Ju (Migration)

[2023] AATA 4170

Ju (Migration) [2023] AATA 4170 (5 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Pyeonggang Ju

REPRESENTATIVE:  Mr Woon Hak Seo (MARN: 0211283)

CASE NUMBER:  2109467

HOME AFFAIRS REFERENCE(S):          BCC2018/5733763

MEMBER:P. Maishman

DATE:5 December 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant Temporary Skill Shortage (Class GK) visa.

Statement made on 05 December 2023 at 12:13pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – medium-term stream – wall and floor tiler – working in nominated occupation for 2 years – statement by former employer in home country but no verifiable records – cash payments and no declaration to tax office – many other duties – previous employment not included in application and first claimed in response to department’s invitation to comment – certificate contains no details of duties – response to hearing invitation did not contain information addressing s 359 request – loss of right to hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 359C, 360(3), 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 482.231

CASE
Hasran v MIAC [2010] FCAFC 40

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 July 2021 to refuse to grant the visa applicant a Temporary Skill Shortage (Class GK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 19 December 2018. At that time, Class GK contained one subclass: Subclass 482 (Temporary Skill Shortage). The criteria for a Subclass 482 visa are set out in Part 482 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Applicants seeking to satisfy the primary criteria for the visa must meet the ‘Common criteria’ and the criteria of one of three alternative streams: the Short-term stream, the Medium-term stream, or the Labour Agreement stream. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. In this case, the applicant is seeking the visa in the Medium-term stream to work in the nominated occupation of Wall and Floor Tiler (ANZSCO 333411).

3. The delegate in this case refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of cl 482.231 of Schedule 2 to the Regulations because the delegate was not satisfied the applicant demonstrated he had worked in the nominated occupation, or a related field, for at least 2 years.

4. On 7 August 2023, the Tribunal wrote to the review applicant pursuant to s 359 of the Act, inviting the him to provide information about working in his nominated occupation, or a related field, for at least two years in writing.

5. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 21 August 2023, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. On 13 August 2023, the applicant responded to the Tribunal’s invitation to attend a hearing on 31 August 2023, indicating documents upon which he intended to rely at the hearing would be lodged by 24 August 2023. The applicant submits his hearing response was within the s 359 prescribed period and is an adequate response so that his hearing rights are retained. The Tribunal does not agree with the submission as the response to the hearing invitation did not include any information addressing the s 359 request, namely information about his employment history relevant to his nominated occupation.    

7. The review applicant did not provide the information requested on 7 August 2023 within the prescribed period and no extension has been granted. In these circumstances, s 359C applies and pursuant to s 360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal decided to cancel the listed hearing and on 22 August 2023 advised the applicant of the loss of his right to a hearing. The Tribunal invited the applicant to provide any further information upon which he sought to rely by 29 August 2023 after which time the Tribunal would proceed to make its decision without taking further steps to obtain the information.

8. For the following reasons, the Tribunal has decided that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The Tribunal had before it a copy of the Department’s file containing the visa application and documents provided by the applicant in support of the application. The Department’s file contains the visa application and documents provided by the applicant.  

10. The applicant gave the Tribunal a copy of the delegate’s decision record with his application for review. On 23 August 2023, the applicant gave the Tribunal a translated letter dated 21 August 2023 from Jeongbok Kim, the managing director of Haevaragi Housing. On 29 August 2023, the applicant gave the Tribunal written submissions; a statutory declaration a letter from the applicant sponsor; number of photographs; an organisation chart; and a further letter from Jeongbok Kim, the managing director of Haevaragi Housing dated 27 August 2023.      

    Background

11. The applicant’s visa application discloses he is a 38-year-old South Korean national. On his visa application he detailed his previous five years’ work history was with Haevaragi Housing, South Korea, as a full-time wall and floor tiler from 10 August 2014 to 30 August 2017. The applicant provided an employment certificate from Haevaragi Housing dated 15 December 2018 certifying he worked as a wall and floor tiler during those claimed dates. The applicant claimed his education history was a Bachelor’s Degree in Industrial Management and English from 25 February 2004 to 15 February 2014. No evidence of the applicant’s educational qualifications was provided.  

12. On 6 November 2019, the Department invited the applicant in writing to provide information in support of his application including, but not limited to, evidence of his qualifications; his curriculum vitae; evidence of his skills; and evidence of work experience.

13. The applicant responded on 27 November 2019 and provided a CV containing information correlating with the education and employment information provided on his visa application; the same employment certificate from Haevaragi Housing dated 15 December 2018; and a letter dated 25 November 2019 from David Cho, the business director of the applicant’s sponsoring employer, J Clover Tiling, claiming to have verified and confirmed the applicant’s skills and providing his opinion that it would be unnecessary for the applicant to obtain a Certificate III in wall and floor tiling because he clearly has the skills.

14. On 8 July 2020, the delegate wrote to the applicant and invited him to comment on what it considered appeared to be unfavourable information:

    The department has conducted checks to verify the employment details in the employment letter provided by you with this application. The department has contacted your former employer who has stated that while you did work for him, he had no records and did not declare you as an employee to the Tax Office. He stated he had paid you in cash and was not sure of the specific dated (sic) of employment, but that is was about 3 years. He further stated that you would not likely be able to get an official tax asessment (sic) from the government to further verify your employment.

    The employer also stated that actual tiling was only part of your role and that as the business was small, many other duties were performed and tiling was about 50% of the role. He stated that you commenced with him as a trained experienced tiler, however the only employment declared by you in the application was with that employer. As the employer is not able to verify your employment with any documented evidence I have concerns regarding whether this was a legitimate role.

    As the details of your employement (sic) and experience are not verifyable (sic) through any legitimate source, I have serious concerns about your qualifications and experience for this role.
    [8reated on 03/08/2023 11:43:03
    Further you have not provided any further evidence of prior relevant employment, or
    evidence of training or education.

    As neither you nor your employer have yet, or will likely not be able to verify this
    employment, I have concerns that the infomation (sic) provided in the employment letter provided may not be accurate. Further as you have not provided any other evidence of experience or relevant qualifications and education I am not satisfied you have the relevant qualifications and work experience for the current role.

15. On 5 August 2020, the applicant provided a written response claiming to have only submitted his most recent work experience. The applicant submits he also worked for Seungdo Construction Ltd as a wall and floor tiler between 3 October 2011 and 31 March 2014. The applicant provided an employment certificate dated 23 July 2020 purporting to be from the director of Seungdo Construction Ltd as confirmation of his employment. The applicant also provided a letter dated 3 August 2020 from David Cho, the business director of the applicant’s sponsoring employer, J Clover Tiling, certifying the applicant has the skills to perform the nominated position of wall and floor tiler based on his assessment of the applicant’s skills.

16. The delegate did not accept the applicant’s evidence of his work experience and refused the application.

    Requirement to have worked for at least 2 years

17. Clause 482.231 requires that the applicant has worked in the nominated occupation or a related field for at least 2 years.

    The applicants evidence

18. The Tribunal had regard to the employment history declared by the applicant on his visa application submitted by his migration agent on 19 December 2018. In response to the question to provide details of his employment history for the previous five years the applicant recorded employment only at Haevaragi Housing between 10 August 2014 and 30 August 2017.

19. On 4 August 2020, the applicant responded to the Department’s invitation to address concerns arising from its communication with the director of Haevaragi Housing. The applicant claimed additional Wall and Floor Tiler employment with Seungdo Construction Ltd from 3 October 2011 to 31 March 2014. The applicant claimed he did not declare this employment because it was difficult to contact the employer to obtain a reference or employment certificate. The applicant confirmed his claim he has the requisite skills to perform the position of Wall and Floor Tiler.

20. The applicant submitted a statutory declaration signed 28 August 2023 reiterating his claim to have worked for Haevaragi Housing and outlining the tiling tasks he undertook.    

    Work Experience at Haevaragi Housing.

21. The employment certificate provided by Mr Kim of Haevaragi Housing dated 15 December 2018 specifically records the applicant’s Wall and Floor Tiler employment between 10 August 2014 to 30 August 2017.  

22. The delegate described the Department’s telephone contact with Mr Kim who told an officer the applicant was employed for about three years but he had no records and could not be sure of the specific dates of the applicant’s employment; he did not declare the applicant as an employee to the tax office; that the applicant commenced his employment as an already trained tiler; and that tiling was about 50% of the applicant’s role.  

23. Mr Kim clarified in his letter dated 21 August 2023 that many technicians and labourers are not formally hired as full-time employees in South Korea. Mr Kim claims employers do not want to go through the process of engaging full time employees because employees often only work for a short period before they move to another job. Mr Kim claimed the applicant worked about 50 hours per week and at least 38 of those hours were engaged with tile work.

24. Mr Kim provided a further letter addressed to the Tribunal dated 27 August 2023 reiterating the applicant was employed during the period 10 August 2014 to 30 August 2017. Mr Kim claims the applicant told him it was always his dream of getting a job as a tiler in Australia. Mr Kim said the applicant worked hard to learn new skills and looked at tile books to do so.

25. The evidence of Mr Kim is that there are no formal or official records of the applicant’s employment with Haevaragi Housing. Given the lack of records, the Tribunal has reservations that Mr Kim could, with any accuracy, recall specific dates or duration the applicant was employed, or the tasks the applicant undertook or the time allocated to specific tiling related tasks undertaken by the applicant some six years previously. The Tribunal is concerned Mr Kim’s certification of the applicant’s duration of employment has been contrived to meet the minimum relevant experience requirements in substitution for formal qualifications as described in ANZSCO.

26. The veracity of Mr Kim’s certification of the applicant’s employment experience is unable to be tested or authenticated as there are no formal records of the applicant’s employment. Accordingly, the Tribunal gives no weight to the certification of Mr Kim on behalf of Haevaragi Housing as evidence the applicant has worked in the nominated occupation or a related field for at least 2 years.

    Seungdo Construction Ltd employment.    

27. On 4 August 2020, in response to the Department’s invitation to comment on adverse information, the applicant first claimed to have worked for Seungdo Construction Ltd in the period 3 October 2011 to 31 March 2014. The applicant provided an employment certificate dated 23 July 2020.          

28. The applicant did not include employment with Seungdo Construction Ltd on his visa application form despite his subsequent claim to have been employed with them within five years prior to his visa application.  

29. The applicant did not include employment with Seungdo Construction Ltd on his initial CV given to the Department 27 November 2019.  

30. The Tribunal attributes no weight to the employment certificate from Seungdo Construction Ltd. The Tribunal finds it is implausible that an applicant would not disclose all relevant work  experience to demonstrate his skills in lieu of holding certificate qualifications, albeit there being some difficulty formalising a reference. Additionally, the certificate contains no detail of the tasks or duties the applicant is certified as having undertaken that could be compared to the duties described in ANZSCO.

    The sponsors evidence.    

31. The Tribunal considered the letters provided by Mr David Cho, the business director of the applicant’s sponsor J Clover Tiling Pty Ltd, dated 25 November 2019; 3 August 2020; and 26 August 2023.   

32. The Tribunal attaches no weight to Mr Cho’s claim the applicant has five years full time work experience in South Korea. Mr Cho has not spoken to the applicant’s previous employer. Aside from his discussions with the applicant and their mutual agreement of tiling similarities between South Korea and Australia, there is no evidence that Mr Cho has observed the applicant to have been employed as a Wall and Floor Tiler, or in a related field, for two years.

33. The Tribunal is not satisfied the applicant has worked in the nominated occupation of Wall and Floor Tiler, or a related field, for at least two years.   

34. For these reasons, cl 482.231 is not met.

35. As one of the essential requirements for the visa is not met, the decision under review must be affirmed

    DECISION

36. The Tribunal affirms the decision not to grant the applicant Temporary Skill Shortage (Class GK) visa.

    P. Maishman
    Member