Huang (Migration)

[2024] AATA 2455

Huang (Migration) [2024] AATA 2455 (1 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Xiubin Huang
Mr Kongshu Chen
Miss Hewei Chen
Mr Ziyang Chen

REPRESENTATIVE:  Ms Yanqiu Dong (MARN: 0742754)

CASE NUMBER:  2413009

HOME AFFAIRS REFERENCE(S):          BCC2021/1322272

MEMBER:Peter Emmerton

DATE: 1 July 2024

PLACE OF DECISION:  Adelaide

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 01 July 2024 at 10:51am

CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – incorrect information and bogus document – skills, qualifications and experience – skilled meat worker – verification checks – information provided by junior HR worker during phone call – visa holder never worked for company and author of working certificate not authorised – certificate for visa holder and other workers in fact authored by factory director – no practical difference between employee and contractor – reference from current employer and other supporting statements – members of family unit – consequential cancellation of visas with no jurisdiction to review – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 5(1)(b), 101(b), 103, 107, 109(1), 140(1)
Migration Regulations 1994 (Cth), rr 482.212(a), (3), 482.217(1)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The delegate cancelled the visa on the basis that the delegate believed there had been noncompliance with Section 101- Visa applications to be correct, and Section 103 – Bogus documents not to be given. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other 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.

4. The applicants were represented in relation to the review.

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.

9. The Tribunal has read and carefully considered all the evidence provided to the delegate and the Department prior to the delegate’s decision.

10. The Tribunal has read and carefully considered all the evidence provided to it prior to this decision as detailed below.

    ·Representative submission 3 June 2024

    ·Statutory Declaration of Xiubin Huang,

    ·Positive MINTRAC Skill Assessment Outcome Letter & Assessment Statement 11 January 2020

    ·Letter of Offer of employment by Southern Meats 19 November 2020

    ·MINTRAC Assessor Support Letter 22 February 2024

    ·Screenshot of average course duration of Certificate III in Meat Processing

    ·Statement of Factory Director Qiusheng Liao (with Translation) 23 February 2024

    ·Statistical Table of Resigned Employees of Year 2021 (with Translation)

    ·Notice issued by the Ministry of Commerce regarding Management of Slaughtering

    ·Discussion on Local Legislation regarding Livestock Slaughter

    ·Employer Southern Meats Support Letter 21 February 2024

    ·Reference Letter from Justice of the Peace Kendal Conroy 19 February 2024

    ·Reference Letter from friend Claire Graham 22 February 2024

    ·Reference Letter from Friend Mengduan Xu 21 February 2024

    ·The Contract System is a Fundamental Change in the Enterprise System

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

11. The issue before the Tribunal is whether there was non-compliance in the way described in the 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 Section 101 and Section 103 in the following respects:

    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:

    (a)all questions on it are answered; and

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

    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.

12. The Tribunal notes the application of sections 98, 99, 100 of the Act.

    Possible non-compliance with section 101(b) of the Act

13. On 5 January 2021 the visa holder lodged an application while offshore for a TSS visa in the Labour Agreement stream. It included their spouse and 2 children as secondary applicants. The criteria for grant of the visa required the visa holder to meet, among other criteria, regulations 482.212(3), 482.217(1), and 482.242(a) under Schedule 2 of the Migration Regulations 1994 (the Regulations).

14. The relevant issues in each relating to this decision are:

    482.212(3)

    The applicant has the skills, the qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation.

    482.217(1)

    The applicant satisfies public interest criteria 4001, 4002, 4003, 4003B, 4004, 4007, 4010, 4013, 4014, 4020 and 4021.

    482.212(a)

    The applicant has worked in the nominated occupation or a related field for at least 2 years.

15. In the application form for the TSS visa, the visa holder provided the following answers (in bold italics):

    Employment history

    The applicant declares that they have been working in a similar position for at least 2 years. Yes

    Is this the applicant's current employment situation? Yes

    Position: Skilled Meat Worker

    Position type: Full-time

    Employer name: Fujian Rohesen Foods Group Co., Ltd

    Country: CHINA

    Date from: 17 August 2015

    Description of duties: Meat Processing

    Is this employment related to the nominated position? Yes

16. The applicant also signed a declaration which explained the giving of false or misleading information is a serious offence which could result in cancellation of a visa.

17. The applicant supplied a Resume’ and a Working Certificate in support of her application. These documents detailed employment in a Boner/Slicer position with Fujian Rohsen Foods Group Co. Ltd. from 17 August 2015.

18. The delegate determined the visa holder was not employed as a Skilled Meat Worker or Boner/Slicer at Fujian Rohesen Foods Group Co. Ltd. as claimed. This was based on the fact the Australian Embassy in Shanghai initiated employment verification checks with Fujian Rohesen Foods Group Co. Ltd. to verify the visa holder’s employment claims. On 17 May 2021, Fujian Rohesen Foods Group Co. Ltd. advised the Department that the visa holder never worked for their company, and that while the author of the ‘working certificate’, Qiusheng Liao, is employed by the company, he is not authorised to sign employment certificates for staff or use the company stamp.

19. From this information the delegate formed the view the visa holder was not employed as a Skilled Meat Worker or Boner/Slicer at Fujian Rohesen Foods Group Co. Ltd. as claimed. Therefore, they determined the documents submitted including the Resume’ and application form provided evidence of non-compliance with section 101(b) of the Act.

    Possible non-compliance with section 103 of the Act

20. The delegate determined the visa holder had also not complied with section 103 of the Act, because in support of her application for a TSS visa, she submitted a document considered bogus by the delegate. That document was an employment reference from Fujian Rohesen Foods Group Co. Ltd. (titled ‘working certificate’). The delegate determined, … ‘It appears this is a bogus document, within the meaning provided by paragraph (b) of section 5(1) of the Act.’ … which states in 5(1)(b) a document is bogus if it is counterfeit or has been altered by a person who does not have authority to do so.

21. The delegate concluded ‘I consider the ‘working certificate’ to be a bogus document, because verification checks have concluded that the visa holder never worked for Fujian Rohesen Foods Group Co. Ltd.’ 

22. The visa holder did not agree there was non-compliance. In response to the NOICC, the visa holder provided a Statutory Declaration dated 26 February 2024 and a submission dated 27 February 2024 in which she maintains she did not provide incorrect answers and a bogus document in support of her application for a TSS visa.

    Is non-compliance substantiated

23. The Tribunal is not satisfied the purported evidence of non-compliance claimed by the delegate is substantiated. It is accepted the Australian Embassy in Shanghai initiated employment verification checks with Fujian Rohesen Foods Group Co. Ltd. to verify the visa holder’s employment claims. On 17 May 2021, Fujian Rohesen Foods Group Co. Ltd. advised the Department that the visa holder never worked for their company, and that while the author of the ‘working certificate’, Qiusheng Liao, is employed by the company, he is not authorised to sign employment certificates for staff or use the company stamp.

24. The Tribunal does not consider a telephone call with an unidentifiable individual which was later found to be a junior person employed as an HR Clerk, subsequently identified by the applicant, as reliable proof that the visa applicant’s claims were inaccurate. It is inconceivable in a control and command society focussed upon a rapidly growing economy endorsed by the highest ranks of Government, that such a person would be a reliable source of information regarding Managers above them or a multitude of employees undertaking the main tasks of an enterprise. The Tribunal notes the rank of the clerk was not disputed by the delegate nor that they were the source of the information relied upon by the delegate in their decision. To base a decision on such flimsy uncorroborated information obtained via a telephone call seems at best to be unwise.

25. The Tribunal further notes the claim that Factory Director Qiusheng Liao was not authorised to have prepared and sealed the work reference again made by the unverified and supposed HR Clerk are not credible. The authority of a senior Manager is unlikely to be known or questioned by a junior clerk. The Tribunal accepts the detailed letter provided to it dated 23 February from Factory Director Qiusheng Liao as authentic and observes it has the same official seal stamp affixed.

26. While Mr Liao’s employee’s status is understated, Mrs Lin’s position and information are overstated and unchecked and are repeatedly relied upon in the Decision Record as the reasons for cancelling the visa. The delegate has not established that Mr Liao is not authorized to sign company documents or use the company stamp. There is no evidence to that effect at all, other than the unqualified view of the HR clerk, Mrs Lin.

27. On the contrary, the evidence shows that Mr Liao is a Factory Director and that he did sign and stamp documents. He continued to do so in the Applicant’s case with his statement of 23 February 2024 and there are strong indications that he did so for other Chinese meat workers whose employment credentials had been questioned. The Tribunal has referenced the documents provided previously to the delegate and supplemented it with the additional information taken from more recent written evidence provided by the applicant’s Statutory Declaration, the Statement from Mr Liao, a copy of a document provided by him regarding other employee resignations and statements made by the applicant’s friends and associates. All these sources correlate satisfactorily. 

28. The Tribunal notes that in his formal company statement of 23 February 2024, which he signed in the full knowledge that it was for Australian authorities, Mr Liao, as a factory director of Fujian Rohesen, confirms the Applicant’s work role and history stating……

    … ‘Xiubin Huang (female, ID card: 350124198011054024) was an employee of the contracted meat boning room of the pig processing factory from 17 August 2015 to 15 January 2021 and was mainly responsible for boning and slicing.’ …

29. Mr Liao provides the Applicant’s ID number that adds considerable weight to the work history claimed. He provided the Department of Home Affairs a way to confirm with Fujian Rohesen the authenticity of that ID, which does not appear to have been undertaken.

30. The Tribunal is satisfied Mr Liao occupies a management position within Fujian Rohesen and that he openly and repeatedly signed and stamped documents and was authorised to do so, as supported by the evidence. The HR Clerk’s credibility is questionable when weighed against the body of evidence supporting the Factory Manager’s assertions and the correlating evidence. To believe that he was not authorised to do so, as claimed is unlikely and demands a belief that Mr Liao was prepared to undertake company and possible criminal fraud in a country known for condemnation under the current leadership which imposes substantial penalties.

31. The Tribunal acknowledges that it is difficult to differentiate between the visa applicant being an employee of Fujian Rosen or a contractor employed by a third party on behalf of Fujian Rosen but working solely for Fujian Rosen. The Tribunal notes the existence of the list of resignations held by Fujian Rosen as an indicator that they were considered employees. None of the information available gives a definitive picture or any reliable indication of the nature of the company structure and arrangements with its contractors. This area has been the subject of court proceedings in Australia determining workers entitlements, their protections and wages. In Australia organisations are unable to deny culpability or responsibility for contracted employees by claiming they are contractors. Recent legislation has further developed this concept and there appears to be an appetite to extend the protections and rights of such employees further.

32. The Tribunal is well versed in the regulatory issues at play at the time when China’s meat industry came under government scrutiny with its associated uncertainties.

33. The Applicant is an employee whose environ is the factory floor and would have little knowledge of managerial structures and functions let alone administrative arrangements that may relate to maximising operational aspects associated with advantages such as in tax, productivity or profits. It is highly likely the applicant believed they were an employee of the company in which they toiled on a daily basis supervised by the managers of that company and paid by the administration of that company. The Applicant worked and gained recognized skills proficiency with Fujian Rohesen.

34. The very fact that it was the Applicant who gave the Department of Home Affairs the contact lead for its verification checks with Fujian Rohesen and that the players (the Applicant, the HR clerk and factory director) all related to the company, strongly discounts any other company where the Applicant may have gained her proven and high level of skills or a belief she worked for any other entity.

35. The Applicant, keeping in mind that her knowledge and experience was at the factory level, can reasonably be assumed to have been truthful and honest about her work history, with Fujian Rohesen and no other company, hence her insistence. Furthermore, there was nothing to be gained by stating the employer was Fujian Rohesen rather than a contracting company if that was the case and she knew it was the case. The experience and skills gained are the same regardless of the employer. The Tribunal is reminded that whilst the applicant is a skilled practitioner in her field, she is not from a socio-economic group in China that is likely to have sophisticated understanding of company structures other than the factory floor. Literacy is in the Tribunal’s experience problematic for many people engaged in this field employment in China.

36. The Tribunal having weighed all the associated evidence is satisfied the applicant gained her work experience and skills working for the company she believed was her employer and for all practical purposes was. It is not reasonable or useful to expect her to understand company structures in a business with quasi government involvement/ownership which are opaque to most employees and indeed to this Tribunal.

37. The Tribunal is concerned that the delegate did not analyse the high degree of skill mastery clearly demonstrated to be in the possession of the applicant. This was indicated by the formal qualifications, the reference from her current employer’s management team, the MINTRAC assessment and statements made by the assessor. The Tribunal has spent some considerable time exploring and understanding the level of skill necessary to operate at a high level in this very demanding industry. There is no substitute for extensive training and multiple years of experience to perform as the applicant does, at the high level stated by a range of industry specialists. If the applicant didn’t gain this experience where she said and demonstrated in her documents, then where did she obtain it. It is illogical and without intellectual rigour to suggest an unverified report made by an unidentified HR clerk via a telephone call is more reliable than the broad range of interlocking evidence presented to the Tribunal.

38. 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. 

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

    DECISION

40. 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.

41. The Tribunal has no jurisdiction with respect to the other applicants.

    Peter Emmerton
    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.