1411501 (Migration)

[2015] AATA 3177

1411501 (Migration) [2015] AATA 3177 (7 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Arun Dhoj Karki
Ms Sunita KC Karki

CASE NUMBER:  1411501

DIBP REFERENCE(S):  BCC2014/1180343

MEMBER:Marten Kennedy

DATE:7 July 2015

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decisions not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 07 July 2015 at 9:30am

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act). The applicants applied to the Department of Immigration for the visas on 12 May 2014.

2. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme). 

3. In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Bricklayer (ANZSCO 331111).

4. The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.234 of Schedule 2 to the Regulations. For applicants in the Direct Entry stream, cl.187.234 requires that at the time of application:

   ·     the applicant is in a specified class of persons (exempt persons), or

   ·     if the applicant’s occupation has been specified by the Minister and the applicant did not obtain the necessary qualification in Australia – that the applicant’s skills have been assessed as suitable for the occupation by a specified assessing authority (the skills assessment must meet certain requirements, depending on the date of visa application), or

   ·     if neither of the above applies, the applicant had the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation.

6. The applicant relies on satisfying the third alternative mentioned above[1]. The issue for me to decide therefore is whether, at the time of application, the applicant had the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation of bricklayer.

   [1] The applicant is not in a specified class of persons in IMMI 12/060 as to earning, visa status and term with his employer at the date of application.  The applicant’s skills have been obtained in Australia and there is no evidence of a relevant skills assessment being undertaken before the date of application.

7. ANZSCO provides, in respect of bricklayers (and stonemasons), that:

   Indicative Skill Level:
   Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.

   In Australia:  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…

8. I find on the basis of the document at folio 29 of the Departmental file that the applicant holds at Certificate III in Bricklaying and Blocklaying issued under the Australian Qualifications Framework, and held that qualification at the time of application.

9. The delegate referred to Departmental policy requiring the applicant to have, in addition to the Certificate III, at least two years’ post-qualification experience obtained on a full-time basis or its part-time equivalent.  I note the Department policy to the effect that the two years’ post qualification experience is ‘taken to be equal to the on the job requirement’, and understand, in that sense, it serves as a practical concession to circumstances where foreign students are not admitted into Australian apprenticeships.

10. The delegate did not accept that work experience whilst the applicant was studying towards his certificate III constituted ‘formal on-the-job training’, noting that in any event the amount of work experience was less than two years.

11. The delegate did not accept evidence produced by the applicant of voluntary bricklaying job training while studying between 31 January 2011 and December 2012 as the delegate was not satisfied there was quantifiable evidence of hours worked.

12. The delegate concluded that the applicant did not have at least two years’ on the job training, or the alternative available under the Department’s policy of 2 years post qualification experience.  As such, the delegate found the applicant did not meet the requirements of cl.187.223.

    Did the applicant have, at the time of application, at least two years’ on-the-job training?

    Work Experience Component

13. It is submitted on behalf of the applicant that the mandatory work-experience component of the 2-year certificate III course should be considered to be ‘on the job training’.  It is submitted that ANZSCO does not specify the number of hours required during this two year period or require that the training occur constantly during this period.  It is submitted therefore that the completion of the Certificate III with the work experience component satisfies the ANZSCO requirements.

14. I have had regard to correspondence from Polytechnic West confirming that the applicant studies towards his qualification for a period of two years, and it included a work experience component.  The letter explains that the applicant studied a total of 300 hours in the work experience component.

15. In my view, the reference in ANZSCO to ‘on the job training’ in the context of a trade is to be construed as a reference to apprenticeship, and to be contrasted to a work experience component of a non-apprenticeship course.  My view in this regard reflects the Department’s policy.  In this regard, the role of policy is well understood.  I am conscious that I am to have regard to the Department’s policy but I am not bound to apply it, particularly where it is inconsistent with the regulations.  I have had regard to the Department’s policy[2]:

    “The fundamental premise is that the ANZSCO requirement of a Certificate III with at least 2 years on-the-job training relates to circumstances where the qualification is obtained in Australia as part of an apprenticeship or formal training program…”

    [2] PAM Sch 2 Visa 187 – regional Sponsored Migration Scheme 30.1 Qualifications and work experience – 187.234(c) – on the job training

16. In my view, the Department’s explanation of ‘on-the-job’ training in this regard is not inconsistent with ANZSCO or the Regulations and accords with my own interpretation of what is meant by the ANZSCO.

17. I recognise however that this interpretation is not free from doubt, given ANZSCO itself does not define ‘on the job training’ or use the terminology of ‘apprenticeship’. I have therefore proceeded to consider the second limb of the submission to the effect that because ANZSCO does not specify the number of hours required during the two year period or require that the training occur constantly, it has the effect that the completion of the 300 hours of work experience during the 2-year course of itself satisfies the ANZSCO requirements.

18. I do not accept this submission because the construction relied upon does not reflect the terminology used in ANZSCO.  The requirement in ANZSCO that a person hold an AQF Certificate III including at least two years of on-the-job training is fundamentally different to what is submitted: that a person hold, in effect, a 2-year AQF Certificate III with some component of on the job training.  I consider that the temporal requirement of 2 years relates to the on-the job training, and this cannot be understood to be satisfied by 300 hours (or less in theory) of work experience, even if that work experience is accepted to be on the job training.

19. I therefore do not accept that the applicant’s Certificate III in Bricklaying and Blocklaying of itself satisfies the requirement of ANZSCO because it does not incorporate at least 2 years’ on the job training.

    Post qualification work experience.

20. I note that the applicant claims to have worked for Spikes Bricklaying Service from July 2013 to the date of lodgement of the visa application.  For the purpose of this review I accept that to bet the case.  I accept the applicant has at least 11 months of post-qualification work experience from this source.

    Voluntary Work

21. It is also submitted that in addition to the 300 hours of work experience undertaken by the applicant, and the 11 months’ post qualification work experience with Spikes Bricklaying I should have regard to voluntary work undertaken by the applicant with Zain Builders.

22. The evidence before the Tribunal in relation to the work experience was of concern to me on my first review of the Departmental and Tribunal file. I used the provisions of section 359(2) of the Act to invite the provision of relevant information in this regard, and had regard to documentation provided in response.  In inviting the applicant to the hearing, I indicated I was not satisfied with the evidence of voluntary work experience provided to date and asked the applicant to provide further evidence or witnesses in this regard at the hearing.

23. At the hearing, I explained I had difficulty with the proposition that despite working with this employer for two years, there was no corroborating documentation other than a statement. 

24. The applicant told me that the work was voluntary but on 12 December 2012 he was paid a lump sum of $1650 because they were happy with his work.  The applicant was unable to explain the basis of that calculation.  The applicant confirmed he was not issued a group certificate.

25. In addition, at the hearing I explained that none of the documentation provided permitted me to calculate the hours of work undertaken. 

26. The applicant told me that it was 20 hours per week.  The applicant referred to a TAFE log book, and I invited the applicant to provide this documentation after the hearing.  The applicant confirmed that he had undertaken his work experience through TAFE with Zain also.  I have subsequently received a document entitled ‘International Student Time Sheets’ recording dates between 2 February 2011 and 7 December 2012 of approximately two 8 hour days and 1 four hour day each week.  The entries are signed by the ‘student’, the supervisor ‘Ajay’ and an assessor.  The applicant elaborated on his work practices.

27. I have also had regard to Contractor induction certificates issued to the applicant for the work site.

28. I observed with concern at the hearing that correspondence incorporating the name of the employer had inconsistent Australian Business Numbers and had been signed by different people, and in fact had different names incorporating the word ‘Zain’, and one came from a company, and one a sole trader.  The applicant told me they had changed their name about 2 months ago.

29. I noted that the most recent reference referred to the applicant undertaking work experience with the company – but the earlier reference did not relate to a company.  I explained to the applicant that I was concerned by these observations and may not be able to rely on the documents being presented. 

30. The applicant explained that ‘Ajay’ (the signatory of one reference) was a manager who had subsequently left the company.

31. I share the concerns expressed in the Department’s policy in relation to reliance on voluntary work experience for the purposes of permanent skilled migration to Australia.  The Department’s policy is that time spent volunteering would not generally be considered towards a visa applicant’s work experience as evidence of their skills.[3]

    [3] PAM Sch 2 Visa 187 – regional Sponsored Migration Scheme 30.1 Qualifications and work experience – 187.234(c) – work experience

32. While I do not view this as a binding prohibition on me, I find the explanation of the approach suggested in the policy to be persuasive – particularly as it meshes perfectly with the concerns about the evidence before me that I have developed for myself.  The policy observes that the reasons for generally not considering volunteering are:

    ·As there has been no remuneration, there would be heavy reliance on the information provided by referees that the work was undertaken and at the appropriate skill level;

    ·Due to the absence of formal records by way of payslips or formal contracts of employment, there would be limited quantifiable evidence of hours worked;

    ·If volunteer work has been undertaken to the level expected of full time equivalent, the applicant would need to have been working in paid employment in order to support themselves during this time, meaning that their formal paid skills are concentrated in other areas; and

    ·ANZSCO defines “job” as tasks performed by one person for an employer (including self-employment) in return for payment or profit.

33. Reflecting carefully upon the evidence produced and the applicant’s responses to my concerns, I remain concerned by the evidence relating to the applicant’s work experience, and am not satisfied on the evidence as to any particular amount of voluntary work (as opposed to TAFE work experience placement) having been undertaken before the date of the visa application.

34. Furthermore, I am not satisfied that any work undertaken as an unqualified volunteer international student is work relevant to developing the skills required by ANZSCO in any event, nor am I satisfied that it could be described as a form of on the job training. 

    Other submissions

35. It was submitted that as the applicant had more than 12 months post graduate work experience at the time of application ( although I can identify only 11) ‘common sense’ dictates that the number of hours of this post graduate work  experience would easily exceed any part time work experience obtained during the 2 year period of a Certificate III course.

36. I have considered that submission but do not accept that 12 months’ post graduate work experience at the time of application is the equivalent of 2 years’ on the job training. 

37. It is further submitted that the Department has granted visas in similar circumstances in the past, and a consistent approach was requested.  Evidence of the Department’s grant of visas in similar situations was offered.  I am prepared to accept that the Department may have on occasion found cl.187.234(c) in similar circumstances.

38. I place no weight on this proposition because I do not, for myself, consider it to be correct application of the Regulations.  In relation to the submission that a consistent approach be adopted, I consider that the Department’s policy, to which I have had regard, is directed at achieving such an outcome.  I do not place weight on the proposition that the Department may  have granted visas contrary to its own policy as a basis for declining to adopt the approach set out in the policy, particularly where I have concluded for myself that the approach set out in the policy as to the interpretation of ‘on the job training’ and concerns as to the reliance on inadequately documented voluntary work accords with my understanding of the requirements of the Regulations.

    Conclusion

39. I am not satisfied that at the time of application, the applicant had the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation. The other alternative ways of satisfying cl.187.234 are not satisfied. The first-named applicant does not therefore meet the requirements of cl.187.234 of Schedule 2 to the Regulations, an essential criterion for the grant of the visa.

40. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream. No claims have been made in respect of the other visa streams.  As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review in respect of the first-named applicant must be affirmed.

41. The second-named applicant relies on her status as a member of the family unit of the first-named applicant, and cannot therefore meet the secondary criteria for the grant of the visa.

    DECISION

    The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

    Marten Kennedy
    Member