Wong (Migration)

[2021] AATA 2419

Wong (Migration) [2021] AATA 2419 (25 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chun Wong

CASE NUMBER:  1817643

HOME AFFAIRS REFERENCE(S):          BCC2017/954266

MEMBER:Katie Malyon

DATE:25 June 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 visa:

·cl 457. 223(4)(da) of Schedule 2 to the Regulations

Statement made on 25 June 2021 at 5:47pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – skills, qualifications and employment background to perform the nominated occupation – occupation of Stonemason – Stonemason apprenticeship – occupational qualifications and licence – verifying relevant work experience – union membership – decision under review remitted  

LEGISLATION

Migration Act 1958, ss 57, 65, 359, 360
Migration Regulations 1994, r 2.72; Schedule 2, cl 457.223

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 29 May 2018 to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, Hong Kong national Mr Chun Wong, applied for the visa on 10 March 2017. 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).  Relevant extracts are set out in the Attachment to this decision.

3. The delegate refused to grant the visa on the basis that cl.457.223(4)(da) of the Regulations was not met because, although Mr Wong had been successfully nominated by approved standard business sponsor Viva Stone & Tiling Pty Ltd ABN 21 130 957 425 (Viva Stone & Tiling) for the nominated occupation of Stonemason ANZSCO 331112, the delegate found that his skills, qualifications and employment background are not commensurate with the skill level specified in ANZSCO for the nominated occupation.  A copy of the delegate’s decision was provided to the Tribunal.

4. Mr Wong was represented in relation to the review by his registered migration agent, Sherman Cheah of GEA Perth.

5. For the following reasons, the Tribunal has decided that the decision under review should be remitted for reconsideration. In reaching its decision, the Tribunal did not consider a hearing to be necessary as it was able to find in favour of the applicant on the basis of the material before it pursuant to s.360(2)(a) of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether, as at the date of this decision, the applicant meets the requirements of cl.457.223(4)(da) of Schedule 2 to the Regulations.

   Skills, qualification and employment background of the applicant

7. Clause 457.223(4)(da) of Schedule 2 to the Regulations 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 Stonemason ANZSCO 331112.

8. The delegate refused to grant the visa on the basis that evidence of Mr Wong’s claimed work experience in Hong Kong was not accepted.  At the time of lodgement of the visa application, Mr Wong provided:

   1)a Resume;

   2)a signed Work Certificate dated 31 December 2012 issued by Shing Shun Marble Maintenance Engineering Company (the Company) confirming Mr Wong completed a 1-year Stonemason apprenticeship from 1 October 2008 to 4 October 2009 and, subsequently, worked with the business as a qualified Stonemason until 31 December 2012; and,

   3)a signed Work Certificate dated 31 December 2012 issued by the Company confirming Mr Wong’s employment as a Stonemason with the business from 5 October 2009 to 31 December 2012.

9. As noted in the delegate’s decision, the Department submitted the documents referred to above in para [8] to its overseas post in Hong Kong for verification of their authenticity.  Advice was received from the Australian Embassy confirming there were concerns regarding the information provided by Mr Wong.  An internet search as well as a local phone directory search were conducted but no results were found for the Company.  Further, the Company’s phone number was not valid and, as a result, no valid contact details of the business were available.  Due to this, the Embassy’s officer was unable to verify Mr Wong’s work experience.  It was also observed that the work reference does not include the duties or tasks of Mr Wong during his (claimed) employment by the Company.

10. Consistent with s.57 of the Act, on 17 January 2018 Mr Wong was given an opportunity to comment on the adverse findings arising from referral of his documentation to the Australian Embassy in Hong Kong. In response, the following documentation was provided:

    1)signed Statement dated 23 January 2012 from Ping-kai Butt, Director of Shing Shun Marble Care (Shing Shun Marble Care) which:

    a)confirms the correct name of Mr Wong’s previous employer is Shing Shun Marble Care (not the Company) due to a translation error in the earlier letters provided;

    b)notes the website page and the Facebook page for Shing Shun Marble Care were set up in 2009 and 2014 respectively;

    c)states his phone numbers on the earlier Shing Shun Marble Care Work Certificates provided in respect of Mr Wong were replaced in 2013;

    d)refers to the following attachments:

    ·   his current and former business cards with phone numbers;

    ·   the annual Business Registration Certificate issued for Shing Shun Marble Care.

    2)signed Statement from Mr Wong dated 5 February 2018 in which he:

    a)confirms his income from 2008 to 2012 did not exceed the basic allowance of HK $108,000 meaning he was not required to pay tax and, as a result, the Inland Revenue Department did not issue any Tax Demand Note;

    b)states that, as a contractor engaged by Shing Shun Marble Care, he should have set up a mandatory provident fund himself but did not do so due to his misunderstanding that the Director of Shing Shun Marble Care, Mr Butt, had done this;

    c)notes the accompanying copies of his 3 worker registration cards:

    ·   Construction Worker Registration Card No. CWR 1101427 with his photograph;

    ·   HK Brick-Layering & Construction Trade Workers’ Union Membership card issued 23 September 2011;

    ·   Hong Kong Construction Co, Ltd site card with his photo issued 27 July 2012 and referencing the Construction Worker Registration Card No. CWR 1101427. 

    d)provides a summary of projects that he worked on between 2008 and 2012 including photographs of the sites.

    3)letter from the Hong Kong Inland Revenue Department dated 14 February 2018 confirming no Tax Return – Individuals and/or salaries tax assessment was issued to Mr Wong for FY 2007/08 to 2012/13.

11. The delegate commented on some of the documentation provided by Mr Wong.  No weight was given to the letter from the Inland Revenue Department as it merely shows Mr Wong did not lodge and/or pay tax during the period: this suggests he may not have held the claimed position.  The delegate referred to the lack of official documentation to confirm Mr Wong had been working as a Stonemason in the period claimed.  In addition, the delegate noted that there was no connection between the Company and the photographs of stonework provided and, as such, they add no weight to Mr Wong’s claims regarding his skills in the nominated occupation.  Relevantly, no comment is made by the delegate in relation to documentation provided by Ping-kai Butt, the Director of Shing Shun Marble Care.  Neither Mr Wong’s work registration cards nor Mr Butt’s letter were referred to the overseas post for authentication.  Despite this and having regard to the other evidence provided, the delegate concluded that Mr Wong’s work experience is not recognised as commensurate with the level indicated in ANZSCO for the nominated occupation of Stonemason.

12. Following refusal of Mr Wong’s Subclass 457 visa, the current application for review was filed with the Tribunal.

    s.359(2) letter

13. The Tribunal wrote to Mr Wong on 25 March 2021 and invited him to provide current information about his skills, qualifications and employment background in support of the review application.  A request was received on 7 April 2021 for an extension of time to provide the information.  The Tribunal granted an extension until 6 May 2021.

14. On 6 May 2021, the Tribunal received a detailed submission from the representative and copies of documentation previously submitted to the Department referred to above at paras [8] and [10] together with the following:

    1)a letter from the Worker Registration Board Secretariat of Hong Kong’s Construction Industry Council dated 20 June 2018 (that is, a month after the delegate’s decision) with an attached Schedule confirming use of Mr Wong’s Construction Industry Council’s Worker Registration Card No. CWR 1101427 to permit his entry to and departure from 4 different construction sites in the period from 17:45:48 on 5 August 2011 to 8:56:52 on 11 October 2012.  The different construction sites are located at:

    a)Tseung Kwan – the project was overseen by Chun Wo Elegant Decoration Eng Co Ltd in the period 5 August 2011 to 25 November 2011 and then Aggressive Construction Company Limited in the period 24 August 2012 to 28 August 2012;

    b)Yeung Uk Rd, Tsuen Wan – the project was run by Forecast Investment Co Ltd;

    c)Alnwick Rd, Kowloon – the project was overseen by Ping On Foundation Construction Ltd; and,

    d)Che King Temple Station in Shatin – the project was run by Hip Hing Builders Co Ltd;

    2)an English translation of a letter from Mr Butt confirming that Shing Shun Marble Care does professional marble care, polishes and renovates marble, water-proofing and dirt-proofing of marble services, removal of stains from and cleans marble surfaces, repairs chipped or damaged marble surfaces and fixes cracks with fine workmanship;

    3)Intermediate Trade Test Certificate issued by the Construction Industry Council to Mr Wong as a Marble Worker (Polishing) valid to 2019;

    4)letter from the Labour Relations Division of Hong Kong’s Labour Department dated 24 July 2018 in relation to a labour dispute that Mr Wong initiated regarding payment of work he had undertaken at Alnwick Rd, Kowloon for Lee Shing Marble Engineering Co Ltd who had been contracted by the main contractor, Ping On Foundation Construction Ltd.  The letter attaches a copy of the settlement reached regarding payment to Mr Wong of ‘$6,000 for salaries, over time and allowances overdue as at 25 September 2012’;

    5)reference letter from Sam Taweel, a Director of the nominator and standard business sponsor Viva Stone & Tiling based in Perth dated 7 April 2021.  The letter lists the duties undertaken by Mr Wong as a Stonemason since commencing work with the company full-time on 24 March 2017.  Mr Taweel observes that Mr Wong is a highly experienced tradesman providing the highest level of finishing to Viva Stone & Tiling’s products;

    6)Certificate III in Stonemasonry (Monumental / Installation) issued by Building Trades Australia Education & Training (RTO No. 30979) dated 29 April 2021; and,

    7)payslips from Viva Natural Stone Pty Ltd from 23 March 2017.

    Consideration of evidence

15. The ANZSCO states that the indicative skill level for the occupation of Stonemason ANZSCO 331112 in Australia is:

    AQF Certificate III including at least 2 years of on-the-job training, or AQF Certificate IV (Skill Level 3)

    At least 3 years of relevant experience may substitute for the formal qualifications listed above.  In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

16. Further, the ANZSCO states that Stonemasons cut and shape hard and soft stone blocks and masonry slabs to construct and renovate stone structures and monumental masonry.  The tasks of a Stonemason listed in ANZSCO include:

    ·   studying plans and specifications to determine materials required, dimensions and installation procedures

    ·   erecting and dismantling restricted height scaffolding

    ·   sealing foundations with damp-resistant materials and spreading layers of mortar to serve as base and binder for blocks using trowels

    ·   laying bricks in rows, designs and shapes, and spreading mortar between joints

    ·   embedding blocks in mortar and removing excess mortar

    ·   checking vertical and horizontal alignment

    ·   cutting, shaping and polishing stones and bricks using machines and hand tools, and shaping bricks to fit irregular spaces

    ·   repairing and maintaining bricks, cement blocks and related structures

    ·   designing and cutting monumental masonry and lettering

    ·   constructing walls using stone slabs and large masonry slab blocks.

17. The representative submits that there clearly was a translation error in relation to the Work Certificates which accompanied Mr Wong’s Subclass 457 visa application and that his former employer was Shing Shun Marble Care, not the Company. He attached a further copy of Ping-kai Butt’s letter dated 23 January 2018 which was lodged by Mr Wong in response to the Department’s s.57 natural justice invitation. In the view of the Tribunal, it is relevant that the delegate did not comment in the decision on Mr Butt’s letter and its attachments: nor were Mr Butt’s letter and attachments referred to the Australian Embassy in Hong Kong for further investigation.

18. The Tribunal has independently confirmed that Mr Butt continues to run the business of Shing Shun Marble Care and that Mr Wong used to work with the business.  In a telephone call with the Tribunal, Mr Butt said he could not remember exactly the dates when Mr Wong worked with the business but he recalled signing a letter setting out these details.  Mr Butt explained that it was his father (that is, Mr Butt’s father) who originally set up the business as a company but that he has run it on his own since 2013.  He confirmed that he does not directly employ any staff but that, when the business is approached for work, he can call upon up to 10 workers - like he used to do when Mr Wong lived in Hong Kong - to deliver on projects. 

19. The representative acknowledges the delegate’s statement that, had Mr Wong provided evidence of having lodged and paid tax during the relevant period, it may have been considered favourable when attempting to evidence his work experience as a Stonemason.  In response, the representative has provided the Tribunal a link to the Hong Kong Government’s website regarding obligations to pay tax which, he submits, confirms advice in the letter from the Hong Kong Inland Revenue Department referred to above at para [10(3)] that no tax was paid by Mr Wong.  Mr Wong told the Department this was because his salary was below HKD$108,000.  However, the Tribunal notes the link provided by the representative relates to salaries from 1 July 2015 to date: for FY 2015/16, the minimum annual salary above which tax is payable is HK $120,000.  As such, it does not confirm the minimum salary level in relation to the period referred to in the delegate’s decision, that is, FY 2007/08 to FY 2012/13.

20. It appears evident to the Tribunal that Mr Wong was a self-employed subcontractor who worked in Hong Kong with a range of companies including Shing Shun Marble Care.  The Tribunal accepts that, based on the letter from the Worker Registration Board Secretariat of the Construction Industry Council dated 20 June 2018 with an attached Schedule confirming use of Mr Wong’s Construction Industry Council’s Worker Registration Card No. CWR 1101427 to permit his entry to and departure from 4 different construction sites in the period from 17:45:48 on 5 August 2011 to 8:56:52 on 11 October 2011, Mr Wong subcontracted his services to Chun Wo Elegant Decoration Eng Co Ltd, Aggressive Construction Company Limited, Forecast Investment Co Ltd, Ping On Foundation Construction Ltd and Hip Hing Builders Co Ltd. 

21. It is also evident that, during his time working with Ping On Foundation Construction Ltd, there was a dispute regarding non-payment of his salary, overtime and allowances totalling $6,000 which was eventually settled on 19 October 2012 as confirmed by the Labour Department’s letter of 24 July 2018 provided to the Tribunal.

22. Based on available evidence, the Tribunal accepts that Mr Wong had, as at the date of lodgement of his visa application on 10 March 2017, some experience as a construction worker specialising as a marble worker.  The Tribunal also notes the Intermediate Trade Certificate provided to the Tribunal and the Construction Industry Council’s Construction Workers Registration Cards No. CWR 1101427, each of which have Mr Wong’s photograph.  These cards expired on 22 May 2014 and 9 December 2017 respectively.  They are valid for 5 years from payment of the application fee.[1]  As such, it appears Mr Wong held the first of his Construction Worker Registration cards since May 2009 consistent with evidence provided to the Department. 

    [1] >

    Having regard to available evidence the Tribunal is satisfied that, as at the time he lodged his visa application, Mr Wong had at least 3 years’ experience in the construction industry, in particular, working with marble.    

23. Subsequently, since arriving in Australia, Mr Wong has obtained a Certificate III in Stonemasonry from Building Trades Australia Education & Training (RTO No. 30979) on 29 May 2021.  The transcript of subjects states that he was awarded the qualification based on ‘recognition of prior learning’.  The Tribunal has reviewed the training.gov.au website to confirm that Building Trades Australia Education & Training is registered with the Australian Skills Quality Authority.  It notes the organisation has been the subject of 2 regulatory decisions that date to 3 September 2019.[2]  However, neither decision relates to the Certificate III in Stonemasonry (Monumental / Installation) qualification issued to Mr Wong.  In the opinion of the Tribunal, the issue of 2 penalties would - from a corporate governance and regulatory compliance perspective - have made the Building Trades Australia Education & Training organisation acutely aware of the need to ensure issue of any of its qualifications to students is soundly based on a robust assessment of applicants.  In the circumstances, the Tribunal accepts that Mr Wong is a deserving recipient of his Certificate III in Stonemasonry.

    [2] The regulatory decisions relate to enrolment and qualification issuance data, engagement of third parties to deliver training and assessment on its behalf, and suspension under s.38 of the National Vocational Education and Training Regulator Act 2011 of registration for the course Certificate  III in Electrotechnology Electrician: >

    The Tribunal also acknowledges that it has been provided with a letter from the Director of Viva Stone & Tiling dated 7 April 2021 confirming that Mr Wong has been working with the business since 24 March 2017 in the role of Stonemason.  Director Mr Taweel states that Mr Wong performs the following tasks:

    ·read work orders and design drawings to determine work requirements and sequence of tasks.

    ·measuring and assembling templates

    ·matching colors (sic) from different stone slabs

    ·cut and shape stone slabs using machines (such as CNC bridge saws) or hand tools,

    ·cut and polish granite and marble for use in construction, such as kitchen bench tops, bathroom vanity units, stair treads and risers, fireplace surrounds and stone furniture products.

    ·laminating or gluing edgework for different types of stones

    ·assembling and installing sinks, basins, and troughs

    ·installing kitchen bench tops and bathroom vanity units on site

    ·using seam setter to make the join nice and flat

    ·installing undermount sink on site

    ·creating edge profiles/custom-designed to meet clients specifications and requirements

    ·cutting and polishing undermount si nk

    ·shaping and polishing different edge profiles (such as square, bullnose, shark nose, splayed etc).

1. In addition, evidence has been provided of payslips to Mr Wong since March 2017.  The Tribunal notes that the payslips indicate the employer is Viva Natural Stone Pty Ltd, rather than the nominator Viva Stone & Tiling.  However, an ABN Look up search establishes that Viva Stone & Tiling was formerly known from 6 May 2008 to 7 February 2017 as Viva Natural Stone Pty Ltd: they share the same ABN, that is, 21 130 957 425.[3]

   [3] >

   The Tribunal has considered the overall evidence provided in support of the review application.  The Tribunal accepts the authenticity of documentation provided by Mr Wong regarding his work experience in Hong Kong.  Further, the Tribunal accepts that Mr Wong has worked in the role of Stonemason with Viva Stone & Tiling since 24 March 2017.  It accepts that based on this cumulative experience, Mr Wong has been appropriately recognised as a deserving recipient of a Certificate III in Stonemasonry (Monumental / Installation) issued by Building Trades Australia Education & Training (RTO No. 30979). Based on this evidence, the Tribunal is satisfied that Mr Wong has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of Stonemason ANZSCO 331112.

2. For these reasons, the requirements of cl.457.223(4)(da) of the Regulations are met.

3. In passing and by way of final comment, the Tribunal notes that Mr Wong applied for a Subclass 457 visa.  Relevantly, the Migration Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 were introduced on 18 March 2018 (the Amending Regulations). The Amending Regulations repealed and replaced r.2.72 of the Regulations which sets out the criteria for nominations relating to Subclass 457 visas, and they also repealed the Subclass 457 visa. The nomination made by Viva Stone & Tiling of the position of Stonemason ANZSCO 331112 in respect of nominee Chun Wong was approved by the Department on 14 November 2017. The Tribunal notes that the validity of that nomination has been preserved in this case having regard to the provisions of cl.6704(15) of the Amending Regulations.

4. Given the above findings, 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

5. The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 visa:

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

   Katie Malyon
   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.

   oOOo