GO IMPORTS & EXPORTS PTY LTD (Migration)

GO IMPORTS & EXPORTS PTY LTD (Migration) [2019] AATA 2461 (23 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  GO IMPORTS & EXPORTS PTY LTD
VISA APPLICANTS:  Mr BIN ZHANG
Mrs LILI WEN
Miss YIDUO ZHANG
CASE NUMBER:  1703207
DIBP REFERENCE(S):  BCC2016/3097839
MEMBER:Bridget Cullen
DATE:23 April 2019
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.
Statement made on 23 April 2019 at 6:33pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsor stream – skills, qualifications and employment background – nominated occupation Wall and Floor Tiler (ANZSCO – 333411) – evidence is not capable of establishing applicant has relevant experience – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2, cl 457.223

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision of a delegate of the Minister for Immigration to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).
The visa applicants applied for the visa on 18 September 2016.
At the time the visa 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). One of the criteria to be satisfied at the time of decision is cl.457.223 which requires the visa applicant to satisfy one of the alternative ‘streams’ for the visa. One of these streams is contained in cl.457.223(4) which is set out in the attachment to this decision. In the present case, specific claims have been made against cl.457.223(4) which applies to sponsorship for employment in an occupation by a standard business sponsor. No claims have been made in respect of the other alternative streams in cl.457.223.
The delegate refused to grant the visas on 20 February 2017 on the basis that cl.457.223(4)(da) was not met because the delegate was not satisfied that the primary visa applicant demonstrated the skills, qualifications and employment background necessary to successfully perform the tasks of the nominated position.
The review applicant appeared before the Tribunal on 1 April 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Bin Zhang, the visa applicant, by telephone and Mr Nick Zhang, the applicant’s prospective employer. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The review applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(da)
Skills, qualification and employment background of the applicant
Clause 457.223(4)(da) requires the applicant to have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation. In addition, under cl.457.223(4)(e), if required by the Minister, the applicant must demonstrate that he or she has the skills that are necessary to perform the occupation in the manner specified by the Minister. In this case, the nominated occupation is Wall and Floor Tiler (ANZSCO – 333411).
The Australian and New Zealand Standard Classification of Occupations (ANZSCO) indicates that wall and floor tilers lay various tiles on external or internal walls to provide protective and decorative finishes. The indicated skill level for this occupation is skill level three, which can be satisfied with one of the following:
-Australian Qualifications Framework (AQF) Certificate III; paired with at least two years of on-the-job training;
-AQF Certificate IV; or
-Three years of relevant experience may substitute the above formal qualifications.
No evidence was provided was provided to satisfy the formal qualification requirements. On 4 December 2016, the applicant’s registered migration agent confirmed as such in correspondence to the Department, and wrote that applicant had over five years of relevant work experience; satisfying the criterion.
The applicant supplied his résumé in support of the application, stating that he had worked for Beijing Xingdawei Materials Co., Ltd from 2011, and attached an employment reference letter.
The delegate, in assessing the application, referred the reference to the Australian Consulate-General in Guangzhou for authentication. An officer of the Australian Consulate-General contacted the visa applicant, as well as the company the applicant purported to work for, Beijing Xingdawei Materials Co., Ltd for interviews.
The applicant was contacted first and was asked about his educational background, employment history, colleagues and job duties.
Beijing Xingdawei Materials Co., Ltd’s legal representative was then contacted by the officer of the Australian Consulate-General in Beijing. The legal representative advised that the company employed approximately ten tilers, and that it had a manufacturing factory in Foshan. The legal representative further advised that the business received orders from domestic cities such as Xian, Shenyang and Zhengzhou as examples. Further, the legal representative said that they knew the visa applicant, stating that he had been assigned and was actively travelling to other cities as part of his role.
The applicant was further contacted to cross reference responses in relation to information provided by the legal representation of the nominating company. The visa applicant stated that he was the only tiler in the business; that he did not travel as part of his role; that there were no manufacturing factories; and that orders were only received from Beijing.
As a result of the interviews, and cross referencing of the information obtained as a result of the interviews, the delegate had serious concerns in relation to the referee’s employment claims, leading the delegate to form the view that the applicant did not have the requisite skills or experience commensurate with skill level three. The applicant was invited by the delegate to respond to these concerns. The applicant’s response, provided via his registered migration agent, did not alleviate the concerns of the delegate, who then refused the visa application.
The review applicant was invited to hearing on 7 March 2019. The Tribunal received submissions from the applicant, through his registered migration agent, on 31 March 2019. These included the following:
-Submissions made by the agent, dated 31 March 2019;
-Genuine Position Statement from the nominating company, undated ;
-Further explanatory Statement from the nominating company, undated;
-The visa applicant’s resume, with photos of the applicant working, attached;
-Employment reference letter from Beijing Xingdawei Materials Co., Ltd;
-Translated contracts of the applicant with Beijing Xingdawei Materials Co., Ltd; and
-Previous documentation provided to the Department.
The applicant, and his representative, confirmed that there is no new information from Beijing Xingdawei Materials Co, before the Tribunal. The Employment Reference Letter purports that the applicant has been employed by Beijing Xingdawei Materials Co since 10 February 2011 as a floor tiler.
There is a “Statement” dated 20 January 2017 from a Huang Meirong, who purports to be the legal representative of Beijing Xingdawei Materials Co. In this letter, which was also before the Department, the legal representative claims that that the applicant’s “answers to some part of information were not correct” as Huang Meirong “have been on business trips all over Shina for long time, so Lin Yinghan has been responsible for many issues in the company, including: personnel management and assignment.”
A further “Certificate” (also before the Department) from Lin Yinghan, who purports to be the Manager of Beijing Xingdawei Materials Co, claims that the applicant is the “only one on-the-job tiler hired for long term in our company.”
Neither Huang Meirong, or Lin Yinghan, appeared before the Tribunal to give evidence. As such, the Tribunal did not have the opportunity to ask questions of them.
The applicant, in his evidence given to the Tribunal by telephone from the side of a busy road in China, claims that the discrepancies identified by the Department in its investigation can be explained. The applicant’s evidence is consistent with what has been said by Huang Meirong and Lin Yinghan in their untested “Statement” and “Certificate”.
The applicant says that he is the only “long term” tiler employed by Beijing Xingdawei Materials Co. Therefore, he says that the legal representative, when asked by the Department about the number of tilers employed by the company, included the tilers who were employed on a subcontracting basis. The Tribunal does not accept this explanation, which is not supported by any objective documentation. If it was the case that the applicant was the only “long term” employee engaged by the company, the Tribunal considers that the legal representative would have responded that the company employed one tiler, rather than ten. The Tribunal considers that a legal representative would have understood the difference between outsourced labour, and permanent staff, in responding to the Department’s queries about the number of tilers employed. The Tribunal concludes that the more reliable responses are those that were obtained by the Department through the officer of the Australian Consulate-General.
The applicant says that the legal representative was mistaken in telling the Department that Beijing Xingdawei Materials Co has a factory in Foshan. The applicant says (supported by a letter from Beijing Xingdawei Materials Co to the Australian Immigration Office, that there is “cooperation” with the factory in Foshan to produce tiles designed by the company. The applicant, at hearing, said that he was just a worker and shouldn’t be expected to know these details. There is, in the Tribunal’s view, some difficulty with the applicant’s proposition that a lawyer, presumably aware of the distinction between ownership and “cooperation” would indicate that the company owned a factory when the reality was that the company only designed tiles manufactured by the “cooperating” company. It is also difficult to accept that the applicant, supposedly employed by Beijing Xingdawei Materials Co since 2011, would not be aware, just by virtue of hearing day to day workplace discussion, that the company had a factory, or had a relationship with a factory that manufactured the tiles it designed.
There is not, in the Tribunal’s view, a sensible explanation of the discrepancies in relation to the existence of a factory. Nor is there any rational explanation offered by the applicant explaining the difference in his response to the officer of the Australian Consulate-General that he does not travel, and that provided by the legal representative that he does travel. The applicant says that “because Huang Meirong doesn’t know about personnel arrangement, she answered by mistake that Zhang Bin went outside Beijing for construction.” The applicant now asserts that Huang Meirong really meant that, if required, the applicant would offer remote assistance about construction issues through the telephone. There is no objective evidence offered in support of the applicant’s change of position. The Tribunal considers that the shift in position cannot reasonably be explained though a mistake in understanding, and is inconsistent with the nature of tiling work. If issues did arise in construction, the Tribunal considers it more likely that they require someone to be available to physically inspect the construction works, not merely offer telephone advice.
As a consequence of these concerns, the Tribunal prefers the evidence obtained by the Department at a point in time before the applicant and the legal representative had an opportunity to compare notes and discuss the questions asked of each of them by the officer of the Australian Consulate General.
The owner of the business seeking to sponsor the applicant, Mr Nick Zhang, said that he has travelled to China and observed that the applicant is a very good tiler. This evidence, along with the photos of the applicant tiling, indicate that the applicant has done some tiling work. This evidence is not capable of establishing that the applicant has three years of relevant experience as a tiler.
The Tribunal is not satisfied that the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation, Wall and Floor Tiler (ANZSCO 333411).
For these reasons the applicant does not satisfy the requirements of cl.457.223(4)(da).
For the reasons above, the Tribunal finds that the requirements for the standard business sponsor stream have not been met. No claims have been made in respect of the other streams in cl.457.223 and there is no evidence that the visa applicant would be able to satisfy the specific criteria for those streams.
As none of the secondary visa applicants who made a combined application with the primary visa applicant made any claims to satisfy the primary criteria, and the primary visa applicant has been found to not satisfy the requirements, the decisions of the secondary visa applicants must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.
Bridget Cullen
Member

ATTACHMENT - CLAUSE 457.223 (EXTRACT)
457.223
…
Standard business sponsorship
…
(4)The applicant meets the requirements of this subclause if:
(a)each of the following applies:
(i)    a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;
(ii)     the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;
(iii)    the approval of the nomination has not ceased as provided for in regulation 2.75; and
(aa)the nominated occupation is specified in an instrument in writing for paragraph 2.72 (10) (a) or (aa) that is in effect; and
(ba)either:
(i)    the nominated occupation is specified by the Minister in an instrument in writing for this subparagraph; or
(ii)     each of the following applies:
(A)the applicant is employed to work in the nominated occupation;
(B)if the person who made the approved nomination met paragraph 2.59(d) or (e), or paragraph 2.68(e) or (f), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business or in a business of an associated entity of the person;
(C)if the person who made the approved nomination met paragraph 2.59(h), or paragraph 2.68(i), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business; and
(d)the Minister is satisfied that:
(i)    the applicant’s intention to perform the occupation is genuine; and
(ii)     the position associated with the nominated occupation is genuine; and
(da)the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; and
(e)if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation — the applicant demonstrates that he or she has those skills in the manner specified by the Minister; and
(eb)if:
(i)    the applicant is not an exempt applicant; and
(ii)     subclause (6) does not apply to the applicant;
the applicant:
(iv)   has undertaken a language test specified by the Minister in a legislative instrument for this subparagraph; and
(v)    achieved within the period specified by the Minister in the instrument, in a single attempt at the test, the score specified by the Minister in the instrument; and
(ec)if the Minister requires the applicant to demonstrate his or her English language proficiency — the applicant demonstrates his or her English language proficiency in the manner specified by the Minister; and
(f)either:
(i)    there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person; or
(ii)     it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person.
…
(6)This subclause applies to an applicant if:
(a)the base rate of pay for the applicant, under the terms and conditions of employment about which the Minister was last satisfied for paragraph 2.72(10)(c), is at least the level of salary worked out in the way specified by the Minister in an instrument in writing for this paragraph; and
(b)the Minister considers that granting a Subclass 457 visa to the applicant would be in the interests of Australia.
…
(11)In subclause (4):
exempt applicant means an applicant who is in a class of applicants specified by the Minister in an instrument in writing for this subclause.

[2019] AATA 2461

23 April 2019

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Statutory Construction

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