Sin (Migration)

[2019] AATA 4012

Sin (Migration) [2019] AATA 4012 (2 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Kong Cho Joe Sin
Ms Yee Wan Yvonne AU YEUNG

CASE NUMBER:  1709526

DIBP REFERENCE(S):  BCC2016/3206275

MEMBER:Amanda Mendes Da Costa

DATE:2 September 2019

PLACE OF DECISION:  Melbourne

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 criteria for a Subclass 457 visa:

cl.457.223(4)(da) of Schedule 2 to the Regulations.

The Tribunal directs that the second named applicant meets the criteria for a Subclass 457 visa as a member of the family of a person who has satisfied the primary criteria.    

Statement made on 02 September 2019 at 11:54am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Printing Machinist – skills, qualifications, employment background – significant work experience – three years relevant experience may substitute formal qualification – 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

1. 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).

2. The visa applicants applied for the visa on 27 September 2016.

3. 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.

4. The delegate refused to grant the visas on 29 April 2017 on the basis that cl.457.223(4)(da) was not met because the delegate was not satisfied that the first named applicant had the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of Printing Machinist.

5. The applicants appeared before the Tribunal on 12 July 2019 to give evidence and present arguments.  

6. The applicants were represented in relation to the review by their registered migration agent.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(da) of Schedule 2 to the Regulations.

   Skills, qualification and employment background of the applicant

9. 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 this case the nominated occupation is Printing Machinist.

10. The Australian and New Zealand Standard Classification of Occupations (ANZSCO) specifies that the indicative skill level for the occupation of Printing Machinist ANZSCO 392311 is an Australian Qualifications Framework (AQF) Certificate III including at least two years of on-the-job training or an AQF Certificate IV.  At least three years of relevant experience may substitute for the formal qualification.

11. The Tribunal notes that the first named applicant provided the Department with a completion certificate for a course in Woven Fabric Analysis and Design which was completed part-time over 40 hours.   It further notes that the first named applicant has completed 1 and a half years of study at Deakin University in Victoria, towards a business degree, although he has not graduated.

12. The first named applicant told the Tribunal that he had been operating his own business, based in Hong Kong, since 2008.  He said this business provided digital printing machines and products to customers located primarily in Hong Kong and Macau.  He communicates with these customers from Australia by email and by telephone.

13. The first named applicant explained that he currently provides some services to Banana Productions Pty Ltd which previously had an approved nomination for a position for the first named applicant, although he is not employed by that company.  The first named applicant explained that he arranged the service of the company’s printing machinery, which he had previously sold to the company.

14. The Tribunal notes that ANZSCO describes the role of a Printing Machinist as involving the  set-up and operation of letterpress, lithographic, flexographic, gravure, newspaper, instant and digital and offset printing presses.  The tasks associated with the occupation include:

    ·setting, adjusting and monitoring substrate-feed mechanisms, delivery mechanisms, inking systems and other printing machine functions;

    ·mixing ink and solvents to standard, and regulating paper and ink supply during print runs;

    ·monitoring, evaluating and determining press operations manually and by computer to check pint quality standards against proofs and detect malfunctions;

    ·producing a variety of printed products using relief, lithographic, flexographic and gravure printing presses and in the finishing systems;

    ·preparing plates, blankets and impression cylinders on small offset lithographic printing presses;

    ·loading paper into feeding mechanisms;

    ·monitoring machine operations and quality of printing;

    ·undertaking maintenance, adjustment repair and cleaning of machines;

    ·producing and managing digital print images, and transferring and outputting images; and

    ·may set-up and operate paper and bookbinding guillotines.

15. The first named applicant provided the Tribunal with written submissions dated 17 July 2019 which may be summarised as follows:

    ·He had seven years’ experience in the digital printing industry, including employment with Far East Factory (HK) Ltd where he worked between 1997 and 2005 as a Production Technician for a business specialising in the production of garments.

    ·Between 2005 and 2008 the first named applicant operated his own business (Billion Wealth Industrial Ltd), selling accessories such as zips, buckles, buttons and handbag fasteners, on a wholesale basis.

    ·From 2008 until 2009 the first named applicant was employed by Yung Shiang International Ltd , a company providing digital garment printing.  The first named applicant worked in technical areas as a technician in the Asia Pacific Division of the company.  He assisted customers with technical errors in both software and hardware.  His skills included installing and uninstalling printer heads and printer motherboards, firmware updates, software installations and printer serving networking.  He was subsequently promoted to the technical sales division of the company.

    ·In 2008 the first named applicant established his current printing business, focusing on digital fabric printing with dye sublimation.  His services involve printing sports jumpers, flags, billboards and large casino tablecloths.  The technology used by the applicant enables his business to print small volume custom jobs in a large size format.

    ·The first named applicant records training videos for customers, which demonstrate the use of the printing machines sold by the applicant.

16. The applicant further submitted that the change in technology to digital printing means that the tasks performed by a printing machinist are likely to evolve to meet the demands of such technology.

17. Based on the evidence before it, the Tribunal is not satisfied that the first named applicant’s course (completed over 40 part-time hours) is comparable to at least an AQF Certificate III.  However, it does accept that the first named applicant’s work in the digital printing industry for more than three years shows that he has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of Printing Machinist.  

18. For these reasons the first named applicant satisfies the requirements of cl.457.223(4)(da).

19. In relation to the second named applicant, the Tribunal finds that as the first named  applicant does satisfy the criteria for grant of a temporary Business Entry (Class UC), the second named applicant meets the criteria for a Subclass 457 visa as a member of the family unit of a person who has satisfied the primary criteria.

    DECISION

20. The Tribunal remits the application for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for 457 visas:

    ·cl.457.223(4)(da) of Schedule 2 to the Regulations.

    Amanda Mendes Da Costa
    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.