Begley (Migration)

[2019] AATA 4834

Begley (Migration) [2019] AATA 4834 (15 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kieran Joseph Begley

CASE NUMBER:  1706433

DIBP REFERENCE(S):  BCC2016/2203355

MEMBER:Jennifer Cripps Watts

DATE AND TIME OF

ORAL DECISION AND REASONS:          15 October 2019 at 12:05 pm (NSW time)

DATE OF WRITTEN RECORD:                29 October 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the decision under review with the direction that the applicant meets following criteria for a Subclass 457 visa:

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

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

Statement made on 15 October 2019 at 12:05am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) – Subclass 457 – skills, qualifications and employment background for nominated position – three years’ full-time work experience in lieu of formal qualifications – decision under review remitted

LEGISLATION

Migration Regulations 1994 (Cth), Schedule 2, cls 457.223(4)(da), 457.223(4)(e)

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 8 March 2017 to refuse to grant the visa applicant a Temporary Business Entry (Class UC) Subclass 457 visa under the Migration Act 1958 (the Act).

2. At the hearing on 15 October 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is a decision in the Migration and Refugee Division of the Administrative Appeals Tribunal.  The applicant is Mr Kieran Joseph Begley.  The Tribunal case number 1706433.  Department reference BCC2016/202003355.  Member Jennifer Cripps Watts.  Date 15 October 2019 and the place of the decision is Sydney, New South Wales.

4. The decision is that 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, clause 457.223(4)(da) and (e) of Schedule 2 to the Regulations.

5. This is an application for review of a decision of a delegate of the Minister of Immigration to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under section 65 of the Migration Act 1958. The visa applicant applied for the visa on 29 June 2016. The delegate refused to grant the visa on 8 March 2017 on the basis that clause 457.223(4)(da) was not met because they were not satisfied that the applicant demonstrated that he had the skills, qualifications and employment background necessary to successfully perform the tasks of the nominated occupation of Drainer Australian and New Zealand Standard Classification of Occupations (ANZSCO) 334111.

6. On 29 March 2017 the applicant applied for review within time and provided the Tribunal with a copy of the delegate’s notification and decision.  The applicant appeared before the Tribunal on 15 October to give oral evidence and present arguments.  The Tribunal also heard from Nigel McGonagle, director and part owner of the related nominating company and the applicant’s current employer Isle Civil Pty Ltd.

7. For the following reasons the Tribunal has concluded 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 clauses 457.223(4)(da) and (e).  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 clause 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.  The most recent nomination for the applicant is by Isle Civil Pty Ltd, their standard business sponsorship was approved for five years on 6 July 2015.

9. The current nomination relating to the applicant in the nominated occupation of drainer was approved on 8 December 2018.  The witness and part owner of the company Nigel McGonagle gave oral evidence confirming what was contained in the letter provided by Darren McGonagle, dated 10 October 2019, that the applicant has worked for them from December 2016 and that he continues to work at Isle Civil as a drainer.

10. According to ANZSCO, the nominated occupation has an indicative skill level of AQF Certificate III, including at least two years on the job training or AQF Certificate IV.  At least three years of relevant experience may substitute for formal qualifications.  Registration or licensing is required in certain circumstances not applicable to this applicant, where he works under the supervision of a licensed drainer who signs off on his work.  In this case oral evidence was given that person at Isle Civil is Darren McGonagle.

11. Relevantly, the applicant has provided the Tribunal with letters from his current and previous employers in Australia indicating a total of approximately three years and a few months’ employment where they say he has worked as a drainer during the following periods:   December 2016 to date and current ongoing for Isle Civil Pty Ltd the nominating company; and from May 2016 to October 2016 at Athassel Civil Pty Ltd.  The letters provided containing the above information are from the Isle Civil director Darren McGonagle dated 10 October 2019 and Athassel Civil dated 10 October 2019 signed by Joe Morrissey.

12. The occupation of drainer, regardless of whether the applicant is relying on formal qualifications, as stated before, if they do not have the qualifications, still must have worked for at least three years in the occupation.

13. The applicant said he works as a drainer for on average about 50 hours a week.  He has provided documents, including certifications and site issued documents, that corroborate the periods where he has worked that are included in the work reference letters, and satisfies the Tribunal that he has worked as a drainer for at least three years in Australia since 2016.  Those documents are overhead awareness, project and workplace induction 2016, West Connect pass card issued at Athassel Civil, induction September 2016, WorkCover general cover induction 2014, working with live electrical apparatus February 2018 and 2019, verification of competency for operating machinery, working in confined spaces 2016, an ID card from Diona where he is currently working from July 2019, Sydtrack ID card February 2019.

14. The witness and part owner of Isle Civil Nigel McGonagle said that his brother Darren, director and co-owner, is a licensed or registered drainer and he signs off on the applicant’s work.  The applicant described what he does at work and said he performs duties including marking out lines, digging trenches, creating mine steps and grates for pipes, ensuring he knows where the cables and ground services are before they start digging.  He said he sets up lasers to get a grade, then makes a bed to place the pipes and backfills and compacts.  He is currently working for Isle Civil for a company called Diona.  He has also worked on the WestConnex tunnel at Haberfield.  During the course of his work the applicant liaises with engineers and surveyors.

15. The Tribunal is satisfied that the applicant has worked fulltime for about three years performing the duties consistent with those contained in the ANZSCO for the nominated occupation of drainer 334113.  For these reasons the applicant satisfies the requirements of clauses 457.223(4)(da) and (e).

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; and

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

    Jennifer Cripps Watts
    Member