HUANG (Migration)

HUANG (Migration) [2018] AATA 5869 (22 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr XIAOBIN HUANG
CASE NUMBER:  1721123
DIBP REFERENCE(S):  BCC2016/1590549
MEMBER:Denise Connolly
DATE:22 October 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
Statement made on 22 October 2018 at 8:28am

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Butcher – employment background, skills and qualifications requirements – incorrect information – bogus documents – anonymous allegations – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 48, 100, 101, 103, 107, 108, 109, 359
Migration Regulations 1994, r 2.41, cl 457.223

CASES
MIAC v Khadgi (2010) 190 FCR 248
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 Immigration to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.109(1) of the Migration Act 1958 (the Act).
Background
The applicant applied offshore for a Subclass 457 visa on 20 October 2015 to work in the position of butcher. In support of the visa application he indicated that he had been employed byJiangkou Shiting Pig Slaughter Management Station (JSPSMS) in the position of butcher from January 2014 to October 2015. He provided a Completion Certificate indicating that he had received professional and on-the-job training in butchery skills during the employment. He declared that the information provided in the visa application form was complete, correct and up-to-date, and that he understood if any fraudulent documents or misleading information had been provided with the application the visa may be cancelled. The delegate granted the visa on 17 November 2015 on the basis the applicant met, among other things, cl.457.223(4)(da) which requires the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation.
The Department’s records indicate that shortly after the grant of the visa, on 18 December 2015, the Department received an allegation that the applicant did not have the required skills to work with his sponsoring employer. The source alleged that the applicant had provided false work history documents advising he had worked as a butcher in China but the applicant had never worked in China. The source alleged the sponsor is a friend of the applicant and aware that the applicant has lodged this information to enable his visa to be granted. It was alleged the applicant had bought rubber stamps from shops in China to make it seem his work documents were legitimate but that those documents were fabricated by the applicant. It was also alleged that the applicant completed his job qualification history and signed and stamped the papers himself, but that he did not have a job in China and his parents had been supporting him financially. It was asserted that his parents are wealthy and that they would support him once he arrived in Australia. The person indicated that the applicant would be arriving in Australia on 20 December 2015. The applicant’s movement records confirm that he arrived in Australia on 21 December 2015.
The Department’s records indicate that on 27 February 2017 the Post in Guangzhou, China conducted investigations to verify the applicant’s claimed employment and qualification from JSPSMS. The Post was unable to find any publicly available listing of the business including no registered record on the National Enterprise Registration Credible Website in China. The delegate noted that website is operated by the Chinese Government and it contains information for all legitimate businesses in China. The only contact able to be made by the Department was via a telephone number that the visa holder included in the work reference letter submitted with his application. The delegate noted that a female answered the phone and identified herself as the accountant in the business. She claimed the business was operating but she was unable to provide official business details when requested. The delegate noted that the investigation resulted in a finding of “serious concerns” regarding the genuineness of the visa holder’s employment there.
A Notice of Intention to Consider Cancellation under s.109 (the NOICC) was sent to the applicant on 16 May 2017 setting out the particulars of the possible non-compliance. The delegate explained that the concerns raised from the Post’s investigation may lead the delegate to form the view that the information provided in the visa application was incorrect and that this may be a breach of s.101(b). She also explained she may conclude that, in providing a work reference and a course completion certificate in support of claims of employment and a qualification attained at JSPSMS, the applicant had provided bogus documents in breach of s.103.
The applicant responded on 1 June 2017 and subsequently provided documents which he claimed to be from his former employer including a statement from Wenhui Huang who claims to be the corporate representative of JSPSMS. Mr Huang claimed that the slaughter management station was established in January 1996, privately funded and led by the town government. He claimed that he was the cadre in the town community centre and that the slaughterhouse was issued with a Fujian Province Designated Livestock Slaughterhouse Approval Certificate on 30 February 1999 (sic). Mr Huang claimed that there had been a designated inspection and all operations were under the supervision of the government. He claimed that because the slaughterhouse was established under the old economic environment they were not required to register with the Industrial and Commercial Administrative Department and because they were privately funded, owned by the collective, and they have the Province Designated Livestock Slaughterhouse Approval Certificate, they did not consider registering the business. He opined that it is unreasonable to deny the existence of the slaughterhouse just because the registration cannot be found. He claimed that the accountant told the Post to call him back and he could answer the questions as she did not know exactly where the call was coming from and she was worried it was a fraudulent phone call. He claimed the applicant had worked in the slaughterhouse since January 2014 and trained as a qualified butcher. He was happy with the applicant’s skills so issued the work experience certificate on 28 April 2015.
The applicant also provided a certificate said to be from the Putian City Hanjiang Jiangkou Animal Husbandry and Veterinary Station dated 29 May 2017 stating the slaughterhouse was established by private fundraising and led by the town government from 1996 and that on 30 February 1999 (sic) received the Fujian Province Designated Livestock Slaughterhouse Approval Certificate issued by the Putian People’s Government with tax-free qualifications. It states that since March 2016, because the infrastructure was old, the environment was not compliant with the environmental protection policies, and it was temporarily closed to rectify and reform according to the relevant laws.
The applicant also provided a Putian City Livestock Designated Slaughterhouse Price List Billboard which includes one item, fixed slaughtering management fee, RMB 15, and an Animal Epidemic Prevention Certificate dated 7 August 2007.
The applicant has provided to the Tribunal a copy of the delegate’s decision record. The delegate notes that further checks were undertaken by the Post on 25 August 2017 when the Certificate Letter – Putian City Hanjiang Animal Husbandry and Veterinary Station dated 29 May 2017 was checked. These checks confirmed that the slaughterhouse has never been registered in the Administration Bureau of Industry and Commerce system and is therefore not considered a legitimate business in China. This resulted in an outcome of “non genuine".
The delegate considered the documents provided and the explanation as to why the accountant could not answer questions regarding the business. However he referred to the investigation undertaken by the Post in Guangzhou, noting the checks confirmed that the business has never been registered and is therefore not considered a legitimate business in China. He was not satisfied the applicant was employed by the slaughterhouse. He concluded that the applicant had provided incorrect information in his Subclass 457 visa application and therefore he had not complied with s.101(b) of the Act. The delegate also concluded that, by providing bogus documents, the applicant had not complied with s.103 of the Act and therefore his visa may be cancelled under s.109 of the Act.
The delegate noted that the applicant is the holder of a Subclass 457 visa valid until 17 November 2019. On 5 December 2016 his partner lodged a subsequent offshore application and this was refused on 7 February 2017. Another application has since been lodged. The delegate was not aware of any other instances of non-compliance by the applicant. He noted that the applicant may have developed some ties in the Australian community but that his partner was living in China. Having considered the prescribed circumstances set out in r.2.41 the delegate formed the view that the visa should be cancelled.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 8 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Bing Fan Dai, the applicant’s sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
At the time of review application the applicant indicated he was represented in relation to the review by Mrs Jasmine Rao. She attended the hearing and told the Tribunal that she was not the applicant’s ‘representative’ but just supporting him. She told the Tribunal she is a registered migration agent however the Tribunal notes she is not registered by the Migration Agents Registration Authority.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
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.
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 applicant has provided to the Tribunal a copy of the delegate’s decision record. The Tribunal has also considered material included on the Department’s file and all of the written and oral evidence provided by the applicant and his witnesses.
The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) in the following manner. When lodging his application for the Subclass 457 visa the applicant claimed to have been employed as a butcher in the period 27 January 2014 to 21 October 2015 for JSPSMS. The application form included a warning that there were penalties under the Migration Act for deliberately giving fraudulent documents or false misleading information. The applicant declared that he had given correct information in the visa application. The delegate formed the view the information provided about his employment was incorrect and he therefore had not complied with s.101(b) which requires that a non-citizen must fill in or complete his visa application in such a way that there are no incorrect answers given or provided.
The other non-compliance identified and particularised in the s.107 notice was non-compliance with s.103 in the following manner. When lodging his application for the Subclass 457 visa the applicant provided a work reference letter issued by Wenhui Huang dated 28 April 2015 and its English translation, and the Course -Completion Certificate dated 23 May 2015 and its English translation. The Post having investigated the claims in the documents found there was no publicly listed information available about the business. The delegate also found the applicant had not complied with s.103 because he provided bogus documents, the work reference and the completion certificate.
When making the application for review the applicant provided to the Tribunal a written statement in which he set out the three reasons that he believes the delegate cancelled his Subclass 457 visa. Firstly the applicant notes that the slaughterhouse was not registered by the Administration Bureau of Industry and Commerce. He indicated that the management station has been operating for a long time and that when he went to work there he saw the two public signs on the wall of the management station, the Pigs Slaughter Charge Board of Putian City and Animal Quarantine Certificate. He noted the Certificate of Completion and Work Certificate was issued to him with the red seal of the management station. He learnt, after he came to work in Australia, that the management station was established in January 1996 and was not registered. He noted that from the perspective of China’s current enterprise management and taxation system, enterprises that have not been registered by the Administration Bureau of Industry and Commerce were unlicensed and illegally operating. He argues however that when the management station was established national policies allowed and encouraged the operation. When established the policies did not require enterprises to register. The management station is a private fundraising project and is owned by the collective. When established it obtained the approval document of the provincial fixed point livestock slaughter factory issued by the government and had the tax-free qualification. All operations were carried out under government supervision. He asserts that the leader of the management station claims that no department required the management station to register; the management station received the government approval at its establishment and has legally operated for more than 10 years.
Secondly the applicant acknowledged that information on the slaughterhouse cannot be found on the National Enterprise Registration Credible Website. He cannot explain why it cannot be found but was told by the leader of the slaughterhouse that the management station received a notice in March 2016 that due to infrastructure, environmental protection, animal quarantine and other reasons the management station was required to close for rectification. He can only infer that the relevant information cannot be found on the website because the management station had suspended operation. He claims that the management station was required to be rectified for reasons other than non-registration which showed that the government believes that the management station is a legally run business. He claims he was told that the suspension of the management station was only temporary and it would resume operation after the rectification.
Thirdly the applicant noted that when the Post rang on 27 February 2017 it was indicated that the management station had been operating. However the employee was unable to provide any official information about the enterprise. He claims that the employee was the accountant and that the management station was temporarily closed shortly after she joined the company. She did not know the situation about the operation of the management station. Because of fraudulent phone calls in the Fujian area she was worried about answering questions. Regarding the specific information about the management station she tried not to answer so she did not explain the past and present situation of the management station. The applicant claimed she asked the Post to call Mr Huang who could answer the questions.
The applicant also provided evidence that he has been employed in Australia by Super Friend Pty Ltd and provided payroll advice for the period 3 July 2017 to 20 August 2017, and a statement regarding his superannuation savings trust indicating $3525 has been paid in the period 1 July 2017 to 30 June 2018. He also provided a PAYE payment summary indicating he was paid taxable income of $96,500 in the period 1 July 2016 to 30 June 2017.
The applicant also provided to the Tribunal a copy of Mr Huang’s written statement dated 29 May 2017.
Hearing on 8 August 2018
At the hearing the Tribunal discussed with the applicant the requirements and provisions of the law. The following is a summary of the oral evidence provided at the hearing by the applicant and his witness.
The Tribunal explained to the applicant that the delegate found he had breached s.101(b) by providing incorrect answers when he stated he had worked at the slaughterhouse as a butcher in the period January 2014 to October 2015. The Tribunal explained that the delegate also found that the applicant had breached s.103 because he concluded the applicant provided bogus documents, the training course completion certificate and the work reference. The Tribunal explained that if it concludes the s.107 notice is valid and there has been non-compliance with the provisions as described in the notice it would then need to consider whether to exercise its discretion to cancel the visa taking into account the prescribed circumstances set out in r.2.41.
The Tribunal asked about the applicant’s circumstances prior to coming to Australia. The applicant indicated that before coming to Australia he lived alone in China in his parents’ house. He did not live with his parents. Prior to that he lived in Argentina where he worked as a butcher. The Tribunal asked where his parents lived. The applicant was vague in his responses and indicated he did not know their address. He claimed that he went Argentina in 1999 and when he returned to China his parents went to work elsewhere. He claimed that they sometimes lived in Malaysia and at other times in Singapore. He claimed they worked in restaurants doing chores such as dishwashing. However he also indicated that when he worked at the slaughterhouse they lived in Putian City. He then indicated they worked in a shoe factory.
The applicant indicated he was abroad for more 15 years. He returned to China from Argentina in January 2014. He lived in Putian city and worked in the slaughterhouse. He had a partner in China but she was not living with him. They married on 12 January 2016 in China. He indicated that he came to Australia in December 2015 and then went back to China the following month to marry. He met his partner on the Internet in May 2015. He first met her face-to-face in January 2016 when he returned to China to marry her. When asked why he returned to China so soon after coming to Australia in December 2015 to work in skilled employment, the applicant indicated that he was considering getting married when he came to Australia but he had not proposed yet. He then proposed and she agreed that he return to China in January 2016 to marry her. He stayed with her for seven days.

The Tribunal asked the applicant about his sponsor in Australia. He indicated that he is sponsored by Bing Dai. He claims he met him at the slaughterhouse when he came to China to recruit butchers. Mr Dai interviewed him in about 2015. He did not start working for him in Australia until January 2016, after his visit to China.
The Tribunal asked the applicant about his schooling. He went to high school in Putian city. He then went to Argentina in 1999. He then worked in the slaughterhouse in China. The business he worked for in Argentina went bankrupt so he went back to China. He started working there in January 2014.
The Tribunal asked about the slaughterhouse in China where he worked. He indicated that there were six slaughterers and 15 people working there including the accountant and movers. He was not certain because he did not work there every day. Only pigs were slaughtered there. He indicated it takes about half an hour to slaughter a pig. The Tribunal asked how many pigs he slaughtered each day. He thought he slaughtered about 33 a day. It asked if the other slaughterers slaughtered roughly the same number. He indicated they had different experience and skills but they probably slaughtered 20 to 30 pigs a day.
The Tribunal noted that the applicant had provided information to the Department from Wenhui Huang, who claimed to be the corporate representative of the slaughterhouse. Mr Huang stated that the slaughterhouse slaughtered around 15 pigs a day. The Tribunal explained that the inconsistency in this evidence might raise a concern about the reliability of the applicant’s evidence. The applicant stated that he did work there and that might have been Mr Huang’s personal reckoning. He acknowledged that it was a big difference but said he was telling the truth. He said that the employers were not in the shop. When he came to Australia the Department needed to have information so he got the document from Mr Huang. He questioned how the business could survive if only 15 pigs a day were slaughtered. He then suggested that because the shop was tax-free that maybe the owner was worried people will know how many pigs are actually slaughtered so Mr Huang did not tell the truth. He said that he is not related to Mr Huang. The Tribunal noted this was speculation and explained to the applicant that this argument might cast doubt on the reliability of Mr Huang’s evidence.
The Tribunal noted that the delegate had formed the view, based on information obtained during an investigation, that because the slaughterhouse was not registered it was not a legitimate business. It invited the applicant to comment on that view. The applicant said that as a worker at the slaughterhouse he could see the Certificate of Quarantine and he saw stock going in and out because the company was operating. He had heard that the business had a Certificate of Quarantine so he believed it was qualified to operate. He saw the stamped documents so as an employee he believed the shop was legal.
The Tribunal noted that the delegate had formed the view that because the business was not recorded on the National Enterprise Registration Credible Website that it did not exist. It invited the applicant to comment on that view. The applicant stated that the business started in 1996 and had a government quarantine certificate. The government wanted to encourage privately owned enterprises. If the slaughterhouse was unlawful it would not have operated for the last 20 years. In 1996 there were no websites as there were no computers.
The Tribunal noted that the delegate had noted that when the telephone number on the work reference was used the woman who answered identified herself as the business accountant but she was unable to provide official information about the business. The applicant indicated that he got in touch with Mr Huang who said the phone had been answered by the new accountant. She had only been working with the business for a year and did not know anything about the applicant.
The Tribunal noted that one of the reasons given for why the business may not have been on the Credible Website was that it had been temporarily shut down due to infrastructure, environmental protection, and animal quarantine problems. It asked when this was supposed to have occurred. The applicant indicated that he came to Australia in December 2015 however he heard from his employer that the slaughterhouse had closed down because the equipment was too old. The Tribunal asked when the thought the business employed the accountant. He indicated he did not know but thought it was sometime in 2016. The Tribunal suggested it may seem illogical to employee an accountant after the business had closed down. He could not explain this. He indicated he received information that the business had closed down but he thought it was only temporarily.
The Tribunal explained that the applicant may not be aware that the Department received an allegation in December 2015 regarding his claims to have the required skills to work in the nominated position butcher. It explained that the person making the allegations indicated that he did not have the skills and that he had relied on a false work history and have never worked as a butcher in China. It explained that it was alleged that he had manufactured the documents that he provided with the visa application and that he made the documents himself by buying stamps in China. It explained that it was also alleged that his sponsor, his friend, was aware that he had lodged false documents with his visa application. It explained that it was also alleged his parents are wealthy and had been supporting him. It explained that the person indicated he would be arriving in Australia on about 20 December 2015. The applicant said he had no knowledge of the allegation. However all of the material he has provided is true. He had no idea who would have made those allegations.
The Tribunal explained that this lead the department to make enquiries regarding the business and it noted that in response the applicant had provided some documents. The Tribunal explained that it had some concerns about some of those documents. For example regarding the slaughterhouse approval certificate, both documents referred to 30 February 1999. The Tribunal explained that as that date is invalid it may form the view that the documents are bogus. The applicant asserted that the documents are genuine and that the date may have been 30 December 1999. The Tribunal noted it had not seen the originals, only copies. The applicant confirmed that when he lodged the application he provided only copies of the documents. He thought perhaps the authorities did not pay attention to the date. However he was emphatic that the documents were provided by the authorities. He thought perhaps it might have been negligence. He did not check the date when he submitted the documents to the Department. When the Department made its decision he was nervous because he had previously provided documents. He was in Australia. He could not go back to China to deal with the issue as he was not allowed to leave.
The applicant said that he started working for his sponsor in Australia in January 2016 and has been working for him ever since. He claimed he is paid in accordance with the contract ($96,400 per annum). He said that every four weeks $5931 is deposited into his account. He claimed that he has lodged his tax returns for the 2016, 2017 and 2018 financial years. He said that after the cancellation he was not allowed to work for a while.
The Tribunal then went through the prescribed circumstances with the applicant he gave the following information. He stopped working in the slaughterhouse at the end of November 2015. He stopped working then because his visa was granted early so he needed to pack his things. He is emphatic that the documents provided are genuine and that the decision to grant the visa was not based on incorrect information.
The applicant indicated he is currently living in Mount Druitt by himself. He was living off his savings because he was not allowed to work but he has since been given work rights. He does not work on fixed days but generally works Monday, Wednesday, Thursday, Friday and Saturday. They call him when needed; it depends on his employer. As far as he is aware, there has been no non-compliance although he did not work for almost a year. There have been no breaches of law.
The Tribunal asked the applicant about his partner’s visa application. He indicated that after he got married his partner applied for a Subclass 457 dependent visa. It was not granted because his Subclass 457 visa was cancelled and he was not allowed to depart Australia. This became a problem. She submitted her health check but had received no response. He then indicated her first application was for a visitor visa, not a Subclass 457 visa. That was the second visa application she made.
With respect to any contribution made by the applicant to the community, he indicated that he volunteers and he pays tax.
The Tribunal asked the applicant if he had any concerns about returning to China. He indicated that he has been abroad for a long time and has no connection in China. He cannot imagine how he will form connections if he returns. The Tribunal noted he has a parent and a partner living in China, and that a Subclass 457 visa is only temporary. He indicated he has no money because he had to stop working for a year.
The Tribunal asked the applicant if there was any other evidence he wished to have taken into account. The applicant indicated his work contract was for four years. He was not able to work for a year because of the cancellation and he has been in Australia for two and half years. He wants to finish working for the period of the visa so that he will have no regrets or a record of a cancellation. He is law-abiding. He does not plan to stay in Australia. He just does not want a cancellation on his record.
The Tribunal took oral evidence from Mr Dai, his employer. He indicated that he went back to China to recruit butchers in 2015. He is the president of the Putian City Business Association in Australia. He went to visit the owner of the slaughterhouse, Mr Huang. The slaughter system is different in China. The department is referring to the law here. The leader of the agency issuing the certificates is his old classmate. He asserts that they did issue the certificate. It was through the leader that he met the applicant. He believed the applicant would be helpful to his business. The Tribunal explained to Mr Dai that there were concerns regarding the reliability of the documentation. He said that all of the documents existed. He saw the applicant working and he saw the Certificate for the slaughterhouse.
Mr Dai said that he is paying the applicant in accordance with the contract and has been paying the superannuation guarantee since January 2016. He owns his own company and is opening his seventh and eighth shop. He hopes that the applicant can stay with him to train other butchers. He said it is difficult to find butchers.
After the hearing the applicant provided to the Tribunal superannuation documents showing contributions of $11,459 made for the applicant for the period 1 July 2016 to 30 June 2017.
On 21 August 2018 the Tribunal wrote to the applicant, under section 359A, inviting his comments or response to information it considered would, subject his comments or response, be the reason, or part of the reason for affirming the decision under review. The particulars of the information, as set out in the invitation, are as follows:
·the Department received an allegation on 18 December 2015 regarding your claims to have the required skills to work in the nominated position, Butcher. It was alleged that you do not have the required skills to work in the nominated occupation. It was alleged that you had provided false work history documents claiming you had worked as a butcher in China. It was alleged that this information is false and that you had never worked in China. It was alleged that your sponsor, David Dai, Director, Super Friend Pty Ltd, Westfield Shopping Centre, Mt Druitt, NSW, is your friend and is aware that you had lodged false information and documents to enable your visa to be granted. It was alleged that you had bought rubber stamps from shops in China to make it seem that your work documents were legitimate. It was alleged that the documents have been fabricated by you. It was alleged that you completed your job qualification history and signed and stamped the papers yourself. It was alleged that you did not have a job in China and that your parents had been supporting you financially. It was alleged that your parents are wealthy and would support you once you travel to Australia. The person making the allegation indicated that you would be arriving at Sydney airport on 20 December 2015 (the day before you arrived).
·The person making the allegation gave your name and approximate age, and knew the particulars for the sponsor, as set out above, as well is his telephone number and ABN.
The Tribunal explained the relevance of the information and the consequences for the applicant if the Tribunal relied on the information. The applicant requested an extension of time to provide his comments in response. The Tribunal agreed to grant the extension.
The applicant provided a statutory declaration attested by him stating that he worked as a butcher for JSPSMS from January 2014 to the end of 2015. He received training at the slaughterhouse and the certificate of completion is stamped with the official seal. He denied purchasing false stamps. He claims he did not know Mr Dai before he was recruited by him.
The applicant provided a statutory declaration attested by Mr Dai in which he denies being a friend of the applicant. He declared the allegation is a lie and malicious. He did not meet the applicant until February 2015. He saw him working in the workplace during his business trip to China. He confirmed with Mr Huang the applicant’s characteristics, skills and work experience. He decided to nominate him because his portfolio and experience matched his recruitment requirements. He is the chairman of the Australian Putian Commercial Association. His information is easily accessible to the public along with the business ABN. He is not surprised that the person making the allegation was able to obtain this information. He has been engaged in business in Sydney for several years and owns many stores. Some competitors are jealous and this may have resulted in the allegation.
The applicant provided a statement from Mr Wenhui Huang. He states that the applicant worked at the slaughterhouse as claimed and that he issued the certificate of work experience after the applicant received slaughter training. The certificate is stamped with the official seal of the management station. He issued the document to the applicant on 29 May 2017 to answer various questions from the Department regarding the station. It is his signature which appears on the certificate. He was shocked to learn that the Department doubted the authenticity of the applicant’s claims. He provided the biodata page of his passport which includes his signature.
Was there was non-compliance in the manner described in the s.107 notice?
The Tribunal has first considered whether there has been non-compliance with s.101(b) in the manner particularised in the notice. Section 101(b) requires a non-citizen to fill out the application form in such a way that no incorrect answers are given or provided. The delegate stated in the s.107 notice that when lodging his application for the Subclass 457 visa the applicant claimed to have been employed as a butcher in the period 27 January 2014 to 21 October 2015 for JSPSMS. The delegate was not satisfied the applicant was employed as claimed because the Post was unable to find any publicly available listing of the business including no registered record on the National Enterprise Registration Credible Website in China. Also the delegate noted that the woman answering the phone identifying herself as the accountant in the business was unable to provide official business details.
The Tribunal has taken into account the applicant’s responses to the notice. It accepts that at the time the business is purported to have established, in 1996, there were probably not websites and computers. It has taken into account the argument that the management station commenced operating before policies required enterprises to register. However it finds two of the documents the applicant has provided in his responses to be problematic, the Fujian Province Designated Livestock Slaughterhouse Approval Certificate dated 30 February 1999 (sic) and the certificate said to be from the Putian City Hanjiang Jiangkou Animal Husbandry and Veterinary Station dated 29 May 2017 stating the slaughterhouse was established by private fundraising and led by the town government from 1996 and that on 30 February 1999 (sic) received the Fujian Province Designated Livestock Slaughterhouse Approval Certificate issued by the Putian People’s Government with tax-free qualifications. The Tribunal is not satisfied these authorities in China would issue certificates and confirm that certificates were issued on 30 February 1999, an invalid date. The Tribunal is of the view this casts serious doubt on the reliability of those documents.
The Tribunal is not persuaded by the applicant’s argument that the management station was shut down due to infrastructure, environmental protection and quarantine issues, not because it was not registered, and this shows the government believed the management station was a legally run business. The applicant seeks to rely on the certificate dated 29 May 2017 to support his claim that the management station was temporarily closed in March 2016 due to those issues. However that is the certificate that refers to the management station receiving its approval certificate on 30 February 1999, so, for reasons given above, the Tribunal is not satisfied it can rely on the information contained in that document.
The Tribunal notes the applicant has acknowledged that when the Post rang the management station in February 2017 the employee, the accountant, advised that the enterprise was temporarily closed. He claims she could not answer questions about the operation of the management station because there had been fraudulent phone calls in the Fujian area she was worried about answering questions. The applicant did not know this employee and thought she must have been employed after he left at the end of 2015. However the applicant could not explain to the Tribunal why the business would employ an accountant if the station had not been operating since March 2016. Overall the Tribunal is of the view the woman purporting to be the accountant not being able to answer questions about the operation of the management station casts doubt on the claims that the business was genuinely operating at the time the applicant claims to have worked there.
The Tribunal also has concerns about the inconsistencies in the evidence regarding the number of pigs slaughtered per day. The applicant claimed he slaughtered about 33 pigs a day and that other workers may have slaughtered 20 to 30 pigs a day. The applicant indicated there were about six slaughterers. However, as the Tribunal explained to him at the hearing, he provided information to the Department from Wenhui Huang, who claimed the enterprise slaughtered around 15 pigs a day. The Tribunal has considered the applicant’s possible explanation; the shop was tax-free and the owner may have worried that people will know how many pigs are actually slaughtered so Mr Huang did not tell the truth. The Tribunal is of the view this is speculation and does not adequately explain the inconsistency. It also casts doubt on the reliability of the witness’ evidence.

The Tribunal has taken into account Mr Dai’s oral and written evidence that he met the applicant while he was working at the slaughterhouse in China. It accepts Mr Dai may have met the applicant for the first time in a work environment in China. However it is not satisfied this evidence overcomes the concerns discussed above. Nor is it satisfied Mr Dai’s evidence confirms for the Tribunal that the applicant worked at the slaughterhouse in the period claimed.
The Tribunal has taken into account Mr Huang’s claims that his signature is that which appears on the work certificate. The Tribunal has considered Mr Huang’s passport and the work reference letter and accepts the signatures appear to be the same. It is satisfied Mr Wenhui Huang signed the applicant’s work ref. However the Tribunal is not satisfied this overcomes the other concerns raised by the business not being registered or appearing on the National Enterprise Registration Credible Website in China. Nor does it overcome the concern that the slaughterhouse has never been registered in the Administration Bureau of Industry and Commerce system and is therefore not considered a legitimate business in China. Nor does it overcome the inconsistencies in his and the applicant’s evidence regarding the numbers of pigs slaughtered.
The Tribunal has had regard to the allegation received by the Department on 18 December 2015 alleging that the applicant does not have the required skills to work in the nominated occupation, that he had provided false work history documents and that he has never worked in China. It was also alleged the applicant bought rubber stamps and fabricated the documents. The Tribunal gave the applicant, pursuant to s.359A, an opportunity to comment on or respond to the information and it has taken that response into account. Essentially the applicant repeated his claims to have worked at the management station and to have completed a one year training course there. It also takes into account Mr Dai’s assertions that he first met the applicant and saw him working at the slaughterhouse during his business trip to China to recruit butchers. He also believes the allegation is vexatious and might be made by a jealous competitor. While the Tribunal has concerns about the reliability of some of the documents provided by the applicant, discussed above, the Tribunal gives little weight to an anonymous allegation where it does not have an opportunity to ask the source for further information about their allegations. Overall it does not consider an anonymous allegation to be reliable information on which to make its findings about the applicant’s work history in China.
Overall the Tribunal remains concerned that the management station was not registered in 2016 on the National Enterprise Registration Credible Website and it has never been registered in the Administration Bureau of Industry and Commerce system. It is not satisfied it is considered a legitimate business in China. It is not satisfied the woman who answered the phone in February 2017 was in fact working as an accountant for the business, given the applicant’s evidence that it had ceased operating in March 2016. It has serious concerns about the reliability of the slaughterhouse approval certificate dated 30 February 1999 (sic), and the certificate said to be from the Putian City Hanjiang Jiangkou Animal Husbandry and Veterinary Station dated 29 May 2017 stating the slaughterhouse was established by private fundraising and led by the town government from 1996 and that on 30 February 1999 (sic) received the Fujian Province Designated Livestock Slaughterhouse Approval Certificate issued by the Putian People’s Government with tax-free qualifications. Both of those documents, said to be from the authorities, refer to an invalid date, 30 February 1999. The Tribunal is not satisfied the applicant has adequately explained this anomaly. Also the applicant has not adequately explained the inconsistencies in the evidence regarding the number of pigs slaughtered per day. While the applicant and his witnesses, Mr Dai and Mr Wenhui Huang, have been emphatic the applicant was employed in the position of butcher from January 2014 to October 2015, for the reasons given above, the Tribunal is not satisfied this is the case. It therefore finds that when lodging his application for the Subclass 457 visa and claiming to have been employed as a butcher in the period 27 January 2014 to 21 October 2015 for JSPSMS the applicant provided an incorrect answer.
The Tribunal therefore is of the view that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.
The delegate also found the applicant had not complied with s.103 because he provided with his visa application bogus documents; the work reference and the course completion certificate. When considering whether the applicant has given, or caused to be given, to the Department a bogus document, the Tribunal has applied the definition of bogus document as it is defined in s.5 of the Act.
For the reasons given above the Tribunal has found that it is not satisfied the applicant was employed as a butcher in the period 27 January 2014 to 21 October 2015 for JSPSMS. It notes the work reference states the applicant was employed as a butcher by JSPSMS from January 2014 to the date of the work reference 28 April 2015. Having considered the concerns discussed above the Tribunal is not satisfied the slaughter management station ever existed. It finds the evidence that it was temporarily closed for ‘rectification’ was probably fabricated to overcome the concern that the Post was not able to locate the business or its registration. The Tribunal has taken into account the applicant’s oral and written evidence and that of his witnesses, including the emphatic assertions that he worked for the business as claimed. However it is not satisfied the applicant was employed as a butcher by JSPSMS from January 2014 to the date of the work reference 28 April 2015.
The work reference is signed by Mr Wenhui Huang. Having considered the work reference and Mr Huang’s signature on his passport, the Tribunal is satisfied he signed the document. It is satisfied it was issued in respect of the applicant and so the document does not meet the definition in s.5(1)(a).
In considering whether the document meets the definition of bogus document in s.5(1)(b) the Tribunal notes ‘counterfeit’ is not a defined term. Therefore the Tribunal has considered the ordinary meaning of the word. In doing so it considered the Macquarie Dictionary definition which includes pretended, an imitation designed to pass as an original, a forgery, to resemble and to simulate, not genuine. The (on-line) Oxford Dictionary includes made in the exact imitation of something valuable with the intention to deceive or defraud, and pretended or sham. The Tribunal is of the view the work reference provided to the Department is counterfeit because it was manufactured to deceive the Department into believing that the applicant had worked as a butcher for the slaughter management station in the period claimed, for the purposes of meeting the employment background, skills and qualifications requirement for the grant of a Subclass 457 visa. The Tribunal finds the course completion certificate issued on 23 March 2015 to be counterfeit for the same reasons.
The Tribunal concludes therefore, that the applicant has given, or caused to be given, to the Minister or an officer of the Department, bogus documents, the work reference and the course completion certificate, within the meaning of the definition of 'bogus document' at s.5(1)(b) of the Act, because it is satisfied those documents are counterfeit.
For these reasons, the Tribunal finds that there was non-compliance with s.103 by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:
·     the correct information
·     the content of the genuine document (if any)
·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
·     the circumstances in which the non-compliance occurred
·     the present circumstances of the visa holder
·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·     any other instances of non-compliance by the visa holder known to the Minister
·     the time that has elapsed since the non-compliance
·     any breaches of the law since the non-compliance and the seriousness of those breaches
·     any contribution made by the holder to the community.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The Tribunal has taken into account the applicant’s response to the s.107 notice, and his and his witnesses’ oral and written evidence.
The correct information
The Tribunal is not satisfied the applicant was employed by JSPSMS in the position of butcher from January 2014 to October 2015. For the reasons given above it is not satisfied the business existed. As it has found the applicant’s evidence regarding his employment unreliable it is unable to find whether and how he was employed during this period.
The content of the genuine document (if any)
The Tribunal is not satisfied the work reference and the course completion are genuine because it has formed the view they were manufactured for the purposes of the visa application. There is no evidence to suggest that genuine documents have been altered. The Post was unable to find any publicly available listing for the business. There was no registered record of the business on the National Enterprise Registration Credible Website.
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
The applicant was granted the Subclass 457 visa, in part, on the basis of his evidence regarding his employment background, skills and qualifications. As indicated in the delegate’s decision record provided to the Tribunal by the applicant, had the Department been aware that the applicant had provided incorrect information and bogus documents the visa application would have been refused.
The circumstances in which the non-compliance occurred
The Tribunal is of the view the applicant provided incorrect answers on his visa application and bogus documents to achieve his preferred migration outcome, the grant of the Subclass 457 visa. The non-compliance occurred in circumstances where the applicant needed to demonstrate he had the skills, qualifications and employment background necessary to perform the duties of the nominated occupation, butcher, as required by cl.457.223(4)(da).
The present circumstances of the visa holder
The Tribunal accepts that the applicant is currently working for the sponsor in the nominated occupation. It is of the view the applicant probably has skills as a butcher attained while he resided in Argentina. The Tribunal accepts the applicant is living alone in Australia. His family and partner reside in China. The applicant has stated he does not plan to stay in Australia however he also stated he has no connections and is reluctant to return to China.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The applicant is not aware of any concerns regarding his subsequent behaviour. The Tribunal notes the delegate is concerned that the applicant continues to maintain his position that the information he provided is correct. The Tribunal is also concerned that the applicant was not honest and frank in his evidence regarding his employment in China and the documents in question.
Any other instances of non-compliance by the visa holder known to the Minister
The delegate is not aware of any other instances of non-compliance known to the Minister.
The time that has elapsed since the non-compliance
The non-compliance occurred, 3 years ago, in October 2015 when the applicant lodged his application for the Subclass 457 visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is no evidence to indicate that the applicant has breached the law in Australia since his non-compliance.
Any contribution made by the holder to the community
In response to the s.107 notice the applicant did not give evidence regarding any contribution to the community. At the hearing he made a vague reference to volunteering however he provided no particulars. He also stated that he pays tax which the Tribunal considers to be a requirement of the law rather than a contribution to the community.
Any other relevant matter
As indicated above while the factors set out in r.2.41 must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in this case.
The Tribunal is of the view it is relevant that the visa in question is a temporary work visa and, while the applicant indicated he has no connections to return to in China, at the time of grant there was no certainty that the applicant would be eligible to remain in Australia permanently. The Tribunal takes into account that while the applicant has expressed reservation about returning to China he does have family and a partner residing there.
The Tribunal takes into account that the applicant is currently working for the sponsor in skilled employment and the sponsor hopes he can remain in Australia to train others because he finds it difficult to find butchers.
The Tribunal is not aware of any other persons in Australia whose visas would be cancelled as a consequence of the applicant’s visa being cancelled. The applicant has not indicated that any international agreement would be breached as a result of the visa cancellation. As indicated in the delegate’s decision record, the applicant would be required to depart Australia and may be subject to s.48 bar if his visa is cancelled. However the Tribunal notes that this is the intention of the legislation.
Conclusion
The Tribunal has found the applicant provided incorrect information and bogus documents to meet the employment background, skills and qualifications requirements for the grant of a temporary visa and there has been non-compliance with ss.101(b) and 103. It is satisfied the visa was granted, in part, on the basis of this information and documentation. In considering the prescribed circumstances and any other relevant matter, the Tribunal notes that the applicant is currently employed as a butcher for the sponsor, work consistent with the purpose for which the Subclass 457 visa was granted. It accepts that the sponsor would like the applicant to remain in Australia to train others because he has had difficulty finding butchers. However the Tribunal notes the visa is temporary and, while the applicant has expressed reluctance to return to China because of his lack of connections, there was no certainty when the Subclass 457 visa was granted that the applicant would be eligible for a permanent visa in the future. The Tribunal is satisfied the applicant has a partner and family in China and there is no evidence to suggest any international obligations would be breached as a result of the cancellation. The Tribunal takes into account the applicant’s preference to not a record of a visa cancellation. It is aware that if the visa is cancelled the applicant will be required to depart Australia and he be may subjected to a s.48 bar preventing certain future visa applications onshore. The applicant could then be affected by certain public interest criteria affecting future visa applications. This is an intentional consequence of the legislation. The Tribunal has considered this but is not persuaded it outweighs the reasons in favour of cancelling the visa. Overall, having considered all of the factors in r.2.41 and other relevant matters, the Tribunal is of the view the evidence weighs in favour of cancelling the visa.
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
Denise Connolly
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.

[2018] AATA 5869

22 October 2018

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Immigration

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