Heo (Migration)

Heo (Migration) [2018] AATA 3595 (9 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr In Heo
Ms Yun Sil Jun
Miss Somang Heo
Miss Sarang Heo
CASE NUMBER:  1603218
DIBP REFERENCE(S):  BCC2015/2276214
MEMBER:Antonio Dronjic
DATE:9 August 2018
PLACE OF DECISION:  Melbourne
DECISION:The tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.
Statement made on 09 August 2018 at 11:19am

CATCHWORDS
Migration – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled) visa – Standard business sponsor stream – Failure to inform the Department of cessation with previous sponsor – Change of sponsoring business – Pending nomination – Did not commence employment with new sponsor despite having ‘no work’ conditions on bridging visa – Last worked for an Australian business in 2015 – Relevant skills and work experience – Wall and floor tiler – Limited evidence to support claims of work experience with previous employers – Overseas qualification not relevant to the role – Credibility issues – Conflicting evidence – Failure to lodge tax returns – Secondary applicants – Unable to satisfy criteria – Decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359
Migration Regulations 1994 (Cth), Schedule 2 cls 457.223, 457.321
CASES
Joshi v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1116
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 7 August 2015.
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 24 February 2016 on the basis that cl.457.223 (4)(da) was not met because the delegate was not satisfied that the first named applicant (the applicant) had the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of a wall and floor tiler (ANZSCO 333411).
The applicants applied to the tribunal on 10 March 2016 for review of the delegate’s decision. With the review application, the applicants provided a copy of the primary decision record.
On 9 April 2018, the tribunal wrote to the applicants pursuant to s.359(2) of the Act inviting the applicants to provide information in writing that demonstrates that the first named applicant meets the requirements of cl.457.223(4) (a) and cl.457.223 (4) (da) to the Regulations.
On 11 April 2018, the applicants’ representative submitted:
·Submissions stating that the first named applicant has been nominated for the position by a different sponsoring business, J Clover Tiling Pty Ltd; that the nomination application was lodged with the Department of Immigration on 13 June 2017 and that the sponsoring business is still awaiting decision from the Department;
·A copy of a letter from David Cho, the Director of J Clover Tiling Pty Ltd dated 11 April 2018, stating that the first named applicant has excellent wall and floor tiling and supervisory skills and that his role in the company will be very important;
·A copy of a Department Sponsorship approval letter and Notice of Sponsorship approval decision dated 21 August 2015, as evidence that J Clover Tiling Pty Ltd was approved as a sponsor until 21 August 2020;
·A copy of a tax invoice issued by the Department on 13 June 2017, as evidence that the sponsoring business lodged an associated nomination application;
·A copy of the nomination application form;
·A copy of the Department’s acknowledgment letter dated 13 June 2017, as evidence that the first named applicant’s prospective employer lodged a new business nomination application with the Department.
On 23 April 2018, the applicants’ representative submitted:
·Submissions dated 23 April 2018, stating that the applicant has a pending nomination with the Department and that the tribunal must wait for the outcome of this application. The representative enclosed a copy of the decision in Minister for Immigration & Citizenship v Lee [2013] HCA (Lee’s case); and
·A copy of a letter from Mr David Cho, the Director of J Clover Tiling Pty Ltd dated 23 April 2018 stating that the sponsoring business is in desperate need of the nominee’s services.
On 27 April 2018, the tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone. The tribunal invited the applicant to give oral evidence and present arguments at a hearing scheduled for 7 June 2018.
On 6 June 2018, the applicant’s representative wrote to the tribunal submitting that on 15 April 2005 (mistakenly, the representative wrote incorrect date 15 April 2015), the applicant applied for a Subclass 457 visa based on the sponsorship and nomination lodged by Ezion Geber Pty Ltd. This application was refused by the Department on 15 November 2005 (mistakenly, the representative wrote incorrect date 15 November 2015). The applicant sought the review of this decision and on 29 November 2005 (mistakenly, the representative wrote incorrect date 8 November 2006) the tribunal remitted the decision back to the Department. Subsequently, the applicant was granted a Subclass 457 visa on 3 August 2007 which was to remain valid until 3 February 2011. The representative submitted:
·A copy of the tribunal decision (matter no W0506216);
·A copy of the applicant’s movement records;
·A copy of the applicant’s resume;
·A copy of an offer of employment from Ezion Geber Pty Ltd dated 15 January 2005; and
·A copy of the applicant’s Notice of Assessment for year ended June 2012 as evidence of his taxable income for that financial year.
On 7 June 2018, the tribunal wrote to the Department enquiring about the progress of the nomination application lodged on 13 June 2017.
The first named applicant appeared before the tribunal on 7 June 2018 to give evidence and present arguments. The tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages. The applicants were represented in relation to the review by their registered migration agent. The representative attended the tribunal hearing.
The applicant first came to Australia in June 2002 as a holder of a student visa. In Australia he completed an English language course. He stated that in Korea, he has completed a Bachelor Degree in Painting in 1989.
He claims to have been working in Korea as a full time tiler for Bau Constructions Co Ltd from 15 February 1995 to 30 May 2002. He submitted a copy of the work reference letter from this employer dated 16 April 2003. I enquired as to how he was able to work as a full time employee considering that he was also studying for his Bachelor Degree during the same period. He explained that this was possible because he was able to attend evening classes at the university.
I noted that on the reference letter from Bau Constructions Co Ltd it was stated that his occupation was Tiling Engineer (Construction) and not wall and floor tiler. I further noted that engineering positions usually require tertiary education, unlike wall and floor tiler’s positions. He stated that the reference letter was not correctly translated from Korean. I observed that the reference letter was provided by the applicant and that translation of this letter was done by a NAATI accredited translator.
I further noted that the reference letter does not state whether he was employed in a part time or full time capacity and does not contain any description of the tasks performed during the claimed period of employment. I indicated that, as such, I am unable to give much if any weight to this letter as evidence of his employment in the nominated occupation. I invited the applicant to provide an updated reference letter from this employer that will contain necessary information. The applicant stated that Bau Constructions Co Ltd was declared bankrupt in 2005 and that he is unable to obtain a new reference letter from this employer. I invited him to provide additional documentary evidence relevant to his employment in Korea such as pay-slips, bank statements or an employment agreement.
He gave evidence that from 2002 he worked as a part time wall and floor tiler. His first Subclass 457 visa was granted by the Department in August 2007 based on the sponsorship and nomination made by Ezion Geber Pty Ltd. This visa was to remain valid until 3 February 2011. He stated that he worked for this company as a full time wall and floor tiler for a period of two years and two months (October 2009). I noted that no work reference letter was provided from Ezion Geber Pty Ltd as evidence of his employment. He stated that this company went bankrupt and he had to go back to Korea. I invited him to provide additional documentary evidence relevant to his employment at Ezion Geber Pty Ltd such as pay-slips, bank statements evidencing payment of wages or an employment agreement.
He stated that he came back from Korea in November 2010. He again applied for a Subclass 457 visa based on the sponsorship and nomination made by Auskor Tiling Pty Ltd. The visa was granted on 10 August 2011 for a period of four years. He claims that he commenced full time employment as a wall and floor tiler at this company in August 2011 and was paid an annual salary of $95,000. He stated that the payment of his wages was made by the company by transferring funds into his nominated Commonwealth Bank account. He stated that he ceased his employment with this business in May 2013 because the company went bankrupt.
He confirmed that in the visa application form submitted to the Department, he stated that he worked for Auskor Tiling Pty Ltd until June 2015. I noted that in his oral evidence he stated that he worked until May 2013 and asked the applicant to explain this discrepancy in his evidence. He stated that he made a mistake in the visa application form. I enquired if he informed the Department that he provided an incorrect answer on the visa application form by submitting a Notification of Incorrect Answer Form or in any other way and he stated that he did not.
I noted that in his evidence he stated that he was paid an annual salary of $95,000 by Auskor Tiling Pty Ltd. I further noted that he has provided a copy of his Tax Assessment Notice for the year ending 30 June 2012 to this tribunal according to which his taxable income for that year was $44,782. He then changed his evidence and stated that he was not in fact paid an annual salary of $95,000 by this business. I enquired if he complained to the Department or the Work Place Ombudsman about the fact that he was receiving approximately $50,000 less than what was agreed. He stated that he was aware that the business experienced some financial difficulties and that he did not contact authorities to complain about being under paid.
I noted that he did not provide a work reference letter from Auskor Tiling Pty Ltd as evidence of his employment at this business. I requested that he provide a copy of the employment agreement, reference letter, pay slips and bank statements for the relevant period.
I enquired as to what he was doing in Australia since May 2013, when he claims to have ceased his employment at Auskor Tiling Pty Ltd. He stated that he worked ‘very little’ as a part time wall and floor tiler. I asked him to name the businesses he worked for, but he was unable to do so.
I noted that a different employer, Sarang Tiling Pty Ltd, lodged a nomination application with the Department, nominating him for a position of a wall and floor tiler. This nomination was approved by the Department on 7 September 2015. I asked the applicant when he commenced employment with this business. The applicant stated that he never commenced employment at Sarang Tiling Pty Ltd and that he was waiting for his Subclass 457 visa to be granted by the Department before commencing employment at this company.
I asked if he has a ‘no work’ condition imposed on his bridging visa and he stated that he did not. He gave evidence that he believed that he was not allowed to work for this employer before being granted a Subclass 457 visa. He confirmed that he received this advice from his migration agent, Mr Woon Hak Seo.
I noted that in his evidence he stated that he worked as a part time wall and floor tiler from May 2013 until September 2015. The applicant then changed his evidence and stated that he only worked for his friends, usually this was either not paid or he was given some ‘pocket money’.
When I enquired about how he financially managed to stay in Australia from May 2013 until September 2015 without working and earning money, he stated that his wife was employed.
I noted that he had been nominated for the position by a different sponsoring business, J Clover Tiling Pty Ltd and that nomination application was lodged with the Department on 13 June 2017. According to the submissions provided by his representative, the decision regarding this nomination application is still pending with the Department. He confirmed this to be correct.
I enquired as to when he was offered employment at this sponsoring business and who was the person who offered the employment. The applicant stated that he cannot remember when he was offered employment and that he found out about the job through his contact within Korean society in Australia. He claims that he had an interview with the company’s boss, Mr David Cho. The business employs 14 wall and floor tilers.
He gave evidence that he signed an employment agreement with this business according to which his annual salary is set to be $98,000. He did not commence employment at J Clover Tiling Pty Ltd and he claims that he did not pay any money to this business for the sponsorship and nomination. When I enquired as to why he did not commence employment at this business, the applicant stated that he was waiting for his Subclass 457 visa to be granted by the Department before commencing employment. I asked if he has a ‘no work’ condition imposed on his bridging visa and he stated that he did not. He gave evidence that he believed that he was not allowed to work for this employer before being granted a Subclass 457 visa. He confirmed that he received this advice from his migration agent, Mr Woon Hak Seo.
The applicant gave evidence that in March 2014, he was awarded a Certificate III in Wall and Floor Tiling by Master Builders Association, a Registered Training Organisation. He stated that the examiners from this RTO came to a work site, observed his work and gave him some tests to complete. He paid $1,200 for this Certificate. I enquired as to how he was able to do the tests considering his inability to communicate using the English language. He then changed his evidence and stated that he did not do any written tests.
I enquired as to how he was able to communicate with persons who came to his work site and who issued him the Certificate. He gave evidence that he communicated with these people in the Korean language.
The applicant’s representative submitted that the applicant’s work experience from Korea was recognised by this tribunal in 2005. He referred to a decision of this tribunal (differently constituted) dated 8 November 2006, a copy of which the representative submitted to the tribunal. I explained to the representative that the tribunal is not bound to follow decisions made by the same tribunal.
The representative further submitted that in 2012, the applicant applied for the Regionally Sponsored Migration Scheme (RSMS) permanent visa and that this application was refused by the Department because the applicant was unable to meet the English language requirements and not because of his skills and qualifications.
I granted the applicant an additional seven days to provide evidence of his past employment as requested during the course of the hearing and any other documents and submissions he wishes to provide to the tribunal in support of his application.
On 14 June 2018, the applicant’s representative submitted:
·Legal Submissions stating that the applicant did not receive salary as promised under the employment agreements from either Ezion Geber Pty Ltd or Auskor Tiling Pty Ltd; that both companies went bankrupt before the applicant was able to complete the entire term of his 457 visas; that the applicant’s accountant has applied for tax details from ATO for the financial years ending June 2007 and 2008 and that it will take three more weeks before the records are obtained; he requested an additional four weeks to provide these documents; that the applicant has already provided an explanation why he is unable to provide the additional documentary evidence of his employment at Bau Constructions Co in Korea in the previously decided tribunal matter no W0506216; and that the applicant has a genuine job offer from the current sponsoring business;
·A copy of the applicant’s statutory declaration dated 12 June 2018 concerning his claimed employment at Bau Constructions Co in Korea;
·A copy of a printout of wages paid by Auskor Tiling Pty Ltd to the applicant from 17 August 2011 to 28 June 2013 (created on 14 June 2016);
·A copy of Commonwealth Bank statements for the applicant’s account from 3 August 2011 to 12 July 2013 as evidence of wages being paid by the applicant’s employer Auskor Tiling Pty Ltd;
·A copy of the ASIC Current and Historical record for Auskor Tiling Pty Ltd;
·A copy of a letter from Mr David Cho, the Director of J Clover Tiling Pty Ltd dated 13 June 2018 stating that the applicant is renowned for his excellent wall and floor Tiling and supervisory skills;
·A copy of an undated employment contract between the applicant and J Clover Tiling Pty Ltd as evidence of the proposed salary of $97,000; and
·A copy of current and future organisational charts for J Clover Tiling Pty Ltd.
On 14 June 2018, the tribunal wrote to the applicants advising that it refused their request for an adjournment to its decision for an additional four weeks, providing the reasons for this decision.
On 15 June 2018, the Department responded to the tribunal’s request and informed it that the processing of the related nomination application will take at least an additional 2-3 months.
On 15 June 2018, the applicant’s representative submitted:
·Submissions stating that the applicant obtained an ABN number in 2003 and was working for Ezion Geber Pty Ltd on a part time basis during his studies in Australia; that he failed to lodge tax returns for the income earned from 2004 to 2007 and that he accumulated 42 months of part time employment with this company;
·A copy of an ABN lookup as evidence that the applicant registered his own business ‘Hope Tiling Services’ in December 2003 and that the ABN status was cancelled from September 2012;
·A copy of a letter from Mr Ung Heo, the former director of Ezion Geber Pty Ltd, dated 14 June 2018 as evidence of the applicant’s employment. In his letter, Mr Heo stated that the business was not able to pay the applicant’s wages from 4 August 2007 until September 2009, due to financial difficulties in the business and that the business went into liquidation around June 2009;
·A copy of a letter from Mr Park of Bison Accounting Services dated 14 June 2018, stating that this firm has lodged tax returns for the applicant for the 2004, 2005, 2006 and 2007 financial years;
·A copy of the applicant’s individual tax return for 2003-04 financial year as evidence of taxable income of $11,475;
·A copy of the applicant’s individual tax return for 2004-05 financial year as evidence of taxable income of $22,900;
·A copy of the applicant’s individual tax return for 2005-06 financial year as evidence of taxable income of $22,550;
·A copy of the applicant’s individual tax return for 2006-07 financial year as evidence of taxable income of $22,550; and
·A copy of the applicant’s statutory declaration dated 15 June 2018 concerning his claimed employment at Auscor Tiling Pty Ltd.

On 25 June 2018, the tribunal wrote to the Department enquiring about the progress of the nomination application lodged on 13 June 2017.
On 28 June 2018, the applicant’s representative submitted:
·Applicant’s Notice of Tax Assessment for year ended 30 June 2005 issued by the ATO on 22 June 2018;
·Applicant’s Notice of Tax Assessment for year ended 30 June 2006 issued by the ATO on 22 June 2018;
·Applicant’s Notice of Tax Assessment for year ended 30 June 2007 issued by the ATO on 22 June 2018.
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.
The tribunal accepts that the determination of the application requires more than a narrow matching process between an applicant’s tasks and an ANZSCO occupational definition. Instead, it is preferable to approach the matter by ascertaining the applicant’s skills and how these skills are to be applied in the nominated occupation: Joshi v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1116.
The entry in ANZSCO indicates that a wall and floor tiler is required to have a level of skill commensurate with AQF Certificate III including at least two years of on the job training or AQF Certificate IV. At least three years of relevant experience may substitute for the formal qualifications listed. I considered the tasks, duties and the indicative skill level for the occupation of a wall and floor tiler and I regard these ANZSCO indications as important considerations. However, I approached my task of assessing the applicant’s skills by reference to all of the available evidence relating to the applicant.
Educational qualifications
The applicant claims that in Korea, he has completed a Bachelor Degree in Painting in 1989. I do not find this qualification to be relevant to the applicant’s nominated occupation.
The applicant presented evidence that in March 2014, he was awarded a Certificate III in Wall and Floor Tiling by Master Builders Association, a Registered Training Organisation. He stated that the examiners from this RTO came to a work site, observed his work and gave him some tests to complete. He paid $1,200 for this Certificate. I enquired as to how he was able to do the tests considering his inability to communicate in the English language. He then changed his evidence and stated that he did not do any written tests. I enquired as to how he was able to communicate with the people who came to his work site and issued him the Certificate. He gave evidence that he communicated with these people in the Korean language.
Relevant work experience
Overseas experience as wall and floor tiler (Bau Constructions Co Ltd)
The applicant claims to have been working in Korea as a full time Tailer for Bau Constructions Co Ltd from 15 February 1995 to 30 May 2002.
He submitted a copy of the work reference letter from this employer dated 16 April 2003 and his statutory declaration dated 12 June 2018 concerning his claimed employment at this business. He stated that he is unable to obtain a new reference letter from this employer or any other independent documentary evidence of employment because this business was declared bankrupt in 2005. He claims that the tribunal (differently constituted) by its decision of 8 November 2016 (matter no. W0506216) accepted the applicant’s work experience from Bau Constructions Co Ltd.
As noted at the hearing, the reference letter from Bau Constructions Co Ltd states that the applicant’s occupation was Tiling Engineer (Construction) and not wall and floor tiler. I do not accept the applicant’s explanation that the reference letter was not correctly translated from the Korean language. I find that the reference letter was provided by the applicant and that translation of this letter was done by NAATI accredited translator.
I further find that the reference letter does not state whether the applicant was employed in a part time or full time capacity and does not contain any description of the tasks performed during the claimed period of employment. For these reasons, I give very limited weight to this letter as evidence of the applicant’s employment in the nominated occupation.
I considered the applicant’s statutory declaration of 12 June 2018 and, as there is limited evidence supporting his claims of work experience at Bau Constructions Co Ltd, decided to give it limited weight.
I considered the tribunal’s decision (matter no W0506216) and the representative’s submission that the applicant’s work experience from Korea was recognised by this tribunal in 2006. As explained to the applicant during the course of the hearing, this tribunal is not bound by decisions made by the tribunal (differently constituted).
Based on the evidence before me I am not satisfied that the applicant worked from 15 February 1995 to 30 May 2002 as a wall and floor tiler at Bau Constructions Co Ltd.
Australian work experience
Ezion Geber Pty Ltd – went into liquidation in June 2009
The applicant claims that from 2002, he worked as a part time wall and floor tiler in Australia. No evidence supporting this claim was submitted to the tribunal. In fact, according to the Employment Certificate signed by the former director of Ezion Geber Pty Ltd, Mr Ung Heo, (who is also the applicant’s brother), the applicant commenced his part time employment at this business at the beginning of 2004 (the letter states 2014 – I considered this to be a typing error) after the applicant obtained his ABN number and started trading as Hope Tiling Services.
Another letter dated 15 January 2005 was provided to this tribunal by Mr Ung Heo which states that the applicant will be sponsored and nominated by this business for a Subclass 457 visa.
The applicant claims that he continued to work for this business on a part time basis until 3 August 2007 when he was granted a Subclass 457 visa based on the sponsorship and nomination made by Ezion Geber Pty Ltd.
Mr Ung Heo, in his letter, further stated that the applicant commenced full time employment at Ezion Geber Pty Ltd in August 2007 and continued to work in this capacity until September 2009. He stated that the business was unable to pay the applicant’s wages due to financial difficulties the business experienced and for that reason the applicant is unable to produce his tax records. The company, according to this evidence, went into liquidation in June 2009 and closed its business in September 2009. Based on this evidence, I find that the applicant was not in paid employment at Ezion Geber Pty Ltd from August 2007 to September 2009 and for that reason I do not accept that he worked at this business as claimed.
Auskor Tiling Pty Ltd – registered in April 2009; under external administration from September 2013
The applicant came back from Korea in November 2010. He again applied for a Subclass 457 visa based on the sponsorship and nomination made by Auskor Tiling Pty Ltd. The visa was granted on 10 August 2011 for a period of four years.
He claims that he commenced full time employment as a wall and floor tiler at this Company in August 2011 and was paid annual salary of 95,000. He stated that the payment of his wages was made by the company by transferring funds into his nominated Commonwealth Bank account. When I noted that he provided a copy of his Tax Assessment Notice for the year ending 30 June 2012 to this tribunal, according to which his taxable income for that year was $44,782, the applicant changed his evidence and stated that he was not in fact paid an annual salary of $95,000 by this business.
He stated that he ceased his employment with this business in May 2013 because the company went bankrupt. In his evidence given at the hearing, the applicant confirmed that in the visa application form submitted to the Department he stated that he worked for Auskor Tiling Pty Ltd until June 2015. When asked to explain this discrepancy, the applicant stated that he made a mistake in the visa application form and that he did not subsequently inform the Department that he provided an incorrect answer on the visa application form. The Department should take note of this evidence and consider cancelling the applicant’s visa pursuant to s.109 of the Act.
Despite being requested to do so by this tribunal, the applicant did not provide a work reference letter or employment agreement with Auskor Tiling Pty Ltd as evidence of his employment at this business.
I considered the applicant’s statutory declaration dated 15 June 2018 outlining his employment history with Auskor Tiling Pty Ltd. The applicant submitted a document headed Wages paid by Auskor Tiling for 2012 and 2013 financial years. He also provided statements from his Commonwealth Bank account evidencing that some payments were made by the sponsoring business.
Based on this evidence I accept that the applicant worked as a wall and floor tiler for this business in a full time capacity for the period of 21 months.
I asked the applicant what he was doing in Australia since May 2013, when he claims to have ceased employment at Auskor Tiling Pty Ltd. He stated that he worked ‘very little’ as a part time wall and floor tiler. I asked him to name the businesses he worked for, but he was unable to do so. I noted that in his evidence he stated that he worked as a part time wall and floor tiler from May 2013 till September 2015. The applicant then changed his evidence and stated that he only worked for his friends and usually was either not paid or was given some ‘pocket money’.
It appears that either the Department was not informed of cessation of the applicant’s employment at Auskor Tiling Pty Ltd or that the Department, despite having an obvious ground to cancel the applicant’s visa under s.116(1)(b) for breaching condition 8107(3) (if the holder ceases employment — the period during which the holder ceases employment must not exceed 90 consecutive days as it then was), decided not to proceed with the cancellation.
Sarang Tiling Pty Ltd – nomination approved – the applicant never commenced employment
The applicant presented evidence that a different employer, Sarang Tiling Pty Ltd, lodged a nomination application with the Department nominating him for a position of a wall and floor tiler. This nomination was approved by the Department on 7 September 2015.
The applicant gave evidence that he never commenced employment at this business as he was waiting for the Subclass 457 visa to be granted by the Department. This is despite the fact that he knew that he did not have a ‘no work’ condition imposed on his bridging visa. The applicant stated that he believed that he was not allowed to work for this employer before being granted a Subclass 457 visa, relying on the incorrect advice received from his migration agent, Mr Woon Hak Seo.
J Clover Tiling Pty Ltd – current sponsoring business
In his evidence, the applicant confirmed that he is currently nominated for the position of a wall and floor tiler by a different sponsoring business, J Clover Tiling Pty Ltd; that nomination application was lodged with the Department on 13 June 2017 and the decision on the nomination application is still pending at the Department.
I find it extraordinary that the Department is unable or unwilling to make a decision on the nomination application made in June 2017. This is despite the repeated requests for a progress update made by the tribunal.
According to his evidence, the applicant did not commence employment at J Clover Tiling Pty Ltd because he is waiting for the Subclass 457 visa to be granted by the Department. This is despite the fact that he does not have a ‘no work’ condition imposed on his bridging visa which is linked to the nomination application currently with the Department. Again, the applicant stated that he is relying on the advice received from his migration agent, Mr Woon Hak Seo.
The Department’s inability or unwillingness to make a decision on the nomination application lodged in June 2017 enabled the applicant to remain in Australia for over 14 months despite never commencing employment with the current sponsoring business.
A similar scenario happened in relation to the nomination application made by Sarang Tiling Pty Ltd. The applicant was holding a bridging visa that was linked to the nomination application lodged by this company. Despite having no work restrictions, the applicant did not commence employment at this business and was allowed to remain in Australia.
The evidence before me reveals that the applicant was allowed to remain in Australia for three years despite the fact that he last worked for an Australian business in September 2015.
The applicant was originally sponsored by the business partly owned by his brother. Despite not being paid agreed wages and despite ceasing his employment in October 2009, his visa (granted until February 2011) was not cancelled by the Department. This business went into liquidation in October 2009.
His second Subclass 457 visa was granted on 10 August 2011 and was to remain valid until 10 August 2015. Again, despite not being paid agreed wages and despite ceasing his employment in May 2013, the applicant’s visa was not cancelled by the Department. This business went into external administration in September 2013.
I have serious concerns about the current employment offer. A simple enquiry with the Department would have confirmed whether the applicant is entitled to work for J Clover Tiling Pty Ltd while waiting for the outcome of the nomination application lodged in June 2017. If there was a genuine and ‘desperate’ need for the applicant’s employment at this business as claimed in the letters provided by Mr David Cho on 9 October 2017 and 23 April 2018, the business should have made these enquiries with the Department. A further investigation into this business may be warranted by the Department.
I have considered the applicant’s individual tax returns for the 2004, 2005, 2006 and 2007 financial years. According to these documents, the applicant generated income working under his own business name (Hope Tiling Services) that was registered on 15 December 2003. This is the same period the applicant claims to have been working for Ezion Geber Pty Ltd (the business operated by his brother). The ABN status for Hope Tiling Services was cancelled on 17 September 2012.
The applicant’s representative submitted (tribunal folio 158) that the applicant was using this ABN number while working as a student visa holder for Ezion Geber Pty Ltd and that he ‘completely and inadvertently’ failed to lodge tax returns for the income earned. I give little weight to the applicant’s Notices of Tax Assessment for the 2005, 2006 and 2007 financial years provided to the tribunal on 28 June 2018, as they were lodged with the ATO on 22 June 2018, after the tribunal pointed out to the applicant that there is a lack of evidence of his employment at Ezion Geber Pty Ltd.
Based on the evidence before me, I am not satisfied that the applicant’s work experience provided him with the necessary skills to perform the nominated role. I am not satisfied that the applicant developed the skills necessary to perform the nominated role through his employment history. Accordingly, on the evidence before me, I am not satisfied that the applicant has the skills and employment background necessary to perform the tasks of the nominated occupation, and thus find that he does not meet cl.457.223(4)(da) at the time of the tribunal’s decision.
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 the first named applicant does not satisfy the primary criteria for the grant of a Subclass 457 visa, the second, third and fourth named applicants 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
The tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.
Antonio Dronjic
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.

On 17 June 2018, the tribunal officer contacted Masters Builders Association seeking clarification as to how was the Certificate III issued to the applicant and whether it was possible to communicate with the applicant in Korean language during the assessment process.
On the same day, Ms hardy of Masters Builders Association replied to the tribunal stating that:
‘the assessment of In Heo for the Cert III in Wall and Floor Tiling was undertaken by Alex Choi - self assessment, assessor observation (on-site), participant kit completed, referees - Sooyoung Cho (J Clover Tiling Pty Ltd / / Licence # CTF158/1339) and Eung Suk Shim (North I Tiling/ Licence # CTF96/808) - conversations with and observation reports completed by both referees - stating that both had observed In Heo undertaking required tasks. Paid - $2,200 (2 x instalments - $ 1,200 and $1,000)’

[2018] AATA 3595

9 August 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal