NOLAN (Migration)

[2022] AATA 1264

NOLAN (Migration) [2022] AATA 1264 (16 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Brandon Nolan

REPRESENTATIVE:  Ms Margaret Taaffe (MARN: 0851585)

CASE NUMBER:  1908647

HOME AFFAIRS REFERENCE(S):          BCC2019/592435

MEMBER:Wan Shum

DATE:16 March 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant Temporary Skill Shortage (Class GK) visa.

Statement made on 16 March 2022 at 10:17am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – Drainer – skills, qualifications and employment background – ­­decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 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 April 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 22 February 2019. 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. In this case, the applicant is seeking the visa in the Medium-term stream on the basis that they have been nominated for the position of Drainer - 334113 by Kane Civil Pty Ltd.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 482.212(3) of Schedule 2 to the Regulations because the delegate did not consider that the applicant had the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.

4. The applicant sought review of that decision and was represented in relation to the review by a migration lawyer.

5. On 25 February 2022, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 15 March 2022. The Tribunal received a response on 7 March 2022 from the representative advising that the applicant would attend the scheduled hearing, but then on 14 March 2022, the Tribunal was informed that the applicant was unable to attend and requested the Tribunal make a decision on the review without his attendance. This matter has therefore been determined on the evidence before the Tribunal.

6. For the following reasons, the Tribunal has decided that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant has the skills, qualifications and employment background necessary to perform the tasks of the occupation of Drainer - 334113, being the position which was approved for their sponsor KANE CIVIL PTY LTD.

8. The Australian and New Zealand Standard Classification of Occupations (ANZSCO) specifies that the indicative skill level of the occupation Drainer is commensurate with an AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV or higher qualification. At least three years of relevant experience may substitute for the formal qualification. In some instances, relevant experience and/or on-the-job training may be required in addition to the formal qualification.

9. According to ANZSCO, a Drainer - 334113 “[i]nstalls, maintains and designs below-ground drainage systems and associated sewerage or effluent disposal systems. Registration or licensing is required.”

10. The Department had written to the applicant seeking further information in this regard, specifically requesting evidence of qualifications, Curriculum vitae, evidence of his skills and evidence of work experience. Following assessment of the information provided, the delegate found that the applicant's qualifications and employment background were not commensurate with the indicative skill level specified in ANZSCO for the nominated occupation of Drainer - 334113.

11. On review, the applicant has not provided any additional information, other than the representative stating that the applicant continues to work for Kane Civil Pty Ltd, but did not provide any evidence of this. As noted above, the applicant declined the hearing invitation and the applicant has not given any evidence regarding the issue on review.

12. The information before the Tribunal consists only of the information provided to the Department. On the visa application form, the applicant indicated that the highest recognised qualification obtained was “other” and indicated that he was not enrolled in any studies at secondary level or above. According to his CV, the applicant holds a "High School Diploma" from CBS County Wexford in Ireland, which he completed in June 2011. This is not commensurate with an AQF Certificate III or AQF Certificate IV or higher qualification.

13. As he does not have the formal qualification listed on ANZSCO for this occupation, the Tribunal has therefore considered whether he has at least 3 years of relevant experience that may substitute.

14. In the section of the visa application form regarding employment history, the applicant declared that he had not been working in a similar position for at least 2 years.

15. He gave the following details of employment related to his nomination position:

    Position: Pipelayer/Drainer

    Position type: Full-time

    Employer name: Kane Civil Pty Ltd

    Country: AUSTRALIA

    Date from: 01 May 2017

    Description of duties: Interpretation and application of drawings and clients specifications. Calculating and measuring out pipes, grades and levels with assistance of machinery. Marking out trench positioning. Laying pipes to client specifications and RMS standards. Installation of below ground drainage, water mains etc

16. The undated letter from Kane Civil Pty Ltd referring to his employment with them states that he has worked in the position of Drainer full-time from 1 May 2017 and lists his roles and duties as follows:

    ·Interpretation and application of drawings and client specifications

    ·Calculating and measuring out pipes, grades and levels with assistance of machinery

    ·Marking out trench positioning

    ·Laying pipes to client specifications and RMS Standards

    ·Testing installed drainage systems

    ·Installation of below ground drainage; sewer, water mains, stormwater and utilities

17. The applicant also provided a copy of his employment contract for the position of Pipelayer/drainer with Kane Civil Pty Ltd which he accepted and signed on 22 February 2019. This is the date he made his visa application.

18. The only other employment details he provided was work as a labourer from 27 February 2017 to 1 May 2017, but it was completed to indicate that it was not related to his employment in the nominated occupation. In relation to this employment, he provided the following additional details on his CV: Trade hand. Finishing concrete. General labouring duties.

19. The other employment details on his CV were as a ‘RSA’ at eir Group HQ－County Dublin from January 2016 to January 2017 where he assisted customers with their fibre internet installation and any mobile or internet issues; and Assistant Manager at Maggie May's Bar－County Wexford from February 2011 to April 2016 with the following duties/responsibilities: responsible sale of alcohol and cocktails to public; stock rotation, ordering and receiving; handling large amounts of cash and locking premises each night; payroll and rota for upwards of 10 staff members.

20. The Tribunal does not consider that any of the duties described in his CV in his employment as a labourer, RSA and Assistant Manager are relevant to the occupation of Drainer, as there is no indication that any of those positions involved “install[ing], maintain[ing] and design[ing] below-ground drainage systems and associated sewerage or effluent disposal systems.”

21. The Tribunal notes that a number of years have passed since the application was first made and it is possible that he has gained additional relevant employment experience. However, as acknowledged by the representative in her letter of 14 March 2022 which relevantly states that “[d]espite not providing any formal evidence, the applicant has continued to be employed by the nominating employer, and would meet the required skill level if confirmatory evidence was provided”, the applicant has not provided any evidence of subsequent employment experience on review. The Tribunal finds that the applicant does not have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.

22. For these reasons the applicant does not meet the requirements of cl 482.212(3).

23. As one of the essential requirements for the visa is not met, the decision under review must be affirmed

    DECISION

24. The Tribunal affirms the decision not to grant the applicant Temporary Skill Shortage (Class GK) visa.

    Wan Shum
    Member