material particular in relation to meeting clause 818.212-nomination by State or Territory government agency has not been withdrawn.

15. According to the delegate the applicant was provided with 28 days to provide comment on this suspected nongenuine information.

16. According to the delegate on 19 March 2021 the applicant responded to the Department stating that the document (Form 1414) was provided by a previous migration agent and then subsequently provided to the Department in support of claims to evidence sponsorship from the nominating State or Territory government agency.

17. According to the delegate it assessed the information before it and decided that the applicant gave false or misleading information in a material particular in relation to clause 818.212 and therefore did not meet PIC 4020.

18. According to the delegate it contended that the applicant provided evidence that she was given this document by a person who had previously represented her application for migration and that she subsequently chose to seek representation from another migration agent and that she obtained the relevant form from ‘a person’ and provided it to the Department in support of her claims to meet the requirements of her 888-visa application.

19. According to the delegate the applicant claimed that she was given this document and provided it to the Department in good faith and that she was not aware that the form 1414 contained evidence that was false and misleading.

20. According to the delegate it assessed this information and made a finding that the applicant had given, or course to be given, information contained in the document that was false or misleading, and that it was unable to determine whether this was not an innocent mistake at the time it was given, and therefore that it had the quality of a purposeful falsity. It was reiterated by the delegate that the information was false and misleading in a material particular in relation to the application under 888.212 as it was given to the Department as evidence of the nominating State or Territory government agency that it had not withdrawn the nomination.

21. According to the delegate it asserted that it had discretion to waiver these requirements and consider whether there were any compelling circumstances affecting the interest of Australia, or compassionate or compelling circumstances affecting the interest of an Australian citizen, an Australian permanent resident or eligible New Zealand citizen that justify the grant of the visa and made a decision that it was not apparent that any such evidence for a waiver existed or was appropriate.

22. The Tribunal notes the evidence was provided by the applicant prior to the hearing. In particular the applicant provided a statement dated 9 March 2021 on 14 September 2023. In this statement the applicant stated that from May until July 2018 she entrusted an immigration agent to apply for her visa, and that she was requested by this agent to provide information about her family for the last 10 years which she did and provided to the agent. She stated that the agent provided forms 956, 1414, and 888, and asked all 3 of her family members to sign separately and that these documents were signed and sent back to the agent. She stated that she was also asked to provide a passport and other information and pay the application charge and she was then informed that her 888 visa application had been submitted.

23. She further stated that in May 2020 she received a notice from the Department asking her to provide supplementary documents and that it also required her to provide the ‘signature page’ of her form 1414 ‘for the approval of state government nomination’. She stated that she then asked the agent if she was sure that she had received it from her at the time and that the agent indicated that she had ‘but she needed some time to find it.’ 

24. She then stated that she emailed the agent on several occasions requesting that the agent find the signature page of her form 1414 and that after repeated requests the agent informed her that she had sent an email to ‘the state government to enquire about form 1414’.   She stated that she also made repeated we-chat enquiries regarding the same matter but that the agent did not respond. She also stated that she attempted to place phone calls to the agent but was unsuccessful and that in July 2020 she went to her office and asked the agent for the state government nomination document. According to the applicant the agent stated that she had called the state government but that it went to voicemail and that therefore she had sent an email to check.

25. According to the applicant she continued to ask the agent for information and went to her office again but found that it was no longer being used and also that her email address was also not being used. She stated that subsequently she was able to get in contact with the agent again but was unable to get any coherent response. After one discussion with her she stated that the applicant needed her state government nomination document and that she was sure she (the agent) had applied for it. She then stated that in November 2020 she went to her office again and picked up the stated document and sent it to her new immigration agent and asked her to submit it to the immigration department.

26. At the hearing the Tribunal had a discussion with the primary applicant in regard to her application.

27. The applicant stated that she first came to Australia in October 2014 after being granted her initial business innovation 188 visa which she stated was valid until 2018. She stated that she has a husband and a son also dependent on her visa. She stated that once here she started to explore business opportunities initially looking at a business in the retail and/or food and beverage industry, and that she decided to start a café before doing further investigations about whether the best opportunity was to open a coffee shop. She stated that she assessed whether to take on an existing business or start a new one and that she was not happy with the price of existing businesses or the location, so decided to start a new business.

28. She stated that she made a decision on the location of the business in Little Bourke Street in the city of Melbourne near the corner of William Street and that she started everything from scratch, undertaking major renovations, and that her café, which served coffees and brunch, opened from 7 AM to 3 PM. She stated the business first opened in June 2015 and closed in November 2021, mainly because of the effects of the pandemic restrictions.

29. She stated that it was a genuine business, that she listened to the advice of her agent, and that she has tried to incorporate herself into the Australian community, but that she could not continue the business as the landlord refused to reduce the rent during the pandemic.

30. She stated that she could not provide any other evidence to the Tribunal regarding the matters raised by the Department in terms of the state government nomination referred to by the Department, stating that she did not intentionally intend to mislead the department or provide any false or misleading information, and that she acted as instructed by her first agent and that she didn’t know or understand what was happening, that she did not have English language skills, and that she simply followed instructions provided by her agent and did not really know what was going on.

31. She stated that since 2021 she has worked for shops operated by her friends and that she works two days a week helping them organise their accounts. She stated that her husband is in China and operates a family mechanical lubricant business and that he does visit on holidays but has not been to Australia since 2019. She stated that her son graduated from university in July 2023 and that he has returned to China for a period and is currently suffering from pneumonia and is in hospital, but that she hopes he will return back here. She stated that he is currently involved with the management of the family business back in China.

32. The Tribunal then had a detailed discussion with the applicant as to whether there were any compelling circumstances that affected the interest of Australia, or any compelling or compassionate circumstances affecting the interest of an Australian citizen, an Australian permanent resident, or eligible New Zealand citizen that justify the grant of the visa even if a decision is made that the applicant did provide misleading information.

33. The applicant responded that she has now been here for nine years and has many friends here in Australia, and that she has an intimate connection to Australia. She also stated that she is genuinely working here.

34. The Tribunal then had a discussion with the applicant’s agent at her request who stated that she has represented the applicant during this process after the applicant discontinued her relationship with the previous agent as referred to above. She stated that she did contact the relevant State Government Department who stated that it never received any application from the applicant and her previous representative, and that she thought that the previous representative never made an application, and then when challenged by the applicant the first agent provided false and misleading information herself because she had been caught out not having made any application in the first place. She further stated that she has had experience of another client of the first agent who had a similar problem. She further stated that when she took over the matter, she provided to the Department material that had been passed on to her from the first agent by the applicant and that she was not aware at the time of any problems.

35. She stated that she agreed that the applicant is not entitled to a 188 visa but that public interest criterion 4020 should not apply to the applicant as she did not knowingly provide false and misleading information and that this information provided was ‘fake’ but that the applicant did not understand this was the case.

36. The Tribunal has considered this matter very carefully noting that the applicant has stated that she did not knowingly provide false and misleading information and could not provide any more context of her relationship with the first agent or with the relevant State government Department other than what has been outlined above, in particular by her current representative.

37. The Tribunal notes also that it is the responsibility of an applicant to ensure that the material that is provided in regard to her visa application is genuine and that she makes every endeavour to ensure this is the case.

38. The Tribunal also notes the evidence provided above where the current representative has acknowledged that false and misleading information was, in fact, provided, but that the applicant did not appreciate the significance of the issue or understand the circumstances that led to the problem in the first place.

39. The Tribunal also notes the comments by the delegate originally that it could not be clear that this wasn’t ‘an innocent mistake’ and that it may have some ‘purposeful falsity’ to it.

40. The Tribunal has considered this matter very carefully and finds that the evidence is clear that false or misleading information was provided to the Department regarding the applicant’s visa application. The Tribunal finds that the applicant’s agent at that time did provide false information because she had not made the appropriate application to the relevant State Government Department on behalf of the applicant and then tried to cover up that unprofessional conduct by pretending that she had and provided bogus material to progress that assertion.

41. The Tribunal now turns to the issue as to whether the applicant was, or was not, aware that this had occurred. The Tribunal has considered the evidence very carefully and finds that it may have been the case that the applicant was not fully aware of the complete circumstances of the poor conduct of her agent. However, the Tribunal finds that it was the case that the applicant was aware that there were issues with her application and that there were also issues with the way that her agent was responding to her enquiries about the status and circumstances of her application, but that she did not do anything else about it but hoped that the matter would be progressed effectively.

42. The Tribunal also finds that even though the applicant may not have been fully aware of the circumstances of the application it is also the case that she should have ensured that she did know what the status of her application was, and that it is also her responsibility to ensure that she effectively manages her relationship with the Department ensuring that all the material she provided on her behalf was accurate.

43. The Tribunal finds that it would have been clear to the applicant that there were issues with the progress of her application and that there was a problem with the material being provided, and that the department believed that false and misleading information was being provided on behalf of the applicant, but that she did not take responsibility to manage that, or to ensure that the material provided was not bogus or misleading which is her responsibility to do so, and that she could have done so should she have wanted to, and that she was aware that there were problems with the information that was being provided, and that she was aware of this in time to do something about it.

1. The Tribunal finds after careful consideration that there was some degree of intentionality in the conduct of the applicant in regard to the provision of this misleading information.

2. On that basis the Tribunal finds that the applicant did provide false and misleading information in a material particular in relation to the application for her visa.

3. Therefore, the applicant does not meet PIC 4020(1).

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

4. 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.

5. 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.

6. For the following reasons, the Tribunal is not satisfied that the requirements should be waived.

7. As noted above, the Tribunal had a discussion with the applicant as to whether there were any compelling circumstances that affect the interest of Australia, or any compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen, that justify the grant visa.

8. The applicant responded by stating that she has been here for nine years and has many friends here and is working here part-time.

9. The Tribunal has considered this assertion carefully and finds that it does not meet the requirements to justify a waiver of the considerations of PIC 4020 as there is not sufficient evidence to indicate that there were any compelling circumstances that affect the interests of Australia or any compassionate or compelling circumstances that affect an Australian citizen or permanent resident to justify the grant of the visa.

10. Therefore, the requirements of PIC 4020(1) should not be waivered.

11. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl 888.215.

    DECISION

12. The Tribunal affirms the decision not to grant the applicants Business Skills (Permanent) visas.

    Stephen Witts
    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.

    …