Jiang (Migration)

[2023] AATA 3477

Jiang (Migration) [2023] AATA 3477 (10 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Zuzhen Jiang
Mrs Liling Lei
Miss Ruxin Jiang

CASE NUMBER:  2312722

HOME AFFAIRS REFERENCE(S):         BCC2018/5301135

MEMBER:Peter Emmerton

DATE:10 October 2023

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas

Statement made on 10 October 2023 at 12:07pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – labour agreement stream – skilled meatworker – position still available – previous remittal on other grounds – applicant ceased employment – uncorroborated claims of unsafe workplace conditions and injury – currently working for another employer – members of family unit – adult child’s university study and professional employment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 186.242(5)

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 8 August 2023 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 27 November 2018. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Labour Agreement stream, to work in the nominated position of Skilled Meatworker.

5. The delegate refused to grant the visas because the applicant did not meet cl 186.242(5) of Schedule 2 to the Regulations because they were not satisfied the position was still available to the applicant.

6. The applicants appeared before the Tribunal on 10 October 2023, to give evidence and present arguments, Mrs Liling Lei and Miss Ruxin Jiang both gave evidence in addition to the primary applicant.

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the position is still available to the applicant.

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

11. The Tribunal has in addition read and carefully considered the evidence presented to it prior to the hearing.

    ·Applicant statement, undated, received on 3 October 2023

    ·Income Tax Return 2014-15, 2015-16, 2016-17, 2017-18

    ·Income Statements, Financial Year 2018-19, 2019-20, 2020-21, 2022-23, 2023-24

    ·Liling Lei Tax returns, 2014-15, 2015-16, 2016-17, 2017-18

    ·Liling Lei Income Statements, 2018-19, 2019-20, 2020-21, 2022-23, 2023-24

    ·University of South Australia Selections of Tax Invoice/Statement, Miss Ruxin Jiang, appears between 2019 and 2023-2024

    Requirements relating to the nominated position

12. Clause 186.242 as applicable in this case is set out in full in the attachment to this decision. Essentially, it requires that the visa application relates to a position, as identified in that application, which is either nominated by the employer in accordance with a current Labour Agreement or, where the nomination was made on or after 18 March 2018, is nominated in the Labour Agreement stream and which identifies the visa applicant in relation to that position.

13. In addition, this criterion also requires that:

    ·if the related nomination was made before 18 March 2018, the labour agreement requirements relating to the application have been met

    ·the nomination has been approved and not subsequently withdrawn

    ·there is no ‘adverse information’ known to Immigration about the employer who made the nomination or a person ‘associated with’ that employer (within the meaning of reg 1.13A or reg 1.13B); or it is reasonable to disregard any such information

    ·the position is still available to the applicant, and

    ·the terms and conditions of employment will be no less favourable than those provided to an Australian citizen or permanent resident performing equivalent work in the same place.

14. The Department found that the evidence indicates the position is no longer available to the visa applicant. Subsequently they found clause 186.242(5) was not satisfied and consequently refused the visa.

    History of the application

15. An application for an Employer Nomination Scheme (subclass 186) visa was made by the applicant on 27 November 2018 under the Labour Agreement stream.

16. On 21 May 2021, the delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of clause 186.213(1) of Schedule 2 to the Migration Regulations 1994.  They believed that the visa applicant had provided or caused to be provided, a bogus document or false or misleading information in relation to this visa application. Therefore PIC 4020 was not satisfied and subsequently the requirements of 186.213(1) could not be satisfied.

17. On 6 June 2021, the applicant applied to the Administrative Appeals Tribunal (AAT) for merits review of the refusal decision.

18. On 3 August 2022, the AAT remitted the application for reconsideration, with the direction that the applicant meets the following criteria for Subclass - Employer Nomination Scheme visas: Public Interest Criterion 4020 for the purposes of cl 186.213(1) of Schedule 2 to the Regulations.

19. On 18 November 2022, the Registered Migration Agent used at the AAT hearing, (Mr Chen, MARN: 0854662), advised the Department they were not the representative for the applicant’s visa application and all correspondence should be forwarded to the previous migration agent.

20. On 21 November 2022, the Department sent a request for more information to the applicant’s previous migration agent, (Ms Silburn, MARN: 1571764). Amongst the information requested was written confirmation from the nominating employer confirming that the position was still available to the applicant.

21. On 19 December 2022, Ms Silburn, attached a Form 956 to the application advising their appointment had ended.

22. On 23 December 2022, a Departmental officer sent an email to the applicant’s personal email address, reminding them that the information requested on 21 November 2022 was still outstanding.

23. On 28 December 2022, the applicant provided a letter of explanation stating that they had contacted the HR Manager of Teys Naracoorte twice but had not received a response. The applicant wrote, "I would explain some reasons why I quitted my job in Teys Naracoorte…I think I have underpaid my employee and concerns about the unsafe working condition, so I have to quit my job in Teys Naracoorte.”

24. On 1 February 2023, a Departmental officer emailed the applicant asking if they had ceased employment permanently with Teys Australia Naracoorte Pty Ltd. The applicant was provided with 28 days to provide a response. At the time of the delegate’s the Department had not received a response.

25. On 15 February 2023, the applicant's former migration agent, Ms Silburn, advised that they had received confirmation from Teys Australia Naracoorte Pty Ltd that the applicant ceased employment with the company on 2 July 2021. The migration agent advised the applicant was no longer employed by Teys Australia Naracoorte Pty Ltd and this status remained unchanged since ceasing employment.

26. On 1 May 2023, a Natural Justice letter was sent to the applicant's email address. The applicant was invited to comment on the unfavourable information that may lead to a decision to refuse their application. The applicant was invited to provide any claims and documentary evidence to demonstrate why the adverse information should be disregarded under clause 186.242(5). The applicant was also advised that they have the option of withdrawing their application. The Department clearly explained that if the applicant did not provide a response within 28 days and the application has not been withdrawn, then the application would be refused. The Department had not received a response at the time of the delegate’s decision.

27. On 8 August 2023 the application was refused under clause 186.242(5).

28. On 22 August 2023 an application for review was received by the AAT.

29. On 3 October 2023 the Tribunal received evidentiary submissions from the visa applicant.

30. On 10 October 2023 the AAT conducted the review hearing.

31. When the visa applicant first came to Australia he worked as a Skilled meatworker for Thomas Foods Murray Bridge. He then moved to Teys Naracoorte in what he believed was a similar role. The Tribunal accepts this as fact, as it is supported by written evidence in addition to the applicants verbal and written claims. According to the applicant Teys Naracoorte stated they would sponsor him but at a lower rate of pay than he received at his previous role.

32. In his written statement claims were made that the conditions at Teys Naracoorte were dangerous and were akin to modern day slavery. A range of claims of unreasonable work expectations were made as were acts of intimidation. A further claim of a workplace injury was made without any supporting evidence. All of these claims are unverified.

33. The Tribunal notes the following statement made by the applicant in his written submission dated 3 October 2023. No corroborating evidence was tendered.

    ... ‘Every day I went to work like a prisoner.Manager,supervisor and QA like the policeman of a prison, over-monitor my work,because no matter how hard I work, I could never let them satisfied.Manager Steve always said to me ,99% is not enough,should be 100%.It’s a serious threat to me and I was scared. I was so nervous and was forced to work like modern slaves. I am deceived into accepting employed where I am exploited through a type of modern slavery. I am recruited for a role with certain pay and condition, but on arrival final different terms condition and exploited modern slavery type practices.Some examples of threats or punishment used to exploited workers:removal of rights or privilege,intimidation and threats,imprisoned or other physical confinement.Australia is committed to a couture of integrity,ethical behaviour and the provision of a safe,fair and honest country.we have in a place a modern slavery country which has been established to enable a coordinated approach to tackling modern slavery and respecting human being.All forms of slavery including forced labour is not allowed.’ …

34. The applicant then stated … ‘So I have to quit my job in Teys Naracoorte and then the department of immigration should consider the reason for my PR.’…

35. The Tribunal provided opportunity at the hearing for the applicant to discuss the claims made in his written statement. It notes that no evidence was presented to corroborate the claims in relation to the work practices claimed to have taken place at Teys Naracoorte. It does however believe the evidence provided indicates a circumstance the applicant believed was unfavourable to his wellbeing.

36. Under questioning the applicant agreed that the salary offered at Teys was 1 reason for his resignation in addition to the workplace conditions he stated he experienced. The Tribunal explained it was unable to assist in the aspects of his workplace dispute as stated in paragraph 33 of this decision and that an authority such as WorkSafe may be an appropriate organisation to assist. The Tribunal also suggested that it may be in the best interest of the applicants to seek legal advice to determine alternative pathways if the visa cannot be approved.

37. When asked if the applicant had left his forementioned role he clearly stated he had and that he had resigned. The Tribunal asked when that had taken place, it was noted that the statement made by his previous employer indicated he left on 2 July 2021. This was not disputed at the hearing.

38. The applicant claimed he would return to work at Teys if the conditions were appropriate and when he sent a letter requesting they continue his sponsorship he did not receive a response.

39. The Tribunal also questioned the applicant as to whether he understood his visa was attacked to the previous employer, Teys. He answered that he did.

40. The primary applicant and his wife are both working currently in a mushroom farm in Murray Bridge, South Australia. This was corroborated by both the primary applicant and his wife. Their daughter Miss Ruxin Jiang has recently graduated from University in South Australia and is employed as a structural and construction engineer. All 3 members of the family appear to be working full-time and are contributing members of a society they respect and of which they clearly expressed they wish to stay members.

41. ATO Income statements provided by the applicant indicate employment during FY 2022-23 and FY 2023-24, at the time of reporting on 28 September, at Advance GW Pty Ltd. Under questioning the applicant agreed this was correct and that he was still working there.

42. It is clearly indicated to the Tribunal that the visa applicant is no longer working for the nominating entity in his application. There is no evidence before it to suggest that he is able to re-join the workforce of his previous employer. The position therefore is no longer available to the applicant. Subsequently, he cannot meet the requirements in cl 186.242(5) of Schedule 2 to the Regulations.

43. Therefore, cl 186.242 is not met.

44. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Labour Agreement stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Labour Agreement stream have not been met, the decision under review must be affirmed.

    DECISION

45. The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

    Peter Emmerton
    Member

    
    

    ATTACHMENT A

    186.242(1)     The position to which the application relates is the position:

    (a)nominated in an application for approval that:

    (i)identifies the applicant in relation to the position; and

    (ii)is made in relation to a visa in a Labour Agreement stream; and

    (b)identified in the application for the grant of the visa.

    (2)     The requirements of the labour agreement have been met in relation to the application.

    (3)     The Minister has approved the nomination.

    (4)     The nomination has not subsequently been withdrawn.

    (4A)    Either:

    (a)there is no adverse information known to Immigration about the employer who made the nomination or a person associated with the employer; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the employer who made the nomination or a person associated with that employer.

    (5)     The position is still available to the applicant.

    (6)     The terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

    (a)are provided; or

    (b)would be provided;

    to an Australian citizen or an Australian permanent resident for performing equivalent work in the workplace to which the application relates at the same location.