Li (Migration)

Li (Migration) [2023] AATA 3910 (16 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Jinhong Li
Ms Yuting Li
Ms Dejiao Yang
REPRESENTATIVE:  Ms Anna Gunning-Stevenson
CASE NUMBER:  2109951
HOME AFFAIRS REFERENCE(S):          BCC2021/103025
MEMBER:De-Anne Kelly
DATE:16 November 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the applications for Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 186 - Employer Nomination Scheme visas:
·Public Interest Criterion 4020 for the purposes of cl 186.213(1) of Schedule 2 to the Regulations

Statement made on 16 November 2023 at 3:30am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Labour Agreement stream – bogus document – work reference – limited evidence of employment details – skilled meat worker shortage – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 57, 65, 359
Migration Regulations 1994, Schedule 2, cls 186.213, 457.223; Schedule 4, Public Interest Criterion 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 16 July 2021 to refuse to grant the applicants Employer Nomination (Permanent) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 11 January 2021. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl 186.213(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the applicant did not satisfy cl 186.213(1) because he did not satisfy PIC 4020. This was based on the fact the applicant had only provided a work reference in support of his work experience and when the Australian Post in China rang and conducted an employment integrity check it was found to raise concerns. There was scant other evidence of the applicants work experience. This was found to constitute false and misleading information in a material particular to the grant of a visa. No understand and explained again.
The applicant appeared before the Tribunal on 20 September 2023 to give evidence and present arguments. The hearing was originally scheduled for 3 August 2023 but had to be postponed.
The applicants were represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Procedural Matters.
On a number of occasions, the Tribunal asked if the interpretation was clear and could be understood and the applicant confirmed that he was satisfied and his answers were in context indicating that the interpretation was clearly understood.
S375 Certificate.
On 17 July 2023 the Tribunal wrote to the legal representative inviting them to comment on whether a section 375 certificate was valid and to do so by 3 August 2023. There was no response to the invitation.
In the hearing the Tribunal gave the applicant the “gist” of the information as below and invited him to respond to it within 14 days of the hearing.
The gist of the information covered by the certificate was that the Department ran an Employer Check on the visa applicants claimed work history in China. The work reference was for Fujian Minging County Slaughterhouse of Minquing County Food Company. The business was found to be genuine.
The number was phoned and the man who answered said he was from HR and “responsible for HR works”. He confirmed that 9 people had worked for them including the applicant and they had been employed for 4 or 5 years on 2,000 to 3,000 Yuan per month and they did not sign labour agreements with them. HR then advised that he speak with Mr Wu Yuenguang for details and gave him the contact number for this person.
Mr Wu provided the following information. The period of employment was 2012 to 2016, the pay was 1,000 to 3,000 Yuan per month paid in cash and they may have signed a labour agreement but if they had it would have been lost in the flood in 2016.
Mr Wu was asked if the applicant and another visa holder had been their employees but said he could not recall and advised the officer to contact another phone number for details which was the number for the HR person previously spoken to who was “responsible for HR works”. Mr Wu could not provide detailed information regarding the visa holders position held and main duties and responsibilities and whether he provided a work reference for them.
The HR responsible person said that six visa holders including the applicant used to be their employees however four of these people had in fact claimed in their visa application that they had worked for respectively Daching Hui Autonomous County Hongshun Meat Co Ltd, Yangxin Hongyuan Halal Meat Co Ltd and Dachang Hui Autonomous Country Xincheng Meat Co Ltd. Mr Li said this had nothing to do with him.
Both HR and Mr Wu claimed the applicants work was 4 to 5 years. Mr Wu was unable to confirm the position held, main duties and responsibilities. Neither HR or Mr WU were able to provide to the post any evidence to support their claims i.e. labour contracts, salary transaction record, tax payments and payroll packages.
Section 359AA of the Act
At the commencement of the hearing, the Tribunal explained that it may put information to the applicant, under s.359AA of the Act, that would be the reason, or a part of the reason, for affirming the decision that is under review and that it would explain why this information was relevant to the decision and how it may be relied upon in reaching a decision. The Tribunal also advised that the applicant would be given an opportunity to respond to this information in one of three ways: they could request an adjournment and the hearing could be stopped for 15 or 20 minutes or whatever period of time they wished and they could seek advice from the registered migration agent; the applicant could make a written submission within 14 days or an extended period of time if it requested an extension; or they could respond in the hearing. If they responded in the hearing, it would not prevent them from making a written submission within 14 days or a longer period if they requested an extension of time.
Section 359AA provides as follows:
(a) The Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so—the Tribunal must:
(i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant was previously granted a Temporary - Temp Work (Skilled) (UC457) visa based on a 1 November 2016 work reference provided by Fujian Province Minqing County Meicheng Livestock Slaughterhouse which stated he had worked as slaughterer and boner from 30 August 2012 to 1 November 2016. According to the applicant this letter was from Mr Wu Yueguang.
The applicant was nominated by Teys Biloela as a meat worker on a 186 visa on 11 January 2021.
On the 26 April 2021 the Australian post in China conducted an Employment integrity check with a HR staff member and a Mr Wu Yueguang of (Fujian Province Minqing County Meicheng Livestock Slaughterhouse.
On 2 July 2021 a second reference letter came from Mr Zhennan Chen (Former HR Manager of Fujian Province Minqing County Meicheng Livestock Slaughterhouse) stating “…This is to certify that Mr. Jinhong Li (DOB: 6 May 1973) has worked in our slaughterhouse as a boner and slaughterman from 30 August 2012 to 1 February 2017. He mainly engaged in meat boning and slaughtering. Mr. Li worked actively skilled during his work in our slaughterhouse…”.
The applicant was taken through this chronology of events.
The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 186.213(1) 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.
Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?
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.
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.
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.
Chronology
On 1 November 2016 a Work reference was provided by Fujian Province Minqing County Meicheng Livestock Slaughterhouse which stated the applicant had worked as slaughterer and boner from 30 August 2012 to 1 November 2016. According to the applicant this letter was from Mr Wu Yueguang.
On the 26 April 2021 the Australian post in China conducted an Employment integrity check with a HR staff member and a Mr Wu Yueguang of (Fujian Province Minqing County Meicheng Livestock Slaughterhouse.
On 2 July 2021 a second reference letter came from Mr Zhennan Chen (Former HR Manager of Fujian Province Minqing County Meicheng Livestock Slaughterhouse as below.
Translation
Fujian Province Minqing County Meicheng Livestock Slaughterhouse
Address: Hutouwan, Tankou Village, Yunlong Town, Minqing County, Fujian Province
Phone: 0591-22593566
STATEMENT
TO WHOM IT MAY CONCERN,
This is to certify that Mr. Jinhong Li (DOB: 6 May 1973) has worked in our slaughterhouse as a boner and slaughterman from 30 August 2012 to 1 February 2017.
He mainly engaged in meat boning and slaughtering. Mr. Li worked actively skilled during his work in our slaughterhouse.
Recently, I have received frequently telephone interviews from the Australian Consulate in Shanghai, and I am also cooperating with your work. However, the attitude of the officer is always aggressive and full of distrust, which disappoints me.
With the intention of helping the former employees of our factory, I would like to prove the authenticity of Mr. Jinhong Li's work in our factory again.
In addition, Fujian Province Minqing County Meicheng Livestock Slaughterhouse has been closed in April 2021 due to hidden dangers left by previous floods and environmental and pollution problems. Up to now, the management personnel have been evacuated.
Therefore, we will not be able to accept any telephone calls from you in the future. Please understand if any inconvenience is caused by this.
Fujian Province Minqing County Meicheng Livestock Slaughterhouse
Former HR Manager: Zhennan Chen (Signature)
2 July 2021
Evidence of Mr Jinhong Li
Mr Li was invited to describe his work in the meatworks in China.
His job was mainly to remove bones from the carcass and he was moved around wherever he was needed. He could not recall the exact number of staff but it would have been more than 100 people. They did not sign labour agreements. He tasks were mainly to remove the bones in the boning room and he did not work on the slaughter. They processed pigs mainly and occasionally goats. The Chinese like pork a lot.
The meatworks was only a 10 km drive from his home in his car. He did not make a lot of money working in other jobs but a friend told him that the slaughter houses were recruiting people to work abroad and he thought this was a good idea. He began to think about how he could go to Australia and decided to work in a Chinese meat factory and he would then have the opportunity to work abroad. He was not aware that at the time three years’ experience was required and that he had to learn English and he began to question himself because of his age but the migration agent said it was still possible to obtain permanent residency and it took a long time but now they are here and the application has been refused.
He is grateful to have the opportunity to address the Tribunal and no matter what the decision he has no regrets and is glad to have lived here. It is frustrating as some of work mates were granted but not Mr Li and it is the same delegate so maybe there is discrimination in the Department,
It has affected his daughter as he brought her here and ruined her university dream because they do not have the money for university. He is grateful and not asking for anything but has gone through a lot of pain and misery. He is prepared to go back to China if he has to but it is frustrating and Australia is meant to be a fair country and where everyone has a fair go.
Mr Li became quite emotional and impassioned and said he has sold all his belongings and has been working for Teys for all these years. He is not begging for his PR and just wants to be treated fairly. The excuse for refusing the 186 is groundless and they were asking for evidence he cannot provide. There are no labour agreements as there are so many factories and it is s different situation in China and many people only work for a few months. 70% of the companies are privately owned and China depends on these and theya re not well regulated as it is a developing country.
He would ask the delegate to visit China and see for themselves and then just refuse and ask the employers if they have signed labour agreements. They are asking Mr Li for payroll records and even a bank account, but they just gave him cash. There are hundreds of factories.
The Tribunal explained that the delegate and the Tribunal are bound by the legislative requirements. Mr Li is quite unhappy about the delegates decision which was good enough for other visa subclasses but not the 186 visa.
Mr Li said he did not earn enough to pay tax in China and it is different to Australia. He confirmed that he did not pay tax in China and nor did his wife who worked in a factory and earned 6,000 Yuan a month. She was also paid in cash. He would have liked to have social security and have a pension to support him and that is why he came to Australia and worked hard here. He was not asking for PR but wants to be treated fairly and not suffer. Mr Li became emotionally upset and very vocal.
Mr Li was asked how his pay was calculated in China; was it on the hours worked or the animals processed. The pay was worked out by the cashier who gave to them in an envelope with cash in it and their name on it. When asked if he had kept any payslips he replied that there was no reason to keep payslips. There is so much waste in Australia. It was put to Mr Li that this was his long term plan to work in the meat factory, learn English and migrate to Australia and if this was the case he would have likely kept any evidence he could to support this case. He was asked if he had any photos with old work colleagues on social media sites or other such material but he has changed phones some 7 or 8 times and has not kept any of that. The Tribunal explained that it was trying to be helpful by suggesting evidence he might have. He said he could ask his relatives to go back to his own home in China which he built and see what is there.
S359AA of the Act.
As such the Tribunal put under s359AA of the Act that it had concerns about the following and may conclude that he had provided false and misleading information or documents and this may be part or all of the reason to affirm the decision under review.
oDespite Mr Wu providing a reference check for the applicant he was unable to provide detailed information regarding the visa holders position held and main duties and responsibilities and whether he provided a work reference for them.
oIt is notable that the business was to have closed in April 2021 according to the 1 July 2021 reference letter from Mr Chen however at the time of the integrity check the phone were still being answered but there did not appear to be any employment records such as labour contracts, salary transaction record, tax payments and payroll packages available to confirm details as requested by the post.
oThe man “responsible for HR works” who we will refer to as the HR Manager and who the applicant in the hearing identified as Mr Zhennan Chen or “old Chen”, as he referred to him was the provider of the 2 July 2021 work reference but was unable to provide the post any evidence to support their claims i.e. labour contracts, salary transaction record, tax payments and payroll packages. Moreover Mr Wu had advised the post that the company may have signed a labour agreement with employees but this would have been lost in the flood of 2016.
oIt begs the question, if the labour agreements had been lost in 2016 and neither Mr Wu nor Mr Chen had access to employee records and were somewhat vague during the integrity check, how it came about that a mere two and half months later Mr Chen was able to write an extremely detailed reference letter with exact dates of employment
oMore concerning was that the HR Manager Mr Chen stated that six visa holders including the applicant used to be their employees however four of these people had in fact claimed in their visa applications that they had worked for other factories namely Daching Hui Autonomous County Hongshun Meat Co Ltd, Yangxin Hongyuan Halal Meat Co Ltd and Dachang Hui Autonomous Country Xincheng Meat Co Ltd. This gave rise to a question about Mr Chen the HR Manager’s credibility.
oThere was still no evidence of official supporting evidence available to the Tribunal such as labour contracts, salary transaction record, tax payments and payroll packages.

Mr Li chose to respond in the hearing and said that Mr Zhennan Chen called “old Chen” was already working there when he started work and he was the HR Manager but it is really not like that because they do not really have a HR Manager. Old Chen was a friend of the owner of the factory and he had to do something to justify his pay. He was an alcoholic and drunk and would take things but he does the paperwork. He remembered the day he started work there because it was Valentine’s day and Mr Chen was in his 60’s and drinking and while he may have had good intentions, he ruined things for Mr Li. When Mr Li got the refusal from the Department he contacted the migration agency and they tried to help the factory and also “old Chen” and he put in the exact dates in the reference. Old Chen had the start dates quite accurately and he wrote down those dates to make it look real and to help Mr Li. He believes there must be employee records because they recorded attendance but when he called them there was no assistance.
Mr Li was given a further 14 days to provide further evidence.
As part of a closing statement Mr Li said he had covered everything and he was paid 2,000 Yuan in cash in China and there was no tax paid and no social security and if he had been entitled to that there would have been no need to come to Australia. He threw away the pay slips and just like now with Teys, he throws away the payslips. He was grateful to put his case and share his frustration and pain. He would like to meet the Departmental delegates and speak to them so it fair and open.
Material submitted following the hearing.
Following the hearing the applicant provided the following items.
oChina: Individual Income Tax Law Revised.
oArticles “PRC raising Individual Income Threshold.
o(2) Envelopes with Chinese lettering.
oTranslations of envelopes
“Li Jinhong – October 2016 Salary (23 days) 2,300 Yuan
Fujian Province Minqing Country Meicheng Livestock Slaughterhouse”.
“Li Jinhong – June 2016 Salary (26 days) 2,600 Yuan
Fujian Province Minqing Country Meicheng Livestock Slaughterhouse”.
The Tribunal has carefully considered this evidence and finds that the applicant did not pay tax in China and this evidence is not available. The pay envelopes from June and October 2016 , simply prove that the applicant worked at Fujian Province Minqing Country Meicheng Livestock Slaughterhouse in 2016 but not how long his employment was there or the skills, duties and responsibilities undertaken by the applicant. He could have a been skilled meatworker or he could have been in a menial packing job.
Statement by Teys Australia 25 July 2023
In the statement by Teys they emphasise that the meat industry is critical to Australia and they are a significant employer in regional Australia but there is a shortage of Australian employees and therefore the need for sponsored skilled meatworkers. Recruiting and retaining these workers is a priority for Teys and especially since they are presently short skilled meat workers. Mr Li the applicant has now been there for 6 years and is a competent skilled meat worker who contributes to the Teys business particularly in Biloela.
Teys are well respected in Queensland and a major contributor to the cattle industry and it’s future particularly in Central Queensland. The Tribunal acknowledges the points made by Teys and the struggle they have to recruit skilled meat workers and recognises that Mr Li is now a skilled meatworker as evidenced by the skills assessment submitted by Teys. However, the question for the Tribunal regarding Teys evidence is whether the end justifies the means. It is not surprising that after working and being trained by Teys, the applicant is a skilled meatworker now, the question is whether the applicant was a skilled meatworker with two years’ experience at the time of application such that his evidence was not misleading or false. Weight is given to Teys submission, but it does not go to the central question of whether misleading or false evidence was provided by the applicant. Rather Teys submission is about whether an exemption from PIC 4020 should be made.
Submission from the legal representative 27 July 2023.
This submission raised concerns over the integrity check undertaken by the post on 26 April 2021 and later the legal representative in their letter of 4 October 2023 stated they continued to rely upon this previous submission.
The legal representative notes that the refusal letter from the Department refers to a an integrity check conducted on 26 April 2021 where an Australian post officer contacted Fujian Province Minqing County Meicheng Livestock Slaughterhouse) (the Former Employer). The legal representative describes this checks as follows.
15. The officer apparently called the company's contact number 0591-22332318 (as listed on Aiqicha website) and no one picked up the phone.
16. It is alleged that the officer then called company’s contact number 0591-22593566 (as provided in the applicant’s work reference) and a male person answered the phone. The male person claimed he was from the HR office and is responsible for HR works. The HR staff (male person) confirmed that the Applicant was a previous employee.
17. The HR staff provided the following details:
(a) the applicant’s duration of employment was 4 or 5 years;
(b) the monthly salary was RMB 2,000 to RMB 3,000 and was paid in cash;
(c) the company did not sign a labour contract with the applicant.
18. The HR staff then advised the officer of the contact for Mr WU Yueguang on his phone number 13774588888 for details. Mr WU apparently provided the following information:
(a) the applicant’s duration of employment was about 2012 to 2016;
(b) the monthly salary was RMB 1,000 up to RMB 3,000 and was paid in cash;
(c) the applicant may or may not have signed a labour contract, but if he signed the labour
contract, most of the files were lost in the flood which occurred in September 2016.
19. The letter mentions that when asked whether the Applicant used to be their employee, Mr WU stated that he could not recall and advised the departmental officer to contact 0591-22593566 for details. He could not provide detailed information regarding the position the Applicant held, the Applicant’s main duties and responsibilities, and whether he provided the work reference. He stated that the business had scaled down since 2016 and completely shut down in/around April 2021.
(a) This section of the Refusal Letter appears to contradict the previous paragraph, where Mr
WU did in fact confirm employment details.
20. The Refusal Letter confirms that both people the officer spoke to confirmed the Applicant’s employment. It is therefore unclear why the case officer continued to hold concerns the work history was not genuine.
The legal representative believes there are gaps in the integrity check and the reasoning of the decision-maker as well as compelling reasons as to why complete and detailed employment information may not be provided during the cold calls that the overseas post official conducted.
The Tribunal does not accept the arguments concerning gaps in the integrity check because it is evident that the post officer conducted themselves in a professional manner and elicited all the information they could from the telephone contacts.
Other cases that were remitted
The legal representative strongly submits that the remittal of this visa refusal is consistent with previous Tribunal decisions and the current assessment of similar matters before Home Affairs. While the Tribunal has considered the other cases presented it finds that the cirumstances of this case differ and as such little weight is placed on the decisions in other cases.
Legal representative letter 4 October 2023
The Tribunal notes the arguments put forward in the legal representative’s letter of the 4 October 2023 but does given weight to these arguments.
It is noted that the legal representative referred to country information for China but did not provide same however the Tribunal has found country information for China as below which states that the “scale of fraud is unmatched anywhere in the world. Fraudulent documents and the criminals who create them are highly sophisticated” and that this fraud is easily created for “proof of employment” such as has been provided by the applicant in the form of reference letters and employment contracts. It goes on the state that as most applications are online and digital there is “further opportunity to doctor copies of genuine documents”.
DFAT COUNTRY INFORMATION REPORT PEOPLE’S REPUBLIC OF CHINA
22 December 2021
Transparency International estimated 28 per cent of public officials accepted a bribe in 2020. The 2020 US Department of State Human Rights Report notes frequent corruption in court decisions, and areas ‘heavily regulated by the government’ such as land-usage rights, mining and infrastructure development. Bribery in healthcare is also reported, for example offering cash for prioritised procedures…
Births and deaths are recorded on a hukou and a birth certificate is required to apply for a hukou. Without a hukou, the issuance of a passport is unlikely. Registration of a child on a hukou must be done inside China.
5.44 Bank statements, academic transcripts, proof of employment and other documents are much easier to create fraudulently than are passports or NICs. DFAT assesses that these documents are relatively easy to obtain and are in common circulation.
5.45 In general, fraudulent documents in China are very common and the scale of fraud is unmatched anywhere in the world. Fraudulent documents and the criminals who create them are highly sophisticated. Criminal syndicates may provide a suite of documents to asylum applicants. As most applications for visas are made online there is further opportunity to doctor copies of genuine documents that are uploaded into the system.
Summary
Taking all into account the Tribunal finds that the Australian post conducted a professional and appropriate employment integrity check and correctly drew the conclusion that the HR Manager later identified as Mr Chen was unreliable since he had identified visa holders as employees who had never claimed to work for Fujian Minging County Slaughterhouse of Minquing County Food Company. As such the Tribunal gives little weight to the reference letter 2 July 2021 from former HR Manager Mr Zhennan Chen or to his evidence to the post officer.
The Tribunal does give weight to the reference letter 1 November 2016 from Mr Wu Yuenguang because this would have been written very soon to the floods destroying evidence and in the post integrity check Mr Wu despite not having access to records could recall that the applicant had worked from 2012 to 2016, was paid 1,000 to 3,000 Yuan and they may have signed a labour agreement.
The Tribunal places some weight on the evidence of Mr Li who was able to descibe the circumstances that caused him to seek a position in the meat works so he could migrate to Australia. It also places weight on his detailed description of his life and work at the meat works and the pay envelopes which were discovered from 2016 although it is noted that these pay envelopes could have easliy been forged.
The Tribunal found little weight can be given to the legal representative’s claims that this was a flawed employment check. It also found that little weight can be given to the legal representative’s claims that other cases were remitted based on flawed integrity checks or an acknowledgment of cultural and regulatory differences between China and Australia since these cases varied from the facts in this case.
The Tribunal places significant weight on the country information from Department of Foreign Affairs and Trade that fraud in China is sophisticated and unmatched anywhere in the world including fraudulent proof of employment. The Tribunal considers that this applies to the letter and evidence given Mr Chen but not to the evidence of Mr Wu.
The Tribunal finds on balance for the reasons above that the reference letter 1 November 2016 from Mr Wu Yuenguang of Fujian Province Minqing County Meicheng Livestock Slaughterhouse was not false and misleading.
Therefore, the applicant does meet PIC 4020(1).
On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl 186.213(1).
DECISION
The Tribunal remits the applications for Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 186 - Employer Nomination Scheme visas:
·Public Interest Criterion 4020 for the purposes of cl 186.213(1) 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.
…
Attachment B
Extract from the Delegate decision.
In support of the subclass 457 visa application the applicant provided information including a work reference dated 01/11/2016 (CLD2016/37469319 – Skills - Reference Letters.Jinhong LI.pdf). This document refers to the applicant’s employment at a business named Fujian Province Minqing County Meicheng Livestock Slaughterhouse from 30/08/2012 to the date in the position of Slaughterer and Boner.
During routine checks of the applicant’s work experience for the purposes of assessing the current application, the department received information which indicates that information contained in the above-mentioned work reference may be false or misleading in relation the applicant’s skills.
On 26/04/2021, a departmental officer called the company’s (Fujian Province Minqing County Meicheng Livestock Slaughterhouse) contact number 0591-22332318 (as listed in Aiqicha website) several times, but no one picked up the phone. The departmental officer then called the company’s contact number 0591-22593566 (as provided in the applicant’s work reference) and a male person answered the phone. The male person claimed he is from HR office and is responsible for HR works. The HR staff (male person) confirmed that the applicant, LI Jinhong used to be their employee.
The HR staff provided the following information regarding the applicant’s employment:
● the applicant’s duration of employment was 4 or 5 years;
● the monthly salary was RMB 2,000 to RMB 3,000 and was paid in cash;
● the company did not sign a labour contract with the applicant.
The HR staff advised the departmental officer to contact Mr WU Yueguang on his phone number 13774588888 for details. The department officer called Mr WU Yueguang on 13774588888 and Mr WU provided the following information:
● the applicant’s duration of employment was about 2012 to 2016;
● the monthly salary was RMB 1,000 up to RMB 3,000 and was paid in cash;
● the applicant may or may not have signed a labour contract, but if he signed the labour contract, most of the files were lost in the flood occurred in September 2016.
In response to the question whether the applicant used to be their employee, Mr WU stated that he could not recall and advised the departmental officer to contact 0591-22593566 for details. Mr WU could not provide detailed information regarding the applicant’s position held and main duties and responsibility, and whether he provided the work reference. He stated that their business has scaled down since 2016 and completely shut down since April 2021.
Based on the information provided by Mr Wu and HR staff, it is noted that there would not be any other official evidence to support the applicant’s employment (at Fujian Province Minqing County Meicheng Livestock Slaughterhouse), nor the payment of salary such as bank payment or social security/tax receipt as Mr Wu and HR staff, have stated that cash payments were made to the applicant.
As the information obtained by the department is inconsistent with the information provided in the document ‘Working Certificate’, and in the absence of any other official evidence to support the applicant’s employment there, I reached a preliminary view that the work reference the applicant submitted for the purposes of his subclass 457 visa application is false or misleading in relation to the applicant’s skills and experience.
Paragraph 457.223 of the Regulations applicable to the applicant’s subclass 457 visa application required the applicant to meet, among other criteria:
(1) The applicant meets the requirements of subclause (2) or (4).
Labour agreements
(2) The applicant meets the requirements of this subclause if:
…
(d) if the Minister requires the applicant to demonstrate that he or she has skills and experience that are suitable to perform the occupation — the applicant demonstrates that he or she has those skills and that experience in the manner specified by the Minister; …
I therefore consider that the apparently false or misleading information that the applicant provided is ‘false or misleading in a material particular’ as defined in PIC 4020(5) because it was false or misleading at the time it was given, and is relevant to the above-stated criterion
for a subclass 457 visa.
Additionally, due to the inconsistent information obtained regarding the applicant’s position, duties and period of employment, it is reasonably suspected that the document provided to the department in support of that 457 visa application is a bogus document.
Under policy, a bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that purports to have been, but was not, issued in respect of the person; or is counterfeit or has been altered by a person who does not have authority to do so, or was obtained because of a false or misleading statement, whether or not made knowingly.’
As both the referee and HR staff could not provide a consistent account of the applicant’s employment type, duties or the period of employment, and that the information provided is inconsistent with the information supplied to the department, it leads me to suspect that there is evidence that the applicant has been given, or caused to be given to the department a bogus document, and/or information that is false or misleading in a material particular.
As there is evidence suggesting that the applicant gave, or caused to be given, a bogus document, and/or information that is false or misleading in a material particular in relation to a visa that the applicant held in the period of 12 months before the application was made, it appears that the applicant fails to satisfy PIC 4020(1)(b).
On 09/06/2021, the applicant was invited to comment pursuant to section 57 of the Migration Act on my preliminary view that he appeared not to satisfy PIC 4020(1), and specify whether there are compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, that would justify the granting of the visa.
Since 09/07/2021, the following documents were provided in response to the invitation to
comment:
● A statement from the applicant
● A statement from Zhennan Chen (Former HR Manager of Fujian Province Minqing County Meicheng Livestock Slaughterhouse)
It is noted the statement from Zhennan Chen (Former HR Manager of Fujian Province Minqing County Meicheng Livestock Slaughterhouse) states “….This is to certify that Mr. Jinhong Li (DOB: 6 May 1973) has worked in our slaughterhouse
as a boner and slaughterman from 30 August 2012 to 1 February 2017. He mainly engaged in meat boning and slaughtering. Mr. Li worked actively skilled during his work in ourslaughterhouse…”. However this statement has not provided the details of the applicant’s main duties and responsibilities. Furthermore, the business, Fujian Province Minqing County Meicheng Livestock Slaughterhouse has not provided the important document such as the applicant’s labour contract. All these raise serious concern regarding the credibility of this statement.
I have also considered the statement from the applicant provided in response to the natural justice letter. This statement without any other official evidence to support the applicant’s employment at Fujian Province Minqing County Meicheng Livestock Slaughterhouse does not demonstrate that the applicant indeed was employed by Fujian Province Minqing County Meicheng Livestock Slaughterhouse in the position of Slaughterer and Boner. Hence, I place little weight on this statement from the applicant.
I am not satisfied that the responses and additional evidence provided by the applicant alleviates the concerns surrounding the legitimacy of the applicant’s claimed employment experience for the subclass 457 visa application.
Based on the evidence and information before me, I find that the applicant has given a bogus document, and/or information that is false or misleading in a material particular in relation to a visa that the applicant held in the period of 12 months before the application was made.
Therefore, I am not satisfied that the applicant meets PIC 4020(1)(b).
As PIC 4020(4) gives me the discretion to waive the requirements of PIC 4020(1)(b), I have considered whether there are compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, that justify the grant of the visa.
The terms compassionate or compelling are not defined in the Act or Regulations, therefore the ordinary meaning of the terms apply. Policy provides examples of circumstances that may be considered compelling circumstances affecting the interests of Australia as follows:
● Australia’s trade or business opportunities would be adversely affected were the
person not granted the visa (Note: under policy, gaining employer sponsorship is not considered sufficient grounds for a waiver)
● Australia’s relationship with a foreign government would be damaged if the person is not granted the visa or
● Australia would miss out on a significant benefit that the person could contribute to Australia’s business, economic, cultural or other development (for example, a special skill that is highly sought after in Australia) if the person was not granted the visa.
It is departmental policy that compelling circumstances affecting the interests of Australia would not include circumstances where the applicant merely claims that, if granted the visa, they would:
● work and pay taxes in Australia
● pay fees to an education provider or
● spend money in Australia
The circumstances for consideration must be of a compassionate or compelling nature in the way they affect an Australian citizen, permanent resident, or eligible New Zealand citizen, as per the wording of PIC 4020(4)(b). Compassionate or compelling circumstances that affect the applicant or members of the applicant’s family are not relevant for consideration unless they also directly affect an Australian citizen, permanent resident or eligible New Zealand
citizen.
I have considered the response from the applicant, the information provided within this application, as well as the information relating to the associated nomination. The applicant has worked in Australia in the meat industry with the nominator TEYS AUSTRALIA BILOELA PTY LTD since 14/02/2017. While I have considered his employment with the nominator this information is not a compelling or compassionate ground to waive the requirement for 4020(1)(b).
I therefore do not consider that there are compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
I therefore find there are no grounds per PIC 4020(4) to waive the requirement in PIC 4020(1)(b) in the applicant’s case.
As I have found the applicant does not satisfy PIC 4020, I also find that he does not satisfy sub-clause 186.213(1).
Attachment C
Documents including the following were provided with the application.
1)Bridging visa grant advice.
2)On line application for 186 subclass Visa in the Labour agreement stream showing work experience from 30 August 2012 to 1 February 2017 at Fujian Minqing County Meicheng L/Stock.
3)Personal documents such as police clearance, passports
4)Letter of support from Teys 11 November 2020.
5)letter from Teys advising skill assessment successful for the applicant such that he has a AQF certificate III in meat processing.
6)Invitation from the Department 9 June 2021 to comment.
7)Response from the applicant 30 June 2021 explaining that he had worked at the Fujian Province Minqing County Meicheng Livestock Slaughterhouse from August 2012 as a Boner and slaughterer however he was mainly doing meat boning. Most employees in the southern areas of China especially in rural areas are full-time casual workers who have not signed labour contracts with the factory but are on full-time shifts and do not enjoy regular benefits such as medical and social insurance. Southerners like to eat raw meat so the factory operates 7 days a week and there is no fixed day that is a rest day but we just apply in advance. His salary at that time was more than 2000 Yuan per month which was not very high but because the factory was close to his home could take care of his family and chose to stage his home town work. The work certificate was issued by his boss Wu Yueguang who the Department said could not remember his details but he believes this is normal since he resigned from the factory more than 4 years ago. He states that many people leave the factory every year or even every month and the boss of the factory cannot remember them all particularly since he is nearly 60 years of age. He has since learned from family and friends that the factory closed in April 2021 due to floods and environmental pollution problems. He states he is grateful to come to Australia for work and his salary is and he has a better life. His family have adapted well to life in Australia and he is confident in the jobs with Teys. All his work documents in China were not carried after the family moved to Australia and have now been lost and now they don’t have a home in China. Due to the serious situation of Covid he cannot return to China to prove his work experience. The pass that the Department considered his current difficulties in situation so that the whole family can live and work in Australia.
8)Statement 2 July 2021 from Fujian Province Minqing County Meicheng Livestock Slaughterhouse and Former HR Manager: Zhennan Chen stating the applicant worked in the slaughterhouse is a Boehner and slaughterman from 30 August 2012 to 1 February 2017. He states he has received frequently telephone interviews from the Australian Consulate in Shanghai with the attitude of the officer is always aggressive and full of distrust which disappoints him. He wishes to prove the authenticity of the applicant’s work in the factory which closed in April 2012 due to floods and environmental pollution problems. The management personnel have been evacuated and he states he will not be to accept any telephone calls in the future and to understand if any inconveniences caused by this.
Documents including the following were provided with the review application.
9)Notification of refusal of the visa application including notice of decision 16 July 2021.
10)Request from the legal representative for access to material 12 October 2021.
11)Letter from the applicant 30 June 2021
Dear Immigration Officer,
I am Jinhong Li, DOB: 6 May 1973. I received an investigation letter from the Immigration Bureau on 9 June 2021. The letter mentioned that you did not trust my work experience in China. I was shocked by this statement and wanted to make the following explanation.
At the end of August 2012, I went to work at the Fujian Province Minqing County
Meicheng Livestock Slaughterhouse. My position was boner and slaughterer. However, I
was mainly responsible for meat boning, and I would be arranged to do slaughtering when needed.
Because of the different physiques (sic) of countries, there are many things you don't
understand. In China, in the economically active southern regions, especially rural areas,
most of the employees are full-time casual workers, including meat industry, construction industry, factory assembly line workers are of this nature. There are many workers like us who have not signed a labor contract with the factory, that is, the so-called casual workers on full-time shifts. We cannot enjoy various benefits like regular employees.
In rural China, meat workers are not particularly good types of work, with low wages and no contract guarantees, so the factory does not pay us employee medical and social insurance.
This factory is a contract factory. As southerners like to eat raw meat instead of frozen
meat, the factory needs to operate seven days a week. We workers take turns to rest, and there is no fixed day that is a rest day. When we need a rest, we applied in advance.
My salary at that time was more than 2,000 per month. Although the salary was not very
high, it was because the factory was close to my home and I could take care of my family, so I chose to stay in my hometown and work.
My work certificate at the time was issued by my boss Wu Yueguang. The investigation
letter said that Boss Wu did not remember my details, so you doubted it. I think this is
normal. After all, I have resigned from the factory for more than four years. There are
many people leaving the factory every year or even every month. As the boss of the
factory, Mr. Wu is busy at work and it is quite normal not to remember workers. My work experience from 30 August 2012 to 1 February 2017 is real. If only upon Wu Yueguang’s memory of an ordinary employee 4 years ago to doubt my real work situation in the factory, it would be unfair for me. After all, Wu Yueguang is also nearly 60 years old.
After I received the letter from the Immigration Bureau, I quickly asked my family and
friends to learn something about that factory. I heard from them that the factory had been closed in April 2021 due to previous floods and environmental and pollution problems.
I must solemnly declare that my work experience in China is true, and my skills have also
been evaluated by the MINTRAC assessor, so I am eligible to apply for an Australian 457
visa. I am always grateful that I have the opportunity to come to Australia9because after coming to Australia, my salary has been significantly improved, and I am more able to make my family live a better life.
I have been working in Teys Biloela for more than 4 years, and my family has adapted very well to life in Australia. I have always been competent for any job in the factory. My family has been out of China for more than 4 years. All of my work documents in China were not carried after the family moved to Australia. They have been lost and now we don’t have home in China. Due to the serious situation of COVID-19, I can't go back to China to find more information to prove my work experience.
I hope that the Immigration Department can consider my current difficulties and situation so that our whole family can live and work in Australia.
Thank you very much!
Jinhong Li
30 June 2021
12) Reference letter from HR representative Manager Zhennan Chen 2 July 2021.
Translation
Fujian Province Minqing County Meicheng Livestock Slaughterhouse
Address: Hutouwan, Tankou Village, Yunlong Town, Minqing County, Fujian Province
Phone: 0591-22593566
STATEMENT
TO WHOM IT MAY CONCERN,
This is to certify that Mr. Jinhong Li (DOB: 6 May 1973) has worked in our slaughterhouse as a boner and slaughterman from 30 August 2012 to 1 February 2017.
He mainly engaged in meat boning and slaughtering. Mr. Li worked actively skilled during his work in our slaughterhouse.
Recently, I have received frequently telephone interviews from the Australian Consulate in Shanghai, and I am also cooperating with your work. However, the attitude of the officer is always aggressive and full of distrust, which disappoints me.
With the intention of helping the former employees of our factory, I would like to prove the authenticity of Mr. Jinhong Li's work in our factory again.
In addition, Fujian Province Minqing County Meicheng Livestock Slaughterhouse has been closed in April 2021 due to hidden dangers left by previous floods and environmental and pollution problems. Up to now, the management personnel have been evacuated.
Therefore, we will not be able to accept any telephone calls from you in the future. Please understand if any inconvenience is caused by this.
Fujian Province Minqing County Meicheng Livestock Slaughterhouse
Former HR Manager: Zhennan Chen (Signature)
2 July 2021
13) Certificate s 375.
14) Submission from the legal representative 27 July 2023.
15) Witness statement from the applicant 23^rd of July 2023 stating he will rely upon the brief of evidence and will answer questions at the hearing.
16) Further copy of the Statement 2 July 2021 from Fujian Province Minqing County Meicheng Livestock Slaughterhouse and Former HR Manager: Zhennan Chen.
17) Letter of support 25 July 2023 from Teys, Biloela.
18) Request from the Tribunal 1 and 7^th August 2023 for copy of the Labour agreement.
19) Labour agreement including deed of variation between Department of immigration and border protection and Teys Australia Biloela proprietary limited.
20) Submission 4 October 2023 from the legal representative.
21) China: Individual Income Tax Law Revised.
22) Articles “PRC raising Individual Income Threshold.
23) (2) Envelopes with Chinese lettering.
Translations
“Li Jinhong – October 2016 Salary (23 days) 2,300 Yuan
Fujian Province Minqing Country Meicheng Livestock Slaughterhouse”.
“Li Jinhong – June 2016 Salary (26 days) 2,600 Yuan
Fujian Province Minqing Country Meicheng Livestock Slaughterhouse”.

[2023] AATA 3910

16 November 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

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