Moloney (Migration)

[2022] AATA 2689

Moloney (Migration) [2022] AATA 2689 (20 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Brian Michael Moloney

REPRESENTATIVE:  Ms Rowena Jane Hallam (MARN: 0429550)

CASE NUMBER:  1901946

HOME AFFAIRS REFERENCE(S):          BCC2018/4973581

MEMBER:Penelope Hunter

DATE:20 June 2022

PLACE OF DECISION:  Sydney

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(3) of Schedule 2 to the Regulations; and

Statement made on 20 June 2022 at 11:49am

CATCHWORDS
MIGRATION –Temporary Skill Shortage (Class GK) visa – Subclass 482– Medium-term stream – Drainer – updated information provided – applicant has the education, skills and employment background necessary to perform the tasks of the nominated occupation of Drainer – decision under review remitted

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

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 8 January 2019 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 9 November 2018. 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 for his nominating employer Athassel Civil Pty Ltd in the nominated occupation of Drainer (ANZSCO 334113).

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(3) of Schedule 2 to the Regulations because they were not satisfied that the applicant had the skills qualifications or employment background to perform the occupation of Drainer.

4. In response to a request for information from the Tribunal the applicant has provided updated submissions and evidence.

5. In light of the new evidence received, the Tribunal was able to find in favour of the applicant on the basis of the material before it and it dispensed with a hearing pursuant to s 360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Applicant’s skills, qualifications and employment background

7. 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.

8. According to ANZSCO, an individual in the occupation of Drainer, installs, maintains and designs below-ground drainage systems and associated sewerage or effluent disposal systems. Persons engaging in the occupation hold an AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3). In the alternative three years of relevant experience may substitute for formal qualifications. Further in some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

9. The applicant holds no formal qualifications, however with his visa application he  provided to the Department an employment reference from Ballydoyle Racing dated 22 October 2018, which set out that he had worked with the company from 2008 to 2015 in full and part-time positions. In their decision record, the delegate noted that the applicant had been requested to provide evidence supporting his claimed work experience. The applicant provided to the Department a copy of his curriculum vitae, however the delegate gave this little weight in the absence of independently verifiable documents such as those which had been requested like tax returns or payslips. Consequently, the delegate was not satisfied that the applicant had three years relevant work experience as specified in ANZSCO for the nominated occupation of Drainer.

10. In response to a request pursuant to s 359(2) of the Act, the applicant provided to the Tribunal copies of his Irish P60 Employment Detail Summary for the years ending 31 December 2011, 2012 and 2013 confirming employment with Ballydoyle Racing in those years. Additionally, the applicant submitted a final payslip also regarding employment with Ballydoyle Racing, dated 1 January 2015. The Tribunal is satisfied that the applicant has provided additionally independently verifiable documents confirming employment with Ballydoyle Racing for a period of at least four years. The applicant has not clarified in his submissions whether this was full or part-time employment. The employment reference submitted from Ballydoyle Racing dated 22 October 2018, sets out that the applicant worked from 2008 to 2015 both full-time and part-time. The salary as disclosed in the P60 for the relevant years ranged from  £17,975 to £7,763, and the Tribunal is not satisfied that this is equivalent to a full-time salary for the position. The Tribunal will accept on the evidence that the applicant has demonstrated during his period of employment with Ballydoyle Racing at least the equivalent of two years full-time work experience. The Tribunal has also had regard to the reference provided by Ballydoyle Racing and the statements that while in this position the applicant worked extensively with drainage and pipe laying, and the range of work experience and training provided was equivalent to formal trade training, and that the applicant left their employ fully experienced in all areas of the trade, and is satisfied that the applicant obtained relevant experience while employed at Ballydoyle Racing.

11. At the time of his visa application, the applicant had only been engaged in the position of Drainer with his nominating employer, Athassel Civil Pty Ltd for six months. The applicant has provided to the Tribunal up to date information regarding his ongoing employment Athassel Civil Pty Ltd. The Tribunal is in receipt of an employment reference dated 13 June 2022, Australia Taxation Office (ATO) Income Statements for the years ending 30 June 2019, 2020 and 2021, and a partial ATO Income Statement to 13 June 2022. The Tribunal is satisfied from this evidence that the applicant now has approximately four years equivalent full-time work experience in the position of Drainer with his sponsoring employer. This puts the total demonstrated experience of the applicant in the position, or a related position, at well in excess of the ANZSCO guide of three years relevant experience. As to the relevant tasks that the applicant performs in this position, the Tribunal is satisfied that these are relevant tasks to the occupation. In their letter of support his employer claims that the applicant’s daily duties include;

    ·Setting out, installing and maintaining drainage systems;

    ·Ensuring pipes are undamaged and are the correct diameter;

    ·Setting out for excavation;

    ·Excavating to line, depth and grade;

    ·Installation of excavation supports;

    ·Installing and encasing piping;

    ·install and encase piping;

    ·Backfilling trenches;

    ·Locating and clearing blockages;

    ·Testing systems;

    ·Operating heavy machinery and industry specific equipment;

12. In reviewing the totality of the evidence, the Tribunal is therefore satisfied that the applicant has the education, skills and employment background necessary to perform the tasks of the nominated occupation of Drainer.

13. For these reasons the applicant meets the requirements of cl 482.212(3).

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

    DECISION

15. 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(3) of Schedule 2 to the Regulations; and

    Penelope Hunter
    Member