Chen (Migration)

Chen (Migration) [2023] AATA 3769 (31 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Jinglong Chen
Mrs Lijiao Wei
Mr Luyang Chen
REPRESENTATIVE:  Ms Yanqiu Dong (MARN: 0742754)
CASE NUMBER:  2309500
HOME AFFAIRS REFERENCE(S):         BCC2021/1522008
MEMBER:Alison Mercer
DATE:31 October 2023
PLACE OF DECISION:  Melbourne
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 applicants.

Statement made on 31 October 2023 at 5:11pm

CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 - Temporary Skill Shortage – incorrect information in the visa application – bogus document – reference from employer in China – employment checks after business was liquidated – successful Australian skills assessment – support from employer’s former executive – skills shortage – employer liabilities – labour contracting arrangement in China – employment confirmed – power to cancel the visa does not arise – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5(1), 48, 97-105, 107-109, 111, 140, 189, 198
Migration Regulations 1994, Schedule 2, cl 482.242; Schedule 4, Public Interest Criterion 4020; r 2.41
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
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 28 June 2023 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).
The delegate cancelled the visa on the basis that the applicant had provided incorrect information in his subclass 482 visa application, and also provided a bogus document. Both grounds related to the delegate’s finding that the applicant had falsified part of his employment history in China.
The Tribunal received a review application from the applicants on 29 June 2023. The review application was accompanied by a copy of the delegate’s decision and an authority by which the applicants appointed a registered migration agent, Ms Yangqiu Dong, as their representative and authorised recipient for correspondence.
The issue in the present case is whether those grounds for cancellation are made out, and if so, whether the visa should be cancelled.
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 visas were 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.
The applicant appeared before the Tribunal on 18 October 2023 to give evidence and present arguments. The Tribunal also received oral submissions from the applicant’s agent, who also attended the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
At the conclusion of the hearing, the Tribunal discussed with the applicant and his agent that it expected to make its decision by mid November 2023, if possible.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF LAW, CLAIMS AND EVIDENCE
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.
The exercise of the cancellation power under s 109 of the Act is conditional on the Minister 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.
Did the notice comply with the requirements in s 107?
In this case, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements to set out the particulars of the alleged non-compliance and to invite the applicant to respond to these within a specified period.
Was there non-compliance as described in the s 107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled.
Notice of Intention to Consider Cancellation issued by the Department
The non-compliance identified and particularised in the s 107 notice was non-compliance with ss.101 and 103 of the Act in the following respects:
·the applicant had breached the requirement in s.101(b) of the Act to not give incorrect information in his visa application. The delegate asserted that the applicant had provided incorrect information about his Chinese employment experience. Specifically, the delegate alleged that the applicant stated that he worked for Yurun Group Hefei Wanrun Foods Company Ltd (the parent company for which was Nanjing Yurun Foods Company Ltd) as a meat processor/boner between December 2014 and May 2019 but that the parent company had no record of the applicant’s employment when contacted by the Department in July 2021; and
·therefore, the applicant had given incorrect information about this employment experience in breach of s.101(b) and his employment reference asserting the above dated 25 May 2019, and provided to the Department by the applicant, was a bogus document within the meaning of ss.103 and 5(1) of the Act.
Based upon the above information, the delegate considered that the applicant falsely declared that he had been employed in a position similar to the one for which he was nominated for the Temporary Skill Shortage visa, to facilitate a favourable migration outcome. The delegate stated that it therefore appeared that the applicant was granted a Temporary Skill Shortage visa to which he might not have been entitled. The delegate further stated that it appeared the applicant had not complied with s101(b) and s103 of the Act, and if so then his visa might be cancelled under s109 of the Act.
Applicant’s response to the Department
On 12 June 2023, the applicant provided a response to the NOICC, including a statutory declaration dated 12 June 2023, a copy of a positive MINTRAC skills assessment for him for finding he had skills equivalent to the holder of an Australian certificate III in Meat Processing (Boning Room) issued 29 May 2019 and MINTRAC assessor support letter dated 6 August 2023, screenshot of average course duration for a Certificate III in Meat Processing (Boning Room), a Chinese report about the bankruptcy and restructure of the Yurun Group dated 1 February 2021 (with certified translation into English); copy of the applicant’s resignation from his Chinese employment dated 29 July 2019 (with certified English translation), statement of clarification from Xinhua Si (Executive Vice President of Yurun Group Hefei Wanrun Foods Co Ltd) dated 9 June 2023 (with certified English translation); copy of contract between Yurun Group Hefei Wanrun Foods Co Ltd and contractor Mr Wu stated to run between 1 March 2011 and 1 March 2016 (with certified English translation); notice issued by the Chinese Ministry of Commerce to strengthen the management of slaughtering live pigs in towns and villages, dated 12 November 2007 (with certified English translation); discussion of local legislation regarding the slaughter of livestock and poultry posted on the National People’s Congress Magazine Xin Chen on 4 July 2018 (with certified English translation); supporting letter from the applicant’s Australian employer, Midfield, dated 6 June 2023; and 3 reference letters for the applicant from colleagues and his local priest in Australia.
In his statutory declaration, the applicant made the following points:
…
In response to your [NOICC of 2 June 2023] I provide you the following facts to address the claimed adverse information.
It is unacceptable for me being accused of providing false or misleading information and bogus document in my TSS 482 visa application. Particulars of the ground for cancellation and information including the ground for cancellation do not exist.
My response are [sic] supported by undeniable evidence. The facts stated and the evidence provided should be given sufficient attention on an unbiased and just manner without influence of pre-existing assumptions. I believe your decision will be made on the ground of solid facts presented to you, which I list as follows:
A.    I had been working for Yurun Group Hefei Wanrun Food Co Ltd (Wanrun) as a boner with main duties and tasks of boning from 17/12/14 to 12/08/2019. The company address was Henga Road, Feidong Economic Development Zone, Hefei, Anhui. The business phone was + 86 551 6775 7739. The person in charge of human resources was Executive Vice President Mr Xinhua Si. His mobile number was + 8613866666 198.
B.    Before I submitted by 482 visa application, I was assessed by a MINTRAC assessor appointed by my Australian employer Midfield Meat International Pty Ltd (Midfield). I successfully passed the practical meat processing assessment and was issued a Skill Assessment letter and Statement of Assessment with my marking records on 29/05/2019 (Attachment 1 – Positive MINTRAC Skill Assessment outcome Letter and Assessment Statement 29.05.2019). Following the successful skill assessment, I was offered a position of Skilled Meat Worker by Midfield on 30/05/2019 based on my skills and experience (Attachment 2 – 482 letter of offer 30.05.2019). The MINTRAC assessor had videoed the skill assessment as required by Australian meat industry. The assessor’s name is Rodney Dennis Holmes. His assessor number is MSWA026. Department officer can request my skill assessment files with the video from him to check my skills. The assessor also provided me a support letter on 08/06/2023 (Attachment 3 – MINTRAC Assessor Support Letter 08.06.2023), further confirming that:
1.There were transparent and audited processes in place;
2.The MINTRAC assessment were undertaken utilising the most recent training package available from MINTRAC; and
3.The skills assessment documentation provided clearly demonstrates that the overseas worker had been successfully assessed to have a minimum skill level commensurate with an AQF Certificate III in Meat Processing.
C.    As a meat worker, it is impossible for me to gain the knife skills in a short period of time. It takes years’ practice to be a skilful meat worker. My 4 year and 8 months work experience with Wanrun is how I gained the relevant knowledge, skills and experience to allow me to work for the Australian employer Midfield on full time basis upon my arrival in Australia.
D.    The Australian employer Midfield who recruited me and sponsored me to apply for my 482 visa based on my boning skills never trained me as an apprentice. I started to work on the extremely busy production line as soon as I came to Australia. Without several years of experience, I have no chance to be competent to work in Australian meat factory without any training on a position requiring a Certificate III level qualification or at least three years’ work experience. According to the course information on the website of National Careers Institute the average course duration of Certificate III Meat Processing (Boning Room) in Australia is two years (Attachment 4 – Screenshot of Average Course Duration of Certificate III in Meat Processing (Boning Room)). The strict occupational and health regulations in Australia will not allow me to work with a sharp knife in a fast production line as a team member. The risk to be caused was not only to myself but also to my colleagues. The whole production line could be slowed down or shut down if any single worker was not qualified enough to keep up. If I had not worked in the skilled position as a Skilled Meat Worker for at least three years in China before the skills assessment, it would be extremely difficult for me to pass the skill assessment at the required level. In Australia the AQF certificate III course requires at least two years formal study (with practical experience) and there is an obvious gap in meat processing standards between Australia and China. Australia’s meat industry relies on skills and trade-based qualifications, whilst China places greater emphasis on industry experience. Therefore, by demonstrating a capability to pass the MINTRAC skill assessment (which is an essential requirement for the Meat Industry Labour Agreement), it is evident that I must demonstrate significant practical industry experience in China.
E.    If my work experience provided in my 482 visa application is questioned, the standard of Australian MINTRAC skill assessment should equally be questioned so as the whole Meat Industry Labour Agreement system since the skill assessment is a crucial part of the Meat Industry Labour Agreement. The conclusion of the telephone interview is not only a denial of my past skilled meat workers’ experience, but also a denial of my whole meat work history. This is rather questioning the criteria of Australian meat industry assessment than questioning my work experience. I was one of the workers selected by Midfield. If I did not work for over four years at Wanrun, I had to work somewhere for a lengthy period to acquire my meat processing skills, otherwise I would definitely not be able to pass the skill assessment, my 482 sponsor Midfield would not recruit me and sponsor me if I had failed to prove that I possessed the required skill level at the time of recruitment. Since the skill assessment proved I had at least three years’ experience, it does not make any sense that I would rather provide false information and bogus document to prove my actual employment experience than providing true information. The only logic is that my employment history provided in my 482 visa application with Yurun Group Hefei Wanrun Food Co Ltd is genuine.
F.    I am surprised that the Department officer did not check my employment status prior to my 482 visa grant. That would be the natural and fair process. If they had done this at the time, I am sure that Wanrun would have given a better reference. This is rather than the request made 2.5 years later when my former employer is bankrupt, reported by Jieman News, China’s most influential digital media outlet specialising in financial and business news (Attachment 5 – Jiemian News re Yurun Group’s Bankruptcy and Reorganisation with Translation), our previous Executive Vice President has retired, and therefore is without immediate access to files and information about employees, and at the time of the call, only general information was available. The contracting relationship between the contractor and Yurun Group Hefei Wanrun Food Co Ltd was not revealed.
G.    I was extremely shocked when receiving [NOICC] of my 482 visa from the Department of Home Affairs, but as a result I managed to contact Mr Xinhua Si, the previous Executive Vice President in charge of human resources who issued my previous 457 visa Working Certificate. Even though he retired, as a professional executive managing human resources, he realised the gravity of the visa cancellation on my family and checked my files as soon as convenient. Mr Si not only found out my employment was through a contractor, but also brought up from lots of archives my Resignation Application Letter I submitted on 10/08/2019 approved by him on 12/08/2019 (Attachment 6 – Resignation Application with Translation), but also provided me his Clarification Letter (Attachment 7 – Clarification by Xinhua Si 09.06.2023 with Translation) and the Contract signed between the company and the contractor Mr Wu having confidential clauses blacked out (Attachment 8 – Contract between Yurun Group Hefei Wanrun Food Co Ltd and Contractor Mr Wu with Translation).
H.    As a fast developing country, China’s administration and management at different level of authority has not caught up with the speed of its development. It still has a big space to improve especially on labour management particularly with its large population and labour force. After I came to Australia, I realised how big is the gap between these two countries, especially on employment regulations. My social status as a meat worker is low so is my salary. Nobody cared about meat workers’ safety and social security. Nobody paid super, insurance or workcover for us even though Chinese central government issued a notice to strengthen the meat industry management in 2007 and discussions on meat industry local legislation were brought up in 2018, meat workers’ employment conditions have never changed up to the date I left China (Attachment 9 – the Ministry of Commerce Issued a Notice to Strengthen the Management of Slaughtering of Live Pigs in Towns and Villages 12.11.2007 with Translation and Attachment 10 – Discussion on Local Legislation of Livestock and Poultry Slaughter posted on National People’s Congress Magazine Xin Chen 04.07.2018 with Translation). If I was well-educated and had a better option, I would never have worked as a meat worker in China. That’s why I wanted to live and work in Australia, a country providing equivalent employment and conditions no less favourable than the local Australian workers, providing equal rights and fair treatment to all its residents regardless of their race and ethnicity.
I.   I am a hard working meat worker working with sharp knives on extremely busy production line, with little space less than one meter distance from other co-workers, which requires full focus otherwise it would generate risk and hazard to myself and coworkers next to me. Your NOICC caused anxiety, depression and distress on my mental state to such an extent that I can hardly concentrate on work. This is extremely dangerous and unhealthy not only to myself, but also to my family, colleagues and the whole production efficiency.
In light of the undisputable evidence presented before you, I trust you will take all the above facts into your consideration to make an impartial decision on my life and future. I am committing to living, working and to continue dedicating myself to the Australian community. I have committed myself to Australian critical meat industry for over 3 years (Attachment 11 – Support Letter from Nominating Employer Midfield 08.06.2023). I have not only become an invaluable member of Midfield… but also a tax payer greatly contributed to the labour shortage and local economy of the remote area. I have settled in Australia, established close connection to Australian community and regarded this country as my home. My character is solid and unquestionable (Attachment 12 – Reference Letter from Father John Fitzgerald, Attachment 13 – Reference Letter from Supervisor, Ross Kenyon, and Attachment 14 – Reference Letter from Registered Nurse Leif Alacaraz). If I have to depart Australia as a result of visa cancellation, the loss to Australian society would be as equal to my personal life.
…
I believe that the above evidence is sufficient to justify my past employment in China, and therefore to clear your concerns.
In summary, I wish you could consider the additional supporting evidence provided, and not to prejudice the differences between China and Australia; and to look beyond the response to the interview. In consideration of the gravity of your decision on my application, this new evidence should help to provide further weight to help you in your decision making. I am hopeful that the new evidence will prove the authenticity of my work experience to the Minister (or to the… Tribunal, or if necessary, the Federal Court), as I am determined to prove that I met all the criteria of my 482 visa based on the skills, qualifications, and genuine employment experience gained from Yurun Group Wanrun Foods Co Ltd.
I DID NOT PROVIDE FALSE OR MISLEADING INFORMATION.
I DID NOT PROVIDE BOGUS DOCUMENTS.
I HAVE NOT GIVEN, OR CAUSED TO BE GIVEN, TO THE MINISTER, AN OFFICER, THE… TRIBUNAL, A RELEVANT ASSESSING AUTHORITY OR A MEDICAL OFFICER OF THE COMMONWEALTH, A BOGUS DOCUMENT OR INFORMATION THAT IS A FALSE OR MISLEADING IN MATERIAL PARTICULAR IN RELATION TO MY TSS 482 VISA APPLICATION.
THE GROUND OF CANCELLATION OF MY TSS 482 VISA APPLICATION DOES NOT EXIST.
AS SUCH, I MET PUBLIC INTEREST CRITERION (PIC) 4020.
…

The attachments were as described as above. In particular, the clarification letter from Mr Xihua Si dated 9 June 2023 provides as follows:
…
I, Xinhua Si, National Identity Number [redacted], held the position of Executive Vice President of Yurun Group Hefei Wanrun Foods Co Ltd from February 2012 to August 2019.
At the request of Mr Jinglong Chen, I provide clarification and supporting evidence to prove the genuineness of Jinglong Chen’s work experience in Yurun Group Hefei Wanrun Food Co Ltd.
Mr Jinglong Chen carried out full time boning work in our factory through a contractor from 17 December 2014 to 02 August 2019. This is beyond doubt as confirmed by his Resignation Application letter, which was found among a large quantity of documents I kept.
The parent company, Yurun Group Hefei Wanrun Foods Co Ltd, had overall legal responsibility including direct oversight of occupational health and safety. However, it managed most of its operations through its contractor that handled recruitment and kept work records. Since the contractor was responsible for personnel recruitment, management and salary payment, the workers who worked for the parent company through the contractor did not sign labour contracts, and the information of these workers were not registered in the personnel system of Yurun Group Head Company. Employees were identified with the parent company brand. Therefore, I issued a Working Certificate to Mr Jinglong Chen on 28 May 2019.
For legal and privacy reasons I am unable to disclose the contractor’s full name but can provide a copy of the Workshop Contract between the contractor and the parent company with the sensitive parts redacted. I emphasise that this type of contracting relationship is very common among state-owned or large enterprises in China.
The Yurun Group including Hefei Wanrun Foods Co Ltd experienced legal and financial turmoil in February 2021 and Wanrun had been closed for reorganisation. All its management had left and in August 2019 I retired as the company’s executive vice president.
I can confirm that workers like Jinglong Chen were recruited by the contractor under the name of Yurun Group Hefei Wanrun Foods Co Ltd. I verified Jinglong Chen’s Resignation Application letter and firmly confirm that his resignation was signed and approved by myself on 01 August 2019 right before my retirement. My signature and handwriting on the Resignation Application are completely authentic.
…
Department Cancellation Decision
The delegate considered the above evidence from the applicant but made a decision to cancel the applicant’s subclass 482 visa for the following reasons:
…
Section of Subdivision C of the Migration Act 1958 (the Act) with which it is considered the visa holder has not complied:
I consider that there has been non-compliance with section 101(b) of the Act. Section 101(b) states (in part):
Section 101 - Visa applications to be correct
A non-citizen must fill in or complete his or her application form in such a way that:
…
(b) no incorrect answers are given or provided.
In considering s101(b) of the Act, I have noted the application of the following provisions of the Act:
Section 98 - Completion 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.
Section 99 - Information 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 noncitizen's application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
Section 100 - Incorrect 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.
Section 111 - Cancellation provisions apply whether or not non-compliance deliberate
To avoid doubt, sections 107, 108 and 109 apply whether the non-compliance was deliberate or inadvertent.
I also consider that there has been non-compliance with s103 of the Act which states:
Section 103 - Bogus 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.
For the purposes of s103, s5(1) of the Act defines a bogus document as:
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.
Particulars of the ground for cancellation and information indicating the ground for cancellation appears to exist:
On 28 June 2019, the visa holder applied for a Temporary Skill Shortage visa and completed a Temporary Skill Shortage Visa application form.
On page 13 of the application form, under the heading “Employment history”, the visa holder provided the following answers (in bold):
Is this the applicant's current employment situation? Yes
Position: Skilled Meat Worker
Position type: Full-time
Employer name: Yurun Group Hefei Wanrun Foods Co Ltd
Country: CHINA
Date from: 17 Dec 2014
Description of duties: MEAT PROCESSING
Is this employment related to the nominated position? Yes
In support of his Temporary Skill Shortage visa application, the visa holder also provided an employment reference from Yurun Group Hefei Wanrun Foods Co., Ltd, dated 28 May 2019 (certified English translation from the Chinese language and the original in the Chinese language).
The certified English translation of this employment reference reads (in part) as follows:
..We hereby certify that Mr Jinglong Chen, Male, DOB: 18 August 1988, has been employed with our company since 17 Dec 2014 to the date. His position is boner. He mainly engages in boning. Mr Jinglong Chen worked hard and gained the skilled working experience during this period.
Yurun Group Hefei Wanrun Foods Co., Ltd (Seal)
28 May 2019
Officer in Charge: Xinhua SI (Signature)
Mobile Phone: +86-13866666198
Based on the above information and supporting document, as well as meeting all other relevant criteria, the visa holder was granted a Temporary Skill Shortage visa on 29 August 2019.
Subsequent information received by the Department
Following the grant of the visa holder’s Temporary Skill Shortage visa application, the Department conducted integrity checks on his employment claims. On 08 July 2021, the Department contacted Xinhua Si (identified in the employment reference as the Officer in Charge of Yurun Group Hefei Wanrun Foods Co., Ltd) who advised that all employee profiles are kept on the human resources system of their parent company, Nanjing Yurun Foods Co. Ltd.
On 08 July 2021, the Department contacted the human resources section at Nanjing Yurun Foods Co. Ltd who confirmed that they are the parent company of Yurun Group Hefei Wanrun Foods Co. Ltd. The human resources section at Nanjing Yurun Foods Co. Ltd provided the following information:
·The visa holder’s employee information (i.e. name) cannot be found in their human resources system, neither in English pinyin nor in Chinese characters.
·Their human resources system keeps a record of all their employee’s profiles (both current and former employees) working in both Nanjing Yurun Foods Co. Ltd or Yurun Group Hefei Wanrun Foods Co. Ltd, who have worked for at least six months. If an employee worked less than six months, then their information is not recorded in their system.
·The company started to use its current human resources system in 2014.
·If the visa holder had genuinely worked for their company from 2014 to 2019, then his employee information would have been kept in their system.
The employment reference that the visa holder provided from Yurun Group Hefei Wanrun Foods Co., Ltd stated that he had worked for the company from 17 December 2014 to the present (28 May 2019). However, based upon the human resources records kept by Nanjing Yurun Foods Co. Ltd, the visa holder had either never been employed by Yurun Group Hefei Wanrun Foods Co. Ltd, or only worked for the company for six months. I therefore consider that the employment reference the visa holder provided dated 28 May 2019, was not a genuinely issued document.
The non-compliance with Subdivision C of the Act
The non-compliance with s101(b)
I consider the visa holder may not have complied with s101(b) of the Act because:
·In his Temporary Skill Shortage visa application form, lodged on 28 June 2019, the visa holder claimed to have worked in a position similar to the one for which he was nominated for the visa, namely a Skilled Meat Worker at Yurun Group Hefei Wanrun Foods Co. Ltd, since 17 December 2014. I consider this answer to be incorrect because according to Nanjing Yurun Foods Co. Ltd, (who Xinhua Si confirmed is responsible for keeping employee records of Yurun Group Hefei Wanrun Foods Co. Ltd employees), the visa holder had either never been employed by Yurun Group Hefei Wanrun Foods Co. Ltd, or only worked for the company for six months. This is contrary to the work reference the visa holder provided from Yurun Group Hefei Wanrun Foods Co. Ltd, dated 28 May 2019.
The non-compliance with s103
I consider that the visa holder may not have complied with s103 of the Act because:
·In support of his Temporary Skill Shortage visa application lodged on 28 June 2019, the visa holder provided an employment reference from Yurun Group Hefei Wanrun Foods Co. Ltd, dated 28 May 2019. However, according to Nanjing Yurun Foods Co. Ltd, (who Xinhua Si confirmed is responsible for keeping employee records of Yurun Group Hefei Wanrun Foods Co. Ltd employees), the visa holder had either never been employed by Yurun Group Hefei Wanrun Foods Co. Ltd, or only worked for the company for six months. This is contrary to the work reference the visa holder provided from Yurun Group Hefei Wanrun Foods Co. Ltd, dated 28 May 2019. I therefore consider that the employment reference is a bogus document per the definition set out at s5(1)(b) of the Act because the document is counterfeit or has been altered by a person without authority to do so.
Based upon the information before me, I consider that the visa holder falsely declared he had been employed in a position similar to the one for which he was nominated for the Temporary Skill Shortage visa, to facilitate a favourable migration outcome.
It therefore appears that the visa holder was granted the Temporary Skill Shortage visa, to which he may not have been entitled.
Conclusion
It appears the visa holder has not complied with s101(b) and s103 of the Act.
If the visa holder did not comply with s101(b) or s103 of the Act in relation to his Temporary Skill Shortage visa application, his visa may be cancelled under s109 of the Act.
PART C: DECISION ABOUT NON-COMPLIANCE (S108)
Section 108 of the Act provides:
The Minister is to:
(a) consider any written 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.
Does the visa holder agree that there was non-compliance? No.
The visa holder maintains that he did not provide any false or misleading information, and that he did not provide a bogus document, in support of his application for a Temporary Skill Shortage visa. The visa holder submits the following:
·The visa holder was employed by Yurun Group Hefei Wanrun Food Co Ltd (‘Wanrun’) through a contractor. Under this contractor arrangement, the visa holder worked for Yurun Group Hefei Wanrun Food Co Ltd as a Boner from 17 December 2014 to 12 August 2019.
·The visa holder submits that if the Department had undertaken integrity checks of the visa holder’s employment claims before his visa was granted, rather than two and a half years later, after his employer had already gone bankrupt, then Yurun Group Hefei Wanrun Food Co Ltd would have been able to provide a ‘better verification’ of his employment claims. At the time the Department called Xinhua Si, he had already retired, and therefore he did not have immediate access to the files and information about the visa holder’s employment at the time of the call. At the time of the call, only general information was recollected by Xinhua Si and he was not aware of the contracting relationship under which the visa holder was employed.
·In response to the Notice, Xinhua Si has provided a signed letter, to provide clarification regarding the visa holder’s employment under a contractor arrangement. In his letter, Xinhua Si has advised that although the parent company, Yurun Group Hefei Wanrun Foods Co Ltd, had overall legal responsibility including direct oversight of occupational health and safety, it managed most of its operations through its contractor who handled recruitment, and kept work records. Xinhua Si also advised that since the contractor was responsible for personnel recruitment, management, and salary payment, the workers who worked for Yurun Group Hefei Wanrun Foods Co Ltd through the contractor, did not sign labour contracts, and the information of these workers was not registered in the personnel system of Yurun Group Hefei Wanrun Foods Co Ltd. Xinhua Si advised that because contractor employees were ‘identified with the parent company brand’ he issued the visa holder with the employment reference dated 28 May 2019.
·Xinhua Si advised that the contractors’ full name cannot be provided for legal and privacy reasons, however a copy of the workshop contract between the contractor ‘Mr Wu’ (having confidential clauses blackened out) and Yurun Group Hefei Wanrun Food Co Ltd has been provided as evidence that the company did employ workers under a contractor arrangement. Xinhua Si advised that this type of contracting relationship, under which the visa holder was employed, is very common among state-owned or large enterprises in China.
·The visa holder advised that Xinhua Si also found a copy of his Resignation Application Letter (that Xinhua Si personally approved) in the company archives. The resignation letter states in part ‘I (Jinglong Chen, Gender: Male, Date of birth: 18 August 1988 first of all, would like to thank the company for trusting and caring for me in so many years. The company has given me great help and support since I started on 17 December 2014.’
·The visa holder submits that as a fast developing country, China's administration and management at different levels of authority has not caught up with the speed of its development, especially with regards to labour management. The visa holder relates that; his social status as a meat worker in China was low, as was his salary; nobody cared about meat workers' safety and social security; and nobody paid superannuation, insurance or WorkCover to him. The visa holder relates that he wanted to live and work in Australia as a meat worker because of the better working conditions in Australia.
·Before the visa holder lodged his Temporary Skill Shortage visa application, he was issued with a positive MINTRAC ‘Statement of Assessment’ letter, which stated that he has the skill level commensurate with an Australian Certificate III Meat Processing (Boning Room). The MINTRAC assessor, who undertook the skill assessment on behalf of Midfield Meat International Pty Ltd, had videoed the skill assessment process as required by the Australian meat industry. The visa holder was therefore subsequently offered the position of ‘Skilled Meat Worker’ by Midfield Meat International Pty Ltd on 30 May 2019.
·The visa holder submits that it takes years of experience to become a skilled meat worker, and it was the visa holder’s over four years of experience working with Yurun Group Hefei Wanrun Food Co Ltd that enabled him to gain the relevant knowledge and skills to pass the skill assessment and be offered employment with Midfield Meat International Pty Ltd. The visa holder submits that his experience was such that he was able to start to work on the extremely busy production line at Midfield Meat International Pty Ltd as soon as he arrived in Australia, without the need to undertake further training.
·The visa holder submits that he would have had no motivation to provide incorrect information and a bogus document about his employment history, when his skills had been positively assessed by MINTRAC.
·In summary, the visa holder submits that all of the evidence that he has provided in response to the Notice, should be sufficient to verify his employment claims in his Temporary Skill Shortage visa application and to resolve any concerns. The visa holder also stated that the delegate should; ‘not to prejudice the differences between China and Australia’; should ‘look beyond the response to the interview’; and that he is hopeful that all of the new evidence that he has provided will prove the authenticity of his work experience to the Minister (or to the Administrative Appeal Tribunal, or if necessary, the Federal Court).
Assessment
I have decided that the visa holder did not comply with s101(b) and s103 of the Act.
Reasons
Based on the information outlined in Part B, and considering the visa holder’s response to the Notice, I find that the visa holder did not comply with s101(b) and s103 of the Act.
On 28 June 2019, the visa holder lodged an application for a Temporary Skill Shortage visa in which he claimed to have been employed by Yurun Group Hefei Wanrun Foods Co. Ltd as a Skilled Meat Worker since 17 December 2014. In support of his employment claims, the visa holder provided an employment reference from Yurun Group Hefei Wanrun Foods Co. Ltd, signed by Xinhua Si, dated 28 May 2019.
On 08 July 2021, the Department contacted Xinhua Si to conduct an integrity check on the visa holder’s employment claims, who advised that all employee profiles are kept on the human resources system of the parent company, Nanjing Yurun Foods Co. Ltd. On 08 July 2021, the Department contacted the human resources section at Nanjing Yurun Foods Co. Ltd who provided the following information; the visa holder’s name cannot be found in their human resources system; their human resources system keeps a record of all their employee’s profiles (both current and former employees) working in both Nanjing Yurun Foods Co. Ltd or Yurun Group Hefei Wanrun Foods Co. Ltd, who have worked for at least six months; if an employee worked less than six months, then their information is not recorded in their system; the company started to use its current human resources system in 2014; and if he had genuinely worked for their company from 2014 to 2019, then the visa holder’s employee information would have been kept in their system.
In response to the Notice, the visa holder advised that although Xinhua Si has retired, he checked his files and found out that the visa holder’s employment with Yurun Group Hefei Wanrun Food Co Ltd was actually through a contractor. The visa holder also advised that Xinhua Si found a copy of the visa holder’s Resignation Application Letter in the company archives, in which the visa holder stated that he had been working for Yurun Group Hefei Wanrun Food Co Ltd since 17 December 2014, at the time of his resignation on 29 July 2019.
I consider that it is highly unlikely that at the time the Department called to verify the visa holder’s employment claims, that in Xinhua Si’s previous position as Executive Vice President of Yurun Group Hefei Wanrun Food Co Ltd, he would not have been aware that the visa holder was employed through the contractor, ‘Mr Wu’, who held all of the visa holder’s employment records.
In response to the Notice, Xinhua Si advised that this contractor was responsible for personnel recruitment, management, and salary payment and that this is the reason the visa holder’s employment was not registered in the personnel system of Yurun Group Hefei Wanrun Foods Co Ltd. I find that the visa holder’s response directly contradicts the information Xinhua Si provided to the Department on 08 July 2021, when he advised that all employee profiles were kept on the human resources system of the parent company, Nanjing Yurun Foods Co. Ltd.
I find that the visa holder and Xinhua Si have provided insufficient evidence to verify the visa holder’s employment claims. While the visa holder has provided evidence that Yurun Group Hefei Wanrun Foods Co Ltd employed workers under a contracting arrangement, the visa holder has not provided any information from the contractor that has directly verifies his own employment claims.
On the contrary, the contractor appears to be uncontactable as his full name and contact details on the contract have been obscured (purportedly for privacy reasons).
I place little reliability on the letter purporting to be the visa holder’s resignation letter to Yurun Group Hefei Wanrun Food Co Ltd in which the visa holder stated the period of his employment.
There does not appear to be any purpose for the visa holder to have stated in his resignation letter that he had worked for the company since 17 December 2014. The resignation letter also appears to contradict the visa holder and Xinhua Si’s statements that the visa holder was employed by a contractor, as the letter was approved by Xinhua Si, as a representative of Yurun Group Hefei Wanrun Food Co Ltd, and not by the contractor.
While Xinhua Si provided a letter under the company header of Yurun Group Hefei Wanrun Food Co Ltd (dated 09 June 2023) in an attempt to clarify the visa holder’s employment arrangements, I do not consider that this response can be considered to have been provided on behalf of Yurun Group Hefei Wanrun Food Co Ltd as the letter has not been issued under the company seal.
Further, the letter has only been issued in Xinhua Si’s capacity as the previous Executive Vice President of the company, not as a current office holder or employee of the company. I do not consider that the visa holder has provided sufficient verifiable evidence that would substantiate his employment claims of having worked at Yurun Group Hefei Wanrun Food Co Ltd as stated in his Temporary Skill Shortage visa application; or as a contractor of Mr WU, in response to the Notice.
The visa holder submits that his positive MINTRAC skill assessment verifies his employment history because he would not have been able to pass the MINTRAC assessment if his employment claims were not genuine. However, I consider that the visa holder’s positive MINTRAC assessment, is a separate issue. While the positive MINTRAC assessment attests to the range of skills and abilities that the visa holder was able to demonstrate during the skill assessment process to the MINTRAC assessor, the assessment does not in of itself prove that the employment claims that he put forth in his Temporary Skill Shortage visa application (regarding the names of his employer and the duration of his employment) are correct.
Taking all of the above information into account, I am satisfied that non-compliance with s101(b) and s103 continues to exist.
PART D: DECISION WHETHER TO CANCEL (S109)
Section 109 of the Act provides:
(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.
Did the visa holder give reasons why the visa should not be cancelled?
Yes. The visa holder gave the following reasons why his visa should not be cancelled:
·He has not provided any incorrect information, nor a bogus document, to the Department in his Temporary Skill Shortage visa application.
·His positive MINTRAC assessment proves that he had the work experience that he claimed in his Temporary Skill Shortage visa application.
·The Notice has caused him great anxiety and distress which has impacted upon his concentration and his ability to do his job, which requires full focus at work handling sharp knives on an extremely busy production line.
·He has been employed in the meat industry in Australia for over three years. This is a critical industry suffering from labour shortages.
·He has become an invaluable employee of Midfield Meats International Pty Ltd and his employment is of great benefit to the local economy in a regional area.
·He has settled in Australia and established close connections to the Australian community. He regards Australia as his home and would suffer a great loss if he had to depart as a result of his visa being cancelled.
Assessment
In coming to the following assessment I have taken into account the visa holder’s response to the Notice, information before me as outlined in Part B, the Act, the Migration Regulations 1994 (the Regulations) and the guidelines set out in Procedural Instruction General visa cancellation powers (s109, s116, s128, s134B and s140) on visa cancellation.
My assessment of the visa holder’s response and all the prescribed circumstances as set out in Migration Regulation 2.41 is as follows:
(a) The correct information
As outlined in Part B, the correct information is that the visa holder was not employed by Yurun Group Hefei Wanrun Food Co Ltd from 17 December 2014 until 28 May 2019 as claimed in his Temporary Skill Shortage visa application and supporting work reference letter.
In response to the Notice, the visa holder submits that he has not provided any incorrect information or a bogus document to the Department. The visa holder stated that he was not employed by Yurun Group Hefei Wanrun Foods Co. Ltd, but that he was employed through a contractor. However, I consider that the visa holder has not provided any reliable or verifiable evidence from the contractor, or Yurun Group Hefei Wanrun Foods Co. Ltd, that substantiates his employment claims.
I give this consideration significant weight in favour of cancelling the visa.
(b) The content of the genuine document (if any)
In support of his Temporary Skill Shortage visa application lodged on 28 June 2019, the visa holder provided an employment reference from Yurun Group Hefei Wanrun Foods Co. Ltd, signed by Xinhua Si, dated 28 May 2019.
On 08 July 2021, Xinhua Si advised the Department that the parent company, Nanjing Yurun Foods Co. Ltd was responsible for keeping employee records of Yurun Group Hefei Wanrun Foods Co. Ltd employees. However, when the Department contacted Nanjing Yurun Foods Co. Ltd, their human resources section advised that the visa holder’s name could not be found in their human resources system and if he had genuinely worked for their company from 2014 to 2019, then the visa holder’s employee information would have been kept in their system.
In response to the Notice, the visa holder stated that he was not employed by Yurun Group Hefei Wanrun Foods Co. Ltd but by a contractor known as Mr WU. Additionally, Xinhua Si stated that the employment reference he signed, dated 28 May 2019, was therefore issued under the ‘brand’ of Yurun Group Hefei Wanrun Foods Co. Ltd. However, I consider that the employment reference from Yurun Group Hefei Wanrun Foods Co. Ltd, dated 28 May 2019, is counterfeit because it purports to have been issued by this company as the visa holder’s employer, when the visa holder has stated that he was employed by a contractor. I therefore consider that the employment reference is a bogus document per the definition set out at s5(1)(b) of the Act.
I give this consideration significant weight in favour of cancelling the visa.
(c) Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
I consider the decision to grant the Temporary Skill Shortage visa to the visa holder was based partly on the incorrect information and the bogus document that he provided.
As part of the criteria for the visa grant, and among other requirements, the visa holder was required to meet the requirements of subclause 482.242 of the Regulations which stated as follows:
482.242
Either:
(a) the applicant has worked in the nominated occupation or a related field for at least 2 years; or
(b) the Minister considers that it is reasonable in the circumstances to disregard paragraph (a).
The delegate assessing the visa holder’s Temporary Skill Shortage visa application was prevented from assessing the correct information related to the visa holder’s employment experience under subclause 482.242 of the Regulations, as a result of the incorrect answers and the bogus document he provided in his visa application. Given the information before the Department, it appears the visa holder was assessed under an incorrect employment history profile.
I also consider that the decision to grant the Temporary Skill Shortage visa was partly based on the visa holder having met Public Interest Criterion (PIC) 4020, which stated as follows:
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).
(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.
Note: For definition of bogus document, see subsection 5(1) of the Act.
I consider that as the visa holder provided an incorrect answer, and a bogus document, he may not have been able to meet PIC 4020. As a result, his Temporary Skill Shortage visa may not have been granted.
The submission of incorrect information and a bogus document by the visa holder appears to indicate a deliberate attempt to mislead the Department in order to obtain a visa to which he may not have been eligible.
I give this consideration significant weight in favour of cancelling the visa.
(d) The circumstances in which the non-compliance occurred
The visa holder provided incorrect information and a bogus document in support of his Temporary Skill Shortage visa application lodged on 28 June 2019. In response to the Notice, the visa holder submits that non-compliance did not occur because while he was employed for the period of time and role as per his claims, he was employed by a contractor. However, based upon the information detailed above in Part B and C, I consider that the visa holder has not provided any reliable or verifiable evidence from the contractor, or Yurun Group Hefei Wanrun Foods Co. Ltd, that substantiates his employment claims.
The visa holder has not provided any information in relation to which the non-compliance occurred as he maintains that non-compliance did not in fact occur. There is no information before me to indicate that the circumstances in which the non-compliance occurred were outside of the visa holder’s control.
I give this consideration significant weight in favour of cancelling the visa.
(e) The present circumstances of the visa holder
I consider that the visa holder may experience some emotional and psychological hardship if the visa is cancelled, as he would no longer hold a valid visa to remain lawfully in Australia. The visa holder’s wife, Li Jiao WEI (DOB: 29 September 1988), and son, Lu Yang CHEN (DOB: 14 September 2016), reside offshore and have never entered Australia as the holder of their dependant Temporary Skill Shortage visas. The visa holder submits that the Notice has caused him great anxiety and distress and is impacting upon his concentration and his ability to do his job, which he stated requires his full focus at work where he handles sharp knives on an extremely busy production line. The visa holder stated that if he has to depart Australia as the result of his visa being cancelled, he would suffer a great personal loss. He also related that; his social status as a meat worker in China was low, as was his salary; nobody cared about meat workers' safety and social security; and nobody paid superannuation, insurance or WorkCover to him. The visa holder relates that he wanted to live and work in Australia as a meat worker because of the better working conditions in Australia.
In response to the Notice, Midfield Meat International has provided a letter stating that due to the significant skills shortage of meat workers in Australia, the company needs to secure his position on a long-term basis. The visa holder submits that he is committed to living, working and dedicating himself to the Australian community.
I have considered that a decision to cancel the visa may also result in some degree of financial hardship, as the visa holder would have no work rights and therefore no legal ability to work in Australia and gain an income. As such, the visa holder may experience some financial hardship if the visa was cancelled.
I give this consideration some weight against cancelling the visa.
(f) The subsequent behaviour of the visa holder concerning their obligations under Subdivision C of Division 3 of Part 2 of the Act
According to departmental records there is no evidence the visa holder made any effort to notify the Department that he had provided incorrect information and a bogus document in his application for a Temporary Skill Shortage visa. The visa holder continues to maintain that he has not provided any incorrect information nor a bogus document to the Department.
I give this consideration some weight in favour of cancelling the visa.
(g) Any other instances known to the delegate of non-compliance by the visa holder
There are no other known instances of non-compliance by the visa holder.
I give this consideration a little weight against cancelling the visa.
(h) The time that has elapsed since the non-compliance
A period of approximately four years have elapsed since the non-compliance occurred. I do not consider that a reasonable period of time has elapsed since the non-compliance.
The visa holder has been resident in Australia since arriving as the holder of the Temporary Skill Shortage visas on 04 September 2019.
The visa holder submits that he has settled in Australia, establishing close connections to the Australian community, and that he regards Australia as his home. In support of his application, the visa holder provided a letter from Father John Fitzgerald, of St Joseph’s Parish in Warrnambool, stating that the visa holder is a pleasant and honest person and would like to settle in Australia with his wife and child to contribute further to Australian society. The visa holder’s supervisor at Midfield Meat has also provided a letter stating that the visa holder is an extremely dedicated and well respected member of the community and a valuable asset to the business. The visa holder’s friend, Leif Alcaraz, a Registered Nurse, has also provided a letter of support stating that the visa holder is of good character and that they often participate in sport competitions together such as basketball leagues.
I give this consideration some weight against cancelling the visa.
(j) Any breaches of the law since the non-compliance and the seriousness of those breaches
There is no information before me to indicate that the visa holder has breached any laws since the non-compliance.
I give this consideration a little weight against cancelling the visa.
(k) Any contribution made by the holder to the community
In response to the Notice, the visa holder submits that he has contributed to the community by being a law-abiding taxpayer and being employed for over three years as a Skilled Meat Worker in the meat industry in Australia, which suffers from critical labour shortages. He also submits that his employment in Warrnambool, a regional area of Australia, contributes to the local economy of the area.
I give this consideration a little weight against cancelling the visa.
My assessment of the visa holder’s response includes the following other matters:
·Whether there are persons in Australia whose visas would, or may, be cancelled consequentially.
The circumstances of this case are such that the following person's visas would be consequentially cancelled under section 140 of the Act:
- Li Jiao WEI (DOB: 29 September 1988)
- Lu Yang CHEN (DOB: 14 September 2016)
The Temporary Skill Shortage visas of the above individuals would be cancelled under section 140(1) of the Act, because they were granted their visas on the basis that they are members of the family unit of the visa holder. I note that the consequential cancellation under s140(1) is not discretionary and occurs by operation of law.
I give this consideration a little weight against cancelling the visa.
·Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation.
The policy guidelines require that all delegates should assess whether Australia would be in breach of its international obligations if the visa was to be cancelled. These include, among others, the obligations in relation to non-refoulement pursuant to the 1951 Convention relating to the Status of Refugees (the Refugee Convention) and its 1967 Protocol (Protocol), the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Rights of the Child (CRC), and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
There is no information before me to indicate that the visa holder has any children in Australia. The visa holder’s wife, Li Jiao WEI, and his son, Lu Yang CHEN, hold dependant Temporary Skill Shortage visas but have never entered Australia as the holder of these visas. There is no information before me regarding the care arrangements for the child, however I consider that the visa holder’s wife likely provides ongoing care for their child in China. As such, I consider that the circumstances of this case would not lead to a breach of Australia’s international obligations under the CRC in relation to observing the rights of a child in Australia.
The visa holder is a citizen of the People’s Republic of China. There is no information before me to indicate that the visa holder’s political and civil rights would be affected if his visa was to be cancelled. There is also no information before me that the visa holder has applied for a Protection visa or has made any claims in which he is seeking to engage Australia’s protection obligations.
Therefore, I do not consider that cancelling the visa would potentially lead to the visa holder being removed in breach of Australia’s non-refoulement obligations under the Refugee Convention, or in breach of Australia’s obligations under the CAT or the ICCPR.
There is also no information available before me to indicate that Australia has any other international obligations that may be impacted by the cancellation of the visa holder’s visa.
I give this consideration some weight in favour of cancelling the visa.
·Whether there are mandatory legal consequences to a cancellation decision.
If the visa was to be cancelled, the visa holder would become an unlawful non-citizen and could be liable for detention under section 189 and removal under section 198 of the Act if he does not voluntarily depart.
The visa holder would also be affected by section 48 of the Act, which would cause him to have limited options if applying for further visas while in Australia.
The visa holder may also be affected by Public Interest Criterion 4013, limiting the grant of a further temporary visa for a specified period.
I give this consideration a little weight against cancelling the visa.
·Any other relevant matters.
There are no other matters for consideration relevant to this decision.
PART E: DECISION
In view of the findings and assessment above, I have decided to cancel the visa.
…
Evidence before the Tribunal

As noted above, the applicants lodged an application for review with the Tribunal on 29 June 2023, providing a copy of the delegate’s decision and an authority by which they appointed a registered migration agent, Ms Yanqiu Dong, as their representative and authorised recipient for correspondence.
On 19 July 2023, the applicant provided copies of his statutory declaration dated 12 June 2023 and the supporting documents that he had previously provided to the Department. In addition, his agent provided the following legal submissions:
…
The Applicant held a Temporary Skill Shortage (subclass 482) visa which was granted on 29 August 2019.
On 2 June 2023 the Applicant received Notice of Intention to Consider Cancellation (NOICC) from the Department of Home Affairs to which he responded on 12 June 2023 (Statutory Declaration of the Applicant responding to NOICC).
On 28 June 2023 the Applicant received a notification of the cancellation of his visa claiming the Applicant did not comply with sections 101(b) and 103 of the Migration Act 1958 (‘The Act’).
After considering the Applicant’s response to the NOICC, the delegate representing the Department of Home Affairs (N M: Position Number 60114705) stated that the cancellation was made through the discretion available under s109.
The delegate considered that there had been non-compliance with section 101(b) and section 103 of the Act that stipulate respectively that the application form must not include incorrect answers (as defined in Sections 98-111 of the Act) or bogus documents (as defined in s5(1) of the Act.
It is those two claims of non-compliance – providing an incorrect answer and a bogus document - that form the ground of cancelling the visa under Section 109 of the Act, as stated in the Decision Record conclusion of 28 June 2023 that says (emphasis added):
It appears the visa holder has not complied with s101(b) and s103 of the Act.
If the visa holder did not comply with s101(b) or s103 of the Act in relation to his Temporary Skill Shortage visa application, his visa may be cancelled under s109 of the Act.
The Applicant’s insistence, that he did not provide any incorrect information or a bogus document in his application for a Temporary Skill Shortage visa, was considered by the delegate as further evidence the visa holder has not complied with s101(b) and s103 of the Act.
This submission claims that the Applicant did not at any stage provide incorrect information or a bogus document and the delegate of the Department gave disproportionate weight to what were considered to be two inconsistencies in an otherwise exemplary application for a Temporary Skill Shortage (subclass 482) visa. The presumed inconsistencies relate to:
• The Applicant’s naming Yurun Group Hefei Wanrun Foods Co. Ltd as his employer
• The Applicant’s statement in his employment reference that he worked for the said company from 17 December 2014 to 02 August 2019.
There is no mystery behind the inconsistencies other than those associated with the nature of Chinese company and industrial laws and employment practices and that recollections of management of the company that employed the Applicant may not have been helped by the passage of time and company upheavals happening at the time (Attachment 5).
The real mystery, that should have caused caution in deciding to cancel the visa with its grave and detrimental consequences for the Applicant and his family, is how he was able to demonstrate the skills proficiency without which he would never have been granted his visa, irrespective how good or perfect his application may have been in other respects.
The Applicant’s skill proficiency is never challenged or denied by the Decision Record, and neither is the fact challenged that those skills could only have been gained in China by the lengthy experience which the Applicant stated in his application and in a slaughterhouse such as Yurun Group Hefei Wanrun Foods Co Ltd. Yet, perversely those two critical details are used as evidence to cancel his visa, namely:
• on pages 13 of the application form for the Temporary Skill Shortage visa, under the heading “Employment history” he declared that he was Skilled Meat Worker at Yurun Group Hefei Wanrun Foods Co. Ltd, since 17 December 2014
• The Applicant’s employment reference from Yurun Group Hefei Wanrun Foods Co., Ltd, dated 28 May 2019 stated that he had worked for the company from 17 December to the present to 28 May 2019
Even if the Applicant, as alleged, had doctored one response and one document in his application for a Temporary Skill Shortage (subclass 482) visa, it would have been impossible for him to doctor or fake the experience and skills, rigorously tested as a crucial part of assessing and granting the visa.
Central to Australia’s structured and systematic skills shortage program is that the applicants must have the necessary skills as required by its economy and assessed by Australian standards and regulatory bodies.
The Applicant was granted his visa and, without any skills training in Australia, began working in the meat industry immediately upon his arrival. There is no question or suspicion in the Decision Record to cancel his visa, that the Applicant was not skill ready when he commenced work with Midfield Meat International Pty Ltd.
The evidence shows that the Applicant seamlessly and successfully integrated in a physically demanding and fast paced meat works with a deftness that would have been impossible to feign.
In other words, the Applicant’s obvious proficiency as a meat worker gave no cause for him to lie about where and how he gained those skills.
Also, given that Chinese meat workers gain their skills from lengthy experience on the job and not formal training, the Applicant had no reason to fake documentation about his work history.
Apart from alleging that the Applicant gave one incorrect response and one bogus document in his visa application, it is important to note that the Decision Record does not reveal any deceit or dishonesty by the Applicant either in China or Australia.
It would seem that procedural fairness would demand giving weight to the Applicant’s overall honesty and giving weight to the fact that there appears to be no logical reason why the Applicant would lie about how and where he gained his unchallenged and undoubted skills as a meat worker.
Background
It is important to note that despite the high skills, proficiency and stamina that Chinese meat workers like the Applicant possess, which makes them so attractive to Australian meat industry employers, they occupy a low socio-economic status in their own country.
Conversely, it is Australia’s more assured and superior work rights and conditions of employment that make it an attractive proposition for hard working Chinese meat workers.
One of the reasons why abattoir work is not attractive to Australian workers is that it’s arduous and despite high meat consumption levels, the killing and preparing of animal flesh for food probably evokes considerable discomfort.
It is not therefore accidental that Chinese meat workers feature highly in the Australian industry and are welcomed by employers who intentionally seek out and support migrants like the Applicant.
It goes without saying that Chinese workers like the Applicant have limited formal education and their knowledge and influence in their country, their community and their workplace is heavily conditioned by their low socio-economic status.
If this were not the case, they would be less susceptible to uprooting their lives and that of their families. Exploiting the only asset that they have for this purpose – skilled slaughterers and boners and capacity for hard work – they migrate to Australia which has a short supply of quality meat workers, particularly in regional and critical economic areas.
In his letter to the Department of 6 June 2023, Midfield Meat International Pty Ltd HR Officer Mick Williams is direct about the shortage of skilled meat workers in Australia and the discernable impact the Applicant has had on the business through his skills saying:
Jinglong will continue to fill a full-time position with Midfield Meat International as a skilled, qualified, and experienced meat worker, providing specialist food processing skills, supporting a critical sector providing essential services and helping Australia’s economic recovery.
Due to the significant skills shortage of meat workers in Australia, we need to secure this position with him on a long-term basis. (Attachment 11)
The Decision Record delves into, and places great store, on the relationship between the head company Nanjing Yurun Foods Co. Ltd and the contractor that managed the workforce, Yurun Group Hefei Wanrun Food Co Ltd.
In China the contractor, who effectively manages the workforce, carries out its work under the aegis of the head company as it is not registered as a company to avoid expensive, rigorous complex and continuous State monitoring.
Even though the contractor manages the workforce and has all the relevant details, the legal responsibilities remain with the legal entity which explains why Mr Xinhua Si, as Executive Vice President of the head company, Yurun Group Hefei Wanrun Food Co Ltd, would countersign the Work reference letter and Resignation letter.
Indicative of the turmoil and murkiness of the business arrangements within that company is the fact that Mr Si subsequently took legal action against the company claiming compensation that included an amount for unpaid wages. An audio recording of the court hearing on the case that Xinhua Si sued Yurun Group Hefei Wanrun Food Co Ltd for employment and salary payment following his employment termination is available, which proves the genuineness of the position that Mr Si held during his incumbency and the authority of his representation of Yurun Group Hefei Wanrun Food Co Ltd.
Decision Record: bias or blind spot
In deciding to cancel the visa the Decision Record places considerable weight on suspicions that display either an outright bias or at least a blind spot.
1st Bias or blind spot
The delegate in the Decision Record on Pp 8, Page 7 states:
I consider that it is highly unlikely that at the time the Department called to verify the visa holder’s employment claims, that in Xinhua Si’s previous position as Executive Vice President of Yurun Group Hefei Wanrun Food Co Ltd, he would not have been aware that the visa holder was employed through the contractor, ‘Mr Wu’, who held all of the visa holder’s employment records.
While the Delegate said on Pp 2, Page 6 that:
Xinhua Si has advised that although the parent company, Yurun Group Hefei Wanrun Foods Co Ltd, had overall legal responsibility including direct oversight of occupational health and safety, it managed most of its operations through its contractor who handled recruitment, and kept work records.
That means that Mr Si did not state that all the business operations were through its contractor which means there was a portion of the business managed directly by the company. Moreover, the Department officer called Mr Si many times to carry out numerous telephone interviews regarding the company’s former workers over a short period of time. As a retired executive vice president he had been under considerable stress and it is understandable that he would rather refer this matter to somebody else. Whether or not these workers worked directly under the company or through the contractor, he would rather leave it to the parent company to sort out. He never thought his answers could have brought such a significant impact on these workers’ Australian status. He would have answered more attentively if he had realized that and saved himself and the workers affected, time and trouble. To clarify the matter, he provided an clarification letter for each single former employee being investigated.
In addition the Delegate, unaware or too hurried to understand the implications of the parent company and contractor link, penalizes the Applicant for the difficulties in accessing records:
I find that the visa holder and Xinhua Si have provided insufficient evidence to verify the visa holder’s employment claims. While the visa holder has provided evidence that Yurun Group Hefei Wanrun Foods Co Ltd employed workers under a contracting arrangement, the visa holder has not provided any information from the contractor that has directly verifies his own employment claims. On the contrary, the contractor appears to be uncontactable as his full name and contact details on the contract have been obscured (purportedly for privacy reasons).
If the contractor had the authority to sign any documents, he would have signed their work reference letter at the time of their 482 visa application. The contracting system in China is different from the labour hire system in Australia. Contractors do not have business license and tax registration to operate independently, otherwise, they will operate their own business instead of contracting operation under other company’s name. The Delegate appears to be satisfied of the contracting arrangement which links the Applicant to the parent company. The Applicant has been truthful and should not be disadvantaged because of the lack of clarity in the contracting arrangement which the Delegate was not able to reveal.
2nd bias or blind spot
The Delegate also gives unfair and unjustifiable interpretation in the following:
I place little reliability on the letter purporting to be the visa holder’s resignation letter to Yurun Group Hefei Wanrun Food Co Ltd in which the visa holder stated the period of his employment. There does not appear to be any purpose for the visa holder to have stated in his resignation letter that he had worked for the company since 17 December 2014. The resignation letter also appears to contradict the visa holder and Xinhua Si’s statements that the visa holder was employed by a contractor, as the letter was approved by Xinhua Si, as a representative of Yurun Group Hefei Wanrun Food Co Ltd, and not by the contractor.
In his letter, which Mr Si has countersigned as the legal representative, the Applicant explains the timing and purpose of his resignation (Attachment 6). It must also be stressed that the Applicant submitted the letter as an official document and other than a suspicion by the Departmental officer there is no evidence in the Decision Record that it is false or contrived. Whoever the Applicant submitted his resignation to, he intended to let the director know how long he had committed himself to the business so that his resignation could be quickly approved. Otherwise, the director would not have known his commencement date without checking.
Even in an Australian context it would not be untoward to make some reference to the work history, the reason for resigning and to express goodwill to the employer in an official resignation.
3rd bias or blind spot
The Delegate in the following shows no appreciation of the passing of time and that management and company circumstances may have changed despite knowing that Mr Si was responding to the Delegate as a former manager.
While Xinhua Si provided a letter under the company header of Yurun Group Hefei Wanrun Food Co Ltd (dated 09 June 2023) in an attempt to clarify the visa holder’s employment arrangements, I do not consider that this response can be considered to have been provided on behalf of Yurun Group Hefei Wanrun Food Co Ltd as the letter has not been issued under the company seal. Further, the letter has only been issued in Xinhua Si’s capacity as the previous Executive Vice President of the company, not as a current office holder or employee of the company.
The bankruptcy and liquidation law in China requires a business to handover its company seal at the time of liquidation. It is impossible for any business director to have access to their company seal following the liquidation, let alone that Mr Si has retired since August 2021 (Attachment 15). If the letter was issued under the company seal, that would have raised serious concerns regarding the genuineness of the Clarification Letter. The delegate apparently failed to conduct research on the Chinese law and the status of the official seal after the company goes bankrupt. It is hard to understand how the delegate could expect a current officer or employee of the company to issue a letter since the company had been facing closure and reorganization in February 2021. All officers and employees of the company had been dismissed at the time of integrity check. If anyone claiming to be a current officer or employee provided such a letter for the Applicant, it would have been a fake or bogus document. The contracting relationship between the contractor and the company must have fallen apart following the business closure, the only avenue left for the Applicant to seek clarification could only be the former vice president Mr Xinhua Si, the person who signed their Work reference letter and their Resignation letter.
4th bias or blind spot
The delegate facile discounting, in the following, of the Applicant’s positive MINTRAC skill assessment, in deciding to cancel his visa, is also indicative of a bias because it casts aside the strongest fact that proves the Applicant has told the truth about his work history:
While the positive MINTRAC assessment attests to the range of skills and abilities that the visa holder was able to demonstrate during the skill assessment process to the MINTRAC assessor, the assessment does not in of itself prove that the employment claims that he put forth in his Temporary Skill Shortage visa application (regarding the names of his employer and the duration of his employment) are correct.
Although the delegate has a duty to investigate inconsistencies and even suspicions there is also a duty to consider the strong correlation between the Applicant’s lengthy meat industry experiences in China with his positive MINTRAC skill assessment.
If the delegate had considered that correlation it may have to led to question the mystery of how and where the Applicant gained his extensive and exhaustive experience as a meat worker.
This question should have loomed large in the deliberation to cancel the visa and would have provided a cautionary brake on making such a serious decision on cancelling a visa because it ‘appears’ that the visa holder has not complied with his obligations.
The Applicant gave the Department the name of the employer where he gained that experience and for how long he was with that employer, and he would have no reason to make one up.
The Applicant could not invent or manufacture at will, and at short notice, his proven skills as assessed by MINTRAC, which is irrefutable evidence of a lengthy employment in the industry.
The Decision Record is wrong in not giving that solid evidence the weight it deserves which then leaves the issue of with which employer did the Applicant gain that lengthy and skill grounding experience.
It is difficult to believe that the Applicant would have provided the name of an employer, other than the one that actually employed him. It is even more improbable that he would have nominated an employer that had not employed him when there was no need for it, nothing to gain from it and which could endanger the success of his application and thwart his aim to move to Australia with his family.
The Applicant’s response to the NOICC
In his response to the NOICC The Applicant said that his visa should not be cancelled because of the following reasons:
• that he did not provide incorrect information or a bogus document
• that his positive MINTRAC assessment attested to his skills and experience
• that the NOICC caused him stress and distress
• that in the past four years in Australia he demonstrated that he had integrated successfully, contributed economically and was valued by his employer and the community
However, the most substantial reason for not cancelling the Applicant’s visa is that the Decision Record ignores countervailing evidence to the suspicions raised thereby denying the Applicant procedural fairness.
Instead, the Decision Record relies on convoluted logic instead of fairness and common sense which could have and should have been applied.
In order to avoid having to explain the Applicant’s confirmed and verified skills and experience, the Decision Record uses the recently formed allegation to claim that the assessment of the Applicant’s original visa application was hindered by the incorrect information when it granted him visa that allowed him to be eligible to be assessed by MINTRAC. It is difficult to grasp the Decision Record reasoning that says:
The delegate assessing the visa holder’s Temporary Skill Shortage visa application was prevented from assessing the correct information related to the visa holder’s employment experience under subclause 482.242 of the Regulations, as a result of the incorrect answers and the bogus document he provided in his visa application. Given the information before the Department, it appears the visa holder was assessed under an incorrect employment history profile.
It suggests that if what was known now was known then (i.e. the allegation of incorrect information and a bogus document), the Applicant would not have been granted his visa and his skill and experience would not have come into question.
The fact is that the Applicant’s skills and experience were not and have not been found wanting and are the strongest evidence as they could not be faked or fudged.
The parent company and contractor
As a result of the integrity checks on the Applicant’s employment on 8 July 2021, the Department was satisfied that Nanjing Yurun Foods Co Ltd was the parent company of Yurun Group Hefei Wanrun Foods Co Ltd.
The Department’s allegation is primarily based on the human resources section at Nanjing Yurun Foods Co Ltd, the parent company, which said that the Applicant was not recorded as having ever worked for them.
According to the Department this contradicted the information the Applicant supplied in his employment reference. However the Department made no allowance of the possibility of any misunderstanding given the passage of time, the unknown nature of the relationship between the parent company and contractor and the strains on slaughterhouses in China with some experiencing bankruptcy.
Even in Australia confusion and complexities arose with the introduction of labour hire practices that redesigned industrial relations with confusions as to the rights of workers and the differentiation of employer responsibilities between the labour hire contractors and the company engaging them.
The Department takes issue with the fact that the contractor’s full name and contact details are not provided and he is only known as ‘Mr Wu’ but matters or commercial confidentiality are not unknown in Australia.
The Applicant should not be shouldered with suspicions about the nature of the relationship between the company and the contractor.
Clearly the Applicant was aware of the company that had legal responsibility for him even though he may not have been aware of the outsourcing of the workforce management.
The fact that the Applicant sought out Mr Si in trying to gather further proof of his employment record confirms that as far as he was concerned the authority was the company not the contractor.
In return Mr Si did not have to respond to the Applicant or the Department nor provide a statement of clarification which finishes with (Attachment 7):
I declare that the above statements are true in every particular, and if any part of the statement is found to be false, I am willing to take full legal responsibility.
This is a forthright statement and gives the necessary context that explains and confirms the employment framework that the Applicant was conditioned by.
It is difficult to understand why Mr Si would make such a statement unless it was to clarify the situation and avoid any misunderstandings that could prejudice the Applicant.
The Decision Record accepts that Yurun Group Hefei Wanrun Foods Co Ltd outsourced management of its workforce but does not consider that as proof that the Applicant was a member of that workforce (Pp 2, Page 8):
While the visa holder has provided evidence that Yurun Group Hefei Wanrun Foods Co Ltd employed workers under a contracting arrangement, the visa holder has not provided any information from the contractor that has directly verifies(d) (typing error) his own employment claims.
This is another demonstration of the Applicant’s truthfulness that has led to confirming the practice of using contractors in China, just as the Applicant’s statements led the Department to Mr Si.
Despite any suspicions or misunderstanding that have resulted, the connection between the Applicant, Yurun Group Hefei Wanrun Foods Co Ltd, the parent company, Nanjing Yurun Foods Co Ltd and Mr Si is real and established.
That connection corresponds with the Applicant’s information about where he worked and for how long, which is what the Department contests and is the basis of its claim that the Applicant provided incorrect information and a bogus document.
That connection is also indicative of the Applicant’s truthfulness for it makes no sense that once he indicated the connection with the company he would provide incorrect information and a bogus document about that connection that would prejudice him.
It is all about the skills
The Applicant was enticed out of China by Australia because of his undoubted highly developed skills as a meat worker.
These skills were tested and passed by the relevant regulatory authorities (Attachment 1, 3 & 4) and were the basis of the offer of work (Attachment 2).
The positive assessments of his skills were further proven immediately on the job with Midfield Meat International Pty Ltd where the Applicant’s position was confirmed after his six-month probationary period and his skills and performance were the centerpiece of the company’s support letter to the Department of Home Affairs of 6 June 2023 (Attachment 11).
The evidence of the Applicant’s skills is numerous and irrefutable which is why it makes no sense that he would lie about where and how he gained that proficiency as a meat worker in China.
It is clear that the Decision Record has difficulty with that which may explain why it separates the Applicant’s employment history from his skills (Pp 5, Page 8):
I consider that the visa holder’s positive MINTRAC assessment, is a separate issue. While the positive MINTRAC assessment attests to the range of skills and abilities that the visa holder was able to demonstrate during the skill assessment process to the MINTRAC assessor, the assessment does not in of itself prove that the employment claims that he put forth in his Temporary Skill Shortage visa application (regarding the names of his employer and the duration of his employment) are correct.
The Applicant’s honesty
The evidence shows that it would be out of character for the Applicant to provide incorrect information or a bogus document as claimed and on which the decision to cancel his visa is based.
The evidence also shows that it was the Applicant’s information that gave the accurate avenue for the Department’s integrity checks on his employment claims on 8 July 2021.
It was that check that led to Xinhua Si, a former executive vice president of Yurun Group Hefei Wanrun Food Co Ltd, who suggested that the Department contact human resources of their parent company, Nanjing Yurun Foods Co. Ltd.
On that same day, 8 July 2021, the Department contacted human resources of the parent company and as reported in the Decision Record:
The human resources section at Nanjing Yurun Foods Co. Ltd provided the following information: The visa holder’s employee information (i.e. name) cannot be found in their human resources system, neither in English pinyin nor in Chinese characters; Their human resources system keeps a record of all their employee’s profiles (both current
and former employees) working in both Nanjing Yurun Foods Co. Ltd or Yurun Group Hefei Wanrun Foods Co. Ltd, who have worked for at least six months. If an employee worked less than six months, then their information is not recorded in their system; The company started to use its current human resources system in 2014; If the visa holder had genuinely worked for their company from 2014 to 2019, then his employee information would have been kept in their system.
From the evidence it is clear that there is a significant managerial gap between the human resources of the parent company and the management of employees where the Applicant worked as the workshop contract shows (Attachment 8).
The Department’s checking happened two years after the Applicant had left and it is hard to believe that memories and answers to formal questions could possibly be supplied with authenticity and accuracy, especially given the disruptions happening in the meat industry in China and the parent company of the Applicant’s employer (Attachment 5, 9 & 10).
The evidence shows that the Applicant provided correct information and genuine documents and that there are plausible answers to discrepancies from the Department’s checks on 8 July 2021.
It was the Applicant's truthful details that led the Departmental officer to successfully contact the former employing company for its investigations and checks. The applicant had no cause not to disclose his employer - and did not do so. That the Department successfully contacted the employer is evidence of the connection between the Applicant and the company. All subsequent communication/correspondence between the Applicant and former employer representatives confirms a connection that could only be explained by a worker and employer relationship.
That employment relationship must have been lengthy given the Applicant’s undoubted, unquestioned, and Australian proven meat worker skills, which in China could only have been gained from experience, which according to industry estimates, take at least three years.
In the whole reporting and documentation regarding the Applicant’s Temporary Skill Shortage visa application and the visa cancellation, apart from the alleged incorrect information, regarding the names of his employer and the duration of his employment, the Decision Record recognizes that:
There are no other known instances of non-compliance by the visa holder.
There are also no suggestions that the Applicant has been anything other than an honest and hardworking Chinese citizen – a pattern that was continued in Australia as the following comments from references by the Applicant’s new community who have known him for up to four years show.
Jinglong Chen has been a member of our Warrnambool community for nearly four years. He is employed by our local abattoir, Midfield Meats, and his employment record for the whole of that time shows he is a responsible and skilled worker, using the knowledge he gained in his previous employment at an abattoir in China.
Jinglong is a pleasant and honest person. He is very grateful for the employment opportunities given him by Australia when he was granted a work visa. He would like to settle in our country with his wife and child (who are presently residing in China) so as to contribute further to our society.
I wholly support Jinglong Chen in his application for a visa. He has demonstrated to me that he is a trustworthy person and of good character.
Father John Fitzgerald (Parish Priest, Star if the Sea Parish; Attachment 12)
I am writing to inform you that I have known Jinglong since he started working for Midfield in 2019.
During this time, I found him to be an honest and trustworthy person with excellent levels of commitment and honesty.
I can confirm that he is an extremely dedicated and well-respected member of the community and a valuable asset to Midfield.
Ross Kenyon (Supervisor, Midfield Meat International Pty Ltd; Attachment 13)
I confirm that Jing Long has a good character in daily interactions and participating in activities, and he is a person who is loved and respected by everyone. He is a trustworthy, honest and reliable person, as evidenced by everyone around him. I am also honored and happy to meet such a friend.
Leif Alcaraz (NSW Registered Nurse; Attachment 14)
This too is solid evidence of the Applicant’s character over the long term and, along with his skill level that tells its own truth, should more than outweigh concerns about suspicions that have much more to do with the record keeping and practices of management of the Applicant’s former Chinese employer.
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 s5(1) of the Act. 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.
Summary
The cancellation of the Applicant’s visa is an unfair and unjust betrayal of the Applicant who was sought by Australian interests and encouraged to migrate.
He was granted the visa on the strength of his proven skills as a meat worker from years of experience in the industry, which is the only way to gain them in China.
If an application for a Temporary Skill Shortage visa was perfect in every way but the Applicant did not have the required and proven skills – the visa would never be granted.
The Applicant acquired those crucial skills (which made him eligible for the visa) in China and they were tested and recognized by the industry authority in Australia, MINTRAC.
They were also confirmed by the Applicant’s employer, Midfield Meat International Pty Ltd, in its offer of employment of 30 May 2019 in the position of boner that included a probationary period of 3 months.
Under the conditions of the employment offer was that if the employment was confirmed (which it was) at the end of the probation, “Midfield will regularly review your performance, usually on an annual basis. You will be required to participate fully in these performance reviews as required by Midfield.” (Clause 1.6; Attachment 2).
The cancellation of the visa, if allowed to pass, would also be a betrayal of the system to procure appropriate skilled migrants for critical sectors of Australia’s economy such as the meat industry.
The Applicant’s case is a success story of that program and suspicions from what is a relatively perfunctory investigation by the Department, are not sufficiently weighty to cause the upheaval to the Applicant and his family and his Australian employer.
The Applicant cannot be blamed, and definitely should not be penalised, for the quality of the feedback from the Departmental officer’s passing checks that took place years after the employment, that depended on the memory of the employer’s former management and placed faith in the employing parent company in China whose structure (parent company – slaughterhouse – contractor) was anything but transparent and designed to take advantage of workers and minimize company obligations.
The Applicant had no reason to lie and the Decision Record failed to prove that the visa holder did not comply with sections 101(b) and 103 of the Migration Act 1958.
The information and details the Applicant gave regarding the names of his employer and the duration of his employment are authentic and correct. The Applicant did not provide incorrect information in his 482 visa application form and did not give bogus documents to his 482 visa application.
There has not been non-compliance with section 101(b) and section 103 of the Act. Particulars of the ground for cancellation and information indicating the ground for cancellation does not exist. The decision to cancel his visa should be set aside.
…

On 15 September 2023, the Tribunal wrote to the applicants via their agent to invite them to attend a hearing on 18 October 2023. They were asked to provide any additional submissions and/or documents in support of their case by 11 October 2023.
On 17 September 2023, the Tribunal received a hearing response indicating that the applicant and his agent would attend the hearing. They also provided the following additional information:
·English translation of journal article by Professor Yang Peixin, Development Center of State council, Shanghai Economic Research, entitled The Contract System is a Fundamental Change in the Enterprise System, Issue 02, 1995; and
·Article from Xinhua News Agency, Beijing, 1 September 2018, entitled ‘Individual Income Tax Law of the People’s Republic of China.’
At the hearing on 18 October 2023, the Tribunal took detailed oral evidence from the applicant.
In response to the Tribunal’s query, the applicant told the Tribunal that he got the meat processing job with the Yurun Group Heifei Wanrun Food Co Ltd (‘Wanrun’) in his early 20s. he told the Tribunal that when he graduated from school, the job market was very tough, so for a few years, he helped on his family’s small farm. He had an old classmate who was working as a boner at Wanrun, who told him that there were positions there, and they were paid OK, with a big company where he could get good experience. The applicant said that he decided to apply and rang Wanrun. He initially spoke to a receptionist and was put through to the Human Resources Department, where he spoke with a Mr Wu. Mr Wu confirmed that there was a boner position available, although there might be other duties associated with the position, depending on the needs of the company and the skill level of the applicant. The applicant came in for an interview with Mr Wu, and was offered the position. He went through the induction process and commenced work there as a boner.
In response to the Tribunal’s request, the applicant said that as far as he knew, Mr Wu worked for Wanrun. He confirmed that he was not given a written contract of employment; rather, he was verbally advised by Mr Wu of the hours he was expected to work, his pay rate and his leave entitlements. He was paid for a set number of hours per week (and not paid for overtime) and he received his salary monthly in cash from the Finance Department. He did not receive payslips, just the cash to which he was entitled. When asked why he then obtained a reference letter for his employment from Wanrun from Mr Si, when all of his dealings with his employer were with Mr Wu, the applicant said that only a senior officer of the company could issue such a letter, and in this company, that officer was the Vice President, Mr Si. He therefore requested the letter from Mr Si, and he understood that he was employed by Wanrun. He was not aware until Mr Si’s most recent clarification letter in June 2023 that Mr Wu was not an officer of Wanrun but was in fact a contractor acting on behalf of Wanrun to employ employees on its behalf.
The applicant’s agent clarified that such arrangements were common in China, stating that state run enterprises (especially those running at a loss) often ‘contracted out’ aspects of their operations to contractor companies, who could operate with more freedom (as they were not subject to the same state bureaucracy as a state enterprise) but who bore the financial risks of (for example) the recruitment and HR operations of a particular enterprise. The agent said that these contractor companies were not officially recognised but were known about and tolerated (and at times, encouraged) by the Chinese central government. She emphasised that a worker in the position of the applicant (that is, a low level physical labourer in a large company) would not be aware of these sorts of arrangements as they would be focussing on their actual work and would not be privy to the commercial decisions around the structure of the enterprise.
In response to the Tribunal’s query, the applicant said that he knew that Wanrun was one company in a large group, with the parent company being the Nanjing Yurun Foods Co Ltd, but beyond that, he did not know the details of the ways in which the parent and subordinate companies were structured, and who maintained which records of employees. The applicant and his agent reiterated that his work experience with Wanrun was genuine: they asserted that without these years of experience, he would never been able to undergo a successful skills assessment in 2019 with MINTRAC, as that assessment was rigorous, in-person and the assessor was independent from his employers in China and Australia.
In response to the Tribunal’s query, the applicant said that he did not know how or why Mr Si, having ceased employment with Wanrun in August 2019, was able to access the applicant’s resignation letter in 2021, when the Department sent the applicant the NOITTA. He said that he contacted his father in China when the Department raised its concerns, and his father contacted Mr Si, who provided a copy of the applicant’s resignation letter, plus a clarificatory letter from Mr Si himself about the contracting arrangements involved in the applicant’s employment with Wanrun. The applicant’s agent noted that after leaving Wanrun in August 2019, Mr Si was involved in a lawsuit with Wanrun over having not been paid his proper entitlements, and she speculated that it might be that as part of this legal action, he kept, or had access to, Wanrun’s employee records. She acknowledged that this conclusion was speculative, but stated that no one could really say why Mr Si was able to provide this document. However, it was strongly asserted by the applicant that it was not a bogus document, and nor was the original employment reference from Mr Si.
In relation to his present circumstances, the applicant said that, had his subclass 482 visa not been cancelled, he was intending to apply for permanent residence, nominated by Midfield. Midfield had its nomination of his position approved a week before his subclass 482 visa was cancelled, but he was unable to lodge a subclass 187 visa because of the cancellation of his subclass 482 visa. The applicant said that at the time of the cancellation, he was classified at level 5 under the relevant Award, and would have been promoted to Leading Hand (the next classification at a higher level) but the cancellation of his visa prevented this. Although he held a bridging visa since his subclass 482 visa was cancelled, it permitted him to work 40 hours per week per fortnight, which was effectively half the hours he was able to work when he held his subclass 482 visa. The applicant said that this had put him under considerable financial stress, as he still had to support himself in Australia, and support his parents, wife and child in China, on half the money that he previously earned. He told the Tribunal that he was currently sharing accommodation with another Chinese family but all of his plans were up in the air due to the visa cancellation. Midfield still very much wanted him to obtain permanent residence and to continue his employment with him, and had arranged for him to work 40 hours a week, with 1 week on and 1 week off, until the situation was resolved.
The applicant’s agent submitted that there were no grounds for the cancellation, and the applicant was an asset not just to his Australian employer, but to the Australian community.
Conclusion on non-compliance
The Tribunal has considered the available evidence carefully. It considers that it is understandable that the delegate had concerns about the applicant’s claimed employment experience as a meat processor (boner) with Wanrun, given the initial information provided to the Department by Mr Si, when he was contacted in July 2021 to clarify the issue of the applicant’s claimed employment at Wanrun between December 2014 and May 2019, and the Department’s failure to have the applicant’s employment at Wanrun confirmed by its parent company, the Nanjing Yurun Foods Company Limited in 2021.
However, the Tribunal has had the benefit of receiving considerable additional oral and written evidence from the applicant and his agent addressing the apparent discrepancies identified by the delegate. In particular, it was strongly argued by the applicant and his agent that:
·the applicant was employed by a Mr Wu, who worked for a labour contract company utilised by Wanrun (and the Nanjing parent company) to hire meat processing workers, so that neither Wanrun nor Nanjing had employer liabilities towards this part of their workforce;
·the applicant was unaware of this arrangement and assumed he was employed directly by Wanrun. His work reference for his employment at this business was issued by its then Executive Vice President, Mr Si, as the authorised officer within the company with responsibility for doing so;
·the applicant only became aware of the labour contracting arrangement between Mr Wu’s company and Wanrun/Nanjing after the Department queried his work experience at Wanrun and Mr Si provided him with a clarificatory letter in June 2023; and
·the applicant did not have a written employment contract for his work as a meat processor (boner) with either Wanrun/Nanjing or Mr Wu’s company;
·however, he genuinely worked for the period claimed as a meat processor (boner) for Wanrun; and
·he would not have been able to pass the in-person skills assessment in 2019 conducted by MINTRAC, the relevant Australian assessing authority, if he had not had the work experience in his occupation that he claimed. Nor would he have been accepted by his Australian employer, Midfield, if he did not have the work experience he claimed. He had no reason to lie about the identity of his employer in China, but he was not privy to that company’s labour hire practices and arrangements.
The Tribunal records that it found the applicant a credible witness at hearing. He was able to describe in detail how he came to be employed at Wanrun, his training, duties and method of payment there, and his dealings with Mr Wu and Mr Si when he was hired, when he resigned, and when he sought confirmation of his employment there.
In addition to the applicant’s credible and detailed evidence of his duties and his employment arrangements (and his understanding of them prior to June 2023), the Tribunal was assisted by the submissions of his agent as to the use of contracting companies by large Chinese employers, particularly state-owned enterprises, for aspects of their operations such as labour-hire. It considers that the structure and arrangements discovered and described by the applicant are plausible in the context of the Chinese labour market.
The Tribunal further notes that what has been described about labour hire contractors by the applicant and his agent is also consistent with information from an independent source, the China Labour Bulletin, a publication that ‘supports and actively engages with the emergent workers’ movement in China.’ While it is headquartered in Hong Kong, it states that it employs more than a dozen full-time staff from mainland China, Hong Kong and overseas and its staff are described as having decades of experience of labour relations in China: About Us | China Labour Bulletin (clb.org.hk)
In an article entitled ‘Workers’ rights and labour relations in China,’ dated 10 July 2023, the China Labour Bulletin makes the following observations (Tribunal’s emphasis underlined):
…
The development of labour law in China
As China moved from a planned economy to a more market-oriented one since the Reform and Opening-up period, the “iron rice bowl” employment system of lifelong contracts was replaced by termed labour contracts. The government gradually introduced a broad range of legislation to regulate labour relations and stipulate the rights and obligations of both employers and employees. The aim of much of this legislation was to gradually bring China into line with international standards and facilitate the country’s entry into and participation in global economic entities such as the World Trade Organization.
The first two major pieces of legislation were the 1992 Trade Union Law and 1995 Labour Law, which established the fundamental rights of workers to be paid in full and on time, receive overtime payments and paid leave, and, crucially, to be represented by a trade union.
In the 2000s, these basic rights were added to with the introduction of a wide-ranging and comprehensive body of legislation covering work safety, work-related injury insurance, employment contracts, workplace discrimination, labour dispute arbitration and mediation, and the role of enterprise trade unions.
By far the most important, and controversial, new law to be implemented during this period was the 2008 Labour Contract Law. The law specifies that workers are entitled to a detailed written employment contract when they are hired and severance pay (based on length of employment) if they are laid off. Prior to the passage of the Labour Contract Law, domestic and international business communities waged an intense lobbying campaign to water down the bill, but the bill was still passed. During the intervening period before the effective date of the Labour Contract Law, a large number of companies dismissed older employees and signed new labour contracts with workers to avoid the requirements of the law.
After the law was formally implemented, employers exploited every loophole possible to avoid compliance. One such measure is to hire workers on an agency basis, essentially considering workers as contractors exempt from the provisions of the law, rather than employees who require an employment contract. In fact, many workers were laid off and then immediately rehired on an agency basis after law passed. The failure of employers to abide by the intent of the law is further illustrated by the National Bureau of Statistics survey of migrant workers in 2009, which showed that only 42.8 percent of migrant workers had signed a contract with their employer. By 2016, that proportion had dropped to just 35.1 percent.
The Labour Contract Law was amended in 2013, in an attempt to fix the loopholes related to the hiring of agency labour. But employers continue to evade their legal responsibilities and lobby the government to relax certain provisions of the law that, they claim, restrict the hiring and firing of employees. At present, some enterprises not only use labour agencies, but also develop other ways to avoid the formal labour relationship between employees and enterprises, such as through contracting agreements and labour outsourcing, and some enterprises even require employees to register as independent self-employed workers and sign service agreements that are not labour contracts.
…
Workers’ rights and labour relations in China | China Labour Bulletin (clb.org.hk)
In the Tribunal’s view, this is consistent with the position articulated by the applicant.
Having considered the available evidence, the Tribunal is satisfied that the applicant did in fact have the employment experience he claimed to have between 2014 and 2019 with Wanrun as a meat processor (boner) (albeit he was hired and paid via an undisclosed third party contractor company). It is satisfied that the applicant himself was unaware of the contracting arrangement until 2023, and that he genuinely believed he was a direct employee of Wanrun at the time that he completed his visa application claiming this. To all intents and purposes, he was working for Wanrun in the capacity he claimed to be. The Tribunal does not consider the internal company arrangements between the labour hire company of Mr Wu and Wanrun/Nanjing to undermine the applicant’s claims in this regard.
Given this finding, the Tribunal accepts that the applicant’s reference letter from Mr Si is genuine, and finds that it is not a bogus document. It is also satisfied that the applicant did not give incorrect information concerning his Chinese employment experience in his subclass 482 visa application, as the advice he gave was correct to the best of his knowledge at that time, and was in essence correct in any case, as he did undertake the meat processing work for Wanrun for the period claimed, regardless of what corporate entity paid him to do so.
For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s 107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.
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 applicants.
Alison Mercer
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.

[2023] AATA 3769

31 October 2023

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