Shiel (Migration)

[2022] AATA 4949

Shiel (Migration) [2022] AATA 4949 (20 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Peter Stephen Shiel
Miss Laura Calderini

REPRESENTATIVE:  Miss Minh Nguyen (MARN: 1683134)

CASE NUMBER:  2005602

HOME AFFAIRS REFERENCE(S):          BCC2019/6558647

MEMBER:Namoi Dougall

DATE:20 December 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for GK – Temporary Skill Shortage (Class GK) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 482 - Temporary Skill Shortage visas:

·Public Interest Criterion 4020 for the purposes of cl 482.217 of Schedule 2 to the Regulations

Statement made on 20 December 2022 at 3:54pm

CATCHWORDS
MIGRATION –Temporary Skill Shortage (Class GK) visa – Subclass 482– applicant had given information that was false and misleading in a material particular in regard to his character declarations – applicant does not meet PIC 4020(1) – applicant holding a IRATA Level 3 rope access certification – highly valuable employee – applicant has a unique set of skills and qualifications – there are compelling circumstances that affect the interests of Australia that justify the grant of the visa – decision under review remitted 

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 482.217, Schedule 4

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Trivedi v MIBP [2014] FCAFC 42

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 9 March 2020 to refuse to grant the applicants GK – Temporary Skill Shortage (Class GK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 9 December 2019. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl 482.217 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied that the applicant met the requirements of public interest criterion (PIC) 4020 of Schedule 4 to the Regulations. The delegate found that the applicant had given information that was false and misleading in a material particular in regard to his character declarations.

3. The applicant appeared before the Tribunal on 14 December 2022 to give evidence and present arguments.

4. The applicants were represented in relation to the review.

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

consideration of claims and evidence

1. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 482.217 for the grant of the visa. Broadly speaking, this requires that:

   ·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and

   ·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and

   ·the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and

   ·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA).

2. The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.

Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?

1. The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and the term ‘bogus document’ is defined in s 5(1) of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.

2. The requirement in PIC 4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant: PIC 4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.

3. While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42.

4. On 16 June 2017, the applicant lodged a Subclass 457 visa application in which the applicant answered ‘No’ to the question: ‘Have any applicant ever been convicted of an offence in any country (including any conviction which is now removed from official records?’.

5. On 9 December 2019, the applicant lodged a Subclass 482 visa application in which the applicant answered ‘Yes’ to the question: ‘Have any applicant ever been convicted of an offence in any country (including any conviction which is now removed from official records?’.

6. Provided with the Subclass 482 visa application was a Police Certificate provided by the ACRO Criminal Records Office dated 20 September 2019. (the UK Police Certificate) provided with the applicant’s Subclass 482 visa application indicated that the applicant had 5 convictions from 4 separate incidents from 20 March 2004 to 14 September 2009. The first conviction was for being drunk and disorderly for which the applicant received a caution. Th second conviction was for assault occasioning actual bodily harm for which the applicant had to be GBP300 in compensation and received 180 hours community punishment order. The third conviction was for breach of community punishment order for which the applicant had to pay a GBP50 fine and costs and was ordered to continue the community punishment order. For both the second and third convictions the applicant had to attend Liverpool Crown. The fourth and fifth convictions were for making off without paying and common assault for which the applicant attended the Wirral Magistrates Court and received for each conviction a 6 month community order and curfew with electronic tagging. For each offence the applicant was also ordered to pa GBP101 and GBP125 compensation respectively and costs of GBP150.

7. Provided to the Department on 10 December 2019 was a statement from the applicant dated 9 December 2019 (the applicant’s 2019 statement) in which the applicant provided the circumstances surrounding each of his convictions and that for two of the convictions he attended Liverpool Crown Court.

8. On 17 December 2019, the Department sent the applicant a natural justice letter (the natural justice letter) which stated that the UK Police Certificate provided by applicant recoded several convictions for offences dated between 2004 to 2009. The natural justice letter then stated that within the 12 months prior to making the Subclass 482 visa application the applicant held a Subclass 457 visa. In his application for the Subclass 457 visa the applicant did not declare the offences/convictions, therefore, the delegate considered that the applicant had provided false or misleading information and invited the applicant to comment.

9. The natural justice letter also asked for information as to whether there were any compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, to justify the waiver of PIC 4020.

10. On 24 December 2019, the applicant provided a representative’s submission (the 2019 submission). It was submitted in the 2019 submission that the convictions do not meet the threshold of substantial criminal record as defined in sec.501(7) of the Act. It was further submitted that the applicant did not intentionally provide the Minister with false or misleading information and if he did answer ‘’yes’ as to his convictions he would have reasonably been granted a Subclass 457 visa as he satisfied the character test under sec.501(6) of the Act.

11. The 2019 submission further argued that the applicant misunderstood the application of the Rehabilitation of Offenders Act 1974 (UK parliament) (ROA) as he thought he was part of the Commonwealth and he had not received a custodial sentence, his convictions were spent and thought he did not have to declare it under the ROA. The submission referred to the applicant’s former agent requested that the applicant provide an overseas penal clearance certificate but did not provide it with the Subclass 457 visa application as it was not mandatory to provide an overseas penal clearance certificate for a temporary visa application and if one was provided with had to be done by the ARCO Criminal Records Office. The applicant had completed a Basic Disclosure Criminal Conviction Certificate from Disclosure Scotland. The former agent retained the certificate on her file but did not provide it to the Department as it was not mandatory to provide it. The Disclosure Scotland certificate dated 6 June 2017 stated that ‘the applicant has no convictions for disclosure’. The submission stated that under the ROA the applicant’s minor convictions were considered as pent convictions 12 months after he completed his community service orders and curfew requirements. It was further submitted that under the Australian Crimes Act 1914 an applicant has a right to non-disclosure after a conviction is spent. The applicant also provided a copy of the Disclosure Scotland certificate.

12. The 2019 submission also stated that the applicant does not meet the definition of ‘substantial criminal conduct’ under ss.501(6)(a) and 501(7). Further, the applicant past and present criminal conduct and general conduct are such that he would satisfy the character test.

13. The 2019 submission referred to the applicant’s volunteer work in the community which the Tribunal will consider further below.

14. Also provided to the department on 24 December 2019 was a letter of support from the Managing Director of the applicant’s nominating buisness, Kerrect Group Pty Ltd (nominating business) dated 23 December 2019 (the Kerrect letter of support) as to the applicant’s importance to the nominating buisness. The letter is considered in detail below.

15. On 21 October 2022, the applicant provided to the Tribunal a submission (the 2022 submission) and supporting information which also dealt with the applicant’s importance to the nominating business and his specialised skills. The supporting information also included a further letter of support from the nominating business dated 19 October 2022 (the 2022 letter of support). The submission and the letter of support will be referred to in detail below.

16. At the hearing the applicant confirmed that he conceded that he had provided false or misleading information to the Department in his Subclass 457 visa application.

17. At the time the applicant lodged his Subclass 482 visa on 9 December 2019 he held a Subclass 457 visa granted on 22 December 2017. Therefore, the Tribunal is satisfied that the applicant held the Subclass 457 visa in the period of 12 months before the Subclass 482 visa application, the subject of this review, was made.

18. On the evidence, the Tribunal is satisfied that the applicant provided false and misleading information in his Subclass 457 visa application made on 16 June 2017, as he answered ‘No’ to the character declaration question: ‘Have you, or any person included in this application to apply for this visa ever: Been convicted of a crime or offence in any country (including any conviction which is now removed from official records?’ At the time the declaration was made the answer was false and misleading as the applicant had been convicted for several offences dated between 2004 to 2009.

19. The Tribunal has considered the argument in the 2019 submission that the applicant would meet the character test, however, correct information as to the applicant’s convictions is relevant to the character test. In particular sec.501(6)(c) as, in order to assess whether a person is not of good character, an assessment needs to be made of a person’s past and present criminal conduct and to make that assessment information that is not false or misleading as to convictions or offences is needed. Therefore, the Tribunal is satisfied that the applicant’s answer in the character declaration in the applicant’s Subclass 457 visa applicant is false or misleading information in a material particular.

20. As the applicant’s offences were serious enough for him to have to attend Liverpool Crown Court the Tribunal is satisfied that the applicant was aware of his convictions for offences and purposely provided false or misleading information in a material particular in his answer in the character declaration in the Subclass 457 visa application, which is the last substantive visa held by the applicants in the 12 months immediately preceding the Subclass 482 visa application currently under review.

21. Therefore, the applicant does not meet PIC 4020(1).

Should the requirements of PIC 4020(1) or (2) be waived?

1. The requirements of PIC 4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in reg 1.03), that justify the granting of the visa. The decision-maker must first be satisfied that there are such circumstances, then must consider whether to exercise the discretion to waive the requirements, having regard to those circumstances: Kaur v MIBP [2017] FCAFC 184.

2. The expressions ‘compelling circumstances’ and ‘compassionate or compelling circumstances’ are not defined for these purposes. To be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied: see Plaintiff M64/2015 v MIBP [2015] HCA 50. The ordinary meaning of ‘compassionate’ relates to feelings of sympathy, sorrow, pity or concern for others.

3. The case presented for the applicant relies upon submissions and evidence set out below and that there are grounds for the Tribunal to waive the requirements of PIC 4020(1) and (2) on the basis there are compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen or an Australian permanent resident.

4. The Tribunal notes that for the purposes of the application of the regulation, a corporation is not an Australian citizen. The emphasis or focus of the waiver provisions is on the interests of Australia, or the interests of Australian citizens or Australian permanent residents, triggered by compelling circumstances or compelling and compassionate circumstances.

5. In order to engage with the question of waiver, the Tribunal must embark on a 2-step enquiry, firstly to consider whether there are compelling circumstances or compassionate or compelling circumstances as required in PIC 4020(4)(a) or (b); and secondly, whether to then exercise discretion to waive the requirements in PIC 4020(1) and (2), having regard to all the relevant facts and circumstances arising.

6. Although the Tribunal is not bound by Departmental policy, it has had regard to the elements emphasised in the policy in terms of the exercise of discretion. In particular, the policy guidelines in ‘Sch4/ 4020 - The Integrity PIC’ state the following in respect of compelling and compassionate circumstances:

   37 Compelling and/or compassionate circumstances…

   37.2 Compelling circumstances affecting the interests of Australia 4020(4)(a) …

   There may be compelling circumstances affecting the interests of Australia if:

   ·     Australia's trade or business opportunities would be adversely affected were the person not granted the visa (Note: under policy gaining employer sponsorship is not considered sufficient grounds for a waiver);

   ·     Australia's relationship with a foreign government would be damaged were the person not granted the visa; or

   ·     Australia would miss out on a significant benefit that the person could contribute to Australia's business, economic, cultural or other development (for example, a special skill that is highly sought after in Australia) if the person was not granted the visa.

7. Departmental policy also states that compelling circumstances affecting the interests of Australia would not include circumstances if the non-citizen merely claims that, if granted the visa, they would:

   ·     work and pay taxes in Australia or

   ·     pay fees to an education provider or

   ·     spend money in Australia.

8. For the following reasons, the Tribunal is satisfied that the requirements should be waived.

   Kerrect letter of support dated 23 December 2019

9. Also provided to the department on 24 December 2019 was a letter of support from the Managing Director of the applicant’s nominating buisness, Kerrect Group Pty Ltd (nominating business) dated 23 December 2019 (the Kerrect letter of support). The letter of support referred to the applicant being nominated as a painting Trades Worker (ANZSCO 332211) in the position of a Senior Rope Access L3 Trade Painter.

10. The Kerrect letter of support stated that the nominating buisness has been operating for 20 years in an increasingly competitive market and has a turnover of over $2 million. The letter further stated that it was common in the rope access industry that technicians leave after receiving their Level 3 qualifications to work in the oil, gas and mining industries due to better pay and flexible rosters. Further, the nominating buisness has had difficulties in employing skilled workers who have the experience, qualifications, professional and leadership skills so they are able to lead a team such as the applicant does.

11. The Kerrect letter of support stated that the applicant’s role is important to the nominating buisness as he will supervise and lead the rope access painting team in liaising with senior managers. The applicant has the right skills and experience to allow the Solutions Manager to confidently tender for work. Further, he assists in assessing feasibility of completing a job; the resources needed both materials and human resources; and the time it would take to complete a job. Also, as the applicant can run a job from start to finish means, management has more time to give to other jobs where they are needed. It was stated that the flow on effects is that the nominating business can then acquire more work, recruit more Australian employees and continue to grow an Australian business.

1. It was further submitted in the Kerrect letter of support that there is a correlation between the quality of the work performed and the highly trained professional and the nominating business’s ability to win tenders for major projects like the Sydney Opera House and Sydney harbour Bridge. The applicant had completed a façade maintenance on the Sydney Opera House which required a team of highly skilled rope access tradesmen with several licences and skills necessary to carry out all work. The applicant was instrumental in leading the rope access team of painters and tradesmen which earnt the nominating business $23,000. The letter further stated that customers such as the Sydney Opera House Trust require discretion and an in depth knowledge of building layouts and the applicant has built up this knowledge over the years for many of the nominating business’s clients. Further, it is a testament to the applicant’s skills and professionalism that clients ask for him by name.

2. The Kerrect letter of support also stated that the applicant has completed an induction process for a Supervision role on an upcoming project for NSW Roads and Maritime Services (RMS), Sydney Harbour Bridge and Sydney Program Alliance which will lead to additional work. It was stated that the trades, licenses and experience of the supervisors meant the contract was acquired. The applicant had, prior to the upcoming project, been a Supervisor on projects for NSW RMS and Sydney Harbour Bridge. That project was acquired as the applicant was included on the job. Further, the nominating business has been asked to perform additional work based on the applicant’s submitted plans.

3. The Kerrect letter of support also stated that the loss of the applicant would have negative effect on the nominated business, not only as competitive business but also on it’s ability to provide on the job training to Australian citizens and permanent residents. The applicant contributes greatly to the learning and development of lesser experienced and new employees. His industry knowledge and knowledge of the nominating business’s policies and procedures is invaluable when teaching employees industry basics, a professional way to conduct themselves and how to carry out works to the nominating business’s specific standard and in a  safe manner. Without the applicant training new or less experienced employees, this will have a negative impact on the company’s business’s operations, growth and future expansion.

4. The significant impact the loss of the applicant would have on the nominating business was then set out in the letter of support. The areas that would be affected were stated to be:

   ·     Supervising work sites, and organise materials and human resources required to execute a client contract from start to finish; co-ordinating the work schedule between suppliers, rope technicians, building managers, and sub-contractors,

   ·     Trade painting knowledge and skills to calculate cost of painting contracts, estimating time scales for completion of work, ordering/inspecting materials required, and applying correct surface and painting skills to carry out the work

   ·     Level 3 rope access skills to perform painting work from difficult-to-reach areas and working at height, as well as the knowledge and skills to perform rope access rescue in cases of emergency

5. Further, the Kerrect letter of support stated that the position they need to fill through the nomination application was for a senior L3 rope Access Trade Painter. It takes 3 years to train someone to that level of skill and to obtain a certification from International Rope Access Trade Association (IRATA). The nominating business does not have the time or resources to train another employee. Also, the nominating buisness has had difficulties recruiting in the local labour market with only 7 applicants for the job. Four of the applicants were overseas and could not start immediately and 3 only had experience in painting and not in rope access.

6. The Kerrect letter of support stated that the applicant has been with the company over three years and has strong relationships with staff and  through the high quality of his work has strong working relationships with clients, so he is asked for by name. The reputation the applicant has for the quality of his workmanship and leadership had meant the nominating business has been able to secure existing and ongoing work with major clients and without the applicant the security of the contracts would come into question. This could potentially cost the nominating buisness upwards of $6,000,000 in projected revenue and ultimately the loss of jobs.

   The 2022 submission

7. On 21 October 2022, the applicant provided to the Tribunal a submission (the 2022 submission) and supporting information. The 2022 submission stated that the nominating business has been one of the leading industrial rope access companies in Australia providing height safety, specialist access and safety netting services to the Building and Construction, Industrial, Infrastructure, Mining and Commercial sectors. The nominating buisness has 14 employees of which 4 are professionals. The remaining 11 are rope access technicians with specialist trade qualifications in painting, masonry, carpentry, concrete and rendering, electrical work and installation.

8. The 2022 submission stated that the nominating business has manage to continue operations during the COVID-19 Pandemic. A loss was made in the financial year ending on 30 June 2022 dues to lockdown and wet weather with the example that the nominating business could only effectively work 21 days from November 2021 to April 2022 due to wet weather. The Tribunal was provided with the nominating business’s tax return for the financial year ending 30 June 2020 and the profit and loss statements for the financial years ending on 30 June 2021 and 2022. However, it was submitted that the current financial year’s sales are back on target as evidenced by the selection of current new work contracts provided with the submission and a job schedule for the financial year ending 30 June 2023. The submission also stated that the majority of the contracts are for building maintenance which includes a large portion of industrial painting of high-rise building facades with the nominating buisness seeing more opportunities in building remedial work.

9. As to the applicant’s contribution to the nominating buisness, the 2022 submission included the three dot pints set out above from the Kerrect letter of support as the areas in which the applicant is skilled and where the nominating business would be affected if the applicant’s skills were lost. The submission then stated that in the last nine months alone the nominating business with  the assistance of the applicant has completed 280 work contracts, has a further 30 contracts due to completion and an additional 15 contracts under preparation. All the contracts require the applicant’s involvement and are worth at least $41.6 million. A number of the nominating business’s current contracts, invoices and purchase orders were provided to the Tribunal.

10. The 2022 submission also stated that the nominating buisness will be adversely affected if the applicant was not granted the Subclass 482 visa as he has a unique set of skills being a qualified trade painter and a rope access technician. Further, the applicant has experience in contract procurement, management and execution although this is no more than 20% of his work. The applicant has 10 years’ experience in the building and construction industry as trade painter and 7 years’ experience as a rope access trade painter.

11. In particular the 2022 submission referred to the applicant holding a IRATA Level 3 rope access certification. It was submitted that in 1998 IRATA was introduced to Australia when it worked with the Victorian trade unions to put IRATA rope technicians alongside similar trades to incorporate rope access as a highly skilled trade in the construction industry. Currently, in Australian and throughout the World, IRATA technicians carry out highly specialised work due to the unparalleled safety record and the increasingly skilled technicians who cross over as both trades persons and IRATA technicians.

12. Further the 2022 submission  stated that globally IRATA has trained over 100,000 technicians but only 13,000 are Level 3 certified rope access technicians. Of the 13,000 only 1,000 operate in Australia. Therefore, it was submitted, that a Level 3 rope access technician is a highly valuable employee for a business conducting work at height. It was further submitted that as 55% to 60% of Level 3 technicians work off-shore oil and gas rigs then there are even less available for the onshore construction industry. The submission also stated that the applicant also holds a number of additional qualifications, licenses and certifications to add to him being highly skilled. Copies of the applicant’s qualifications, licenses and certifications were provided to the Tribunal. It was submitted that as the applicant’s skills are highly specialised and in high demand but in short supply, the applicant’s loss would adversely affect the nominating business.

13. The 2022 submission submitted that the applicant has contributed to the procurement of work by the nominating buisness with 247 contracts obtained in the last nine months of which 20% require the applicant’s skills and expertise. Further, the applicant is responsible for managing the contracts and ensuring work is completed to the highest standards. Without the applicant the nominating business may lose work contracts and would need to spend money, time and resources trying to find a suitably qualified person in a short period of time. The nominating buisness has experienced difficulty recruiting level 1, 2 and 3 rope access technicians. A copy of a Seek advertisement was provided to the Tribunal which indicates that 6 people applied for the positions in 6 months. Of 6 only 2 were suitable and they wanted to be subcontracted at rates too expensive for the nominating business. The nominating business has recruited level 1 and 2 rope access technicians but not a suitably qualified level 3 and without a level 3 rope access technician the company will have to downsize which would potentially affect the jobs of Australian citizens and permanent residents.

    The nominating business’s October 2022 letter of support

14. Also provided was a further letter of support from Craig Rowling, Managing Director of the nominating business dated 19 October 2022 (the October 2022 letter of support). The letter stated that the applicant has been with the nominating business for 6 years and he is critical to the continued success of the nominating business. The applicant is an invaluable staff member to the operational and management teams and also to clients who have benefitted from his expertise. The letter also referred to labour shortages, especially for those with the skills and experience as the role is a unique one requiring a trade painting qualification and a level 3 industrial roper access certificate. These skills are required to execute the work contracts for building remedial and façade restoration contracts which involve a lot of work at height.

15. The October 2022 letter of support also stated that the nominating business’s biggest clients include Transport for NSW, Mirvac Constructions, Lendlease Building, Sydney Opera House and RMS and the applicant is the principal supervisor for the contracts from these clients worth $1.6 million. Further, the applicant has built relationships with new and existing clients since 2016. The applicant had built and maintained relationships with clients which has led to increased client retention and word of mouth opportunities.  Clients refer the applicant to other companies referring to the applicant’s vast industry knowledge and skills which has led the nominating business to obtain additional contracts. It is submitted that the Operations and Solutions Managers have achieved a lot but clients remember a great team who achieve the highest quality work and solve problems so that trust is established between the client and the nominating buisness. The applicant as a trade painter is an asset as he supervises the works and signs of the Inspection and Test Plan. Further, he continues to up his skills and is now a NSW qualified supervisor. He has also increased his competencies through TAFE in Auto CAD and Revit.

16. It was also submitted in the October 2022 letter of support that the nominating business is also trying to be involved in larger government jobs and a highly specialised team is needed and the applicant’s unique skills will be invaluable. The letter stated that the nominating business is finding it difficult to keep employees for several years as due to the skills shortages, they are losing employees to wind farms and other higher paid jobs. Further, it was submitted that losing the applicant would not only mean a loss of a highly skilled worker but also the relationships that he has built with clients will also be lost.

17. The October 2022 letter of support also referred tot the master Builders Association estimate that 477,000 workers will be needed in the building and construction industry in the next four and half years to meet growth. The applicant is needed to retain skilled workers but to also facilitate growth.

18. At the hearing the Tribunal discussed the information provided in the 2022 submission in relation to the number of IRATA qualified technicians that have been trained and those that are Level 3 rope access technicians. The Tribunal requested confirmation f the numbers from IRATA.

19. At the hearing the applicant stated that when he first goes on a site access is assessed and part of this is locating an anchorage point. His training as a Level 3 rope access technician means that he can spot appropriate anchorages and if there are none, he can instal an anchorage point. After the anchorage points have been installed they need to be tested and certified. He is qualified to test and certify the anchorage points. It is only after these steps have been followed, that the anchorage points can be used.

20. At the hearing the applicant stated that he will instal debris netting to protect builders working below them or to protect traffic. He assesses what sort of netting is required depending on what weight of debris may fall. Mansafe netting is installed to protect against falls. He is qualified as a Fall Arrest Safety Equipment Training (FASET) net installer which is a UK certification and the only certification which would allow mansafe rigging.

21. At the hearing the applicant stated that on a normal painting job the surface is prepared but on remedial façade work preparation is on a larger scale which may require the filling of cracks or large concrete spoiling. He has completed a Certificate I in Building to better understand what is required.

    Post Hearing Submissions

22. On 15 December 2022, the Tribunal was provided with a further letter for support from Kerrect (the December 2022 letter of support) which stated that before large scale building faced remedial work can commence a lot of work foes into ensuring that the sire is safe for personnel and the public including assessment, testing and sometimes installation of safety anchors off access points. These have to be assessed as safe and meeting industry standards before personnel are cleared to connect and abseil off the anchors. Also, the installation of different netting solutions to meet different objectives needs to be installed.

23. The December 2022 letter of support also stated that the applicant is required, before commencing work, to assess the different anchor points where personnel will be abseiling from and test each point using appropriate testing techniques. The applicant also ensures that  on buildings without existing anchor points the  appropriate anchor points are installed in accordance with three Australian and New Zealand industry standards. It was submitted that the applicant has a unique set of skills to carry out this work as it requires knowledge: of work positioning and rope access techniques; industry standards and the ability to apply the standards; and knowledge of the correct installation techniques.

24. In relation to installing safety netting, the December 2022 letter of support stated that the applicant has to assess a work area and the structure used to attach the nets; understand the nature of the works and any environmental aspects that impact work including any risk assessments; and rely informant regarding loads to all relevant parties. The skills the applicant has to perform this work includes his depth of knowledge regarding various netting solutions; experience identifying hazards; and relevant training and FASET Tickets to assess potential netting positions and correct installation.

25. The December 2022 letter of support also stated that falls from heights is one of the leading causes of deaths in the workplace so having the skills to ensure the safety of rope access technicians is critical. Also being able to install safety netting protects the public form potential hazardous materials and debris that may fall. In relation to FASET it was submitted that the applicant is one of only a handful of people in Australia who have the training and experience to install safety netting solutions as he is a certified FASET net rigger and net repairer. The letter stated that FASET is a UK based organisation recognised as the leading trade organisation and training body for safety netting and temporary safety system industry. It is the only recognised training body in Australia for safety net solutions.

26. Also provided to the Tribunal on 15 December 2022 was a letter from Mr Leigh Greenwood a former executive member and training committee member of IRATA from over ten years from 2011. Mr Greenwood stated that he is unsure of the numbers of Level 3 IRATA certified technicians there are in Australia currently, but he referred to IRATA’s ‘Work & Safety Analysis 2021’ report[1] and that a page 12 of the report states that there were 622 IRATA Level 3 certified rope access technicians in Australasia. Australasia includes Australia, New Zealand, Papua New Guinea and the Pacific Islands. The figure is only 13 % of level 3 certified rope access technicians around the world (4,745). The number also does not take into account the number of Level 3 technicians who work offshore. Further, Mr Greenwood stated that having a level 3 certified rope access technician means that a buisness and personnel are operating at the highest safety standard. From his experience the numbers of IRATA certified technicians in Australia is decreasing so retaining the skills set in the Australian building and construction industry would allow Australian companies to be more competitive and allow cross training and up skilling of the Level 3 technicians but also Level 1 and 2 technicians.

    [1] IRATA International (2021), ‘Work & Safety Analysis 2021’, accessed via: >

    The Tribunal was also provided with a letter from Mr Tony Seddon, Managing Director of FASET Ltd dated 14 December 2022 which stated that working at height is one of the major causes of death or injury in Australia. Safety netting provides a system of personnel fall protection and materials catching protection both the work site and the public. The letter stated that safety netting saves lives by providing soft catch in case of a fall. Mr Seddon also stated that there is an absence of a current Australian Standard and safety netting is manufactured and installed in compliance with British and European Standards and Codes of Practice. FASET is the established trade association and training body for safety netting and temporary safety systems industry in the United Kingdom. It is also the only body providing recognised safety net rigger and inspector training in the worldwide including Australia. Mr Seddon also stated that there are around 21 trained FASET qualified safety net riggers in Australia and not all are active. They provide guidance and mentorship to new trainees. Ensuring the retention of these highly training individuals is critical to maintaining the ability to qualify new safety net riggers to enable the expansion of the use of safety netting to save lives across a multitude of industries in Australia.

1. On the evidence the Tribunal is satisfied that the applicant has a unique set of skills and qualifications that allow him to perform his trade at height including the supervision of other trades also working at height. In particular the Tribunal is satisfied that the applicant is a highly experienced IRATA qualified Level 3 rope access technician and that there are only approximately less than 1,000 working in the building and construction industry in Australian cities. Further, the Tribunal is satisfied that the applicant is trained and experienced FASET net rigger and net repairer. These qualifications are essential to ensuring the safety of personnel on construction and building sites, as well as the public and there are limited numbers of Australians with similar level of qualification and experience. The applicant has a unique set of skills which are important to the building remedial façade work and road work repairs at height such as on the Sydney Harbour Bridge. Therefore, the Tribunal is satisfied that there are compelling circumstances that affect the interests of Australia that justify the grant of the visa.

2. Therefore, the requirements of PIC 4020(1) should be waived.

Has the applicant satisfied the identity requirements?

1. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.

2. There is no evidence before the Tribunal to suggest that there is any issue with the applicants’ identity. The applicants’ have provided to the Department the detail pages of their passports, together with overseas and Australian police certificates.

3. Therefore, the applicant meets PIC 4020(2A).

Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?

1. PIC 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2BA).

2. There is no evidence before the Tribunal to show that the primary or secondary applicants have been refused a visa in the relevant period because of a failure to satisfy PIC 4020(2A).

3. Therefore PIC 4020(2B) is met.

4. On the basis of the above, the applicant satisfies PIC 4020 for the purposes of cl 482.217 and the applications should be remitted to the Minister to determine the remaining criteria.

decision

1. The Tribunal remits the applications for GK – Temporary Skill Shortage (Class GK) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 482 - Temporary Skill Shortage visas:

   ·Public Interest Criterion 4020 for the purposes of cl 482.217 of Schedule 2 to the Regulations

Namoi Dougall
Member

ATTACHMENT

Migration Regulations 1994

Schedule 4

1. (1)         There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

   (a)the application for the visa; or

   (b)a visa that the applicant held in the period of 12 months before the application was made.

   (2)The Minister is satisfied that during the period:

   (a)starting 3 years before the application was made; and

   (b)ending when the Minister makes a decision to grant or refuse to grant the visa;

   the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).

   (2AA)However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

   (2A)The applicant satisfies the Minister as to the applicant’s identity.

   (2B)The Minister is satisfied that during the period:

   (a)starting 10 years before the application was made; and

   (b)ending when the Minister makes a decision to grant or refuse to grant the visa;

   neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).

   (2BA)However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

   (3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.

   (4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:

   (a)compelling circumstances that affect the interests of Australia; or

   (b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

   justify the granting of the visa.

   (5)In this clause:

   information that is false or misleading in a material particular means information that is:

   (a)false or misleading at the time it is given; and

   (b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.

…

Migration Act 1958

s 5      Interpretation

(1) In this Act, unless contrary intention appears:

…

bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

(a)purports to have been, but was not, issued in respect of the person; or

(b)is counterfeit or has been altered by a person who does not have authority to do so; or

(c)was obtained because of a false or misleading statement, whether or not made knowingly.

…