1506686 (Migration)

[2016] AATA 3042

1506686 (Migration) [2016] AATA 3042 (11 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Stephen Maxwell

CASE NUMBER:  1506686

DIBP REFERENCE(S):  BCC2015/828055

MEMBER:Kate Millar

DATE:11 January 2016

PLACE OF DECISION:  Adelaide

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 11 January 2016 at 12:17pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Mr Maxwell is a citizen of Ireland.  He originally came to Australia on a working holiday visa.  Among other work he did on this visa he worked for Lis-Con Services Pty Ltd (Lis-Con).  Lis-Con undertakes formwork and concrete construction services on large scale projects such as dams, bridges and roads.[1] Lis-Con want to employ Mr Maxwell as a carpenter, and on 13 March 2015 he applied for a Temporary Business Entry (Class UC) visa. His visa application was refused by a delegate of the Minister because the delegate was not satisfied he had the necessary skills, qualifications and employment background to be a carpenter. This is an application for review of a decision of a delegate of the Minister for Immigration to refuse to grant the visa applicant under s.65 of the Migration Act 1958 (the Act).

   [1] Accessed 10 December 2015.

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 in cl.457.223(4) which is set out in the attachment to this decision. In this case, 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 for the other streams in cl.457.223.

3. The delegate refused to grant the visa on 4 May 2015 on the basis that cl.457.223(4)(da) was not met.  This clause requires the person has the skills, qualifications and employment background the Minister considers necessary to perform the tasks of the nominated occupation.  Mr Maxwell seeks the visa as a carpenter, and relies on his experience sin Ireland and Australia in this role to show he has the required skills and experience as he does not hold Australian qualifications.  The delegate was not satisfied he had the experience required for this position as the delegate was not satisfied with the employment references Mr Maxwell provided support his experience.    

4. Mr Maxwell appeared before the tribunal on 10 December, and was represented by his registered migration agent. The tribunal also received oral evidence from Mr Eoin O’ Neill, who is a construction manager for Lis-Con. Mr O’Neill provided an email from Mr Will Dolan, Managing Director of Lis-Con confirming Mr O’Neill is the Construction Manager and that he was authorised to represent Lis-Con. 

5. For the following reasons, the tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Skills, qualification and employment background of the applicant

7. 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 carpenter.

8. The Australian and New Zealand Standard Classification of Occupations (ANZSCO) state a carpenter has a level of skill commensurate with a Certificate II with at least two years on the job training.  It also states at least three years of relevant experience may substitute for formal qualifications. 

9. Mr Maxwell said he left school when he was fifteen and worked with Reilly Scaffolding building bridges and roads in Ireland.  This was also known as Clonkill Constructions.  He provided a letter from Reilly Scaffolding, which is no longer trading, saying he worked as a formwork carpenter and a finishing concreter from September 2009 until March 2012.  Mr Maxwell said his role was to build formwork for the piers for bridges.  He also constructed formwork for footpaths and assisted in the construction of a rood for a conservatory.  He then came to Australia and was working on the Cotter Dam in Canberra for KPS Civil, which was taken over by Lis-Con.  He was offered work by Lis-Con when they took over KPS Civil. 

10. While working at the Cotter Dam his role was to put together formwork, and he says this task requires a carpenter.  He says he worked on the Cotter Dam for four or five months and then came to Adelaide and got casual work doing formwork for footpaths and steps for a school.

11. He returned to Ireland for two to three moths then returned to Australia and worked for Lis-Con in Adelaide on the urban superway. He then went to Nyngan to work, and Mr O’Neill said Mr Maxwell was doing crossovers and bases and some work on a solar farm. He is no longer working for Lis-Con due to the six month restriction in working for one employer on his visa.  

12. Mr O’Neill said Mr Maxwell was employed by Lis-Con on the advice of his foreman Roland Usher who was working on Cotter Dam.  Mr Usher recommended who from KPS Civil should be retained on the job.  He said this was solely on how they performed the work because the scale of the job means that unless the person is efficient and accurate in the task Lis-Con loses money, or the formwork could became dangerous given the scale of the works.  Mr O’Neill says Mr Maxwell would not have been retained by Lis-Con if he was not able to do the tasks of a carpenter.  He said the organisation was too large for him to have known Mr Maxwell personally, but he relied on his foreman’s recommendation.   He said they require carpenters to do formwork due to the accuracy required for the formwork, and 99% of those doing the formwork were carpenters. 

13. Mr O’Neill gave consistent evidence on the jobs Mr Maxell had worked on for Lis-Con being the Cotter Dam and the South Road underpass (urban superway) in Adelaide.  Mr O’Neill said that at the moment Lis-Con want Mr Maxwell back because there is a shortage of carpenters.  He says they currently have 32 positions that cannot be filled from a workforce of 240 to 250 people.  The turnover of Lis-Con is $50 to $60 million per year. 

14. On the basis of Mr O’Neill evidence, which was not available to the delegate, I am satisfied that his reference from Reilly Scaffolding reflects his experience as a carpenter.  I accept that the scale of Lis-Con’s business and the projects they undertake means they would not employ a person as a carpenter unless the person had those skills.  Lis-Con has been satisfied with Mr Maxwell’s skill, and I see no reason why they would otherwise seek to employ him.

15. As a result, I am satisfied Mr Maxwell has the skills, qualifications and experience necessary to perform the tasks of the nominated occupation the position and that he meet cl.457.223(4)(da) of Schedule 2 of the Regulations.

16. 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

17. 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.

    Kate Millar
    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.