http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2023/2694.html
最近一个AAT上诉成功的案例，充分说明如果在背景调查中被移民局误解，在AAT上诉后是有机会拿回签证的。
行政上诉法庭（AAT）在马先军先生及其他申请人（以下简称申请人）的案件中的决定主要涉及第一名申请人（马先军先生）是否符合186分类 – 雇主提名计划签证的资格，特别是他是否符合公共利益标准4020（PIC 4020）。PIC 4020是签证申请人必须满足的条件，禁止提供虚假文件或错误或误导性的信息。
以下是AAT决定背后的主要原因和事实：
- 背景：申请人于2021年3月28日申请了雇主提名（永久）签证，但被移民局于2021年11月25日拒绝。移民局拒绝是基于他相信马先军先生提供或导致提供了与签证申请有关的虚假文件或错误或误导性的信息，这将使他不符合PIC 4020的资格。
- PIC 4020要求：PIC 4020有几个要求，包括禁止提供虚假文件或错误或误导性的信息，以及在特定时期内没有因PIC 4020相关问题而被拒绝签证。
- 虚假文件的证据：代表的决定是基于证据，即马先军先生在其签证申请中提供的工作推荐信似乎是虚假或误导性的。部门进行了常规检查，并联系了工作推荐信中提到的公司。
- 公司回应：公司代表赵新华先生否认提供了工作推荐信，并表示马先军先生在公司的工作仅为短期（1年零几个月），而不是推荐信中所声称的。
- 移民局的决定：代表得出结论，马先军先生提供了关于其工作经历的虚假文件或错误信息，违反了PIC 4020(1)(b)。移民局还考虑了是否有令人信服或令人同情的理由来豁免这一要求，但得出了否定的结论。
- 申请人的回应：马先军先生提交了一封解释信和赵新华先生的声明，试图解决代表提出的问题。
- AAT的评估：AAT仔细审查了申请人的回应和赵新华先生的声明。它指出，这些回应可以被积极评价，与代表的负面评价相反。AAT考虑了包括马先军先生是前雇员在内的情况，以及部门进行的电话查询的性质。
- 决定：最终，AAT决定将签证申请退回以供重新考虑。AAT发现有充分的理由以积极的态度评价这些回应，并且有关所声称的工作经验的合法性的担忧需要进一步审查。
总之，AAT的决定是基于对马先军先生在签证申请中是否提供了虚假或误导性信息的评估，特别是关于他的工作经历。AAT发现有充分的理由认为所提供的信息应更积极地考虑，从而导致申请被退回以供进一步审查。
特别值得肯定是AAT member 以下的意见。
27. The Tribunal notes that it is not uncommon to obfuscate rather than reveal information that might be considered personal or sensitive, particularly in relation to the Chinese authorities if information has not been agreed as suitable for release to a third party. Culturally it is considered more polite than not complying. This may well have been the case in relation to the unverifiable telephone call under discussion. The Tribunal notes that there were several employees about whom enquiries were made at the time.
28. The Tribunal notes that as it was someone purporting to be an Australian official, who could not be verified, was calling unannounced, at a time when Australia and Chinese diplomatic relations were at a very low point, it is unsurprising that cooperation is likely to be scant. Unofficial enquiries not sanctioned by the relevant Chinese government authorities could reasonably be anticipated to be dealt with very cautiously and possibly somewhat dismissively.
- The Tribunal has reflected upon its own experiences in relation to ex-employees some substantial time after they ceased their working relationships. It has formed the view that it would be unable to provide information any more detailed or accurately than that provided by Mr Zhao Xinhua in his circumstances, if faced with similar circumstances. It is satisfied that the information provided by Mr Zhao Xinhua is relevant and as accurate as could reasonably be expected. In fact, highly detailed information could raise some potential questions of authenticity as a senior official is unlikely to know about the work history of a low-level employee working on the slaughter-house floor without reference to employment records.
- The Tribunal is fully cognisant of the recruitment and retention crisis facing this industry. The Tribunal having interrogated a widely known and utilised national/international recruitment website, accepts it is clearly demonstrated that in excess of 4,000 jobs in this field are currently under active recruitment nationally. It is not logical that in an industry where skilled labour has been in short supply for many years that substandard unskilled labour would be employed as this would not assist productivity. As previously stated, it takes many years to reach the top of the competency pyramid at the highest remuneration level in this role. This can not have been achieved if the visa applicant had such limited initial skill and experience prior to moving to Australia, as was assumed by the delegate.