CHI (Migration)

[2024] AATA 1087

CHI (Migration) [2024] AATA 1087 (25 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yongsheng CHI

REPRESENTATIVE:  Mr Min Wang

CASE NUMBER:  2314435

HOME AFFAIRS REFERENCE(S):          BCC2021/1434737

MEMBER:Bridget Cullen

DATE:25 March 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 25 March 2024 at 7.00pm

CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – ground for cancellation – incorrect information in visa application – employment experience – Skilled Meat Worker (Boner) – bogus document – employment reference – additional oral and written evidence – credible witness – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 103, 107, 109

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the Applicant’s Subclass 482 - Temporary Skill Shortage visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the Applicant 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 issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The Applicant appeared before the Tribunal on 30 January 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The Applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with 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.

7. 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.

8. In the present matter, 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.

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

9. 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. The non-compliance identified and particularised in the s 107 notice was non-compliance with both s 101(b) and s 103 of the Act. The particulars of the alleged non-compliance are:

   ·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 Heilongjiang Binxi Group Co. Ltd as a skilled meat worker/boner between June 2012 and September 2019 but that the company had said that the Applicant had actually worked between 2017 to 2019 (but could not provide precise dates or months for his 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 27 September 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.

10. 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 for seven years (rather than just from 2017 to 2019), 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

11. The Applicant responded to the Department’s Notice of Intention to Consider Cancellation, and raised several arguments, which he has now raised before the Tribunal. The Applicant has maintained that there is no ground for cancellation, as he says 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.

12. The Applicant submits that:

    • He was employed by Heilongjiang Binxi Cattle Co. Ltd. as a Boner on a fulltime

    basis from 01 June 2012 to October 2019, not just from 2017 to 2019. During this
    period, the Applicant says that he only took leave for family and emergency purposes.

    • The timing of the Department’s integrity checks - one year and eight months after the Applicant’s Temporary Skill Shortage visa was granted, has created a barrier to the Applicant’s ability to respond.

    ·He disputes that he could have stated that he did not have an employment contract with Heilongjiang Binxi Cattle Co. Ltd. because he, in fact, had an employment contract for the period between 2012 and October 2019. He submits that the most plausible explanation for the answer that he is recorded to have provided to the Department is that he may have thought that the Department was asking if he still had a copy of the employment contract, to which he would have answered “No”, because he no longer possessed a copy of it.

    ·He also refuted that he could have stated that he only worked for Heilongjiang Binxi Cattle Co., Ltd ‘sporadically’ since 2012, as he submits that he only took leave from work to visit his family for emergencies or family matters. However, he is no longer in a position to recall the particulars of the conversation.

    • The Applicant was paid cash, did not need to pay tax in China as his income was below the tax threshold, and did not retain his Employee ID following resignation from Heilongjiang Binxi Cattle Co.
    • Zhang Mengnan, the Human Resource Manager of Heilongjiang Binxi Cattle Co. who signed the Applicant’s reference, resigned in 2020. The Applicant contacted his direct supervisor, Su Tongtao after receiving the Department’s NOICC. Su Tongtao told the Applicant that Deng Yanan took over Zhang Mengnan’s role in April of 2020.
    • The Applicant submits that Deng Yanan advised that when the Department called,

    she only searched recent information. Ms Yanan later realised this was not correct.  Dang Yanan provided a letter in her current capacity of ‘HR personnel’ on behalf of Heilongjiang Binxi Cattle Co., Ltd certifying the following:

    ·The Applicant was previously employed as a Boner by the company from 01 June 2012 until his resignation on 29 October 2019 when he left to work overseas.

    ·During his employment, the Applicant signed a labour contract with the company, which was held by the visa holder and the company respectively.

    ·Heilongjiang Binxi Cattle Co does not regularly file workers’ contracts with the local Labour Bureau. When the Applicant resigned in October 2019, it was no longer necessary to retain a copy of the contract.

    • In circumstances where Zhang Mengnan did confirm that the Applicant worked for   Heilongjiang Binxi Cattle Co, more weight should have been given to the explanation given by Deng Yanan and Su Tongtao for the disparity in dates. Su Tongtao provided an employment reference letter in his capacity as Workshop Director, confirming that the Applicant worked for the company from June 2012 to October 2019 as a Boner. Su Tongtao has worked for Heilongjiang Binxi Cattle Co since August 2006, and is well placed to confirm the Applicant’s employment.
    • The employment reference from Heilongjiang Binxi Cattle Co., Ltd was affixed with the company seal.

13. The Applicant has been working as a meat worker at Teys Australia Biloela factory since arriving to Australia in January 2020. He explained that he would not have been able to manage this difficult work without the skills and experience that he acquired at Heilongjiang Binxi Cattle Co. Ltd., over many years.

    Applicant’s Evidence in the Tribunal

14. The Applicant’s representative provided comprehensive written submissions to the Tribunal, dated 23 January 2024, annexing the following additional supporting documents:

    ·Statement of Yanan Deng, addressing the answer she provided during the integrity check, dated 29 December 2023, and enclosing the following document’s relevant to the Applicant’s employment with Heilongjiang Binxi Cattle Co. Ltd.:

    oApplication Registration Form dated 29 May 2012;

    oSalary record table (2012 – 2019);

    oEmployee card;

    oTraining records from 2015 and 2016;

    oLabour contract (1 Jun 2015 - 31 May 2018);

    oResignation approval form - dated 27 Sep 2019

    ·Article 50 of labour contract law of China (regarding contract record keeping) - retrieved online 19 Jan 2024;

    ·Certificate of employment for the Applicant’s former supervisor, Tongtao Su by Yanan Deng, dated 29 Dec 2023;

    ·National identity card of Tongtao Su;

    ·Employee card of Tongtao Su;

    ·Evidence of the Applicant’s living expenses records and delivery address in Bin County during his employment with Heilongjiang Binxi Cattle Co. Ltd;

    ·Train ticket booking records from 2017 (between city of employment and Applicant’s hometown);

    ·Letter of support from Applicant’s current employer, Teys Biloela Meatworks, dated 15 January 2024; and

    ·Letter of support from Jeffery & Marie Austin, dated 16 January 2024.

    Conclusion on non-compliance

15. 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 Skilled Meat Worker (Boner) with Heilongjiang Binxi Cattle Co. Ltd., given the initial information provided to the Department by Ms Yanan Deng, when she was contacted in July 2021 to clarify the dates of the Applicant’s claimed employment.

16. However, the Tribunal has had the benefit of receiving considerable additional oral and written evidence from the Applicant. This additional information corroborates what the Applicant, Ms Deng, and Mr Tongtao Su have consistently said – that the Applicant was employed as a Boner between 2012 and 2019.

17. The Tribunal thinks it significant that this is a matter where the Department’s concern was not whether the Applicant had ever worked for Heilongjiang Binxi Cattle Co. Ltd., but rather centres on what the precise dates and duration of his employment were. The Applicant did not stand to benefit from claiming that his employment was longer, as he needed to demonstrate that he had 2-years of full-time experience in order to meet the visa eligibility requirements.

18. The Tribunal considers the explanation offered – that Ms Deng did not know the Applicant when initially contacted and where she had replaced the previous Human Resources Manager, and did not have immediate access to all of the relevant employment records, to be plausible. There are additional pieces of employment related evidence now before the Tribunal indicating that the Applicant engaged in training, and had an employment contract from at least 2015. The Applicant’s evidence has been consistent throughout the Department and Tribunal proceedings.

19. The Tribunal finds the combination of the Applicant’s Direct Supervisor’s evidence (Mr Su), together with Ms Deng’s evidence explaining her initial error during the integrity check, to be persuasive. The Applicant’s evidence was logical, straightforward, and supported by additional employment documentation indicating that his employment spanned a lengthy period as claimed. The Tribunal found the Applicant to be a credible witness, as he was able to explain the circumstances surrounding his employment, including his living arrangements at the time, as well as detailing the great efforts that his parents (back in China) had gone to in an effort to help him locate the information he needed, some years after the fact.

20. The Applicant has, from the beginning, claimed that he did not tell the integrity check officer that he was working sporadically on a leisure basis. The Applicant has said that he did not say that he had not signed a contract with Heilongjiang Binxi Cattle Co. Ltd.. The Tribunal observes that the Applicant’s first language is not English, and also that he was asked to comment on these matters more than three years after his visa was granted.

21. The Applicant was sufficiently confused by the Department’s initial email to him asking that he confirm his contact details, that he did not respond believing that he had received a scam email. If the Applicant had engaged in fundamental dishonesty of the variety described in the NOICC, the Tribunal thinks it more likely that the Applicant would have believed that the Department’s initial correspondence was not a scam, but that his false claim has been discovered. The tenor of the correspondence from the Applicant about his concerns the Department’s email was a scam is consistent with the Applicant having a clear conscience in respect of his claimed employment and visa status generally.

22. Having considered the available evidence, the Tribunal is satisfied that the Applicant did in fact have the employment experience he claimed to have working at Heilongjiang Binxi Cattle Co. Ltd. as a Boner on a fulltime basis from 01 June 2012 to October 2019. Given this finding, the Tribunal accepts that the Applicant’s reference letter from Heilongjiang Binxi Cattle Co. Ltd. is genuine, and finds that it is not a bogus document.

23. The Tribunal 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, as he did undertake work as a Skilled Meat Worker (Boner) with Heilongjiang Binxi Cattle Co. Ltd., for the period claimed.

24. 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

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

    Bridget Cullen
    Senior 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.

    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.