Qiao (Migration)

This matter concerned an appeal by the applicant, Qiao, against a decision by a delegate of the Minister to refuse an Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme). The refusal was based on the delegate's finding that the applicant had provided false or misleading information, specifically in relation to work experience certificates, and that these constituted bogus documents.

The primary legal issue before the Tribunal was whether the applicant had provided, or caused to be provided, a bogus document to the Department. A bogus document is defined by section 5(1) of the Migration Act 1958 (Cth) as a document that purports to have been, but was not, issued in respect of the person; is counterfeit or has been altered by an unauthorised person; or was obtained because of a false or misleading statement. The Tribunal was required to consider the evidence presented by the applicant, including statements from former colleagues and the employer, in light of the delegate's assessment of that evidence.

The Tribunal found that the delegate had given insufficient weight to the statements of Ms Li and Ms Liu, who were employed by XB Meat Co during the relevant period. The delegate's reliance on an interview record with Ms Li was found to be lacking in detail regarding the conversation. The Tribunal noted that Ms Li commenced employment after the applicant had left the company, and that the company had a small size and a less formal HR system, which could explain her inability to immediately verify the applicant's employment. Similarly, the circumstances under which Ms Liu took the call from the Departmental officer were considered a potential explanation for her initial response. The Tribunal concluded that the delegate failed to adequately consider the length of time since the applicant's employment, the size and nature of the organisation, and the explanations provided by the applicant regarding the statements of Ms Li and Ms Liu. Consequently, the Tribunal remitted the decision under review.