Wu (Migration)

[2022] AATA 2249

Wu (Migration) [2022] AATA 2249 (30 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Zhenfan Wu
Mr Boxuan Wu

REPRESENTATIVE:  Ms Yanqiu Dong (MARN: 0742754)

CASE NUMBER:  2202991

HOME AFFAIRS REFERENCE(S):          BCC2021/1282036

MEMBER:Noelle Hossen

DATE:30 June 2022

PLACE OF DECISION:  Perth

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 408 (Temporary Activity) visa.

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

Statement made on 30 June 2022 at 11:41am

CATCHWORDS
MIGRATION – cancellation – Subclass 408 (Temporary Activity) – incorrect information given in previous visa application – work experience – departmental checks – no employment records – employment through contractor – employer now in liquidation – forthright and honest evidence and further documentation provided – automatic cancellation of second applicant’s visa with no jurisdiction to review – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 109(1)

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 first named applicant’s Subclass 408 (Temporary Activity) 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 Section 101(b) of Subdivision C of the Act. 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. 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 visa was 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. As no decision was involved in the visa cancellation under s 140(1), the Tribunal has no jurisdiction with respect to the other applicant.

4. The applicants appeared before the Tribunal on the 30 June 2022 to give evidence and present arguments.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

7. 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

8. 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.

9. 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.

10. 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 non-compliance as described in the s 107 notice?

11. 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. The non-compliance identified and particularised in the s 107 notice was non-compliance with the applicant providing incorrect answers in support of his Temporary Work (Skilled) (Subclass 457) visa Application in the following respects:

    Employer:            Yurun group hefei wanrun food co ltd

    Position:               Slaughterer and Boner

    Date from:            12 August 2012

    Date to                9 January 2017

    Duties of Position: meat processing

12. The above information was provided in answer to the question “Give past Employment details” on page 13 of the form. The answer appears to be incorrect because a HR officer of Nanjing Yurun Foods Co Ltd, who is responsible for keeping employee records of all current and former employees of Yurun Group Hefei Wanrun Foods Co Ltd, confirmed that the visa holder’s employee information cannot be found in their HR system and the visa holder has either never been employed by Yurun Group Hefei Wanrun Foods Co Ltd or only worked there for less than six months. This is contradictory to the above information where the visa holder claimed that he worked at Yurun Group Heifei Wanrun Foods Co Ltd from August 2012 to 2017.

13. By Answering yes to the declarations on pages 14 and 15 of the Form “Temporary Work (Skilled (Subclass 457) visa, the visa holder agreed that he provided complete, correct and up to date information in his application. However, it appears he did not do so.

14. The applicant provided 15 documents in support of his case before the Tribunal. The applicant provided evidence that he was a highly skilled worker and is an invaluable member of the team of Central Agri Group Pty Ltd as a slaughterer.

15. He said that he was extremely shocked when he received notice of possible cancellation. He was able to contact the previous executive Vice President of the company Mr. Xin hua Si, who even though he had retired realised the gravity of his answers when he was interviewed by the Department and helped the applicant by looking for further evidence on behalf of the applicant.

16. Mr Si found out that his employment was through a contractor and found his resignation letter through the archives of the company, that the applicant had submitted on the 26 December 2016. The applicant was able to provide some evidence supporting the fact that he was employed by Yurun Group Hefei Wanrun Foods Co Ltd.

17. The applicant provided the following documents that have been considered by the Tribunal:

    Letter of Clarification on his employment provided by Mr Si

    His Resignation letter

    Contract signed between Yurun Group and the contractor.

    Positive Skill assessment Certificate dated 24 November 2016

    MINTRARCT assessor Support letter.

    News of Bankruptcy and Reorganisation of Yurun Group posted on the 1 Februry 2021

    Chinese Government Regulations on business Cash payment

    Chinese Government Regulation on the period for an employer is to keep employment records Current Employer Support letter

    Support letter from his Son’s Education provider.

18. The Tribunal accepts his evidence that he was employed by Yurun Group through a contractor. The applicant gave his evidence in a forthright manner and the Tribunal considers that he is an honest witness. He explained that the Chinese Government regulations provide that he was not required to file a tax return because of his very low income in China. The difficulties associated with the company’s record keeping should not affect the fact that there is insufficient proof that he has worked for the company. This is due to his low-income status and the difficulties with a company that is now facing liquidation and was partially state owned.

19. The Tribunal accepts his evidence and that of Mr Si who was able to furnish some further evidence that he worked for the company.

20. 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

21. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 408 (Temporary Activity) visa.

22. The Tribunal has no jurisdiction with respect to the other applicant.

    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.

    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.