1504070 (Migration)

[2016] AATA 3007

1504070 (Migration) [2016] AATA 3007 (4 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Marc David Cirket Ford

CASE NUMBER:  1504070

DIBP REFERENCE(S):  BCC2014/2335608

MEMBER:Marten Kennedy

DATE:4 January 2016

PLACE OF DECISION:  Adelaide

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

Statement made on 04 January 2016 at 2:35pm

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision of a delegate of the Minister for Immigration to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).  The visa applicant applied for the visa on 16 September 2014.

2. 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).

3. 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 visa on 10 March 2015 on the basis that cl.457.223(4)(da) was not met because the delegate was not satisfied the applicant had the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.

5. The applicant participated in a hearing before the Tribunal on 15 December 2015.  At the conclusion of the hearing, I afforded the applicant a further opportunity to improve on the evidence before the Tribunal as to his skills, qualifications and employment background.  I set down a timeframe for the provision of further evidence by 23 December 2015.  No further communication has been received from the applicant.

   CONSIDERATION

6. The issue in the present case is whether the applicant meets the requirements of cl.457.223(4)(da). Clause 457.223(4)(da) requires the applicant to have the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation.

7. I have taken into account, as did the delegate, the provisions of ANZSCO as to what skills, qualifications and experience is generally required to perform the tasks of the occupation of Bricklayer in Australia.  It provides that an AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV is required, or at least three years of relevant experience may substitute for the formal qualifications.

8. In this case, I proceed on the basis that the ANZSCO provides a sound measure as to what will satisfy me as to whether the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.

9. The evidence before the Tribunal in relation to the applicant’s qualification, skills and employment background is the applicant’s resume, a certificate of service with the British armed forces, and a technical reference from DA Evans Construction Ltd dated 31 May 2014, relating to work the applicant undertook between April 2003 and September 2007.  The applicant has made a statutory declaration in relation to this work, stating he was employed full time for 38 to 40 hours each week as a leading hands bricklayer.  One crumpled payslip has also been provided.

10. I have also had regard to the applicant’s letter of engagement with Lightning Brick and Pavers Pty Ltd of 25 August 2014, and a further letter of support from the sponsor (Mr Claxton).

11. The delegate identified difficulties with the evidence from DA Evans Ltd of the applicant’s work experience, and I share those concerns.  The evidence provided does not identify where the company was located, or whether the employment was full time or part time. 

12. The delegate mentions that enquiries undertaken by the Australian High Commission in London were unable to confirm the existence of the company.  The High Commission could not find a record of the company in the UK Yellow Pages, Companies House records or general search engine enquiries.  The delegate wrote to the applicant suggesting alternative ways of demonstrating his skills and work experience, including contracts, payslips, tax returns, group certificates or superannuation information.  None of these alternative means of demonstrating the employment were adopted by the applicant.

13. The applicant provided a duplicate copy of his statutory declaration to the Tribunal when the review application was lodged.  It states that due to his enlistment with the Army, the documents required are not available.

14. At the hearing, in response to my invitation to identify the issue in the review, the applicant correctly identified that the issue was in demonstrating his skills, qualifications and employment background.  I asked the applicant if he had any further documentary evidence to provide the Tribunal in this regard but he did not.

15. In relation to the evidence from DA Evans Ltd and the applicant’s statutory declaration, I focussed on the concern that the Australian High Commission in London could find no trace of the company.  I explained that I was concerned as to whether I could place any weight on a reference from a company that I could not confirm existed.

16. In response, the applicant told me the company was not very savvy, and was just a guy in a van.  I asked if the work was ‘off the books’.  The applicant said he was in college at the time and would help out on weekends.  I noted the reference said the applicant was a leading hand, and calculated that in the early part of the period of working for DA Evans Ltd, the applicant would have been around 18 years of age.  I observed that I wouldn’t expect an 18 year old to be a leading hand bricklayer.  The applicant suggested it was possible, and clarified that he was 22 at the concluding period of his work with DA Evans Ltd.

17. I asked what training the applicant had to be a bricklayer during his time with DA Evans Ltd.  The applicant said it was on the job training, starting as a labourer and gradually building up with experience.  The applicant said it was a job that could be learned by ‘doing’.

18. I explained that I would need to be satisfied that any work experience relied upon was relevant, and I did not consider labouring to be relevant experience for the skilled trade of bricklaying. I explained that I would need to be able to identify what period of time was spent doing relevant bricklaying work, and the work reference provided did not give me the necessary information.

19. The applicant confirmed he had worked for his Australian sponsor for nearly two years.

20. As to his service with the British Army, the applicant told me he was in the Royal Electrical and Mechanical Engineers Corps, and confirmed he was not in the Royal Engineers.  His duties with the British Army did not involve construction or bricklaying.

21. I explored with the applicant whether there were any other avenues he had not yet exhausted in order to get better evidence of his skills qualifications and work experience to the Tribunal. The applicant could not identify any further enquiries he could make.

22. I discussed with the applicant the possibility that he might undertake a private skills assessment and provide expert evidence from a qualified vocational assessor to the Tribunal of his skills.  I afforded the applicant time to undertake enquiries in this regard, but explained carefully that if I did not receive a specific request to defer making a decision with evidence that such a process was being pursued within the time I had set down I would finalise the review.

23. In circumstances where the Australian High Commission in London have been unable to confirm the existence of DA Evans Ltd, I place no weight on the evidence purporting to be from DA Evans Ltd.

24. In circumstances where the applicant has described very informal employment arrangements with DA Evans Ltd, and undertaking work as a labourer in this regard, I do not rely on the applicant’s own evidence as to any particular kind or duration of work he undertook for this employer.

25. I accept the written evidence of Mr Claxton of the sponsor as to the applicant’s current role, and accept the applicant’s evidence that he has been working as a bricklayer in Australia for approximately 2 years.

26. However, in this case, I will rely on the evidence in ANZSCO as to the indicative skill level for this occupation.  I find that what I consider to be necessary to perform the tasks of the nominated occupation is an AQF Certificate III including at least two years of on-the-job training, an AQF Certificate IV, or at least three years of relevant experience.

27. I find that the applicant does not have any formal qualification in Bricklaying.

28. I am not satisfied that the applicant has at least three years of relevant experience as a Bricklayer.

29. I am not therefore satisfied that the applicant has the skills, qualifications and employment background that I consider necessary to perform the tasks of the nominated occupation.

30. The applicant does not meet the requirements of cl.457.223(4)(da) of Schedule 2 to the Regulations. As this is an essential criterion for the grant of the visa in the applicant’s circumstances, the decision to refuse to grant the visa is affirmed.

    DECISION

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

    Marten Kennedy
    Member