MC GLUE (Migration)

[2018] AATA 3590

MC GLUE (Migration) [2018] AATA 3590 (20 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr CIARAN HUGH MC GLUE
Miss MICHELLE LOUISE MAGEE

CASE NUMBER:  1611073

DIBP REFERENCE(S):  BCC2015/3057862

MEMBER:Denise Connolly

DATE:20 August 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

·cl.187.234 of Schedule 2 to the Regulations.

Statement made on 20 August 2018 at 9:39am

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Carpenter – Whether the applicant has the skills necessary to perform the tasks of the occupation – Extensive work history in the nominated occupation – Skills and training relevant to the occupation undertaken – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19(4), Schedule 2, cl 187.234

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 Immigration and Border Protection to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 20 October 2015. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the 'Common criteria', as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Carpenter (ANZSCO 331212).  This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visas on the basis that the applicant did not meet cl.187.234 of Schedule 2 to the Regulations.

6. The applicants appeared before the Tribunal on 16 July 2018 to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent who also attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Skills and qualifications

8. For applicants in the Direct Entry stream, cl.187.234 requires that at the time of application:

   · the applicant is in a specified class of persons (exempt persons): cl.187.234(a) or

   · if the applicant’s occupation has been specified by the Minister and the applicant did not obtain the necessary qualification in Australia – that the applicant’s skills have been assessed as suitable for the occupation by a specified assessing authority (the skills assessment must meet certain requirements, depending on the date of visa application): cl.187.234(b) or

   · if neither of the above applies, the applicant had the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation: cl.187.234(c).

9. For this criterion, the relevant classes of exempt persons have been specified in IMMI 15/083, and the occupations and relevant assessing authorities have been specified in IMMI 12/096. For the skills assessment, if the visa application was made on or after 28 October 2013, the assessment cannot be one for a Subclass 485 (Temporary Graduate) visa. For visa applications made on or after 1 July 2014, the date of the assessment must not be more than three years before the date of visa application or, if the assessment specifies a period of validity less than 3 years after the date of assessment, that period must not have ended.

10. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that the applicant was nominated under Regional Employer Nomination in the Direct Entry Stream, for the position of Carpenter with an annual base salary of $54,000. Having regard to the requirements of cl.187.234 the delegate referred to the instrument 15/083 and noted that the class of person specified in the instrument for the purposes of cl 187.234(a) is a person who is earning the top ATO individual annual income (at least $180,001 per annum). The Tribunal agrees that this is the correct instrument and specification. There is no evidence before the Tribunal to indicate the applicant is a person who is earning the top ATO individual annual income. The evidence provided indicates he is on a base salary of $54,000. Therefore he is not a person in a class of person specified by the Minister in the legislative instrument for cl.187.234(a) on the basis of his earnings.

11. The Tribunal notes the applicant may be exempt if he is an eligible New Zealand citizen holding a Subclass 444 visa, or a New Zealand family member holding a Subclass 461 visa. The Tribunal notes the applicant was the holder of a Subclass 417 working holiday visa. Therefore he is not a person in a class specified by the Minister in the legislative instrument for cl.187.234(a) on the basis of the visa he held.

12. The Tribunal finds that Carpenter is an occupation specified by the Minister in relation to cl.187.234(b). However there is no evidence to suggest the applicant has provided a skills assessment. The applicant confirmed in the visa application that he does not have a suitable skills assessment from the relevant assessing authority. The Tribunal is not satisfied the applicant’s skills have been assessed as suitable for the occupation by a specified assessing authority. He therefore does not meet the requirements of cl.187.234(b).

13. Accordingly the applicant must meet the requirements of cl.187.234(c).

14. The Tribunal notes from the ANZSCO description that the applicant requires an AQF Certificate III including at least two years on-the-job experience or an AQF Certificate IV or at least three years’ relevant experience at the time of application. His visa application indicates he obtained a qualification in Northern Ireland, CITB Construction from Springvale Learning Northern Ireland. There is no evidence to indicate this is an AQF Certificate III. The applicant has provided evidence that in October 2015 he completed a Certificate III in Carpentry in Australia on the basis of recognition of prior learning. The applicant has also claimed to have over 10 years’ experience as a Carpenter in Northern Ireland and the Republic of Ireland. He claimed to have worked as a Carpenter in Australia before making the visa application.

15. The delegate noted the Departmental policy advises that an Australian Certificate III issued following a short course and/or supported by claims of 2 years overseas on the job training does not fulfil the requirement, unless 2 years of post-qualification work experience in Australia can be demonstrated. The delegate noted the applicant’s course completed in Australia was such a course. She found that as the Certificate III was awarded to the applicant on 20 October 2015, the same day the visa application was made, any post-qualification work experience cannot be considered as cl.187.234(c) is a time of application requirement. She formed the view therefore that the applicant did not hold the necessary Australian qualification for the occupation. She noted that, according to Departmental policy, case officers need to be satisfied that the applicant has the appropriate qualifications and skills to perform the tasks of the nominated occupation. Also if the applicant is nominated in a trade occupation, only Australian work experience can be counted towards the two years of post-qualification work experience (where required), or as a substitute for the formal qualification as per ANZSCO. Accordingly, in assessing whether the applicant had the three years’ relevant work experience as a substitute for the formal qualification, the delegate found that she could not consider his overseas qualifications and work experience. She noted however that she could consider his prequalification and pre-lodgement Australian work experience. She noted according to his resume and work references that the applicant’s first relevant work experience in Australia commenced in November 2013 and continued until October 2015. As this was not three years of relevant work experience as required specified in ANZSCO she found that the applicant did not meet the requirements of clause 187.234(c).

16. The applicant provided a resume indicating he has essentially worked as a Carpenter since about 2004. He claims he has worked in Australia as a Carpenter since November 2013. He provided a work reference for carpentry work he undertook in Northern Ireland in the period 2008 to 2013. He also provided evidence from his Australian employers, Ian Nichol, Premier Carpentry Solutions and CPD Group confirming that he had worked as a Carpenter in Australia for them since March 2014.

17. At the hearing the applicant explained that he undertook the short course in Australia to transfer his UK qualifications to the Australian equivalent. He completed all testing by video conference. There was no practical component. However he believes a person can only get the Certificate III if they demonstrate an expansive knowledge of carpentry. He has worked as a Carpenter since he finished high school. He started his apprenticeship in about 2001 and completed the relevant course at Springvale in 2006. He provided to the Tribunal a letter from Springvale Learning confirming he undertook a Jobskills Traineeship from September 2001 to January 2003 and an apprenticeship program from May 2004 to May 2006 in Carpentry. He also provided his Certificate awarded for completion of his traineeship in Wood Occupations.

18. The applicant said he then worked at various places as a Carpenter. He listed his employers. Soon after completing his traineeship he became a self-employed Carpenter in Northern Ireland. The Tribunal indicated it wished to see documentary evidence confirming the applicant’s claims to have worked as a Carpenter for several years in Northern Ireland before coming to Australia. The applicant has provided to the Tribunal the following documentation:

    a.Payslips and bank statements confirming his employment in Australia as a skilled ‘specialist applicator’ and a Carpenter from December 2013 to November 2015.

    b.Certificate from City & Guilds, UK Construction Industry Training Board dated 4 March 2003 confirming the applicant was awarded a National Vocational Qualification in Carpentry and Joinery.

    c.A letter from the UK agency HM Revenue & Customs confirming the applicant was registered as a self employed person from November 2004 to April 2015 and another letter and tax returns from the same agency indicating he recorded his employment as Carpenter/Joiner when lodging self assessment tax returns in the period.

    d.Evidence that the applicant had his carpentry handtools transported from Belfast to Fremantle in December 2014.

    e.Various invoices for purchases the applicant made in the UK of items indicative of carpentry tools and related products in the period 2008 to 2012.

    f.A letter from Stephen Murphy Glenthorn Joinery Ltd confirming the applicant worked with his business as a Carpenter in the period 2002 to 2006. The list of duties undertaken by the applicant in that employment is consistent with the duties of a Carpenter as described in ANZSCO.

    g.A letter from Conor McGlue (the applicant’s cousin) stating the applicant worked on projects as a Carpenter with CMG Architects in the period 2007 to 2012.

    h.A letter from Ronan Morris stating the applicant worked on projects as a Carpenter with his business Morris Joinery in the period 2005 to 2006 and 2012 to 2013. The duties he undertook are consistent with the duties of a Carpenter as described in ANZSCO.

    i.An offer of employment from RCR Resources dated 14 July 2014.

    j.A Statutory Declaration from the applicant attesting to his employment as a Carpenter while residing in the UK and in Australia.

    k.A reference from Anne Marie Lopez, Australian Government Lawyer, dated 21 June 2018 confirming that the applicant has completed carpentry work for her and she believes he is an outstanding carpenter who is dedicated to his trade.

19. Having considered all of the material set out above, the Tribunal is satisfied the applicant completed a traineeship and apprenticeship in Carpentry in the UK in the period 2001 to 2006.

20. The Tribunal is also satisfied on the basis of the applicant’s oral and written evidence, including references from former employers and tax records from the UK agency HM Revenue & Customs that he worked as an employed and self-employed Carpenter from 2002 to 2012 in the UK. At a minimum it is satisfied he worked for Morris Joinery in the period 2005 to 2006 and 2012 to 2013 (at least two years), and Stephen Murphy Glenthorn Joinery Ltd as a Carpenter in the period 2002 to 2006. While the Tribunal might ordinarily have some reservations about accepting evidence that an applicant worked for his cousin, the Tribunal is satisfied the applicant is a reliable witness and accordingly accepts he worked on projects as a Carpenter with CMG Architects in the period 2007 to 2012.  Having regard to the payslips, bank statements, invoices, references and correspondence from CDP Group the Tribunal is satisfied the applicant was working, prior to the visa application, in Australia as a Carpenter in the period November 2013 to October 2015.

21. The Tribunal notes that the Department’s policy is that, in the applicant’s circumstances, it does not consider overseas qualifications and work experience. The Tribunal has considered this but has formed the view ANZSCO indicates that the qualification necessary to perform the tasks of the occupation of Carpenter can be substituted by at least three years' relevant experience. There is no requirement in the Regulations or ANZSCO for this experience to have been in Australia. In the Tribunal’s view the applicant has demonstrated that, having completed a traineeship and an apprenticeship in the UK, he has worked as a Carpenter, before the visa application was made, in the UK and in Australia for more than three years. While it does not rely on the Certificate III obtained in Australia for the purposes of cl.187.234(c) it is of the view this award strongly indicates the applicant has the qualifications and work experience as claimed. Overall the Tribunal is satisfied that the written evidence demonstrates that the applicant has at least three years' relevant experience, and the experience serves as a substitution for the Australian qualifications otherwise required by ANZSCO. The Tribunal therefore finds that, at the time of application, the applicant had the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation Carpenter. He therefore meets cl.187.234(c).

22. Accordingly, cl.187.234 is met.

23. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

24. The Tribunal remits the applications Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

    ·cl.187.234 of Schedule 2 to the Regulations.

    Denise Connolly
    Member