DESIGN INFERNO GLASS AUSTRALIA PTY LTD (Migration)

[2017] AATA 165

DESIGN INFERNO GLASS AUSTRALIA PTY LTD (Migration) [2017] AATA 165 (1 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  DESIGN INFERNO GLASS AUSTRALIA PTY LTD

VISA APPLICANTS:  Mr Keith Cornell De Zilva
Ms Chishanthi Stephen

CASE NUMBER:  1516712

DIBP REFERENCE(S):  BCC2015/1917483

MEMBER:Antonio Dronjic

DATE:1 February 2017

PLACE OF DECISION:  Melbourne

DECISION:The tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

Statement made on 01 February 2017 at 2:36pm

CATCHWORDS

Migration – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – cl 457.224 – Public Interest Criteria (PIC) 4014 – Application within 3 years after departure – Compelling circumstances – Nominated position critical for the operation of business – Inability to fill the position vacancy – Business operating since departure – Salary does not reflect specialist skills

LEGISLATION

Migration Act 1958, ss 48, 65, 359
Migration Regulation 1994, Schedule 2 cl 457.224

CASES

Thongpraphai v Minister for Immigration & Multicultural Affairs, [2000] FCA 1590

Bui v Minister for Immigration & Multicultural Affairs, [1999] FCA 118

Paduano v Minister for Immigration & Multicultural & Indigenous Affairs & Migration Review Tribunal, [2005] FCA 211

Re Drake (No. 2) (1978-1980) 2 ALD 634

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 Immigration on 14 October 2015 to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 3 July 2015. At the time the application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visas on the basis that the first named visa applicant (the applicant) did not meet Public Interest Criteria (PIC) 4014 for the purposes of meeting the cl.457.224.

4. PIC 4014 requires that, if a visa applicant is affected by a risk factor, then his or her visa application must be made more than 3 years after his or her departure from Australia, unless the Minister was satisfied that, in the particular case, there are compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen or permanent resident or an eligible New Zealand citizen that justify the grant of the visa within 3 years of the visa applicant’s departure. 

5. The delegate found that the applicant was affected by a risk factor and that exceptions set out in PIC4014 (5) do not apply. In addition, the delegate found that the applicant did not establish that there were compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen or permanent resident or eligible New Zealand citizen, that justified granting the visa to the visa applicant within the 3 year period.

6. The tribunal received a review application from Design Inferno Glass Australia Pty Ltd, the visa applicant’s sponsoring employer, on 4 December 2015. The application was accompanied by a copy of the delegate’s decision.

7. On 29 March 2016, the applicant’s representative submitted the following documents to the tribunal:

   ·Submissions stating that the sponsoring business will be adversely affected if the visa applicant is unable to work for the business, that the visa applicant is a highly qualified glazier capable of undertaking structural work; that the inability to employ the visa applicant will have impact on the business growth and its ability to employ Australian citizens; that an occupation of a glazier is on the Skilled Occupation List and that the business had to put its expansion plans on hold. The representative conceded that the visa applicant is affected by the ‘risk factor’ and that circumstances specified in PIC 4014 (5) do not apply to the visa applicant;

   ·Copy letter from Mr Mendis, the Managing Director and the proprietor of the sponsoring business, dated 15 March 2016, stating that the business invested substantial funds in opening a new factory and machinery; that the business requires a high level of glazing expertise and that there is an extreme shortage of skilled and qualified glaziers in Australia. He wrote that the position of a glazier is critical for the operation of his business;

   ·Copy letter dated 24 July 2015 previously submitted to the department stating that the visa applicant was unable to apply for subclass 457 visa on shore because of the operation of s.48 of the Migration Act and therefore for the reasons beyond the applicant’s control;

   ·Copy letter from Mr Mendis, dated 6 July 2015 stating that the visa applicant worked at the sponsoring business from August 2012 to August 2013 as a glazier;

   ·Copy letter from Mr Mendis, dated 28 January 2015 stating that the business needs to sponsor glaziers from overseas to meet the requirements for skilled staff and confirming that the visa applicant is offered a full time position at the business;

   ·Copy Statement of Academic Completion as evidence that the visa applicant completed a Certificate III in Glass and Glazing on 31 January 2015;

   ·Copy Diploma of Engineering Technology issued to the visa applicant by the Holmesglen Institute on 11 July 2011; and

   ·Several training certificates issued to the visa applicant in Sri Lanka.

8. On 24 October 2016, the tribunal wrote to the applicant pursuant to s.359(2) of the Act inviting the applicant to provide information in writing as to whether the first named visa applicant satisfies Public Interest Criterion (PIC) 4014 for the purposes of cl.457.224.

9. On 18 November 2016, after the applicant was granted an extension of time to provide the requested information, the applicant submitted that the business nomination was approved by the department on 15 March 2015; that the nominee has skills required for an occupation of a glazier; that the business employs 15 full time employees and that the failure to recruit the visa applicant ‘is not going to close down the business but will add stress component in implementing growth plan’; that the business still did not fill the vacancy because it cannot find the skilled staff in the local market and that the business is committed to keep manufacturing jobs in Victoria. Mr Mendis submitted a letter dated 18 November 2016 in which he wrote that, despite the efforts to recruit the suitable candidate for a position of a glazier, the business is still unable to fill the vacancy and this is an indication that there is a ‘skilled shortage in this sector’.

10. Mr Mendis appeared on behalf of the sponsoring business before the tribunal on 25 January 2017 to give evidence and present arguments. The applicant was represented in relation to the review. The representative attended the tribunal hearing.

11. In his evidence, Mr Mendis stated that he is the Managing Director and the sole shareholder of the sponsoring business. He confirmed his authority to represent the business in these proceedings. He acquired the existing Australian business some eight years ago. In 2012 the business purchased a block of land where the new factory was built. The business turnover in 2015 financial year was approximately $1.6 million and in 2016 $1.4 million. Mr Mendis stated that he operates a successful business which employs 12 full time employees and three subcontractors. It currently employs one full time glazier who is paid $55,000 per annum.

12. Mr Mendis first met the nominee (Mr De Zilva) in 2012. The nominee was recommended by Mr Mendis’s friend. After conducting two interviews, Mr Mendis decided to employ Mr De Zilva. The nominee worked at the business as a part time glazier from August 2012 to August 2013. At the time he was offered employment, Mr De Zilva neither had formal qualifications nor the work experience relevant to the occupation of a glazier. According to Mr Mendis’ recollection, the nominee had some work experience in a fast food industry.

13. Mr Mendis stated that, in 2011 and 2012, the business advertised (on line) for a position of a glazier and that nobody responded. He explained that in 2012, the business employed a full time glazier who was an Australian citizen, qualified tradesperson with relevant work experience. He was paid $32.00 per hour. At the same time, Mr De Zilva, who worked as a part time glazier, was paid $24.00 per hour.

14. After the nominee ceased his employment in August 2013, the business employed another full time glazier. This person worked at the business until September 2015 when Mr Mendis decided to let him go as he was not satisfied with his performance.  

15. Mr Mendis claims that the business advertised in late 2015 for the position of a glazier by placing an on-line add. Only one person responded. He was qualified glazier with relevant work experience. Upon contacting his former employer, Mr Mendis decided not to employ this person.

16. Mr Mendis claims that the business advertised again in August 2016. Only one person responded. He was qualified glazier with relevant work experience. He was not offered a position as he lived too far away from the factory. I noted that no documentary evidence in support of claims that the business advertised for the position of a glazier was submitted to the tribunal.

17. Mr Mendis concede in his evidence that the business did not advertise for this position since August 2016 and made no further efforts to recruit an alternative person for the nominated position since that time. Except for Mr De Zilva, the business did not try to recruit a qualified glazier from overseas. The proposed annual wages for the nominated position is $56,000.

18. Mr Mendis recently travelled to Sri Lanka and met Mr De Zilva who is currently working as a sound technician. Mr Mendis stated that in 2012, the business purchased ‘CNC machine’ for $96,000 and that the nominee was trained to operate it. He stated that the glazier, who is currently employed by the business, also received training to operate this machine but is still not confident.

19. I inquired and Mr Mendis stated that the business will not have to close if it is unable to employ the nominee. He believes that that the business will do better with the nominee, who is reliable and honest person. The employment of Mr De Zilva will result in securing more work for the business and consequentially employment of additional employees which would be of benefit to Australia.

20. For the following reasons, the tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. The issue in the present case is whether the visa applicant meets the requirements of cl.457.224, which in turn requires the tribunal to consider whether the visa applicant meets PIC 4014.

22. Broadly speaking, PIC 4014 defines particular circumstances where an applicant is affected by a relevant ‘risk factor’. The defined ‘risk factors’ in PIC 4014 include circumstances where an applicant has previously departed Australia as the holder of a Bridging C, Bridging D or Bridging E visa, except where limited specified circumstances are met: PIC 4014(4) and (5). 

23. Where the applicant is affected by a ‘risk factor’ as defined in PIC 4014(4), he or she is required to satisfy one of two alternate criteria set out in PIC 4014(1) to meet PIC 4014 as a whole. PIC 4014(1)(a) requires that the application has been made more than 3 years after the date of the relevant departure from Australia. Alternatively, PIC 4014(1)(b) requires that the decision maker is satisfied that, in the particular case, there are compelling circumstances that affect the interests of Australia; or compassionate or compelling circumstances that affect the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen, justify granting the visa within 3 years after the departure.

    Is the visa applicant affected by a risk factor in PIC 4014?

24. Based on the information before the tribunal, including these contained in the delegate’s decision record submitted by the review applicant with the review application, the visa applicant last departed Australia on 9 June 2015 as the holder of a bridging visa E granted on 29 April 2015. That bridging visa E had been granted to the applicant while he held another bridging E visa, granted on 4 March 2015, which was not within 28 days of the applicant’s last substantive visa ceasing to be in effect. The tribunal finds that the last substantive visa held by the applicant was a subclass 573 visa which ceased on 4 November 2013.

25. Based on the information before it, the tribunal finds that the visa applicant last departed Australia as the holder of a bridging visa E. The bridging visa E he held at the time of departure was not granted within 28 days of a substantive visa ceasing. The bridging visa E he held at the time of departure was not granted while he held another bridging visa which was granted while he held a substantive visa, or within 28 days after a substantive visa held by the applicant ceased to be in effect. The tribunal accordingly finds that none of the exceptions in PIC 4014(5) apply to the visa applicant.

26. Given the above, the tribunal finds the visa applicant is affected by the risk factor in PIC 4014(4).

    Was the visa application made more than 3 years after the applicant’s departure from Australia: PIC 4014(1)(a) ?

27. The tribunal finds that the visa applicant last departed Australia on 9 June 2015 and he applied for the visa which is the subject of this review on 3 July 2015, less than 3 years after his departure.

28. As the visa application was made less than 3 years before the visa applicant’s departure from Australia, the tribunal therefore finds that the visa applicant does not meet PIC 4014(1)(a).

    Are the waiver provisions in PIC 4014(1)(b) met?  

29. PIC 4014(1)(b) provides as follows:

    4014

    (1)  If the applicant is affected by the risk factor specified in subclause (4):

    (a)  the application is made more than 3 years after the departure of the person from  Australia referred to in that subclause; or

    (b)  the Minister is satisfied that, in the particular case:

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

    (ii)  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 within 3 years after the departure.

30. The term 'compelling' is not defined in the legislation. The ordinary dictionary definitions of these words state that ‘compelling’ means ‘to force or drive, especially to a course of action’ or to ‘bring about moral necessity’. ‘Compassionate’ has been defined as ‘circumstances that invoke sympathy or pity’.

31. In relation to the words ‘compelling or compassionate’, in Thongpraphai v Minister for Immigration & Multicultural Affairs[1], O’Loughlin J considered that

    There is little doubt that both words call for the occurrence of an event or events that are far-reaching and most heavily persuasive. Incidental matters are not to be taken into account except where it is appropriate to have regard to their totality.

    [1] [2000] FCA 1590 at [21]

32. As regards the waiver of the health provisions, in Bui v Minister for Immigration & Multicultural Affairs[2], the Full Federal Court considered that ‘compelling’ had a wider ambit than ‘compassionate’[3].

    [2] [1999] FCA 118

    [3]     At [47 – 48]

33. In the case of Paduano v Minister for Immigration & Multicultural & Indigenous Affairs & Migration Review tribunal[4], which involved the issue of compelling reasons for an applicant’s absence from Australia in relation to a resident return visa, the Federal Court held that the ordinary meaning of ‘compelling’ is ‘forceful’ and that forceful reasons for an absence may involve physical, legal or moral necessity, or may, by reason of their forcefulness, be convincing.

    [4] [2005] FCA 211

34. I had regard to the policy statements set out in the Procedures Advice Manual (PAM 3) regarding when the waiver in PIC 4014(1)(b) may be applied and the various examples given as to what may constitute compelling circumstances that affect the interests of Australia, or constitute compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen, that justify the granting of the visa. However, I observe that whilst I may be guided by policy I am not bound to follow it.[5] The Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations.

    [5]     See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634

35. I considered the documentary evidence and written submission provided to the tribunal as well as the oral evidence of Mr Mendis given during the hearing.

36. It was submitted that the sponsoring business needs the visa applicant in Australia; however, there is no current evidence before me that suggests the business has been unable to continue to operate since the visa applicant’s ceased his part time employment in August 2013.

37. It is submitted that it is compelling that Australia would miss out on a significant benefit as the applicant could contribute to the Australia’s business and economic development if the visa is granted. While I accept the applicant may make some contribution to an Australian business, I am not satisfied on the evidence before me that Australia would enjoy a significant benefit as a consequence of his contribution.

38. Mr Mendis claims in his evidence that that the business had to put its expansion plans on hold because of its inability to employ the visa applicant. There is little if any evidence to support this claim. On the contrary, the evidence before me revealed that in 2012 the business acquired a block of land where the new factory was built. The business currently employs 15 employees and has a substantial turnover. The business expanded its operation since 2013 when the nominee ceased his employment at Design Inferno Glass Australia Pty Ltd.

39. Mr Mendis claims that the inability to employ the visa applicant will have impact on the business growth and its ability to employ Australian citizens. He stated in his evidence that the business will not have to close if it is unable to employ the nominee and his belief that that the business will do better with the nominee. It was further submitted that the nominee has a unique set of skills that are not readily available in Australia and that the sponsoring business will be adversely affected if unable to employ him.

40. Mr Mendis gave evidence that the proposed annual wages for the nominated position is $56,000. I note that the proposed salary does not reflect the remuneration for someone with specialist or exceptional skills.

41. The nominee was employed at the sponsoring business as a part time glazier (from August 2012 until August 2013) despite not having relevant educational qualifications or work experience for this position. He was not paid the same hourly rate as qualified glazier who was employed by the business during the same period. According to the evidence provided to the tribunal by the review applicant, the nominee completed a Certificate III in Glass and Glazing on 31 January 2015, well after he ceased his employment at the sponsoring business. He is currently working as a sound technician in Sri Lanka. In addition, the business currently employs a qualified glazier and had qualified glaziers employed since 2012.

1. Whilst I accept that the first named visa applicant may have the necessary skills required by his employer and that his employer would be inconvenienced to a certain extent if he had to find another person or persons capable of performing the same job, I note that the cost to the business of recruiting, training and replacing a staff member was an ordinary aspect of the operation of almost all business which occurred on an ongoing basis.

2. It was submitted and I accept that an occupation of a glazier is on the Skilled Occupation List. If it was not, the sponsoring company would not be able to nominate this position.

3. On the evidence before it, I am not satisfied that the business is so reliant on the applicant that, if he is not granted the visa, the business will be seriously affected to the extent that the circumstances are compelling, as it lacks the skilled staff to carry out the business.

4. Mr Mendis claims in his submissions that the business still did not fill the vacancy because it cannot find the skilled staff in the local market. He claims that the business advertised for this position on four occasions (2011, 2012; 2015 and August 2016). He conceded that the business did not advertise for this position since August 2016 and made no further efforts to recruit an alternative person for the nominated position either in Australia or overseas. Even if I accept that the business placed four on-line ads during the period of six years, I am not satisfied that its efforts in recruiting a suitable person for the nominated position was sufficient. Mr Mendis conceded in his evidence that the business did not advertise for this position since August 2016 and made no further efforts to recruit an alternative person for the nominated position since that time. Similarly, he stated in his evidence that the business did not try to try to recruit alternative qualified glazier from overseas.

5. While I accept that business may face some challenges in employing skilled glaziers I am not satisfied, on the evidence presented by the applicant, that an employee with the same or similar set of skills could not be recruited either in Australia or overseas.

6. Mr Mendis stated that in 2012, the business purchased ‘CNC machine’ for $96,000 and that the nominee was trained to operate it. He stated that the glazier, who is currently employed by the business, also received training to operate this machine but is still not confident. Perhaps provision of additional trading to the existing employee may be able to alleviate this problem.

7. Having considered all the relevant circumstances both individually and cumulatively, the tribunal is not satisfied that there are compelling circumstances that affect the interests of Australia that justify the granting of the visa within 3 years after the departure of the applicant. The tribunal is also not satisfied that there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justify the granting of the visa to the applicant within 3 years after the applicant’s departure. Therefore, the tribunal finds the applicant does not meet PIC 4014(1)(b) and does not satisfy PIC 4014. Accordingly, cl.457.224 is not met.

8. It follows that as the applicant does not satisfy the applicable criteria for the grant of a Subclass 457 visa, the decision under review must be affirmed.

9. As the first named visa applicant does not satisfy the primary criteria for the grant of a Subclass 457 visa, the second named visa applicant do not satisfy the secondary criteria for the grant of the visa, in particular cl.457.321 which requires that an applicant must be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 457 visa.

   DECISION

10. The tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

    Antonio Dronjic
    Member