Heo v Minister for Immigration
[2020] FCCA 586
•6 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HEO & ORS v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 586 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of business visas – principal applicant found not to have requisite skills – applicants disputing the weight given by the Tribunal to material submitted after the Tribunal hearing – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.109, 116, 140GB, 359 |
| Cases cited: Kumar v Minister for Home Affairs & Anor [2019] FCCA 1594 |
| First Applicant: | IN HEO |
| Second Applicant: | YUN SIL JUN |
| Third Applicant: | SOMANG HEO |
| Fourth Applicant: | SARANG HEO |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2471 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 16 March 2020 |
| Delivered at: | Sydney |
| Delivered on: | 6 April 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Mr G Seo of Garry Seo & Associates |
| Solicitors for the Respondents: | Ms A Wong of Mills Oakley |
ORDERS
The application filed on 4 September 2018, as amended at the trial on 16 March 2020, is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2471 of 2018
| IN HEO |
First Applicant
YUN SIL JUN
Second Applicant
SOMANG HEO
Third Applicant
SARANG HEO
Fourth Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 9 August 2018. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant, Mr Heo, and his family temporary business entry visas.
The following statement of background facts is derived from the Minister’s outline of submissions filed on 10 March 2020.
Mr Heo is a male citizen of South Korea, who on 7 August 2015, applied for the grant of a Temporary Business Entry (Class UC) visa on the basis of his nomination in the occupation as a “wall and floor tiler”[1] sponsored by Sarang Tiling Pty Ltd.[2] The second applicant is Mr Heo’s wife and the third and fourth applicants are their minor children. Various supporting documents were provided by the applicants, including employment contracts, Mr Heo’s CV and copies of passports.[3]
[1] Court Book (CB) 1-16
[2] CB 12
[3] CB 39-62
On 24 February 2016, the delegate refused to grant the visa on the basis that she was not satisfied that Mr Heo had the skills, qualifications and employment background necessary to perform the tasks of a wall and floor tiler (ANZSCO[4] 333411) and found that he did not meet clause 457.223(4)(da) in Schedule 2 to the Migration Regulations 1994 (Regulations).[5]
[4] Australian and New Zealand Standard Industrial Classification
[5] CB 71-75
The Tribunal
On 10 March 2016, the applicants applied to the Tribunal for review of the delegate’s decision.[6]
[6] CB 77-79
On 9 April 2018, the Tribunal invited the applicants, pursuant to s.359(2) of the Migration Act 1958 (Cth) (Migration Act), to provide information in writing to demonstrate Mr Heo met clause 457.223(4)(a) and clause 457.223(4)(da) of the Regulations.[7]
[7] CB 165-169
On 11 April 2018, the applicants’ representative responded, submitting that Mr Heo was nominated for the position by a different sponsoring business, J Clover Tiling Pty Ltd, (J Clover) whose nomination application in respect of Mr Heo was lodged with the Minister’s Department on 13 June 2017 and a decision had not yet been made.[8] The representative provided correspondence indicating that J Clover was approved as a sponsor until 21 August 2020, that a nomination application had been lodged on 13 June 2017, and a supporting letter from a Mr Cho (the director of J Clover).[9]
[8] CB 171
[9] CB 173
On 11 April 2018, the Tribunal also wrote to the applicants, informing them that subclass 457 visas had been abolished and Mr Heo did not have an approved nomination. Accordingly, even if the nomination application by J Clover was successful, the nomination approval could not be used to support the existing subclass 457 visa application.[10]
[10] CB 180-181
On 23 April 2018, the applicants’ representative asked the Tribunal to postpone its decision pending the outcome of the nomination application, and provided a further letter from Mr Cho. The representative acknowledged that subclass 457 visas had been abolished, but submitted that did not mean all pending subclass 457 nominations and visa applications became void. Attached was an email from the representative to the Minister’s Department dated 23 April 2018 requesting the “urgent processing” of the nomination application. The representative provided an email from the Minister’s Department dated 30 April 2018 stating there was “insufficient grounds to prioritise the assessment of the application”.[11]
[11] CB 182-184
On 27 April 2018, the Tribunal invited Mr Heo to appear at a hearing scheduled for 7 June 2018.[12]
[12] CB 242-248
On 6 June 2018, the representative wrote to the Tribunal, referring to the existence of a previous subclass 457 visa application that had initially been refused by the Minister’s Department on 15 November 2005,[13] before a differently constituted Tribunal (MRT) remitted the decision and Mr Heo was granted the visa on 3 August 2007. A copy of the MRT decision (among other things) was provided to the Tribunal.[14]
[13] CB 255; the representative incorrectly wrote “15 November 2015”, as noted by the Tribunal at [10]
[14] CB 254-276
On 7 June 2018, Mr Heo appeared before the Tribunal at a hearing with an interpreter and his migration agent.[15] The Tribunal granted Mr Heo seven days after the hearing to provide evidence of his past employment as requested.[16]
[15] CB 277-288
[16] CB 390, [34]
On 14 June 2018, the representative provided further submissions and evidence to the Tribunal, and requested a further four weeks to provide his tax returns for the financial years ending June 2007 and 2008. It was submitted that, although the review application had been lodged on 15 March 2016, Mr Heo had to wait two years for the Tribunal member to be allocated, which meant he could not work for any of the companies who nominated him.[17] On the same date, the Tribunal refused the request.[18]
[17] CB 283
[18] CB 336
On 15 June 2018, the Minister’s Department responded to the Tribunal’s email and indicated that it would take an additional two to three months to finalise the nomination application.[19] On the same date, the representative provided further submissions and documents to the Tribunal.[20]
[19] CB 391, [37]
[20] CB 339-373
On 25 June 2018, the Tribunal again wrote to the Minister’s Department to request an update on the progress of the nomination application.[21]
[21] CB 391, [39]
On 28 June 2018, the representative submitted Mr Heo’s tax returns for the financial years ending June 2005, 2006 and 2007.[22]
[22] CB 374-380
The Tribunal’s decision
On 9 August 2018, the Tribunal affirmed the delegate’s decision on the basis that Mr Heo did not meet clause 457.223(4)(da) of the Regulations.
The Tribunal outlined the procedural history before it in detail,[23] including Mr Heo’s and the representative’s evidence provided at the hearing.[24]
[23] CB 386, [5]-CB 391, [40]
[24] CB 387, [12]-CB 390, [33]
The Tribunal identified that the issue before it was whether Mr Heo had the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation as required by clause 457.223(4)(da).[25] The Tribunal found that the determination required it to ascertain Mr Heo’s skills and how the skills were to be applied in the nominated occupation, rather than matching Mr Heo’s tasks and the ANZSCO occupational definition.[26]
[25] CB 392, [43]
[26] CB 392, [44]-[45]
The Tribunal found that the ANZSCO indicated a wall and floor tiler required a person to have a level of skill commensurate with AQF[27] Certificate III including at least two years of on-the-job training or AQF Certificate IV, or at least three years of relevant experience.[28]
[27] Australian Qualifications Framework
[28] CB 392, [45]
The Tribunal embarked on a detailed assessment of Mr Heo’s education and evidence of his past working experience. With regard to his education, the Tribunal had regard to Mr Heo’s claimed completion of a Bachelor Degree in Painting in 1989, and found the degree was not relevant to his nominated occupation.[29] It had regard to his evidence that he completed a Certificate III in Wall and Floor Tiling but also observed that he changed his evidence when the Tribunal asked him how he was able to complete the tests given his limited English ability, and noted his evidence that he communicated with people on the work site in Korean.[30]
[29] CB 392, [46]
[30] CB 392, [47]
The Tribunal did not accept the claim that he worked as a wall and floor tiler in Korea full-time for Bau Constructions from 15 February 1995 to 30 May 2002,[31] identifying a number of deficiencies with his supporting documentation. It placed weight on its finding that a work reference letter from Bau Constructions stating the occupation was a Tiling Engineer (Construction) rather than wall and floor tiler, and did not accept Mr Heo’s claims that the reference letter was incorrectly translated.[32] The Tribunal observed the letter did not state whether Mr Heo was employed in a part time or full time capacity and did not contain descriptions of the tasks performed in the period of employment.[33] It placed little weight on a statutory declaration of 12 June 2018, finding there was limited supporting evidence of his occupation at Bau Constructions.[34] It considered the decision of the MRT and the submission that the work experience in Korea was accepted by the MRT, but found that it was not bound by the MRT’S decision.[35]
[31] CB 393, [54]
[32] CB 393, [50]
[33] CB 393, [51]
[34] CB 393, [52]
[35] CB 393, [53]
The Tribunal did not accept that Mr Heo was in paid employment at Ezion Geber Pty Ltd (Ezion Geber) as he claimed.[36] The Tribunal first identified that Mr Heo claimed he worked in Ezion Geber from 2002, but found he provided no evidence to support this claim. Rather, it found that an employment certificate signed by the former director of Ezion Geber, Mr Ung Heo (Mr Heo’s brother) stated that his employment began in 2004[37] and a further letter from Mr Ung Heo indicating applicant would be sponsored by the business was dated January 2005.[38] It did not accept Mr Heo was in paid employment at Ezion Geber for the period of August 2007 to September 2009 as claimed in a further letter from Mr Ung Heo, placing weight on the statement in the letter that the business was unable to pay Mr Heo’s wages due to financial difficulties and that it went into liquidation.[39]
[36] CB 394, [58]
[37] CB 393, [55]
[38] CB 393, [56]
[39] CB 394, [58]
The Tribunal considered Mr Heo’s claim that he returned to Australia in November 2010 and applied for a further subclass 457 visa on the basis of his sponsorship with Auskor Tiling Pty Ltd (Auskor Tiling)[40] and that he ceased working for the business in May 2013 because the business went bankrupt.[41] Relying on Mr Heo’s concession that the visa application form incorrectly stated that he worked for Auskor Tiling until June 2015, the Tribunal remarked that “the department should take note of this evidence and consider cancelling the applicant’s visa pursuant to s.109 of the Act”.[42] It accepted Mr Heo worked as a wall and floor tiler for Auskor Tiling in a full time capacity for 21 months, having regard to supporting evidence that he was paid by Auskor Tiling for the 2012 and 2013 financial years.[43]
[40] at CB 394, [59]
[41] CB 394, [61]
[42] CB 394, [61]
[43] CB 394, [63]-[64]
The Tribunal had regard to Mr Heo’s claims that from May 2013 until September 2015, he worked “very little” as a part time wall and floor tiler for friends and family and was either not paid or given “pocket money”.[44] It observed that the Minister’s Department had either not been informed of the cessation of Mr Heo’s employment, or that it decided not to proceed with cancelling his visa, despite an “obvious ground to cancel” under s.116(1)(b) for breaching condition 8107(3) requiring Mr Heo not cease employment for 90 consecutive days.[45]
[44] CB 394, [65]
[45] CB 395, [66]
The Tribunal found, consistently with Mr Heo’s evidence, that Sarang Tiling lodged a nomination in respect of Mr Heo that was approved on 7 September 2015 but he never commenced employment despite knowing that he was not subject to a “no work” condition on his bridging visa.[46] It recorded that Mr Heo stated that he relied on incorrect advice from his migration agent that he could not work.[47]
[46] CB 395, [68]
[47] CB 395, [68]
With regard to the nomination by J Clover on 13 June 2017, the Tribunal found Mr Heo did not commence employment at J Clover, despite knowing that he did not have a “no work” condition on his bridging visa, and that he again explained that he relied on evidence from his migration agent.[48] The Tribunal observed that the Minister’s Department’s “inability or unwillingness” to make a decision on the nomination application allowed Mr Heo to remain in Australia for over 14 months despite never commencing employment with the current sponsoring business.[49]
[48] CB 395, [71], [73])
[49] CB 395, [72], [74]
The Tribunal summarised its previous observations, finding that Mr Heo was originally sponsored by a business partly owned by his brother and that despite ceasing employment, his visa was not cancelled when the business went into liquidation in October 2009.[50] The Tribunal found the second subclass 457 visa granted on 10 August 2011 was valid until 10 August 2015 but Mr Heo ceased his employment in May 2013.[51]
[50] CB 396, [75]
[51] CB 396, [76]
The Tribunal had serious concerns about the current employment offer, finding that a simple enquiry with the Minister’s Department would have confirmed whether he could work for J Clover while awaiting the outcome of the nomination application. It found that if there was a genuine and “desperate” need for Mr Heo’s employment (as Mr Cho claimed) the business would have made those enquiries.[52]
[52] CB 396, [77]
Having regard to Mr Heo’s individual tax returns, the Tribunal found Mr Heo generated income working under his own business name (Hope Tiling Services) during the time he claimed to have worked for Ezion Geber.[53] The Tribunal afforded little weight to Mr Heo’s tax assessments for 2005, 2006, and 2007 as evidence that he worked for Ezion Geber rather than his own business, observing that the tax returns were only lodged on 22 June 2018 after the Tribunal pointed out there was a lack of evidence about his employment at Ezion Geber.[54]
[53] CB 396, [78]
[54] CB 396, [79]
The Tribunal was not satisfied Mr Heo’s work experience provided him with the necessary skills to perform the nominated role. It was not satisfied he had the skills and employment background necessary to perform the tasks of the nominated occupation and found he did not meet clause 457.223(4)(da).[55] It found Mr Heo did not make claims with respect to the other streams for the visa.[56] It found that as Mr Heo did not meet the primary criteria for the grant of the visa, the dependent applicants did not meet the secondary visa criteria.[57]
[55] CB 396, [80]
[56] CB 396, [81]
[57] CB 396, [82]
The current proceedings
These proceedings began with a show cause application filed on 4 September 2018. No amended application was filed but the applicants’ representative filed an outline of submissions on 4 March 2020 which departed significantly from the grounds in the application. At the trial on 16 March 2020 I enquired of the applicants’ representative which grounds in the application were still being pressed. It transpired that only paragraph 5 is still pressed. That ground states:
In paragraph 79, the clearly stated as follows, "I give little weight to the applicant's Notices of Assessment for 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.". This statement by the presiding member constitutes error of law because the AAT review is merits review and the presiding member is legally bound to consider every bit of information submitted before the decision is made. As these notices of assessments for 2205, 2006 and 2007 are significant evidence going towards his work experiences, the presiding member must have given full weight in considering applicant's case.
(errors in original)
In addition to the court book filed on 30 October 2018, the applicants tendered at the trial the affidavit of Woon Hak Seo made on 4 December 2018 and the annexed transcript of the Tribunal hearing.
Consideration
As noted above, the visa applications in this matter were made on 7 August 2015. The Tribunal decision was made three years later. At the time of the Tribunal decision, there had been a dubious change of sponsor and the related sponsoring business application had not been decided by the Minister’s Department. It is apparent from what the Tribunal stated at [70]-[72][58] that the presiding member was somewhat frustrated by being unable to deal with the matter on the simple issue of whether there was an extant sponsor.[59]
[58] CB 395
[59] I was told at the trial that the sponsorship application was in fact granted after the Tribunal decision but has now expired
It is also apparent from what the Tribunal states at [77][60] that the Tribunal was seriously concerned about the employment arrangements for Mr Heo and, more generally, whether the visa class which he had held previously had been abused. Indeed, in my view this case presents an object lesson as to the weaknesses in the administration of this visa class which led to its demise. It is not clear to me why Mr Heo was permitted to change sponsors or why the Tribunal was required to make a decision on a defunct visa class.
[60] CB 396
The critical question, however, before the Tribunal was whether Mr Heo had work experience to equip him with the necessary skills to perform the role for which he was nominated.
This issue was discussed at the Tribunal hearing, in particular at page 10 of the transcript from line 5 – line 28:
MEMBER: Mr Heo, you need to provide those documents that you’re referring to to me if you want me to accept that you worked for this company as you claimed. I need to have evidence that you actually worked there and that you’ve been paid by that company for full-time work. At the moment I have nothing. I only have the letter of offer. There is no employment agreement, there’s no payslips, there’s no evidence that you actually worked and that you were paid for the work at Azezion Gerber Pty Ltd. Do you understand that/
INTERPRETER: Yes, I understand.
MEMBER: Now, Mr Heo, without that evidence I cannot take into account work experience that you claim to have with Azezion Gerber Pty ltd. So if you want to rely on this work experience, this is what you should provide me: Employment agreement with Azezion Gerber payslips as evidence that you received wages from this company, your bank account statements for that relevant period as evidence that the payment was actually paid into your bank account. I understand that the company was bankrupt, but if you can find a way to obtain the work reference letter from someone who was in charge of that company which will explain exactly what you did and explain exactly the period that you worked there, then I can accept your work experience. Do you understand me?
The applicants contend that as a result of that exchange, Mr Heo was invited to provide further material to support his claimed work experience. He did provide material after the hearing (althought not what the Tribunal had asked for) and Mr Heo’s contention is that it was unreasonable for the Tribunal not to place weight on that material.
The Tribunal considered Mr Heo’s individual tax returns for the 2004-2007 financial years[61] which were lodged on 22 June 2018. According to those documents, Mr Heo generated income working under his own business name (Hope Tiling Services) that was registered on 15 December 2003. The Tribunal found that this was the same period Mr Heo claimed to have been working for Ezion Geber (the business operated by his brother). The Tribunal gave little weight to the tax returns, as they were lodged with the ATO on 22 June 2018, after the Tribunal pointed out to Mr Heo that there was a lack of evidence of his employment at Ezion Geber.[62] The weight to be attributed to evidence is generally a matter for the Tribunal.[63]
[61] CB 396, [78]
[62] CB 396, [79]
[63] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 14 per Mason J
As the Minister submits, Ground 5 alleges the Tribunal’s statement at [79][64] that it placed little weight on Mr Heo’s Notices of Assessment for 2005, 2006, and 2007 was an error of law and it was bound to consider “every bit of information submitted before it” and it ought to have given “full weight” to the evidence. This ground disputes the weight the Tribunal placed on the material before it, which does not in this case establish jurisdictional error. Further, the contention that the Tribunal was required to have regard to every item of information is contrary to accepted principle that the Tribunal does not necessarily err in overlooking evidence unless the evidence was probative in the context of its overall decision.[65] The Tribunal gave cogent reasons for refusing to place any more than “little weight” on the Notices of Assessment and its reasons do not disclose any error.
[64] CB 396
[65] Minister for Immigration v SZSRS & Anor (2014) 309 ALR 67 at [55]-[59]
While it is apparent from the Tribunal decision that the Tribunal had concerns about Mr Heo and his employers, both past and then present, the Tribunal ultimately focused on the issue it found necessary to be resolved and the conclusion reached by the Tribunal at [80][66] was open to it on the material before it. I am not persuaded that the allocation of weight to the post hearing evidence at [79] was unreasonable.
[66] CB 396
I agree in addition with the Minister’s submissions concerning futility.
Even if jurisdictional error was established in the present case (which it is not), I would refuse relief in the exercise of discretion on the basis that it would futile to remit the matter to the Tribunal. On 18 March 2018, the Regulations were amended by the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018) which removed subclass 457 from the class of skilled visas.
As such, it is no longer possible for an employer to seek approval of a nomination to sponsor a prospective subclass 457 visa holder. It was a requirement for the grant of a subclass 457 visa that the nomination of the occupation in relation to Mr Heo had been approved under s.140GB of the Migration Act, and that nomination had not ceased as provided for in regulation 2.75.[67]
[67] clause 457.223(4)(a); Salh & Anor v Minister for Immigration & Anor [2019] FCCA 2096; Kumar v Minister for Home Affairs & Anor [2019] FCCA 1594; Patel & Ors v Minister for Immigration & Anor [2020] FCCA 360
If the matter was remitted to the Tribunal, it would be bound to affirm the decision under review as Mr Heo would be unable to meet clause 457.223(4)(a)(iii).
The applicants have failed to establish that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed.
I will hear the parties as to costs.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 6 April 2020
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