1501053 (Migration)

[2016] AATA 3616

1501053 (Migration) [2016] AATA 3616 (30 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Steven Michael Deane

CASE NUMBER:  1501053

DIBP REFERENCE(S):  BCC2014/3058741

MEMBER:Alan Duri

DATE:30 March 2016

PLACE OF DECISION:  Sydney

DECISION:The tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.

Statement made on 30 March 2016 at 2:15pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Mr Deane was born in UK in 1989 but raised in Ireland.  He first arrived in Australia on 20 November 2012 on a Subclass 417 visa.

2. On 15 November 2014 Mr Deane applied for a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).  Mr Deane was nominated by his sponsor Ralston Churchill Engineering Pty Ltd to work in the nominated position of drainer.

3. At the time the 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).

4. On 15 January 2015 the delegate refused to grant the visa on the basis that cl.457.223(4)(da) was not satisfied.  The delegate found that there was insufficient evidence that Mr Deane has the necessary skills, qualifications and employment background to successfully perform the tasks of the nominated position.

   Hearing

5. Mr Deane appeared before the tribunal on 29 March 2016 to give evidence and present arguments. The tribunal also received oral evidence from Mr Patrick Murphy.

6. Mr Deane told the tribunal that he has a Certificate II in Drainage.  He indicated that he had been hoping to upgrade to a Certificate III.  The Certificate II was iisued on the basis of Mr Deane’s recognised prior learning and also on the basis of an on assessment and interview.

7. The tribunal asked Mr Deane about his background.  He stated that after completing high school in Ireland.  He worked during summers for a business that repaired drainage for farms.  He used to drive a tractor to dig a trench and help with the backup including the positioning of the drains.  The work was casual and would last five or six months per year over summer/spring.  During the rest of the year, he would either go on Irish unemployment benefits or work as a security guard.  After coming to Australia Mr Deane worked for a company called Aussie Drainage for five or six months and for the last 20 months he has been working for his current employer (and sponsor).

8. Mr Patrick Murphy told the tribunal that he operates the business currently employing Mr Deane.  Mr Murphy indicated that at the moment he has contracts with TPG.  At the moment Mr Deane is employed is supervising various projects that require the digging of trenches and laying of cables.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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 addition, under cl.457.223(4)(e), if required by the Minister, the applicant must demonstrate that he or she has the skills than necessary to perform the occupation in the manner specified by the Minister.

10. In this case the nominated occupation is drainer.

11. According to the Australian and New Zealand Standard Classification of Occupation (ANZSCO) a drainer is included the the plumber unit group.  is described as follows:

    334113 DRAINER (AUS) / DRAINLAYER (NZ)

    Installs, maintains and designs below-ground drainage systems and associated sewerage or effluent disposal systems. Registration or licensing is required.

12. The indicative skill level is described as

    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 is required.

    Tasks Include:

    •studying blueprints, drawings and specifications to determine the layout of plumbing systems and materials required 

    •setting out and installing hot and cold water systems and associated equipment 

    •installing water-based fire protections systems, including fire hydrants, hose reels and sprinkler systems 

    •designing and installing sanitary plumbing and water supply systems, discharge pipes and sanitary fixtures  

    •fabricating and installing soil and waste stacks 

    •assembling and installing mechanical services plant, air handling and conditioning equipment and small bore heating systems 

    •installing sewerage and effluent pumping equipment and disposal systems 

    •installing below-ground drainage systems and associated ground support systems 

    •installing gas appliances, flues and pressure regulating devices 

    •fabricating and installing metal roofing, rainwater goods and flashings

13. In particular a drainer:

    Installs, maintains and designs below-ground drainage systems and associated sewerage or effluent disposal systems. Registration or licensing is required.

    Skill Level: 3

14. The tasks in the ANZSCO Code are neither definitive nor conclusive and only provide guidance to the tribunal.  However, the tribunal considers them an appropriate measure of the skills required for a drainer.  The ANZSCO Code provides consistency in determining whether an applicant has a particular skill set.  Similarly, the certification referred to in r.2.72(10)(d) or (e) provided as part of the nomination process, identifies the tasks of the nominated position and the qualifications and experience of the proposed applicant for the occupation. This certification provides some guidance in the assessment of both the tasks of the nominated occupation and whether the applicant has the necessary skills, qualifications and employment background for the nominated occupation.

15. In support of his claims Mr Deane, amongst other material,  provided the department with:

    ·A certificate dated 1 December 2014 from Core Industry Training indicating that Mr Deane has fulfilled the requirements for Certificate II in Drainage.

    ·A letter signed 16 November 2014 from Noel Murphy of Ireland indicating that Mr Deane worked as a part time drainer from May 2005 to October 2010.

    ·A statement from Aussie Drain Pty Ltd indicating that during the summer of 2013/14 Mr Deane worked as a tractor driver/front end loader operator.      

16. Then tribunal accepts that Mr Deane had summer jobs over a five year period in Ireland essentially digging trenches.  While the employer’s letter classifies him a “part tine drainer” it is apparent on Mr Deane’s evidence that he drove a tractor digging ditches during the summer months.  The tribunal is not prepared to accept that his experience is commensurate with a Certificate III qualification.  The tribunal places weight on the fact that the Certificate II was issued to Mr Deane’s recognised prior learning.  Essentially an accredited assessing authority determined that as at 1 December 2014 Mr Deane’s skills fell short of a Certificate III level.   The tribunal is not prepared to accept that Mr Deane has three years’ experience at the appropriate level, notwithstanding his experience digging trenches.   

17. Mr Deane has worked for Mr Patrick Murphy since late 2014.  Mr Deane’s functions with his current employer are more involved than his previous tractor driving roles.  However Mr Deane’s current employment falls short of the three year experience.    

18. In summary Mr Deane’s qualifications and experience falls short of the requirements of cl.457.223(4)(da).  

19. It follows that as Mr Deane does not satisfy the applicable criteria for the grant of a Subclass 457 visa, the decision under review must be affirmed.

    DECISION

20. The tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.

    Alan Duri
    Member