1409408 (Migration) [2015] AATA 3888 (16 December 2015)

DECISION RECORD

DIVISION:	Migration & Refugee Division
REVIEW APPLICANT:	Mr Scott Michael Carroll 
CASE NUMBER:	1409408 
DIBP REFERENCE(S):	BCC2014/434260
MEMBER:	Karen Synon 
DATE:	16 December 2015 
PLACE OF DECISION:	Melbourne
DECISION:	The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 457 visa:
•	cl.457.223(4)(da) of Schedule 2 to the Regulations; and
•	cl.457.223(4)(e) of Schedule 2 to the Regulations.

Statement made on 16 December 2015 at 12:36pm

statement of decision and reasons
application for review
1.	This is an application for review of a decision of a delegate of the Minister for Immigration to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).
2.	The visa applicant applied for the visa on 13 February 2014.
3.	At the time the visa application was lodged, Class UC contained Subclass 457.  The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations).  One of the criteria to be satisfied at the time of decision is cl.457.223 which requires the visa applicant to satisfy one of the alternative ‘streams’ for the visa.  One of these streams is contained in cl.457.223(4) which is set out in the attachment to this decision.  In the present case, specific claims have been made against cl.457.223(4) which applies to sponsorship for employment in an occupation by a standard business sponsor.  No claims have been made in respect of the other alternative streams in cl.457.223.
4.	The delegate refused to grant the visa on 6 May 2014 on the basis that the applicant did not have the qualifications or work experience required for the nominated occupation of Electrician and therefore did not meet cl.457.223(4)(da).
5.	An application for review of the primary decision was lodged on 28 May 2014.
6.	The applicant appeared before the Tribunal on 28 October 2015 to give evidence and present arguments.  
7.	The applicant was represented in relation to the review from 22 October 2015 by a registered migration agent.  His migration agent was present throughout the hearing.
8.	For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
9.	The issues in this case are whether the applicant meets the requirements of paragraphs cl.457.223(4)(da) and cl.457.223(4)(e).
10.	The Tribunal firstly notes that cl.457.223(4)(a) requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.
11.	The applicant provided to the Tribunal a copy of the ‘Notification of approval of a nomination’ letter dated 17 April 2014 which states that the business nomination application lodged by ‘Trustee for iLite Trust’ for the nominated occupation of ‘Electrician’ (ANZSCO Code 341111) was approved by the department on 17 April 2014.  Therefore by operation of law this nomination expired on 17 April 2015.
12.	On 22 October 2015 the Tribunal was advised that a new standard business sponsorship and nomination in respect of the applicant had been lodged.  A new standard business sponsorship was required due to changes in the structure of the proposed employer.  On 2 December 2015 the Tribunal was provided with a copy of the approved standard business sponsorship of ‘The Trustee for ILite Electrical Trust’ which was approved on 30 November 2015.  The Tribunal proceeds on the basis that at the time of its decision, the nomination is still pending.
Skills, qualification and employment background of the applicant
13.	Clause 457.223(4)(da) requires the applicant to have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.  In addition, under cl.457.223(4)(e), if required by the Minister, the applicant must demonstrate that he or she has the skills that are necessary to perform the occupation in the manner specified by the Minister.  In this case the nominated occupation is ‘Electrician (General)’. 
14.	The information before the Tribunal is that the applicant holds a passport of the Republic of Ireland.
15.	The Tribunal has consulted the 457 Skills Assessment Program Applicant Guidelines (dated June 2014) and notes that Trades Recognition Australia does specify ‘Electrician (General)’ (ANZSCO code 341111) as a nominated occupation for which a 457 skills assessment is required however it does not specify citizens of Ireland. 
16.	The Tribunal has had regard to Australian and New Zealand Standard Classification of Occupations (ANZSCO) which comprises material drawn from a survey of available occupations throughout Australian and New Zealand.  ANZSCO is not binding on the Tribunal and nor does it provide a comprehensive analysis of the role of a ‘Electrician (General)’.  However the Tribunal has referred to ANZSCO to inform its consideration of whether the applicant has the skills necessary to perform the nominated occupation.
17.	The ANZSCO definition and tasks for the occupation of ‘Electrician (General)’ which is part of the Unit Group 341 ‘Electricians’ records the indicative skills level in Australia as:
•	AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)
•	At least three years of relevant experience may substitute for the formal qualifications listed above.  In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
18.	The ANZSCO lead statement states Electricians “installs, tests, connects, commissions, maintains and modifies electrical equipment, wiring and control systems.  Registration or licensing is required.
19.	Energy Safe Victoria, the safety regulator responsible for electrical and gas safety in Victoria states that
An electrician's licence entitles the holder to carry out all types of electrical installation work in Victoria without supervision.
20.	While cognisant that the Tribunal is not bound by department policy, the Tribunal has had regard to the following, relevant department policy contained in PAM3:
Registration and licensing
111	Skill requirement
In general, if:
•	it is necessary for the visa applicant to hold registration, licensing or professional membership to perform the nominated occupation and
•	they provide written evidence from the relevant Australian body of registration or written evidence of eligibility for registration (subject to an interview)
•	the skills requirement can be considered met without further enquiry.
Applicants who would usually be required to provide a TRA 457 skills assessment but who have evidence of having obtained registration/licensing/membership may also be considered to have met the skills requirement without needing to provide a TRA 457 skills assessment.  In these circumstances, eligibility for licensing/registration would not normally remove the requirement for the visa applicant to provide a TRA 457 skills assessment…
21.	Throughout the course of the review the following relevant information has been provided to the Tribunal:
•	An award titled ‘Level 6 Advanced Certificate’ ‘Craft Electrical’ awarded to the applicant on 15 February 2013;
•	A document titled ‘Statement of Attainment’ issued by ‘Narbil Training and Consulting Services’ in Queensland on 22 February 2012 stating that the applicant has successfully completed the unit “CPCCOHS1001A: Work safely in the construction industry’.  
•	Two certificates issued by ‘Spotless’ both dated December 2012.  The first is a Statement of Attainment that the applicant had fulfilled the requirements of the module ‘Electrical Safety Induction’.  The second is certification of the applicant’s successful completion of the course titled ‘Spotless Contractor Induction’.
•	A copy of the Spotless Electrical Safety Management Plan
•	The applicant’s curriculum vitae recording that he is “a fully qualified Irish Electrician and plans to change over to A Grade Australian Electrical papers as soon as possible”.  It further records that he has been employed by iLite Electrical, Melbourne from July 2013 installing inverters and solar panels on both residential and commercial grooves, exam wiring/blueprints of job layouts and preparing for jobs and doing stock control including ordering materials and running AC and DC cabling for the installation of the solar panel systems.
•	Copies of two Irish identity cards in relation to the applicant’s occupation.  The first is titled ‘Ireland National Craft Card’.  It was issued on 5 February 2013 and records ‘Electrical‘ ‘Merit’.  The second is a card identified as a ‘Registration Card’ with the word a ‘safepass’ and a registration number.  This expired in October 2013.   It has the European Union emblem. 
•	Three other identity documents including a copy of the applicant’s Social Services Card and an Australian driver’s licence issued by the Northern Territory.
•	A position description issued by ‘iLite Electrical’ which details a number of tasks.  The position description does not identify to what occupation it is attached and nor is it identified as being a position description for an electrician.
•	The Department’s notification of the 457 visa approval with effect from 17 April 2014.
22.	On 4 December 2015 the Tribunal wrote to the applicant in accordance with the provisions of s.359(2) relevantly advising:
Your application was refused by a delegate who determined, after requesting you to provide documentation demonstrating that you have the necessary skills to perform the nominated occupation, that you did not have the qualifications or work experience required for the nominated position of ‘Electrician (General)’.  The delegate found you did not meet the requirements of clause 457.223(4)(da), which provides:
the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation…
According to Energy Safety Victoria, the safety regulator, the nominated occupation requires that you be licenced.
23.	The applicant was invited to provide the following information:
Additional information concerning your qualifications and/or your employment experience indicating that you possess the skills necessary to perform the nominated occupation of ‘Electrician (General)’ , in accordance with cl.457.223(4)(da); and
Information that you are licenced to perform the duties of an Electrician in Victoria or, alternatively, that you are eligible to obtain the mandatory licensing before performing work in the nominated occupation, should the visa be granted. 
24.	The Information was invited by 18 December 2014.  It was emphasised that this information must be in addition to that which he had already provided to the Tribunal.
25.	In response on 17 December 2014 the following relevant information, additional to that already provided, was submitted:
•	A hand written covering letter signed “Scott and Yvonne” that relevantly stated “as Scott has not obtained his A grade Australian license as of yet, we just want to make sure this will not be an issue as he is fully qualified as an electrician and will obtain his A grade papers subject to the sponsorship going through - This was never an issue before so just wanted to make sure everything is above board”.
•	A copy of a letter from John Alberti (unsigned) dated 12 May 2014.  It is on iLite Electrical letterhead and relatively states that the applicant has worked with iLite Electrical from 1 July 2013 and that his daily duties include:
•	install and test solar and electrical installations – PV systems;
•	ensure all hardware supplied is compliant with Australian standards;
•	read and interpret a C and DC wiring diagrams;
•	communicate and coordinate with customers regarding installations and deliveries; and
•	on call for technical faults and Electrical services.
•	A copy of a Full-time Employment Contract for the position of General Class Electrician issued by iLite Electrical to the applicant and dated 1 July 2013.
•	A copy of a Seek advertisement for a Licensed Electrician and an Electrical Trades Assistant dated 13 February 2013.
•	A copy of a letter issued by Paul Carroll of Martello Electrical Contractors based in Dublin who writes that the applicant was employed by the company as an Apprentice Electrician from 9 September 2009 to 10 January 2012.
•	Copies of payslips issued to the applicant by iLite Electrical Pty Ltd which specify his classification as Electrician.
26.	On 19 December 2014 the applicant provided a number of other documents all of which had previously been provided to the Tribunal with the exception of a letter dated 19 December 2014 signed by John Alberti of iLite Electrical Proprietary Ltd.  The letter is titled ‘Scott Michael Carroll Trade Recognition’ and relevantly states:
Scott Carroll has been working with the organisation since 1 July 2013 and during this time I have witnessed his work abilities.  With over 22 years experience in this industry and from what I have observed I (sic) no reason to think that Scott would not be able to have his licence recognised.  His ability to complete set tasks to the current Australian Standards and Victoria Standards is second to none in fact, at times he has a greater understanding of the regulations than some of our local trained/ qualified electricians.  We have additional training to commit to the following year which will further enhance Scott’s understanding and help them achieve the ultimate goal with TRA.  I would like to see Scott submit his Trade Recognition as soon as his visa is approved and I will assist in any manner possible to achieve this.
27.	On 9 January 2015 the Tribunal again wrote to the applicant in the following terms:
…..On 17 December 2014 you provided a number of documents in person at the Tribunal.  A case note records that you spoke with the Tribunal officer and relevantly advised you would approach your employer and request an application for registration be lodged and provide this evidence to the Tribunal.
On 17 and 18 December 2014 the Tribunal received emails from you in which you requested an extension of time to organise this.  An extension of time to respond to the Tribunal’s invitation writing was emailed to your 19 December 2014.  This granted you an extension of time to provide the information until 12 January 2015.
Information requested that “you are licensed to perform the duties of electrician in Victoria or, alternatively, to eligible to obtain the mandatory licensing before performing work on the nominated occupation, should the visa be granted” has not been received by the Tribunal.
Despite the fact that the prescribed period providing request information has ended the Tribunal wishes to advise you that will delay its decision making for a further 3 weeks from the date of this email will consider any submissions received before then.
28.	On 21 January 2015 the applicant attended the Tribunal’s offices in person and requested an additional extension of time explaining that his parents had sold the family home and he was having difficulty collecting the required documents and could not give a definitive timeframe when he would obtain them.  The applicant followed up this visit with an email dated 23 January 2015 reiterating the same information.
29.	On 28 January 2015 the applicant provided an email containing the “information requested” that he will be able to receive an electrical licence in Victoria.  Attached to this is a copy of a document issued by International Future Skills based on Queensland dated 28 January 2015 this letter is titled ‘Application Received’ and records that Future Skills International has received the applicant’s application for skills assessment for Offshore Technical Skills Record (for licensing purposes) and the Skilled Migration Assessment (for migration purposes).
30.	On 2 December 2015 the applicant provided a copy of his successful ‘Skilled Migration Assessment’ conducted in Sydney by Future Skills International.  This assessment relevantly records:
Based on the assessment undertaken, this OTSR is evidence that you meet the technical requirements of the qualification UEE30811 Certificate III in Electrotechnology Electrician and have been assessed as suitable for migration purposes.
Registration and/or licensing is required for this occupation.  The OTSR entitles the holder to apply for a provisional licence/certificate/registration.
31.	Also provided was:
•	A copy of the applicant’s ‘Offshore Technical Skills Record’ certifying that he has the technical skills for a Electrician (General) ANZSCO Code 341111; and
•	Advice of approval of ‘The Trustee for ILite Electrical Trust’ as a Standard Business Sponsor with effect from 30 November 2015 and current until 30 May 2017.
32.	On the basis of the ‘Offshore Technical Skills Record’ dated 21 November 2015 the Tribunal is satisfied that the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation and that these skills, necessary to perform the occupation of Electrician, have been demonstrated in the manner specified by the Tribunal.
33.	For these reasons the applicant satisfies the requirements of cl.457.223(4)(da) and cl.457(4)(e).
34.	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
35.	The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 457 visa:
•	cl.457.223(4)(da) of Schedule 2 to the Regulations; and
•	cl.457.223(4)(e) of Schedule 2 to the Regulations.

Karen Synon
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
(ea)	if:
(i)	the applicant would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the applicant; and
(ii)	in order to obtain the licence, registration or membership, the applicant would need to demonstrate that the applicant has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;
the applicant has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership; and
(eb)	if:
(i)	the applicant is not an exempt applicant; and
(ii)	subclause (6) does not apply to the applicant; and
(iii)	at least 1 of subparagraphs (ea) (i) and (ii) does not apply;
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.