Liu (Migration)

Liu (Migration) [2019] AATA 5768 (10 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Jun Liu
Ms Xia Chen
Miss Ying LIU
CASE NUMBER:  1801891
DIBP REFERENCE(S):  BCC2016/4302374
MEMBER:Jennifer Cripps Watts
DATE:10 December 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:
·cl.457.223(4)(da) of Schedule 2 to the Regulations; and
·cl.457.223(4)(e) of Schedule 2 to the Regulations
Statement made on 10 December 2019 at 5:10pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – skills assessment – no formal qualifications – credible evidence provided – demonstrated skills to perform task – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 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 20 December 2016.
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 12 January 2018 on the basis that cl.457.223(4)(da) was not met because the delegate was not satisfied that the applicant demonstrated that he had the skills necessary to perform the approved nominated occupation.
On 27 July 2019, the Tribunal invited the applicant to attend a scheduled hearing on 2 September 2019. On behalf of the applicant, his migration agent, Mr James Zhao, requested a postponement so the applicant could complete a skills assessment. The postponement was granted and a second hearing invitation sent inviting the applicant to attend a hearing scheduled on 3 October 2019.
The applicants appeared before the Tribunal on 3 October 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
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) and cl.457.223(4)(e).
The applicant is the subject of a nomination, by Zluxez (Australia) Pty Ltd (the sponsor), that was approved on 17 July 2017. The Subclass 457 visa application was made on 20 December 2016, refused on 12 January 2018 and a review application lodged on 24 January 2018.
The review application was applied for by the visa applicant within 12 months after the day on which the nomination was approved and before 18 March 2018 (the commencement day).
The Explanatory Statement to the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 states that the purpose of subclause 6704(15) is to ensure that a nomination linked to a Subclass 457 visa application will not cease while the Tribunal carries out the review of a decision to refuse the visa (the applicant’s submission). As the nomination had not already ceased by operation of r.2.75(2)(b), by the commencement date, the saving provisions apply in this matter.
The Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018
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 Program or Project Administrator, Australian and New Zealand Standard Classification of Occupations (ANZSCO) 511112.
The applicant did not provide a skills assessment when requested to do so by the Department, when his visa application was being assessed in 2017. Reasons were given by him, primarily that he was not able to upload a suitable qualification to the Vetassess application because he does not have a higher education qualification, but, in any event, he claimed one was not necessary.
The Subclass 457 visa program has been repealed and replaced by the Subclass 482 visa program. It is no longer possible for an applicant for a 457 visa to obtain a skills assessment for migration purposes through the Trades Recognition Australia (TRA) program. The Tribunal has had regard to the documentary and oral evidence, including written submissions from Mr Zhao, to decide whether the applicant has demonstrated that he possesses the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.
The description of the nominated occupation of Program or Project Administrator, ANZSCO 511112 is as follows:
‘CONTRACT, PROGRAM AND PROJECT ADMINISTRATORS plan and undertake administration of contracts, organisational programs, special projects and support services.’
It is indicated in the ANZSCO that most occupations in Unit Group 5111 have an indicative Skill Level in Australia commensurate with an AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2) or that at least three years of relevant experience may substitute for the formal qualifications listed above.
The ANZSCO lists the tasks for someone carrying on the occupation as including:
odeveloping, reviewing and negotiating variations to contracts, programs, projects and services
oresponding to inquiries and resolving problems concerning contracts, programs, projects, services provided, and persons affected
omanaging paperwork associated with contracts, programs, projects and services provided
oworking with Project Managers, Architects, Engineering Professionals, owners and others to ensure that goals are met
oadvising senior management on matters requiring attention and implementing their decisions
ooverseeing work by contractors and reporting on variations to work orders
opreparing and reviewing submissions and reports concerning the organisation's activities
ocollecting and analysing data associated with projects undertaken, and reporting on project outcomes
oreviewing and arranging new office accommodation
The applicant confirmed, when he attended the Tribunal hearing, that he did not have any formal qualifications. He has provided evidence that he has worked for the sponsor holding 457 visas since 2008. In 2008 he was granted the visa on the basis of the occupation of Wood Tradesperson, to December 2012. In 2012, the applicant was granted a second 457 visa in the occupation of Program or Project Administrator and, in 2016, applied for 457 visa in the same occupation. That application was refused and is the subject of this review.
With regard to the indicative skill level for the nominated occupation, as described in the ANZSCO, the applicant, as he has no formal or educational qualifications, is relying on having three or more years’ relevant work experience to meet the criteria as required in cl.457.223(4) of Schedule 2 to the Regulations.
The Tribunal accepts that the applicant has worked for the sponsor, nominated as a Program or Project Administrator, from 2012 to date. In a statement signed by He Ping Zhang, dated 17 May 2017, Mr Zhang says that after the applicant had been working for them as a Wood Tradesperson from 2008 to 2012, they needed to ‘maintain and further develop business’ and that they eventually nominated him for the occupation of Project Administrator which, he says, can ‘play a leading role in our production team’’.
The applicant has provided, among other documents, his CV, photographs of carpentry or building work the company does and that he says relates to him in his capacity as a Project Administrator. The Tribunal accepts that from 2008 to 2012 the applicant worked for the sponsor as a Wood Tradesperson, as he did in China before coming to Australia, and that he progressed, with that experience into the role of a Project Administrator for a business that manufacture cabinets and furniture in their workshop and then install their products for clients in offices, retail shops and residential buildings.
At the Tribunal hearing, the applicant gave evidence that business has employees in several occupations, including some who are ‘responsible for painting, moving timber work, and machine operation for cutting timber plank or timber board or putting something around the corner or frame of the timber work’.
At the end of the Tribunal hearing, the applicant was asked to provide additional documents, specifically PAYG summaries and references from the director and managers of the business. He provided:
a.PAYG 2019 indicating an annual salary of $54,080
b.ATO tax assessment notices for 2016, 2017, 2018 and 2019
c.Commonwealth Bank statement showing salary deposits for the applicant’s wages
d.Letter from the sole director and secretary of Zluxez, Mr Heping Zhang, dated 15 October 2019, who describes the duties the applicant has undertaken as a Project Administrator from 2012 to 2019, which align substantially with duties described in the ANZSCO
e.Letter from the applicant’s line boss, Mr Wei Qiang Lin, Project Manager, dated 14 October, describing the responsibilities the applicant has for the overall administration of each project, which includes material preparation, project administration, cabinet and furniture design and drawing, staff arrangement, organising production and installation.
f.Letter from General Manager, David Wang, dated 14 October 2019, explaining why it is essential that a Project Administrator should have woodworking skills or qualifications and describes the relevant competencies of the applicant that align substantially with duties described in the ANZSCO
The Tribunal is satisfied that the applicant gave credible evidence about his role and the duties he performs which was corroborated in the statements provided after the hearing, and is satisfied that he has in excess of three years relevant on-the-job experience working full-time in the role of Project Administrator performing tasks that are substantially aligned with the occupation as it is described in the ANZSCO.
On the evidence, including the applicants’ oral evidence given at the hearing and the documentary evidence provided, the Tribunal is satisfied that applicant has, and has demonstrated he has, the skills, qualifications and employment background necessary to perform the tasks of the nomination.
For these reasons the applicant satisfies the requirements of cl.457.223(4)(da) and cl.457.223(4)(e).
Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 457 visa.
DECISION
The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:
·cl.457.223(4)(da) of Schedule 2 to the Regulations
·cl.457.223(4)(e)
Jennifer Cripps Watts
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.

[2019] AATA 5768

10 December 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction