CHI (Migration)

CHI (Migration) [2023] AATA 2700 (26 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Wenbo CHI
Mrs Xiaoli Bi
Mr Zhaochen Chi
REPRESENTATIVE:  Ms Fang Liu (MARN: 1463212)
CASE NUMBER:  2118821
HOME AFFAIRS REFERENCE(S):          BCC2020/2696345
MEMBER:Peter Emmerton
DATE:26 July 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the applications for Employer Nomination (Permanent) visas for reconsideration with the direction that the first named applicant meets the following criteria for Subclass 186 - Employer Nomination Scheme visas:
·Public Interest Criterion 4020 for the purposes of cl 186.213(1) of Schedule 2 to the Regulations

Statement made on 26 July 2023 at 12:25pm
CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – a bogus document or false or misleading information – work reference may be false or misleading in relation the applicant’s skills – applicant was fully qualified and experienced – not sufficient evidence to conclude that the applicant has given, or caused to be given a bogus document, or information that is false or misleading – PIC 4020(2B) is met – decision under review remitted
LEGISLATION
Migration Act 1958, ss 65, 375
Migration Regulations 1994, Schedule 2, cl 186.213, Schedule 4, Public Interest Criterion (‘PIC’) 4020
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Trivedi v MIBP [2014] FCAFC 42
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 25 November 2021 to refuse to grant the applicants Employer Nomination (Permanent) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 24 November 2020. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl 186.213(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because they believed that the visa applicant had provided or caused to be provided, a bogus document or false or misleading information in relation to this visa application. Therefore PIC 4020 is not satisfied and subsequently the requirements of 186.213(1) can-not be satisfied.
The applicant appeared before the Tribunal, via video, on 26 July 2023 to give evidence and present arguments. The Tribunal also took evidence from Mr Jason Downing, the applicant’s General Manager and Ms Xiaoli Bi.
The Hearing was conducted with the assistance of an interpreter fluent in the English and Mandarin languages.
The applicants were represented in relation to the review.
The Tribunal notes there is a Non-disclosure Certificate, (NDC) issued under s.375A. The Tribunal does not consider it relevant in its deliberations in this case and has not considered the information contained within the certificate when considering this case nor disclosed the information covered by the Certificate. The applicant was advised that the Certificate existed and was asked if they wished to comment or respond. The offer was declined.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 186.213(1) for the grant of the visa. Broadly speaking, this requires that:
·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and
·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and
·the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and
·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA).
The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.
The Tribunal has read and carefully considered the following evidence presented to the Department prior to the hearing.
·Covering letter (EMAIL) - POINT_OF_CONTACT EMANUELA RENDINA
·IMMI Bridging Visa Grant Notification
·Covering letter (EMAIL) - POINT_OF_CONTACT EMANUELA RENDINA
·IMMI Bridging Visa Grant Notification
·Covering letter (EMAIL) - POINT_OF_CONTACT EMANUELA RENDINA
·IMMI Bridging Visa Grant Notification CHI, ZHAOCHEN
·Covering letter (EMAIL) - POINT_OF_CONTACT EMANUELA RENDINA
·System Generated PDF File-EGOQI1T0VF_application
·CHI, ZHAOCHEN, 07 JAN 2010-Birth Certificate
·CHI, WENBO, 08 APR 1982-Employment Contract
·CHI, WENBO, 08 APR 1982-Australian Federal Police Clearance
·BI, XIAOLI, 04 FEB 1980-Marriage Certificate
·CHI, WENBO, 08 APR 1982-Overseas Police Clearance
·BI, XIAOLI, 04 FEB 1980-Australian Federal Police Clearance
·BI, XIAOLI, 04FEB1980-Overseas Police Clearance - National
·CHI, WENBO, 08 APR 1982-Pearson Test of English Academic
·CHI, WENBO, 08 APR 1982-Passport-ENS-AP.PDF
·BI, XIAOLI, 04 FEB 1980-Passport-ENS-AP.PDF
·CHI, WENBO, 08 APR 1982-Resume-ENS-AP.PDF
·CHI, WENBO, 08 APR 1982-Skills Assessment-ENS-AP.PDF
·CHI, WENBO, 08 APR 1982-Skills Assessment-ENS-AP.PDF
·CHI, ZHAOCHEN, 07 JAN 2010-Passport-ENS-AP.PDF
·CHI, WENBO, 08 APR 1982-Form 956.pdf-ENS-AP.PDF
·CHI, WENBO, 08 APR 1982-Birth Notarial Certificate Wenbo Chi
·CHI, WENBO, 08 APR 1982-ID -WENBO CHI.pdf-ENS-AP.PDF
·CHI, WENBO, 08 APR 1982-Other -Photo Wenbo Chi.pdf-ENS-AP.PDF
·BI, XIAOLI, 04 FEB 1980-Birth Notarial Certificate Xiaoli Bi
·BI, XIAOLI, 04 FEB 1980-ID XIAOLI BI.pdf-ENS-AP.PDF
·Request for Health Examinations - GUO, CHENGYING.PDF
·Covering letter (EMAIL) - POINT_OF_CONTACT EMANUELA RENDINA
·s56 Request for More Information CHI, WENBO.PDF
·s56 Request for More Information -Request Checklist and Details
·Covering letter (EMAIL) - POINT_OF_CONTACT EMANUELA RENDINA
·GUO, CHENGYING, 10AUG2005-Birth Certificate of Chengying Guo
·FW QP1 186 Spon Nom Visa APPL ID-175642034 ENGLISH LANGUAGE
·CHI, WENBO, 08 APR 1982-Email to case officer regarding PTE
·CHI, WENBO, 08 APR 1982-Email to Management team regarding PTE
·CHI, WENBO, 08 APR 1982-Other Agent - Letter of Support English Requirement
·English requirement QP1 186 Spon Nom Visa APPL ID- ENGLISH LANGUAGE
·CHI, WENBO, 08 APR 1982-IMMI Approval of PR Nomination Wenbo CHI.pdf
·BI, XIAOLI, 04 FEB 1980-BI XIAOLI-Request VAC2 Invoice .pdf-ENS-AP.PDF
·CHI, WENBO, 08APR1982-BI XIAOLI-Request VAC2 Invoice .pdf-ENS-AP.PDF
·s56 Request for More Information- BCC2020 2696345 - 175642034 - CHI, WENBO.PDF
·s56 Request for More Information-BCC2020 2696345-175642034-Request Checklist
·Covering letter (EMAIL) - POINT_OF_CONTACT EMANUELA RENDINA
·GUO, CHENGYING, 10AUG2005-Form 815-Health Undertaking - GUO CHENGYING
·REQUEST FOR VAC2 APPLICATION ID 175642034 Wenbo CHI
·RE re 186 visa application - CHI, WENBO (08 04 1982,M) - request for update
·CHI, WENBO, 08 APR 1982-International English Language- (IELTS)-ENS-AP.PDF
·IMMI s64 Request for 2nd VAC - CHI, WENBO.PDF
·Invoice.PDF
·Covering letter (EMAIL) - POINT_OF_CONTACT EMANUELA RENDINA
·Re 186 visa application - CHI, WENBO (08 04 1982, M) - request for update
·Re REQUEST FOR VAC2 APPLICATION ID 175642034 Wenbo CHI
·Courtesy Email - Emails not intended for the Department
·VAC2 invoice issued Wenbo CHI - BCC2020 2696345.EML
·CHI, WENBO, 08APR1982-VAC2 Payment made
·VAC2 paid - BCC2020 2696345 - 175642034 - CHI, WENBO.EML
·VAC2 paid - BCC2020 2696345 - 175642034 - CHI, WENBO.EML
·Request to finalise application IMMI s64 Request for 2nd VAC - CHI, WENBO
·Request to finalise application - CHI, WENBO.EML
·IMMI s57 Natural Justice - CHI, WENBO.PDF
·Covering letter (EMAIL) - POINT_OF_CONTACT EMANUELA RENDINA
·IMMI Cover Letter - Visa - EMAIL - CC.HTML
·CHI, WENBO, 08 APR 1982-Wenbo CHI Skilled Assessment Certification
·CHI, WENBO, 08 APR 1982-Wenbo CHI Record of Assessment.pdf-ENS-AP.PDF
·CHI, WENBO, 08 APR 1982-Cannon Hill Services MINTRAC Procedure 02-2017
·CHI, WENBO, 08 APR 1982-Employment Reference Cannon Hill.pdf-ENS-AP.PDF
·CHI, WENBO, 08 APR 1982-A Letter to the Department of Home Affairs from ZHANG
·CHI, WENBO, 08 APR 1982-Shopping Records with Delivery Address of Factory Locatn
·CHI, WENBO, 08 APR 1982-Letter of Support-Neil Carstens Cannon Hill.pdf
·CHI, WENBO, 08 APR 1982-Letter of support-Cannon Hill - ACC HR.pdf-ENS-AP.PDF
·CHI, WENBO, 08 APR 1982-Letter of Support - Representative Agent - Wenbo Chi
·CHI, WENBO, 08 APR 1982-Personal Natural Justice Response statement - Wenbo Chi
·Response to NJ added to Immi - CHI, WENBO.EML
·CHI, WENBO, 08 APR 1982-CHI WENBO sponsor letter of support.pdf-ENS-AP.PDF
·Refusal Notification/Decision Record-BCC2020 2696345-175642034-CHI, WENBO
·Covering letter (EMAIL) - POINT_OF_CONTACT EMANUELA RENDINA - HTML
·[NDC SENSITIVE] COI - CHI Wenbo.PDF
·[NDC SENSITIVE] Referral Outcome - CHI, WENBO.PDF
·Action Required AAT files - NDC Review ICSE notes - BCC2020 2696345.MSG
·[NDC SENSITIVE] ICSE Notes - CHI Wenbo.PDF
·[NDC CERTIFICATE] - CHI Wenbo.PDF
The Tribunal has read and carefully considered the following evidence presented to the Administrative Appeals Tribunal (AAT).
·Standard copies of Passports/Marriage Certificate – not substantive submission
·Representative Statement dated 15 May 2023
·Approval of a Nominated Position as an Approved Appointment in the ENS Nomination (Labour Agreement) dated 5 January 2021
·Support letter for Zhaochen Chi dated 13 July 2023
·Kelvin Grove State College report for Zhaochen Chi for Semester 1 2022
·Photographs of applicants in Australia
·Statutory Declaration by Wenbo Chi dated 19 July 2023
·Representative submission dated 20 July 2023
·Applicants’ identity documents
·Wenbo Chi Resume’
·Letter by Zhijie Zhang (translation and original) dated 1 August 2021
·Personal statement by Wenbo Chi (translation and original) dated 27 July 2021
·Dachang Hui Autonomous Xiadian Jingjiayuan Meat Processing Plant business registration documents
·Online shopping records with delivery address of factory location
·Photographs taken at Jialong
·Support letter from Australian Country Choice – Cannon Hill Operations dated 11 July 2023
·Employment confirmation letter from Australian Country Choice Production Pty Ltd dated 2 August 2021
·Employment contract with Australian Country Choice dated 2 December 2016
·Wenbo Chi income statements 2018 to 2023
·Support letter by Shiung Li (supervisor) – undated
·Support letter by Neil Carstens (Process Improvement/Production Manager) of Australian Country Choice dated 4 August 2021
·Support letter for Zhaochen Chi from Mr Brendan Mackney of Kelvin Grove State College dated 13 July 2023
·Support letter by Wei Ren (boner) dated 13 July 2023
·Statutory Declaration by Guozhi Yao (slicer) dated 13 July 2023
·Support letter by Chengquan Zhang (friend) dated 15 July 2023
·Support letter by Glenda Bauman (neighbour) dated 15 July 2023
·Brisbane City Council rates pertaining to visa applicant’s home - July to September 2023
Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?
The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and the term ‘bogus document’ is defined in s 5(1) of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.
The requirement in PIC 4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant: PIC 4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.
While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42.
The applicant had provided information, in support of the subclass 457 visa application dated December 2016 which was granted by the Department on 25 February 2017 and the applicant held this visa in the 12 months before the current application was made. Information provided included a Work Reference (CLD2016/37353534-Letter/Statement - Business/Employer-Employment Reference Wenbo Chi.pdf-LSP). This document refers to the applicant’s employment at a business named Dachang Hui Autonomous County Xiadian Jingjiayuan Meat Processing Factory, from January 2012 in the position Slaughterer/Boner.
The delegate claimed that as a result of routine checks of the applicant’s work experience for the purposes of assessing the current application, the Department received information which indicates that information contained in the above-mentioned work reference may be false or misleading in relation the applicant’s skills.
A Departmental officer contacted the company on 18 June 2021 on the telephone number 15075467666 which is claimed to be obtained from the Aiqicha website. No response was achieved. The officer subsequently called the claimed referee Mr Zhang Zhijie. A male person claiming to be that person answered the phone call.
The delegate stated the following in their decision dated 25 November 2021. ….. ‘As the referee Mr Zhang could not provide a consistent account of the applicant’s employment hours, duties or the period of employment, and that the information provided is inconsistent with the information supplied to the department, it leads me to suspect that there is evidence that the applicant has been given, or caused to be given to the department a bogus document, and /or information that is false or misleading in a material particular.’ …..
The delegate subsequently concluded that the applicant has given a bogus document, and/or information that is false or misleading in a material particular in relation to a visa that the applicant held in the period of 12 months before the application was made. Therefore, they were not satisfied that the applicant meets the requirements of PIC 4020(1)(b).
PIC 4020(4) gives the delegate discretion to waive the requirements of PIC 4020(1)(b). Having considered whether there are compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, that justify the grant of the visa, the delegate, on behalf of the Minister, concluded in the negative.
The applicant was invited on 21 July 2021 to comment under section 57 as to the delegate’s preliminary view that false evidence was provided in his 457-visa application and was thus failing to satisfy the requirements of PIC 4020(1). He was in addition asked to identify compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, that would justify the granting of the visa.
On 18 August 2021, the following documents were provided in response to the invitation to comment:
- Skilled Assessment Certification and Assessment Record from Todd Brooks, MINTRAC Assessor dated 18/06/2020;
- MINTRAC procedure document - Cannon Hill Services;
- Employment reference – Cannon Hill Services – Kate Meadows, HR Officer ;
- Letter to the Department – Zhang Zhijie – referee on work reference dated 01/08/2021;
- Online Purchase records of Equipment – Wenbo CHI, for the periods of 11/10/2015 – 03/07/2016;
- Reference – Australian Country Choice – Neil Carstens Process Improvement/Production Manager dated 04/08/2021;
- Confirmation of Employment – Australian Country Choice – Alison West HR Officer dated 02/08/2021
- Letter of Support – Emanuela Rendina – Registered Migration Agent, dated 18/28/2021
- Personal Statement – Wenbo CHI, dated 27/07/2021
- Letter of Support – Australian Country Choice -Rick Jurd – HR Manager Cannon Hill, dated 05/29/2021.
The delegate concluded the following, having decided that little weight should be given to Mr Zhang’s statement nor any of the other evidence presented, as they were not accompanied by any additional evidence that the applicant was employed by Dachang Hui Autonomous County Xiadian Jingjiayuan Meat Processing Factory in the claimed period.
‘I have considered the information initially provided by Mr Zhang to the departmental officer
on 18 June 2021 and the claims that are outlined in the letter dated 01 August 2021. I note
the inconsistent and contradictory information that has been provided by Mr Zhang on both
occasions. I have concerns with the identity, credibility and reliability of this claimed work
referee. I give no weight to the letter provided by Mr Zhang, as it does not prove to me that
the applicant was employed with the business.
I have considered the other document’s provided in response to the natural justice letter.
These document’s without any other official evidence to support the applicant’s employment
at Dachang Hui Autonomous County Xiadian Jingjiayuan Meat Processing Factory do not
demonstrate that the applicant indeed was employed by Dachang Hui Autonomous County
Xiadian Jingjiayuan Meat Processing Factory. in the position of Slaughterer/Boner. Hence, I
place little weight on the documents.
I am not satisfied that the responses and additional evidence provided by the applicant
alleviates the concerns surrounding the legitimacy of the applicant’s claimed employment
experience for the subclass 457 visa application.
Based on the evidence and information before me, I find that the applicant has given
information that is false or misleading in a material particular in relation to a visa that the
applicant held in the period of 12 months before the application was made. Therefore, I am not satisfied that the applicant meets PIC 4020(1)(b).

The Tribunal has carefully considered both the written response of the visa applicant and the response from Mr Zhang. It has concluded that it is equally valid to assess the responses in a positive manner as was the delegate’s decision to assess them in the negative. This was reinforced by the forthright evidence provided at the hearing.
The applicant has presented a cogent argument as to why the legal representative of the factory when, considering the fact that the applicant was a grass roots employee who had left the organisation in excess of 4.5 years prior, would be unable or indeed should not answer the questions without notice, of an individual purporting to be an Australian Embassy official on the end of a telephone. The Tribunal notes the conditions which would not have allowed verification of the bona fide nature of the enquiry. This was explored during the hearing.
The Tribunal acknowledges as probable the claim made by the visa applicant that China is experiencing a high frequency of scamming phone calls attempting to commit criminal fraud by obtaining personal information. This claim has been made by a substantial number of individuals appearing before the Tribunal over many months. The Tribunal notes this is exactly the same escalating scenario being experienced in Australia at the current time. The Tribunal notes that the advice provided by the Australian Government and security experts to Australian residents and citizens, is to avoid providing any sensitive information or personal data unless you can verify the authenticity of the caller. A concept reasonably expected to be applicable in this instance.
The Tribunal notes the following statement made to the Department by Mr Zhijie Zhang, the representative and Manager of Dachang Hui Autonomous County Jialong Meat Products Co. Ltd. This letter is dated 1 August 2021. The Tribunal notes the delegate’s decision to disregard this statement as unverifiable.
‘In the telephone interview on 18 June 2021, I was asked if I had provided Wenbo CHI’s work certificate, and Wenbo CHI informed me the inquiry letter that he received from the Australian Department of Home Affairs pointed out “ he (Zhijie ZHANG) did not respond to the question whether he provided a work reference to the applicant or not”. I want to explain this here. When the departmental officer asked me this question, I did not immediately confirm that it was issued by me, but I also did not deny it. As far as I am concerned, since the reference is on our company’s letterhead with my signature and seal on it, it must be provided by me obviously. Moreover, I do not understand why the officer questioned the authenticity of this point. For me, this question was a denial of me and made me feel disrespected. Therefore, at that time, I only confirmed that Wenbo CHI used to be an employee of our factory, but I did not give a direct response to the work reference. However, since this issue was raised in the inquiry letter and as a reason for questioning the authenticity of Wenbo CHI’s visa application, please allow me to confirm here that the work reference of Wenbo CHI in our factory was indeed provided by me on 2 December 2016.
In addition, regarding the job responsibilities and average working hours of Wenbo CHI: As a small factory, many employees work in several positions to save labour costs. Wenbo CHI’s main position was a boner, but the factory also arranged for him to do slaughtering work when we were very busy. Therefore, I indicated “the applicant’s main duties and responsibilities were slaughtering and debonding the livestock” in the phone interview. His average daily working hours were 10, but on very busy days it is likely to be 12 hours or more, for which the factory sometimes gave some subsidies to employees. So, his weekly working hours were unfixed and flexible. That is the reason I did not provide the average working hours in the phone interview.
Furthermore, I used to explain to the Australian Department of Home Affairs in the form of a statement about the labour contract, payslip, social security, and temporary residence permit that were questioned by the departmental officer. Now let me explain it again here. Employees in our factory are paid in cash instead of through banks, and there is a large turnover of employees, so it is convenient to pay cash, and employees also like cash. We also do not pay social security for our employees, which we have informed the workers in advance before they are hired. Most of the workers are not highly educated, they do not care about the labour contract or social security, and they only care about whether they get a salary. And a job without the salary being paid in arrears is considered a good one. The local businesses employ and manage staff according to this custom. Although “it is noted that there will not be any official evidence to support the employment” in Wenbo CHI’s case, he did have an employment relationship with our factory, and he was a formal employee of our factory. Many of our employees are from other provinces, and the factory has not uniformly applied for temporary residence permits for them. For employees, the permit is not a must. Most of them work here alone, and they do not need a temporary residence permit to deal with matters such as kids’ schooling, buying a car or a house here.
According to the inquiry letter, “Mr Zhang claimed that they do not have HR or Executive/Administrative Office, nor have Workshop Director’s contact details”, I would like to explain. At present, there is an employee in charge of accounting and administration in the office. Her name is Dan YANG. However, since she only joined our factory in March 2020, she lacks working experience and is not familiar with the current workshop employees, even less clear about the information of former employees. I could not trust her to negotiate external matters, for fear of causing more mistakes, so I answered that there was no administrative office to avoid unnecessary troubles. I am sorry that my negligence and irresponsible answer caused the departmental officer more doubt. I can provide the telephone number of Dan YANG. If necessary, your officer can confirm with her by phone at 0316-8833588. Wenbo CHI is an employee who has left our factory many years ago. No one knows more about his employment situation than I do. None of the others in the factory, whether the admin staff, the workshop director or factory director, can provide a clear and correct answer because many of them were hired after Wenbo CHI had left. Therefore, when I was asked for the contact details of the workshop director, I did not reply, because even though I had provided it, the workshop director would not know much about Wenbo CHI, which is not helpful to the investigation. Besides, the workshop director was busy with his work, and I did not want to delay his work with issues he did not know the answer to. It also explains why “ the departmental officer asked Mr Zhang whom could be contacted for further verification of the applicant’s employment especially the duration of the employment and main duties and responsibilities, Mr Zhang stated that he is the one to answer inquiries regarding the applicant’s employment”.
The Tribunal is aware that it is not uncommon to obfuscate rather than reveal information that might be considered personal or sensitive, particularly in relation to the local Chinese authorities if information has not been previously agreed as suitable for release to a third party. Culturally it is considered more polite than not complying. This may well have been the case in relation to the unverifiable telephone call under discussion. It is not possible for the Tribunal to determine what degree of cultural competency was possessed by the Australian official making the enquiry. The Tribunal is aware that there were several employees about whom enquiries were being made many years post their exit from the organisation being questioned.
The Tribunal notes that as it was someone purporting to be an Australian official, who could not be verified, was calling unannounced, at a time when Australia and Chinese diplomatic relations were at a very low point, it is unsurprising that cooperation is likely to be scant. Unofficial enquiries not sanctioned by the relevant Chinese government authorities could reasonably be anticipated to be dealt with very cautiously and possibly somewhat dismissively.
The Tribunal notes the statement of complaint made by Mr Zhang quoted below and appreciates his sentiments which are evenly and eloquently expressed. It has some sympathy with his plight.
‘Finally, I would like to make a complaint and suggestion to the work of the Department of Home Affairs. I have cooperated with the telephone interview many times, which took up a lot of my work and rest time. However, considering that former employees have contributed to our factory, I have always tried my best to cooperate with the investigation for the sake of them being my employees, but in fact, I have no obligation to cooperate with the Australian Department of Home Affairs over and over again. What’s more, the departmental officer is always asking about employees who left the factory a long time ago, which makes me spend more time and energy to recall and confirm. At the same time, I also worry that the information of the employees will be mixed up after a long time, resulting in errors and omissions, which will affect the applicant’s visa application. Every time I encounter this kind of telephone interview, it will bring me a lot of inconvenience and trouble. It is hoped that the departmental officer will investigate the employment situation of employees before they leave or within a short period after they have left. Anyhow, I will always cooperate with the telephone interview, and I hope my opinion can be adopted.’
The Tribunal has reflected upon its own experiences in relation to ex-employees some substantial time after they ceased their working relationships. It has formed the view that it would be unable, or possibly unwilling to provide information any more detailed than that provided by Mr Zhang in his circumstances, if faced with similar circumstances. It is satisfied that the information provided by Mr Zhang is relevant and as accurate as could reasonably be expected. In fact, highly detailed information handed across to an unknown and unscheduled caller could raise some potential questions of authenticity as a senior official is unlikely to know about the work history of a low-level employee working on the slaughter-house floor without reference to Human Resource records.
The Tribunal has determined that the time-period, which is in excess of 4.5 years after the visa applicant left the employ of his previous employer, is so substantial that it is unreasonable to expect the management of that company to respond with any degree of accuracy or interest. It is not challenging to observe that such enquiries could be interpreted as unreasonable in their expectation of accuracy and seen as an intrusion upon the working day of the manager, as they were being interrogated by an unknown source, undertaken without the courtesy of prearrangement or an appropriate identification methodology. At best this behaviour might be seen as discourteous leading towards arrogance.
The Tribunal notes the Employment Contract dated 19 October 2020 supplied to both the delegate and the Tribunal. It guarantees a wage in excess to the TISMIT plus generous overtime provisions for weekend shifts.
The Tribunal has been supplied with 5 years of ATO Income Statements for FY 2019, FY 2020, FY 2021, FY 2022 and FY 2023 pertaining to the visa applicant. The 5 documents indicate an average annual salary in excess of AUD $81,000. The delegate has not referred to any financial or income documents in a meaningful way in their decision. Under questioning during the hearing, the general Manager under whom the visa applicant works stated that the current salary including overtime and performance bonuses paid to the applicant is in the mid-AUD$90,000’s. The applicant later confirmed this as accurate
In other words, the applicant was employed from his commencement with the Australian employer as though he was a fully qualified and experienced worker in a fast paced and highly skilled field. This continues to the current time. The Tribunal has rarely found an employer who willingly pays for a skill level they are not receiving. This is a strong indication that the visa applicant was fully qualified and experienced at a level stated by Mr Zhang in his explanation to the Department, where he states the applicant had multiple years of practical experience gained on the factory floor according to company records.
The Tribunal has been provided evidence to demonstrate that a legitimate and comprehensive recruitment program was undertaken in situ prior to the applicant relocating to Australia. Representatives of the future Australian employer undertook an assessment of the applicant’s suitability which included observation of practical skills. It is appreciated by the Tribunal that this process involves a substantial investment by the employer and would not be utilised for the recruitment of unskilled labour as the Return on Investment, (ROI) would be unviable.
It also notes the industry standard skills assessment undertaken by MINTRAC. This level of skill, which is later acknowledged by the assessment made on 18 June 2020 as equivalent to an AQF Level lll National Certificate in Meat Processing (Slaughtering), takes multiple years of experience to achieve. The assessment is both complex and comprehensive. The Tribunal again notes this information was provided to the delegate prior to the negative visa assessment and subsequent decision and was not referred to in their decision. It also observes that this was assessed as accurate by the general Manager at the hearing and likewise the applicant.
The Tribunal accepts as fact the statements detailing the superior skill levels possessed by the visa applicant and notes they operate at the highest skill level, (level 5). This information supports the known substantial remuneration level determination for the visa applicant and was provided by the People and Culture Manager.
The Tribunal accepts a series of orders for equipment associated with this industry addressed to the visa applicant, some dating back to 2015 as further evidence of the bona fide experience claimed by the applicant. It is illogical to assume otherwise as much of the equipment is industry specific. The appropriate alignment of delivery address is observed.
The Tribunal notes the following statement made by the HR Manager of the relevant current employer dated 5 September 2021.
‘….. Chi Wenbo was presented to us with a MINTRAC undertaken by a registered assesser who flew to China specifically to observe and assess the worker on site in the Meat factory. To pass the MINTRAC, a high level of speed, strength and knife skills are required, however high level 5 Boning requires additional knowledge of fast and skillful knife techniques that take years to learn.
Chi Wenbo was video recorded as part of the observation of competency assessment. After reviewing the video and the skill assessment including his resume and years of experience, we were satisfied Chi Wenbo was certainly skilled to a level required in our Australian Abattoir.
Today we rely heavily on our skilled workforce and the orginisation has invested time and money in this applicant, who has proven to be a loyal and diligent skilled worker, who contributes highly to our team including mentoring and training lower skilled meat workers on specific boning techniques. Chi Wenbo's english skills are excellent as well and he contributes well to ongoing discussions at toolbox meeting regarding health and safety and team collaboration activities.
Losing a valuable skilled meat worker would place Cannon Hill Services at risk of
- Losing valuable skills
- Increasing health and safety risks if the role was undertaken by a lesser skilled worker
- Loss of production time and KPI for our Australian Meat customers. …..’
The Tribunal notes the statement made in a later written submission to the AAT dated 24 July 2023, that the previous General Manager took part in the recruitment assessments in situ in China. The general Manager emphasised during the hearing the considerable value the applicant brings to his enterprise.
The Tribunal places substantial emphasis upon these statements in support of the visa applicant and the accuracy of his stated experience.
The Tribunal is fully cognisant of the recruitment and retention crisis facing this industry. The Tribunal having interrogated a widely known and utilised national/international recruitment website, accepts it is clearly demonstrated that in excess of 4,000 jobs in this field are currently under active recruitment nationally. It is not logical that in an industry where skilled labour has been in short supply for many years that substandard unskilled labour would be employed as this would not assist productivity. As previously stated, it takes many years to reach the top level of the competency pyramid, at the highest remuneration level in this role. This can-not have been achieved if the visa applicant had such limited initial skill and experience prior to moving to Australia, as was assumed by the delegate.
The Tribunal again notes the multiple letters of support from co-workers, prominent community members and relevant managers within the employee’s organisation. It is evident that the applicant has established both a successful work life and an integrated life for he and his family within his community. The Tribunal observes that 2 of the referees have stated that they first met the visa applicant whilst working with him in the stated workplace in China, during the claimed years he was working in that establishment. The Tribunal gives these statements some weight.
The Tribunal is satisfied that there is not sufficient evidence to conclude that the applicant has given, or caused to be given a bogus document, or information that is false or misleading in a material particular. In fact, it has concluded there is a substantial body of evidence which supports the opposing view.
Therefore, the applicant meets PIC 4020(1).
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(1)?
PIC 4020(2) requires the Tribunal to be satisfied that the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing 3 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2AA).
The Tribunal has no evidence before it that the applicant or any member of the family unit (as defined in reg 1.12) have been refused a visa in the relevant period because of a failure to satisfy PIC 4020(1)
Therefore, PIC 4020(2) is met.
Has the applicant satisfied the identity requirements?
PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.
In Australia, the National Identity Proofing Guidelines, established by the Attorney-General’s Department, defines identity as “... some combination of characteristics or attributes that allow a person to be uniquely distinguished from others within a specific context”. The Department of Home Affairs (the Department) relies on a system that establishes a migrant’s identity by exploring the ‘three pillars of identity’, regardless of whether they are applying for protection or more regular migration pathways. The three pillars are: biometrics (physical attributes); documentation; and narrative. The narrative pillar comprises both objective data points such as nationality and ethnicity and subjective material including family composition, schooling, employment and training, or travel history.

The Tribunal having reviewed the visa applicants Passport photographs and details in conjunction with the verified relevant life and work history, has concluded that the identity of the visa applicants is as asserted by them. The Tribunal does not have any evidence before it to demonstrate a different conclusion is warranted.
Therefore, the applicant meets PIC 4020(2A).
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?
PIC 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2BA).
There is no evidence before the Tribunal that the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused.
Therefore PIC 4020(2B) is met.
On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl 186.213(1) and subsequently cl.186.213.
DECISION
The Tribunal remits the applications for Employer Nomination (Permanent) visas for reconsideration with the direction that the first named applicant meets the following criteria for a Subclass 186 - Employer Nomination Scheme visa:
·Public Interest Criterion 4020 for the purposes of cl 186.213(1) and subsequently cl 186.213 of Schedule 2 to the Regulations
Peter Emmerton
Member
ATTACHMENT
Migration Regulations 1994
Schedule 4
4020(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a)the application for the visa; or
(b)a visa that the applicant held in the period of 12 months before the application was made.
(2)The Minister is satisfied that during the period:
(a)starting 3 years before the application was made; and
(b)ending when the Minister makes a decision to grant or refuse to grant the visa;
the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
(2AA)However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(2A)The applicant satisfies the Minister as to the applicant’s identity.
(2B)The Minister is satisfied that during the period:
(a)starting 10 years before the application was made; and
(b)ending when the Minister makes a decision to grant or refuse to grant the visa;
neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).
(2BA)However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
(4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a)compelling circumstances that affect the interests of Australia; or
(b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
(5)In this clause:
information that is false or misleading in a material particular means information that is:
(a)false or misleading at the time it is given; and
(b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
…
Migration Act 1958
s 5 Interpretation
(1) In this Act, unless contrary intention appears:
…
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)purports to have been, but was not, issued in respect of the person; or
(b)is counterfeit or has been altered by a person who does not have authority to do so; or
(c)was obtained because of a false or misleading statement, whether or not made knowingly.
…

[2023] AATA 2700

26 July 2023

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