Mckinney (Migration)

Mckinney (Migration) [2017] AATA 710 (8 May 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Conan Mckinney
Ms Natasha Louise Mulhern
CASE NUMBER:  1512876
DIBP REFERENCE(S):  BCC2015/1167950
MEMBER:Denise Connolly
DATE:8 May 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:
·cl.457.223(4)(da) of Schedule 2 to the Regulations.

Statement made on 08 May 2017 at 10:34am

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 – Skills, qualifications and employment background – Solid Plasterer – Relevant work experience as a substitute for formal qualifications

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 457.223

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision of a delegate of the Minister for Immigration to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).
The visa applicants applied for the visas on 20 April 2015. 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 contained in cl.457.223(4) which is set out in the attachment to this decision. In the present case, specific 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 in respect of the other alternative streams in cl.457.223.
The delegate refused to grant the visas on 8 September 2015 on the basis that cl.457.223(4)(da) was not met because the delegate was not satisfied the applicant had demonstrated he has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation, Solid Plasterer (ANZSCO 333212).
The applicants appeared before the Tribunal on 15 March 2017 to give evidence and present arguments.
The applicants were represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Skills, qualification and employment background of the applicant
The applicant, a national of the Republic of Ireland, is aged 24. When applying for the visa, the applicant stated that he had received on the job training in rendering and solid plastering with Noone Construction Ltd in the period 2010 to 2013. He also claimed that he had worked as a plasterer for McKinney Rendering & Setting from April 2013 to August 2013, and Jujonic Pty Ltd from February 2014 to April 2014. He did not claim to have formal qualifications at the Certificate III or IV levels. He provided as referees Patrick Gallagher and Michael Noone, both based in Ireland, and provided their telephone contact details.
The applicant has provided to the Tribunal a copy of the delegate’s decision record. It states that, on behalf of the Department, the London post attempted several times to contact his referees but was unsuccessful. A person answered Mr Gallagher’s phone and told the officer she had the wrong number. The Department located a business, Noone Construction Ltd, but noted the details did not match the address and contact details provided by the applicant. The Department gave the applicant an opportunity to comment on the concerns raised by these results and he responded on 4 September 2015, providing some explanation for the apparent anomalies. However the delegate was not satisfied the applicant has demonstrated that he has the skills, qualifications and employment background necessary to perform the tasks of a Solid Plasterer.
In determining whether the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation, the Tribunal has had regard to ANZSCO description, as, while it is not bound by the description, it considers it to be a useful guide regarding the indicative skill level for occupations and the tasks typically undertaken. The occupation falls within Unit Group 3332 Plasterers. It states in part as follows:
UNIT GROUP 3332 PLASTERERS
PLASTERERS apply and fix plasterboard partitions, suspended ceilings, fire rating systems, acoustic tiles, and composite wall linings to buildings, and apply decorative and protective coverings of plaster, cement and similar materials to the interiors and exteriors of structures.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)

At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification. Registration or licensing may be required.
Tasks Include:
odetermining plasterboard layout, and installing insulation and vapour barriers
omeasuring, marking and cutting plasterboard, lifting and positioning panels, and securing them to walls, ceilings and battens
opreparing corner beads and securing them in position
ofixing pre-cast cornices, panel mouldings, ceiling centres and other plaster fittings
ocovering joins and nail holes with wet plaster and sealing compounds, and smoothing them using wet brushes and sand paper
omixing and applying coats of plaster, cement and render to structures using trowels, and levelling and smoothing coats to uniform thickness
oplumbing and straightening corners, angles and wall and ceiling surfaces
ocreating decorative textures in finishing coats
oapplying and finishing acoustic, insulating and fireproofing materials bonded with plaster, plastic cement and similar materials

333212 SOLID PLASTERER

Applies decorative and protective coverings of plaster, cement and similar materials to the interiors and exteriors of structures. Registration or licensing may be required.
Skill Level: 3
At the hearing the Tribunal discussed with the applicant the requirements of cl.457.223(4)(da) and the concerns raised by matters set out in the delegate’s decision record. The following is a summary of the applicant’s oral evidence provided at the hearing.
The applicant explained that he left school when he was about 17 and undertook a youth life skills program which he finished when he was 18 years old. He then started working for Paddy Gallagher on a casual basis. He worked on his own family’s house, plastering internal walls, and sand cementing the external walls. He started working for Mr Noone as a plasterer on a full-time basis from about October 2010. The work was undertaken in Northern Ireland. The applicant lived close to the border.
The applicant is currently employed as a concreter. He has been undertaking this work for about 2 years. He worked as a plasterer for his sponsor, McKinney Rendering & Setting, the business of his brother, Kieran McKinney, for about 4 months in 2013. He was holding a Subclass 417 visa which meant that he had to comply with the condition to work for one employer for only 6 months. He also worked for Jujonic, owned by John McKinney, another relative, for about 4 months. He stopped employment to undertake his regional work for his second Subclass 457 visa.
When asked about his skills as a Solid Plasterer, the applicant indicated he learnt most of his skills from Mr Noone and when working here with his brother. Mr Noone worked on plastering in new houses. His brother Kieran works on both renovations and new properties but mostly he renovates existing properties with rising damp issues.
The applicant described to the Tribunal, in some detail the steps taken to plaster walls. He described the different types of compounds used, and the preparation undertaken for the different types of plastering and cementing. He discussed the different ratios of sand, water and cement used for different purposes. He described the process for fixing cornices, and covering joins and nails. His oral evidence regarding the plastering tasks he has undertaken was persuasive.
The applicant has provided to the Tribunal his payslips for his employment with McKinney Rendering & Setting in support of his claim to have been employed there as a plasterer in the period April 2013 to August 2013.
The applicant provided evidence from the FindTheCompany website recording the Derry address for Noone Construction Ltd, stating the business was incorporated in November 1995. The address recorded is different to that provided on the references for the applicant said to be signed by Michael Noone. He has also provided documents from the CompanyCheck website confirming Mr Michael Noone is a company director of Noone Construction Ltd. The applicant has also provided a document entitled Sub Contractor Monthly Statement dated 5 March 2017 in which Mr Noone records the address used in the references. He also provided a utility bill addressed to Mr Noone for the address used on the applicant’s work reference, at Culmore Point, Derry. In written submissions the applicant explained that Mr Noone’s company operates from Northern Ireland, but works on sites both in the Republic of Ireland and Northern Ireland. The Tribunal has concluded the two addresses are explained by one being for his work place (1 Dacre Terrace Derry) and the other for his residence (24 Mount Vernon, Culmore Point, Derry).
The applicant provided photographs of himself, rendering walls. He provided a work reference from Kieran McKinney, Director, McKinney Rendering & Setting confirming that he worked as a Solid Plasterer from April 2013 to August 2013. He also provided a work reference from John McKinney, Jujonic Pty Ltd stating he worked as a plasterer in the period 1 February 2014 to 6 June 2014. There is also an undated letter from Paddy Gallagher of Gallagher Plastering stating that the applicant assisted Mr Gallagher in 2008 in renovating the applicant’s family home for a couple of months. He has provided two references from Mr Michael Noone, the second to the Tribunal after the hearing, claiming that he worked for Noone Construction is from October 2010 to March 2013 as a plasterer labourer. Mr Noone sets out numerous tasks undertaken by the applicant in that period, which are consistent with the tasks described in the ANZSCO definition for the nominated occupation’s Unit Group 3332.
Assessment of the evidence
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 this case the nominated occupation is Solid Plasterer (ANZSCO 333212).
The applicant does not claim to hold a qualification relevant to the nominated occupation. However he claims that he has at least 3 years relevant experience which substitutes for a formal qualification.
Having regard to all the material before it the Tribunal is satisfied that the applicant works for a couple of months with Paddy Gallagher on the applicant’s family home. This was his first experience at plastering and at the time he had no other relevant experience.
The Tribunal has considered the information relating to Noone Construction. It is satisfied on the basis of material provided to the Tribunal by the applicant that Mr Michael Noone is the Director of the company. It is also satisfied on the basis of the utility bill that the work reference provided from Mr Noone uses his home address at Culmore Point, Derry. Taking into account the applicant’s oral description of the various tasks he has undertaken as a plasterer, the Tribunal is satisfied the applicant has undertaken the work of a plasterer, and it is satisfied it can rely on the work references from Michael Noone. It is therefore satisfied that the applicant has undertaken the duties of a plasterer as an employee of Noone Construction, consistent with those set out in ANZSCO for the nominated occupation’s Unit Group, for about 2½ years. The Tribunal is also satisfied the applicant worked for his brother’s business, McKinney Rendering & Setting from April 2013 to August 2013, undertaking various plastering duties. He also worked for Jujonic on related duties as a plasterer/cement renderer, from February 2014 to June 2014. The Tribunal is also of the view his current employment as a concreter is relevant experience.
The Tribunal is satisfied that the applicant has undertaken the duties of a plasterer for over 3 years. It is satisfied that he has 3 years’ relevant work experience and this employment background has allowed him to develop the skills necessary to perform the tasks of the nominated occupation. In this case the Tribunal is satisfied this employment experience substitutes for the relevant formal qualification, the Certificate III with 2 years’ experience or a Certificate IV.
The Tribunal therefore is satisfied that the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation, Solid Plasterer.
For these reasons the applicant satisfies the requirements of cl.457.223(4)(da).
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
The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:
·cl.457.223(4)(da) of Schedule 2 to the Regulations.
Denise Connolly
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
(eb)if:
(i)    the applicant is not an exempt applicant; and
(ii)     subclause (6) does not apply to the applicant;
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.

[2017] AATA 710

8 May 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Remedies