Zhu (Migration)

[2021] AATA 1584

Zhu (Migration) [2021] AATA 1584 (18 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jiehui Zhu

CASE NUMBER:  2009725

HOME AFFAIRS REFERENCE(S):          BCC2018/4869063

MEMBER:Andrew McLean Williams

DATE:18 May 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 187 -  Regional Sponsored Migration Scheme visa.

Statement made on 18 May 2021 at 4:58pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – incorrect information and bogus documents in visa application – employment contract and letter confirming employment offer – offer withdrawn after downturn in business – company now in liquidation – documents genuine when they were created and provided to department – incorrect information given to departmental officers in unannounced phone call which applicant assumed was an attempted scam – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 5, 101(b), 103, 107, 109(1), 111

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 to cancel the applicant’s Subclass 187 - Regional Sponsored Migration Scheme (‘RSMS’) visa pursuant to s.109(1) of the Migration Act 1958 (‘the Act’).

2. The delegate cancelled the visa on the basis of the delegate concluding that, as part of his RSMS visa application, the applicant had provided incorrect information contrary to s.101(b), and had furnished bogus documents, contrary to s.103. The issue in the present case is whether those grounds for cancellation are now made out and, if so, whether as part of an exercise of the discretion contained in s.109 the visa should be cancelled.

3. The applicant appeared before the Tribunal on 17 February 2021 to give evidence and make submissions.

4. The applicant was represented in relation to the review by his registered migration agent and barrister, Mr Lorenzo Boccabella (RMA Number 9580738). Mr Boccabella also appeared before the Tribunal on 17 February 2021, and had prepared detailed written submissions for submission to the Tribunal, prior to the hearing.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with any of ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and on their passenger cards; not to provide ‘bogus documents’ (as defined); and to notify the Department of any incorrect information of which they become aware, and of any relevant changes in their circumstances.

7. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister first issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

8. Here, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107, such that the notice issued by the department on 21 May 2020 under s.107 complied with the statutory requirements.

9. In this instance the Notice of Intention to Consider Cancellation (‘the NOICC’) issued by the department pursuant to s.107 specifically particularises alleged breaches of s.101(b) and s.103 of the Act, such that the preliminary question for the Tribunal must relate to whether either of those grounds for cancellation are made out to the satisfaction of the Tribunal.

10. Section 101(b) of the Act provides:

    “Section 101.        Visa applications to be correct

    s101. A non-citizen must fill in or complete his or her application form in such a

    way that:

    (a) all questions on it are answered; and

    (b) no incorrect answers are given or provided.”

    Section 98 of the Act provides that a non-citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in, or if it is otherwise filled in, on his or her behalf.

11. By operation of section 99 of the Act, any information that a non-citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person, or the Tribunal, or the Immigration Assessment Authority, reviewing a decision under this Act in relation to the non-citizen's application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non-citizen's application form, whether the information is given or is provided orally, or in writing, and whether at an interview, or otherwise.

12. Further, section 100 of the Act provides that an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

13. Section 103 of the Act provides:

    Section 103. Bogus documents not to be given etc.

    “A non-citizen must not give, present or provide to an officer, an authorised system, the Minister, or a tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented or provided.”

14. For the purposes of Subdivision C of the Migration Act 1958 ‘bogus document’ is defined at section 5 of the Act as follows:

    Section 5 Interpretation

    “In this Act, unless the contrary intention appears:

    A 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.”

15. Section 111 provides that ‘to avoid doubt, sections 107, 108 and 109 apply whether the non-compliance was deliberate or inadvertent’. That is, it is not necessary for the purposes of cancellation under section 109 that the visa holder deliberately misled the Department.

    Was there non-compliance as now described in the s.107 notice?

16. Here summarising, the NOICC particularises the alleged non-compliance as arising in the following circumstances:

    ·On 19 April 2016 the applicant caused the lodgement of an application for a RSMS visa.  As part of that, the applicant completed/caused to be completed an associated Application for Permanent Sponsored or Nominated Visa.

    ·The Application for Permanent Sponsored or Nominated Visa provided the following answers:

    -    Sponsoring employer nomination details ‘reference number 165590124’

    -    All information therein provided was declared to be true and correct.

    ·Reference number 165590124 relates to an Application for Employer Nomination for a Permanent Appointment, made by Surat Basin Builders Pty Ltd (trading as Surat Basin Homes) as the applicant’s prospective sponsoring employer for the RSMS visa.  That form indicated that the sponsored work location was to be at Chinchilla in South West Queensland (postcode 4413), at a business address located at 20 Inveria (sic) Road, Chinchilla 4413.

    ·As evidence in support of the RSMS visa application, the following further documents were provided:

    -    A confirmation of two year employment letter dated 21 October 2016 signed by a Mr Greg West, Director of Surat Basin Builders Pty Ltd, indicating that the applicant was to be employed as an architectural draftsperson commencing from the date of grant of the applicant’s permanent residency; and

    -    A contract of employment dated 8 April 2016.

    ·On the basis of the foregoing information the delegate granted the applicant a RSMS visa on 11 November 2016.

    ·In the NOICC dated 21 May 2020, the department contend that the foregoing information contains incorrect information and/or the RSMS visa application was supported by bogus documents because:

    -    ASIC records reveal that Liquidators were appointed to Surat Basin Builders Pty Ltd on 20 December 2017;

    -    A departmental site visit to 20 Inverai Rd at Chinchilla, as was conducted on 13 June 2018, had revealed those premises to be unoccupied, and that the listed telephone numbers for Surat Basin Builders Pty Ltd were disconnected;

    -    Departmental officers made telephone contact with the applicant on 13 June 2018, wherein it was revealed to them (amongst other things) that the applicant had worked for Surat Basin Builders Pty Ltd ‘up until Christmas 2017, in Toowoomba’, yet the applicant was unable to provide suitably appropriate details of the employer’s address, etc;

    -    Liquidators for Surat Basin Builders Pty Ltd advised that the company had ceased trading in March 2017, and the liquidators provided no information about that company employing any RSMS visa holders.

    -    On the basis of the foregoing, the department concluded that the applicant had never worked for Surat Basin Builders Pty Ltd at the specified address in Chinchilla, and that documents had been fabricated in order to create an impression that the applicant had worked for that company and in that location.

17. In evidence before the Tribunal the applicant relies upon, inter alia:

    • Statutory declarations from Jason Zhu dated 1 June 2020 and 16 February 2021;

    ·A statutory declaration of Mr Gregory Steven West, declared at Chinchilla on 17 February 2021; and

    ·A statement of Mr Martin Salvo, Migration Agent (MARN 1175200) and Lawyer of Salvo Migration dated 17 February 2021

18. In his statutory declarations, the applicant declares that he is a citizen of the Peoples Republic of China who was born on 5 November 1992.  Between 2013 and 2015 applicant undertook a Bachelor of Architectural Design at Bond University on the Gold Coast whilst in Australia on a Subclass 600 (student) visa, and while being entirely financially supported by his parents in China.  Once he had graduated the applicant says that he started looking for employment opportunities in his chosen vocation, and it was his migration agent Ms Yi Wong who had informed him of the possibility of work with Surat Basin Homes at Chinchilla.  At the time, the applicant had a girlfriend who was studying in Toowoomba, such that he had some general familiarity with where Chinchilla was situated, and he was not adverse to the idea of regional employment.

19. The applicant says that he had an interview with Mr Greg West from Surat Basin Homes in late March 2016 at the Logan Road Underwood offices of his migration agent, Ms Wong.  About one week after the interview he was contacted by Ms Wong who informed him that the job at Surat Basin Homes job at Chinchilla was to be offered to him.  He then returned to Ms Wong’s Office and signed an employment contract dated 8 April 2016 that had already been signed by Mr West on behalf Surat Basin Builders Pty Ltd.  Ms Wong was then retained by the applicant to lodge a RSMS visa application on his behalf, which was eventually granted, but not until 11 November 2016.

20. During the period after 8 April 2016, the applicant says that he lived with his then girlfriend at Stretton and busied himself undertaking self-directed studies in visual arts and computer-based 3D design.  He had been informed by Ms Wong that he could not start work until such time as the RSMS visa had been approved by the department.  In any subsequent communications with Ms Wong the applicant was advised that they would be contacted by the employer once Surat Basin Homes were ready for the applicant to start his new employment.  As a new graduate in an entry-level position, the applicant took the view that he was in no real position to attempt to hasten that process. 

21. Eventually, Ms Wong contacted the applicant in March 2017 to have him come in and complete various employment documents that had been sent to her by Surat Basin Homes as a preliminary to the applicant commencing employment in Chinchilla.  From that the applicant assumed, even as late as March 2017 that his employment commencement date was now imminent.  It then came as a complete shock and surprise to the applicant when, on 16 May 2017, Ms Wong received an e-mail from a Mr Tim Fuller of Aejis Legal advising that the employment offer to the applicant from Surat Basin Builders Pty Ltd had been ‘withdrawn’, on grounds that the company no longer had the financial capacity to maintain the offer of employment to the applicant.  At that stage, the applicant re-located back to the Gold Coast and commenced the process of looking for other employment as an architectural draftsperson.  Unable to find any employment of that type, the applicant ended up taking casual work in restaurants, before commencing his own business investing in coffee shops and taking up a position as the on-site manager of a residential community.

22. As to the misleading information given by the applicant to departmental officers when he was telephoned by them unannounced on 13 June 2018, the applicant explains his actions in his statutory declaration declared on 1 June 2020.  Therein, the applicant says that he was concerned that the call was actually an attempted scam by persons trying to solicit information from foreign students, on the basis that he had been warned about this and had never before received an telephone call from a government official by means of a mobile phone number.  The Tribunal accepts the sufficiency of that explanation. 

23. In his statutory declaration, Mr Gregory West declares that, up until 29 May 2017 he had been a director, the company secretary and a 25% shareholder in Surat Basin Builders Pty Ltd, trading as Surat Basin Homes.  Surat Basin Homes was engaged in residential home building in Chinchilla and Roma, aiming to provide residential accommodation in response to demands for housing caused by growth in employment numbers in the coal seam gas industry.  Mr West explains that the company had ambitions to construct up to 200 homes per year and, at its peak had about 50 employees as well as an office located at 20 Inverai Road, Chinchilla.  Mr West further explained that Surat Basin Homes wished to recruit an architectural draftsperson to work at Chinchilla and wished to obtain a recent graduate for what would be an entry-level position.  Because of the obvious difficulties in convincing recent graduates to move to Chinchilla, an overseas student looking to find employment via the RSMS visa scheme was considered by Surat Basin Homes as an obvious means by which obtain a suitably qualified employee, such that Salvo Migration was approached for these purposes.  Mr West then says that Salvo Migration found the applicant for Surat Basin Homes.  Mr West interviewed the applicant at the applicant’s own migration agent’s office in Logan, before an offer of employment was made to the applicant.  Mr West says that the contract between the applicant and Surat Basin Homes dated 8 April 2016 was a genuine contract, as was the letter dated 21 October 2016 bearing his signature confirming that employment offer.

24. Due to changes in the coal seam gas industry in the latter half of 2016, there was a drastic downturn in the pipeline of housing construction being undertaken by Surat Basin Homes in Chinchilla and Roma.  Despite that, even in very late in 2016 Mr West remained optimistic that Surat Basin Homes would survive the downturn, particularly because of other projects under construction located at Richlands, in Brisbane.  Mr West now says that the employment confirmation letter signed by him on 21 October 2016 and as used by the applicant in support of his RSMS visa application was a product of that optimism.  Unfortunately, thereafter financial circumstances for Surat Basin Homes only worsened and, in March 2017, Surat Basin Homes ceased trading.  On 16 May 2017 lawyers acting for Surat basin Homes were instructed to contact the applicant and withdraw the offer of employment.  

25. In his letter dated 17 February 2021 Mr Martin Salvo  informs that he was retained by Surat Basin Builders Pty Ltd to act as the migration agent preparing a nomination application for the applicant to be employed in the position of architectural draftsperson to be based at Chinchilla in Queensland. Mr Salvo felt that the nomination application was entirely genuine and that Surat Basin Builders Pty Ltd met all of the requirements for the nomination pursuant to the RSM scheme.

26. In his submissions before the Tribunal, Mr Boccabella concedes that the applicant did not – (in consequence of circumstances entirely not of his own making) end up commencing employment with Surat Basin Homes in Chinchilla, yet submits that is not to the point in this instance given the manner in which the non-compliance has been particularised in the NOICC given under s.107.

27. The available evidence reveals that  the employment contract dated 8 April 2016 was genuine when entered into; as was the letter conforming that employment offer, as was signed by Mr West on 21 October 2016.  The RSMS visa was granted on 11 November 2016 on the strength of that information, and the applicant was not to know that he would not have employment with Surat Basin Builders at Chinchilla until advised of that on 16 May 2017.  In these circumstances it cannot be said that false information (s.101(b)), or bogus documents (s.103), has been given or caused by the applicant, and the basis for cancellation now particularised in the NOICC does not on the evidence arise.  The Tribunal accepts that to be the correct categorisation.

28. As the Tribunal is not satisfied that there was non-compliance by the applicant in the manner now described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

    DECISION

29. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 187 -  Regional Sponsored Migration Scheme visa.

    Andrew McLean Williams
    Member

    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

    (1)In this Act, unless the 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.

    97Interpretation

    In this Subdivision:

    application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

    passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

    Note:Bogus document is defined in subsection 5(1).

    98Completion of visa application

    A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

    99Information is answer

    Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

    100Incorrect answers

    For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

    101Visa applications to be correct

    A non‑citizen must fill in or complete his or her application form in such a way that:

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    103Bogus documents not to be given etc.

    A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.

    * This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

    107Notice of incorrect applications

    (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

    (a)     giving particulars of the possible non‑compliance; and

    (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

    (i)if the holder disputes that there was non‑compliance:

    (A)shows that there was compliance; and

    (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

    (ii)if the holder accepts that there was non‑compliance:

    (A)give reasons for the non‑compliance; and

    (B)shows cause why the visa should not be cancelled; and

    (c)      stating that the Minister will consider cancelling the visa:

    (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

    (ii)if the holder gives the Minister a written response within that period—when the response is given; or

    (iii)otherwise—at the end of that period; and

    (d) setting out the effect of sections 108, 109, 111 and 112; and

    (e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

    (f)      requiring the holder:

    (i)to tell the Minister the address at which the holder is living; and

    (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

    (1A)The period to be stated in the notice under subsection (1) must be:

    (a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

    (b)     otherwise—14 days.

    (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

    (a)     visas of a stated class; or

    (b)     visa holders in stated circumstances; or

    (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

    (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

    (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

    108Decision about non‑compliance

    The Minister is to:

    (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

    (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

    (a) deciding under section 108 that there was non‑compliance by the holder of a visa; and

    (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

    (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.