Yu (Migration)

[2023] AATA 4058

Yu (Migration) [2023] AATA 4058 (1 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Meicai Yu
Mrs Qin Yu
Miss Kexin Yu
Miss Ziyan Yu
Mr Jinchen Yu

REPRESENTATIVE:  Ms Yanqiu Dong (MARN: 0742754)

CASE NUMBER:  2308982

HOME AFFAIRS REFERENCE(S):          BCC2021/1322561

MEMBER:Noelle Hossen

DATE:1 November 2023

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 482 - Temporary Skill Shortage visa.

The Tribunal has no jurisdiction with respect to the other applicants

Statement made on 01 November 2023 at 11:00am

CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482– applicant provided incorrect answers – an employment reference was bogus – applicant was indeed employed by Yurun Group Hefei Wanrun Food – performed the tasks and duties of a slaughterer – skills had been positively assessed by MINTRAC – a truthful witness – decision under review set aside – no jurisdiction with respect to the other applicants

LEGISLATION
Migration Act 1958, ss 101, 103, 109
Migration Regulations 1994, Schedule 2

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 482 - Temporary Skill Shortage visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the first named applicant did not comply with s 101(b) and s103 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 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. As no decision was involved in the visa cancellation under s 140(1), the Tribunal has no jurisdiction with respect to the other applicants.

4. The applicants appeared before the Tribunal on the 1 November 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

6. 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

7. 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.

8. 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.

9. 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?

10. 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 s 101(b) and s103 of the Act in the following respects:

    a.In his Temporary Skill Shortage application form, lodged on the 15 May 2019, the first named applicant claimed to have worked in a position like the one for which he was nominated for the visa, namely Skilled Meat worker at Yurun Group Hefei Wanrun Foods Co. Ltd, since 21 July 2015.The Department  considered that the information was incorrect and alleged that they made enquiries with the employer in China’s representative(Xinhua si responsible for keeping the records of employees, and were advised that the first named applicant had never worked for the group. The department was of the view that this was contrary to the work reference the first named applicant provided from Yurun Group Hefei Wanrun Foods Co. Ltd 30 April 2019.

    b.In his Visa application the first named applicant provided an employment reference dated the 30 April 2019. The Department was of the view that the reference was a bogus document as there was no evidence that the first named applicant had worked for the group.

11. On the 15 May 2019 the applicant applied for a Temporary Skill Shortage visa and completed the necessary forms.

12. The applicant set out that his employment history as that of a skilled meat worker on a full-time basis with the Yurun Group Hefei Wanrun Foods CoLtd in China from the 21 July 2015.

13. In support of his Temporary Skill Shortage visa application, the applicant also provided an employment reference from Yurun Group Hefei Wanrun Foods Vo Ltd dated the 30 April 2019 with a certified English translation.

14. The employment reference was signed by Xinhua Si who was noted as the officer in Charge.

15. The application for Visa was successful and the applicant was granted a Temporary Skill Shortage Visa on the 21 June 2019.

16. The Delegate’s Decision sets out that following the grant of the applicant’s Temporary Skill Shortage Visa application, the Department conducted integrity checks on the applicant’s employment claims. On 13 May 2021, the Department contacted Xinhua Si who was identified in the employment reference as the officer in charge of Yurun Group, who advised the department that all employee profiles are kept on the human resources system of the parent company, Najing Yurun Foods Co. Ltd.

17. On 13 May 2021, the Department contacted the human resources section at Nanjing Yurun Foods Co Ltd who confirmed that there are the parent company of Yurun Group . The Department set out in the Decision that the human resources section at Nanjing Yurun Foods Co Ltd confirmed that the Visa holder was not recorded in the human resources system and that the Visa holder had never been employed by the company as declared in the Visa application.

18. In the Delegate’s Decision the delegate placed a lot of weight on the information gathered by Department’s contact with the human resources section of Nanjing Yurun Foods Co Ltd.

19. As a result of their discussions with the human resource section of that company the Delegate considered that the applicant had not complied with section 101 for providing incorrect information and section 103 for providing an employment reference which they considered to be bogus.

20. The applicant stated that there was no non-compliance. The applicant maintained that he did not provide any false or misleading information, and that he did not provide a bogus document, in support of his application for a Temporary Skill Shortage Visa.

21. The Tribunal heard oral evidence from the applicant at the hearing. The Tribunal finds that the applicant was indeed employed by Yurun Group Hefei Wanrun Food Co Ltd and performed the tasks and duties of a slaughterer and that the applicant also performed the tasks and duties of a boner during periods of peak production before various Chinese festivals.

22. The Tribunal places weight on the following facts in favour of the applicant’s case:

    1.    At the time of the Department made its enquiries 2021 the employer Yurun Group Hefei Wanrun Food Co Ltd had already gone bankrupt. The officer in charge Mr Si had already retired and did not have immediate access to the files and information about the applicant’s employment at the time of the call. Mr Si provided general information and he was not aware at the time of the call of the contracting relationship under which the applicant was employed.

    2.    The applicant gave evidence that he was not able to contact Mr Si from Australia from his mobile. He was able to ask his parents to liaise with Mr Si in China. Mr Si was able to provide clarification regarding the applicant’s employment which was under a contractual arrangement. He provided a letter which was provided to the Department. He advised the Department that he had overall legal responsibility including direct oversight of Occupational Health & Safety and managed most of its operations through its contractor that handle recruitment and Work records.

    3.    Mr Si advised that the contractor’s full name could not be provided for legal and privacy reasons however he was referred to as Mr Wu. The Tribunal clarified the position as to why it was kept secret with the applicant and his representative. This is a common trait among state owned or large enterprises in China.

    4.    The difficulty is the fact that Mr Si was no longer employed by the company and in fact the company had become bankrupt. The Tribunal takes into consideration the fact that China’s administration and management systems at different levels is problematic at times. The Tribunal accepts a submission from the applicant that his social status as a meat worker in China was low as was his salary and home that he did not receive superannuation, insurance or Workcover. It was for this reason that he wanted to live and work in Australia as a meat worker because of the better working conditions in Australia.

    5.    The Tribunal places a lot of weight on the statement of assessment letter which stated that the applicant had a skill level commensurate with an Australian Certificate III in Meat Processing. The applicant confirmed that he had not worked at any other meat processing facility in China. He had only worked for the Yurun Group Hefei Wanrun Food Co Ltd group through a contractor. The Tribunal accepts the applicant’s submission that it takes years of experience to become a skilled meat worker. It was the fact that he had worked for 3 years for the Yurun Group Hefei Wanrun Food Co Ltd group that enabled him to gain the relevant knowledge and skills to pass the skills assessment and be offered employment with Southern Meats Pty Ltd.

    6.    The Tribunal accepts the applicant’s submission that he would not have had motivation to provide incorrect information and a bogus document about his employment history when his skills had been positively assessed by MINTRAC.

    7.    The Tribunal also accepts the applicant’s submission that he should not be prejudiced because of the differences between China and Australia in the management systems of its workers. The Tribunal accepts that the applicant was employed by the Yurun Group Hefei Wanrun Food Co Ltd and that his work experience in China was authentic.

    8.    The Tribunal considers that the applicant was a truthful witness and places weight on his statements at the hearing and the documents lodged in favour of not cancelling the Visa.

    9.     He has continued to be employed by Southern Meats to the date of the hearing.

    Conclusion on non-compliance

    10.       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

    11.      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.

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

    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.

    103Bogus 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.

    * 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).

    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.