Zhang (Migration)

[2022] AATA 1814

Zhang (Migration) [2022] AATA 1814 (9 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Peng Zhang
Ms Xiaohong Wang
Miss Yifei Zhang
Miss Zhiqi Zhang

REPRESENTATIVE:  Mr Francis Chu

CASE NUMBER:  2107504

HOME AFFAIRS REFERENCE(S):          BCC2020/1914490

MEMBER:Namoi Dougall

DATE:09 June 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

·Public Interest Criterion 4020 for the purposes of cl 186.213(1) of Schedule 2 to the Regulations.

In relation to all other applicants, the Tribunal does not have jurisdiction in this matter.

Statement made on 09 June 2022 at 1:19pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – false or misleading information and bogus document given in previous visa application – work experience and certificate of employment – community allegation of false certificates – departmental check mentioned many workers in short phone call – elapse of time and informal procedures, so limited documentation available – no probative evidence to establish certificate as bogus – site visit and work skills test by Australian employer before recruitment – additional, consistent evidence from applicant and previous and current employers – members of family unit not in Australia when refusal decision and review application made, so no jurisdiction to review for them – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65, 347, 359A
Migration Regulations 1994 (Cth), Schedule 2, cls 186.213(1), 457.223(2)(d), Schedule 4, criterion 4020(1)

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Trivedi v MIBP [2014] FCAFC 42

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 on 21 May 2021 to refuse to grant the applicants Employer Nomination (Permanent) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 16 July 2020. The delegate refused to grant the visas on the basis that the first named applicant (the primary applicant) did not satisfy the requirements of cl 186.213(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied that the primary applicant met the requirements of public interest criterion (PIC) 4020 of Schedule 4 to the Regulations. The delegate found that the primary applicant had given information that was false and misleading in a material particular in regard to his work history in relation to a visa the primary applicant held 12 months before the application was made.

3. On 25 January 2022, the Tribunal wrote to the applicants, pursuant to s 359A of the Act, inviting the primary applicant to comment on adverse information. The adverse information was that the primary applicant’s nominator Teys had written to the Department withdrawing its nomination application.

4. On 8 February 2022, the applicants responded to the Tribunal’s letter of 25 January 2022 by providing a submission and a letter from Teys dated 6 February 2022. Teys stated in the letter that it valued the contribution of and acknowledges the skills and experience the primary applicant brings to his role and supports his Subclass 186 visa application. Teys further stated that it inadvertently withdrew its nomination application and is now reapplying and/or reinstating the nomination.

5. The primary applicant appeared before the Tribunal on 7 June 2022 to give evidence and present arguments. 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 matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this review is whether the visa applicant meets PIC 4020 as required by cl 186.213(1) for the grant of the visa. Broadly speaking, this requires that:

   ·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and

   ·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and

   ·the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and

   ·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA).

9. The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.

   Has the primary applicant given, or caused to be given, a bogus document or information that is false or misleading in a material particular?

10. The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and the term ‘bogus document’ is defined in s 5(1) of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.

11. The requirement in PIC 4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant: PIC 4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.

12. While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42.

13. On 21 July 2016, the applicants applied for Subclass 457 visas which were granted on 5 September 2016. The primary applicant’s sponsor was Cargill Australia Limited. The primary applicant still held this visa when he applied for the Subclass 186 visa the subject of this review. Provided with the Subclass 457 visa application was a certificate of employment dated 17 May 2016 signed by the principal of Tangshan Yisheng Industrial Co Ltd (TYI), Mr Jingguo Qian (the work certificate), which indicated that the primary applicant worked for TYI as a boner and slaughterman from May 2012.

14. Provided with the Subclass 457 visa application was a resume which stated that from January 2010 to March 2012, the primary applicant worked as a meat worker at Datang Dingwang Industrial Group Co Ltd and then from May 2012 to November 2016 as a boner/slaughterman at TYI. A similar resume was provided with the Subclass 186 visa application and it also stated that from November 2016 to the date of the resume the primary applicant worked as a boner for Teys Australia Southern Pty Ltd (Teys). Also provided was a reference from Teys dated 18 June 2020 which stated that the primary applicant has worked full time at Teys based in Tamworth. The reference also stated that he started working for Teys on 21 November 2016 and is currently working in the boning room.

15. The Department while processing the Subclass 186 visa application received a community allegation that offshore recruitment agencies were producing false work experience certificates from China for meat industry workers. An overseas Departmental officer obtained a telephone number for TYI from an open source. The officer telephoned the HR Manager of TYI who confirmed that the primary applicant had previously worked for the company. The officer asked for more detailed information as to the primary applicant’s employment such as job duties, hours worked, commencement date and cease date and monthly/annual salary. The HR Manager informed the officer that there may be a labour contract but there was no guarantee that it could be located. The HR Manager also advised that the company paid staff in cash so there was no evidence of salary or tax payments such as payslips and the company did not provide social welfare so there was no evidence of social security.

16. The Departmental officer requested that the call be transferred to the referee, Mr Qian but was advised by the HR Manager that Mr Qian is the boss of TYI but he could not be located at that moment.

17. The officer asked the HR Manager to provide a contact in the business that would be able to verify the primary applicant’s employment and was referred to the workshop director, Mr Liu. The Departmental officer contacted Mr Liu who confirmed that he worked for the business and provided consistent information as to TYI’s company structure, location and office number. Mr Liu stated that he had worked as the workshop director for 10 years and that the primary applicant had previously worked in the business and that he had been the primary applicant’s direct supervisor. Mr Liu stated that many staff had been under his supervision and that he had just received a call from the HR Manager. When asked about the primary applicant’s duties, Mr Liu hesitated, and then stated what the delegate described as general information. That is the primary applicant’s duties include cutting and boning meat and that the primary applicant separated meat from the bones and worked as either a slaughterman or slicer.

18. Mr Liu could not answer questions about the primary applicant’s background, approximate age, height or previous work experience.

19. Mr Liu was not able to provide details on when the primary applicant joined TYI or the year he resigned but did state that the primary applicant worked there for a couple of years.

20. On 13 April 2021, the Department sent the primary applicant a natural justice letter (the natural justice letter) which set out the information referred to in the above paragraphs and stated that there are concerns that the HR Manager and Mr Liu were unable to answer questions about the primary applicant’s job duties, hours worked, commencement and cease dates and salary, and that TYI had only recorded that the primary applicant had worked there from 2012 to 2016. The Department in the letter referred to the work reference having been provided by “Yurun Group Hefei Wanrun Foods Co Ltd Yangxin Huasheng Halal Meat Co Ltd”. The letter also stated that there were concerns regarding the nature of the relationship that the primary applicant had with the business as there was no formal labour contract, and based on the information provided by the HR Manager and Mr Liu there is no official evidence that can be provided to support the primary applicant’s employment. The natural justice letter stated that a preliminary view had been reached that the work certificate contained information that was false and misleading in relation to the primary applicant’s skills. Further, as Mr Liu could not provide a consistent account of the primary applicant’s duties or the period of employment, the letter stated that it was reasonable to suspect that the work certificate is a bogus document.

21. The Department in the natural justice letter invited the primary applicant to comment on the above information. The natural justice letter also referred to PIC 4020 still being satisfied in circumstances where there are compelling circumstances affecting the interests of Australia, or compelling or compassionate circumstances affecting the interests of an Australian citizen, Australian permanent resident or an eligible New Zealand citizen that justify the grant of the Subclass 186 visa.

22. On 11 May 2021, the primary applicant provided in response to the natural justice

23. On 11 May 2021, the primary applicant also responded to the natural justice letter with a response and supporting documents. In the response the primary applicant stated that he has never worked for Yangxin Huasheng Halal Meat Co Ltd. The primary applicant also stated in the response that the HR Manager of TYI, Mrs Lifang Zhang when contacted by the overseas Departmental officer, confirmed that he worked for TYI, the period of employment and that he worked as a boner and ‘slaughter’. He further stated that HR in China is different from Australia, as they would go to the processing factory floor to ascertain who is suitable for the position while in China it is the workshop manager who is responsible for this. He also stated that the HR Manager told the Departmental officer the normal hours worked but meat processing factories have flexible hours as they depend on the amount of cattle that need to be processed unlike in Australia where there is a fixed production amount.

24. The primary applicant in the response referred to the Departmental officer’s concerns that there was no evidence to support the primary applicant’s employment with TYI and stated that he does have a contract from TYI which is a general version of the contract and not filed with the Labor Bureau. He also stated that TYI had not paid social welfare to the workers since the factory started. As to his salary he stated that he was paid cash RMB3,000 per month and that the factory did not keep records of employees signing for their wages. Further, as his income was less than RMB3,00 he was not required to pay tax under Chinese law. The primary applicant also explained that there is no compulsory social welfare system equivalent to Australia’s superannuation. In China employers pay 26% and employees pay 8%. As he needs to pay social security for 1 year without any gaps and that it would be RMB240 per month from his salary, he preferred to have extra cash when he worked for TYI.

25. In the response the primary applicant referred to the Departmental officer’s interview with Mr Liu and that he called Mr Liu to discuss the interview and was informed by Mr Liu that he did answer that the primary applicant was a boner and ‘slaughter’ who worked in the boning room and kill floor. In relation to Mr Liu being asked to recall an ex-employee the primary applicant stated that it was 5 years since he had left TYI and that Mr Liu found it hard to recall everything in such a short time. The primary applicant stated that he remembered Mr Liu from when he worked at TYI and provided a physical description of him. The primary applicant also stated that he recalled his trainer Mr Kang Song who was responsible for training, supervision and other ‘specific workshop’.

26. In the response the primary applicant referred to the natural justice letter stating Mr Liu was unable to recall the primary applicant’s job duties, hours of work, commencement and cease dates and salary. The primary applicant stated that as Mr Liu manages hundreds of workers, it would be hard for him to remember the commencement date and cease date of every single worker who had left many years ago. As to the salary the primary applicant stated that this would be information known to the finance department but Mr Liu did answer the question by stating that according to his memory it was around RMB3,000.

27. The primary applicant in his response stated that he had provided the truth and a detailed answer as to his work history with TYI. He worked at TYI boning hind legs in the boning room and skinning forelegs in the slaughter room. His hours were basically 6:30 am to 11:30 am and 12:30 pm to 6:00 pm depending on production. He spoke about how he enjoyed working and living at Tangshan Yisheng and the friends he made.

28. In the response the primary applicant stated that he has worked for Teys for 5 years and 5 months, pays his taxes, abides by Australian law and contributes to Australian society. He assisted a former neighbour including when she collapsed and was unconscious. The neighbour provided a character reference dated 4 May 2021 to the Department.

29. Provided to the Department in response to the natural justice letter by the primary applicant was his statutory declaration dated 7 May 2021 in which he stated that he worked for TYI as a ‘slaughter’ and boner from 21 May 2012 to 4 November 2016. His job was boning the hind leg and skinning the foreleg of the carcass. He provided the address of TYI and that the general manager was Mr Jingguo Qian and the workplace director is Mr Dongchao Liu who still works for TYI. He also stated that he lived in the company dormitory. The primary applicant provided to the Department a translated work certificate dated 2 April 2021 which stated that Mr Qian has been working for TYI since June 2013 as the director of the boning room and kill floor.

30. The primary applicant also stated in his statutory declaration that he learned through the internet during the first half of 2014 that Australia was recruiting workers from China. He prepared for his IELTS test which he achieved in September 2014. He also passed his physical and skills test held by Teys in August 2016 and then he prepared to come to Australia.

31. Provided to the Department in response to the natural justice letter was a translated Labor Contract, Full Time Employment dated 21 June 2012 and signed by the primary applicant and Mr Jingguo Qian (the labour contract). The labour contract stated that the term was 21 June 2012 to 20 June 2016 with a probation period of a month before the start date. The work was stated to be boner and slaughterman in the workshop. The hours are listed as 8 hours per day for 5 days a week. The wage is RMB3,000 per month.

32. Provided to the Department in response to the natural justice letter was a translated explanation of the situation dated 26 April 2021 and signed by Mr Liu (Mr Liu’s explanation). Mr Liu in the explanation stated that during the investigation call made by an overseas Departmental officer on 6 January 2021 the workshop director and personnel both made it clear that the primary applicant worked in the factory from 21 May 2012 to 4 November 2016 as a boner and slaughterman. As many people were mentioned on the telephone call at the same time, and the call was short and hasty, and it occurred several years after the primary applicant had left, Mr Liu did not describe the primary applicant’s background and job description in detail nor did he realise the importance of describing in detail the primary applicant’s job description. The primary applicant had worked at the factory for many years and was competent in many skills for the positions. Mr Liu further stated in his explanation that, in relation to the primary applicant’s background, as many people were mentioned in the telephone call at the same time, it was too long ago, and the factory had many employees, the staff of TYI only made a general description of the primary applicant’s background.

1. Provided to the Department in response to the natural justice letter was a translation of a letter of certificate dated 26 April 2021 and signed by Mr Liu (Mr Liu’s certification). In his certification Mr Liu stated that the primary applicant worked for TYI from 21 May 2012 to 4 November 2016 as a slaughterman and boner and was a qualified and excellent worker. Mr Liu then went on to describe in detail the work carried out by the primary applicant in the boning workshop and the slaughtering workshop.

2. Provided to the Department in response to the natural justice letter was a translation of an employee accommodation certificate dated 2 April 2021 and signed by Mr Lifang Zhang (the accommodation certificate) which confirmed that the primary applicant worked for TYI from 21 May 2012 to 4 November 2016 and that during this period he lived in the dormitory provided to all company employees.

3. Provided to the Department in response to the natural justice letter was a translation of a resume for the primary applicant dated 21 May 2012 which stated that as of that date he was a boner/slaughterman. TYI is not listed as his current employer but his 2 previous positions are listed including that he worked as a meat worker from January 2010 to March 2012 at Datang Dingwang Industrial Group Co Ltd (DDIC).

4. At the hearing the primary applicant stated that he worked for a steel manufacturer but it went bankrupt, so he started to work for a pork manufacturer which was DDIC. He worked there for 3 years. While working for DDIC he heard that there was a new beef manufacturer opening. He applied for the job with TYI and after an interview he was employed as a boner and slaughterman. He worked for TYI for over 4 years in the same position.

5. At the hearing the primary applicant stated that he was paid during probation RMB2,500 and after probation it was RMB3,000 which is what it remained over the whole time he was employed. His duties were as previously described and included taking the skin off and deboning the hind legs of the cow’s carcass; he also did handy jobs and cleaned the bones. His hours were flexible, in the morning 7:00 am to 11:30 am and in the afternoon, 12:30 to 5:30, 6:00 or 7:00 pm depending on the work. The primary applicant worked 5 to 6 days per week, and he lived in the factory dormitory with the workers. His family lived in Lubei District, Tangshan City which was about an hour away by bus.

6. At the hearing the primary applicant stated that he heard from a colleague about jobs in Australia around October 2014. In 2015, he searched online about Australia and became aware that the salaries in Australia are very high. He obtained an agent in July 2015 to apply for jobs in Australia. In 2015, the owner of the Australian business where he had made an application came to China to interview him and others. The management from Teys interviewed him and checked his personal circumstances, physical strength and skills.

7. At the hearing the primary applicant stated that as to the skills testing, 2 of the Teys management observed them at work and assessed their job. After a month the agent notified him that he had been employed. In May 2016, he prepared his documents to apply for a Subclass 457 visa which included him approaching HR to obtain a work certificate which he then had notarised by the government. In relation to English, in September 2014 he sat an IELTS test which his agent informed him would be valid for 3 years. In September 2016 he was granted a Subclass 457 visa.

8. At the hearing the Tribunal asked the primary applicant why he went for his IELTS test in September 2014 when he only heard of jobs in Australia in October 2014. The primary applicant stated that a lot of young people in China went overseas to work so he started to learn English in 2013. He did not make any other preparations to travel overseas as in 2013 and early 2014 he was working.

9. At the hearing the Tribunal stated it had considered all the material provided to the Department and the Tribunal about his work history and asked if he wanted to add anything further. The primary applicant stated that he worked from 21 May 2012 until 4 November 2016 at TYI, his salary was paid in cash and there was no social security. When he was paid, he did sign for his payments but TYI did not keep records of the employees’ signatures so they could not be found. During his employment he was required to have a medical certificate, but it was a long time ago and he has not kept this.

10. Provided to the Tribunal was a statement dated 22 May 2022 from Mr Shaun Crapp, General Manager, Teys. In the statement Mr Crapp stated that the Australian meat processing industry is important and had made a great contribution to the growth of Australia’s economy. Teys is one of the largest meat processors and providers of animal protein supply chain solutions. Teys is an essential business, which integrates the supply chain from feed lots to distribution and made a great contribution to the Australian economy.

11. Mr Crapp, in his statement, further stated that there is a shortage of skilled meat workers, especially in rural areas, and this has been exacerbated by the COVID-19 pandemic. There is a shortage of 10,000 skilled meat workers nationally and at the Tamworth site, where the primary applicant works, there are 41 vacant positions. This leads to 50 animals being processed per week and cuts production by 6%, which in turn affects the whole supply chain. Farmers and feed lot operators’ costs are higher as animals have to be held longer, and downstream, distributors’ contracts cannot be fulfilled, which leads to higher costs for logistics and the consumer.

12. In his statement, Mr Crapp referred to the primary applicant having worked for Teys for nearly 6 years, demonstrated that he is fully committed to his work and is an integral member of the team. The loss of the primary applicant would be detrimental to the company and its people and its stakeholders as well as being a loss to Australia. He also stated that Teys is short of staff, he has been here for almost 6 years and is now a very skilled worker and Teys needs him to stay and work. He likes his job and Tamworth where he is staying.

13. At the hearing, the Tribunal explained that as the secondary applicants were not in Australia at the time of the decision or when the application was made, the Tribunal could not review the delegate’s decision in relation to their Subclass 186 visa applications. The primary applicant confirmed that they were not in Australia and the Tribunal explained that the Tribunal cannot make a decision on the secondary applicants as they do not come within the provisions of the Act which would allow the Tribunal to make a decision in relation to them as the Tribunal does not have jurisdiction.

14. The Subclass 457 visa was granted on 5 September 2016, and at the time the primary applicant applied for the Subclass 186 visa the subject of this review, the primary applicant still held the Subclass 457 visa. Therefore, the Tribunal is satisfied that the information in question, that is the primary applicant’s work history and work certification, is information in relation to a visa held in the 12 months before the visa application was made.

15. The Tribunal will first consider whether there is evidence before the Tribunal that the primary applicant has given, or caused to be given, to the Department a bogus document, which is defined in s 5(1) of the Act and is a document that the Tribunal reasonably suspects:

    ·purports to have been, but was not, issued in respect of the person; or

    ·is counterfeit or has been altered by a person who does not have authority to do so; or

    ·was obtained because of a false or misleading statement, whether or not made knowingly.

16. The Department, when investigating the primary applicant’s work history, contacted the principal and the HR Manager of TYI and was concerned about the vague responses given by both. However, the workshop director, Mr Liu did recall the primary applicant and the vagueness of the responses could have easily been due to the Departmental office contacting the HR Manager and Mr Liu over 5 years after the primary applicant had left TYI’s employment and the number of employees that both would have encountered over those 5 years. In addition, neither had been given a copy of the work certificate, and the officer was inquiring about a number of employees. Further, nothing stated by the HR Manager or Mr Liu was inconsistent with the primary applicant having worked at TYI in the positions stated.

17. In the decision, the delegate referred to the primary applicant’s response to the natural justice letter indicating that the primary applicant had contacted the HR Manager and Mr Liu to verify the conversation between the Departmental officer and the HR Manager and Mr Liu. In the circumstances, the fact that the primary applicant contacted both the HR Manager and Mr Liu is not surprising as he had to respond to the natural justice letter nor is it, of itself, suspicious. The delegate further stated that the primary applicant’s response indicated that the HR Manager had contacted Mr Liu to alert him that a Departmental officer would be contacting him about the primary applicant and, therefore, the delegate gave little weight to the primary applicant’s response. The fact that the HR Manager contacted Mr Liu after what would have been an out of the ordinary phone call, is not necessarily suspicious or surprising. In relation to Mr Liu’s certification, the delegate stated that although it provides full details of the process involved in boning, it does not demonstrate that the primary applicant worked at TYI so the delegate gave this document little weight. As to Mr Liu’s explanation the delegate stated that it was not supported by evidence demonstrating the primary applicant’s employment at TYI so little weight was placed on the explanation. The delegate gave little weight to the labour contract as the HR Manager had stated at the interview that there might be a labour contract but there was no guarantee that it would be located. The delegate gave some weight to the 2 resumes provided by the primary applicant but then stated that the documents are not supported by evidence demonstrating that the primary applicant was employed by TYI. In relation to the primary applicant’s application form and employee accommodation certificate the delegate stated that these were given little weight as they do not prove that the primary applicant was employed by the business.

18. The delegate gave little weight to nearly all of the documents provided in response to the natural justice letter and, for some of them, a reason for doing so was that the documents or explanations were not supported by evidence demonstrating that the primary applicant worked for TYI as a boner and slaughterman. In relation to the labour contract the delegate gave it little weight because the HR Manager stated that there may be one but there was no guarantee it would be located. The Tribunal notes that the HR Manager did not state that there was no labour contract or that it would not be found and, therefore, is not prepared to dismiss the labour contract as having little weight. Further, the delegate did not consider the evidence as a whole, including the labour contract, which is consistent and supports the primary applicant’s and Mr Liu’s claim that he was employed by TYI as a boner and slaughterman. The primary applicant’s evidence at hearing was also consistent with the documents and his stated work history. The Tribunal notes that the applicant was passed a skills test in China.

19. On the basis of the above, the Tribunal is not satisfied that there is evidence before it that the primary applicant has given, or caused to be given, to the Department a bogus document, which is defined in s 5(1) of the Act, as the evidence relied on by the Department and which is before the Tribunal does not have sufficient probative value to establish the work certificate is a bogus document.

20. The Tribunal will now consider if the information ‘is false or misleading in a material particular’ as defined in PIC 4020(5), which requires that the information is:

    ·false or misleading at the time it is given; and

    ·relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.

21. The criteria that the information is relevant to are found in cl 457.223(2)(d), which requires an applicant to demonstrate that he or she has skills and experience that are suitable to perform the occupation in a manner specified by the Minister. It is reasonable that the Department would require a work history and references that were not false or misleading to assess whether such a skill assessment was needed. Therefore, the Tribunal is satisfied that the information in question, that is the work history and work certification, is information relevant to cl 457.223(2)(d). However, for the same reasons as the Tribunal was not satisfied that the primary applicant has given, or caused to be given, to the Department a bogus document, which is defined in s 5(1) of the Act, the Tribunal is not satisfied that the primary applicant has given, or caused to be given, to the Department information that is false or misleading in a material particular that is in relation to his work history or work certification.

22. Therefore, the primary applicant meets PIC 4020(1).

    Has the applicant satisfied the identity requirements?

23. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity. The Department was provided with a copy of the primary applicant’s passport.

24. There is no evidence before the Tribunal to suggest that there is any issue with the primary applicant’s identity. Both the Department and the Tribunal have been provided with a copy of the detail pages of the primary applicant’s passport.

25. Therefore, the primary applicant meets PIC 4020(2A).

    Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?

26. PIC 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2BA).

27. The Tribunal has no information before it to suggest that the primary applicant has been refused a visa in the relevant period because of a failure to satisfy PIC 4020(1). Therefore, PIC 4020(2) is met.

28. PIC 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2BA).

29. There is no evidence before the Tribunal to show that the primary applicant, or any member of his family, have been refused a visa in the relevant period because of a failure to satisfy PIC 4020(2A).

30. Therefore, the primary applicant meets PIC 4020(2B).

31. On the basis of the above, the primary applicant does satisfy PIC 4020 for the purposes of cl 186.213(1).

32. The Department’s movement records show that all the other applicants for the Subclass 186 visa (the secondary applicants) were not in the migration zone at the time the Department made the decision to refuse to grant the Subclass 186 visas on 21 May 2021 or when the application for review of those decisions was lodged with the Tribunal on 9 June 2021. The Tribunal finds that the secondary applicants were not in the migration zone at the relevant time. As such, the application for review, insofar as it relates to the secondary applicants, is not an application properly made under s 347 and it follows that the Tribunal does not have jurisdiction in this matter.

    DECISION

33. The Tribunal remits the application for Employer Nomination (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·Public Interest Criterion 4020 for the purposes of cl 186.213(1) of Schedule 2 to the Regulations.

    In relation to all other applicants, the Tribunal does not have jurisdiction in this matter.

    Namoi Dougall
    Member

    ATTACHMENT

    Migration Regulations 1994

    Schedule 4

    4020(1)         There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

    (a)the application for the visa; or

    (b)a visa that the applicant held in the period of 12 months before the application was made.

    (2)The Minister is satisfied that during the period:

    (a)starting 3 years before the application was made; and

    (b)ending when the Minister makes a decision to grant or refuse to grant the visa;

    the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).

    (2AA)However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

    (2A)The applicant satisfies the Minister as to the applicant’s identity.

    (2B)The Minister is satisfied that during the period:

    (a)starting 10 years before the application was made; and

    (b)ending when the Minister makes a decision to grant or refuse to grant the visa;

    neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).

    (2BA)However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

    (3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.

    (4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:

    (a)compelling circumstances that affect the interests of Australia; or

    (b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

    justify the granting of the visa.

    (5)In this clause:

    information that is false or misleading in a material particular means information that is:

    (a)false or misleading at the time it is given; and

    (b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.

    …

    Migration Act 1958

    s 5      Interpretation

    (1) In this Act, unless 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.

    …