Heo (Migration)

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.