Aus Build- Tech Pty Ltd (Migration)

[2022] AATA 2693

Aus Build- Tech Pty Ltd (Migration) [2022] AATA 2693 (20 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Aus Build-Tech Pty Ltd

VISA APPLICANTS:  

Mr Wayne Michael Reilly

Ms Shirley Ann Reilly

Miss Kimberly Ann Reilly

Mr Sean Anthony Reilly

Mr Jason Patrick Reilly

CASE NUMBER:  1910072

HOME AFFAIRS REFERENCE(S):          BCC2019/1248242

MEMBER:Alan McMurran

DATE:20 June 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the first-named visa applicant a Temporary Skill Shortage (Class GK) visa.

The Tribunal has no jurisdiction with respect to the second to fifth-named visa applicants.

Statement made on 20 June 2022 at 11:29am

CATCHWORDS
MIGRATION –Temporary Skill Shortage (Class GK) visa – Subclass 482– Medium-Term stream – Production or Plant Engineer – sponsorship agreement and the approved nomination have ceased – no evidence what the nominee will be managing as a production plant – not satisfied that the position associated with the nominated occupation is genuine –– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360 363
Migration Regulations 1994, Schedule 2, cl 482.212, 482.231

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 23 April 2019 for review of a decision made by a delegate of the Minister for Home Affairs on 18 April 2019 to refuse to grant the visa applicants Temporary Skill Shortage (Class GK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The criteria for a Subclass 482 visa are set out in Part 482 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Applicants seeking to satisfy the primary criteria for the visa must meet the ‘Common criteria’ and the criteria of one of three alternative streams: The Short-term stream, the Medium-term stream, or the Labour Agreement stream. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria.

3. The applicants applied for the visas on 12 March 2019. At that time, Class GK contained one subclass: Subclass 482 (Temporary Skill Shortage). In this case, the review applicant (“the sponsor”) is seeking approval for the visa in the Medium-Term stream.

4. The sponsored occupation is for ANZSCO 233513 Production or Plant Engineer (“the nominated occupation”). Wayne Michael Reilly, who is a 63-year-old citizen of the Republic of India (“the nominee”) is the visa applicant who has been sponsored in the Medium-Term stream for up to 4 years, to work in the nominated occupation.

5. The second to fourth named visa applicants are members of the nominee’s family unit (“family visa applicants”). The family visa applicants are offshore now residing in Canada and have not made separate applications. As this is not a combined application by the review applicant for all visa applicants, the Tribunal cannot consider the applications by the family visa applicants, as it has no jurisdiction to do so.

6. The delegate in this case refused to grant the visa on the basis that the nominee did not satisfy the requirements of cl 482.212(3) of Schedule 2 to the Regulations, because the delegate was not satisfied there was sufficient information as to the first visa applicant’s qualifications and experience. The delegate found there was no evidence that the visa applicant held a Bachelor degree or higher qualification.

7. For the following reasons, the Tribunal has decided that the decision under review should be affirmed.

   Background

8. The review applicant is unrepresented (“the applicant”). The applicant was an approved sponsor under a sponsorship agreement from 17 May 2017 to 17 May 2022. The applicant is acting in this review by its Managing Director, Mr Richard Furnell (“the director”).

9. The applicant obtained a sponsorship approval on 19 December 2018 under the sponsorship agreement. As per regulation 2.75(2)(b), the nomination approval from that date remains current, pending completion of the nomination review for the visa.

10. The applicant carries on business in Australia in the construction industry. The applicant was formed in April 2006. It describes its core business as: “the supply of light gauge steel frames to the domestic and commercial construction industry. We manufacture steel frames in-house with the materials purchased locally from BlueScope Steel. The manufacturing process is CNC cold rolled formed process that meets the Truecore criteria, and we carry the BlueScope warranty of up to 50 years on the products we sell.”

11. The nominee initially sought to include his family. The applicant however has since advised the Tribunal[1] that the family members do not wish to proceed with applications. The family members were not part of a combined application or separate application and the Tribunal in any event has no jurisdiction in respect of the family visa applicants named in the application.

    [1] 15 May 2022-letter from applicant to Tribunal (on tribunal case file)

    Tribunal history – chronology of process

12. There was a delay from application lodgement in the Tribunal to constitution to a Member from 23 April 2019 to 9 March 2022. The applicant sought on several occasions to pursue earlier completion in the Tribunal, but a request for priority was not granted.

13. On 30 March 2022, following constitution, the Tribunal wrote to the applicant requesting information and a response as to the qualifications and experience of the nominee for the nominated occupation. The applicant was requested to respond by 13 April 2022.

14. On 30 March 2022, the Tribunal dispatched a hearing invitation for a proposed hearing under section 360 (1) on 27 May 2022.

15. On 31 March 2022, the Tribunal wrote to the applicant concerning its review of the family visa applicants, requesting particulars relating to jurisdiction, and a response by 14 April 2022.

16. On 11 April 2022, the Tribunal received a response to hearing invitation, but nothing further, and no response to the request for information concerning the nominee’s qualifications and experience. The hearing response indicated the applicant intended to rely upon documents ‘listed below’, but no documents were listed. In his covering email, the applicant’s director noted: “I am sorry I only found this email today in the spam folder. Do hope I am not late as I have been waiting 2 and half years for this hearing”.

17. On 3 May 2022, the Tribunal sent a further email to the applicant. The Tribunal’s email records: “The Tribunal received your email on 11 April 2022 and notes that you might have overlooked the two letters sent to you on 30 March and 31 March 2022. Please provide your response at least one week before the interview scheduled on 27 May 2022.”

18. On 12 May 2022 the Tribunal sent a further email to the applicant which states:

    “On 30 March 2022 the Tribunal sent you a letter under s 359(2) and invited you to provide more information to support the nominee's application. You were required to respond by 13 April 2022. To this day the Tribunal has not received your response.

    On 31 March 2022 the Tribunal sent you another letter under s 359A and invited you to comment on adverse information about the nominee's family members' application. You were required to respond by 14 April 2022. To this day the Tribunal has not received your response. Under s 360 you have lost your right to appear before the Tribunal and the hearing scheduled on 27 May 2022 is cancelled. The Tribunal will proceed to make a decision on the material before it. Any further submissions that you wish the Tribunal to consider must be received by the Tribunal no later than 20 May 2020. A decision may be made any time after 20 May 2020.”

19. On 12 May 2022, the applicant responded and protested noting: “I sent response on 11 April” (referred to above).

20. On 12 May 2022, the Tribunal officer re-sent the Tribunal letters of 30 March 2022 and 31 March 2022. The Tribunal officer’s case notes state:

    “The RA called and says that he didn't receive the s359(2) or s359A letters. I explained that all letters were sent to the same email address. I told him that I will forward the s 359(2) and s 359A letters (sent on 30 March 2022 and 31 March 2022) to him again and asked him to respond by 20/05/2022. I explained that the Member will consider his written submissions in making the decision. I also explained that Member may give him a phone call for an interview if the Member considers it to be necessary, but this is not guarantee. The RA indicates that the secondary applicants have now relocated in Canada and will not seek review. I explained that the Tribunal has no jurisdiction to review the secondary applicants because their applications cannot be combined with the nominee.”

21. On 16 May 2022, the applicant submitted a letter dated 15 May 2022 for consideration by the Tribunal. The letter attached a company brochure, advertisements for the position of Production Engineer on Seek and CareerOne, the nominee’s resume, and some office and factory photographs.

22. On 25 May 2022, the Tribunal sent a further letter to the applicant which states:

    “The Tribunal sent you a letter on 30 March 2022 and requested evidence of Mr Wayne Michael REILLY’s qualification or experience as a Production or Plant Engineer. You were informed on 12 May 2022 that the hearing proposed was cancelled as you had not responded before 13 April 2022 as required.

    Nonetheless, you provided further submissions on 16 May 2022. However, those submissions did not include evidence that Mr Wayne Michael REILLY has the qualification or experience required by ANZSCO (233513) Production or Plant Engineer. The relevant ANZSCO requirements state: “Plans, directs and coordinates the design, construction, modification, continued performance and maintenance of equipment and machines in industrial plants, and the management and planning of manufacturing activities. Registration or licensing may be required.” Additionally, the relevant ANZSCO requirements state: “Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. In some instances, relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).” The Tribunal will proceed to determine the application on the information available.

    The Tribunal will consider any further submissions if they are received before the decision is made, which is likely to occur in the week commencing 30 May 2022. If you have further submissions, please provide them at your earliest convenience.”

23. Despite the Tribunal’s communications with the applicant referred to above and the opportunity to provide any additional response for consideration, no further submission was received from the applicant after the submissions on 16 May 2022. No response was made to the request for further information or evidence of the nominee’s qualifications.

24. On 16 June 2022, the applicant’s director made an inquiry of the Tribunal as to ‘updated status’, but provided no further submissions, documents, or information.

25. The Tribunal believes sufficient time has been afforded to the applicant to provide any additional submissions for consideration since cancellation of the hearing under s.360(2). The Tribunal has proceeded to a decision based on the available information.

    CONSIDERATION OF CLAIMS AND EVIDENCE

26. The issue in this case is whether the applicant meets the requirements for the nominated occupation pursuant to cl.482 of Schedule 2 to the Regulations.

27. If any one requirement is not met, it is not necessary for the Tribunal to consider any remaining requirements.

    Requirement for an approved nomination

28. Clause 482.212(1) requires that the nomination identified in the visa application is approved, was made by a person who was an approved work sponsor at the time of approval and has not ceased.

29. The Tribunal finds on the available information from the Department file[2] that the review applicant was an approved business sponsor for the period from 17 May 2017 to 17 May 2022. Both the sponsorship agreement and the approved nomination have ceased, as at the time of the Tribunal’s decision. This is due to no fault of the review applicant or the nominee, but rather occasioned by the review process itself and constitution delays.

    [2] BCC2019124824

30. Regulation 2.75(2)(b) provides that 12 months after the day on which the nomination is approved, the approval of the nomination ceases, unless at that time there is a visa application made by the nominee, based on the nomination, that has not been finally determined.

31. As the visa application pursued by the review applicant and made by the nominee has not been finally determined, the Tribunal is satisfied that the review of the visa application should continue.

32. For these reasons the requirements of cl 482.212(1) are met.

    Genuine position and intention to perform occupation

33. Clause 482.212(2) requires that the applicant’s intention to perform the nominated occupation is genuine and the position associated with the nominated occupation is genuine.

34. In support of the visa application to the Department, the applicant supplied the following information about the nominee with the application:

    ·Photograph of the nominee and passports

    ·Police clearance certificates and family information

    ·Reference letters for the nominee

    ·State secondary education certificate from Maharashtra State Board

    ·Employer reference for role as Toolpusher while employed with CDPL drilling

    ·Derrickman certificate as ASSISTANT DRILLER, October 1992 and drilling equipment education course 2007;

    ·Nominee’s resume

    ·Employment agreements – Toolpusher (India -2016); Base Manager (India-2013); Driller (Muscat 1996); Assistant Rig Manager 2008; Toolpusher 2007;

    ·Various drilling certificates and courses associated with drilling industry standards while in employment.

35. The Tribunal refers to the nominee’s qualifications below in relation to his apparent extensive work history in the oil industry over many years.

36. The director has submitted for the Tribunal details of the position. The submission is contained in the director’s letter to the AAT dated 29 April 2019, which includes the following:

    Justification to our application for Case Ref No – 1910072

    Further to our lodgment of our appeal (case ref 1910072) and our subsequent letter request to prioritise our case, we write here to explain further our reasons for this.

    Prior to 2006: I, Richard Furnell, the founder of Aus Build-Tech Pty Ltd, prior to 2006 had successfully operated manufacturing plants in the Middle East including Oman and the UAE, spanning over 12 years. My core business then, was the manufacturing of rig site units and drill camps for the Oil & Gas Industry. My team and I manufactured on-site rigidly constructed accommodations and developed the entire design for this. CNC cold rolled frames was also part of our manufacturing facilities. Our proven product took away market share from American manufacturers such as Portakamp and other smaller manufacturers. Please see enclosed item 1 for a copy of our information booklet detailing this work and other facilities. Please also see enclosure 2, for more information on my business experience.

    ABT’s 5 Year Plan: We strongly intend to re-enter the Oil & Gas market, given our prior core business activity that we developed over a 12-year period along with our previously developed cliental and design. We had temporarily moved away from this market in 2006 to establish our new base in Melbourne. However, in the past couple of years we have regained contact with our past clients, which has only strengthened our goals as we realise there is a great opportunity to pick up where we left off in 2006.

    With this goal in mind for the continued growth of our business, we had searched considerably for an appropriate candidate to provide the necessary expertise and skill that we need working beside us to help ABT achieve these goals, and to lead in this specific area of our business. However, we were unable to find a candidate in the local labour market to match the specific skills and experience we required in this specialised area.

    Immigration process:

    The market we are chasing is largely in the Middle East and we realised that is where we would find the appropriate candidate with the required skills and experience. In mid 2016, we then applied for approval for two 457 visas for candidates that we have identified from our previous work, that hold the appropriate skills and experience. However, we experienced a great amount of waste of time and money on this process in seeking approval for our nomination application due to the change in laws (the 457- visa switching to the 482 visa). Once we re-applied under the new 482 process, we were then successful in obtaining the nomination approval.

    What we are looking for in a candidate:

    Our job advertisements posted on multiple search sites pointed out our main objective of getting into the global Oil & Gas Sector. Please see enclosed item 3 for copies of our advertisements. In ‘tasks to be performed’ we added ‘design’, this is important as we require a candidate with the necessary skills and experience to understand and adhere to any changes of standards that have occurred whilst we have been absent to the Oil & Gas Industry. We recognise that although we had a developed design, we will need to ensure our candidate leads changes needed to adhere to updated standards and practices. The rest of the tasks mentioned in the job advertisement were general in nature and called for the candidate to demonstrate their managerial abilities. We clearly stated that extensive knowledge in the Oil & Gas Industry is equivalent to the qualification of an engineering degree which is in line with the ANZSCO Code 233513.

    Why we are appealing the decision of Wayne Michael Reilly:

    We applied for a nomination for Wayne Michael Reilly and received the approval from the Department of Home Affairs. We emphasised at the time of the nomination that the selection we made was because he has 30 years of experience in the Oil & Gas Industry and has worked in a dozen countries within this industry. This was based of the requirements mentioned in the ANZSCO Code 233513 (a copy is attached in enclosure 4), which states, ‘at least 5 years of relevant experience may substitute for the formal qualifications.

    We at ABT can clearly see the asset that Wayne is and what he would bring to our business. He would help us broaden our client base with his immense network developed through his experience in the industry. He also has up to date knowledge with all the relevant changes to standards and procedures, which we have been absent to from the industry. Please see enclosed item 5 for Wayne’s CV. We have spent a considerable amount of time doing our due diligence on Wayne’s background, speaking to experts in the industry, doing reference checks and ticked all the boxes that we could see. Please see enclosed item 6 for a copy of the decision from the Department of Home Affairs.

    Wayne Michael Reilly:

    We see that Wayne holds more value than a degree holder because he has worked his way up the ranks in the Oil & Gas Sector through building a strong network and reputation of his own through extensive experience. A reason Wayne is holding on to the opportunity with Aus Build-Tech through the delay in this process, is also because of the high value and quality of educational opportunities that his family will have access to in Melbourne, Australia. In addition to the opportunity that Wayne understands he will have in exercising his skills and experience with Aus Build-Tech and taking on a leadership role in helping ABT achieve its goals in the Oil & Gas Industry. We have been holding on to Wayne as a candidate for the last couple of years and will not be able to hold him in limbo for much longer. We wouldn’t have spent such a large amount of time and money out of our day to day core business if we didn’t believe that this is a crucial step in helping ABT reach its goals in the next 5 years.

    We kindly request AAT to please consider all the information that we have carefully provided here in our appeal for the case to re-consider Wayne’s visa application, in line with our approved nomination application.

1. The position nominated in the description from the director is for an experienced manager who would “broaden our client base with his immense network developed through his experience in the industry. He also has up to date knowledge with all the relevant changes to standards and procedures, which we have been absent to from the industry”. The director is attracted to the nominee because “he has 30 years of experience in the Oil & Gas Industry and has worked in a dozen countries within this industry”. The director refers to a candidate who can ‘design’ because “we require a candidate with the necessary skills and experience to understand and adhere to any changes of standards that have occurred whilst we have been absent to the Oil & Gas Industry.”

2. The Tribunal concludes from the director’s submissions that:

   ·the applicant seeks to re-enter the Oil and Gas sector which it had left in 2006

   ·the applicant wants to build on the nominee’s experience and connections and skills in that industry

   ·the nominee will help broaden the applicant’s client base

   ·the applicant has not been involved in the Oil and Gas sector since 2006, notwithstanding the director’s personal experience and prior work history, which he has outlined, and where he developed expertise in constructing manufactured on site rigid accommodations

3. The position nominated of Production or Plant Engineer, is referenced in the ANZSCO guide by describing the skill sets associated with the occupation. As a reference guide, ANZSCO is a skill-based classification source compiled by the Australian Bureau of Statistics, used in the collection and dissemination of official statistics for a very large number of occupations.

4. The Tribunal regards ANZSCO as a reliable guide and useful tool for examining occupations and associated positions in nomination applications. It provides information on the required skill level for certain jobs, and the level of experience, and tasks required and to be performed for working in specified occupations. It does not “define” occupations or jobs as such, by reference to industry classifications, but as mentioned, by reference to skill levels, tasks, and qualifications.

5. For that reason, the Tribunal will place considerable weight on the ANZSCO description of the work to be performed, tasks outlined, and alignment of the position nominated with the applicant’s core business, as opposed to the mere job title or industry reference to which it is said to relate.

6. In this instance, by way of example, merely describing the role of the nominee as a Production or Plant engineer, does not make it so, and the application needs to be tested against what the director has described as the applicant’s intention in employing the nominee for that role, the description of the role itself, and in circumstances where there is no current or existing role in that regard against which tasks for the position might be aligned. The director refers repeatedly in the submission to what the applicant intends by the recruitment of the nominee in building its business and expanding its client base. It is not immediately apparent however how the nominated role working as a production or plant engineer will accomplish that objective, and by describing specifically and in particular, what it is that the nominee will actually do in the role. The Tribunal refers to this below in discussing the applicant’s skills and qualifications and his employment background, and which at first blush, does not appear to be in a related industry.

7. The Tribunal finds from the director’s description that the applicant’s focus is on the nominee’s “immense network” and strength obtained through work experience in the Oil and Gas sector over many years. If the applicant’s business operated in the Oil and Gas sector presently, it is more easily understood why a candidate of the nominee’s background and experience would be relevant. It would also explain that the applicant intended that the nominee would fill an existing position, genuinely that of a Production or Plant Engineer operating in the Oil and Gas sector. The fact is however that the applicant is not presently operating in that field. It is a role which is anticipated, but which does not actually exist. There is no evidence that there is a comparable position in the applicant’s business.

8. No evidence has been produced or submitted to show how the nominee will work in the nominated role,  the applicant’s infrastructure, plant, and equipment, staffing levels, machinery and manufacturing activities and assets, existing employees, and works upon which it is engaged, and requiring the expertise of a Production or Plant Engineer, or how the nominee will design and oversee construction operations  and coordinate manufacturing activities for the applicant’s perceived operations in the Oil and Gas sector. There is no evidence of what the director has referred to as the nominee’s ‘up to date knowledge’ of ‘relevant changes to standards and procedures’ and how that will promote the applicant’s business growth and development beyond its present capabilities.

9. The Tribunal is satisfied that the applicant would like to recruit the nominee, primarily for business growth and development. That is not however the position nominated which is specifically for a Production or Plant Engineer. It is not enough in this tribunal’s view for the applicant to rely upon what is evidently significant work experience of the nominee in another industry, and to say that such experience will equip him for a new role with the applicant as a production or plant engineer. It is necessary to understand what that role for the applicant entails and how the skills already acquired will be utilised and translate in an engineering sense to the applicant’s manufacturing activities.

10. The Tribunal finds that having carefully reviewed the applicant’s submitted documents and information from the director, it is not satisfied the nominated position is genuine and that the nominee will in fact perform the stated occupation. The Tribunal finds that the applicant as stated intends to engage the nominee in a management role for advancement of the business in a new field of endeavour in the Oil and Gas sector. It is not satisfied however that the position nominated exists or will exist, based on the current submissions.

11. The applicant has provided evidence of its current operations in the “domestic and commercial construction industry”, which on its face is not related to the nominee’s experience as a Driller, Base and Rig Manager, and Toolpusher in that industry. The available information does not explain what role and tasks the nominee will perform as a Production or Plant Engineer, and how the nominee’s experience in oil drilling and rig management will align with the anticipated position for the applicant.

12. The Tribunal finds there is no evidence that the applicant’s current activity in domestic and commercial construction aligns with the proposed new position of Production or Plant Engineer as outlined by the director, and for a planned expansion into the Oil and Gas sector.

13. There is no evidence what the nominee will be managing as a production plant or factory, or operational equipment, or how he will perform the occupation and to align with the stated purpose of establishing a broadened business base, utilising the nominee’s strong network and reputation and with the nominee’s extensive experience in the Oil and Gas sector. The director and the applicant must have some better idea as to how its objectives and plans will be achieved, but they are not apparent from the information provided and available to the Tribunal, and the Tribunal cannot speculate as to such objectives and plans.

14. For these reasons the Tribunal is not satisfied that the position associated with the nominated occupation of Production or Plant Engineer is genuine.[3]

    [3] cl.482.212(2)(b)

15. For these reasons the requirements of cl 482.212(2) are not met.

    Applicant’s skills, qualifications and employment background

16. Clause 482.212(3) requires the applicant to have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation. In addition, under cl 482.212(4), 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.

17. ANZSCO describes the nominated occupation thus:

    Industrial, Mechanical and Production Engineers design, organise and oversee the construction, operation, logistics and maintenance of mechanical and process plant and installations, establish programs for the coordination of manufacturing activities, and ensure usage of resources is cost effective.

    Specifically:

    233513 Production or Plant Engineer

    Plans, directs, and coordinates the design, construction, modification, continued performance and maintenance of equipment and machines in industrial plants, and the management and planning of manufacturing activities. Registration or licensing may be required.

    Tasks are described as:

    • developing and reviewing functional statements, organisational charts and project information to determine functions and responsibilities of workers and work units and to identify areas of duplication
    • establishing work measurement programs and analysing work samples to develop standards for labour utilisation
    • analysing workforce utilisation, facility layout, operational data and production schedules and costs, to determine optimum worker and equipment efficiencies
    • designing mechanical equipment, machines, components, products for manufacture, and plant and systems for construction
    • developing specifications for manufacture, and determining materials, equipment, piping, material flows, capacities and layout of plant construction and systems
    • organising and managing project labour and the delivery of materials, plant and equipment
    • establishing standards and policies for installation, modification, quality control, testing, inspection and maintenance according to engineering principles and safety regulations
    • carrying out inspections to ensure optimum performance is maintained
    • directing the maintenance and coordinating the requirements for new designs, surveys and maintenance schedules

18. The director asks the Tribunal to accept that the nominee will be performing all these tasks, because of his work experience in the Oil and Gas sector.

19. The Tribunal has not had the opportunity to discuss with the nominee the position nominated. There has not been a statement from the nominee outlining the tasks it is proposed that he will actually perform, where, how, when, and with whom those tasks will be performed. As noted above, the nominated position is anticipatory, but which can still be considered where there is objective evidence, such as may be included in statements or written explanations, setting out the tasks to be performed in the role. No witnesses have been called by the applicant or have produced any statements about the nominated occupation. Photographs provided of structures designed and constructed within the applicant’s business do not demonstrate the role.  As already noted, the applicant has not provided information concerning the role, where it will be performed, the nature of the applicant’s plant and equipment in existence, or anticipated, any factory or sub-contract operations involved and the functions and responsibilities of the applicant’s workforce.

20. ANZSCO provides that most occupations in this unit group, which includes Production or Plant Engineer, have a level of skill commensurate with a Bachelor degree or higher qualification. In some instances, relevant experience and/or on-the-job training may be required in addition to the formal qualification. The occupation is at the highest skill level, ANZSCO Skill Level 1. Examples of specialised roles for the occupation group include automation and control engineers and maintenance engineers in shipbuilding.

21. The information available is that the nominee does not have a formal qualification such as a Bachelor degree or higher. He holds several certificates obtained through extensive experience and working in the Oil and Gas sector. There is no evidence however that the certificates are relevant to the nominated occupation or equate with a Bachelor degree or higher.

22. The nominee’s resume submitted to the Tribunal by the applicant shows a 63-year-old candidate with extensive experience as a senior Toolpusher, Drilling Superintendent and Base Manager, Driller and Derrickman, Floorman and Roustabout from about 1980 and continuing. These are all occupations within the oil drilling industry.

23. A Toolpusher, being one of the nominee’s senior roles is described as a person “in charge of keeping the rig in all necessary tools, equipment, and supplies. They work closely in conjunction with the representative of the operating/exploration company in regard to the actual drilling of the well. In recent times, tool pushers also have taken on somewhat of an administrative role, as they frequently do paperwork related to the rig crew regarding payroll, benefits, and related matters. Tool pushers are also responsible for coordinating services with third party companies related to the drilling of the well.”[4]

    [4] Wikipedia

24. The Tribunal finds that none of the nominee’s experiences outlined in his resume directly align with the tasks as described in the nominated occupation by ANZSCO. There is no evidence produced to show that in fact the applicant has experience performing those tasks, either in the occupation nominated itself or in the other roles he has performed during his working career.

25. The Tribunal does not accept the director’s statement that “extensive knowledge in the Oil & Gas Industry is equivalent to the qualification of an engineering degree which is in line with the ANZSCO Code 233513.” There is no evidence from the Australian Skills Quality Authority (“ASQA”) which is the Australian Government’s national regulator for vocational education and training, that experience such as that of the nominee will suffice in place of a Bachelor degree or higher. Obtaining certificates does not usually result in a degree, although some certificates may provide credits towards degree qualifications. Although the nominee has several certificates which are in evidence from overseas, there is no evidence those certificates either equate to or would be credited towards an equivalent Bachelor degree qualification.

26. The Tribunal finds that although the nominee is highly skilled for certain roles within the Oil and Gas sector, on the available information, the applicant does not have the skills, qualification, or employment background necessary to perform the tasks of the nominated occupation and which align with the ANZSCO description for that occupation. The Tribunal does not accept the director’s assertions to the contrary.

27. For these reasons the applicant does not meet the requirements of cl 482.212(3).

    Requirement to have worked for at least 2 years

28. Clause 482.231 requires that the applicant has worked in the nominated occupation or a related field for at least 2 years.

29. The nominee’s experience is identified on the available facts as exclusively within the Oil and Gas industry sector. The Tribunal is satisfied this is not a ‘related field’ to the Australian “domestic and commercial construction industry”, as stated by the director.

30. There is no objective evidence to illustrate how this experience is a ‘related field’ of expertise, and where the nominee has worked over a 2-year period, and aligns with or is related to what the applicant describes as its core business “in the domestic and commercial construction industry”. As expressed by the applicant, its intention is to re-engage with the Oil and Gas sector from which it is presently absent, and which is not its current business operation in the context of the domestic and commercial construction industry in which it is presently engaged in Australia.

31. Based on the available information and findings of the Tribunal as set out above, the Tribunal is satisfied that the nominee has not worked in the nominated occupation or a related field for at least 2 years and therefore cannot meet the requirement of the regulation.

32. For these reasons, cl 482.231 is not met.

    Conclusion

33. Although the Tribunal is not required to consider other requirements where any one requirement for the visa is not met, the Tribunal has taken the trouble to consider what it considers are three related requirements in terms of the submissions made by the applicant, and in fairness, attempting to deal with the candid and earnest submissions from the director.

34. The Tribunal notes that the applicant has not had the benefit of expert assistance from a migration agent or lawyer in presenting the applicant’s case for consideration, and the Tribunal has some empathy for the director who seeks to grow and expand a perceived business opportunity. That, however, is not the Tribunal’s task, which is only to find if the nominated occupation for the visa application meets the statutory criteria as set out in the Regulations, and there is no discretion to depart from that process of evaluation and assessment in its merits review, regardless of the well-intentioned objectives of the applicant and its director.

35. The Tribunal has found that the requirements of cl. 482.212(2), and cl. 482.212(3), and cl 482.231 have not been met.

36. As these essential requirements for the visa are not met, the decision under review must be affirmed.

    Secondary visa applicants

37. These applicants are members of the nominated visa applicant’s family unit.

38. As they are not proceeding, according to the applicant’s submission, and the applicant has not made a combined application for those visas, the Tribunal has found it has no jurisdiction in respect of those family visa applicants.

    DECISION

39. The Tribunal affirms the decision not to grant the first-named visa applicant a Temporary Skill Shortage (Class GK) visas.

40. The Tribunal has no jurisdiction with respect to the second to fifth-named visa applicants.

    Alan McMurran
    Member