JBS AUSTRALIA PTY LTD (Migration)

[2024] AATA 2206

JBS AUSTRALIA PTY LTD (Migration) [2024] AATA 2206 (19 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  JBS AUSTRALIA PTY LTD

VISA APPLICANT:  Mr Shuai SHAO

REPRESENTATIVE:  Ms FANG LIU (MARN: 1463212)

CASE NUMBER:  2314141

HOME AFFAIRS REFERENCE(S):          BCC2023/1062004

MEMBER:De-Anne Kelly

DATE:19 June 2024

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a GK – Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 482 - Temporary Skill Shortage visa:

·Public Interest Criterion 4020 for the purposes of cl 482.217 of Schedule 2 to the Regulations

Statement made on 19 June 2024 at 3:34pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – false or misleading information – claimed employment – beef boner – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 482.217; Schedule 4, 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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 August 2023 to refuse to grant the applicant a GK – Temporary Skill Shortage (Class GK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 10 February 2023. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 482.217 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the applicant provided a false certificate of employment which stated he had been employed at Dachang Hui Autonomous County Hongshun Meat Products Co., Ltd from May 2019 to the date of application in the position of slicer but this was at odds with information from senior managers at the same meatworks given when an integrity check was conducted by telephone on 9 March 2023. Attachment B contains an extract of the delegates decision.

3. Originally the hearing was scheduled for 29 April 2024 however the agent on 22 April 2024 requested a postponement on the basis that the employer representative Mr Jackson Hewitt was overseas. The Tribunal on 22 April 2024 asked for a copy of an e-ticket and evidence of when Mr Hewitt was returning to Australia before granting a postponement. On 26 April the agent advised that Mr Hewitt had returned and was back at work and requested a postponement in order for him to prepare and get ready. The hearing was subsequently postponed to 2 May 2024.

4. The review applicant appeared before the Tribunal on 2 May 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Shuai SHAO the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The review applicant was represented in relation to the review.

   For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Interpretation

6. On a number of occasions during the hearing the Tribunal asked if the interpretation was clear and could be understood and this was confirmed. Answers were in context as further evidence that the interpretation was clear.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 482.217 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).

8. 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.

9. Mr Hewitt, the Group Manager Talent and Acquisition gave an overview of the JBS operation which includes meat processing and manufacturing with 10,000 employees across Australia including skilled meatworkers, slaughters, boners and slicers.  They experience significant skilled labour shortages and the Labour agreement that allows them to being in skilled workers is key to their success.

10. Mr Hewitt was a credible and forthright person as was the visa applicant Mr Shao.

11. It is noted that following the hearing there were no further submissions from any of the parties.

12. The applicant applied for the visa 10 February 2023 and submitted in his application that he had worked as a beef boner from May 2019 to the date of application for Dachang Hui Autonomous County Hongshun Meat Co., Ltd and on his resume the contact was given as the Factory Manager Xuejun WU. A reference letter 29 August 2022 from Mr Wu was submitted. Letter from Huaping Dai the accountant.

13. It is noted that the applicant submitted an employment contract with Anglo Beef Processors ABP based in the United Kingdom to be employed with start date 26 February 2024 to 26 February 2029 and to be based in Newry UK. A UK visa was granted to facilitate the employment as a butcher. Mr Shao appeared via video link from the UK. When asked what he would do if the Australian visa was granted Mr Shao stated that he would choose to go to Australia.

    Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?

14. 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.

15. 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.

16. 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.

    Point #1- Delegate.

17. The first point the delegate made was as follows.

    The primary applicant was not at work during claimed normal work hours, raising serious concerns over the genuineness of claimed employment.

18. In the hearing the applicant advised that he was a boner and he specifically told the delegate that time the time he finishes work relates to the tasks of the day and the production line starts first with the boners and they are the first to get off. There were 3 telephone calls from the Consular Officer and he had left after 3.00pm when the last call was made. There were 30 to 40 people who worked in the China meatworks. He gave context to his workplace by stating that there are “Floaters” who move to different part of the factory.

    Point #2 – Delegate.

19. The second point the delegate made was as follows.

    Staff who answered the companies landline number advised twice in different phone calls
    that they are the sales department. However, during the interview with Mr. Wu, he advised
    his business has no sales staff/department.

20. In the hearing Mr Shao asked to be allowed to give an explanation and said sales was the word used and sales department and using these words gave some confusion. He explained in detail that there is only the one number on the company website and on their packaging so this number and the staff in the office get calls about all aspects of the operation on this one number. The company doesn’t have a separate sales department since everyone is responsible for taking sales enquiries, but Mr Wu is correct in saying there is no designated sales department. The person who answered the phone when the Consular Officer rang was wife of the boss of the factory and she was not the person nominated to answer the questions. She advised that they contact Mr Wu as she was not authorised to answer such questions. When the delegate asked what she was doing she just responded sales and did not expand on all the administrative responsibilities of the main office. As the wife of the owner she gave an easy and understandable answer.

21. Point #3 – Delegate.

22. The third points made by the delegate are as follows.

    Mr. Wu stated employees are supplied with two sets of work knives all the times. However,
    the primary applicant stated the company does not supply knives, the employees buy
    knives themselves. Whether work tools are supplied is key and relevant to the primary
    applicant’s everyday work, having inconsistency in this area raises serious concern over the
    genuineness of claimed employment.

23. Mr Shao explained that this is another misunderstanding and both Mr Wu and he acknowledged that the company only provides knives to the slicers and not the boners. Mr Shao is a boner and he buys his own knives and when asked why that was the case he replied slicers trim meat but boners have more wear and tear because they are cutting against bone. Boners prefer to choose their own knives which are generally 15cm in length and quite narrow and the boner has to hold the knife in a particular way to debone the carcass. Some boners prefer curved blades and others straight while the choice of handle is different for each boner as well. It is very personalised, and he has three knives at any given time and pays about RMB 100 for a knife. When asked about how he sharpens his knives he became very animated and gave an extraordinary demonstration via video link on how to sharpen a knife. This involved firstly a rough stone and then a finer stone to fine tune the blade. This demonstration left no doubt in the mind of the Tribunal that he is genuinely a boner.

24. The Tribunal finds the other points raised by the delegate to be adequately explained by Mr Shao and it finds that his employment history is genuine.

25. Therefore, the applicant meets PIC 4020(1).

26. On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl 482.217.

    DECISION

27. The Tribunal remits the application for a GK – Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 482 - Temporary Skill Shortage visa:

    ·Public Interest Criterion 4020 for the purposes of cl 482.217 of Schedule 2 to the Regulations

    De-Anne Kelly
    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.

    …