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 HeoCASE 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, 457.321CASES
Joshi v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1116STATEMENT 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…
Details
- AGLC
- Heo (Migration) [2018] AATA 3595
- Case
- [2018] AATA 3595
- Decision Date
CaseChat Overview and Summary
The Administrative Appeals Tribunal considered the case of Mr. Heo and his secondary applicants concerning their application for Temporary Business Entry (Class UC) visas, specifically the Subclass 457 (Temporary Work (Skilled) visa – Standard business sponsor stream). The primary dispute revolved around whether Mr. Heo, the primary applicant, possessed the necessary skills, qualifications, and employment background to perform the nominated occupation of a wall and floor tiler, as required by clause 457.223(4)(da) of the Migration Regulations.
The legal issues before the Tribunal were whether the primary applicant met the criteria under clause 457.223(4)(da) and, by extension, whether the secondary applicants satisfied the requirements under clause 457.321, which mandates that they be members of the family unit of a primary applicant who has met the criteria for the Subclass 457 visa. The Tribunal was required to assess the applicant's claimed overseas qualifications and work experience against the ANZSCO definition for a wall and floor tiler, which specifies a skill level commensurate with AQF Certificate III and at least two years of on-the-job training, or AQF Certificate IV, with at least three years of relevant experience potentially substituting for formal qualifications.
The Tribunal's reasoning focused on the credibility and sufficiency of the evidence presented by the applicant. Mr. Heo's overseas Bachelor Degree in Painting was deemed irrelevant to the nominated occupation. While he held a Certificate III in Wall and Floor Tiling obtained in 2014, his evidence regarding how he completed the assessment, particularly given his English language limitations, was inconsistent and raised concerns. Furthermore, his claimed overseas work experience from 1995 to 2002 lacked independent documentary corroboration, with the employer having gone bankrupt. The Tribunal noted that while a previous iteration of the Tribunal had accepted this experience, it was not bound by that decision and had to consider all available evidence anew. Conflicting evidence, including a failure to lodge tax returns, further contributed to credibility issues.
Ultimately, the Tribunal affirmed the decision not to grant the Temporary Business Entry (Class UC) visas. As the primary applicant, Mr. Heo, failed to satisfy the essential criteria for the Subclass 457 visa, the secondary applicants, as his family members, were consequently unable to meet the requirements for their own applications.
The legal issues before the Tribunal were whether the primary applicant met the criteria under clause 457.223(4)(da) and, by extension, whether the secondary applicants satisfied the requirements under clause 457.321, which mandates that they be members of the family unit of a primary applicant who has met the criteria for the Subclass 457 visa. The Tribunal was required to assess the applicant's claimed overseas qualifications and work experience against the ANZSCO definition for a wall and floor tiler, which specifies a skill level commensurate with AQF Certificate III and at least two years of on-the-job training, or AQF Certificate IV, with at least three years of relevant experience potentially substituting for formal qualifications.
The Tribunal's reasoning focused on the credibility and sufficiency of the evidence presented by the applicant. Mr. Heo's overseas Bachelor Degree in Painting was deemed irrelevant to the nominated occupation. While he held a Certificate III in Wall and Floor Tiling obtained in 2014, his evidence regarding how he completed the assessment, particularly given his English language limitations, was inconsistent and raised concerns. Furthermore, his claimed overseas work experience from 1995 to 2002 lacked independent documentary corroboration, with the employer having gone bankrupt. The Tribunal noted that while a previous iteration of the Tribunal had accepted this experience, it was not bound by that decision and had to consider all available evidence anew. Conflicting evidence, including a failure to lodge tax returns, further contributed to credibility issues.
Ultimately, the Tribunal affirmed the decision not to grant the Temporary Business Entry (Class UC) visas. As the primary applicant, Mr. Heo, failed to satisfy the essential criteria for the Subclass 457 visa, the secondary applicants, as his family members, were consequently unable to meet the requirements for their own applications.
Orders
Orders of the court
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Background
Background to the litigation
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 experienceOverseas 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.
Evidence
Evidence Before The Court
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 experienceOverseas 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.
Decision
Reasons for decision
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 DronjicMemberATTACHMENT - 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.
Ratio Decidendi
Legal Principle Established
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