O'Keeffe (Migration)

O'Keeffe (Migration) [2020] AATA 204 (31 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sean Patrick O'Keeffe
CASE NUMBER:  1806403
DIBP REFERENCE(S):  BCC2017/1216023
MEMBER:Jennifer Cripps Watts
DATE:31 January 2020
PLACE OF DECISION:  Sydney
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)(a) of Schedule 2 to the Regulations
·cl.457.223(4)(da) of Schedule 2 to the Regulations
·cl.457.223(4)(e) of Schedule 2 to the Regulations

Statement made on 31 January 2020 at 2:49pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Standard Business Sponsorship stream – approved nomination – legislative amendments to visa subclass – transitional provisions save nomination from ceasing until tribunal’s review of refusal of visa – skills, qualifications and employment background necessary for nominated occupation – ANZSCO classification – relevant experience instead of formal qualifications – applicant’s tasks on large civil construction projects – licensing or registration requirements – state legislation excludes large civil projects from licensing requirements – ANZSCO should be used as a guide, not prescriptively – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 140GB
Migration Regulations 1994 (Cth), r 2.75(2)(b), Schedule 2, cll 457.223(4)(a), (da), (e)
Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018, cl 6704(15)
Plumbing and Drainage Act 2011 (NSW), s 4(5)

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 (the delegate) to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant (the applicant) applied for the visa on 30 March 2017. 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 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 visa on 19 February 2018 on the basis that cl.457.223(4)(da) was not met because the applicant did not have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.
The applicant appeared before the Tribunal on 30 January 2020 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent, Ms Rowena Hallam.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the requirements of:
a.cl.457.223(4)(a);
b.cl.457.223(4)(da); and
c.cl.457.223(4)(e).
Requirement for an approved nomination
Clause 457.223(4)(a) requires the applicant to have a nomination relating to him approved under s.140GB of the Act by a standard business sponsor and the nomination must not have ceased as provided for in r.2.75 of the Regulations.
The applicant made the Subclass 457 visa application 30 March 2017 on the basis of a nomination in the position of Drainer, Australian and New Zealand Standard Classification of Occupations (ANZSCO) 334113, by Athassel Civil Pty Ltd (the sponsor) whose first nomination for the position was approved on 18 October 2016. A second nomination application was lodged by the sponsor on 30 March 2017 and approved on 14 February 2018. It has not been withdrawn.
The Subclass 457 visa programme ceased on 18 March 2018 (the commencement day). The nomination, in the circumstances of this case, would normally have ceased 12 months after the date it was approved by operation of paragraph 2.75(2)(b) of the Regulations. However, under the transitional provision in cl.6704(15) of the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018, r.2.75(2)(b) of the Regulations does not apply and the nomination is ‘saved’ until the Tribunal has made a decision on the review of the refusal of the applicant’s Subclass 457 visa.
For these reasons, the Tribunal is satisfied that the applicant meets cl.457.223(4)(a) of Schedule 2 to the Regulations.
Skills, qualification and employment background of the applicant
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.
The applicant is a citizen of Ireland. Before applying for the Subclass 457 visa that is the subject of this review on 30 March 2017, he resided in Australia holding a working holiday Subclass 417 visa, from early 2016.
In the ANZSCO, Drainer 334113 is included in Unit Group 3341 Plumbers, which includes that ‘most’ occupations in the unit group have a level of skill commensurate with the qualifications and experience of an Australian Qualifications Framework (AQF) Certificate III, including at least two years of on-the-job training, or AQF IV. Or, in the alternative, that at least three years of relevant experience may substitute for formal qualifications. It is indicated that registration or licensing is required for the Unit Group 3411 Plumber, for ‘most occupations’. The occupations that are included in the ANZSCO Unit Group 3341 Plumbers are Plumber (General), Airconditioning and Mechanical Services Plumber, Drainer, Gasfitter, Roof Plumber.
The ANZSCO specifies that ‘most occupations’ in Unit Group 3341 Plumbers has the indicative skill levels listed, and then goes on to indicate that each and all of the occupations in the unit group require licensing or registration, which in the Tribunal’s mind is somewhat inconsistent with the reference to it being ‘most occupations’. The ANZSCO should be used as a guide, not prescriptively. The Tribunal has used its discretion to decide whether or not a Drainer (334111) needs to be held to the indicative ANZSCO skill level standard, including whether the applicant is required to be licensed or registered and whether a Drainer needs to be a licensed plumber.
The applicant has provided the Department and Tribunal with documents including:
a.Submissions from Ms Hallam;
b.Reference from Patrick Naughton Excavations (Dubway Pty Ltd), dated 15 November 2015, confirming the applicant worked for them as a Drainer from 11 June 2019;
c.Reference from Carna Civil Pty Ltd, dated 12 November 2019, confirming the applicant worked for them as a Drainer from October 2018 to March 2019;
d.Recent reference from Athassel Civil Pty Ltd, dated 11 November 2019, confirming the applicant worked for them as a Drainer from March 2017 to August 2018;
e.Written reference dated 30 March 2017 from Rail Road Civil Pty Ltd, confirming that the applicant has been employed as a Drainer (including a list of his tasks and duties) since October 2016;
f.Written reference from Athassel Civil Pty Ltd, dated 20 March 2017, confirming that the applicant was employed by them as a full-time Drainer from April 2016 to September 2016 and that they are satisfied he has ‘acquired the necessary skills to competently perform his daily duties as a result of past work experience’;
g.Written reference from T Morrissey Plant Ltd (Ireland), dated 30 March 2017, confirming the applicant was employed by them as a Drainer (including a list of duties and tasks performed) from January 2014 to March 2016.
On the basis of the information contained in his work references, and his oral evidence, the Tribunal accepts that the applicant has worked full-time as a Drainer in Australia for close to three years and in Ireland for about two years. The applicant has submitted and provided evidence that in the course of his employment as a Drainer he works with stormwater, recycled water, fresh water mains, sewers and, less often, irrigation and fire mains. In short, since commencing work with the sponsor in April 2016, he has worked predominately on large commercial projects on water mains.
The applicant presented at the Tribunal hearing as being very credible. He gave a spontaneous and detailed account of his day to day activities and, when asked for clarification about industry terms, was able to elaborate without hesitation. He was asked to explain what he does when he is working as a Drainer and said he does drainage, sewerage and stormwater, but mostly water mains and less of the others.
The applicant said that on a typical day working as a Drainer laying pipes for water mains, qualifying that each job is different, he talks to the supervisor, looks over the engineer’s drawings and they decide how to proceed. Next, he uses a laser to get a line, depth and grade, pegs the trench and measures the depth of the ground. He then gets the operator (digger driver) to dig the trench, then sand is sprinkled in, then the pipes go in either by hand or sling, and, together with the labourers he is supervising, they bar (or push) home the pipes, which vary in size and composition and include concrete, ducktile or occasionally smaller PVC pipes.
The applicant said sewer work is the same process but also requires a pit to connect the pipes, which would be shown on the drawings. He spoke about sandbagging, flanges, considerations and steps that need to be taken relating to pressurised water passing through the pipes, chamfering the end of pipes with the use of a concrete saw, instructing labourers on slinging the pipes into the trench and ensuring beforehand that the sling is up-to-date and safe to use. He described the safety precautions he takes, including the protective work gear he wears and also that he ensures a fire hydrant is nearby if there are likely to be sparks. Another safety precaution the applicant described was placing shields in the middle of a trench, if it is deeper than 1.5 metres, to mitigate against personal injury in the event of a collapse of any sort. The applicant gave significantly more detail than this and the Tribunal is satisfied that the applicant performs, or has performed, all the tasks described for the Unit Group relevant to the types of construction or work he does with stormwater pipes and mains, sewers and sewerage systems.
The ANZSCO indicates licensing is required for ‘most occupations’ in the unit group. Having carefully considered the written submissions, the Tribunal has taken into account the requirements, definitions and exclusions in the NSW Office of Fair Trading requirements, Home Building Act 1989 and Plumbing and Drainage Act 2011 (both NSW) relating to the nominated occupation of Drainer. The submissions draw attention to the question of whether a Drainer, in all circumstances, is required to be licensed or registered in New South Wales by the Department (no), the New South Wales Office of Fair Trading (yes), the Home Building Act 1989 (only if the work is residential or specialist, where ‘specialist’ means plumbing and drainage work as defined in the Plumbing and Draining Act 2011) and according to the definition of ‘plumbing and drainage work’ in the Plumbing and Drainage Act 2011 (not all Drainers: s.4(5)).
The essence of the written submissions provided to the Tribunal is, in summary, that the applicant ‘performs drainage works on large civil construction projects which include the management of stormwater, recycled water, fresh water mains, irrigation and fire mains and more’ and not residential building work:
a.Licensing of Drainers is governed by the Office of Fair Trading, Home Building Act 1989 and Plumbing and Drainage Act 2011
i.The Office of Fair Trading states that licensing is required for Drainers, ‘whether it is residential, commercial or industrial’; and
ii.The Home Building Act 1989 includes, relevantly, that ‘plumbing and drainage work’ means plumbing and drainage work within the meaning of the Plumbing and Drainage Act 2011; but
iii.In the Plumbing and Drainage Act 2011, ‘plumbing and draining’ is given the meaning in s.4(5), which specifically excludes, among other things, construction of or work on stormwater pipes, mains, sewers and sewerage systems;
iv.Therefore the applicant does not perform ‘plumbing and drainage’ works in the way contemplated by the legislation.
The Tribunal acknowledges that the applicant has provided a number of Tribunal decisions where Drainers have had their visa refusal decisions remitted to the Department.
The duties for Unit Group 3341 Plumber in the ANZSCO, which covers all occupations listed in the unit group, includes:
a.studying blueprints, drawings and specifications to determine the layout of plumbing systems and materials required
b.installing water-based fire protections systems, including fire hydrants, hose reels and sprinkler systems
c.designing and installing sanitary plumbing and water supply systems, discharge pipes and sanitary fixtures
d.fabricating and installing soil and waste stacks
e.assembling and installing mechanical services plant, air handling and conditioning equipment and small bore heating systems
f.installing sewerage and effluent pumping equipment and disposal systems
g.installing below-ground drainage systems and associated ground support systems
h.setting out and installing hot and cold water systems and associated equipment
i.installing gas appliances, flues and pressure regulating devices
j.fabricating and installing metal roofing, rainwater goods and flashings
The applicant is not, and does not claim to be, a licensed Drainer, but claims he does not need to be licensed for the sort of drainage work he does. It has been submitted that in certain circumstances Drainers do not need to be licensed, including where they work in the capacity specifically excluded in the Plumbing and Drainage Act 2011 in s.4(5), which relevant to this matter includes:
(a)the construction of, or work on, stormwater pipes,
(b)(b) the construction of, or work on, fire suppression systems,
(c)the construction of, or work on, network utility operator, local council, joint organisation or county council water or stormwater mains, sewers or sewerage systems
On the basis of the submissions, it is fair to say that there could be more than one view on whether or not a Drainer needs to be licensed. In this applicant’s circumstances, the Tribunal is satisfied that the applicant has worked as a Drainer, full-time for more than three years, predominantly performing the type of work included in the ANZSCO for a Drainer, but he is excluded from the requirement to be licensed, relying on s.4(5) of the Plumbing and Drainage Act 2011, due to the precise nature of the types of drainage work he does and does not do.
For the reasons given, the Tribunal finds that this applicant is not required to be licensed or registered to work in the nominated occupation of Drainer.
On the evidence, the Tribunal is satisfied that the applicant has, and has demonstrated that he possesses, the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.
For these reasons the applicant satisfies the requirements of cl.457.223(4)(da) and cl.457.223(4)(e).
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 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)(a) of Schedule 2 to the Regulations
·cl.457.223(4)(da) of Schedule 2 to the Regulations
·cl.457.223(4)(e) of Schedule 2 to the Regulations
Jennifer Cripps Watts
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.

[2020] AATA 204

31 January 2020

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