1415883 (Migration)

1415883 (Migration) [2015] AATA 3093 (14 July 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Seamus Todd Kavanagh
CASE NUMBER:  1415883
DIBP REFERENCE(S):  BCC2014/1683938
MEMBER:Denise Connolly
DATE:14 July 2015
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 visa applicant meets the following criteria for a Subclass 457 visa:
·cl.457.223(4)(da) of Schedule 2 to the Regulations.

Statement made on 14 July 2015 at 9:23am

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 applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 9 July 2014. He indicated he had been sponsored by his employer, BMD Constructions Pty Ltd who had nominated the occupation Carpenter.
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 visa on 9 September 2014 on the basis that cl.457.223(4)(da) was not met because the delegate was not satisfied the applicant has the skills, qualifications and employment background necessary to perform the occupation of Carpenter.
The applicant appeared before the Tribunal by video conference on 2 July 2015 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent who attended the hearing by conference telephone.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Skills, qualification and employment background of the applicant
The issue in the present case is whether the applicant meets the requirements of cl.457.223(4)(da) which 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 Carpenter.
The applicant is from Ireland. When making the visa application, he indicated that he had completed a ‘Level 6 carpentry/cabinetmaking’ course. He also stated that he had the following employment background:
·Dawn Group – carpenter/cabinetmaker, August 2011 to July 2012
·Patrick Devereux Interiors – apprentice carpenter/cabinetmaker, July 2006 to December 2009.
The applicant provided no documentary evidence regarding his skills, qualifications and employment background. The delegate’s decision record, provided to the Tribunal by the applicant, indicates that the Department wrote to the applicant and sought further evidence regarding his skills, qualifications and employment background but the applicant did not respond. The delegate then refused the visa.
When inviting the applicant to a hearing, the Tribunal requested he provide evidence regarding his skills, qualifications and employment background. The applicant provided the following information:
·A letter from his sponsor, BMD, dated 1 May 2015, and evidence of income, indicating he had been employed as a carpenter since July 2014.
·Documents from Patrick Devereux Interiors indicating the applicant had been employed by the business in 2006 and December 2007, and from January 2008 to December 2008 and a letter stating he had worked for the business from July 2006 to December 2009.
·A letter from his representative asserting the applicant meets the skill level because he had 3 years’ relevant work experience.
At the hearing the Tribunal explained that he stated the Level 6 course in Ireland while undertaking the practical component of an apprenticeship with Patrick Devereux. However, while he continued to work and receive on the job training, he stopped attending the course after 9 months and did not receive a qualification. He started working for Patrick Devereux after finishing high school in July 2006 and worked with him until December 2009. He was supervised by a qualified carpenter. Due to the economic turndown he became unemployed. He worked in a supermarket and then in August 2011 he started working for Dawn Group (New Zealand) as a carpenter/cabinetmaker, from August 2011 to July 2012. He has not been able to get any documentary evidence of that employment as he left the company on bad terms. When he indicated to the boss that he might be leaving his hours and his pay were cut. There was some dispute and he left with no reference. In September 2013 he secured employment with NT Wardrobe and Shower Screens, where he undertook carpentry tasks, for 2½ months. He then worked for Protech Labour Hire from October 2013 to December 2013 as a carpenter, doing interior fittings such as hanging doors. He worked casually as a carpenter for BMD in 2014, undertaking various carpentry duties. He was then employed by BMD Constructions on residential housing in urban subdivisions. He was recruited on the basis of his past carpentry experience attained in Ireland and New Zealand. Initially BMD put him on two weeks’ probation to observe his skills and, on the basis of his demonstrated skill, decided to recruit and sponsor him. He described his various duties at BMD, including forming footpaths for concreting, building manhole pits for storm water, in house door hanging and roofing, building interior walls and partitions. He also reads drawings and specifications. He has previously worked on floors in Ireland and New Zealand.
After the hearing the applicant provided to the Tribunal an employment confirmation from the Area Manager, BMD dated 6 July 2015 which confirms he has been working as a carpenter on a full-time basis since July 2014. The Area Manager states that the applicant is a skilful carpenter whose duties include formwork for footpaths, driveways and detailed concrete structures. He has the ability to work effectively and in coordination with other trades. He pays attention to detail, and works well with wood and tools. The Area Manager has known the applicant since 2013 when he worked for the company casually. It was clear to him then that he had some years’ experience in carpentry. He understands that the applicant completed an informal apprenticeship in Ireland and worked in carpentry in New Zealand. The Area Manager has no hesitation in offering the applicant continued employment.
The applicant also provided a letter from the Leading Hand, qualified carpenter, BMD who set out the range of duties the applicant has in his employment at BMD in a team which is responsible for building, installing and repairing structures, fixtures and other items using various materials such as wood, concrete and steel. He works with various carpentry tools, from plans and instructions, using a variety of materials. He confirms the applicant is considered by the business to be a skilled carpenter.
The applicant provided photographic evidence, showing him at the current work site. He also provided a curriculum vitae indicating he undertook the following relevant employment:
·on the job training with Patrick Devereux from July 2006 to December 2009
·carpenter Dawn Group NZ from August 2011 to July 2012
·NT Shower Screens and Wardrobes from July 2012 to October 2012
·Protech Labour Hire from October 2012 to December 2012
·SES Labour Hire from January 2014 to July 2014
·BMD, casually in 2013, then from July 2014 to date.
Assessment of the evidence
The Tribunal has considered the description of the occupation Carpenter, as set out in ANZSCO.
UNIT GROUP 3312 CARPENTERS AND JOINERS

CARPENTERS AND JOINERS construct, erect, install, renovate and repair structures and fixtures made of wood, plywood, wallboard and other materials, and cut, shape and fit timber parts to form structures and fittings.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)

At least three 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.
Registration or licensing may be required.
Tasks Include:
Based on the applicant’s oral evidence and the written submissions from BMD the Tribunal is satisfied the applicant has been working as a Carpenter for the sponsor BMD, first casually in 2013 and then from July 2014 to date. It is satisfied he has at least 12 months’ work experience as a carpenter with the sponsor.
Based on BMD’s assessment of his skills as a carpenter when he was employed in 2013 and July 2014, and the documentary evidence confirming employment in Ireland the Tribunal accepts the applicant received on the job training from Patrick Devereux in Ireland in the period July 2006 to December 2009. While the Tribunal has not seen documentary evidence of his employment in New Zealand it accepts his oral evidence that the relationship with that employer ended acrimoniously and he has been unable to obtain a reference. It notes BMD is satisfied that he demonstrated that he was a skilled carpenter when he commenced working with them casually in 2013. It is satisfied that it can rely on his oral evidence regarding his work experience in carpentry.
The applicant described to the Tribunal, in significant detail, his skills and employment background. He gave reasonable oral evidence about his experience in undertaking the tasks described in ANZSCO.
Overall the Tribunal is satisfied the applicant received 3½ years’ on the job training in Ireland as a carpenter. It is satisfied he then worked as a carpenter for Dawn Group in NZ for 11 months. He has worked in Australia for labour hire companies as a carpenter in the period 2012 to 2014. He has worked for BMD as a carpenter for at least 12 months. While he does not hold a qualification, the Tribunal is satisfied the applicant has at least 3 years’ relevant experience in substitute for the formal qualifications referred to in ANZSCO.
Having considered all of the written and oral evidence the Tribunal is satisfied the applicant had the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation. For these reasons the applicant satisfies the requirements of cl.457.223(4)(da).
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 application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 457 visa:
·cl.457.223(4)(da) of Schedule 2 to the Regulations.
Denise Connolly
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
(ea)if:
(i)    the applicant would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the applicant; and
(ii) in order to obtain the licence, registration or membership, the applicant would need to demonstrate that the applicant has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;
the applicant has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership; and
(eb)if:
(i)    the applicant is not an exempt applicant; and
(ii)     subclause (6) does not apply to the applicant; and
(iii)    at least 1 of subparagraphs (ea) (i) and (ii) does not apply;
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.

[2015] AATA 3093

14 July 2015

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Remedies

Procedural Fairness