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

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).
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.
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.
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.
The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: JBS AUSTRALIA PTY LTD (Migration) [2024] AATA 2206
Case: [2024] AATA 2206
Decision Date: 19 June 2024

CaseChat Overview and Summary

This matter concerned an appeal by JBS Australia Pty Ltd regarding a Temporary Skill Shortage (Class GK) visa (Subclass 482). The core dispute revolved around whether the visa applicant had provided false or misleading information in relation to their claimed employment as a beef boner, which was a critical factor in meeting Public Interest Criterion 4020 for the visa grant. The decision was made by De-Anne Kelly.

The legal issue before the Tribunal was to determine if the visa applicant satisfied Public Interest Criterion 4020, specifically whether the applicant had provided, or caused to be provided, a bogus document or information that was false or misleading in a material particular concerning their application. This criterion also encompasses requirements related to previous visa refusals and the applicant's identity. The Tribunal also considered whether any compelling or compassionate reasons existed to justify a waiver of certain PIC 4020 requirements, noting that identity requirements could not be waived.

The Tribunal found that the matter should be remitted for reconsideration. While the interpretation of information provided during the hearing was confirmed as clear, the Tribunal examined the applicant's claim of employment as a beef boner from May 2019 to the application date, supported by a reference letter and an accountant's letter. The Tribunal also noted the applicant's submission of a UK employment contract and a granted UK visa for a butcher role, and the applicant's stated intention to travel to Australia if the Australian visa was granted. The Tribunal did not make a final determination on the truthfulness of the provided information but concluded that further reconsideration was necessary.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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). 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. 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. Mr Hewitt was a credible and forthright person as was the visa applicant Mr Shao. It is noted that following the hearing there were no further submissions from any of the parties. 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. 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?

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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 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 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). 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. 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. Mr Hewitt was a credible and forthright person as was the visa applicant Mr Shao. It is noted that following the hearing there were no further submissions from any of the parties. 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.