Chen (Migration)

[2023] AATA 4590

Chen (Migration) [2023] AATA 4590 (16 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Linqing Chen
Mr Qifa Huang

REPRESENTATIVE:  Ms Yanqiu Dong (MARN: 0742754)

CASE NUMBER:  2309561

HOME AFFAIRS REFERENCE(S):          BCC2021/1322475

MEMBER:Noelle Hossen

DATE:16  November 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 482 - Temporary Skill Shortage visa.

The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 16 November 2023 at 11:44am

CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482– applicant provided incorrect answers and a bogus document – highly unlikely that the applicant was not employed by FRFGC – Tribunal found the applicant to be a truthful witness – not satisfied that there was non-compliance by the applicant – decision under review set aside – no jurisdiction with respect to the other applicants 

LEGISLATION
Migration Act 1958, ss 101, 103, 109, 140
Migration Regulations 1994, Schedule 2

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 first named applicant’s Subclass 482 - Temporary Skill Shortage visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant did not comply with s101 (b) and s 103 of the Act in relation to his Temporary Skill Shortage visa application. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s 140(1) of the Act. As no decision was involved in the visa cancellation under s 140(1), the Tribunal has no jurisdiction with respect to the other applicants

4. The applicants appeared before the Tribunal on the 15 November 2023 to give evidence and present arguments. 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. The applicant provided the following documents to the Tribunal:

   Extensive submissions provided by the Representative

   Statutory Declaration of the applicant dated the 15 June 2023

   Letter of outcome from Southern Meats Pty Ltd including statement of MINTRAC assessment dated the 11 January 2020

   A Table of employees that have resigned from FRFGC with English translation.

   Applicant’s offer of employment from Southern Meats dated 19 November 2020

   Statement from FRFGC Factory Director Quisheng Liao dated the 14 June 2023

   Commerce Notice dated the 12 November 2007 with English translation.

   Letters of support from employees  

7. 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

8. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with 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 passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

9. The exercise of the cancellation power under s109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s107 of the Act, providing particulars of the alleged non- compliance. Where a notice is issued that does not comply with the requirements of s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

10. In the present matter, the Tribunal is satisfied that the delegate has reached the necessary state of mind to engage s107 and the notice issued under s.107 complied with the statutory requirements.

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

11. The issue before the Tribunal is whether there was non-compliance in the way described in the s107 notice, and if so whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice, as set out in the Delegate’s Decision record, was noncompliance with s101 (b) and s103 of the Act.

12. The applicant was granted the Temporary Skill Shortage (Labour Agreement Stream) (Subclass 482 visa) on the 4 January 2021.

13. On the 2 June 2023 the applicant received a Notice of Intention to Consider cancellation from the Department and she responded on the 15 June 2023.

14. On the 30 June 2023 the Delegate cancelled the applicant’s visa for non-compliance with s101(b) and s 103 of the Act stating that she had provided an incorrect answer and a bogus document.

15. The applicant’s case is that the details she provided on the 19 December 2020 to the Department, were correct as she was employed on a full-time basis from the 19 November 2014 by Fujian Rohesen Group Co Ltd (FRFGC) as a skilled meat worker. She stated that the work reference that she provided issued and signed by the Factory Director, Quinsheng Liao dated the 26 October 2020 was authentic.

16. It was stated in the Decision record that staff from the Department’s Shanghai’s post contacted FRFGC’s Human Resources clerk Ms. Lin to confirm the applicant’s employment history as stated in her Temporary Skill shortage (Labour Agreement Stream) visa application.

17. According to the record the phone interview resulted in the Department stating that Ms. Lin has stated that there was no record that the applicant had worked with the company. It was alleged that Ms. Lin had stated that the Factory Director, Quinsheng LIAO, who issued and signed the applicant’s work reference certificate was not authorised by the company to issue or sign references on behalf of the company including using the company stamp.

18. The applicant maintains that the details of her employer were provided by the applicant which enabled the department to make the inquiries as set out in the paragraph above.

19. She stated orally and in writing that she did not provide any false or misleading information and did not provide a bogus document to the Department.

20. The applicant maintained that the details that she provided on the 19 December 2020, when she lodged an application for Temporary Skill Shortage (Labour Agreement Stream) visa, were truthful and genuine, namely that :

    She was employed full time from the 19 November 2014 by FRFG Co Ltd as a skilled meat worker.

    The copy of her FRFGC work reference certificate, issued and signed by Factory Director, Quisheng Liao and dated the 26 October 2020 was authentic.

21. The applicant maintained in her submissions that the Department placed a lot of weight on the telephone call that they made to FRFGC Human Resources Department without checking the credentials of the clerk who provided the information. The applicant makes a valid point that the Department should have verified whether the clerk had any access to the confidential records of the company.

22. The Tribunal has taken into consideration the totality of the evidence before it and placed significant weight on the following facts in favour of the applicant’s case:

    The applicant has been assessed by MINTRAC and her skill set was commensurate with Australian standards and she was able to secure employment that she has continued to hold with her employer Southern Meats Pty Ltd since the 19 November 2020 in Australia. She confirmed at the hearing, in her oral evidence that she had only held one job in the industry in China with FRFGC and that is where she obtained her skills. The Tribunal has sighted her references which set out that she is highly respected for her work ethic and character in Australia. The Tribunal found the applicant to be a truthful witness as she gave her evidence at the hearing in a forthright manner.

    The applicant had provided a statement from Mr. Liao who is still employed by the company FRFGC dated the 14 June 2023. He is a Senior Manager and was the person who supplied the reference. The Tribunal places a lot of weight on his statement in favour of the applicant’s case. He stated that he was willing to be contacted to clarify the matter further. The Tribunal finds that the Department ought to have explored the issue further regarding the status of the document that they considered to be bogus. The person who wrote the reference was available to provide further information and is still employed by the company.

23. The Tribunal accepts the applicant’s submission that weight should be placed on the fact that the applicant has cooperated with the Department. The Tribunal finds that it is highly unlikely that the applicant was not employed by FRFGC and that she did provide a reference that was not a bogus document.

    CONCLUDING PARAGRAPHS

24. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way 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

25. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 482 - Temporary Skill Shortage visa.

26. The Tribunal has no jurisdiction with respect to the other applicant.

    Noelle Hossen
    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.