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071814608 [2008] MRTA  752  (21 August 2008)

Last Updated: 5 September 2008

071814608  [2008] MRTA 752  (21 August 2008)


DECISION RECORD

REVIEW APPLICANT: Style Steel Pty Ltd

VISA APPLICANTS: Mr Weili Zhang
Ms Yingling Liu
Miss Yiwen Zhang

MRT CASE NUMBER: 071814608

DIAC REFERENCE(S): CLF2007/135545

TRIBUNAL MEMBER: Jennifer Ciantar

DATE DECISION SIGNED: 21 August 2008

PLACE OF DECISION: Sydney

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

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

  1. This is an application for review of decisions made by a delegate of the Minister for Immigration and Citizenship 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 applicant applied to the Department of Immigration and Citizenship for a Temporary Business Entry (Class UC) visa on 3 July 2007. The delegate decided to refuse to grant the visa on 10 October 2007 and notified the visa applicant of the decision and their review rights by letter dated 10 October 2007.
  3. The delegate refused the visa application as the first named visa applicant did not satisfy cl.457.223(4)(d) and (e) of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate found that the visa applicant did not satisfy cl.457.223(4)(d) and (e) because the delegate was not satisfied that the applicant has the qualifications of first class welder ASCO code 4122-15.
  4. The review applicant applied to the Tribunal on 23 October 2007 for review of the delegate’s decision.
  5. The Tribunal finds that the delegate’s decision is an MRT-reviewable decision under s.338(9) of the Act r4.02(4)(l) of the Regulations. The Tribunal finds that the review applicant has made a valid application for review under s.347 of the Act.

RELEVANT LAW

  1. The Temporary Business Entry (Class UC) visa permits non-citizens with skills needed by Australian businesses to enter and work temporarily in Australia. Class UC contains two subclasses, Subclass 456 (Business (Short stay)) and Subclass 457 (Business (Long stay)). Subclass 456 visas permit stays of up to 3 months. Subclass 457 visas permit stays of more than 3 months but not longer than 4 years, and in the case of an Independent Executive proposing to maintain an ownership interest of a business in Australia, a further stay of 2 years is permitted. The Tribunal does not have jurisdiction in relation to a decision to refuse a Subclass 456 visa.
  2. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
  3. The primary criteria to be satisfied by a visa applicant will depend on whether the person is in or outside Australia at the time of application. If the visa applicant is outside Australia at the time of application, there are no primary criteria to be satisfied.
  4. The primary criteria to be satisfied at time of decision are as follows:
  5. Part 457 of Schedule 2 also contains secondary criteria that must be satisfied by other visa applicants who are members of the family unit or, for applications made on or after 1 July 2006, an interdependent partner or a dependent child of the interdependent partner, of a person who satisfies the primary criteria: cl.457.3.
  6. The alternative requirements referred to in cl.457.223 are as follows:
  7. The first named visa applicant in the present case has made specific claims against cl.457.223(4). The Department refused the application on the grounds that the first named visa applicant did not satisfy the requirements of cl.457.223(4)(d) or (e), which, at the time of application, provide as follows:

457.223(4) extract from 1 July 2007:

Sponsorship — Australian business

(4) The applicant meets the requirements of this subclause if:

(a) the activity in which the applicant proposes to be employed in Australia by a person (the employer) is the subject of an approved business nomination by the employer; and

(b) the employer is:

(i) either:

(A) a pre qualified business sponsor; or

(B) a standard business sponsor approved under regulation 1.20D as in force before, on or after 1 July 2003; and

(ii) the employer mentioned in subparagraph 1223A (3) (d) (i); and

(ba) if:

(i) the employer is a standard business sponsor; and

(ii) the employer’s business activities include activities relating to either or both of:

(A) the recruitment of labour for supply to other unrelated businesses; and

(B) the hiring of labour to other unrelated businesses;

the activity in which the applicant proposes to be employed in Australia must be an activity in the sponsor’s business, and must not be an activity that involves a position that would be supplied to another unrelated business, unless the nomination that was approved in relation to the activity was made before 1 October 2007; and

(c) the applicant is nominated, in accordance with approved form 1068, 1196 or 1196 (Internet), in relation to the activity by the employer; and

(d) the applicant has personal attributes and an employment background that are relevant to, and consistent with, the nature of the activity to be performed; and

(e) the applicant demonstrates, if so required by the Minister, that he or she has the skills necessary to perform the activity; and

  1. Clause 457.223A relevantly provides that the Minister may waive any of the requirements of cl.457.223(4)(j) or (k) if he or she considers it reasonably appropriate to do so.
  2. The issue in the present case is whether the first named visa applicant has personal attributes and an employment background that are relevant to, and consistent with, the nature of the activity to be performed, and the first named visa applicant demonstrates, if so required by the Minister, that he has the skills necessary to perform the activity.

CLAIMS AND EVIDENCE

  1. The Tribunal has before it the Department’s file relating to the visa applicants. The Tribunal also has had regard to the material referred to in the delegate's decision, and other material available to the Tribunal.
  2. The visa application has been made on the basis that the first named visa applicant is to be employed as a welder by Style Steel Pty. Ltd. The Department conducted a number of checks. The Department concluded that it was not possible to verify the first named visa applicant’s degree certificate. The Department was satisfied that the first named visa applicant’s trade certificate was genuine.
  3. On 13 August 2008 the Department conducted a check to verify the first named visa applicant’s employment as a welder at Hengyang ZhuHui Hengxin Forklift Plant. The Department records that Directory Assistance advised that no information could be found relating to the company. The declared number was a public telephone number located in a small bookstall. The Department rang the mobile number of the first named visa applicant’s referee, Liang Gui Hua. She was initially surprised and appeared to have no knowledge of the applicant but then said that she is boss of the plant and the first named visa applicant has worked as a welder at the plant since the establishment of the plant. It was set up in 2001 as a private business and the name changed to Zhuhui Hengxin in May 2004. The plant employs around 30 people. Ms Liang is the legal representative and is in charge of personnel. There is no financial department in the plant and an accounting firm does the financial report. The office number that Ms Liang gave the Department was the same as the number already provided. Ms Liang also advised that all employees are paid in cash. The first named visa applicant is paid 1200RMB per month and he would be paid more according to the pieces finished per month. Wu Song Lin is in charge of technology control and Kuang Wei is in charge of manufacturing. The plant operates from 8 to 18.00. There are 4 welders but most workers need to perform a variety of jobs when necessary. Apart from welding, the first named visa applicant also does cold work processing work but Ms Liang was vague about the proportion of time the first named visa applicant was employed as a welder. Ms Liang stated that she signed a Chinese version of the first named visa applicant’s work reference, in June or July. Ms Liang also provided the numbers of 2 other employees.
  4. Kuang Wei advised the Department that the plant employs 4 welders and he provided their names. He stated that the first named visa applicant has been working as a cold work processing worker for most of the time but he joins the welders sometimes. Cold working is a procedure to make steel harder and durable. During the processing the first named visa applicant uses a machine to make the steel flat and it is placed in a stove first and then into cold water. The company deals with the installation of forklift truck gantry and its top frame. He stated that the workers do not have a basic salary but are paid according to the pieces of products finished each month.
  5. The Department also spoke to the first named visa applicant who advised that he did some cold processing work and a welder’s job most of the time. He provided the names of the welders to the Department. He said that he found the position in Australia through the website of the Shanghai Personnel Exchange Centre and the boss of the company, Mr Yang, came to test the applicant last October. The first named visa applicant also stated that his salary is 800RMB per month.
  6. The Department concluded that the referee was inconsistent with the information given in the reference letter and the Department has concerns about whether she really issued the reference letter. The welders’ names were inconsistently given by all parties as was the amount of salary and the applicant’s duties. The Department concluded that the applicant’s skill level would not meet that of a welder.
  7. The Department wrote to the first named visa applicant on 28 August 2008 and gave him an opportunity to respond to the Department’s concerns. On 19 September 2007 the first named visa applicant responded by stating that the employer Ms Liang had initially been confused by the Department’s call. She had said there were 30 employees not 56 as the numbers of employees varies. She was mistaken about whether she signed the English or Chinese version of the reference, as she could not recall. The first named visa applicant is one of 4 full-time welders and there is also a part-time welder. The first named visa applicant also performs other jobs apart from welding. His base salary is 800RMB and he can earn more than 1200RMB per month.
  8. On 13 August 2008 the review applicant provided the Tribunal with a DVD.
  9. The review applicant appeared before the Tribunal on 19 August 2008 to give evidence and present arguments. The Tribunal also received oral evidence from the first named visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
  10. The review applicant was represented in relation to the review by his registered migration agent.
  11. The review applicant stated that he has visited the first named visa applicant twice. His last visit was from 26 December 2007 to 19 January 2008 and it was on this visit that he made the DVD that has been provided to the Tribunal. He first met the first named visa applicant around September 2006 and at this time he tested the first named visa applicant’s knowledge and skills. The review applicant is himself a qualified welder and he asked the first named visa applicant questions about the industry. He also borrowed welding equipment from a friend and asked the first named visa applicant to demonstrate his skills. The review applicant is satisfied that the first named visa applicant is a skilled welder.
  12. The review applicant stated that his company, Style Steel, has been operating for about 10 years. It has a number of contracts including a large contract to make wagon trolleys. The review applicant has had problems finding welders in Australia and so he contacted an agent who located the visa applicant. The review applicant employs 2 welders but he often has to undertake welding work himself.
  13. The review applicant stated that the first named visa applicant is now employed welding sheet metal. The factory where the first named visa applicant works makes parts for forklifts. The first named visa applicant has a variety of skills and sometimes he performs other duties apart from welding. When he last visited China, the review applicant asked the first named visa applicant to weld different types of materials. The first named visa applicant knows how to weld using 2 different types of welders. Most Chinese can only weld using one type, a stick welder, but the first named visa applicant can use a stick welder and a mig welder which is more popular in Australia. The first named visa applicant also has knowledge of electronics, which will be helpful for the review applicant as his company also makes electronic sliding gates.
  14. The first named visa applicant’s oral evidence can be summarised as follows. He has worked as a welder for more than 10 years. Apart from welding work he also does other tasks such as those of a boiler maker and he also does electronic circuit repair. He works 8 hours per day, 6 days per week and he does welding work every day but he does whatever is necessary to complete the project. However, his trade is welding.
  15. The first named visa applicant stated that there are 4 full-time welders including him and one part-time welder who is called when necessary. The full-time welders are Yanlin Zhang, Chunlin Nin, Guohui Luo and the applicant and the part-time welder is Xiao Wang. The visa applicant’s basic wage is 800RMB and he earns up to 1200RMB. Boilermakers earn more then welders and he is not sure of their wages as this is determined by the employer.
  16. The review applicant visited the first named visa applicant and asked him to weld some products, which he did. The first named visa applicant knows that the review applicant’s company manufactures metal trolleys. The review applicant showed the first named visa applicant diagrams and asked him about various aspects of his trade and if he can manage welding in a streamlined process from the start to the finish. The first named visa applicant stated that he is able to read diagrams and follow the specifications. His most recent welding job involved constructing a metal door frame. The first named visa applicant looked at a diagram to see what size pieces were required. He then cut the metal as required and welded it together according to the measurements on the diagram.
  17. The review applicant commented that his observation was that most of the first named visa applicant’s work is welding but as the first named visa applicant is smart, he is also asked to undertake work as a boilermaker when necessary, as boilermakers have higher skills than welders.
  18. The review applicant also provided the Tribunal with the names of the first named visa applicant’s supervisor and referee who were available to give evidence if necessary. However, the Tribunal decided it was not necessary to contact the witnesses.

FINDINGS AND REASONS

  1. The issue in the present case is whether the first named visa applicant has personal attributes and an employment background that are relevant to, and consistent with, the nature of the activity to be performed, and whether the first named visa applicant demonstrates that he has the skills necessary to perform the activity, as required by cl.457.223(4)(d) & (e).
  2. In determining these requirements, the Tribunal may be guided by use of the Australian Standard Classification of Occupations (ASCO) 2nd edition.[1] However, the determination of each application requires more than a narrow matching process between an applicant's tasks and an Australian Standard Classification of Occupations (ASCO) occupational definition. The regulations in this context do not require formal or full skills assessment, as is required for other skilled permanent visa subclasses. The sensible and correct approach requires the ascertainment of the attributes and skills of an applicant and how those attributes and skills are being applied in the workplace for remuneration.
  3. The activity for which the sponsor has been approved is the employment of a welder. ASCO provides the following guidance in respect of this occupation:

4122-15 Welder (First Class)

Fabricates and repairs metal products by welding metals.

Skill Level:
The entry requirement for this occupation is an AQF Certificate III or higher qualification. Registration or licensing may be required.

Tasks Include:

  1. Although the Department accepted that the first named visa applicant had a qualification as a welder, the Department had concerns about the first named visa applicant’s skill levels as a welder, as inconsistent information was given when the Department conducted checks. However, the Tribunal is satisfied that the first named visa applicant has an employment background and personal attributes that are relevant to, and consistent with the occupation of welding and that he has demonstrated that he has welding skills. The Tribunal has had the benefit of additional information. The Tribunal found the review applicant to be a credible witness and accepts that his company requires the services of a welder. The review applicant gave evidence that he himself is a qualified welder and he travelled to China in order to test the skills of the first named visa applicant. The review applicant was satisfied that the first named visa applicant had the required technical skills and the required level of knowledge of the industry. The Tribunal watched a video provided by the review applicant, which he claims is of the first named visa applicant and the Tribunal observed that the person in the video performed the work of a welder. The applicant also gave oral evidence regarding his work activities, which indicated that he performs most of the duties of a welder.
  2. On the evidence and for the above reasons, the Tribunal finds that the first named visa applicant has the personal attributes and the employment background that are relevant to, and consistent with, the nature of the activity to be performed. The Tribunal also finds that the first named visa applicant has demonstrated that he has the skills necessary to perform the activity. Therefore, the Tribunal also finds that the first named visa applicant meets the criteria in paragraphs 457.223(4)(d) and (e).

CONCLUSIONS

  1. Given the findings made above, the Tribunal remits the application for the visa to the Department with a direction that cl.457.223(4)(d) and (e) has been satisfied.

DECISION

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

Jennifer Ciantar
Member Date:


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