Murphy (Migration)

[2017] AATA 391

Murphy (Migration) [2017] AATA 391 (14 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Brian Matthew Murphy

CASE NUMBER:  1510226

DIBP REFERENCE(S):  BCC2015/388125

MEMBER:Mary-Ann Cooper

DATE:14 March 2017

PLACE OF DECISION:  Melbourne

DECISION: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.

Statement made on 14 March 2017 at 11:19am

CATCHWORDS

Migration – Temporary Business Entry (Class UC) visa – Subclass 457 – Skills, qualifications and employment background – Subject of approved nomination – Road constructor – Technicians and Trades workers – No formal occupational qualifications – 3 years relevant experience

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 457.223

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 4 February 2015.

3. 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.

4. The delegate refused to grant the visa on 10 July 2015 on the basis that cl.457.223(4)(da) of Schedule 2 to the Regulations was not met because s/he was not satisfied that the applicant ahd the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.

5. The applicant appeared before the Tribunal on 10 November 2016 to give evidence and present arguments. The Tribunal also received oral evidence from his partner.

6. The applicant was represented in relation to the review by his registered migration agent who did not attend the hearing.

7. For the following reasons, the Tribunal has concluded that 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 cl.457.223(4)(da) however a threshold issue also arose in relation to whether he has an approved nomination: cl.457.223(4)(a).

   Requirement for an approved nomination

9. Clause 457.223(4)(a) requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.

10. The Tribunal noted that the approved nomination in in relation to the applicant ceased by operation of law on 8 May 2016. In its hearing invitation the Tribunal requested that the applicant to provide information demonstrating that he is the subject of an approved nomination. It was advised that the sponsor ‘had gone out of business’ and a new application had been lodged in respect of the applicant with another sponsor.

11. Following the hearing the applicant provided evidence that his new nominating employer was approved as a sponsor from 20 January 2017 to 20 July 2018 in relation to him, for the position of Road constructor, in the ANZSCO occupation category of Technicians and Trades workers nec – 399999, was approved on 11 February 2017.

12. The requirements of cl.457.223(4)(a) are therefore met.

    Skills, qualification and employment background of the applicant

13. 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 cl.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. In this case the current nominated occupation is Technicians and Trades workers nec – 399999.

14. There is no threshold legislative standard for determining the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation, although in determining this question, the Tribunal may be guided by the Australian and New Zealand Standard Classification of Occupations (ANZSCO) for occupations nominated on or after 1 July 2010.

15. The Tribunal notes, however, that the determination of each application requires more than a narrow matching process between an applicant's tasks and the ANZSCO occupational definition. In an earlier version of this clause, the Court in Joshi v MIMIA held that the sensible and correct approach requires the ascertainment of the attributes and skills of an applicant and how those attributes and skills are being applied in the workplace for remuneration.[1] 

    [1] Joshi v MIMIA [2005] FMCA 1116 (McInnis FM, 12 August 2005).

16. As recorded in the delegate’s decision a copy of which was provided with the review application, the skill level for the applicant’s then nominated occupation of Survey Technician, as indicated in Australian and New Zealand Standard Classification of Occupations (ANZSCO) dictionary for this occupation, is an AQF Associate Degree, Advanced Diploma or Diploma or at least 3 years of relevant experience. The delegate was not able to verify the applicant’s claimed 3 years’ experience as a Survey technician and was therefore not satisfied he had the skills, qualifications and/or employment background to perform the nominated occupation. Consequently the delegate found cl.457.223(4)(da) was not satisfied and the visa was refused.

17. Prior to the hearing, the applicant provided the same work reference as provided to the delegate but attached a Statutory Declaration, purportedly signed by a former owner of the business, confirming the nature of his employment in Ireland. Given the change in the applicant’s nominated occupation, the Tribunal sought additional materials in respect of his current nominated occupation. These are discussed further below.

18. At the hearing the applicant told the Tribunal of his new employment and requested that it allow further time for the new nomination to be processed. As noted above, that nomination application was approved.

19. It remains for the Tribunal to determine whether the applicant has the skills, qualifications and employment background necessary to perform the tasks of the current approved nominated occupation.

20. In this context ANZSCO provides as follows”

    UNIT GROUP 3999 OTHER MISCELLANEOUS TECHNICIANS AND TRADES WORKERS

    
    This unit group covers Technicians and Trades Workers not elsewhere classified.

    It includes Divers, Interior Decorators, Optical Dispensers (Aus) / Dispensing Opticians (NZ), Optical Mechanics, Photographer's Assistants, Plastics Technicians, Wool Classers and Fire Protection Equipment Technicians.

    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)

    
    In New Zealand:

    NZ Register Level 4 qualification (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.

    ……

    399999 TECHNICIANS AND TRADES WORKERS NEC

    
    This occupation group covers Technicians and Trades Workers not elsewhere classified.

    Skill Level: 3

    Occupations in this group include:

    Airborne Electronics Analyst (Air Force)
    Architectural Model Maker
    Canoe Maker
    Glass Blower
    Hide and Skin Classer
    Kayak Maker
    Milking Machine Technician
    Parachute Rigger
    Pearl Technician
    Pyrotechnician
    Surfboard Maker

21. The tasks undertaken by the applicant appear to have no resemblance to any of the included occupations listed above however the Tribunal notes that the list is not exclusive. In , as indicated by the applicant’s representative in later submissions, the Department’s policy provides as follows:

    Technicians and Trades Workers not elsewhere classified (ANZSCO 399999)

    The occupations of bridge constructor, road constructor and pipelayer may be considered under the occupation of Technicians and Trades Workers not elsewhere classified (ANZSCO 399999) only if the position is to be performed in the Civil Construction Industry. If the nominated position is outside the Civil Construction Industry, it cannot be considered to be a genuine position in the occupation of Technicians and Trades Workers not elsewhere classified (ANZSCO 399999).[2]

    [2] constructor")

22. The Tribunal accepts, on the basis of the material before it, that the applicant’s nominating employer operates in the Civil Construction industry. While this indicates that the applicant’s occupation is appropriately identified within ANZSCO, it does not demonstrate that he has the skills, qualifications and employment background necessary to undertake the tasks.

23. In this context the Tribunal has considered the applicant’s work history as outlined in submissions and references and as confirmed at the hearing.

24. Those references support the applicant’s claims that he has been employed as follows:

    ·     January 2010 to January 2013 : Survey technician in Ireland with Ganway Constructions Ltd. – duties included drafting construction plans and blueprints, preparing and presenting design proposals, estimating costs for materials, labour etc., negotiating and buying materials and equipment, advising clients on contracts, liaising with authorities re-planning and building inspections, producing, analysing and advising on detailed specifications for materials and processes, preparing construction sites before work began, supervising teams and building contractors onsite, ensuring tradesman performed their duties, administering contracts, evaluating and advising on refurbishment, re-use etc.

    ·     March 2013 – August 2013 -  GMH – site construction worker.

    ·     August 2013 – January 2014 – farm work.

    ·     March 2014 – June 2014 – Labour Hire work – duties included operating heavy machinery and assisting with excavation equipment setup, pipe installations, trench excavation road construction.

    ·     July 2014 – 2015: Survey technician with WPS Personnel – duties included site setup, assistance with equipment, interpretation and completion of site drawings/plans operating machinery, road construction, installation of drainage pipes, OH&S, setup site levels.

    ·     January 2015 to June 2015 – Survey technician with Aussie Steel Fixers (previous nominating employer) –  duties included site setup, OHS management, assisted with equipment setup, completion and interpretation of site drawings/plans, steel fixing.

    ·     June 2015 – September 2016 – Work with various construction companies undertaking road and rail construction work.

    ·     September 2016 to date: Mitchco Civil Pty Ltd (current nominating employer) as a Multi Skilled Civil Construction Labourer with his current nominator with duties including overseeing road work tasks and operations, upholding safety rules and precautions in performed tasks, operating heavy machinery and road work equipment, use of large and small pneumatic tools, use of hand tools, mixing and handling ready mix concrete

25. As confirmed by the applicant at the hearing, he has no formal occupational qualifications however he has extensive experience as a survey technician in civil construction and, in particular, as a road construction worker. The letter of offer from his current employer lists the title of the nominated occupation as “Road constructor.” The duties of the position are confirmed by a reference from the employer which states that “his knowledge of the industry and his experience within the industry make him an excellent employee.”  

26. Having regard to the evidence and the applicant’s references, all of which attest to his competency and work ethic and, to varying degrees, confirm his employment background in road construction, the Tribunal is satisfied that he has at least 3 years of relevant experience as a ‘Technician and Trades Worker nec” .

27. On this basis the Tribunal is satisfied that the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.

28. For these reasons the applicant satisfies the requirements of cl.457.223(4)(da).

    CONCLUSION

29. 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

30. 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.

    Mary-Ann Cooper
    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.