Li (Migration)

Li (Migration) [2022] AATA 3301 (15 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Hui Li
REPRESENTATIVE:  Ms Fang Liu (MARN: 1463212)
CASE NUMBER:  1919366
HOME AFFAIRS REFERENCE(S):          BCC2018/957637
MEMBER:Warren Stooke AM
DATE:15 August 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.
Statement made on 15 August 2022 at 3:53pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457– Standard Business Sponsor stream – Electrician (General) – applicant does not perform the tasks described in the Electrician (General) – applicant does not possess an electrical licence – applicant has not been assessed by Trade Recognition Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 457.223

statement of decision and reasons
application for review

This is an application for review of a decision of a delegate of the Minister for Home Affairs to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 28 February 2018.
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 (Cth) (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 visa on 16 July 2019 on the basis that cl 457.223(4) was not met because the delegate was not satisfied that paragraph (a) of subclause 457.223(4) of Schedule 2 of the Migration Regulations is satisfied.
The applicant appeared before the Tribunal on 21 July 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the nominating sponsor, Mr Tao, the owner of Newcastle Glass Pty Ltd. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review.
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) of an approved standard business sponsor for the nominated position of Electrician (General) – ANZSCO Code: 341111.
Requirement for an approved nomination
Clause 457.223(4)(a) requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased. In this regard, the nominated occupation is Electrician (General) – ANZSCO Code: 341111.
The applicant provided evidence that he is not currently employed by Newcastle Glass Pty Ltd and that he left the company after the refusal of his visa application on 19 July 2019. He stated that he is currently working as a Solar panel installer in Sydney.
The applicant stated that he does not have an A Grade licence that permits the nominee to work on live electrical equipment for the nominated occupation of Electrician (General) – ANZSCO Code: 341111 and has not undertaken a skills assessment with Trades Recognition Australia.
Evidence of Mr Chun Hua Tao (the nominating sponsor)
The applicant stated that when he worked with Newcastle Glass he was doing some servicing of equipment; assisting with installations and adjusting machines with some maintenance of the blowers, the cutting machine and maintaining the heat toughening process on the glass; equipment repairs; temperature repairs, which were checked by a licenced electrician.
The nominating sponsor provided evidence of registration of Newcastle Glass Pty Ltd with ASIC and an assigned ABN: 15 612 203 497 that was granted on 4 May 2016.
The nominating sponsor submitted that Newcastle Glass Pty Ltd was registered on 4 May 2016 and started trading to offer glazing services from September 2016 and that Newcastle Glass is striving for becoming the best glass provider in Newcastle and surrounding areas in NSW and it is specialized in wholesale glass to the construction industry.
The nominating sponsor provided evidence of an approved standard business sponsorship dated 10 May 2018 that ceases on 10 May 2023 for the nominated occupation of Electrician (General) – ANZSCO Code: 341111.
The nominating sponsor provided a copy of an organisation chart where the nominated position of Electrician (General) reports to the Production Engineer, and evidence was provided that the Production Engineer is not electrically qualified.
The nominating sponsor provided a copy of the employment contract between the business and the nominee dated 27 February 2018 that applies from the grant of a 457 visa, with a salary of $63,000 and superannuation of 9.5 per cent.
The nominating sponsor provided evidence of a new contract dated 23 June 2022.
The nominating sponsor stated that the business’s main activity is to purchase glass from his native country, China, and then manufacture, cut, drill and perform other processes. The business also purchases glass from Melbourne.
The nominating sponsor stated that the process includes glass sizes from 3660mm x 2440mm in thicknesses of 4 to 12mm for cutting. The nominating sponsor stated that they do not undertake installation.
The nominating sponsor provided evidence that the business employs 32 employees that includes: Citizen/PR =21, Temporary Visa=11 (4x 457/482 visa, 4xStudent visa, 2x Bridging Visa).
The nominating sponsor stated that the Manufacturing and Associated Occupations Industry Award applies to employees in the business.
The nominating sponsor provided evidence that the employees were given a Fair Work Information Statement at the time of employment.
The nominating sponsor provided evidence that the responsibilities and duties of the nominated position, includes the following:
“Designing, installing, testing, connecting, commissioning, maintaining and modifying electrical or electronic wiring and control systems by using hand tools and power tools.
1.Working with the Production team to plan and undertake electrical work including fault diagnosis, testing and commissioning.
2.Reading and interpreting plans and specifications, determining the correct sequences and methods.
3.Assembling and installing electrical system to power supply and testing continuity of circuit.
4.Planning layout and measuring installation with reference points based on job specifications and local codes.
5.Selecting, cutting and connecting wires to circuit breakers, transformers, or other components.
6.Inspecting electrical systems, equipment & machinery, and components on schedule to identify hazards, defects, and the need for adjustment or repair, and to ensure compliance with codes.
7.Repairing and maintaining all facility and production machinery and equipment that encompass electrical components.
8.Maintaining controls and improve manufacturing equipment and glass machinery.
9.Providing skilled electrical support to all areas of manufacturing.
10.Assisting Production Engineer with technical troubleshooting for electrical.
11.Assisting and training other maintenance and/or other technical level employees.
12.Participating in and provide support for team initiatives in the areas of Safety, Quality and Productivity.”
The nominating sponsor stated that he had no in-depth discussion with the applicant in 2019, as his business partner was involved in the recruitment.
The Tribunal asked the nominating sponsor to identify the tasks performed by the applicant as an employee of the business in the claimed occupation of Electrician (General) – ANZSCO Code: 341111 and the evidence included that the applicant’s duties included the following tasks:
oexamining blueprints, wiring diagrams and specifications to determine sequences and methods of operation
omeasuring and laying out installation reference points
oselecting, cutting and connecting wire and cable to terminals and connectors
ousing electrical and electronic test instruments to trace and diagnose faults
orepairing and replacing faulty wiring and defective parts
opositioning and installing electrical switchboards
oconnecting electrical systems to power supply
otesting continuity of circuit
The nominating sponsor stated that the applicant does not perform the following tasks described in the Electrician (General) – ANZSCO Code: 341111 given that the applicant does not possess an electrical licence and has not been assessed by Trade Recognition Australia
:
opositioning and installing electrical switchboards (the nominee does the preparatory work but does not have an A grade licence yet);
oconnecting electrical systems to power supply.
The nominating sponsor stated that the position is full-time and will have a salary of $73,000.
The nominating sponsor provided evidence that the applicant undertook an IELTS English language test on 17 January 2017 with an overall score of 5.0 and 4.5 for speaking.
The nominating sponsor provided evidence with respect to the duties of the applicant, as an employee of the business in the claimed occupation of Electrician (General) – ANZSCO Code: 341111, that included the following tasks:
oexamining blueprints, wiring diagrams and specifications to determine sequences and methods of operation
omeasuring and laying out installation reference points
oselecting, cutting and connecting wire and cable to terminals and connectors
ousing electrical and electronic test instruments to trace and diagnose faults
orepairing and replacing faulty wiring and defective parts
opositioning and installing electrical switchboards
oconnecting electrical systems to power supply
otesting continuity of circuit
The nominating sponsor stated that the applicant does not perform the following tasks that are included in the applicant’s tasks performed for the business:
opositioning and installing electrical switchboards (the applicant does the preparatory work but does not have an A grade licence at the time of decision);
oconnecting electrical systems to power supply.
On the basis of the evidence provided by the nominating sponsor and applicant to the Tribunal and the decision of the Tribunal in Case Matter 1917318, relating to the nominating sponsor, which affirmed the decision of the delegate not to grant the nomination, the Tribunal is not satisfied that the applicant has a approved standard business sponsor for the nominated occupation of Electrician (General) – ANZSCO Code: 341111.
For these reasons the requirements of cl 457.223(4)(a) are not met.
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.
decision
The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.
Warren Stooke AM
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.

[2022] AATA 3301

15 August 2022

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Statutory Construction

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