Qiao (Migration)

[2023] AATA 1126

Qiao (Migration) [2023] AATA 1126 (24 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Yong Qiao
Ms Jingyi Liu
Miss Yiyi Qiao

REPRESENTATIVE:  Ms Yan Rong YE (MARN: 0849074)

CASE NUMBER:  2109968

HOME AFFAIRS REFERENCE(S):          BCC2021/598732

MEMBER:Namoi Dougall

DATE:24 April 2023

PLACE OF DECISION:  Sydney

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 of Schedule 2 to the Regulations

In relation to the second and third named applicants, the Tribunal does not have jurisdiction in this matter.

Statement made on 24 April 2023 at 10:05am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – false or misleading information – bogus document – work experience certificates – consideration of evidence – interview record – length of time since the applicant had left the employment – size of the organisation – evidence of friends and neighbour – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 347
Migration Regulations 1994 (Cth), Schedule 2, cl 186.213; Schedule 4, PIC 4020

CASES

Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Trivedi v MIBP [2014] FCAFC 42

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 July 2021 to refuse to grant the applicants’ Employer Nomination (Permanent) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 27 April 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 delegate was not satisfied that the primary applicant met the requirements of public interest criterion (PIC) 4020 of Schedule 4 to the Regulations. The delegate found that the primary applicant had given information that was false and misleading in a material particular in regard to his work history in relation to a visa the primary applicant held 12 months before the application was made.

3. Departmental records indicate that the second and third named applicants (secondary applicants) were not in Australia at the time the review application was lodged on 5 August 2021.

4. On 23 February 2023, the Tribunal sent the applicants a natural justice letter advising them that in order for the secondary applicants to have made valid applications they must have been in Australia at the time the review application was lodged on 5 August 2021. The letter also stated that as the secondary applicants were not in Australia on that date a preliminary view was that their applications are not valid, however, this needs to be determined by a member.

5. On 8 March 2023, the applicant responded to the Tribunal’s letter of 23 February 2023 stating that the secondary applicants were stranded overseas due to the COVID-19 Pandemic and their visas expiring. The response also stated that it was understood that the secondary applicants have no right to merits review.

6. The Department’s movement records show that the secondary applicants departed Australia on 13 January 2020 and lodged the review application on 5 August 2021 whilst still offshore. The Tribunal finds that the secondary applicants were not in the migration zone at the relevant time. As such, the application for review, in so far as it relates to the secondary applicants, is not an application properly made under s 347 and it follows that the Tribunal does not have jurisdiction in this matter in relation to the secondary applicants.

7. On 24 February 2023, the Tribunal wrote to the applicants, pursuant to s 359A of the Act, inviting the primary applicant to comment on adverse information. The adverse information was that community allegations received by the Department indicated that offshore recruitment agencies were producing false work experience certificates from China for meat industry workers stating that applicants had five (5) years’ experience when they had less than a year’s experience. The Tribunal stated that the information is relevant to the applicants’ review because if the Tribunal finds that the applicant has provided a false work experience documentation to the Department then the Tribunal may find that the applicant has breached PIC 4020. If the requirements of PIC 4020 are not waived, then the Tribunal will find that the requirements of cl.186.213 are not met and the delegate’s decision not to grant the applicants’ Subclass 86 visas will be affirmed.

8. The Tribunal in its letter of 24 February 2023 also stated that the Department had notified the Tribunal that a non-disclosure certificate, issued under sec.376 of the Act applied to the information set out above. The Tribunal provided a copy of the sec.376. certificate and invited the applicants to comment on its validity.

9. The Tribunal also invited the applicants to provide a submission on whether there are compelling circumstances affecting the interests of Australia, or compelling or compassionate circumstances affecting the interests of an Australian citizen, Australian permanent residents, or an eligible New Zealand citizen that justify the grant of the visa.

10. On 8 March 2023, the applicant responded to the Tribunal’s letter of 24 February 2023 with a statement and supporting documentation which are discussed below.

11. The primary applicant appeared before the Tribunal on 20 April 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Steve Rutter, Plant Operations Manager at Woodward Foods Australia (Woodward). The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

12. The applicants were represented in relation to the review.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 186.213 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).

2. 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?

1. 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.

2. 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.

3. 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.

4. On 28 April 2017, the applicants applied for Subclass 457 visas which were granted on 1 May 2017. The applicant’s business nominator was Ashton Pty Ltd no known as Woodward Foods Australia (Woodward). The applicants still held this visa when they applied for the Subclass 186 visa the subject of this review. Provided with the Subclass 457 visa application was an employment reference dated 23 March 2017 signed by the Manager of Dachang Hui Autonomous County Xinbao Meat Co Ltd (XB Meat Co), Ms Junling Liu (the employment reference), which indicated that the applicant worked for XB Meat Co as a boner from January 2013.

5. On 27 April 2021, the applicant lodged the Subclass186 visa application the subject of this review. The applicant indicated in the application that he worked full time for XB Meat Co from 1 January 2013 to May 2017.

6. The Department while processing the Subclass 186 visa application received a community allegation that offshore recruitment agencies were producing false work experience certificates from China for meat industry workers.

7. On 24 April 2021, an overseas Departmental officer called the phone number for XB Meat Co listed on the Chinese Business Verification system and spoke with a male who identified himself as the legal representative of the company. The legal representative referred the Departmental officer to a contact in HR and the office rang Ms Li the HR Manager. The Departmental officer records that Ms Li checked the records and advised that the company had never had the applicant previously working there. Further, it is recorded that no personal employee files can be located. The HR Manager also confirmed that Ms Liu is the workshop director and is the appropriately authorised person who knows all meat workers’ employment.

8. The overseas Departmental officer then called the mobile number for Ms Liu listed on the employment reference. The Departmental officer records that Ms Liu did not know the applicant either.

9. On 9 June 2021, the Department sent the applicant a natural justice letter (the natural justice letter) which set out the information referred to in the above paragraphs and stated that there is no evidence to demonstrate that the applicant was employed at XB Meat Co. The natural justice letter stated that a preliminary view had been reached that the work certificate contained information that was false and misleading in relation to the applicant’s skills. Additionally, due to inconsistent information obtained regarding the applicant’s employment, it was reasonable to suspect that the employment reference is a bogus document, and that the applicant has given, or caused to be given, to the Department a bogus document and/or information that is false and misleading in a material particular.

10. The Department in the natural justice letter invited the applicant to comment on the above information. The natural justice letter also referred to PIC 4020 still being satisfied in circumstances where there are compelling circumstances affecting the interests of Australia, or compelling or compassionate circumstances affecting the interests of an Australian citizen, Australian permanent resident or an eligible New Zealand citizen that justify the grant of the Subclass 186 visa.

    The applicant’s 2021 and 2023 responses

1. On 5 July 2021, the applicant provided a response to the natural justice and supporting documents. In a personal explanation dated 15 June 2021 (the 2021 response), the applicant stated that the natural justice letter did not conform with his real situation and that even though he has been working abroad since 2017, the company should not deny he worked from them for 4 years. The applicant further stated that after contacting XB Meat Co he was given an explanation and an apology. The applicant also stated that he has provided evidence of his life at the company which will be discussed below.

2. As referred to above, the applicant provided to the Tribunal a response dated 8 March 2023 (the 2023 response) in which he stated that the decision was based on doubts as to his work experience at the XB Meat Co and referred to additional information which he provided with the 2021 response which will be discussed below. He further states that he did not provide any false information and that both his former employer and co-worker have provided references. The additional information will be discussed below.

3. In the 2023 response the applicant further stated that there were only 20 workers at the XB Meat Co and there are many small factories like it. Even though the government required businesses to pay pension insurance for employees the businesses do not do so. They tried to avoid tax by paying salaries in cash. During his employment with XB Meat Co the business did not pay insurances or pensions. Further, there were no employment contracts, payslips or social security so he cannot provide evidence of employment payments. The applicant referred to having contacted the Manager and HR Manager and that their answers had caused the misunderstanding with the Department and that they are willing to provide their explanations again.

4. The delegate in the decision gave little weight to the applicant’s 2021 statement as it was not supported by evidence demonstrating his employment at the XB Meat Co. Further, in relation to Mr Laing’s statement the delegate stated that he was not an authorised contact to provide information about the applicant’s employment. The Tribunal notes that this is not correct as Ms Li, Ms Liu and Mr Liang, all of whom worked at the company during the relevant period, have provided evidence of the applicant’s employment as a boner by the company. Mr Liang, even though he was not an authorised contact is still able to give evidence of his work and who worked with him during his time at the XB Meat Co which he did.

   Evidence from Ms Li, HR Manager and Ms Liu, Manager at XB Meat Co.

5. In relation to circumstances surrounding the Departmental officer’s conversation with the HR Manager, Ms Li, the applicant stated in his 2023 response that Ms Li joined the company in 2019 after he had left the company four years before. Further, the applicant stated that there were no formal HR filing at the company and as he had left the company four years previously Ms Li could only check on existing employees’ information. In a hurry she did not further verify his information. The applicant also stated that: ‘Ms Li did not know me and could not find my information does not equally mean that I did not work for [XB Meat Co].’

6. Ms Li in her statement dated 18 June 2021 stated that she joined XB Meat Co in 2019 and was responsible for accounts and answering calls. She had not received similar calls from the Department and at that time there was no employees applying to work in Australia. Since the office admin work was busy and messy and as the applicant had left the company, she did not know him so when she received the call, she answered that there was no person with that name. She added that at as she had not been told about workers who had gone abroad to work, she made a ‘rough wrong answer’.

7. At the hearing the applicant stated that he worked from 2013 to May 2017 and Ms Li started from 2019. Before 2019 there was no HR Manager and there were only two people managing HR who were not technically HR Managers, they were a married couple that owned the factory. As Ms Li started after he left she did not know him and in the past there was no official HR files. The company was very small company which was run by a married couple who lived next door and they did not have a good HR system. Ms Li did not know about him in the past but later learned about him from Ms Liu which is why she provided the explanation.

8. In relation to the circumstances surrounding Ms Liu’s conversation with the Departmental officer, the applicant stated in his 2023 response that Ms Liu was looking after her grandson putting him down to sleep when the Departmental office called. The phone call was from a stranger asking about an employee who had left four years ago and as she could not recall she casually stated that she did not know. Ms Liu was not in the office, so she did not have a chance to check. Ms Liu usual cares about important things and a work reference is not something worth mentioning. She did remember after he contacted her.

9. Ms Liu in her statement dated 25 June 2021 (Ms Liu’s 2021 statement) stated that the applicant used to be a full-time meat boning worker in the company since January 2013. Nearly seven years had passed when she received the call in April 2021, and she could not remember all of the staff’s information as there is a high employee turnover over the seven years. Ms Liu also stated that she would like to complain about the way the Departmental officers work. When ever she is on her lunch break taking care of her grandchildren or at work, she gets calls from Departmental officers all of the time and she cannot refuse to take the calls as the phone keeps on ringing. She states that she is busy or taking a break, but the calls still keep coming. She understands that the Departmental officers have to complete their work but the way they worked offended her as she felt she was not shown respect and her personal and professional life suffered. Further, when staff want to apply for a job in Australia, skills assessors come to the factory for interviews sand skills assessments, and she always actively cooperates as it is good for her employees’ future and is positive affirmation for her and them. However, it does take those employees away from the factory and takes up time and resources.

10. Ms Liu also stated in her 2021 statement that that her mood had been affected by the repeated phone calls and as a result she had ‘some improper attitude and words’ when answering the phone for which she apologised. Ms Liu then certified that the applicant was employed by XB Meat Co from January 2013 to May 2017.

11. Provided with the 2021 response was the employment reference dated 23 March 2017 but signed again in handwriting by Ms Liu on 30 June 2021 with the seal of the XB Meat Co. Also provided was a copy of the applicant’s skill assessment by MINTRAC dated 21 March 2017 which stated that the applicant had successful demonstrated the skills required to be deemed competent to an equivalent level of AQF level III. Two photographs of the applicant at work in a boning room were also provided.

1. At the hearing the applicant stated that his work experience is 100% genuine and he did not provide bogus or false information. He stated this could be supported through the references from his previous employer, his lease agreement, and the statements from his friends in China who backed up his work experience. He understands the Department’s concerns but when he worked at the XB Meat Co only 20 people worked there, and it is located on a street in the village with only two people running and managing the factory. There are many small factories like that in China. The government requires the factories to pay insurance and pensions so for tax reasons the factory did not obtain signed contracts and employees are paid in cash. That is why the applicant cannot provide and income statement and also why there is the misunderstanding that the applicant never worked there. The work experience is true.

   Other supporting evidence

2. The applicant also provided evidence of living in the same City as the XB Meat Co. A House Lease Agreement signed by the applicant and lessee for Room 601, Unit 2, Anxinyuan Community, West Da’an Street, Dachang Hui Autonomous County [Langfeng, Hebei Province] (the Da’an St address) was provided for the rental period of 29 June 2016 to 28 June 2017. Also provided were: evidence of purchases made that were to be delivered to Da’an St address during the period January to May 2017; medical invoice and prescription issued by Dachang Hui Autonomous County Hospital in February 2017; a receipt for payment to China Telecom at the Shaanxi branch; and receipts and train tickets purchased between January 2017 and May 2017 for travel between Beijing West and Xia North stations.

3. Also provided was a statement from Lihu Liang, master boner dated 29 June 2021 stating that he worked at the XB Meat Co from December 2015 to October 2017 and that during that period he and the applicant worked together as boners.

4. Personal references were also provided from two friends and a former neighbour in China, all of whom set out in their statements set out how they know the applicant and the circumstances of how they knew about the applicant working at the XB Meat Co.

5. At the hearing the applicant stated that he started to work as a boner in January 2013 at the XB Meat Co. He did not have any training as it is a labouring job and the only requirement was good strength. At the beginning he started with simple tasks with the knives and after about two months he started to do boning. The applicant confirmed his qualifications were not in the meat industry and it is a manual job and the salaries are greater than other industries. His qualifications would provide him with a salary of around RMB3,000 while in the meat industry it his salary would be around RMB4,500 to 5,000.

6. The Tribunal referred to the supporting material being mainly dated from 2017 and there was little that was dated earlier. The applicant stated that the provided a lease from 2016. It had been 4 years and as his phone did not have much storage space, he could only find records from 2017. The Tribunal asked about records indicating he worked from 2013 and the applicant stated that the factory provided accommodation and meals so he only needed to spend cash on small things and before 2016 there were not smart phones so he could not keep records. The Tribunal asked why he bought knives and hooks in 2017 and the applicant stated that in the past he did not need hooks in the factory and in 2017 employers from Australia came to interview workers and explained the Australian way of working, so he purchased the hooks. In China they work on benches and do not need hooks, but he heard that in Australia they use hooks, so he bought some. The Tribunal asked why buy them when the factory would supply them and the applicant stated that in China there is no chance to use hooks and as they are needed in Australia he purchased them. He purchased the hooks and other tools as he is only used to Chinese tools, so he purchased them and took them with him to Australia.

   Evidence of applicant’s work in Australia and Australian character references

7. Also provided was a reference from Matthew Tamsitt, boning room supervisor dated 18 June 2021 stating that the applicant was employed by Woodward in the position of skilled Meat Worker from May 2017. Further, Mr Tamsitt stated that they work together and have good communication and cooperation and they always help each other for meat processing. The applicant has had a positive impact on him and other colleagues.

8. Personal references from people who know the applicant in Australia were also provided: from Mr Stan Edelsten dated 21 June 2021 the applicant’s neighbour in Swan Hill; and Ms Chi Ma, an owner of a restaurant in Swan Hill.

9. Mr Steve Rutter, Plant Operations Manager at Woodward provided a statement dated 7 March 2023. Mr Rutter stated that the applicant commenced his employment on 29 May 2017 and has performed his duties to a high standard. Woodward’s current nomination application was contingent on the applicant’s ability to pass performance and skills assessments, as well as, the applicant’s ‘good history of adherence to organisational skill level KPI’s, overall performance, ability, loyalty, level of enthusiasm and low levels of absenteeism or injuries’.

10. Mr Rutter also stated in his statement that Woodward is Australia’s largest meat wholesaler, and the company greatly benefits from the permanent residency program as it enables the company to stabilise its skilled permanence workforce in an area where skills are so fundamentally lacking in Australia in the meat Industry, as confirmed by the Australian Meat Industry Commission. Mr Rutter also stated that the company desperately needs to retain the applicant as an effective, efficient and highly skilled meat worker who understands WH&S, has good English for social inclusion and who mentors and trains lower skilled meat workers on site transferring his skills to other Australian and non-Australian workers. Mr Rutter stated that the loss of the applicant would de-stabilise the company’s workforce creating additional pressures on Australian workers and increase the risk of injuries. The recovery of the industry since the COVID-19 Pandemic had been even more difficult to source skilled labour within Australia and the company has advertised over several mediums with no success.

11. At the hearing Mr Rutter stated that the plant is in Swan Hill and has 200 to 210 employees. The plant is multi-species plant, and the applicant is fully competent in both sheep and beef which is unusual. He is a very competent boner and slicer. The company is based in Swan Hill and has distribution centres in Adelaide, Sydney and Brisbane. The applicant is also a trainer and mentor of new employees. There is usually 45 in the beef boning room and currently the plant is lucky to get 35 and they are not skilled, so the plant is at least 10 employees short and in the slaughter room they are 10 employees short as well. The effect is that production is reduced which means less animals can be taken in from farmers and there is less meat available in the Australian and International markets.

12. Mr Rutter stated at the hearing that, if the applicant was not granted his visa, it would be a huge blow to company as he is a great worker who is a trainer as they are employing local workers, but they do not have the skills. Further, the company is still a long way short of having the workforce the company requires. There are no issues with the applicant as a worker as he is an excellent worker. Mr Rutter also stated that he started with the company the same year as the applicant and has spent a fair amount of time with him. The Tribunal asked what the applicant’s skills were when Mr Rutter started to work with the applicant and Mr Rutter stated excellent and it is unusual that one person can work on both species and be excellent at both which the applicant is.

    Conclusion

13. The Tribunal will first consider whether there is evidence before the Tribunal that the primary applicant has given, or caused to be given, to the Department a bogus document, which is defined in s 5(1) of the Act and is a document that the Tribunal reasonably suspects:

    ·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.

14. The delegate in the decision gave no weight to Ms Li’s and Ms Liu’s statements. In relation to Ms Li, the delegate referred to Ms Li stating that she has checked records and advised that the company had no staff named with the applicant’s name previously working at the company and that no personal files can be located. The Tribunal is concerned that the interview record relied on by the delegate in making the decision did not set out in detail, or at least more detail, the conversation between the Departmental officer and Ms Li. It is not clear if the statement: ‘no personal employee files can be located’ refers to the applicant’s file alone or all personnel files. The Tribunal notes that Ms Li does not refer in her statement to there being no formal HR filing at XB Meat Co as stated by the applicant. However, she does state that the office admin work is busy and messy. Ms Li has stated that she started to work for the XB Meat Co after the applicant left so it is not likely that she would know the applicant. Further, if there are no personnel files it would be difficult to for her to obtain any information on the applicant’s work history.

15. In relation to the Departmental officer’s conversation with Ms Liu again the Tribunal is concerned that the interview record relied on by the delegate in making the decision did not set out in detail, or at least more detail, the conversation between the Departmental officer and Ms Liu. The circumstances in which Ms Liu took the call from the Departmental officer could explain why Ms Liu responded in the way she did.

16. Further, when considering the evidence of Ms Li and Ms Liu, the delegate did not take into consideration the length of time since the applicant had left the employment of the company nor the size of the organisation and nature of the organisation when making the decision.

17. The delegate placed no weight on the evidence of Mr Liang, master boner and the applicants’ friends and former neighbour in China as the evidence did not demonstrate that the applicant worked at the XB Meat Co. However, the Tribunal notes that the evidence from the friends and neighbour indicates that Mr Xiaolu Wang is a childhood friend and former neighbour of the applicant and Ms Qian Wang and Ms Hao Wu are friends of the applicant’s spouse and have known the applicant since 2010. As friends of the applicant, they would be able to provide evidence of their knowledge as to where the applicant worked which is what they have done. This is evidence that should have been given more consideration by the delegate even if it was eventually not given much weight.

18. Further, the employment reference dated 23 March 2017 was resigned in handwriting by Ms Liu on 30 June 2021 with the seal of the XB Meat Co.

19. On the basis of the above, the Tribunal is not satisfied that there is evidence before it that the applicant has given, or caused to be given, to the Department a bogus document, which is defined in s 5(1) of the Act, as the evidence relied on by the Department and which is before the Tribunal does not have sufficient probative value to establish the employment reference is a bogus document.

20. The criteria that the information is relevant to are found in cl 457.223(2)(d), which requires an applicant to demonstrate that he or she has skills and experience that are suitable to perform the occupation in a manner specified by the Minister. It is reasonable that the Department would require an employment reference that is not false or misleading to assess whether such a skill assessment was needed. Therefore, the Tribunal is satisfied that the information in question, that is the employment reference, is information relevant to cl 457.223(2)(d). However, for the same reasons as the Tribunal was not satisfied that the applicant has given, or caused to be given, to the Department a bogus document, which is defined in s 5(1) of the Act, the Tribunal is not satisfied that the applicant has given, or caused to be given, to the Department information that is false or misleading in a material particular that is in relation to his employment reference.

21. Therefore, the primary applicant meets PIC 4020(1).

22. The Tribunal also notes that the evidence of Mr Rutter indicates that Australia's trade and business opportunities may be adversely affected were the applicant not granted the visa.

Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(1)?

1. PIC 4020(2) requires the Tribunal to be satisfied that the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing 3 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2AA).

2. The Tribunal has no information before it to suggest that the applicant or a member of his family unit have been refused a visa in the relevant period because of a failure to satisfy PIC 4020(1).

3. Therefore, PIC 4020(2) is met.

Has the applicant satisfied the identity requirements?

1. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.

2. There is no evidence before the Tribunal to suggest that there is any issue with applicant’s identity. Both the Department and the Tribunal have been provided with a copy of the detail pages of the applicant’s passport.

3. Therefore, the applicant meets PIC 4020(2A).

Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?

1. PIC 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2BA).

2. There is no evidence before the Tribunal to show that the applicant, or any member of his family unit, have been refused a visa in the relevant period because of a failure to satisfy PIC 4020(2A).

3. Therefore, the applicant meets PIC 4020(2B).

4. On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl 186.213.

DECISION

1. 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 of Schedule 2 to the Regulations

   In relation to the second and third named applicants, the Tribunal does not have jurisdiction in this matter.

Namoi Dougall
Member

ATTACHMENT

Migration Regulations 1994

Schedule 4

1. (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.

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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.

…