Wei (Migration)

[2023] AATA 4396

Wei (Migration) [2023] AATA 4396 (18 December 2023)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Dong Wei
Mrs Tong Chen
Miss Xinyao Wei  

REPRESENTATIVE:  Ms Yanqiu Dong (MARN: 0742754)

CASE NUMBER:  2313377

HOME AFFAIRS REFERENCE(S):          BCC2021/1322456

MEMBER:Alan McMurran

DATE OF DECISION:  18 December 2023

DATE CORRIGENDUM

SIGNED:20 December 2023

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

The applicant's name on the front page “Tong Chen” should be replaced with “Tong Cheng”.

Alan McMurran
Member

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Mr Dong Wei Mrs Tong Chen Miss Xinyao Wei

REPRESENTATIVE:  Ms Yanqiu Dong (MARN: 0742754)

CASE NUMBER:  2313377

HOME AFFAIRS REFERENCE(S):           BCC2021/1322456

MEMBER:  Alan McMurran

DATE:  18 December 2023

PLACE OF DECISION:  Sydney

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

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 18 December 2023 at 9:14pm

CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – incorrect answers and bogus document given with visa application – employment history and certificate/reference – integrity check conducted after visa granted – brief, undetailed phone call – no references signed by HR/general manager at that time – later detailed written explanations – size of workforce and limited contact with employees – overwhelmed by closure and investigation calls – certificates signed and sealed before company closed – records retained for only two years – consistent and credible evidence – skills assessment, work performance and character references – members of family unit – consequential cancellation with no jurisdiction to review – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 97, 101(b), 103, 107, 109(1), 140(1)
Migration Regulations 1994 (Cth), r 2.41

STATEMENT OF DECISION AND REASONS APPLICATION FOR REVIEW

1. This is an application lodged 31 August 2023 for review of a decision made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 482 Temporary Skill Shortage visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

1. The applicant visa holder (“the applicant”), Mr Dong Wei, is a 39-year-old citizen of the People’s Republic of China. The second and third-named applicants are members of his family. The applicant had applied for a TSS Subclass 482 visa on 19 December 2020 (“the visa”) to work as a Skilled Meat Worker under an Australian Meat Industry Labour Agreement.

1. The applicant’s visa was granted on 4 January 2021.

Delegate’s decision

1. The delegate subsequently cancelled the visa on 30 August 2023, on the basis that the delegate was satisfied that the applicant had not complied with sections 101(b) and 103 of the Act in making his application for the visa.

1. This was because the delegate found that firstly, the visa holder had given incorrect answers in his application for a Subclass TSS 482 visa about his employment. And secondly, the evidence from the applicant’s previous Chinese employer, Kaifeng Truein Meat Processing Co Ltd (“KTMPC”), of a written employment reference in support of the visa application was a ‘bogus document’.

1. The delegate found that evidence subsequently from the HR manager of the visa applicant’s Chinese employer in 2023, in her two written statements to the Department, was not ‘credible’, and was not to be preferred over a telephone integrity check with her carried out approximately 5 months after lodgment on 14 May 2021, and before her subsequent written statements were submitted ‘correcting’ the telephone information.

The issue on review

1. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. If the Tribunal is satisfied that the ground for cancellation is made out, the decision-maker must then consider in the exercise of discretion whether or not to cancel the visa in accordance with the mandatory considerations set out in the Regulations. These include the circumstances surrounding the non-compliance, and the applicant’s present circumstances which the Tribunal might consider relevant.

1. For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s 140(1) of the Act.

1. As no decision was involved in the visa cancellation under s 140(1), the Tribunal has no jurisdiction with respect to the other applicants, who are the applicant’s wife and 12 year-old daughter.

1. The applicants appeared before the Tribunal in person, on Monday, 18 December 2023, for a 2-hour hearing to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

1. The applicants were represented in relation to the review by a migration agent who also appeared for the hearing, by video, from South Australia, and who made oral submissions.

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

Background

1. At the time of this decision, the applicant and his family reside in Goulburn NSW.

1. The applicant came to Australia on 6 February 2021 specifically to work in the Meat Industry as a skilled worker in the Boning Room for Southern Meats Pty Ltd (“the employer”) at Goulburn in NSW.

1. The applicant’s visa application was prepared by an agent in China, the Fuzhou Yinqiao Educational Organisation (“the agent”) on instructions provided by the applicant in October 2020.The application for the visa was lodged by the agent on 19 December 2020.

1. The applicant has been working as a Boner/slaughterman in a full-time position for the employer since 1 March 2021 following a written offer of employment dated 19 November 2020, made pursuant to a Labour Agreement between the employer and the Commonwealth dated 14 March 2019.

1. The applicant was assessed by a MINTRAC Overseas registered assessor for the employer in January 2020 and issued a positive skills assessment for the role on 11 January 2020. The assessment states that the overseas worker “has been successfully assessed to have the minimum skill level commensurate with an AQF Certificate III in Meat Processing”. The applicant was subsequently made an offer by the employer by letter dated 19 November 2020, the offer having been “delayed” due to the ongoing pandemic.

1. The assessor1 provided the Department with a letter of confirmation dated 8 June 2023.

1. The employer has provided to the Department a letter dated 9 June 2023 confirming the applicant’s continuing employment, the need for him in the role, and a request that his visa not be cancelled.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The Tribunal has available the Department and Tribunal files which include copies of:

a.the application for the visa made 19 December 2020;

b.The Notice of Intention to Consider Cancellation dated 7 June 2023 (the s. 107 notice);

c.The applicant’s response by Statutory Declaration made 16 June 2023;

d.Notification of Cancellation under s.109 of the Act made 30 August 2023;

e.Record of Decision of Whether to Cancel under s 109 of the Act;

1 Rodney Dennis Holmes

f.5 statements in support of the applicant’s character;

g.Written submission dated 9 September 2023, from the representative.

h.A certificate styled “Working Certificate” dated 26 October 2020 and signed by Yan Hong

i.A dismissal letter “To all employees” dated 25 November 2020 signed by Yan Hong as “General Manager”.

j.“Protest Statement” signed by Yan Hong made 9 June 2023

k.Photo of mobile phone with number received purportedly from the Australian Consulate in Shanghai

l.“Clarification Declaration” dated 23 May 2023 from Yan Hong for KTMPC.

1. The Tribunal has also had regard to the Act and the Regulations, Policy, relevant court authority and the written and oral submissions, and evidence from the hearing.

Legislation

1. 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.

1. 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.

1. Extracts of the Act relevant to this case are attached to this decision.

1. 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. It provides the particulars of the alleged non-compliance for the claimed incorrect answer and the ‘bogus document’ submitted, and which have been set out in the delegate’s reasons and decision.

Was there non-compliance as described in the s 107 notice?

1. The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled.

1. The non-compliance identified and particularised in the s 107 notice was non-compliance with sections 101(b) and 103 of the Act in the following respects:

a.S.101(b) – that the applicant answered ‘yes’ to a question as to the applicant’s current employment situation as a skilled meat worker for his Chinese employer, KTMPC; and

b.S. 103 – that an employment reference purportedly provided by KTMPC dated 26 October 2020 was not signed by the person as claimed by the document and was therefore “counterfeit” or “altered” by a person without authority to do so.

Delegate’s reasoning for the decision - analysis

1. The evidence relied upon by the delegate was obtained from a telephone conversation on 14 May 2021, some 5 months after the visa application had been made, considered, and approved by the Department. There is no explanation why the integrity check was not carried out before granting the visa. However, the Department had contacted its office in Shanghai in May 2021, whereupon a telephone conversation took place with Ms Yan Hong, the former HR Manager for the stated employer, KTMPC.

1. Details of the telephone conversation such as who was present, when and where it took place and what was asked or said are not provided. Instead, a summary by the delegate sets out that Ms Hong apparently stated she had not signed any employment references “between 2019 and 2020”. On the basis of that statement, the Department’s Shanghai Office concluded that the applicant’s stated employment by KTMPC was “not genuine” and so advised the Department in Australia.

1. The delegate in turn concluded that as the applicant had answered ‘yes’ to a question in the application form, that he was in fact employed by KTMPC when he was not, according to the telephone information from Ms Hong who said she had never signed any references, that his answer must be incorrect.

1. The applicant had provided a copy of an employment reference purportedly signed by Ms Hong on 26 October 2020 with his application. The delegate then concluded that the reference document submitted must either be fraudulent or had been altered without authority.

The application form

1. The application form as described in the delegate’s decision sets out a series of unnumbered questions over a total of 20 pages. There are two questions directly focused on the applicant’s employment at the time of his application (19 December 2020)2.

1. One question asks the applicant to declare he has been “working in a similar position for at least two years”, to which he answers “yes”.

1. The second question asks if that is “the applicant’s current employment situation”, to which the applicant also answers “yes”, giving the full-time position title for his role as Skilled Meat Worker, the name of the employer KTMPC, and the address. He also states the employment commenced on 5 May 2014 and is the “employment related to the nominated position”.

Applicant’s evidence and submissions

1. The applicant gave detailed oral evidence at the hearing. Firstly, he explained his personal background, that he was a Chinese citizen, and had been born, educated and raised in Fujian province by his parents, who were now deceased. He had met his wife whom he had married in China in 2011, and they have a 12-year-old daughter. His wife and daughter are the second and third named applicants for this review and the family members in respect of his visa application.

2 At page 14 and 15 of the Form dated Sat 19 Dec 2020 at 15:17:34 AEDT

1. He was asked about the visa application. He said he had a friend who was coming to work in Australia at an abattoir. His friend referred him to an agency in China who assisted applicants to find employment visas for Australia. He said he believed pay and conditions were better in Australia and he was worried that his work at the abattoir in China was declining. He approached the agency seeking information about migration and in October 2020 was told to provide the documents which the agent requested to support an application to work for an abattoir in Australia, and which application the agent would prepare and then submit. He said the agent made the connection with the employer and subsequently lodged the application in December 2020.

1. The applicant was asked about his employment history. He explained that when he left school and after having obtained a management certificate, he began work in the hospitality industry where he remained from about 2012 until 2014. At that time, a friend told him about working in an abattoir in Henan Province where the pay was better. He applied for a position at KTMPC. He said he was interviewed by the General Manager, Ms Yan Hong. He said the interview took place at the company’s premises. He said about 300 people were working there in 2014. He said he was told in the interview that he would be started on probation to see if he could learn the work. He said after the interview he went home and was contacted the next day. He was told by Ms Hong that he could start on probation, and was introduced to the area manager, Mr Zhong, who would supervise him. He said at this time he only met Ms Hong on two occasions, for the interview with her and then the next day briefly when he was offered probation, “for about five minutes”. He said he did not spend much time with her but thought she was about 40 years of age at the time. He said he was married when he started the job, and his wife later said she had remained at home in Fujian to look after their child while the applicant worked in Henan for KTMPC.

1. The applicant was asked about the working conditions. He said he worked with the same group of 10 people whom he came to know. He did not know many of the other employees as it was a very large workforce. He said he learned slaughtering and boning in the factory. He said he worked shifts from 9 AM to 6 PM, Monday to Friday, and 9 AM to 2 PM on Saturday. His wife later said he would travel home on holidays and at festival time. He was paid approximately 3,000 RMB per month.

1. The applicant said he continued to work in the role until 25 November 2020 when he was “dismissed”. He said the whole workforce, then about 400 people, was dismissed at the same time. He was asked how that came about. He said he had attended a large meeting conducted by Ms Hong as the General Manager. She had informed the workforce that the business could not continue to operate and like many other Chinese companies during the pandemic was forced to close. She told the employees they would all receive a notice, which the applicant subsequently did.

1. The applicant was asked how many times he had met with Ms Hong. He said apart from the initial interview in 2014, she had addressed all the employees on one or two occasions, to raise with them productivity and quality concerns. He said by October 2020, company production was declining. He said members of his group were looking to go to Australia for better employment. He said he approached Ms Hong in October to ask her for a work reference which he needed for his visa application. He was shown a copy in the hearing of a document titled “Working Certificate” with an English translation attached and dated 26 October 2020. He agreed this was the document he submitted with his application and that it was the signature of Ms Hong that appears on the document. He said the document was original and was not fraudulent. He explained he had given all his documents to the agent in October 2020 to prepare his application for the visa, including the requested work reference from Ms Hong. He agreed he had seen the application after it was prepared which he had checked and that the contents were all true and correct.

1. The applicant said he had nothing to do outside work with Ms Hong whom he did not really know, other than when she had been the general manager, and who had employed him in 2014 and then addressed all the staff on one or two occasions and provided his work reference before he was dismissed. He said he had been surprised when the business suddenly closed due to the pandemic. He said although production had declined, the employees had not expected sudden termination. He said, “I did not think it could happen, even though production had slowed”.

1. The applicant was asked about his work colleagues at KTMPC. He said seven of them had moved to Australia to work for the employer at Goulburn. He said all of them had their visas cancelled, but he thought most have now been “reinstated”. He said he could not understand why he had not been reinstated. He said the answers he had given were correct. He said the employment reference was not fraudulent or altered without authority. He said he had worked full-time from May 2014 until 25 November 2020 and that was his employment at the time of his application.

1. Mrs Cheng, the applicant’s wife, gave evidence that she had only visited the applicant’s workplace on one occasion, but had not been allowed inside. She said she spent the time he was working there looking after their child while they were separated, except for holidays and festival periods. She said she had never met Ms Hong. She said her husband had told her that the pandemic had affected production for the business, and that before he was terminated they had “wondered how long the business would last”. She said the decision for them to come to Australia was not based on the termination of his employment. It was for the reason given by her husband that pay and conditions were better in Australia and offered more opportunity. She said she knew her husband had been exploring alternative pathways to travel to Australia in 2020 before he was dismissed from his employment. She said it was commonplace in China at the time that businesses were closing.

1. The applicant was asked for any additional information. He said the Tribunal should accept the explanation from Ms Hong and his written statement. He said he had not spoken to her but after he had received the notice from the Department, he had contacted his uncle in China from Australia. He said his uncle had spoken to Ms Hong who had agreed to write a letter of explanation for himself and the other visa applicants who had their visas cancelled for the same reasons. He said the letter was written for himself and the other Chinese employees working for the employer.

1. The applicant was asked about the matters in regulation 2.41. He submitted the information was all correct and the contents of the documents from Ms Hong were genuine. He was adamant the delegate’s decision based partly on incorrect information and partly on the bogus document was incorrect. He has explained his present circumstances, that he continues to work for the employer and has done so since he arrived in Australia. He has had no issues with the Department and has complied with his visa conditions. There have been no other allegations of non-compliance since the claimed issue arose in May 2021. The applicant’s work colleagues and people he has met in Goulburn provided written testimonials as to his commitment and integrity.

Analysis

1. The Tribunal has had regard to the “clarification declaration” from Ms Hong and her “protest statement” made 30 May 2023 and 9 June 2023 respectively. There is no transcript or evidence of her conversation in May 2021 with a consulate representative.

1. Ms Hong outlines her position as general manager “in charge of the overall operation and management” and for signing “all legal and business documents”. She explained that the termination of the workforce “accelerated the company’s bankruptcy”, but happened

because they did not want to hinder employees from obtaining other employment opportunities. She explained that she “did not remember names, positions and specific employment periods”. This is not surprising given the size of the workforce over many years and very limited contact with individual employees.

1. She explained she was somewhat “overwhelmed” following the liquidation and “just wanted to end similar investigation calls” without taking into account the “significant impact on the status of these workers overseas”. She did not recall the date of contact from the Australian Department officer in 2021 as she had already left the company herself.

1. She clarified in her statement the closure of the business on 27 November 2020, and that she had signed employment certificates for overseas workers “with the official seal” of the company and her own signature. She said employees were compelled to submit a resignation letter which she then signed before they were allowed to leave. They then presented their resignation letters to receive their final salary payments. She said company records were retained for only two years in accordance with Chinese law (that is in this instance until November 2022). She explained she had no employment records from the business to check or verify for herself in 2023. She asked that the Australian Immigration Department “stop contacting me”, especially because “this type of telephone investigation has major problems both in terms of timing and investigation methods, which is not sufficient as a legal basis to make a major decision on whether to approve a visa application”. She did not recall the date of the first telephone call from Immigration in 2021 but accepted that she was contacted after she had left the company.

1. Ms Hong explained in her statement on 9 June 2023, that when she received a subsequent mobile phone call in 2023 from the Australian Consulate, she thought at first it was “a scam call”. She was suspicious as she had already made her statement on 30 May 2023 and thought that was the end of it. She said she “hung up the phone and refused to answer when it rang two more times”. That is unfortunate, as perhaps she could have otherwise allayed the Department’s concerns at that time. She then explained that she stood by her original declaration and did not want the visa applicants to be “discriminated or disadvantaged because of a messy liquidation and Chinese bureaucracy”.

1. The delegate rejected Ms Hong’s version of events as she recalled them.

1. The delegate’s decision also dismisses the actual notice of dismissal provided on 25 November 2020 to all staff as not applying to the applicant “because it was not addressed to the visa holder, nor did it mention a visa holder in any capacity”. The explanation however provided by Ms Hong is clear. The same letter was provided to all staff in a convenient, universal notice. It was never intended to be addressed to each individual staff member or to name them.

1. The delegate, although dismissive of the notice, does not reject the notice itself as fraudulent, and by implication, has accepted that the business itself was closed. The delegate concluded however that the notice does not evidence the claimed employment the applicant relied upon, nor any of the periods of his claimed employment.

Findings

1. The Tribunal has come to an opposite conclusion to the delegate. The Tribunal has listened to the oral evidence and reviewed all the information both cumulatively and in context, and accepts the written statements from the general manager, Ms Hong. The statutory declaration from the applicant in response to the NOICC, aligns with the information given orally and in substance with the statements from Ms Hong. The Tribunal finds no reason to

reject that evidence and information. It has no inconsistencies the Tribunal could discover nor any corrections, has not been amended, and is corroborative. It has the ring of truth.

1. The Tribunal does not find that the evidence of Ms Hong was implausible or not credible. It is entirely understandable that in May and June 2023 she would not have any independent recollection of the applicant, or other employees, whom she barely knew, other than when she employed him, although she was aware that some employees had found other work overseas.

1. The Tribunal also found the applicant to be credible in his explanations. His evidence has been consistent since the application was first made and is supported by the timeline identified by the employer and the assessor. The applicant insists his skills could have only come from his experience with KTMPC, as he has not worked anywhere else.

1. The Tribunal reminded him that his skills were not in question, nor his experience and that the only two issues were if he had correctly answered the question and that he had not altered or changed the employment reference to suit his purpose.

1. In such a case, the Tribunal needs to decide that the answers given by the applicant about his employment were correct. There is no evidence in this case of his employment, except the reference from Ms Hong, and the information she has provided in 2023. The only other evidence is the applicant’s personal statement and some generalised information about the business bankruptcy and some photographs he has produced. The origin of that information, the photographs of the business and the factory premises and the bankruptcy were provided by the applicant with translations. The Tribunal is reminded also of the fact that record keeping in China is very different to what is required and recorded in Australia as to personnel and employment records.

1. There is very little to guide the decision-maker other than a determination as to the applicant’s credibility when giving evidence with his explanations. The “bogus document” issue follows from the definition in s 97 of the Act where it means a document that purports to have been but was not issued in respect of the applicant. There is no evidence in this case that the document submitted as an employment reference was counterfeit. The issue for the delegate was whether it did in fact relate to the applicant’s employment and may have been altered. The decision that it was altered was based upon the initial telephone conversation with Ms Hong in 2021, which was unreported as to its content, other than her reported denial she had written it. She says now in June 2023 that was untrue and she did in fact write many references for employees contemplating moving on from KTMPC.

1. Ms Hong has gone to considerable effort to ‘correct’ that telephone record in her two written statements. Ostensibly, she has nothing to gain from changing her oral statement, which she does not deny, but which she explains (plausibly) as emanating from her state of mind at the time, being under pressure because of the bankruptcy, suspicious, but now, in 2023, wishing that she will be left alone and not contacted again.

Was it an incorrect answer in the application because it was not corroborated initially by the manager?

1. Weighing up which is more likely in her two asserted versions of events, the Tribunal rejects the finding that in 2021 her denial over the phone was the more accurate or likely. That is because she was unsure then who she was dealing with at the time, that it was a short conversation, unrecorded and not noted by her, that she had not heard from the former employees themselves as to how they might be impacted, and she was called at a time by a person unknown to her and when she was suspicious and perhaps a little angry about the demise of the business and for which she no doubt felt some responsibility.

1. The Tribunal finds it accepts that the reasonable conclusion is that the information provided in the application for the visa in answer to the question about the applicant’s employment at the time, was and remains correct. The applicant does not disavow the contents in the application form itself and for which he is responsible and although it was prepared by someone else he insists it is all true and correct.

Was the employment refence altered fraudulently?

1. Similarly, the Tribunal rejects the finding that the content of the employment reference as it relates to the applicant and dated 26 October 2020, and before the application was lodged, was not signed or prepared for the applicant (as she also did for many others) by Ms Hong.

1. Ms Hong has given a plausible explanation for her answer in a brief telephone conversation with somebody from the Department’s Shanghai office, that she did not sign anything. She has provided her explanation, which the Tribunal accepts. She agreed she had already provided a number of work references before the business closed. It closed suddenly and she had then left the business herself, apparently somewhat disgruntled with all she then had to do on closure. She did not have employment records available to check in May 2023 more than two years after the closure and understandably did not remember or make mention of individual employees.

1. The Tribunal finds it is not surprising that she had no inclination to provide information or check her memory of individual employment records given the circumstances she outlines in her declaration and given the fact she had been responsible for around 400 employees at the time in November 2020.

1. The applicant himself kept a copy of his work certificate which he has produced with an official translation. The Tribunal finds it accepts the document as evidence of his work reference, which is not fraudulent and which the Tribunal finds has not been “altered without authority”.

1. What is surprising is that the Department waited until after the visa application was approved before making an integrity check with an unannounced mobile phone call to the former general manager in May 2021, and then again in 2023, with a manager who was both suspicious and unhelpful initially, and understandably, given it was more than 2 years after the event, until she realised the import of her communication. When that was pointed out to her from the applicant, by his uncle, and by other visa applicants, the general manager gave a more fulsome declaration, but which the Department refused to accept.

1. Weighing up the two detailed and written explanations from Ms Hong against her initial mobile phone call in May 2021, the Tribunal finds it accepts and prefers the written explanations, in preference to the unrecorded phone conversation which has no details as to what was recorded by whom, when , where and in what circumstance. It is an unverified record and whereas the Tribunal now has the benefit of Ms Hong’s more recent recollection, there is none provided by the recording officer from the consulate representing the Department.

1. The Department did not accept the applicant’s detailed written statement in response to the NOICC made by Statutory Declaration on 16 June 2023. The Tribunal however has had the benefit of seeing and hearing from him in evidence where the Tribunal formed a favourable view as to his credit and which reinforced the veracity of the statement contents.

1. The applicant’s statement also attaches supportive information from the employer attesting to his work performance since arriving in Australia and character references from various

colleagues who attest to his integrity and by default, to his truthfulness in the story that he tells.

1. The Tribunal has considered all that information.

1. The Tribunal finds it accepts the applicant’s assertions, and that he was employed as stated in the application form in answer to the relevant question. The Tribunal is also satisfied that he did obtain the work reference in the circumstances outlined and shortly before the company ceased operations and that it applies to him personally.

1. The Tribunal finds that the reference was and remains a valid document, without alteration, and as confirmed by Ms Hong as a document she did in fact provide to a number of employees, including the applicant as claimed, even if she herself can no longer identify those employees personally.

Conclusion

1. For these reasons, the Tribunal finds that the correct and preferable decision is that there was no non-compliance by the applicant in the way described in the s 107 notice.

1. 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

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

1. The Tribunal has no jurisdiction with respect to the other applicants.

Alan McMurran Member

ATTACHMENT – Migration Act 1958 (extracts)

5       Interpretation

(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.

97       Interpretation

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).

98       Completion 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.

99       Information 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.

100    Incorrect 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.

101    Visa 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.

103    Bogus 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.

107    Notice 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:

* 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).

(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.

108    Decision 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.

109    Cancellation 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.