Zhu (Migration)

[2023] AATA 3755

Zhu (Migration) [2023] AATA 3755 (9 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Sanmei Zhu
Mr Jinfu Huang
Mr Xingsheng Huang
Mr Xingxu Huang

REPRESENTATIVE:  Ms Yanqiu Dong (MARN: 0742754)

CASE NUMBER:  2312710

HOME AFFAIRS REFERENCE(S):          BCC2021/1322378

MEMBER:Noelle Hossen

DATE:9 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 09 November 2023 at 2:06pm

CATCHWORDS

MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 - Temporary Skill Shortage – incorrect information in the visa application – reference from employer in China – employing business liquidated – employment confirmed – power to cancel the visa does not arise – decision under review set aside         

LEGISLATION

Migration Act 1958, ss 5(1), 97-105, 107-109, 140
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 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 s 103 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 applicant appeared before the Tribunal on the 8 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 applicant 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 Act in the following respects:

11. The Delegate stated in his Decision that the applicant had not complied with s. 101 (b) of the Act because:

    “In her Temporary Skill Shortage visa application form lodged on 19 December 2020, the visa holder claimed to have worked in a position similar to the one for which she was nominated for the Visa, namely a skilled meet worker at Kaifeng Truein Meat Processing Co. Ltd, since 3 September 2015. I consider this answer to be incorrect because, Yan Hong, advised that she did not sign any work certificates after 2019 and that the company released its facilities to other entities in 2018. This is contrary to the work reference the Visa holder provided from the company, reported to have been signed by Yan Hong, dated the 16 November 2020. I consider if the Visa holder was genuinely employed by Kafeing Truein Meat Processing Co Ltd. as claimed, she would not have needed to provide a bogus employment reference from the company”.

12. The delegate considered that the Visa holder may not have complied with section 103 of the act because:

    “In support of her Temporary Skill Shortage visa application lodged on 19 December 2020, the Visa holder provided an employment reference from Kaifeng Truein Meat Processing Co. Ltd, dated 16 November 2020, which was purported to have been signed by Yan Hong. However, when the Department contacted Yan Hong, she advised that she did not sign any work references after 2019 and that the company leased its facilities to other entities in 2018. I therefore consider that the employment reference from Kaifeng Truein Meat Processing Co Ltd is a bogus document per the definition set out at s5 (1) (b) of the Act because the document is a counterfeit or altered by a person without authority to do so.

    Based upon the information before me, I consider that the Visa holder falsely declared she had been employed in a position like the one for which she was nominated for the temporary skill shortage visa, to facilitate a favourable migration outcome.”

13. The applicant maintained in her response to the Notice of intention to Cancel her visa that she did not provide any false or misleading information and that she did not provide a bogus document in support of her application for a temporary skill shortage of Visa.

14. In the delegate’s decision it is stated that the applicant submitted as follows:

    “The Visa holder was employed by Kaifeng Truein Meat Processing Co Ltd as a boner and slicer from 3 September 2015 until 25 November 2020, when the company dismissed all of its employees due to bankruptcy and liquidation. The person in charge of personnel at the company was the general manager Yan Hong.

    The Visa holder submits that if the department had undertaken integrity checks of her employment claims before her Visa was granted, rather than one and half years later after her employer had already gone bankrupt, then Kaifeng Truein Meat Processing Co. Ltd would have been able to provide verification of her employment claims.

    When the business was liquidated all company documents were sealed, and Yan Hong was dismissed. The Visa holder submits that Yan Hong left the company on negative terms and may have given adverse information to the interviewing officer when she was contacted on 14 May 2021. In response to the notice, the Visa holder has provided two signed letters from Yan Hong to provide clarification regarding the Visa holder’s employment and to address the issues of her initial response to the telephone interview on 14 May 2021.

    Yan Hong has stated that during the operation of Kaifeng Truein Meat Processing Co Ltd, she held the position of general manager, in charge of the overall operation and management of the company. Yan Hong stated that she signed all legal and business documents as the company’s representative, including employment certificates for the workers who went overseas for employment (which accelerated the company’s bankruptcy). However, as she did not manage personnel and workshops, she stated that she had no direct communication or contact with the workers and did not remember their names positions and specific employment periods,

    Yan Hong stated that after the company went bankrupt, she had no obligation to provide any information, and she had no backup files to provide accurate information regarding former employees. She also stated that she had no desire to answer any questions related to the company as the numerous legal proceedings and investigations during the liquidation had overwhelmed her. She stated that she just wanted to end the investigatory call she received as soon as possible and did not take the calls seriously, negating the documents she had signed as well as negating the fact that the company continue to operate before bankruptcy.

    Yan Hong stated that any documents as long as they are affixed with the official seal of Kaifeng Truein Meat Processing Co. Ltd and her own signature and that this has sufficient legal effect to prove the fact that the Visa holder worked for Kaifeng Truein Meat Processing Co.Ltd.”

15. The Tribunal has read all of the information that was filed and has taken the documents into consideration in particular the following documents:

    A statutory declaration from the applicant dated 13^th of June 2023

    Letter on Southern Meats Processing Co Ltd letterhead from Rodney Dennis Holmes Meat Industry training advisory Council MINTRAC assessor dated 11 January 2020.

    Statement of assessment signed by Rodney Dennis Holmes dated 11 January 2020

    Letter from Rodney Dennis Holmes confirming that he was appointed by Southern Meats and undertook an assessment of the applicant in January 2020 issuing her a positive skill assessment outcome letter on 11 January 2020, dated 8 January 2023

    Screenshot from the My Skills website site showing that the Certificates III in Meat Processing has an average course duration of 2 years.

    Offer of employment to the Visa holder from Southern Meats Processing Co Pty Ltd signed by the business and the Visa holder dated 19 November 2020.

    Dismissal by Kaifeng Truein Meat Processing Co Ltd. to all employees of the company signed by Yan Hong general manager dated 25 November 2020 (certified English translation from the Chinese language and the original in the Chinese language.)

    Signed statement titled” Clarification Declaration” from Yan Hong general manager dated 30 May 2023(certified English translation from the Chinese language and the original in the Chinese language)

    Signed statement titled” Protest Statement” from Yan Hong dated 9 June 2023 employment reference

    Employment reference from Southern Meats Co Pty Ltd signed by Kenny Conroy, Human Resources manager dated 9 June 2023

    letter of support re-notice of intention to consider cancellation from Southern Meats Processing Pty LT D signed by Kenny Conroy HR manager dated 9 June 2023

    Letter from Kenny Conroy in his capacity as a New South Wales Justice of the peace dated 9 June 2023.

16. At the hearing the applicant confirmed that she had engaged the services of a migration agent in China who was liaising with an agent in Australia. The applicant confirmed that she continued to work for the company right through to 25 November 2020.

17. She had signed the paperwork prior to 25 November 2020 to apply for her Visa in Australia.

18. She had not provided any misleading or false information to the Department.

19. She said that she applied for the Visa because at that time the effects of the pandemic meant that the business had reduced in capacity and it was difficult to work there. She had decided to migrate to Australia to provide her children with a better education.

20. The Tribunal places a lot of weight on the fact that the applicant had the necessary skills when she was assessed by Mr Holmes to be able to work in the capacity that she was employed in, by Southern Meats Processing Co Pty Ltd. This means that she had the experience. She confirmed at the hearing that she had not had any other employment in China and that her experience was from her work at Kaifeng Truein Meats Processing Co Ltd.

21. The applicant appeared before the Tribunal and the Tribunal accepts her oral and written evidence. She gave her evidence in an honest manner and the Tribunal finds that her evidence is correct and truthful.

22. The Tribunal is of the view that a lot of weight should be placed on the” Clarification Declaration” provided by the General Manager of the company and the Tribunal finds that the reference originally obtained by the applicant is not a bogus document.

    Conclusion on non-compliance

23. 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.

24. 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

25. 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.

26. 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.