Zhu (Migration)

[2024] AATA 350

Zhu (Migration) [2024] AATA 350 (22 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zujin Zhu

REPRESENTATIVE:  Ms Yanqiu Dong (MARN: 0742754)

CASE NUMBER:  2317941

HOME AFFAIRS REFERENCE(S):          BCC2021/1322481

MEMBER:Amanda Mendes Da Costa

DATE:22 February 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 22 February 2024 at 1.05pm

CATCHWORDS

MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 - Temporary Skill Shortage – incorrect information in the visa application – bogus document – reference from employer in China – skills assessment required three years’ experience – outsourced branch factories – lengthy employment in the role in Australia – receiving untaxed Chinese wages in cash – power to cancel the visa does not arise – decision under review set aside     

LEGISLATION

Migration Act 1958, ss 5(1), 97-105, 107-109
Migration Regulations 1994

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 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 he had failed to comply with sections 101(b) and103 of the Act because he had provided incorrect information and a bogus document to the Department in support of his visa application. 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. Via an internet-enabled audio-visual platform, the applicant appeared before the Tribunal on 22 January 2024 to give evidence and present arguments.

4. The Tribunal determined it was reasonable to hold the hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not conducted by video. The Tribunal was satisfied that the applicant, representative and the Tribunal could satisfactorily see, hear, and understand each other throughout the hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments to the Tribunal.

5. At the commencement of the Tribunal hearing, the Tribunal explained to the applicant the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision. The Tribunal also explained the role of the applicant’s representative during the hearing. The Tribunal informed the applicant that it would seek submissions from both him and his representative toward the end of the Tribunal hearing on any matter they considered relevant to the applicant’s review.

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

7. The applicant was represented in relation to the review, with his representative also participating in the hearing.

8. 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

9. 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.

10. 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.

11. 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?

12. 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 sections 101(b) and 103 of the Act regarding his employment history in China.

    Background

13. On 19 December 2020, the applicant lodged an application for a Temporary Skill Shortage (Labour Agreement Stream) (Subclass 482) visa.

14. In his visa application form the applicant declared that his current employment situation was as a skilled meat worker employed on a full-time basis by Fujian Rohesen Foods Group Co Ltd (FRFG) in China. The applicant further described his duties as meat processing and that he had been employed by FRFG since 6 July 2016.

15. As evidence of his employment with FRFG he provided a copy of a work reference from the company dated 26 October 2020 which was signed by Factory Director Qiusheng Liao.

16. Based on this information and other supporting documentation and meeting all other relevant criteria, the applicant was a granted the visa on 5 January 2021.

17. On 17 May 2021 Departmental officers in Shanghai, China, contacted the Human Resources (HR) department of FRFG and spoke to a Mrs Lin who advised that she was in a position to answer all enquiries regarding the company’s staff employment records.  Mrs Lin advised the officers that the company had no record of the applicant being employed by it.  Mrs Lin further advised that Qiusheng Liao did not hold the authority to, or legal position, to sign employment references for staff, nor did he hold the authority to use the company’s official stamp.

18. Based on the above information the delegate formed the opinion that the applicant had provided incorrect answers and a bogus document to the Department in support of his employment history claims.

19. On 6 June 2023 the Department sent the applicant a Notice of Intention to Consider Cancellation (NOICC) of the applicant’s visa, in which it noted that it appeared he had not complied with sections 101(b) and 103 of the Act because he had provided incorrect information about his employment history as a meat processing worker with FRFG and had provided a bogus document (being an employment reference by Mr Quisheng Liao) as defined by s 5(1)(b) of the Act because it appeared to be counterfeit or had been altered by a person who did not have authority to do so.

20. On 16 June 2023, the applicant responded to the NOICC in writing. He also provided the Department with the following documentation:

    ·Letter, Rodney Holmes, dated 8 June 2023.

    ·Statements, Quisheng Liao, dated 14 June 2023.

    ·Southern Meats Pty Ltd, Offer of Employment, dated 19 November 2020.

    ·Applicant’s statutory declaration dated 16 June 2023.

    ·Screenshot from the MySkills website.

    ·Undated documents titled Statistical Table of Resigned Employee of Year 2021.

    ·Newspaper articles written in Chinese and translated into English regarding the meat processing industry in China.

    ·Letter of support, Kenny Conroy, dated 9 June 2023.

    ·Letter of support, Kendall Davis Conroy, Justice of the Peace, dated 9 June 2023.

    ·Employer reference, Kenny Conroy, Southern Meats Pty Ltd, dated 9 June 2023.

21. In his response the applicant denied any non-compliance with either s 101(b) or s 103 of the Act. He submitted that:

    ·He was employed by FRFG as a Boner and Slaughterer from 6 July 2016 to 8 January 2021. The company was located at 688 Denggao East Road, Longyan City, Fujian, and the person in charge of personnel was the factory Director, Quisheng Liao.

    ·Before he lodged his visa application, he completed a skills assessment and was issued with a positive letter from MINTRAC, stating that he had the skill level equal to that of the Australian Certificate III meat processing (Boning Room). The MINTRAC assessor who undertook the assessment on behalf of Southern Meats Pty Ltd had videoed the skills assessment process as required by the Australian meat industry.

    ·He was subsequently offered the position of ‘Skilled Meat Worker’ by Southern Meats Pty Ltd on 19 November 2020.

    ·In order to pass the Australian MINTRAC skills assessment, a person would need at least two years formal years of experience in meat processing.  The fact that he had successfully completed his skills assessment demonstrated that he had at least three years experience as a skilled meat worker in China.

    ·It would have been fairer to him if the Department had made enquiries of his employer prior to the grant of his visa.

    ·During his employment with FRFG he never came into contact with Mrs Lin and therefore would not expect her to have the knowledge of employees across the various factories that were managed by the contractors.

    ·The information provided by Mrs Lin was not reliable because she was not aware of factory Director, Mr Quisheng Liao and would not have known about FRFG’s contracting relationships governing the outsourcing of branch factories.

22. In his statement (dated 14 June 2023) Mr Liao confirms the information provided by the applicant and stated:

    ·     During the period from 2011 to 2021 the company’s pig slaughtering and processing operations, such as pig processing, carcass boning and slicing, was outsourced to contractors.

    ·     The outsourcing/contracting of employees is handled by the management of each individual FRFG’s pig processing factories and by FRFG’s Administrative and HR department.  That is the reason for FRFG’s administrative and HR department’s employee systems do not contain the relevant information about its outsourced/contracted employees.

    ·     The applicant was an employee of a contracted team of one of FRFG’s factories from 6 July 2016 to 8 January 2021 where his main responsibilities were slaughtering and slicing.

23. The delegate was not satisfied with the applicant’s explanation and supporting documentation and found that he had provided incorrect information and a bus document to the Department as out lined in the NOICC.

    Applicant’s evidence at the hearing

24. The applicant told the Tribunal that he had been employed by FRFG as a meat processing worker from 6 July 2016 until 8 January 2021 in on of the company’s factories in Fujian, China. He explained that that this was a fill-time position and that during this employment (in January 2020) he successfully undertook as skills assessment through MINTRAC. This assessment was undertaken via video with the assessor being present in Australia.

25. The applicant further explained that at the time of assessment he was employed slaughtering ad boning pigs at FRFG’s Senbao factory, one of several owned and operated by the company in Fujian. The applicant said that although FRFG operated other factories in Fujian processing pork, he had only been employed by the applicant at the Senbao factory.

26. The applicant told the Tribunal that the factory in which he was employed was managed by Mr Quisheng Liao, who had provided the employment reference which he provided the Department in support of his visa application. He explained that he was not aware during his employment by FRFG of the existence and role of Mrs Lin in the company as all of his dealings had been with Mr Liao.

27. The Tribunal then suggested that if he was employed as claimed by FRFG his employment records would have been kept by the company on computer and been available to Mrs Lin.  In response the applicant explained that when he was initially employed by Mr Liao, he was not asked to sign an employment contract and was paid in cash, rather than his wages being deposited into a bank account.  He further explained that he did not receive any formal training as a meat processing worker but received on-the-job training in the factory which included a probation period in which he was required to demonstrate his skills and ability as an employee.

28. The Tribunal discussed with the applicant, his duties, and responsibilities as a meat processing worker with FRFG. The applicant explained that his duties were similar to those of his current position although in China the meat processed was pork and in Australia, lamb.  The applicant said that the skinning, cutting, slicing, and boning of carcasses in a meat processing factory involves the use of very sharp knives and implements and the ability to work quickly. He said that if he was not a skilled  and experienced worker, he would not have successfully completed the skills assessment and would have been the subject of serious injury.  He also noted that he had been employed by Southern meats Pty Ltd for the past three years with no complaint by his employer or injury on his behalf.

29. The applicant explained that since arriving in Australia he had been employed on  full-time basis by Southern Meats Pty Ltd and was currently working at its Goulburn factory which processes sheep. The applicant’s position is an ongoing one and if the applicant’s visa is not cancelled, he intends to continue in this employment.

30. The applicant denied that he had provided any incorrect information or a bogus document to the Department regarding his employment history in China. He said that he had genuinely been employed by FRFG as a meat processing worker from July 2016 until January 2021 and that Mr Liao (the Factory Manager where he was employed) had provided him with an employment reference dated 26 October 2020.

    Documentation provided to the Tribunal

31. The documentation provided by the applicant in support of the review includes the following:

    ·Newspaper article regarding taxation law in China, translated into English and dated 1 September 2018, in which the threshold for individual taxation in China is discussed.

    ·Journal article regarding the contract system in China.

    ·Supportive letter, Kendall Davis Conroy, dated 9 June 2023, in which the applicant is described as a person of good character who is trustworthy, honest, and reliable.

    ·Applicant’s statutory declaration dated 16 June 2023, containing information regarding his employment history which is consistent with that set out in his response to the NOICC and his oral evidence at the hearing.

    ·Screenshot of Average Course Duration of Certificate III in Meat Processing (Boning Room), which shows that the average course duration for this occupation is two years.

    ·Skills Assessment letter, Rodney Holmes, dated 8 June 2023in which Mr Holmes states that he has been a MINTRAC Overseas Registered Assessor since 21 May 2014; that he undertook a skills assessment of the applicant in January 2020; and issued him with a positive Skills Assessment Outcome letter dated 11 January 2020. Mr Holmes further confirms that the applicant has demonstrated the relevant underpinning skills and experience commensurate with an AQF certificate III in Meat Processing.

    ·Letter, Rodney Holmes, Southern Meats Pty Ltd, dated 11 January 2020, in which Mr Holmes states that the applicant has a skill level commensurate with an Australian Certificate III in Meat Processing (Boning Room).

    ·Southern Meats Pty Ltd, Offer of Employment, dated 19 November 2020, in which the company offers the applicant full-time employment as a Boner/Slaughterman.

    ·Statistical Table of Resigned Employees of 2021.

    ·Article regarding livestock and poultry slaughtering legislation in China, translated into English, and dated 4 July 2018 in which the author recommends the formulation of local regulations in China regarding the slaughter of livestock and poultry.

    ·Written submissions dated 15 November 2023.

    Findings regarding non-compliance

32. The Tribunal accepts that Mrs Lin has advised Departmental officers that FRFG had no record of the applicant being employed by it.  The Tribunal is concerned about this information which suggests that the applicant’s claims of previous employment by the company in China as a Meat Processor is incorrect and that the work reference by Mr Liao is  a bogus document.

33. However, the Tribunal notes that whilst Mrs Lim states that there is no record of the applicant’s employment and Mr Liao was not authorised to provide employee references,  there is no evidence before the Tribunal which indicates that Mr Liao has not been employed as a Factory Manager by FRFG and the information from Mrs Lim does not contain this assertion.

34. The Tribunal further notes that the applicant’s positive skills assessment (which was undertaken during the period of his claimed employment with FRFG) suggests that at that time he possessed skills commensurate with having successfully completed a Certificate III in Meat Processing (Boning). The Tribunal further accepts that the average length of this course is two years, which is further suggestive that the applicant had been employed as a Slaughterman/Boner for at least two years at the date of his skills assessment.

35. The Tribunal also considers that the applicant’s successful employment as a Slaughterman/Boner by Southern Meats Pty Ltd is indicative of previous experience in the role and the Tribunal accepts his claim that his current employer would not have continued to employ him if he lacked the requisite skills for the position. This is indicated by the letter of support for the applicant by Southern Meats Pty Ltd.

36. In their submissions, the applicant’s representative argued that the applicant’s evidence regarding the lack of any written employment with FRFG and the payments of his wages in cash was consistent with Mrs Lim’s assertion that the company had no record of his employment with it.  She further submitted that in China, income tax is not payable for lower paid employment such as meat processing workers, which is further consistent with the applicant receiving his wages in cash and with no deductions for taxation.

37. Whilst the Tribunal attaches some weight to the applicant’s evidence regarding FRFG’s employment practices during his period of employment by the company, it gives greater weight to the evidence regarding the applicant’s skills assessment and current employment with Southern Meats Pty Ltd.

38. Whilst the Tribunal has concerns about the information provided by Mrs Lim, it does not find it to be conclusive evidence that the applicant was not employed by FRFG. Having taken into account the other evidence supportive of the applicant’s claims the Tribunal is not satisfied on balance that the employment history provided by applicant regarding his employment by FRFG in China is incorrect or that the reference letter provided by Mr Liao is a bogus document within the meaning of s5(1)(b) of the Act.

39. Accordingly, the Tribunal does not find that the applicant has failed to comply with either s101(b) or s 103 of the Act.

40. 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

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

    Amanda Mendes Da Costa
    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.