1504773 (Migration)

[2016] AATA 4503

1504773 (Migration) [2016] AATA 4503 (7 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nader ALI

CASE NUMBER:  1504773

DIBP REFERENCE(S):  BCC2015/58907

MEMBER:Jennifer Ciantar

DATE:7 October 2016

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)(a) of Schedule 2 to the Regulations; and

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

Statement made on 07 October 2016 at 2:14pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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).

2. The visa applicant applied for the visa on 7 January 2015.

3. 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.

4. The delegate refused to grant the visa on 26 March 2015 on the basis that cl.457.223(4)(da) was not met because the delegate was not satisfied that the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of driller.

5. The applicant appeared before the Tribunal on 16 August 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

6. The applicant was represented in relation to the review by his registered migration agent.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(a) and cl.457.223(da).

   Requirement for an approved nomination

9. Clause 457.223(4)(a) requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.

10. At hearing, the applicant stated that the nomination for the position of driller had lapsed and Ace Demolition & Excavation lodged a new application in June 2016. On 26 September 2016 the Department approved the nomination application made by Ace Demolition & Excavation Pty Ltd, which identifies the applicant as the nominee. The Tribunal finds that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.

11. For these reasons the requirements of cl.457.223(4)(a) are met.

    Skills, qualification and employment background of the applicant

12. 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 that are necessary to perform the occupation in the manner specified by the Minister. In this case the nominated occupation is driller.

13. The delegate refused the application as the applicant had not responded to the request to provide information to show that the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.

14. At the hearing the applicant provided the Tribunal with a translated letter from the firm where he was employed as a driller in Lebanon; he stated that he had worked with his father who taught him the job. The applicant confirmed that he does not have any formal qualifications as a driller but has learned his skills on the job. He came to Australia on 22 March 2014 and commenced work within a week for Ace Demolition & Excavation. He was employed by this company as a driller for almost a year when he had to cease work as his visa did not permit him to work.

15. The applicant confirmed that he came to Australia on a Subclass 300 Prospective Spouse visa and although he married, the marriage was short-lived and he withdrew the Spouse visa application he had made. The Tribunal noted in order to be granted the visa, the applicant may be required to satisfy Schedule 3 criteria but the Tribunal will confine its findings to the issues arising from the delegate’s decision.

16. In considering whether the applicant  has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation the Tribunal considered the descriptor of tasks in the ANZSCO guide:

    DRILLERS, MINERS AND SHOT FIRERS assemble, position and operate drilling rigs and mining plant, and detonate explosives to extract materials from the earth and demolish structures.

    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 II or III (ANZSCO Skill Level 4)

    
    In New Zealand:

    NZ Register Level 2 or 3 qualification (ANZSCO Skill Level 4)

    
    At least one year 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:

    odismantling, moving and reassembling drilling rigs and accessory plant

    otaking samples of ore, liquids and gases and packaging them

    operforming minor maintenance and repairs, and lubricating and cleaning plant

    orecording performance details and information obtained from wells, and keeping logs detailing operations

    ooperating surface and underground mining plant

    oundertaking development work such as opening up new shafts, drives, air vents, rises and crib rooms

    opositioning explosives in bore holes and priming explosives using detonators and explosive cartridges

    oconnecting wires, fuses and detonating cords to explosive cartridges and detonators, and detonating explosives

    omonitoring operation of plant and ensuring safety of other workers on mining sites and during drilling operations

    ooperating auxiliary plant such as pumps to expel air, water and mud

    
    Occupations:

    712211 Driller
    712212 Miner
    712213 Shot Firer

    
    712211 DRILLER

    
    Alternative Title:

    Drilling Plant Operator

    
    Assembles, positions and operates a drilling rig and related equipment to extract ore, liquids or gases from the earth. Registration or licensing may be required.

    Skill Level: 4
    Specialisations:

    Directional Driller
    Exploration Driller
    Jumbo Operator
    Power Tong Operator
    Raise Drill Operator
    Rig Manager
    Rock Drill Operator
    Stope Miner
    Tool Pusher

17. The Tribunal has taken into account the submission provided with the visa application which gives the background and activities of Ace Demolition and Excavation, and details the piling rigs and piling equipment that the company uses. The submission also contains a statement of duties for the position of driller. The applicant gave evidence about the duties he performed in Lebanon and Australia, as a driller. His work experience is primarily in drilling holes for the construction of piles and pillars for residential buildings including apartment blocks where the below ground parking level can be 3 or 4 floors deep. The applicant stated that he has experience in drilling earth and sand but not in taking samples of ores liquids or gases. He is required to keep written records of the depth and thickness of the pile. He carries out repairs and cleans the equipment used, including applying grease or lubricants and changing the sharp cutting edges. He assists in pumping out water prior to the pouring of cement. He has responsibilities for ensuring the safety of other workers by covering excavation sites and putting up signs, and supervising apprentices. The applicant stated that when he was drilling sand he used a technique whereby a sleeve was inserted to stop the sand collapsing and as the concrete was poured the sleeve was slowly pulled out.

18. After the hearing, the applicant provided the Tribunal with a reference from Ace Demolition & Excavation. It states that the applicant was a full time drilling rig operator from 3 April 2014 to 28 October 2015. His duties were as follows:

    ·     Dismantling, moving and reassembling drilling rigs and accessory plant;

    ·     Performing minor maintenance and repairs, and cleaning and lubricating  plant;

    ·     Conduct a daily pre-start checklist at the commencement of each shift;

    ·     Monitoring operation of plant and ensuring safety of other workers on construction sites and during drilling operations;

    ·     Operating pumps for dewatering of piers as required and cover all open pier holes prior to concrete being poured;

    ·     Drill piles using drilling rigs. Piles to be drilled true and plumb to the correct depth and bearing capacity as indicated in the site specific structural documents;

    ·     Using winch, suspend prefabricated cage into pier hole and insert starter bars as specified.

19. The Tribunal accepts that the applicant was employed as a drilling rig operator at Ace Demolition & Excavation for about 18 months. The ANZSCO guide indicates that at least one year of relevant experience may substitute for formal qualifications. The Tribunal has compared the duties which the applicant performed to the duties listed in the ANZSCO guide and the Tribunal is satisfied that the applicant has performed the majority of the duties of a drilling plant operator. The submission provided to the Department by the prospective employer states that the drilling rigs are very expensive and an inexperienced operator can cause massive damage. The Tribunal accepts that the employer has assessed the applicant as having the required skills and that he demonstrated to the employer over a period of 18 months that he has the skills to perform the nominated occupation. The Tribunal finds that the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation and that he is not required to demonstrate that he has the skills that are necessary to perform the occupation.

20. For these reasons the applicant satisfies the requirements of cl.457.223(4)(da).

21. 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

22. 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)(a) of Schedule 2 to the Regulations; and

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

    Jennifer Ciantar
    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.