Zhu (Migration)

Zhu (Migration) [2023] AATA 3760 (20 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Miss Minjia Zhu
Mr Chen Cao
REPRESENTATIVE:  Mr Da Wei David Gu
CASE NUMBER:  2101388
HOME AFFAIRS REFERENCE(S):          BCC2020/1371490
MEMBER:Amanda Mendes Da Costa
DATE:20 June 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Skilled Nominated (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 190 - Skilled - Nominated visa:
·Public Interest Criterion 4020 for the purposes of cl 190.216(1) of Schedule 2 to the Regulations.
·The Tribunal considers that the second named applicant meets the secondary criteria for the grant of a Subclass 190-Skilled-Nominated visa.

Statement made on 20 June 2023 at 10.34am

CATCHWORDS
MIGRATION – Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 (Skilled – Nominated) – false or misleading information – genuineness of relationship with the second named applicant – Department’s telephone interview – incorrect answers – delayed responses – call terminated – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 190.216; Schedule 4, PIC 4020
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Trivedi v MIBP [2014] FCAFC 42
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
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 Home Affairs on 4 February 2021 to refuse to grant the applicants Skilled Nominated (Permanent) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 15 April 2020. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl 190.216(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the applicant did not meet the requirements of PIC 4020(1).
Via an internet-enabled audio-visual platform, the applicants appeared before the Tribunal on 16 June 2023 to give evidence and present arguments.
The Tribunal determined it was reasonable to hold the hearing by video, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not be conducted by video. The Tribunal was satisfied that the applicants, representative and the Tribunal could satisfactorily see, hear and understand each other throughout the hearing. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments to the Tribunal.
At the commencement of the Tribunal hearing, the Tribunal explained to the applicants the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision. The Tribunal also explained the role of the applicants’ representative during the hearing. The Tribunal informed the applicants that it would seek submissions from both of them and their representative toward the end of the Tribunal hearing on any matter they considered relevant to the review.
The applicants were represented in relation to the review, with their representative also participating in the hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 190.216(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.
Background
In her visa application, the first named applicant (the applicant) declared a de facto relationship with the second named applicant. She claimed that they initially met in January 2019 and commenced living together in November 2019. She further claimed in her application that from November 2019 both applicants resided at [Address 1] and from February 2020, they resided at [Address 2].
On assessing the application and the supporting documentation provided, the Department determined that additional information was required. On 27 July 2020 a Departmental officer interviewed the second named applicant regarding his relationship with the applicant. This interview was conducted via telephone and with the assistance of a NAATI[1] accredited Mandarin interpreter.
[1] National Accreditation Authority for Translators and Interpreters.
The second named applicant’s answers to questions by the Departmental officer raised the following concerns:
·The second named applicant said he met the applicant in Sydney when he was there to complete his studies and left in November 2019. This contradicts the applicant’s statement provided with the visa application, in which she states that the second named applicant used to visit Sydney to visit his ex-girlfriend.
·The second named applicant struggled to answer questions about what he had studied and explained that this was because it was a long time ago. He then advised it was February 2018 and he studies a Bachelor of Project Management at Sydney University. When asked about what the applicant had studied at university, the second named applicant said she had studied project management. When the Departmental officer asked him to clarify his statement that both applicants had studied project management, the second named applicant advised that he was confused and he had actually completed a Bachelor of Commerce in Melbourne. The Departmental officer noted that in the visa application form and his Form 80, the second named applicant declared that he had only studied in Melbourne.
·During the interview, the second named applicant advised that the applicant was currently not at home because she was out shopping. The Departmental officer considered that this information raised concerns because the applicant had full-time employment and should have been at work during the interview.
·The second named applicant was unable to name the applicant’s place of employment despite saying that he drove her there every day. He also incorrectly identified the address of the employer as [street number] rather than [Address 3]. The Departmental officer noted that earlier in the interview, the second named applicant said that the applicant moved to Melbourne because he had contacts for a job for her and that in the statement supporting the visa application the applicant said that the second named applicant had found her “dream job”.
·The second named applicant advised that he left his ex-girlfriend because she was flirting with others. This contradicted the statement provided with application which states that they separated because the second named applicant’s ex-girlfriend liked to spend all his money.
·The second named applicant terminated the telephone call despites the interview not being completed.
The Departmental officer was concerned that during the interview, the second named applicant delaying his responses and sending and receiving text messages. When he was asked from whom he was receiving the text messages, the second named applicant said it was his parents in China. The Departmental officer was concerned that the delay in the second named applicant’s answers suggested that he may have been seeking and receiving information from the applicant.
The inconsistencies in the applicant’s answers and texting during the interview together with his termination of the interview despite it not being completed, led the delegate to doubt the truthfulness of the relationship claims made by the applicants.
The delegate was further concerned that after lodging the current visa application on 15 April 2020 an application for a Skilled Independent SI Subclass 189 visa including the second named applicant as a dependent spouse was lodged on 26 April 2020. The primary visa applicant for this application was not the applicant in the present case.
The delegate found that the above matters raised serious concerns regarding the nature and genuineness of the relationship. This caused the delegate to find that the applicant may have provided false and misleading information to the Department regarding her relationship with the second named applicant and therefore did not meet the requirements of PIC 4020(1) for the purpose of cl 190.216 of Schedule 2 to the Regulations.
Applicant’s evidence
The evidence given by the applicants about the inception and development of their relationship was largely consistent, with some small and understandable variations. They described having met through friends in Sydney in early 2019. At this time, the applicant was living and working there after completing her studies in project management. The applicant was visiting from Melbourne where he had also completed his studies in business.
After their first meeting, the applicants continued to communicate via a social media platform regularly used by Chinese speaking people and occasionally met with other friends when the second named visited Sydney. After the second named applicant ended his relationship with his previous girlfriend in mid-2019, the couple spent time together in Sydney and in November 2019 the applicant relocated to Melbourne. The decision to leave Sydney was motivated by her wish to progress her relationship with the second named applicant and to obtain employment in Melbourne.
They further described the second named applicant assisted the applicant to secure employment in Melbourne through his brother who was aware of a suitable position in Mount Waverley. The applicant also moved into a share house with the second named applicant . Their relationship became a serious one in December 2019 when they decided to live together on a permanent basis and introduce each other to their parents. They have been together since late 2019 and for the past three years have been renting an apartment in Box Hill. The Tribunal has been provided with lease agreements, correspondence, utilities bills, and invoices which support this evidence.
The applicant holds a bachelor’s degree in Project Management (Civil Engineering) and is currently employed by a real estate company. The second named applicant holds both a Diploma and Bachelor of Business and is currently employed by a retail business.
The applicants’ evidence regarding their social and domestic activities and their life goals was consistent and credible. The applicant denied that they had provided false and misleading information to the Department and asserted that theirs’s is a genuine and permanent de facto relationship.
The Tribunal questioned the applicant about any possible involvement she may have had in the interview with the second named applicant on 17 July 2020. She denied any involvement in the interview or in sending text messages to him with suggested answers to the Departmental officer’s questions. She explained that she had been working from home that day as it was during the heights of the Covid-19 pandemic. She went downstairs (to the supermarket on the ground floor of their apartment building) to buy food for lunch. When she returned to their apartment, the second named applicant informed her that he had been interviewed by a Departmental officer about their relationship, but the line was disconnected. He told her that he was unable to telephone the officer back as he was not given their number.
The Tribunal also questioned the applicant about whether she had any knowledge of any other application by the second named applicant, in which he was listed as a dependent spouse. In response, the applicant said she had no awareness of this occurring and said that since she and the second named applicant had been in a relationship since November 2019, he had not been involved in any other romantic relationships.
The Tribunal discussed with the second named applicant, his interview with a Departmental officer on 27 July 2020 and his involvement in any other visa application, in which he was listed as a dependent spouse.
The second named applicant explained that prior to his relationship with the applicant he had been involved in a relationship with another woman. This relationship ended in mid-2019 in the context of frequent arguments, his girlfriend’s excessive spending of his money and her flirting with other men.
He explained that before they separated, his former girlfriend mentioned that she intended to make a visa application in which he would be included. The second named applicant explained that he didn’t pay much attention to these comments as he already had a student visa and did not require to be included in his then girlfriend’s visa application. He did not subsequently receive any notification from his former girlfriend or the Department about any visa application having been made on his behalf.
The Tribunal questioned the second named applicant about the apparent discrepancies between the information provided by him in his relationship statement and his answers to the officer’s questions during the interview. The second named applicant explained that he was nervous about the prospect of being interviewed by the Department and said that the discrepancies could be explained by the nervousness and the interpreter not completely understanding some of his answers. He stated that the interpreter may not have understood some things because he spoke to him by telephone and was not in the same room as him.
In relation to incorrect information given by him to the Departmental officer, he made the following observations:
·He would not have said that he studied in Sydney when it was clear that his qualifications were obtained in Melbourne.
·Although he was aware of the location of the applicant’s workplace in [Address 3], he was confused about the street address of the business.
·He would not have deliberately said he studied project management when he was aware that he studied business. There was no advantage to him in saying that he studied project management.
He further explained that although he assisted the applicant to obtain her initial employment in Melbourne this was though his brother who had contacts in the construction industry. The applicant told the Tribunal that he was aware of the location of the business in [Address 3], as he previously drove the applicant to her work there.
The second named applicant confirmed the applicant’s presence at their apartment on 27 July 2020 when she was working from home. He denied obtaining assistance from the applicant or any other person in answering the officer’s questions. He also denied terminating the telephone call from the officer mid-interview and explained that the telephone reception in the couple’s apartment is sometimes poor. He also noted that he did not have the telephone number of the officer who called him and did not receive and subsequent call from them.
Applicant’s written submissions
The applicant’s written submissions (dated 12 June 2023) may be summarised as follows:
·     The assertion that the second named applicant was included in an application for a Subclass 189 visa on 26 April is 2020 is incorrect. The applicant was made on 28 August 2019, before his relationship with his previous girlfriend ended and his relationship with the applicant commenced[2].
·     The Tribunal should exercise caution in relying on the paper record[3] of the interview with the second named applicant on 27 July 2020 as the record is not a verbatim transcript of the interview. It consists of a summary of the second named applicant’s responses as perceived by the interviewer and also contains a number of prejudicial remarks which are irrelevant, inconsistent with the applicant’s responses and could not reliably be made on the basis of a telephone interview. These remarks include the following:
·panicked;
·continues to receive and send text messages – clearly him typing and text message sounds;
·continues to receive and send text messages – clearly him typing and text message sounds.
·     The applicants’ previous representative gave the Department a detailed written explanation[4] of what may have occurred during the interpretation of the second named applicant’s answers during the interview, to lead the Departmental officer to misinterpret some of his answers.
[2] This information was obtained by the applicants under Freedom of Information requests made on 30 March 2021 and 27 January 2022 and released on 7 May 2021 and 13 February 2023 respectively.
[3] Departmental document ADD2020/5458412.
[4] Pages 227 to 232 of the Department file BCC2020/1371490.

The applicants have provided both the Department and Tribunal with a comprehensive set of documents supporting the applicant’s claimed relationship.
Findings
The Tribunal accepts the applicants’ explanation for the presence of the applicant at their apartment on 27 July 2020 when the applicant was working from home. The Tribunal further notes that although the telephone connection ended mid-interview, there is no evidence before it that the second named applicant deliberately ended the call or that he refused to speak again to the Departmental officer interviewing him.
The Tribunal has considered the observations made by the interviewing officer regarding the second named applicant appearing to send and receive text messages during the interview and their concerns that applicant was assisting him by providing his answers. However, it notes that although the officer suspected that this was occurring, there is no definitive evidence that the second named applicant received assistance in giving his answers and the applicants have each denied participating in such an arrangement.
The Tribunal also has concerns about the incorrect answers given by the applicant in the interview regarding his place and type of studies and the applicant’s previous work address.
The Tribunal does also have concerns about the second named applicant’s evidence about his former girlfriend advising him that she was considering making a visa application which included him as a dependent spouse and the second named applicant’s apparent lack of questioning about whether this had occurred. However, the Tribunal accepts that his discussions about him being included in her visa application as a dependent spouse appeared to have occurred prior to their relationship ending.
On balance, the Tribunal considers that the evidence before it demonstrates that the relationship between the applicants is a genuine one. In reaching this decision, the Tribunal has considered the oral evidence of the applicants and the supporting documents including rental agreements, taxation return, utilities bills and other personal bills and invoices.
Conclusion
Based on the above findings, the Tribunal is not satisfied that there is evidence before it that the applicant has given or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, ‘information that is false and misleading in a material particular’ as defined in PIC 4020(5) in relation to the visa application.
Therefore, the applicant meets PIC 4020(1).
On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl 190.216(1).
Based on the above findings, the Tribunal finds that the second named applicant meets the secondary criteria for the grant of the visa.
DECISION
The Tribunal remits the applications for Skilled Nominated (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 190 - Skilled - Nominated visa:
· Public Interest Criterion 4020 for the purposes of cl 190.216(1) of Schedule 2 to the Regulations.
The Tribunal considers that the second named applicant meets the secondary criteria for the grant of a Subclass 190- Skilled - Nominated visa.
Amanda Mendes Da Costa
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.
…

[2023] AATA 3760

20 June 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Natural Justice