Zhang (Migration)

[2023] AATA 3995

Zhang (Migration) [2023] AATA 3995 (20 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Chaoheng Zhang
Mrs Qinzheng Huang

REPRESENTATIVE:  Ms Yanqiu Dong (MARN: 0742754)

CASE NUMBER:  2309611

HOME AFFAIRS REFERENCE(S):          BCC2021/1322386

MEMBER:Noelle Hossen

DATE:20 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 applicant.

Statement made on 20 November 2023 at 12:45pm

CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – labour agreement stream – incorrect information and bogus document in visa application – employment history and work reference certificate – departmental integrity checks – company had ceased operations and did not issue certificates at that time – later clarification by general manager – conflicting evidence of operations and closure of company – forthright and honest evidence by applicant – skills assessment, continuing work and reference from employer – member of family unit – automatic cancellation of wife’s visa with no jurisdiction to review – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101(b). 103, 109(1), 140(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 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 applicant did not comply with s 101(b) and 103 of the Migration Act 1958 (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 because 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 17 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 s 103 of the Migration Act 1958 ( the Act) in the following respects:

11. On the 19 December 2020, the applicant lodged an Application for a Temporary Skill Shortage (Labour Agreement Stream) visa. On pages 8 and 9 of the Skill Shortage Visa Application under the heading “Employment History”, the form asked, “Is this the applicant’s employment situation?” The applicant answered, yes and provided details that he was currently employed as a Skilled Meat Worker for Kaifeng Truein Meat Processing Co. Ltd hereinafter referred to as KTMPC.

12. The Delegate of the Department considered that to be incorrect, as the Departmental officers had conducted integrity checks on the 15 May 2021 from their Shanghai’s post by contacting Yan Hong who stated that she had worked as the General Manager of KTMPC since 2012.It is alleged by the Department that Yan Hong confirmed in the conversation that she did not issue any work reference certificates since 2019, and as KTMPC had terminated its business operations from the end of 2018.

13. The Delegate of the Department considered that the applicant did not comply with s. 103 of the Act and stated in the Decision as follows:” On the 19 December 2020, the visa holder provided to the Department as evidence of his employment history, a copy of KTMPC work reference certificate, issued and signed by General Manager Yan Hong, dated 26 October 2020. The certificate stated that the visa holder was currently employed as a boner at KTMPC and had worked there since the 7 December 2014. However, Yan Hong has confirmed she did not issue any KTMPC work reference certificates after 2019. Also, she stated that KTMPC had leased its factory facilities and business licence to other companies at the end of 2018 and from then on, the company did not engage in actual business operations, including any manufacturing or processing. It therefore follows that the KTMPC work reference certificate is not a genuinely issued document.”

14. 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 (Labour agreement stream) visa. The applicant submitted the following submissions:

15. He was employed as a boner from 7 December 2014 until the 25 November 2020. He confirmed at the hearing before the Tribunal that he was so employed. He stated that he had not worked in any capacity as a meatworker for any other company whilst living in his home country. The Tribunal accepts his oral evidence as he gave his evidence in an honest and forthright manner.

16. The applicant stated that KTMPC dismissed all its employees and declared bankruptcy on the 25 November 2020.

17. He had obtained a positive MINTRAC statement of Assessment letter which stated that his skill level was equivalent to that of an Australian Certificate III Meat Processing (Boning Room) prior to the bankruptcy. The applicant had confirmed that he had not worked for any other employer in China, so the Tribunal accepts that he attained his skill set in China whilst working for KTMPC.

18. He was offered a position of Skilled Meat Worker by Southern Meats Pty Ltd on the 9 November 2020.

19. The Tribunal accepts the applicant’s submission that it takes years of experience for a person to attain the skills that the applicant possesses. He submitted that he was able to commence work in a busy production line in Australia for his employer Southern Meats Pty Ltd. The applicant is still employed by Southern Meats and the Tribunal accepts his evidence that he has been a competent and valued worker. The Tribunal accepts the evidence submitted by the applicant being references from his present employer setting out that he is a valued employee,

20. The Tribunal places a lot of weight on the supporting evidence provided by the applicant which included a clarification letter from Yan Hong, the General Manager who provided the initial reference attached to the Application for the Skill shortage Visa lodged by the applicant in support of the applicant’s case. She confirmed that if it had the official company seal and her signature then it is not a bogus document.

21. The reference signed by Yang Hong and containing the company seal was lodged while the applicant lodged his application.

22. Yan Hong also confirmed that KTMPC did not lease out its premises during its operation from the 30 September 2011 to 27 November 2020. The applicant was able to provide his dismissal notice dated the 25 November 2020 to the Department. It does appear to the Tribunal that there is conflicting evidence regarding the operation and the liquidation of the company. However, the Tribunal does not doubt the evidence of the applicant who says that he was employed by the company and was unaware of the ownership of the business.

23. Yan Hong confirmed in her Clarification letter that the Reference is not a bogus document. The Tribunal therefore finds that the document is not a bogus document and that the applicant did not provide false and misleading information to the Department.

    Conclusion on non-compliance

24. For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s 107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.

    CONCLUDING PARAGRAPHS

25. 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

26. 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.

27. 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.

    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.