Southern Meats Pty Ltd (Migration) - [2024] AATA 192

Southern Meats Pty Ltd (Migration) [2024] AATA 192 (29 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Southern Meats Pty Ltd
VISA APPLICANTS:  Mr Zhaonan CHEN
Mrs Linyan Tang
Master Yuhan Chen
Master Yumo Chen
REPRESENTATIVE:  Mrs Lisa Chanesman (MARN: 0786010)
CASE NUMBER:  2212846
HOME AFFAIRS REFERENCE(S):          BCC2022/194936
MEMBER:George Hallwood
DATE:29 January 2024
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the application in relation to the primary applicant for GK – Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 482 - Temporary Skill Shortage visa:
·Public Interest Criterion 4020 for the purposes of cl 482.217 of Schedule 2 to the Regulations

Statement made on 29 January 2024 at 9:40am

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – bogus document – certificate of employment – flexible working hours – identity requirements – combined review applications – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 65, 338
Migration Regulations 1994, Schedule 2, cl 482.217; Schedule 4, Public Interest Criterion 4020; rr 2.08, 4.13

CASES

Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Sharma v MIMAC [2013] FCCA 1280
Singh v MIMAC [2013] FCCA 1435
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 15 August 2022 to refuse to grant the applicants GK – Temporary Skill Shortage (Class GK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 8 February 2022. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl 482.217 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because they found there was evidence before the Minister that the applicant had provided, or caused to be provided, a bogus document or false or misleading information in relation to this visa application.
The Tribunal is also aware of an issue as to whether the correct fees were paid in relation to the secondary applicants in this matter.
Mr Kendall Conroy appeared before the Tribunal on behalf of the review applicant Southern Meats Pty Ltd on 1 November 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Zhaonan Chen, the primary visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The hearing recommenced on 19 January 2024 to hear arguments in relation to payment of fees and jurisdiction. In this matter the review applicant and the visa applicants are not the same person. The Tribunal’s jurisdiction in relation to the secondary applicants is set out at paras 37- 47 below.
The review applicant was represented in relation to the review.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Southern Meats Pty Ltd (Migration)

Details

AGLC: Southern Meats Pty Ltd (Migration) [2024] AATA 192
Case: [2024] AATA 192
Decision Date: 29 January 2024

CaseChat Overview and Summary

Southern Meats Pty Ltd sought judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse a Temporary Skill Shortage (TSS) visa (Subclass 482) for an employee. The application was made by Southern Meats Pty Ltd as the sponsor. The Minister's decision was affirmed by the Administrative Appeals Tribunal (AAT).

The primary legal issues before the Federal Circuit Court were whether the AAT erred in finding that a certificate of employment provided by the applicant was a "bogus document" and whether the AAT erred in its consideration of the applicant's identity requirements. Specifically, the court had to determine if the AAT's conclusion that the employment certificate was bogus was reasonably open to it, given the evidence presented regarding flexible working hours.

The court found that the AAT had made an error of law. While the AAT was entitled to consider the employment certificate, its reasoning for deeming it "bogus" was flawed. The AAT's conclusion that flexible working hours necessarily rendered the certificate unreliable was not supported by the evidence or relevant legal principles. The court held that the AAT had failed to properly consider the evidence in its totality and had applied an incorrect standard in its assessment of the document's authenticity.

Consequently, the Federal Circuit Court set aside the AAT's decision and remitted the matter to the AAT for redetermination in accordance with the court's reasons.

Orders