Olson (Migration)

[2021] AATA 5549

Olson (Migration) [2021] AATA 5549 (13 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tom Oliver Olson

CASE NUMBER:  1830343

HOME AFFAIRS REFERENCE(S):          BCC2018/3023968

MEMBER:Wan Shum

DATE:13 December 2021

PLACE OF DECISION:  Sydney

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

Statement made on 13 December 2021 at 11:39am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – Telecommunications Linesworker – genuine temporary entrant – business needs – heavy reliance on the applicant – two previous visa applications for permanent visas – circumstances in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 482.222

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 3 October 2018 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 11 August 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 Short-term stream to work in the nominated occupation of Telecommunications Linesworker (ANZSCO code: 342413).

3. The delegate in this case was not satisfied that the applicant's intention to perform the nominated occupation is genuine and refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 482.212 of Schedule 2 to the Regulations.

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

5. The applicant appeared before the Tribunal by videoconference on 24 November 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Sonja Abercrombie by phone.  The representative was present throughout from a different location.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issues that arise in this case involve consideration of the applicant’s intention to perform the nominated occupation and whether it is genuine (clause 482.212), as well as whether the applicant is a genuine applicant for entry and stay as a short-term visa holder(clause 482.222). The Tribunal informed the applicant that it would be considering both these issues at the hearing. For the following reasons, the Tribunal does not consider that the applicant genuinely intends to stay in Australia temporarily having regard to his circumstances, and his immigration history.

8. The applicant’s immigration history, which is set out in the delegate’s decision record, reflects that the applicant has applied for several visa pathways since arriving Australia in November 2014 on a Working Holiday (Web) (TZ 417) visa and has not departed the country since that time. He confirmed that he had previously entered Australia on three separate occasions holding visitor visas to visit his father, Mr Gary Olson.

9. The applicant then applied for a Working Holiday (Extension) (onshore) (TZ 417) which was granted on 7 October 2015. He then lodged an application for a Remaining Relative (Residence) (Class BU Subclass 835) visa in November 2016. The application was withdrawn on 31 July 2017. The applicant explained that he had lodged the visa without any immigration assistance, believing that he was eligible as the son of Mr Gary Olson, but then withdrew when he realised he would not satisfy the criteria. The applicant denied knowing that it was a permanent visa and said that it was not an indication that he wished to remain in Australia permanently. While the Tribunal acknowledges that he did not have immigration assistance, it has doubts that he was not aware that it was a permanent visa.

10. Moreover, the next visa he applied for on the basis of his de facto relationship of his then partner was another permanent visa, RSMS Direct Entry (Class RN Subclass 187 visa). He explained that he withdrew the application once the relationship broke down.

11. Prior to withdrawing from that application on 23 August 2018, he had lodged a Temporary Skill Shortage (Short Term) visa application on 11 August 2018, which is the subject of this review. The standard business sponsor who is nominating the applicant, GS Fibrecomm Pty Ltd, is owned by his father, Mr Gary Olson, and step-mother, Ms Abercrombie. Ms Abercrombie explains in her statutory declaration of 17 November 2021 and at the hearing that they started the business from WA in mid-2014 after a former colleague of Mr Gary Olson informed them that there was a lot of work in the ACT but they were unable to secure subcontractors to carry out the work. In 2016, the couple lived in the ACT for two years during which time they lived with the applicant and then returned to WA, which they regard as their home. They currently have 5 employees in the ACT, including the applicant, one in SA and one in WA in addition to the two directors. The Tribunal was provided with a copy of a master subcontract agreement between the principal, Downer EDI, and GS Fibrecomm Pty Ltd as the subcontractor; and a Service Stream Framework Agreement in respect of Wireline – Telstra Wideband and ARCW and was it was explained that Downer EDI and Service Stream are two of the three first tier contractors that Telstra had awarded new contracts to this year. The Tribunal was also provided with copies of Work Authorisations issued by Telstra to the applicant for September to October 2021 in Greater Sydney/NSW and ACT, and the Tribunal accepts that he carries out work in relation to Telstra’s provision of telecommunications and related services in these areas.

12. While the Tribunal acknowledges that Mr Gary Olson, one of the Directors of the business, is the applicant’s father which raised potential concerns as to whether the position was created to facilitate the stay of a family member, the Tribunal accepts that the business does employ the applicant to carry out cabling and other work relating to telecommunications.

13. Notwithstanding this, the Tribunal has serious doubts that the applicant is a genuine entrant for a temporary stay because of his previous applications and notes that he has remained in Australia for over 7 years since he first arrived on a Working Holiday visa.

14. In his statutory declaration in which he declared that he will leave Australia after the expiry of the Subclass 482 visa if it is granted and his intention is to remain temporarily, the applicant referred to a number of family occasions in England which he would have liked to be present for but he was unable to depart Australia without being allowed to return because he has held a bridging visa C since mid-2017. The Tribunal further acknowledges that the COVID-19 pandemic in the past couple of years has meant restricted travel as a result of border closures, although it doubts that the applicant would have wanted to visit England during that time as he had not prior to this anyway. Nevertheless, wanting to travel to England to visit family does not convince the Tribunal that he only wishes to remain here temporarily.

15. The evidence from his employer was given by Ms Abercrombie, who explained that the business requires the applicant to remain for the short term due to travel restrictions within Australia resulting in Mr Gary Olson, the working director, being unable to travel to the ACT from WA where the majority of the work is located. It is claimed that the business, GS Fibrecomm, needs the applicant now and for the short-term future and refers to difficulties in hiring Telecommunications Linesworkers evidenced by previous attempts in the form of job advertisements in July 2018, September 2019 and January 2020.

16. When asked about what would happen once the visa period passes, Ms Abercrombie said they hope Mr Gary Olson will be able to move between WA and ACT. It appears based on the list of current employees that the applicant is the only ‘Telecommunications Lineperson’ engaged by the business, with all others given the job title ‘Telecommunications Operative’. During the hearing, Ms Abercrombie said that there was nobody currently being trained up to fill that position. Noting the difficulties set out in her statutory declaration that the company is “working on training our own skilled workers and upskilling Australians – however getting qualified employees, even when training our own, takes time and we struggle to get them as there is no manpower in the ACT…”,  it did not appear to the Tribunal that there was any existing plan in place to train a person to replace the applicant upon the end of the two year visa period.

17. Following the hearing, Ms Abercrombie provided an additional statement where she said she omitted to say while giving oral evidence, that GS Fibrecomm’s plan over the next 18 to 24 months is to focus on upskilling Alan Gaston, who is one of their recently qualified apprentices and has been working closely with the applicant in a pair. Reference was made to Mr Gaston recently attaining his qualification (via his apprenticeship with them) ICT30515 - Certificate III in Telecommunications Technology which qualified him as a Telecommunications Cable Jointer. It is claimed however that the only way for Mr Gaston to become a Telecommunications Linesworker is to gain experience in the role with on-the-job training, and the only way he will be able to do that is by continuing to work closely with the applicant, as the relevant qualification for that occupation is no longer offered by Registered Training Organisations in Australia. It was claimed that their intention is to find and train another new apprentice who will then take Mr Gaston’s spot in the team and Mr Gaston will then eventually be able to train other apprentices into the Telecommunications Linesworker role once he himself has gained the experience needed for the position, which appears to imply that there is no need for him to remain in Australia beyond the visa period.

18. The Tribunal accepts that the relevant qualification as identified by TRA is no longer offered based on the information from TRA and the training.gov.au website.[1] It does not appear that another qualification has been identified as acceptable or one that will be considered as relevant to this occupation by TRA. The Tribunal therefore is prepared to accept that a person will require on-the-job training in order to meet the skill level of this occupation at the present time. However, the Tribunal notes that the applicant’s highest qualification, which was awarded to him in January 2021, is the same as that held by Mr Gaston. So while it is claimed that the applicant has 6 years’ experience in the occupation of Telecommunications Linesworker, it is not clear on the evidence how he gained the skills and/or experience for the occupation as he does not hold the formal qualifications for this occupation as set out in the TRA list. There does not appear to be a skills assessment, but according to his resume prior to working as a ‘Telecommuncations Linesworker’ he had 6 months experience as a Telecommunications Technician and 6 months as a Telecommunications Operative.

    [1] (accessed on 3 December 2021)

19. So while the Tribunal accepts that the applicant is the more experienced of the pair and has been training Mr Gaston, it is of concern to the Tribunal that in the 3 years since the nomination was initially approved, which is more than the two year period of the visa if it had been granted, it appears that no-one was trained as a Telecommunications Lineworker to replace him. The evidence presented is that it is the business that needs the applicant in the short term future and it is not the applicant that wishes to remain in Australia, claiming that he will be able to find work easily in this field on return to England. The Tribunal accepts that the business has a genuine need for the applicant but has doubts that the need is only for the short term. It seems to the Tribunal that the business places a heavy reliance place on the applicant to carry out the position being the only person identified as a Telecommunications Lineworker in the business. Furthermore, the proposed future plans appear to rely partly on travel restrictions being lifted and/or another apprentice being engaged both of which are somewhat speculative at the present time at least party because of the pandemic. Given this, the Tribunal has doubts that the business will not have a need for the applicant to stay beyond two years given the apparent difficulties in employing or training anyone else to carry out the occupation to date.

20. In terms of the applicant’s intention, the applicant claims that he does not have an intention to stay in Australia permanently and will return to England after the two year visa period, where he will be able to find work easily in this field. While the Tribunal accepts that there are many jobs available across England in the Telecommunications Industry, no particular job or possible employer was identified as one for whom he wished to work for. The Tribunal has also taken into account that the applicant has family members in England, including his mother and brothers, whom he has not seen in person for some time and expressed a desire to visit once the visa is approved. However, the events that he refers to having missed in England such as birthdays and his grandmother’s hospitalisation are of limited persuasion in terms of his intention to return to England given that he has not chosen to visit at all since he first arrived in 2014. Even though the Tribunal does not consider that he wishes to remain in Australia because his father and stepmother are in Australia – noting that they have only lived in the same location for 2 years – and he claims the Australian woman with whom he lives in Canberra (along with other housemates), would go to England with him after the visa period passes, it appears to the Tribunal that he is settled in the ACT having lived there for over 5 years now. Put simply, due to the delay in the merits review process, the applicant has stayed beyond the two-year visa period if it had been granted but it does not appear that he is ready to leave Australia.

21. Having considered all of the evidence presented, it seems to the Tribunal that the business places a heavy reliance place on the applicant to carry out the position being the only person identified as a Telecommunications Lineworker in the business. The Tribunal has considered the applicant’s claims but having made two previous visa applications to remain permanently in Australia and lived in the ACT for over 5 years, it is not convinced that the applicant’s intention to remain temporarily is genuine. It appears to the Tribunal based on his applications for two permanent visas that there was clearly an intention to remain in Australia longer than for a temporary period around the time when this visa was lodged. The Tribunal is prepared to accept that the applicant did not realise that he would not meet an essential requirement for the grant of the Remaining Relative visa having apparently made the application by himself, but it does not accept the applicant’s claims not to have known that the Remaining Relative and RSMS visas were permanent visas, being clearly in the title or description of the visas. Therefore, despite his claimed intention and the employer’s claims that they will not need him after two years, the Tribunal does not consider that this outweighs the applicant’s immigration history and the length of his stay in Australia.

22. For these reasons, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Therefore, the applicant does not meet cl 482.222(a).

23. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a short term visa holder as required by cl 482.222. 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