Grant (Migration)

[2024] AATA 3020

Grant (Migration) [2024] AATA 3020 (31 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Martin Gerard Grant

REPRESENTATIVE:  Miss Mary Catherine Murphy (MARN: 1067094)

CASE NUMBER:  2107585

HOME AFFAIRS REFERENCE(S):          BCC2020/1666188

MEMBER:Alison Mercer

DATE:31 May 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a subclass 482 visa:

·cl 482.212(2) of Schedule 2 to the Regulations

Statement made on 5:00pm on 31 May 2024

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – medium-term stream – welder – genuine position – employment history – now sole director and shareholder of sponsoring employer and only direct, salaried employee – business connections, infrastructure projects and development of subcontracting crew – unresolved visa status hampering expansion of business – skills shortage and priority list – policy does not prevent individuals from sponsoring themselves – updated and detailed evidence – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 482.212

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 June 2021 to refuse to grant the visa applicant a Temporary Skill Shortage (Class GK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 2 June 2020. At that time, Class GK contained one subclass: subclass 482 (Temporary Skill Shortage). 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. In this case, the applicant is seeking the visa in the Medium-term stream to work in the nominated occupation of Welder (First Class).

3. The delegate in this case refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of cl 482.212(2) of Schedule 2 to the Regulations, which required (amongst other things) that the position associated with the nominated occupation was genuine. The delegate found that the applicant had not worked for his sponsoring employer, Derrygal Group Pty Ltd, as an employee since September 2017 as he was now the sole director and shareholder of the company, and not its employee. The delegate noted that this was effectively self-sponsorship, and that found that there was not enough information provided to justify the need for the nominated position within the business, beyond securing a migration outcome for the applicant.

4. The Tribunal received a review application from the applicant on 10 June 2021, which was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Ms Mary Murphy, as his representative and authorised recipient for correspondence.

5. On 16 April 2024, the Tribunal wrote to the applicant via his agent to invite him to a hearing to be conducted by videoconference on 15 May 2024. He was also asked to provide any additional material in support of his case prior to the hearing.

6. On 6 and 7 May 2024, the Tribunal received additional material from the applicant, together with submissions from his agent as follows:

   …

   Please find attached supporting documentation to show that my client is a genuine welder and has
   been working as a welding in his own business since 2017. Mr Grant has submitted a sample of
   documents, emails chains showing conversations about welding, contracts, invoices, references,
   qualifications, ISO certification, photos. We hope we have not provided too many documents to
   waste your time but also, we wanted to give a sample of everything so that you could see that he is
   most definitely a welder and is genuinely working as one. Again, I hope that we have not annoyed
   you with the volume, my apologies if we have.
   Please find enclosed:
   Attachment A Emails from Delcon Civil showing the nature of the work that being welding.
   Attachment B and C are the associated PO and contract.
   Attachment D with a major Sydney Water project with John Holland showing again that it is
   genuinely welding work and contributing to a major project.
   Attachment E - Fulton hogan project in Rouse Hill which Derrygal was asked to provide a quotation
   but couldn't due to lack of available resources at the time
   Attachment F – Sample Invoice for Welding Work Diona
   Attachment G Emails showing works tendered with Diona on a hunter water project
   Attachment H Sydney Water Project Pipe fittings to manufacture – Ongoing continuation of pipe
   fittings to manufacture throughout the project duration
   Attachment I – Welding Supervisor Qualification
   Attachment J Welding Supervisor Letter received last year
   Attachment K Account statement for Welding supplies
   Attactment L Emails 2022- 23 for a 600km hydrogen line for APA (nacap contractor)
   Attachment M Invoice326497 Invoice from welding supply for new generator
   Derrygal unfortunately had equipment stolen and had to replace with new equipment
   Attachment N-WPQR-T-024- Martin Grant (PWA-025) – Site specific Welding Paperwork
   Attachment O Attachment O NCN2300737-1 - UT & MPI of 914OD Pipe welds (PWA 23-55) - 7 Sep
   2023 – Site specific Welding Paperwork
   Attachment P ISO Accreditation for Provision of Welding and Fabrication Work
   Attachment Q Welding Inspection Report St Marys
   Attachment R Photos of the Welding Work
   Attachment S Reference Quickway
   Attachment T Reference PWA
   Attachment U Reference Athassel Civil
   Attachment V Contract PWA
   If possible to make a decision in favour of my client could the member please make a decision on the
   papers.

   Many thanks for your time, we really appreciate it.

   …

7. The applicant appeared before the Tribunal by videoconference on 15 May 2024 to give evidence and present arguments. The Tribunal also received oral submissions from the applicant’s agent, who also attended by videoconference.

8. The Tribunal exercised its discretion to hold the hearing by videoconference as it determined it was reasonable to hold a hearing by videoconference, having regard to the nature of this matter and the individual circumstances of the applicant, who is based in New South Wales, and the Presiding Member, who is based in the Tribunal’s Victorian registry. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by videoconference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

9. The applicant told the Tribunal that after completing his welding training and an apprenticeship with a small firm (BMK) in Ireland, he came to Australia in 2012. In September 2012, he was employed as a welder here by a large firm, Transfield, on projects for coal seam gas in outback Queensland. The applicant said that he found this work more interesting than the welding work he had been able to undertake in Ireland, as it involved large and specialised infrastructure work and provided him with specialised welding experience and good pay. After a period with Transfield, he returned to Ireland. He came back to Australia in 2013 and worked for Specialised Field and Plant Services (SFPS), which was a smaller company than Transfield, but still involved in infrastructure projects connecting with coal seam gas. The applicant told the Tribunal that he moved to Chinchilla in regional Queensland for this work, and as he had done so and it was a smaller company, this gave him the opportunity to get increased hands on experience in specialised welding and greater responsibilities. He stayed in this role until 2015, when he observed that this type of work was decreasing. The applicant therefore moved to Sydney and worked there and up and down the east coast as a welder on a part time basis while undertaking a Certificate IV in Leadership and Management and holding a student visa.

10. The applicant said that the Australian company Derrygal Group Pty Ltd was established by his then partner, who was an Australian permanent resident. The company was set up to service and work within the construction industry, by placing various workers with other employers and providing plant hire. The applicant said, however, that the company’s operations were a little unfocussed. He said that he worked as a welder through this company and began building up relationships with other tradespeople and companies in the construction industry, particularly focussing on infrastructure projects by Sydney Water, as he was interested in getting into this industry sector. This proved to be quite successful and by 2019, the applicant said that Derrygal Group Pty Ltd was getting good work offers, including from Sydney Worker. However, at the same time, his relationship with his Australian partner broke down and his plans to apply for a partner visa could no longer proceed. He therefore decided to put his efforts into being sponsored and nominated by Derrygal Group Pty Ltd as a Welder (First Class). The applicant told the Tribunal by that this time, he had reached an agreement with his ex-partner to buy Derrygal Group Pty Ltd’s business. He became the sole shareholder and director, and continued to actively search out business connections and project work in the infrastructure sector, particularly with Sydney Water. The applicant said that it took a lot of time and effort but he was able to make strong connections, and work effectively on a continuing basis, with Pacific Welding Australia (PWA). He noted that he developed a particularly strong relationship with Mr Grant Davis (a Welder by training) and Mr Ryan Jones (an Engineer), the principals of PWA and now worked with PWA on various projects on an ongoing basis, initially on a big project in Western Australia and now in Sydney and surrounding areas.

11. The applicant told the Tribunal that he was the only direct, salaried employee of Derrygal Group Pty Ltd but that he had developed a trustworthy crew of Australian welders who worked as subcontractors for the company, and whom he supervised when Derrygal won tenders and contracts. The applicant said that he vetted all potential Welders to work with him and under the auspices of Derrygal very carefully as they were working in a high pressure environment on large infrastructure projects, which were very demanding. The applicant said that he paid his subcontractors a good rate as he knew that this was necessary to get and retain the best tradespeople. He concurred with the Skills Priority List 2023 prepared by the Australian government’s National Skills Commission indicating that Welders (First Class) were in short supply in all states and Territories in Australia, and he noted that it was difficult to get apprentice welders to complete their training and enter the field, especially in regional areas. The applicant noted that one of the reasons for the success of Derrygal in attracting good work was the quality of the crew that he had assembled and led. The companies leading big infrastructure projects needed very reliable, skilled and professional tradespeople, and he had worked very hard to ensure that his company could provide this standard of Welder. He noted that he could have chosen to pay his subcontractors less than he did, but to do so would ultimately not serve the company, as it would lose (or not be able to attract and retain) the best workers.

12. The applicant said that the move into water infrastructure projects mean more long term, stable contracts (compared to the coal seam gas industry, which was far more volatile). He told the Tribunal that he was confident, based on the company’s growth so far, that it had the potential to expand further at which point he intended to take on additional direct employees. The applicant noted, however, that his unresolved visa status had hampered the expansion of the business to some degree, as it made it more difficult for him and/or the company to obtain credit (for instance, to buy a business property and/or significant equipment), which was a handbrake on its competitiveness compared to other companies in the industry.

13. Following the hearing, the Tribunal received additional material on 27 and 28 May 2024 from the applicant and his agent, being evidence of the applicant’s employment of Australian permanent resident and citizen subcontractors through Derrygal Group Pty Ltd.

14. The applicant’s agent noted that, ‘[a]all of these welders worked for Derrygal so although [the applicant] is the only full-time employee these welders are regularly employed on a subcontractor basis on excellent rates.’

15. Invoices and banking records were provided showing evidence of various payments by Derrygal Group Pty Ltd totalling $72,160 to JC Welding Australia Pty Ltd in the period January to April 2024, payments totalling $129,712 to SJT Enterprises in the period August 2023 to April 2024, payments totalling $120,890 to MW Welding Specialists in the period July 2023 to February 2024, payments totalling $85,025 to Transfusion Welding in the period January 2020 to September 2023, payments totalling $44,742 to TKR Welding in the period September 2023 to November 2023, payments totalling $20,570 to Hi Spec Welding in the period September to November 2023, and payments totalling $100,950 to Stiles Welding in the period September 2023 to January 2024.

16. In addition, the Tribunal received 2 letters from subcontractors. One was from Mr Michael Whalan, director of MW Welding Specialists Pty Ltd, who stated as follows:

    Derrygal Group Pty Ltd has engaged myself, the Director of MW Welding Specialists Pty Ltd ATF MW Welding Specialists Discretionary Trust for specialist welding contracting services over 2023-2024 for major infrastructure projects.

    [The applicant] and Derrygal Group have an exemplary contractor structure with attractive pipeline rates that are not often seen in the industry today.

    Derrygal Group has a proven track record on major critical infrastructure projects and continues to successfully tender which has allowed me to make better revenue as a subcontractor.

    I am an Australian born citizen and have over 20 years welding experience.

    During my 20 plus years welding, I have completed many large scale pipeline projects, working for numerous international pipeline and construction companies. These include Northern Goldfields Interconnect Pipeline for NACAP, FMG Iron Ore Fortescue waterline for Murphy’s Pipe and Civil and Ichthys LNG project off Darwin. Furthermore, to this I have travelled throughout various countries and have represented Australia in Word skills Olympics, travelling to Switzerland in 2003.

    During 2023-2024, I subcontracted for [the applicant] of Derrygal Group for the Sydney Metro West Project Concept between Westmead and the Sydney CBD.

    …

17. The other letter was dated 27 May 2024 and was from Mr Samuel Maindonald (trading as SJT Enterprises Australia), who stated as follows:

    …

    Derrygal Group Pty Ltd has engaged myself Samuel Maindonald (STJ ENTEPRISES AUST) Pty Ltd as a specialist welding contracting service over the last number of years for major infrastructure projects.

    [The applicant] and Derrygal Group Pty Ltd have an exemplary contractor structure with attractive pipeline rates that are not often seen in the industry today.

    Derrygal Group has a proven track record on major critical infrastructure projects and continues to successfully tender which has allowed me to make better revenue as a subcontractor. [The applicant] and Derrygal Group has kept myself [STJ ENTERPRISES] engaged continuously as a preferred welding services provider since the beginning of 2023 and is likely to carry on into the foreseeable future which I look forward to with enthusiasm.

    I am a permanent resident of Australia since 2004 and have over 20 years experience as a specialist welder on major pipeline infrastructure projects across Australia and offshore. Including numerous water infrastructure projects in the Sydney and surrounding areas  for Derrygal Group which I am currently supplying services for. Also other water and gas pipelines for major clients such as APA, QGC, ORIGIN ENERGY, EPIC ENERGY, SYDNEY WATER and many more as a Welding contractor I have supplied welding services to these clients via principal contractors NACAP AUSTRALIA PTY LTD, HOWELL DAVIES WELDING PTY LTD, MURPHYS PIPE & CIVIL PTY LTD, STANDISH CONSTRUCTIONS PTY LTD, KT PIPELINES PTY LTD. Just to name a few.

    …

18. For the following reasons, the Tribunal has decided that the matter should be remitted for reconsideration.

    CONSIDERATION OF LAW, CLAIMS AND EVIDENCE

    Genuine position and intention to perform occupation

19. 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.

20. As noted above, the delegate found the position was not genuine, for the following reasons:

    …

    As there was insufficient information to demonstrate that the applicant met the requirements of clause 482.212, the applicant was given the opportunity to provide further information in this regard, and was afforded the prescribed period of time to do so.

    The applicant was informed that they may not meet the requirements of subclause 482.212(2) because information available to the department indicated that the position has been created primarily to secure the entry or stay of the visa applicant rather than address a temporary skill shortage as it appears that the visa applicant is the director of the sponsoring business. The applicant was invited to comment on this information and was afforded the prescribed period of time to do so.

    In considering this application I have referred to all of the relevant evidence and supporting documentation provided by the applicant including but not limited to;

    ● Genuine Position Photos

    ● Genuine Position Current subcontracts

    ● Genuine Position Subcontracts invoices

    ● Genuine Position BAS March 2021

    ● Genuine Position - CV's of Unsuccessful applicants

    ● Genuine Position Statement

    In considering of the applicant's response in the genuine position statement, I acknowledge that GRANT, Martin Gerard ([date],M) has been working for DERRYGAL GROUP PTY LTD as a Welder since September 2017 and has declared that he is currently the new director and shareholder of the company. The applicant has claimed he advertised the position but was unsuccessful as applicants did not have the experience or were offshore and only one applicant was suitable and this applicant was hired. As there were no other suitable candidates to fill the position, the applicant was the next suitable candidate as he is a skilled welder and is currently in Australia. However, as he is also the sole director of DERRYGAL GROUP PTY LTD it is evident that the applicant is self-sponsoring.

    While the applicant has provided evidence of current and past subcontractor projects, I am not satisfied that the evidence demonstrates that there will be a genuine economic benefit to Australia. The policy settings do not prevent individuals from sponsoring themselves – however, in such cases there needs to be another reason for the position being created. It cannot just be to facilitate a long-term stay in Australia and/or create a pathway to permanent migration.

    Having considered the relevant legislation and all of the evidence before me, I find that the applicant does not meet the requirements of subclause 482.212(2) and consequently clause 482.212 is not met.

    …

1. The Tribunal notes the concerns expressed by the delegate at the time of the primary decision in June 2021. The Tribunal has had the benefit of receiving considerable additional and updated documentary evidence from the applicant. It has also had the opportunity to take detailed evidence from him at hearing in May 2024, almost 3 years on from the primary decision.

2. From this evidence, the Tribunal is satisfied that:

   ·Derrygal Group Pty Ltd was established by the applicant’s ex partner, and the applicant became its sole director and shareholder in 2019;

   ·It undertakes specialist welding work focussing on major water and gas pipeline infrastructure projects and has established a good reputation in the industry;

   ·At this time, the applicant is the only salaried direct employee of Derrygal Group Pty Ltd in his capacity as a Welder but the company also works with a select range of Australian subcontractors who provide specialist welding services, and who are paid at above market rates on a regular basis;

   ·due to this and the applicant’s skills and business nous, Derrygal Group Pty Ltd continues to win lucrative tender work for major infrastructure projects; and

   ·The applicant is a qualified and experienced Welder who is working in a field which is in documented short supply in Australia at present and for the foreseeable future.

3. Given this, the Tribunal is satisfied that the applicant’s intention to perform the nominated occupation is genuine and the position associated with the nominated occupation is genuine.

4. For these reasons, it finds that the requirements of cl 482.212(2) are met.

5. Accordingly, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

   DECISION

6. The Tribunal remits the application for a Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a subclass 482 visa:

   ·cl 482.212(2) of Schedule 2 to the Regulations.

   Alison Mercer
   Member