Liu (Migration)

[2023] AATA 3753

Liu (Migration) [2023] AATA 3753 (8 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chunan Liu

REPRESENTATIVE:  Ms Yanqiu Dong (MARN: 0742754)

CASE NUMBER:  2312885

HOME AFFAIRS REFERENCE(S):          BCC2021/1322467

MEMBER:Noelle Hossen

DATE:8 November 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa.

Statement made on 08 November 2023 at 10:46am

CATCHWORDS

MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 - Temporary Skill Shortage – incorrect information in the visa application – reference from employer in China – employing business liquidated – employment confirmed – power to cancel the visa does not arise – decision under review set aside         

LEGISLATION

Migration Act 1958, ss 5(1), 97-105, 107-109
Migration Regulations 1994

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 to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant did not comply with s 101 (b) and s 103 of the Act in relation to his Temporary Skill Shortage visa application. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on the 6 November 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

5. The applicant provided a Statutory Declaration to the Tribunal attaching various documents which included but was not limited to the following documents:

   Letter from Rodney Dennis Holmes (Meat Industry Training Advisory Council (MINTRAC) Assessor No: MSWA026) dated the 11 January 2020.

   Statement of Assessment signed by Rodney Dennis Holmes dated the 11 January 2020.

   Letter from Rodney Dennis Holmes, confirming that he was appointed by Southern Meats Pty Ltd and undertook an assessment of Chunan Liu in January 2020, issuing him a positive Skill Assessment outcome letter on 11 January 2020, dated the 8 June 2023.

   Screenshot from the “My skills “website showing that the Certificate III in Meat Processing has an average course duration of 2 years.

   Dismissal notice issued by Kaifeng Truein Meat Processing Co Ltd to “All employees of the Company” signed by Yan Hong (General Manager) dated the 25 November 2020 (certified English Translation from the Chinese language and the original Chinese language.)

   Signed Statement titled “Clarification Declaration” from Yan Hong (General Manager) dated 30 May 2023 (certified English translation from the Chinese language and the original in the Chinese language).

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

8. The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

9. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.

   Was there noncompliance as described in the s107 notice?

10. The issue before the Tribunal is whether there was noncompliance in the way described in the s 107 notice, and if so, whether the visa should be cancelled. The noncompliance identified and particularised in the s107 notice, sets out in the delegate’s Decision Record, was noncompliance with s 101(b) and s 103 of the Act.

11. The applicant was notified by the Department on the 5 June 2023 that the Department was considering cancellation. The applicant responded to the Notice on the 16 June 2023 by email. He provided a comprehensive response.

12. On the 19 December 2020, the applicant applied for a Temporary Skill Shortage visa and completed a Temporary Skill Shortage visa application form.

13. On pages 8-9 of the application form the applicant stated that his employment was that of a Skilled Meat Worker and that he had been employed by Kaifeng Truein Meta Processing Co. Ltd in China since the 18 March 2015.

14. In support of his application, he provided an employment reference from the General Manager Yan Hong dated the 26 October 2020. (Certified English translation from the Chinese language.)

15. The applicant was granted a Temporary Skill Shortage Visa on the 15 January 2021 based on the information and supporting documents.

16. The Department stated that they carried integrity checks on his employment claims on the 14 May 2021 and contacted Yan Hong ( the General Manager who provided the Reference). She apparently advised the officer of the Department that she did not sign any employment references in 2019 and 2020 and that the company leased its facilities to other entities in 2018.

17. The Department did not conduct any further checks according to the Delegate’s Decision and relied on the information supplied by Ms Hong to conclude that the applicant supplied incorrect information to the Department in his visa application lodged on the 19 December 2020. Furthermore, that the reference signed by Ms Hong containing the seal of the company was a bogus document.

18. The delegate concluded that based on the information before them that the applicant falsely declared that he had been employed in a position similar to the one for which he was nominated for the Temporary Skill Shortage Visa, to facilitate a favourable migration outcome.

19. The applicant denied that he had not complied and submitted that he was so employed by Kaifeng Truein Meat Processing Co. Ltd as a boner from the 18 March 2015 until the 25 November 2020. He said that on the 25 November 2020 the company dismissed all of their employees and the person in charge of personnel was Ms Hong.

20. Yang Hong did provide a document titled” Clarification Declaration” and the Tribunal accepts that the contents of the declaration is true and correct. She stated that the company was liquidated, all company documents were sealed, and she was dismissed from her employment. She was not keen at the time of the Department’s call to verify any information as she had no obligation to provide any information. She said that she had no desire to answer any questions relating to the company as the numerous legal proceedings and investigations during the liquidation had overwhelmed her.

21. In her Declaration Yang Hong stated that any documents she signed were true and correct and valid if they were affixed with the official seal of Kaifeng Truein Meat Processing Co. Ltd and her own signature. The Tribunal accepts her explanation and finds that this proves that the applicant did in fact work as a meat processor for the company.

22. At the hearing the applicant and his representative clarified that after receiving the Notice of Intention to consider Cancellation by the Department, the applicant did try to contact Yang Hong to no avail. He then asked his parents who reside in China to contact her.

23. They were successful in contacting her. She had sighted a copy of the Reference that she had signed and affixed the company seal. She was satisfied that the applicant was in fact an employee of the business as he had stated and felt guilty that she had jeopardised his visa application in Australia when speaking to the officers of the Department.

24. The Tribunal accepts the evidence of the applicant that he did not provide a bogus document as he was of the view that the reference that was signed by Yang Hong and containing the company seal accurately reflected his work at the company in China.

25. The Tribunal also relies on the fact that the applicant has been assessed to have the necessary skills to work in his field in Australia and has been employed and continues to be employed by the same company. The Tribunal places a lot of weight on the evidence contained in his skills assessment and his continuing employment in Australia in support of the applicant’s case.

    CONCLUDING PARAGRAPHS

26. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

    DECISION

27. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa.

    Noelle Hossen
    Member

    
    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

    (1)In this Act, unless the contrary intention appears:

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)     purports to have been, but was not, issued in respect of the person; or

    (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)      was obtained because of a false or misleading statement, whether or not made knowingly.

    97Interpretation

    In this Subdivision:

    application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

    passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

    Note:Bogus document is defined in subsection 5(1).

    98Completion of visa application

    A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

    99Information is answer

    Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

    100Incorrect answers

    For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

    101Visa applications to be correct

    A non‑citizen must fill in or complete his or her application form in such a way that:

    (a)all questions on it are answered; and

    (b)no incorrect answers are given or provided.

    103Bogus documents not to be given etc.

    A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.

    * This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

    107Notice of incorrect applications

    (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

    (a)     giving particulars of the possible non‑compliance; and

    (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

    (i)if the holder disputes that there was non‑compliance:

    (A)shows that there was compliance; and

    (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

    (ii)if the holder accepts that there was non‑compliance:

    (A)give reasons for the non‑compliance; and

    (B)shows cause why the visa should not be cancelled; and

    (c)      stating that the Minister will consider cancelling the visa:

    (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

    (ii)if the holder gives the Minister a written response within that period—when the response is given; or

    (iii)otherwise—at the end of that period; and

    (d)     setting out the effect of sections 108, 109, 111 and 112; and

    (e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

    (f)      requiring the holder:

    (i)to tell the Minister the address at which the holder is living; and

    (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

    (1A)The period to be stated in the notice under subsection (1) must be:

    (a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

    (b)     otherwise—14 days.

    (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

    (a)     visas of a stated class; or

    (b)     visa holders in stated circumstances; or

    (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

    (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

    (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

    108Decision about non‑compliance

    The Minister is to:

    (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

    (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

    109Cancellation of visa if information incorrect

    (1)The Minister, after:

    (a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

    (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

    (c)      having regard to any prescribed circumstances;

    may cancel the visa.

    (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.